Wallace v Kam
[2013] HCATrans 45
[2013] HCATrans 045
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S307 of 2012
B e t w e e n -
IAN WALLACE
Appellant
and
DR ANDREW KAM
Respondent
FRENCH CJ
CRENNAN J
KIEFEL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 13 MARCH 2013, AT 10.22 AM
Copyright in the High Court of Australia
MR P.W. BATES: May it please the Court, I appear with MS P.G. WHITE, for the appellant. (instructed by Gerard Malouf & Partners)
MR D.J. HIGGS, SC: I appear with MR E.M. PEDEN, for the respondent, your Honours. (instructed by TressCox Lawyers)
FRENCH CJ: Yes, Mr Bates.
MR BATES: Your Honours, this appeal presents itself as a dispute about causation, but that dispute arises in the context of the scope and content of a doctor’s duty of care. The appellant seeks to demonstrate that a medical practitioner has a duty to inform the patient of all relevant information which, first, the patient reasonably needs to know, which is sometimes called the pro‑active duty, or so described in the Ipp Report and, second, that the patient lets the doctor know that the patient wants to know, which is sometimes called the reactive duty.
This is to enable and equip the patient as an autonomous person to make an informed decision on whether or not to undergo an investigative procedure or medical and surgical treatment that is reasonably indicated in the circumstances. Information includes, but is broader than, the material inherent risks of the proposed treatment. This, on the appellant’s case, includes specific risks as well as cumulative or total or overall risk and prospects. Inherent risks in the context of a doctor’s duty to provide information to a patient are risks that may occur or materialise even if reasonable care is exercised by the doctor in carrying out the procedures or treatment.
The appellant submits that the scope and content of a doctor’s duty of care goes very much to the heart of the other matters that have to be decided in the cause of action and, particularly, control aspects of causation. To demonstrate that, I wish to, in the first instance, go to the Civil Liability Act itself, which places a doctor’s duty to give information to a patient in a special class of case. I will be coming back to that later when I deal with the exceptional class of case in the causation provisions in section 5D.
If I could take your Honours, in the first instance, to section 5P in the Act as it stood at 22 November 2004, which is when the cause of action accrued and that was shortly after the legislation to implement the recommendations of the Ipp Report came into force. Section 5P forms part of Division 6 and is dealing with a standard of care in professional negligence claims against professionals, and section 5P immediately signals a special role in relation to the duty of a doctor who gives information, including warnings and advice.
Section 5O introduces a modified Bolam test. I will be coming to it when I go to Rogers v Whittaker but in Rogers v Whittaker in 1992 this Court held in substance that Bolam’s Case in England in 1957 had held that the standard of care for all aspects of a doctor’s duty, including information, was to be governed by a medical professional standard. After Rogers v Whittaker, although medical standard was relevant, it was no longer controlling for any aspects of the standard of care.
FRENCH CJ: Section 5P simply disapplies section 5O in effect, does it not?
MR BATES: It operates slightly differently, your Honours, in the sense that the way this has been interpreted in the two cases which I had referred to in the oral outline was that it has been interpreted in New South Wales by the Court of Appeal in Ambulance Service of New South Wales v Worley [2006] NSWCA, and also in Dobler v Halverson [2007] NSWCA 335 and 70 NSWLR 151. They have held that it really operates as a defence and that what happens is that the way the prima facie case now works for treatment and investigation is that a patient would lead evidence to effect that the procedure fell below the standard of care.
Then if a doctor wishes to defend that, the doctor then can try and bring himself or herself within section 5O, as a defence. It does differ from the traditional Bolam test in 1957 in England in Lord McNair’s famous decision, because the Bolam test as originally promulgated required the plaintiff in the plaintiff’s case to show that the doctor’s alleged breach fell below a competent standard of opinion of the peers, and that applied to all aspects of the duty.
In the reformulation of the Bolam test in section 5O the plaintiff is still better off than he or she was under Bolam because under this modified test the plaintiff does not have a burden in‑chief or in the prima facie case to negate the standard, but the doctor can try and bring himself or herself within the defence. There is also a rather significant difference between the 1957 version of the Bolam test in Lord McNair’s judgment and the sort of modified version of section 5O in that section 5O requires a doctor to show that he or she has complied with a widely accepted standard, whereas the Bolam test in England only required the doctor to show that his or her practice complied with a reputable body of opinion even if it was a small body.
FRENCH CJ: Are we not really concerned – I thought that at the core of the debate here was the question of factual causation in 5D and ‑ ‑ ‑
MR BATES: Yes, your Honour, but the plaintiffs ‑ ‑ ‑
CRENNAN J: May I just clarify some matters just so I do understand the way the case is put. It is accepted for the purposes of the appeal in this Court, is it not, that had the risk of neurapraxia been disclosed the plaintiff would have gone ahead with the operation. Is that right?
MR BATES: That was the finding. That is accepted.
CRENNAN J: That is accepted for the purposes of this appeal?
MR BATES: Yes, your Honour.
CRENNAN J: Then the next question I have, is the harm in respect of which this appeal is now being agitated, the neurapraxia?
MR BATES: The answer is yes, but the appellant’s case, in substance, is that ‑ ‑ ‑
CRENNAN J: So the question on causation for this appeal is whether the non‑disclosure of the 5 per cent risk of catastrophic paralysis is causally related to the neurapraxia?
MR BATES: To answer your Honour directly, there are two aspects of causation which, in my respectful submission, are conflated in your Honour’s question to me. The appellant accepts that in terms of the actual damage that he suffered it was the neurapraxia and the appellant accepts ‑ ‑ ‑
CRENNAN J: That is the harm for 5D(1)(a) and (b).
MR BATES: Well, that was the harm that came home for which he sued and for which damages were agreed at the figure they were agreed.
CRENNAN J: Yes.
KIEFEL J: I was going to ask you about that. The agreement for damages of some $350,000 does not extend to the plaintiff’s disability which I think his Honour described at paragraph 86 of the judgment, appeal book page 943, as the plaintiff being “disabled in a complex and serious way” but not related to surgery, but rather to “preoperative co‑morbidities”.
MR BATES: Well, your Honour, that was why the agreement was there, but when the case was run at trial ‑ ‑ ‑
KIEFEL J: It was on the basis that there was an incomplete paraplegia which had been caused by the surgery.
MR BATES: The parties compromised on the quantum because when the plaintiff began the case ‑ ‑ ‑
KIEFEL J: Yes, I am sorry. I do not mean to get in a discussion about it. I just want to make clear that, as Justice Crennan is asking you, the only damage or injury that we are concerned with is the neurapraxia and that it is accepted that the plaintiff’s disability that he may suffer from is not related in any way to the surgery, his permanent disability, because the neurapraxia was temporary.
MR BATES: Yes, your Honour. It is accepted that the only damage covered by the agreed quantum reflects the six or seven‑month period.
KIEFEL J: Did the trial judge make a finding that Dr Kam gave no warning of the risk of catastrophic paraplegia?
MR BATES: No, your Honour. He was asked to make the finding, but he declined to do so on the basis that it was not relevant.
KIEFEL J: Could I just ask you then – I am just a little puzzled by one finding made by his Honour at appeal book 917, paragraph 37. After noting Dr Kam’s concession that he had not warned about the risk of bilateral femoral neurapraxia, two sentences afterwards, his Honour says:
To the extent that it is necessary to do so, however, I find that Dr Kam did not also warn the plaintiff of the risk that he could be left with weakness in either or both of his legs –
What is that to do with?
MR BATES: Your Honour, later on in the judgment – I can find the passage – his Honour was using that term there in the context of neurapraxia.
KIEFEL J: I see. Why does he need to do that if there is a concession? He is saying just for completeness, is that all it turns upon?
MR BATES: There is a passage near the end of the judgment which I will find for your Honour, or my junior will find, where his Honour says words to the following effect, “Whether it is described as weakness of the legs” or “Whether it is described as neurapraxia”.
KIEFEL J: I see.
MR BATES: He was talking about ‑ ‑ ‑
KIEFEL J: So it is just to do with the description of neurapraxia?
MR BATES: Yes.
KIEFEL J: Thank you.
MR BATES: The five per cent aspect ‑ ‑ ‑
KIEFEL J: Was the subject of no finding?
MR BATES: Was no finding. The appellant’s submission at trial was that it was relevant, and he should make that finding, but his Honour took the view the only relevant risk in terms of causation and in terms of duty to inform was the risk that actually came home.
KIEFEL J: The parties did not afterwards ask his Honour to make a further finding?
MR BATES: His Honour had heard the argument, we had asked him to do so, and he declined to do so, your Honour. When it went to the Court of Appeal, the Court of Appeal dealt with it on the basis that – they assumed for the purpose of the appeal that if there was a finding, which there has not been, on this issue, it would be that he would have declined the operation, and he was not told about the five per cent. It was on that basis that the Court of Appeal dealt with it, on that assumption. From a practical point of view, if your Honours were to allow the appeal, we would need to go back for a retrial on that issue because ‑ ‑ ‑
KIEFEL J: But in the Court of Appeal, their Honours dealt with it on the basis that assuming an assumption which favoured your client ‑ ‑ ‑
MR BATES: Yes.
CRENNAN J: That is at the bottom of 966 in paragraph 11.
MR BATES: Yes, thank you.
KIEFEL J: And their Honours really applied the – as I understand it, Justice Allsop and Justice Basten – applied the scope of liability, the policy questions really, in relation to determination of causation.
MR BATES: They differed there. Justice Allsop was in favour of the appellant on the factual causation question in 5D(1)(a), but was against the appellant ‑ ‑ ‑
KIEFEL J: That is right.
MR BATES: ‑ ‑ ‑on the scope of liability in 5D(1)(b). Justice Basten was against the appellant on factual causation. He endorsed the trial judge’s approach, and therefore in his approach, you never had to decide the scope of liability question, although he made some remarks about it.
So Justice Allsop in the majority and Justice Beazley in her dissent both found in favour of the appellant on the factual causation question but where they departed from each other was in the scope of liability. One aspect that was not dealt with by Justice Allsop was we had made a submission that even if he was against us on scope of liability under 5D1(b) he should still find this was an exceptional class of case within the meaning of 5D2 and that finding was not made. Ms White has now helped me by drawing my attention to page 945 of the appeal book, paragraph 91 which answers that question that your Honour Justice Kiefel was asking me about before.
CRENNAN J: Paragraphs 91 to 94 and I think Justice Allsop at paragraph 31 drew attention to it.
MR BATES: Yes, thank you. Coming back, I think, to your Honour Justice Crennan’s question before – the appellant’s case in a nutshell in this aspect that you asked me about is that to ask whether or not the appellant would have gone ahead with the operation and accepted the risk of neurapraxia, we say, that is a false counterfactual. I mean, every counterfactual is, in a sense, false because it is contrary to what happened but we say it is just the wrong counterfactual because - and this really comes to the heart of this whole case because that assumes in some sense that if we go back to the actual consultation with the doctor, the critical one was 5 October 2004. That was where the patient signed the consent form. That was when Dr Kam said he gave his standard warning. If we go back to there, we say it is a false counterfactual for this reason - this is really critical to the appellant’s case - because if Dr Kam hypothetically ‑ ‑ ‑
CRENNAN J: This is putting the weight on the patient autonomy argument that you foreshadowed earlier, is it?
MR BATES: It is but I will just try and really get to the nub of it for your Honour. Suppose Dr Kam hypothetically had disclosed this risk of neurapraxia, we say that is not the relevant counterfactual because that implies that in some sense a patient can accept the operation and that is the risk, in some sense the total risk. But we say it is an inappropriate counterfactual because the operation is an indivisible whole ‑ ‑ ‑
FRENCH CJ: This is your cumulative risk argument?
MR BATES: Yes, your Honour, it is the cumulative risk argument. The operation has to be accepted as a whole. It is not like when using the analogy of a car purchase where perhaps by paying extra money you can have extra safety features, maybe super good airbags or you can pay for maybe better brakes. This operation – you either have the operation or you do not. If you have the operation then you accept the whole package. It comes as a whole package. There is no way you can have this operation and somehow have it done in a way which only exposes you to neurapraxia. It also inherently exposes you to the 5 per cent risk of catastrophe.
So we say it is a false counterfactual because it is implying that even if the doctor had made disclosure that in some sense this would have discharged the doctor’s duty. Any appropriate counterfactual has to be one which at least, in principle, would discharge the doctor’s duty. We say it could never have discharged the doctor’s duty ‑ ‑ ‑
CRENNAN J: You are in a very special area though, are you not, when you are talking about an omission and causation? We are all familiar with the cases, obviously, where there has been an omission to warn and a risk has come home.
MR BATES: Yes, your Honour.
CRENNAN J: How is it that you put the case on causation where there is a failure to warn about a risk which did not come home, and the risk which did come home was a risk to which the plaintiff consented – would have consented on these facts?
MR BATES: Well, would have consented on the artificial counterfactual because ‑ ‑ ‑
CRENNAN J: There are plenty of dicta in the cases about risks that would not have to be disclosed, and I know the examples are things like the anaesthetic going wrong or the operating table being defective and so on. There are limits to what would have to be disclosed in terms of risks that come home or do not come home. What is it exactly about this case and a matter of principle that would distinguish the non‑disclosure from the non‑disclosure in cases where, as I say, the anaesthetic goes wrong or the table is defective or whatever? What is the principle you are seeking to articulate in relation to a non‑disclosure, a risk that does not come home?
MR BATES: On the appellant’s case the risk in a broad sense did come home. This operation has certain distinct risks and an overall risk. The operation can go wrong a number of different ways.
CRENNAN J: Was there evidence about Dr Kam disclosing that in his standard warning, that there are some cumulative risks associated with the surgery? I just cannot recollect whether there was or not.
MR BATES: His standard warning did not have any statement about overall risks, however, when he was cross‑examined by me he did say in one of his answers that his standard warning, as set out in his statement, had been in error because he said orally that, in fact, although his statement did not mention about the overall five per cent that he did mention problems of that sort; there was a factual question about that.
FRENCH CJ: This term “cumulative risk” that you have used the meaning of it has been questioned, I think, in the respondent’s submissions, so it is not a term of art or reflecting any statistical or having any statistical significance, it is just a way of saying that if he had been warned of both risks then the outcome would have been different.
MR BATES: Yes, your Honour, it is, and it is ‑ ‑ ‑
FRENCH CJ: They are unrelated risks in a sense; one has to do with the co‑morbidity and lying on the operating table for a long time. The other has to do with the sorts of things that can always go wrong when you are operating on the spinal area.
MR BATES: That is correct, your Honour, but we say the real question is giving an adequate warning and that an adequate warning ‑ ‑ ‑
FRENCH CJ: You say an adequate warning picks up both?
MR BATES: Yes, your Honour. We say an adequate warning gives the patient a real appreciation of what the prospects of this operation are and what might go wrong. We have used the analogy in our submissions of a lawyer advising a client about some proposed litigation.
FRENCH CJ: Well, your argument is you cannot slice up the causal analysis by looking at one aspect of the warning and seeing whether a causal chain flows from that or not. You have to look it as a whole.
MR BATES: Yes, your Honour, and we say that the way that could be done in an appropriate way in terms or principle is to go back to the interest that the duty is there to protect. We would say this is the measure of it. I seem to elaborate this, but in a nutshell, your Honour, what we say is that the interest protected by the duty to inform is protecting the patient’s - equipping the patient to make an informed decision, and the measure of the duty therefore is what should a doctor include in the information in the warning that equips the patient to make a reasonably informed decision. We say that if that is the measure of the duty that cannot be achieved by slicing this duty up into some form of artificial bits because we say that really is a false or incorrect counterfactual.
FRENCH CJ: Well, putting it into 5D(1)(a) language, do you say that the negligence in 5D(1)(a) was the failure to warn of both risks?
MR BATES: Yes.
FRENCH CJ: That was a necessary condition of the occurrence of the harm?
MR BATES: Yes.
FRENCH CJ: By simple causal analysis?
MR BATES: Yes, your Honour. Exactly, your Honour. That goes back, we say, to the mode of analysis in Woolworths v Strong where the Court said in that passage – I think it was about paragraph 17 or 18, they said that a factor which in conjunction with other factors is sufficient to bring about the result can be said to be a material contributing factor to the harm. So we say it does fit within a section 5D(1)(a) analysis, and if we are wrong on that our alternative argument is that the cases dealing with the scope of the duty to inform are an exceptional class of case as a class and that goes back to where I was, in a sense, starting the submissions at 5P – if I could just go back to that?
Your Honours, if I was just to go back for a moment to 5O and 5P, your Honours will see that there are a number of other provisions in these sections that reinforce the special position of the doctor’s duty to a patient. So if one goes to section 5H in Division 4, Division 4 deals with the assumption of risk and so‑called obvious risks and applies in most public liability situations such as slips and falls and so forth, and one sees that effectively there is no duty - section 5H(1) - to warn a person of an obvious risk. “Obvious risk” is defined in section 5F as one that would be:
obvious to a reasonable person in the position of that person.
(2)Obvious risk includes risks that are patent or a matter of common knowledge -
and so forth. Then one gets down to 5H(3) and once again the doctor’s duty to a patient is quarantined. So even though in public liability situations there is no duty to warn prospective users of roadways or of stairways or restaurants or wherever else about obvious risks, there is a special exception there in 5H(1)(c) where:
the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a provisional service –
Again, if one goes to 5I at the end of Division 4 it says:
A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
But once again subsection 5I quarantines the doctor’s duty:
This section does not operate to exclude liability in connection with a duty to warn of a risk.
So there is no presumption that doctors do not have to tell patients about obvious risks or inherent risks. The same structure occurs in Division 5 for recreational activities. In section 5K:
obvious risk has the same meaning as it has in Division 4.
Then one goes to section 5L as to the general position of recreational activities where it says:
(1)A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2)This section applies whether or not the plaintiff was aware of the risk.
But one then goes to section 5M(11) and that says there that ‑ ‑ ‑
FRENCH CJ: Sorry, how is this helping us with ‑ ‑ ‑
MR BATES: Well, I am simply trying to explain that although there are other areas of human activity to do with public liability situations, recreational situations where obvious risks are to be assumed or obvious risks do not have to be disclosed or obvious risks have to be absorbed, the whole structure of the Civil Liability Act reinforces the idea that in relation to a doctor giving advice to a patient, or information to a patient, there are duties to warn of inherent risks, there are duties potentially to warn of obvious risks.
FRENCH CJ: Well, 5H excludes duty of care in relation to obvious risks.
MR BATES: Yes.
FRENCH CJ: That exclusion does not apply by virtue of 5H(2)(c) where the defendant is a professional and ‑ ‑ ‑
MR BATES: That is correct.
FRENCH CJ: But 5H(3) goes on to – that does not of itself erect a duty of care. You have to find the duty of care somewhere else. It is just not precluded.
MR BATES: Yes, your Honour, but when you look at all these – I have taken your Honours to the whole structure of the Act and I am simply explaining that 5P really is a sort of chapeau here and it is putting a doctor’s duty to a patient in a very special category and this will lead to my argument later on to the effect that this class of case is potentially an exceptional class of case in terms of 5D(2) because the regime in 5P is a unique regime for disclosing information to patients and other professionals. There is no other area in the whole Civil Liability Act that quarantines this aspect of the duty in the way this does. One does have to go back to the common law and one does have to reconcile it with the Civil Liability Act but one starts ‑ ‑ ‑
FRENCH CJ: Well, 5O sets up a peer professional opinion defence, 5P says it does not apply in this category of case and then you have to go elsewhere.
MR BATES: Yes, your Honour. That is correct, your Honour.
CRENNAN J: Is it an exceptional case because the causation argument is difficult? Is that what you are intending to convey, difficult by comparison with a failure to warn in relation to a risk that comes home?
MR BATES: That is one reason, and the second reason, in a lot of public liability cases you can choose different levels of risk, for example, if you go to an amusement park you can choose slower rides or faster rides, for example. Your control is that way. In this class of case most procedures have an unavoidable package of risk once you undergo them.
CRENNAN J: Just to get back to the facts for a moment, at page 913, paragraph 32 of the primary judge’s judgment the primary judge sets out the relevant passage of Dr Kam’s statement. So that I take it is the – that sets out the warnings which Dr Kam gave, particularly on page 914, in relation to the procedure.
MR BATES: Well, that is what he said his warning was and he made ‑ ‑ ‑
CRENNAN J: He was cross‑examined about the weight issue, was he not?
MR BATES: No, he was cross‑examined on a number of aspects. He made the following concessions. He conceded that he had not made any warning about the neurapraxia.
CRENNAN J: Yes.
MR BATES: He alleged that even though it was not in his statement he did claim he had told about the 5 per cent risk. It was put to him he had not and that is why it was not in his statement, but that issue of fact was not resolved but he claimed that was an oversight. He claimed that he in fact had disclosed that 5 per cent risk.
CRENNAN J: In any event, your cumulative risk argument is confined, is it, to the non‑disclosure of the neurapraxia and the catastrophic paralysis?
MR BATES: No, your Honour. The cumulative argument does include those but it in fact it does include the other risks as well and I cross‑examined him on that but what Dr Kam said, in effect, was that the other risks that were inherent did not change the 5 per cent figure. He said the 5 per cent figure wrapped up all the various things - infection, catastrophe and so forth - so in terms of percentages, yes, 5 per cent was the real risk of serious problems. In terms of what actually made up that 5 per cent it included not just neurapraxia, not just the damage to the spinal cord ‑ ‑ ‑
CRENNAN J: But these other risks that are set out here on page 914, yes, thank you.
MR BATES: Yes. There is a provision where he said in answer to me in cross‑examination that those other things did not change the 5 per cent figure. Your Honour, I will return later on to the actual – to some of the evidence that I have referred your Honour to but if I could just go back for a moment to talking about the – to answer the Chief Justice’s question – you have to go somewhere else for the duty and the somewhere else we say is in fact the cases - Rogers v Whitaker and particularly in England, Chester v Afshar. If I could just take your Honours in the first instance to Rogers v Whitaker (1992) 175 CLR 479.
The key passages I want to take your Honours to are the plurality judgments starting at page 486. Their Honours effectively adopted what Lord Scarman had said in dissent in Sidaway’s Case. Sidaway’s Case in England had reaffirmed the Bolam principle from 1957 applied to all aspects of a duty and Lord Scarman had dissented and in that passage quoted at about point 5 on the page, Lord Scarman had said:
the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes -
and he then referred to what was said in Reibl v Hughes in Canada which their Honours also adopted:
that the “duty to warn” arises from the patient’s right to know of material risks, a right which in turn arises from the patient’s right to decide for himself or herself whether or not to submit to the medical treatment proposed.
Their Honours then explain in the next page or so, bottom of page 486 and top of page 487, that the problem with the Bolam test was that it took that away from the patient and allowed doctors to determine the standard. At the bottom of page 487 their Honours point out that is a limitation of the Bolam principle, at least in relation to information, and referred to some of the Australian cases which are set out in footnotes (35) and (36) which their Honours summarise at point 9 of the page.
FRENCH CJ: What is the proposition you are putting to us?
MR BATES: The proposition is that the interest protected by the doctors due to inform a patient is to enable – to equip and enable patients to make informed decisions as autonomous persons about whether or not to undergo treatment. We say that is what is protected, that is the measure of the duty and that ultimately governs questions of breach and causation. That is how we put the case.
KIEFEL J: You say that is relevant to factual causation?
MR BATES: Yes, your Honour. We say that for this reason, that the factual causation should reinforce the scope of the duty and there is a passage I will take you to shortly in Chester’s Case where the majority said otherwise you drain the doctor’s duty of content.
KIEFEL J: But the interest that the injured person has in the first place in knowing the extent of the risk that they are undertaking explains – may explain the extent of the duty but that is more relevant to value questions dealt with under scope of liability, is it not?
MR BATES: Well, we say it is relevant to both.
KIEFEL J: At common law it might be said that the question of causation generally involves a melding of both but the Civil Liability Act separates them, does it not? It separates a purely factual question from questions as to the extent of responsibility, whether or not the defendant should be held liable.
FRENCH CJ: Causality from causation.
MR BATES: Yes, your Honour, we say that even under separation, one still has to have regard to the scope of the duty to know what the causation relates to.
KIEFEL J: Causation relates to harm. That is your starting point, is it not? Factual causation is a connection between the harm suffered and a negligent act.
MR BATES: With respect, your Honour, we say that there is ‑ ‑ ‑
KIEFEL J: The questions of the plaintiff’s interest go to the question of scope of liability.
MR BATES: With respect, your Honour, we would disagree in part because we would say from the appellant’s point of view that your Honour’s proposition to me conflates two different stages of the analysis. The first stage, if one is looking at the consultation, the first stage, which I will call the anterior stage, is that the patient has to make a decision whether to undergo the treatment, and that decision will have to take place - will take place before any treatment is actually given, and that is really the yes or no stage ‑ ‑ ‑
KIEFEL J: That fact enables you to determine the question of the scope of duty and whether or not there was a negligent act, but when you are talking about the plaintiff’s interests, as you were before, you were talking in the sense of an interest which requires protection by the law. Protection in that sense is concerned with degree of responsibility, scope of liability. They are two distinct questions.
MR BATES: Well, your Honour, I accept that under 5D(1)(a) and (b) they are distinct, but we still submit that in terms of the 5D(1)(a) stage that the omission to provide an adequate warning is factually causative. I will be taking your Honours shortly to what her Honour Justice Gaudron said in Kenny’s Case, and her Honour was a member of the Bench in March v Stramare, and her Honour says that when one is talking about a person relying on information given to them by a person who has a duty to provide it that the factual causation really goes to the question of reliance. That is why her Honour said – and she had been a member of ‑ ‑ ‑
KIEFEL J: But that is factually distant from a case of omission. You are in a different area factually when you are talking about omissions and whether someone would have acted. That is the question. The factual question is would they have undertaken the risk? The question is not whether the defendant should be held liable because their interests require particular protection.
MR BATES: Your Honour, I, with respect, would take issue with putting it that way. The proposition your Honour puts to me at the moment is that the acceptance of the risk – in my respectful submission, the question is the decision to undergo the treatment. Whatever happens at the stage where the patient agrees to the procedure, at that stage the patient cannot have suffered injury. The procedure has not happened, even – going back to the traditional class of cases like Rogers v Whitaker itself.
In Rogers v Whitaker, the patient agreed at the consultation to undergo eye surgery, and then she did undergo the eye surgery and she became blind because of the risk that manifested, the risk she was not told about. But when she agreed to the procedure, no damage had occurred yet. There is an anterior stage. Ultimately, when the patient undergoes the operation, if they do, then yes, the operation has to be causally related in a physical sense to what happens; I accept that. The patient must prove that the actual procedure caused the risk that came home. There is no dispute about that. That is what Justice Gummow in Rosenberg called the second level of causation.
CRENNAN J: In Rogers v Whitaker, there is, I think, a grappling with the distinctions you are trying to make. It is page 490, about the mid-point of the page, so it is about point 5 of 490 where their Honours say:
Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass –
So on one view, what their Honours are pointing to is that the underlying policy in tort is to protect the patient from harm caused by the negligence, rather than protecting patient autonomy, which would be relevant to informed consent and trespass.
MR BATES: Yes, your Honour. If I could put it the other way round in a positive sense, we say that the protection of harm is the trespass aspect, and the protection of the patient’s decision-making is the negligence aspect. That is a different interest. Trespass is protecting the interests in physical inviolability. Negligence, in this area, is protecting – it may be that it was enabling – perhaps this word “protecting”, which I have used and which has been causing some concern to your Honour Justice Kiefel – maybe a better word would be to say “enabling”. It is enabling the patient to make an informed decision. “Protecting” might be a bad word if it suggests trespass, I am not trying to suggest trespass.
CRENNAN J: No, I am just pointing to the fact that there is a distinction between – in the context of an omission to disclose, a distinction can be made between a policy seeking to protect from harm in that context, as distinct from protecting autonomy. That is not to say autonomy is not an important consideration. It is just to point to a distinction between the two notions.
MR BATES: Yes, your Honour, but what I am not sure from your question to me, your Honours, is ‑ ‑ ‑
CRENNAN J: I think the point is that to just talk about patient autonomy does not really solve the problems that might arise under 5D(1)(a) in the context of omitting to disclose a risk that does not come home.
MR BATES: Your Honour, if the language is simply to enable the patient to make an informed decision, that is a true interest, it is protected by the tort of negligence.
KEANE J: You are not suing because you allowed someone to assault you by the surgery; that is why you are not suing in trespass. The interest is not accurately expressed by saying it is an interest in autonomy, it is an interest in being protected from harm, because what you are suing for is damages by way of compensation for injury, not just the fact that you were subject to a procedure.
MR BATES: Yes, your Honour, I accept ‑ ‑ ‑
KEANE J: That is the point that Justice Crennan is making to you.
MR BATES: Yes, your Honour. I accept on behalf of the appellant that the cause of action becomes complete upon the harm of some sort crystallising. But the critical feature that sets this tort apart is that what the patient really is – the interest of the patient really is being – seeking to have enabled are the inherent risks; they are the risks that may occur even if due care is exercised. This is a very important point in the appellant’s case because the risks that have to be disclosed are the inherent risks, they are the risks that might occur even with due care.
In a negligent procedure case, yes the patient suing for harm as well, but the procedure was done negligently, and that tort which is now governed by section 5O dealing with a modified Bolam defence, does protect the patient from the harm because the procedure was done negligently. The assumption is that if it had been done carefully the patient would not have been injured.
KEANE J: Just in relation to that, this notion of injury and harm, can you help me with this? Looking at page 943 of the record, paragraphs 84 to 86, the trial judge refers at the end of 84 to your client’s argument:
that the operation in fact left him in a worse condition and that if he had been warned of the risk of that possibility he would have declined the operation.
Then in 85 his Honour makes a finding:
First, in my opinion the plaintiff is not worse off than he was before the operation.
Then in 86 he says:
the plaintiff is not worse off as the result of anything that eventuated from the surgery.
MR BATES: Yes, your Honour, and we challenged that successfully by a notice of contention that aspect of it. I will get Ms White to find a passage, but we challenged that. We said ‑ ‑ ‑
KEANE J: So just how is your client worse off? How has he suffered harm by having the surgery? If you have got findings in the Court of Appeal, I would be happy to look at them. That might do, if you could just tell me.
MR BATES: Well, the findings were that he had been worse off as a result of this neurapraxia because for six months he had basically been a partial paraplegic and he had to have further surgery and the Court of Appeal accepted that argument. But, coming back to this very important aspect that your Honour has raised with me ‑ ‑ ‑
KIEFEL J: Could I just interrupt you there? Paragraph 86 is his Honour the trial judge attempting to distinguish the neurapraxia as something that was not surgery related, that is, it happened in the course of how the patient had to present for surgery but was not the result of the surgery itself. Then his Honour says his disability that he presents with, the neurapraxia, having passed is not connected with surgery either. There is no disability and no condition that was the outcome of the surgery itself. The neurapraxia was caused by the way the plaintiff had to lie for surgery.
MR BATES: Yes, your Honour, but in the Court of Appeal both President Allsop on this issue and Justice Beazley were with the appellant to the effect that – I withdraw that. Justice Beazley I should say was with the appellant. Justices Allsop and Basten were not - that the way in which the patient had to be laid was an intrinsic part of the operation.
KIEFEL J: Yes. I am just trying to understand his Honour’s findings.
MR BATES: Sorry, your Honour. Yes, your Honour.
KIEFEL J: I am just trying to interpret his Honour’s findings. That is all his Honour was, I thought, saying.
MR BATES: Yes, I think that is right, your Honour, yes. That was why, in that sense it was ‑ ‑ ‑
KIEFEL J: His Honour was not saying that there was no causal connection of any kind. He was talking about the direct consequence or the direct relationship with surgery.
MR BATES: Yes, your Honour. If I could just come back to Justice Keane - Justice Keane and the court – sorry, if one goes for a moment back to a negligent procedure where the patient suffered injury, the cause of action becomes complete on the damage and the patient sues for that and the patient is compensated for the harm. But on that scenario the outcome was avoidable by due care. The actual procedure itself would not have led to that outcome.
The critical feature that sets the duty to inform aside is that that – and this is the absolutely heart of why this area of jurisprudence is, in my submission, developed in cases like Rogers v Whitaker - is that the doctor is informing the patient that even on the assumption that the procedure is done with reasonable skill and care there are still certain bad outcomes that may occur that cannot be avoided and if you undergo the procedure you have to bear that risk.
So to take a different example which makes the point clearer, if hypothetically the doctor had told the patient in our scenario this whole package of risks, “There is a 5 per cent risk you will be permanently paralysed. There is a 5 per cent risk of catastrophe. There is a risk of neurapraxia”, the doctor told all those to the patient and the patient says, “Okay, doctor, I will still go ahead.” Then the doctor, as this doctor, did the operation without negligence, and the patient in fact suffers this terrible outcome, the patient has suffered the harm. But the harm was not brought about by actual negligence in the procedure and the patient has been prepared to take that risk. So what this duty is doing in this area is allowing the patient to make an informed decision of what risks they are prepared to bear.
That is the whole point of this duty because there is nothing that the doctor can actually do that will avoid that risk. That is why it is a material inherent risk. It is unavoidable except by not having the procedure. That is what the duty has to protect, and if it has to protect it that really comes back in a roundabout way to the questions asked of me before by Justice Crennan, which is that the reason an omission can be factually causative, in our submission, in terms of 5D(1)(a) is that what the patient has lost by the doctor’s failure to disclose is the option to say what risks I am prepared to wear and risk. That is a very important interest, the interest that allows a patient to make an informed decision about whether or not they are prepared to take the risk of being injured through non‑negligent procedures.
FRENCH CJ: We are working within an imposed statutory mode of analysis, so all of this must feed into, must it not, the content of the word “negligence” in 5D(1)(a), which has to be a necessary condition of the occurrence of harm. I look at appeal book 964, paragraphs 4 and 5 in the judgment of President Allsop. Is there anything in that analysis of the way in which 5D(1)(a) works and the way in which the term “negligence” is to be approached which is inconsistent with what you are putting? Is it correct that your real argument here is about the content of the negligence in this case that was, you would say, the necessary condition of what occurred?
MR BATES: Your Honour, I submit there is a slight qualification to what Justice Allsop has said here which is what was in fact adopted by Justice Beazley, which is that one has to have regard – to put it in a different way, an omission to disclose, we say, can be factually causative in the sense that his Honour is using there.
FRENCH CJ: Well, you say there is negligence because there has been a breach of duty to disclose multiple risks and that if that disclosure had taken place you would not have had the operation, you would not have suffered the neurapraxia?
MR BATES: Yes, your Honour.
FRENCH CJ: Therefore that non‑disclosure is a necessary condition of the occurrence of the harm which is the neurapraxia?
MR BATES: Yes, your Honour. We say that the warning has to include all those things otherwise it is not an adequate warning because it is an indivisible operation.
GAGELER J: But that gives you “but for” causation that gets you into 5D(1)(a).
MR BATES: Yes, your Honour.
GAGELER J: So you do not need to go to 5D(2) if you are already in 5D(1)(a).
MR BATES: Yes, your Honour. Our primary arguments were there in 5D(1)(a), but our fall‑back argument, if we are not, is that we should come within 5D(2) because of this ‑ ‑ ‑
GAGELER J: But on any view you have to deal with 5D(1)(b).
MR BATES: Yes, your Honour, but in relation to that aspect, just in terms of the section, your Honour, could I just quickly point out a few points that are salient to your Honour’s questions to me. If one goes to 5D itself we submit that in one respect the common law has been broadened by 5D(3) because we say it is relevant to determining factual causation in this sphere of human activity, namely doctors and information for patients. The matter does have to work subjectively, that is 5D(3)(a), so one has to have regard to the actual patient situation. It is a subjective consideration of what is relevant. You also have to consider all relevant circumstances.
We submit that to the ordinary patients objectively it is quite understandable that the ordinary patient subjectively wants to know about what is the total risk of this operation. Your Honours, we submit the rationale on this aspect is put most clearly of all the statements the appellant has seen by what Lord Caplan said in Moyes v Lothian Health Board in [1990] SLT 444. I will just take you to that, your Honours. The critical passage is at page 447. For reasons I will explain in a moment, this was obiter, but let me look at the passage before first.
In this case, in obiter, Lord Caplan accepted the argument that I am advancing here on behalf of the appellant. This was a lady who underwent an angiogram procedure and she suffered a stroke and she suffered injury because she suffered an embolism, which is a blood clot which has displaced – there is an inherent risk in angiograms that when you put in the catheter you may dislodge clots and they can cause strokes.
Her argument in this case was that she would have refused the procedure, but she also said that the risk of this stroke occurring was greater in her case because she had a hypersensitivity to certain dyes and she had a history of migraines and there was some evidence to suggest that a patient who has a background of hypertension and a background of migraines is at greater risk of stroke than other patients. It was common ground in the facts of this case that Professor Miller had mentioned to her about the risk of stroke, but had not disclosed anything to the effect that the risk of stroke was elevated if you had a background of hypertension and migraines.
The reason it was obiter is that the judge made a finding of fact that the migraines as a question of fact and the – that she did not have this background of hypertension and migraine sufficient to elevate the risk so that is why it became obiter but he dealt with the matter in principle. The argument was that although she had been told about the risk of stroke she had not been told about the elevated risk of stroke. Lord Caplan said in principle he agreed with that argument although factually it did not arise here. This is the passage I now want to take your Honours to at the bottom of page 447, left‑hand column in the last paragraph:
On this point I think the pursuer’s counsel is correct. Were it the position that the pursuer had established a preceding hypersensitivity to contrast media, that it would have been proper medical practice to have warned her of the added risk of operation, and that such warning would have deterred her from proceeding with the operation, then I think she would have succeeded with her action notwithstanding that the added risk possibility did not happen.
So even though the added ‑ ‑ ‑
FRENCH CJ: This is a case about factors which enhance the risk of a particular harm, the one that you are taking us to. The case before us is about disparate harms, is it not? How does one apply to the other?
MR BATES: Well, your Honour, we say it is not disparate harms because we say it is, as I have explained, part of the same operation that one cannot ‑ ‑ ‑
FRENCH CJ: You say you cannot carve up the harm, you have to ‑ ‑ ‑
MR BATES: Yes, your Honour, we say you cannot carve up the harm.
FRENCH CJ: Yes, but it is logically a different problem from that which faces the lady in that case.
MR BATES: Well, it is but in his obiter he deals with the case that we are faced with here, your Honours – in his obiter in the right‑hand column, starting at page 447:
The ordinary person who has to consider whether or not to have an operation is not interested in the exact pathological genesis of the various complications which can occur ‑ ‑ ‑
CRENNAN J: I think that is right, it is a “various complications” case.
MR BATES: In my respectful submission, so is this one. We would say there is no difference. That is exactly what we say this is, a “various complications” case, your Honour. There is a complication of neurapraxia, there is a complication of other things. We say this is exactly what it is. We say there is no difference.
CRENNAN J: What does his Lordship mean when at the bottom of that paragraph at about point 8 of the page he says:
If he had been given due warning he would have not risked suffering adverse complication from that particular operation and the fact that such complication occurred is causal connection enough to found a claim against the doctor -
which is easy enough to understand, I think, because his Honour, I think – tell me if I am wrong – was speaking about an adverse complication about which no warning has been given which comes home.
MR BATES: No, your Honour, with respect, he was talking about the risk that did come home, the stroke, that would not have come home if she had been told about the other things and she would have refused it. It is exactly this case, your Honour, with respect. Perhaps if I could just read some other passages, your Honour, in which I think that becomes clear. If I go to about between G and H in that column:
If we were to suppose a situation where an operation would give rise to a 1 per cent risk of serious complication in the ordinary case –
Hypothetically that could be neurapraxia, just to make the analogy. Let us assume it is just 1 per cent –
but where there could be four [or five] other special factors each adding a further 1 per cent ‑ ‑ ‑
FRENCH CJ: That is to the risk of that harm.
MR BATES: Yes, your Honour, that is true. That is correct, your Honour, but he goes on to say:
a patient to whom all five factors applied might have a 5 per cent risk rather than the 1 per cent risk of the average person. It is perfectly conceivable that a patient might be prepared to accept the risk of one in 100 but not be prepared to face up to a risk of one in 20.
FRENCH CJ: So we are still talking about one harm, and just different levels of risk?
MR BATES: That is true, your Honour. I accept it can be read that way, but in my respectful ‑ ‑ ‑
FRENCH CJ: Well, it has to be, does it not?
MR BATES: I would say it does not have to be read that way, your Honour. I do not think it is intended that way. I accept that it can be read that way, your Honour, but I submit that the rationale goes further than that, starting at paragraph I:
I do not think the doctor should escape the consequences of not having warned the patient of the added risks which that patient was exposed to.
In my respectful submission, your Honour the Chief Justice, the distinction you are drawing to me does not actually alter in any way the principle his Honour is stating here. If I just continue on ‑ ‑ ‑
GAGELER J: What is the principle that he is stating?
MR BATES: The principle is that the total risk facing the patient may be causative of a decision to undergo a procedure, and that even if the risk that came home in isolation would not have dissuaded the patient that is not the relevant counterfactual. The relevant counterfactual is whether the patient, if they had been informed of the relevant material risks, would have refused the procedure even if another risk in this overall package comes home, because we say it is part of the indivisible package of risks.
GAGELER J: I am just trying to relate this to section 5D. If you assume that quite independently of taking us to some Scottish dicta you have got through 5D(1)(a), what you need to address is the scope of liability legal policy question raised by 5D(1)(b). Now, does this dicta assist in that and, if so, what is the principle that you are trying to draw from it?
MR BATES: The principle is that to the scope of liability it would be appropriate to use the language of 5D(1)(b) to impose liability in the doctor because the harm that has befallen the patient is a risk that has been a breach of the doctor’s duty. The duty is called into existence to give the patient the option of avoiding exposure to the risks for this procedure, and that has been breached. This particular complication, in our case, the neurapraxia, is within the scope of that duty. It is not like the…..falling or the doctor slipping on the floor. That would be outside the scope. That is the principle we say applies, and we say that is the principle that comes under restatement of torts.
KIEFEL J: Scope of liability in section 5D goes beyond questions of breach of duty, does it not? That is made plain by subsection (4). You can have a breach of duty, but nevertheless you have to consider whether or not and why the person should be held liable.
MR BATES: Yes, your Honour, and we say the reason for that is really that otherwise you are going to drain the prospective duty of content. This comes back to the point really in various – in Mulligan’s Case there seems to have been a prospective duty and – we say, prospectively, the doctor must be held to account for a failure to allow the patient to make an informed decision.
KIEFEL J: No, but it is coming back to what we were discussing before. Even if you say that the duty here was one to warn of multiple risks, even assuming a breach in that regard, the question under 5D(1)(b) and (4) is why, even given that breach the doctor should be held liable when the only harm that resulted was a harm in respect of which – it was a harm that the person was prepared to take.
Now, that is quite a separate question from saying if I had been told about multiple risks I would not have undertaken the operation at all. This is a value judgment, a policy question about whether or not the doctor should be held liable for everything which results from a failure to refer to a number of risks when the one that would not have made the difference is the one that the plaintiff is really seeking to rely upon.
MR BATES: But, your Honour, with respect, to say it would make a difference is really a value judgment in hindsight. The duty is meant to protect the ‑ ‑ ‑
KIEFEL J: That is usually what value judgments are in relation to where injury has occurred.
MR BATES: Yes, your Honour.
KIEFEL J: But what I am trying to say to you is you have to get beyond your notion of breach of duty to determine the policy and value judgments involved in the scope of liability question.
MR BATES: Yes, your Honour, I accept that. We say that unless one – there may be cases where the failure to disclose a risk is quite trivial. The risk that was not disclosed here was very major. It was a 5 per cent risk of major catastrophe. This patient was – one goes back to why did this patient have the operation. This patient was overweight and ‑ ‑ ‑
KIEFEL J: Yes, I appreciate that but what you are really saying is what was not warned about was important because the patient may not have entered upon the operation. That is relevant clearly to factual causation, but is it relevant to the scope of liability question, the responsibility for harm? You have already determined that question. This is a separate question which asks a more nuanced question perhaps about the particular harm. You are able in this area to tease out the particular harm that is suffered, the particular risk that was not warned about and then assess which ones were really legally causative of harm rather than factually causative of harm, if I can put it that way.
MR BATES: Your Honour, in my respectful submission it is appropriate in a situation like this because one has to have regard, I would submit respectfully, to why the patient was having this operation in the first place, in terms of the more nuanced aspect. In my respectful submission, one has to have regard to why was this patient having this operation in the first place.
Dr Kam conceded in cross‑examination that there was no urgency with this procedure. He said in cross‑examination that if the patient had not had the operation he would have just basically been the same. There was nothing that really - it was effectively a semi‑lifestyle choice. There were other methods that could have been – if the patient was made aware of the significant risks, there were other options available to him to try and ‑ ‑ ‑
KIEFEL J: I am sorry, I just do not understand how this is relevant to the scope of liability question.
MR BATES: Well, in my respectful submission it is because one has to have regard to – if I could take your Honours back in this context to 5B, we say that that may feed into this. We say this feeds into the nuanced consideration your Honour is raising. Looking at the factors in 5B(2) the harm - for example, at 5B(2)(c) there was no burden on the doctor here of – this is a policy reason. The burden on the doctor of ‑ ‑ ‑
KIEFEL J: That goes to the question of determining whether there is negligence. Causation under section 5D proceeds after you determine whether there is that negligence. You have already answered the questions in 5B when you come to 5D.
MR BATES: Yes, your Honour. Well, your Honour, we respect that otherwise – I suppose one of the main reasons we say is that it is allowing a rather arbitrary determination with hindsight to determine this issue. It is a bit like one waits to see what happens and then say, well, with hindsight should we excuse the doctor because ‑ ‑ ‑
KEANE J: But the question is not whether the doctor should be excused. The question is whether your client should be compensated.
MR BATES: I accept that, your Honour, and we say he should be compensated because it really comes back to otherwise one drains the duty of content. We say the scope of the liability in terms of 5D(1)(b) should reinforce the scope of the duty in the first place and ‑ ‑ ‑
KIEFEL J: Your case is, in essence, that once you have a duty of the type here in question and it is breached and there is harm it does not really matter – you do not proceed to separate out what kind of harm and particular risks within the collocation of risks that were to be talked about. Once you have the composite duty, as you see it, and it is breached, and a harm, that is it. That is really your case, is it not?
MR BATES: No, your Honour, we would accept that if, for example, the non‑disclosure was a rather minor matter in the overall things that would be a reason not to impose liability. What was not disclosed here was a very major risk. We say that one would have to have regard here to make some value judgment really about the severity of the failure to disclose, if I can put it that way. We say that what would enliven 5D(1)(b) here is that what was not disclosed is a very severe non‑disclosure, a very major non‑disclosure, and that would be a reason to impose liability here, whereas in other cases where the non‑disclosure might be rather trivial or minor, it may not be appropriate.
MR HIGGS: I know that what I am putting is different to the bright white line that President Allsop – but because I can deal with it relatively quickly, I hope, and if I can go about it this way? Justice McHugh in Chappel v Hart in paragraph 34 sets out – I can take your Honours to that, if your Honours have it. If your Honours go to page 247 of 195 CLR 232 and at about point 6 on the page there is scenario (4), he gives a general observation about how factual causation should be determined and he focuses on:
no causal connection will exist where the plaintiff suffered injury at some other place or some other time unless the change of place or time increased the risk of injury –
Now, I know analogies are bad, but ‑ Justice McHugh was in the minority, but this general approach is one that has been often adopted despite the fact that on the facts of the case his Honour, with Justice Hayne, was in dissent.
Here, you take this scenario, that if – and clearly in this case even if there was no warning of the risk of neurapraxia it was a breach of duty and the cumulative risk case was not run, even though there was a breach, clearly – and it is not in dispute – that this plaintiff would fail. Now, in effect, this is something akin to a different place, a different time, and it ties in with the separate and distinct risk that arises here between neurapraxia and permanent paralysis. In a sense, here what is being said, that there should be a causal connection because of the event of surgery being undertaken that would not have arisen if the appellant had been told of the risk of permanent injury, and that seems to – as their Honours in the Court of Appeal in the majority said – that seems to be counter‑intuitive, it seems to be opportunistic.
I know that is a scope of liability consideration, but the other thing about it is that because it is not an issue that permanent paralysis and neurapraxia are separate and distinct because it flows from that that in relation to this patient’s deliberation, the weighing up of the risks and the benefits of whether or not to go ahead with an operation, any advice about permanent paralysis did not in any way, shape or form, as I have already been over, impact upon his decision about his willingness to take the risk of neurapraxia as being the price that he would pay for having a treatment, about which there is no complaint, that it was a treatment that was reasonably available.
It was a treatment surgery that was likely to succeed. It was treatment surgery that was competently performed and, as with anyone – and this is the focus of, we say, negligence because of the nature of the duty – that if you could look into a crystal ball and if this patient was told look – take away the crystal ball. If you said to the patient, “Look, you might have temporary paralysis, but what you’ve got is the chance of a cure or the chance of a much better outcome, do you want to take that risk?”, they would say yes. In a way sometimes a breach of duty of care in truth can advantage patients. Say, for example, there is a procedure that can give the opportunity of a cure, it is high risk, that is never advised, they would not have gone ahead with the operation had they been advised of the usual risks, but they do and they have the cure.
CRENNAN J: Are you saying that necessary condition carries with it reasoning rather like Justice McHugh’s in Chappel v Hart and that is that you cannot make out the necessary condition - or in his case I think he was speaking of a material contribution – unless the negligence - here the failure to warn about paralysis - increases the risk of the injury that did happen?
MR HIGGS: Yes.
CRENNAN J: That is what you are saying?
MR HIGGS: Yes, and I do not have to advance that argument.
CRENNAN J: But it is explicating necessary condition and how to approach it, so that that is the answer, is it, to Mr Bates’ point, well, if you have got non‑disclosure of this risk, and you must assume despite whatever happened in the evidence that the patient would not have had the surgery, you satisfy the “but for” condition and do not need to ask any other questions?
MR HIGGS: That is right. That is one view. Now, I can understand that there would be a view to the contrary, that it should be a bright white line. At the very least you would think that as a matter of pleading, the plaintiff in these sorts of cases should plead the material facts that they say comprise the necessary conditions that give rise to the harm and they should identify the harm. Now, here they say the harm is the risk of neurapraxia but, as I have said before, when you go through the various permutations that are uncontroversial as to when and when not a plaintiff ought to receive – will receive compensation, it being that it does not matter how many risks there are, if you negligently do not advise a patient of all of those risks and he has a cure, well, he does not get damages for the surgery as one does in trespass.
GAGELER J: I may be wrong, but the harm is not the risk of neurapraxia, but the neurapraxia that eventuated is it not?
MR HIGGS: That is what they are claiming, but I say that ‑ ‑ ‑
CRENNAN J: That is the particular harm we have to think about in this context.
MR HIGGS: Yes, that is the harm that is right. The harm that they are claiming damages for is the neurapraxia and perhaps I am being too clever by interposing the notion that really what they are complaining about is the surgery. We say that the surgery – anyway, you know what I have said about that.
GAGELER J: I think that they say that the negligence is a failure to warn of all material risks.
MR HIGGS: That is right beyond, anything.
GAGELER J: Well, including the neurapraxia.
MR HIGGS: Yes, that is right.
GAGELER J: Or the risk of neurapraxia. Now, if that is the negligence and that is the particular harm, how do you say that there is not the factual causation required by section 5D(1)(a)?
MR HIGGS: Because, we say – well, sorry. If I can retract what your Honour – can I do it in two ways?
GAGELER J: Many times when I have said I wish I had said no in your case.
MR HIGGS: I know. It is an occupational hazard, your Honour. In my submission, in truth the harm that they are really complaining of is the fact, I had surgery, because that really is what all of these other things that did not come home are being set up as being the reasons why he ultimately had neurapraxia. To put it another way, if there was no other breach of duty other than the breach of failing to advise about the risk of neurapraxia then, as we understand the appellant’s case, even they would concede, and we would say, appropriately so, that they are not entitled to damages. My submission is, in truth what they are complaining about is not the fact of neurapraxia directly, per se.
They have to insinuate into the equation the fact that they are at a different place at a different time or doing a different thing, namely surgery, in order to then get to the neurapraxia. They cannot go directly to it, as one would in the normal course of events in a negligent advice case because even on their argument, if there were no other breaches of duty of care that would impact upon the decision of surgery then they would not be entitled to the damages. Now, having said that, that is the best I can do and I understand that what I put may well be open to criticism, I understand the logic of the argument against me in that regard and I do not want to labour it too much.
KEANE J: Mr Higgs, what is the utility of all this emphasis on 5D(1)(a)? I mean, how are you worse off if it is 5D(1)(b) that does the work?
MR HIGGS: It is 5D(1)(b) that does the work and that is what we are pressing and, your Honour, it is a frolic of my own that I should not have embarked upon.
KIEFEL J: Just before you are completely dissuaded about 5D(1)(a), can I just raise this very briefly? If one looks at the connection between negligence and harm, which is its focus - and there may not be much required there but that is what is required - here if the risk that had to be advised against which is connected with harm which is the neurapraxia is the failure to advise about the risk of neurapraxia in relation to catastrophic paralysis - it is a failure to warn about the risk of catastrophic paralysis - in this case is there a difference then between what would be two distinct causes of action and a case where a number of risks might feed into the same damage? Is that a relevant distinction that you are trying to highlight by your reference to damage?
MR HIGGS: Could I answer it in this way. Justice Keane is perfectly correct, I ought not have embarked upon this ‑ ‑ ‑
KIEFEL J: It is a scope of liability case, yes.
MR HIGGS: ‑ ‑ ‑ really and the beginning and the end of it for us is that it is a section 5D(1)(b) case.
KIEFEL J: But we still have to understand 5D(1)(a).
MR HIGGS: I was attempting to do that and I probably have more confused it. It seems to us that even if you satisfy, in effect, the “but for” test, the factual causation test for the reasons advanced by both President Allsop and Justice Basten, from a policy point of view those matters being identified in their Honours’ judgments, you know they can be put by me before the luncheon adjournment, now that is the beginning and the end of it. There can be no rational basis to attribute legal responsibility to this particular respondent for the treatment that was undertaken given that the particular harm was a risk that this patient was prepared to take. That is, in short, our submission.
That would certainly apply – that really the type of damage that is being sought is one, in our law, looking at the underlying policies between trespass and negligence. If they are to succeed in getting damages of this type, then they would need to proceed in trespass rather than negligence. In negligence, it is not available. That would be so at common law and it is particularly so under the Act because of the stark distinction between the way in which the Act consistent with, if even not more regionally, than applied at the common law, the distinction between those two causes of action as dealt with in the Act in the way that I have been over.
Your Honours, I have given your Honours a reference to Environmental Agency v Empress Car Co. It is basically that in relation to the issue of causation, the way in which you approach the question depends on the circumstances and the example was given about a radio clock being stolen out of a car and it was done by a thief and that, in truth, the cause of the loss of the radio clock was because of the thief rather than – but if it happened because some wretched husband in his wife’s car left her radio in the car for three times and it was unlocked, well the wife would perhaps the third time round have a cause of action even though he is not directly responsible for the radio being stolen. The references I have given as 309 to 322 that should be 30.9 to 32.3. I will not take your Honours to it, but it is simply an illustration of the importance of looking at the circumstances of the case from case to case.
GAGELER J: Mr Higgs, did you have anything to say about Ellis v Wallsend District Hospital?
MR HIGGS: The only thing that I want to say about that, your Honour, is that in paragraph 111 of the judgment at pages 998, 999, Justice Beazley I think it ‑ ‑ ‑
FRENCH CJ: Page 598, is it?
MR HIGGS: At page 998, I am sorry, your Honour, paragraph 111 of the judgment. In our submission, that is a further reason why your Honour would not follow that.
GAGELER J: So you say it is wrong?
MR HIGGS: We say it is wrong, yes. Now, your Honour, as a final matter – we have attempted to distinguish the other matters and it has been largely dealt with already in the written submissions. A basic flaw, with the greatest respect to my learned friend’s argument, in our submission, is that it confuses duty, a prospective test, with causation, a retrospective test. In truth, what is being asserted is that the elephant in the room, the fact that this man suffered – paid the price of a risk that he was prepared to take, on a retrospective test we know that that in fact is what occurred and in those circumstances, for reasons better articulated by President Allsop and Justice Basten in the judgment in our submission it would mean, for the policy reasons, that the claim here should fail and that the appeal should be dismissed.
FRENCH CJ: Thank you. Yes, Mr Bates.
MR BATES: Your Honour, a few matters. First of all, I need to correct something that I said was incorrect in answer to, I think, Justice Keane. I was asked a question about – I think Justice Harrison said, in effect, that ultimately after six or seven months he was not worse off. I wrongly told your Honour that it was dealt with in the judgments. It was actually dealt with in the argument. I accept that the judgments – it did not deal – there was no notice of contention on this point.
The correct position, as my friend has said, is that although ultimately he was on Justice Harrison’s view not worse off, Justice Harrison did accept in the passages my friend took you to at 931 to 932 of the second volume that Justice Harrison was persuaded, however, there was an injury that was not de minimis which in some ways is a relevant finding because Justice Harrison did find that the actual neurapraxia for six or seven months, together with the second operation, was an injury that was not de minimis. I just want to correct that.
The second matter which I wish to just tidy up by way of housekeeping, I had circulated a mention in our submissions about some pages of the transcript, which I think were provided, but I spoke to Mr Higgs about before we commenced and Mr Higgs said he no longer took the point against us that we had not dealt with the cumulative risk argument. So I do not need to rely on those pages of the transcript that I circulated, because that has gone away when I spoke to Mr Higgs that is our second point.
The third point, again by way of housekeeping, is that we also circulated this morning some marked up witness statements because the witness statements in the appeal book did not have the rulings of evidence. That does not change much, but there are some marked up statements that we provided to the crier this morning, which do not change our argument, but are the correct marked up rulings we seek to have the Court take note of. Responding just to some other points that my friend raised, we dispute that we are seeking on behalf of the appellant to bring a trespass claim. That is not the case at all. As I have already said, the interests are different. I just wanted to make that point.
Secondly, we dispute on behalf of the appellant that this claim is opportunistic. This comes back very much to that argument I have already advanced, which I will not elaborate on, about what we call the false counterfactual. We say that it is not opportunistic because there was never an opportunity for this appellant ever to choose this risk in isolation. On that point, I just wish ‑ ‑ ‑
KEANE J: Except, though, the finding is – and it is not challenged – that if told about the risk of neurapraxia, your client would have gone ahead with the operation. The other risks did not come home, so the situation is that your client has had surgery that has been to his benefit in the sense that he has been relieved of a condition that was so painful to him that he would have accepted the risk of the neurapraxia, and now he seeks damages for the coming home of a risk that he would have accepted because he says he was not told about risks that did not come home. In other words, having not been given advice that, if acted upon, would have led him not to have beneficial surgery, he wants damages for the coming home of the risk he would have accepted. There is something a bit unattractive about that.
MR BATES: Your Honour, I think with great respect, there is some misunderstanding. It is not the case that he was improved with his pain. Your Honour, there appears to be a misunderstanding. Not only did he get neurapraxia, but his condition did not improve, his pre‑existing condition did not improve. Your Honour is putting to me a scenario which it seems to be suggesting that he was cured of one problem and got another. That is not the case at all, with great respect, your Honour. He never improved at all from the pre‑existing condition.
KEANE J: Okay.
MR HIGGS: No worse off, at least.
KEANE J: Yes, he is no worse off.
MR HIGGS: We have already been through that.
MR BATES: We have been through that. But, could I just take your Honours on this aspect to some parts of what Justice Allsop said at page 969 of volume 2 where at paragraph 17, line 50 his Honour did approach the matter on the basis that:
What was not acceptable was the combination of all the risks such that the procedure became unacceptable.
That is how he put the case. At page 972 at paragraph 21, there appears to be a contradiction in what the President said, because on the one hand in the first sentence he says:
There was no suggestion that the neurapraxia was medically related to the risk of catastrophic paralysis.
But, then he goes on to say that –
On the material, they can be taken to be distinct risks, albeit part of the various matters that should have been disclosed to Mr Wallace in one body of disclosure.
So the President accepted that they should have all been disclosed as part of an adequate warning and we say therefore it is inconsistent and we say it was related for the reasons I have already explained to do with indivisibility, which I will not go over again.
KEANE J: But the President accepted that you were within 5D(1)(a) and what he says there is perfectly consistent with that conclusion.
MR BATES: Yes, your Honour.
KEANE J: The issue is all about 5D(1)(b) so far as the President’s judgment is concerned.
MR BATES: Yes, your Honour. They are our submissions, your Honours.
FRENCH CJ: Thank you, Mr Bates. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.
AT 3.03 PM THE MATTER WAS ADJOURNED
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