Wallace v Kam

[2012] HCATrans 251

[2012] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S122 of 2012

B e t w e e n -

IAN WALLACE

Applicant

and

DR ANDREW KAM

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2012, AT 9.34 AM

Copyright in the High Court of Australia

MR P.W. BATES:   Your Honours, I appear with my friend, MS P.G. WHITE.  (instructed by Gerard Malouf & Partners)

MR D.J. HIGGS, SC:   I appear with MS E.M. PEDEN for the respondent, your Honours.  (instructed by TressCox Lawyers)

GUMMOW J:   Yes, Mr Bates.

MR BATES: Your Honours, this application raises novel issues of causation under section 5D of the Civil Liability Act 2002 (NSW). Those issues arose in the context of a doctor’s duty to warn a patient about risks that are ‑ ‑ ‑

GUMMOW J:   You need an extension of time, do you?

MR BATES:   By one day, your Honour, yes.

GUMMOW J:   Is that opposed?

MR HIGGS:   No.

GUMMOW J:   Very well, you have that extension.

MR BATES:   Thank you.  The issues arise in the context of a surgeon’s duty to provide information and advice to a patient about proposed surgery and the risks in it.  The New South Wales provisions are conveniently set out in the application book at pages 6 to 9 of the trial judge.  The legislation in the other States and in the ACT is relevantly the same and comprises tabs 1 to 6 of the applicant’s authorities, but if I could take you to the application book initially.

The provisions at page 7 deal with the distinction between factual causation, which is section 5D(1)(a), and scope of liability, 5D(1)(b). The issues in this application arise both under factual causation, scope of liability, but in also the alternative the applicant seeks to invoke the exceptional case provisions of section 5D(2).

The context of this matter is that there have been three previous cases in this Court dealing with the nature of a doctor’s duty to inform a patient, starting of course with the well‑known and famous case of Rogers v Whitaker back in 1992, and since then there have been subsequent cases of Chappel v Hart in 1998 and Rosenberg v Percival in 2001.  In all three cases, the common feature in those cases which differs from this case is that the risk that was not disclosed was the risk that in fact came home.  In Rogers v Whitaker, the well‑known case of the lady who had ‑ ‑ ‑

GUMMOW J:   We know those cases off by heart almost.

MR BATES:   Yes, thank you, your Honour.

GUMMOW J:   Paragraph 96 on page 55, can you just look at that for a minute?

MR BATES:   Yes, your Honour.

GUMMOW J:  

The only potentially relevant failure to warn in this case was the failure to warn of bilateral femoral neurapraxia, or what is more likely to have been described as local nerve damage.

You quarrel with that, do you?

MR BATES:   Yes, your Honour.  We accept that that was a risk that came home, but what we say in this case in substance is that there were other risks and particularly there was a five per cent risk of catastrophic paralysis which the patient was not told about.  It is common ground that that risk did not come home, but in this particular case what the trial judge found was that if the patient had only been told about the risks that came home, which is the local nerve damage, the trial judge found he would have gone ahead with the operation, the back surgery on the disc of his lower spine.

The nub of the case below was that that was a retrospective outcome of the surgery, and in point of the doctor’s duty to inform a patient which arises at the prospective stage is to protect the patient’s interest in decision making, of course at that stage the patient has to prospectively decide whether or not to go ahead with the surgery.  Of course, if the surgery is uneventful, none of the risks at all come home. 

In this case, the essence of the application was that when the patient was at that decision‑making stage, he was not told about the risk of the local nerve damage and that was accepted by the trial judge.  He also says “I was not told about the five per cent risk of paralysis”, a catastrophic risk that would have rendered him paraplegic, and he was not told about certain cumulative risks, and what the patient says is, “If I had known at that stage what I am having to decide, whether or not I should have this operation, the severity of the operation I was facing – given that it was an elective procedure that I would have not had at that time”.

The background to that statement was this.  The patient had degeneration of his lower lumbar spine, L4/L5, and at the top of his sacral spine, L5/S1, which was causing him pain.  He was greatly overweight, and the surgeon said “If you lose weight, your pain may improve or go away”.  So he did try and lose weight, but unfortunately he had some scales from Woolworths or Coles that did not work very well, and he thought he was losing weight, but really he was gaining weight, your Honours, and his pain got worse. 

So he goes back to the doctor and says “I have tried to lose weight” and he put on weight and in that context there was a discussion and he was not told about these risks.  What we say is if the patient had been aware not only of the risks that eventually came home, but the severity of this operation, given that he could have tried to lose weight with better scales, that he would not have gone ahead.

HAYNE J:   Did the primary judge make a finding of fact of the issue presented by section 5D(3)?

MR BATES:   No.  He was asked to make a finding on the question of what I will call this five per cent risk and he declined to do so on the basis that he said it was not relevant because he applied the well‑known statement of your Honour Justice Gummow to the effect that the only risk that was relevant was the risk that came home.  Our argument at first instance, which was also repeated unsuccessfully in the appeal with her Honour Justice Beazley dissenting, was that he should have made a finding about the five per cent risk, and it was relevant because it would have influenced his decision at the decision‑making stage prospectively not to go ahead.

HAYNE J:   Well, is the question presented by 5D(1), in the light of 5D(3), a question that turns upon first identifying what a careful doctor would have warned the patient about?

MR BATES:   Not necessarily, your Honour.

HAYNE J:   If you reject that proposition, I do not know what your special leave point is.

MR BATES:   Your Honour, we say it is relevant to the scope of the doctor’s duty to disclose to the patient.  Yes, we say that the doctor should have told the patient as part of his duty of care, and in that sense it was relevant because we say it was a material contributing factor to the patient’s decision in the sense that that was used recently by this Court in Strong v Woolworths earlier this year.  So it was relevant, yes, your Honour, to both the scope of the duty and it was relevant to the question of causation, so I retract my previous statement, your Honour.  It was relevant.

That was how the case was in fact conducted and, indeed, the trial judge was asked to make that finding.  The reason he did not make the finding was he said it was not relevant.  When it came to the Court of Appeal, the judges divided there.  Justice Basten in substance agreed with the trial judge’s approach, and approached it in the same way.  Justice Basten said it was not relevant. 

President Allsop said it was relevant to the inquiry under 5D(1)(a), so on President Allsop’s approach, it was relevant at that stage but he then found against the applicant under 5D(1)(b).  He said although it was relevant and it was factually relevant, he found as a matter of policy in terms of scope and liability that it would be unreasonable as a matter of policy to hold the doctor liable for a risk that did not in fact come home, even though it had been relevant to the factual causation stage.  But he did not go on to consider what the patient asked him to consider as well, which was whether or not nonetheless it should fall within the exceptional case exceptions of 5D(2).

The dissenting judge, her Honour Justice Beazley, agreed it was relevant in terms of 5D(1)(a) and 5D(3), agreed it was relevant to the scope of liability, which she found in favour of the applicant in her dissenting judgment, under 5D(1)(b), and because she found that 5D(1)(b) applied, she did not need to consider the exceptional case provisions because she was satisfied that even without an exceptional case it was relevant. 

What Justice Beazley said, in effect, was that at the decision‑making stage, a risk can be relevant to the decision to undergo surgery, even if that risk subsequently and with hindsight does not come home.  The way it was put in the written submissions was that otherwise one is allowing the issue of causation to drain the prospective duty of content because the underlying argument is that the main purpose of the duty to inform in the Rogers v Whitaker sense, the common law duty which is preserved by the Civil Liability Act is to preserve prospectively the patient’s interest in decision making and that as part of that interest in decision making, one needs to have information.

HAYNE J:   Can I understand that?  Do I understand your submission to amount to that the question of factual causation presented by 5D(1)(a) is to be judged according to what would have happened if the patient had been told of all of the risks?

MR BATES:   Yes, your Honour.

HAYNE J:   It would then be a necessary part of your case – there are two steps.  First, is that the question was considered at trial or on appeal in the Court of Appeal?

MR BATES:   It was considered both in the trial and in the appeal.

HAYNE J:   And rejected?

MR BATES:   It was rejected in the trial and it was rejected in the appeal by the effect of the majority decision.

HAYNE J:   On the footing that that was not the relevant question, is that right?

MR BATES:   No, there was no common ground between the two majority judges in this point.  In the Court of Appeal, the dissenting judge, her Honour Justice Beazley, agreed it was relevant.  One of the judges in the majority, President Allsop, also agreed it was relevant, and it was only Justice Basten in the Court of Appeal who said it was not relevant.  The President and Justice Basten took a different approach to it and Justice Basten’s approach really mirrored the trial judge’s approach, so Justice Basten found against the applicant on the 5D(1)(a) point.  He said it was not relevant.

President Allsop disagreed with both the trial judge and disagreed with Justice Basten on that aspect.  President Allsop, in fact, agreed with the dissenting judge, her Honour Justice Beazley, that it was relevant at the 5D(1)(a) stage.  So both President Allsop and Justice Beazley agreed on that point.  Where they departed was on the 5D(1)(b) stage.  That is where they departed from each other.  It was common ground to them that 5D(1)(a) applied.  They disagreed on 5D(1)(b). 

The dissenting judge was with us on that.  President Allsop was against us on that but did not go on to consider, as we asked him to consider, whether notwithstanding that 5D(2) applied being an exceptional case that the basis of the exception being that one must not drain the prospective duty of care of content by allowing causation questions to overpower the importance of the patient’s right to decide.

The rationale for the applicant’s position is well set out in one of the cases that her Honour Justice Beazley referred to in her dissenting judgment, and which is included in the applicant’s ‑ ‑ ‑

GUMMOW J:   Just before we get to that, I am not sure that the draft grounds of appeal, which are rather lengthy, adequately reflect what has come from the exchange between you and the Bench this morning.  It may be in there, but there is a lot of other stuff in there as well.

MR BATES:   Could your Honour turn to page 138 of the application book?

GUMMOW J:   Yes, (a1), (a2), (b1), (b2) are one thing, but then the rest of it gets into more general propositions until we come to (e), I think, and (f1) and (f2).  Anyhow, all I am pointing out to you is if you succeeded in getting a grant of leave, I think you would have to amend the notice of appeal to clarify what is actually to be in play.

MR BATES:   Yes, your Honour.  Your Honour, one of the things that is being also drawn, perhaps imperfectly in these grounds of appeal, is the distinction between what I will call separate risk, for example, the risk of catastrophic damage to the spine, and the notion of accumulative risks.  One of the issues which we ran unsuccessfully again before the trial judge and before the majority in the Court of Appeal was that one has to also look at the fact that when a patient undergoes an operation, you accept the whole operation.  You cannot choose half the operation or half the risk.  You either go ahead with the operation or you do not, as differs from exploratory surgery, for example, where the doctors may need to go in to explore what is there and then they have to make a decision or choice about whether to extend the operation depending what they find, or terminate the operation and get further instructions, for example.

This back surgery, once the operation started, there was no way that you could somehow opt into some risks and opt out for other risks.  You either took the operation or you did not, you took the whole caboodle.  What we say therefore is that that is one of the reasons why at the decision‑making stage, the patient needs to know everything including those risks that may not come home. 

This was, I think, well expressed in one of the judgments that Justice Beazley refers to in part, but which is set out fully in the applicant’s supplementary authorities volume.  If I could take your Honours to tab 8, the case of Moyes v Lothian Health Board.

GUMMOW J:   What do we get out of what is going on in Scotland?

MR BATES:   The rationale for the applicant’s position here is very well expressed.  The rationale for this position, which we are advocating to this Court to adopt in Australia, was extremely well expressed in the judgment of Lord Caplan.

GUMMOW J:   Which particular passage?

MR BATES:   Page 447, your Honour, left‑hand column.  In this particular case what had occurred, just by way of very brief context, was that she had an angiogram because she had suffered a stroke, and her case was that not only was she not told about the risks of a stroke – that was partly what she said – but she was not told about the various other risks as well, and the question was whether those other risks were relevant, even though they did not come home.  Lord Caplan agrees they were relevant – this is at the bottom paragraph in the left‑hand column at page 447:

I think the pursuer’s counsel is correct . . . I think she would have succeeded with her action notwithstanding that the added risk possibility did not happen.  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 but rather in the nature and extent of the risk.

Then down at about paragraph H, right‑hand column –

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 . . . A patient might well with perfect reason consider that if there were five risk factors rather than one then the chance of one or other of these factors materialising was much greater.  The coincidence that the damage which occurred was due to the particular factor in respect of which a warning was given does not alter the fact that the patient was not properly warned of the total risks inherent in the operation and thus could not make an informed decision as to whether or not to go through with it.  In the example I give, by going through an operation with five risk factors rather than one the patient was exposed to a degree of risk materially in excess of what the patient had been warned about and was prepared to accept.  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.

That, with great respect, summarises, we would submit, the underlying rationale of the position that we are trying to advance here. Although that arose in Scotland under the old common law, we say that it is something that can be accommodated and should be accommodated within the structure of section 5D.

If it does not fit into the conventional 5D(1)(a) – (b), then it should be recognised under the exceptional case provisions of 5D(2) because otherwise, hypothetically, on the approach that now prevails if this judgment stands, if a doctor does not tell the patient anything at all by way of assumption – if the patient is not told anything except “I recommend an operation”, and then something goes wrong, one would always ask

afterwards “If you had known of that particular risk, would you have gone ahead?”  The answer may always be “no”, even though in fact the patient may well have refused the operation if they had been aware of the total situation.

The applicant’s position essentially is that due to the very special position of giving a patient advice prospectively before treatment that a risk that may not ultimately come home can still nonetheless be a material contributing factor in the sense recognised by this Court earlier this year in Woolworths v Strong.  That is the substance of the application, your Honour.

GUMMOW J:   Yes, Mr Higgs.

MR HIGGS:   Your Honours, can I take your Honours to page 81 of the application book.  That, in our respectful submission, summarised four factual issues that were not controversial either at first instance or on appeal - starting at line 20.  First, it was uncontroversial that the only risk that came home was the risk of temporary paralysis of neurapraxia, and it was also uncontroversial that that was a risk that was acceptable to the patient as being the price that he had paid for the 70 to 75 per cent chance of a better outcome or cure. 

Thirdly, there is no issue that the risk of neurapraxia, local nerve damage, was separate and distinct from the risk of permanent paralysis, and that is well explained in the judgment of Justice Basten that I will take your Honours to in a moment.  It came about for different reasons.  The risk of permanent paralysis being a risk that did not come home came about because of the process of the surgeon operating in close proximity to the spinal cord. 

The risk of neurapraxia came about because the patient had to lie prone on the operating table for six hours and it was because of the pressure on his thighs and the nerves that brought about the risk of temporary paralysis.  So there is no issue that the risk of temporary paralysis was separate and distinct from the risk of permanent paralysis.

The fourth matter in paragraph 22 of the judgment of the President Justice Allsop in the Court of Appeal was that because there had not been a determination of the scope of liability aspect of causation as provided for in section 5D(1)(b) of the Civil Liability Act, that referable to the way in which the trial was run the court assumed the worst against the respondent, the best in favour of the applicant, namely, that had the risk of permanent paralysis been explained the applicant would not have gone ahead with the operation.

But that is quite a different matter to proposition two that I put, namely, it does not impact upon the fact that despite the fact that he would not have gone ahead with the operation, it still does not detract from the fact that the risk of temporary paralysis was one that the patient was willing to take. 

We say, ultimately, that it has to be uncontroversial really that in the event of the risk being one that the patient was willing to take, and that was not a risk that came home, it is an irrelevant consideration under the scope of liability section or provisions of section 5D(1)(b) that causation is one that should be established in a way that holds the doctor responsible for the harm that ultimately befell the patient, that is, the temporary paralysis of about six months which he recovered from and being one that he was prepared to accept.

GUMMOW J:   Where do we find in any of the Court of Appeal judgments what you have just said to us?

MR HIGGS:   Well, from lines 20 to 35, they are the four propositions first, at line 20 ‑ ‑ ‑

GUMMOW J:   Sorry, which page?

MR HIGGS:   On page 81 of the application book.  There is a reference to his Honour’s findings and:

the risk of neurapraxia was acceptable to Mr Wallace.  That risk came home.

There was no suggestion that the neurapraxia was medically related to the risk of catastrophic paralysis.  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.

I will assume of the purpose ‑ ‑ ‑

GUMMOW J:   Well, the difficulty seems to be this word “appropriate” in 5D(1)(b).

MR HIGGS:   Yes.

GUMMOW J:   What does it mean?

MR HIGGS:   Well, your Honour, we say that what it means is what your Honour said in Rosenberg v Percival.

GUMMOW J:   …..talking about 5D(1)…..in another State.

MR HIGGS:   Sorry, your Honour?

GUMMOW J:   It was in another State.

MR HIGGS:   It was in another State, your Honour.

GUMMOW J:   ….before this legislation was visited upon the people.  Now, what does this word “appropriate” mean?  What content is to be given to it?  I see what President Allsop said about it. 

MR HIGGS:   Yes.  Your Honour, there are three legal propositions that underpin the majority decision of the Court of Appeal that, again, to answer what your Honour has just posed, what does it mean, in our respectful submission, makes the answer in this case fairly clear.  First, damages is clearly the gist of the action.  This was a case in respect of which only negligence was pleaded.  It was entirely based on tort.  So, unlike contract or unlike other cases damages is the gist of the action. 

Secondly, consistent with that, as is referred to in the judgments, and I can take your Honours to it, clearly, because of Rogers v Whitaker, the underpinning policy to the remedy that is provided in tort as opposed to trespass, say, is to hold the doctor responsible for damage or harm that is caused to the patient, rather than to protect the integrity of the patient’s decision.

GUMMOW J:   Now, am I right in thinking that this term “negligence” in this legislation extends beyond tort in the contract?  Is this a section that is purely tort linked?

MR HIGGS:   Your Honour, I think that the ‑ ‑ ‑

GUMMOW J:   There are some general words, are there not?

MR HIGGS:  There are general words and there are other parts of the Act that do refer to personal injuries, but it seems to us, with respect, that in relation to this section it is confined to tort. Under Part 1A of the Civil Liability Act specifically refers to the part relating to negligence and negligence alone.

GUMMOW J:   You mean tort?

MR HIGGS:   Tort, yes.  So if you accept, which was the reasoning underpinning the majority view, damages to the action, the underlying policy here was to protect the patient from damage, as opposed to protect the integrity of the decision as would be the case in trespass, and that was not pleaded here.  So, for example, in trespass where damages are not the gist of the action a patient in this situation could obtain damages, in the event of the operation being successful.  But because the integrity of the decision that was the patient and the patient’s alone if, in fact, there was a trespass then damages can be awarded. 

Thirdly, what seems to us, with respect to my learned friend, is that quite often in the argument a reference is made to there being a single comprehensive duty, picking up the words of Rogers v Whitaker. Undoubtedly there is a single comprehensive duty, but the question of causation, which is what section 5D is directed to, in our respectful submission, is a separate and distinct determination to be made, because it is a different test.

Causation is to be adjudged by reference to that which happened retrospectively, rather than prospectively, which is the situation that applies when one comes to look at the content of the duty of care or the single comprehensive duty that we do not, for the purposes of this argument, dispute.

Likewise, when one comes to look at the content of duty that is to be adjudged by reference to objective standards, rather than subjectively what this patient would have done in respect of the risk, we would say, when one comes to look at section 5D(1)(b), the scope of liability, as opposed to the more general question that is posited by the applicant, it would appear, in order to succeed on the operation that one looks at whether or not they would have gone ahead with the operation, even though the risk that came home ultimately was one that they would accept.

When one looks at this outcome one can well understand the conclusions of this claim appearing to be opportunistic or unjust.  When one realises or appreciates that the breach of duty that needs to be relied upon in order for the applicant to succeed is that he was not warned of the risk of permanent paralysis, being a risk that did not come home, he had the benefit of the operation that basically he wanted to have the benefit of for the 70 to 75 per cent chance of a better outcome or cure. 

In the event of a causation being established here it would mean that a patient would be awarded damages for injury, the risk of which he was prepared to take based on a failure on the part of the medical practitioner to warn him of a risk that did not come home, and hence the disconnect between the breach of duty that is relied upon and the damage, the injury for which damages are claimed. That, in our respectful submission, does appear within the scope of section 5D(1)(b) to be unjust or opportunistic.

The learned President in the judgment did refer to – unlike Justice Basten – the possibility that in the event of the risk of permanent paralysis being in some way relevant to the patient’s decision to accept the risk – which is not challenged – of temporary paralysis then in those circumstances it may well be that the matter would need to be revisited and the matter would need to go back for a further hearing but ‑ ‑ ‑

HAYNE J:   Where do we find that in the President’s reasons?

MR HIGGS:   Your Honour, that is referred to, if I could take your Honour, I think to page 78.  At the bottom of the page about line 49:

An example of the further disclosure bearing on the acceptability of a risk might be as follows.  If the occurrence of neurapraxia was disclosed that risk may have been acceptable in itself with its usual consequences; but if neurapraxia could, in some cases, trigger other catastrophic neurological consequences it would be impossible to say that the risk of neurapraxia had been accepted, even though only the “usual” consequences and discomfortures of it had manifested themselves.  But, if neurapraxia was an acceptable risk or hazard, but other risks quite unrelated to it were not –

then the opposite result ‑ ‑ ‑

GUMMOW J:   What is the force of this word “catastrophic”?

MR HIGGS:  The force of catastrophic there is the five per cent risk of permanent paralysis and in the event of that impacting upon the patient’s decision that he was prepared to take the risk of temporary paralysis then the learned President was saying, well it might be a different matter. There are things that – so what, in our submission, the majority is honing in on is that one has to look at, in respect of the scope of liability aspect of section 5D(1)(b) is that you hone in on was the patient willing to take the risk of the injury that came home.

In the event of there being related matters that could impact upon that decision then it might be relevant, but the unchallenged finding here is that this was a separate and distinct risk that did not – the risk of permanent paralysis – did not impact upon the patient’s acceptance of the risk of temporary paralysis.

HAYNE J:   In statutory terms I understand you to say that the 5D(1)(b) question that it is appropriate for the scope to extend, but the force to be given to the term “appropriate” depends in this case upon whether the patient accepted the risk of the injury that came home.  Is that right?

MR HIGGS:   Yes. 

HAYNE J:   Notions of acceptance of risk in this field of discourse are not easy, are they?

MR HIGGS:  I am not suggesting for one moment that, as has been well pulled together by her Honour Justice Beazley, there are conflicting views. But our submission here that once one accepts that here damages is the gist of the action and that the underlying policy behind this remedy is to protect the patient from damage, as opposed to protect the integrity of the patient’s decision, that being a relevant consideration because of the language of section 5D(4), which is set out on page 95 of the application book that directs attention to:

the purpose of determining the scope of liability –

a direct reference to section 5D(1)(b), that –

the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

If, in fact, for example this was a misrepresentation case and it was represented that it was impossible for the risk of temporary paralysis to come home, there would still be no damages awarded because there would be no reliance on it on the facts of this case because it was a risk that the patient was prepared to take for the price of a better outcome or cure.  It is rather odd that in a case like that that no damage would be awarded, in the event of there being something specifically referred to in that regard. 

But here the patient - we would say it is correctly described as being opportunistic, that a patient would be able to go through the shopping list of all of the possible complications that could arise during the course of an operation, pick out one that was not warned of that would impact upon his decision as to whether or not to proceed with the operation.  That risk does not come home, but he is allowed to be awarded damages in respect of a risk where here it is not in dispute that it was a risk he was prepared to take. 

HAYNE J:   Is not the difficulty in that analysis this segmenting of things into risks?  Is not the primary question whether the patient, if appropriately warned of all possibilities, would or would not have proceeded with surgery?  If the answer is appropriately warned of everything that may go wrong the patient would not have gone ahead but does, then why not liability follow?

MR HIGGS:  Your Honour, that certainly is the case on one view and one view that is eminently arguable and I do not want to, for the purposes of this application, suggest otherwise, in respect of the factual causation issue under section 5D(1)(a). But in respect of section 5D(1)(b), in our submission, that it is difficult to understand how given that it is not in issue that the patient was prepared to take the risk of temporary paralysis and that that is the only risk that came home.

Given that the purpose of damages in tort is to compensate, rather than to say – and that it is the gist of the action and the underlying policy is to protect the patient from damage and that, in our submission, this is not damage because it is something that the patient was willing to risk in order, as I have said already, for the chance of a better outcome, the 70 to 75 per cent chance of a better outcome.  Now there are, as has been pulled together in the cases, differing views about this around the world.  The US cases are all our way.  There are some decisions in the UK that ‑ ‑ ‑

GUMMOW J:   That might be an heroic statement, I think.

MR HIGGS:   I thought I would chance it on your Honour’s last day, but I did not get away with it. 

HAYNE J:   Some of us continue, read the transcript.

MR HIGGS:   But, your Honours, that is, in our respectful submission – I am not suggesting for one moment it is not an important point, but in respect of this – and it may well be that in the event of it being suggested that the failure to warn of the risk of permanent paralysis that had impacted upon the unchallenged acceptance of the risk of temporary paralysis that that would be a matter that perhaps your Honours would give special leave in respect of.  But that is not the issue here and that would be for another day.  In short our respectful submission is that the reasoning of the majority is correct and for that reason your Honours would not grant special leave.  If your Honours please.

GUMMOW J:   Yes, Mr Bates.

MR BATES:   Your Honour, in response to your Honour’s question to my friend, Justice Beazley did accept that the risk was sufficiently related.  That appears in the application book at page 119, at paragraph 151 going over to the next page.  Her reasoning was there that the risks were related because it was part of one operation and that one could not segment the operations.  It is not like you go to buy a hamburger and you either have it with cheese or without cheese; you have this whole operation.  

My friend says also that the purpose of this tort is to protect the patient against damage.  That is true in terms of the ultimate remedy, but if one goes right back to Rogers v Whitaker itself at tab 7 in the last two lines at page 487 of the judgment the rationale for the doctor’s view is to give weight to:

the paramount consideration that a person is entitled to make his own decisions about his life.

The patient makes a decision not just to accept the risk.  The real decision is whether to undergo the operation.  That is the real decision you make, to have the surgery.  Yes, you consider the risk and the surgery as an overall thing and takes all the risks so, in our respectful submission, it does bear very much on the word “appropriate” and our submission is that this is a suitable case for the High Court to flesh out in the circumstances of the situation whether it is appropriate and we submit it is causally relevant for the reasons that Justice Beazley found convincing.

GUMMOW J:   Thank you, Mr Bates.  We will take a short adjournment.

AT 10.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.21 AM:

GUMMOW J:   There will be a grant of special leave in this application, but on terms of the draft notice of appeal presently appearing at page 138 of the application book be redrawn so as succinctly to express the issues as they emerge in the exchange with the Bench this morning of the hearing of this application.  This will be an one‑day case I assume, gentlemen?

MR HIGGS:   Yes, your Honour.

GUMMOW J:   Now, it should be got ready for hearing promptly and we will make some directions now that the appellant’s submissions be filed and served on or before 26 October.  Those for the respondent be filed and served on or before 16 November and reply be filed and served on or before 30 November.  If that is adhered to, as it should be, the case should then be ready for hearing at the December sittings of the Court.  Now, are those dates clear:  26 October, 16 November, 30 November.  Thank you, gentlemen.

AT 10.22 AM THE MATTER WAS CONCLUDED