Zaltron v Raptis

[2002] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 2001

B e t w e e n -

PAULA EILEEN ZALTRON

Applicant

and

SPERO RAPTIS

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 10.37 AM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear with my learned friend, MR P. MILTE, for the applicant.  instructed by Angela Bentley & Associates)

MR D.E. CLAYTON, QC:   May it please the Court, I appear with my learned friend, MR R.A. CAMERON, for the respondent. (instructed by Wallmans)

GAUDRON J:   Yes, thank you.

MR PEEK:   If it please the Court, at pages 54 to 59 of the application book in the judgment of the Full Court their Honours there collect a number of passages from judgments in the cases of Chappel v Hart, Naxakis v Western General Hospital and Rosenberg v Percival, which we submit bear upon two important issues at least.  First, as to causation generally, if I can put it in that way, we would submit that the words of Justice Gummow in Chappel at paragraph 84 in the application book, if we can paraphrase it in this way, expresses the correct approach, but if there is a breach of duty and the injury falls within an area of foreseeable risk, the breach of duty will be taken to have caused the injury. Of course, your Honour Justice Gaudron said very much the same, both in this case and in earlier decisions.

GAUDRON J:   Yes, but I think I said that different considerations arose in advice and information cases or I at least qualified it, saying “different considerations.”

MR PEEK:   Yes, your Honour, did, and I do come to that.

GAUDRON J:   Yes.  You must accept, do you not, that ultimately there was a question whether, if proper advice had been given, your client would have undergone the procedures in question.

MR PEEK:   That is a question in the case, your Honour, but that brings me to the second of the two important matters that I was alluding to which, of course, is that of onus of proof, because again we submit that Justice Gummow’s approach ‑ and it is the same passage at paragraph 84 ‑ encompasses that matter correctly and perhaps I will read it at this point:

“Here, the injury to Mrs Hart occurred within an area of foreseeable risk.  In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury.

Now here, of course, there would be a difference between the various views that are collected at this general point in the judgment.  The Full Court noted at paragraph 83 the position of Justice McHugh in Chappel v Hart and it is really that portion that is extracted by their Honours at that point and the italics, if the Court can see:

An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists.

Then the Full Court noted the views of Justice Kirby at application book pages 56 to 58, which is a much longer section.  Of course I cannot read all of that, but the Court sees that a long extract from your Honour’s judgment is there produced, which we say also supports the concept of a reversal of onus in this situation.

GAUDRON J:   Justice Kirby was clearly talking about an evidentiary onus, was he not?

MR PEEK:   I appreciate that.  We make two submissions ‑ ‑ ‑

KIRBY J:   In fact, it said in terms, at the top of page 57.

MR PEEK:   It is, indeed, your Honour, and I do not say that your Honour was not saying other than an evidentiary onus.

GAUDRON J:   And certainly Justice McHugh was talking about an evidentiary onus as well, was he not?

MR PEEK:   Yes, I agree with that.

KIRBY J:   Indeed, it is heresy in Australia, to talk of the legal onus shifting.  That is a view that is - is it not?

MR PEEK:   I understand why your Honour says that.  I do want to make a submission about it just a little bit later in my submissions but for the moment, of course, I agree with your Honour.

The Full Court also noted the statement of your Honour Justice Gaudron in Chappel v Hart which would be consonant with the first proposition of causation generally but your Honour, of course, stated that in your Honour’s view it was necessary for the plaintiff to give evidence as to what would or would not have happened. 

Your Honour, that, of course, was Chappel v Hart.  The consideration in Rosenberg v Percival does not really make the matter much clearer.  It is submitted that it is fairly summarised by the Full Court at paragraph 88 of the judgment, still at page 58 of the application book, where their Honours refer to the judgment of Chief Justice Gleeson, Justice McHugh and, of course, Justice Gummow, so that one still has very much a difference, it would seem, between various of your Honours of the Court in relation to this matter of a shifting onus.

GAUDRON J:   Was that not decided in your favour in the Full Court?

MR PEEK:   To an extent, of course, it was, your Honour.  We would then, of course, move to what should follow from that decision in our favour.  Our submissions are, in fact, pretty fully developed in our summary of argument, and the Court has them at pages 87 to 91 of the application book.

KIRBY J:   You really lost on the facts, did you not?  I mean we can talk about these verbal formulae but in the end a judgment has to be made and the Full Court, which had a factual province, determined a factual question against you.

MR PEEK:   We would submit that ‑ ‑ ‑

KIRBY J:   You have to either show that they exceeded their function as a Full Court, or that they disregarded the advantages of the trial judge, or that they applied an incorrect principle of law.  I find it difficult to see where you have shown either of those propositions.  It is just a factual assessment, it seems to me.  We would not get involved, normally, in re‑examining a factual assessment.

MR PEEK:   Yes, I appreciate that, your Honour, but we say that the Full Court has erred, as a matter of principle, in fact, in actually embarking on that process because the Court will be aware that the Full Court found substantial error in the trial judge’s general approach, quite substantial error.  The submission of the applicant at that point was that this necessarily leads to a re‑trial, that was always very firmly put.

GAUDRON J:   Why would it necessarily lead to a retrial?  You had an opportunity to put all your evidence in the first trial.

MR PEEK:   Can I just work through the points that answer that question, your Honour, and just take them in the order they are at page 87 of the application book for clarity.  At point 20, we submit, in answer to what I think your Honour just put to me, that if we are correct on the question of evidentiary onus then it was the defendant who was required to discharge that onus.  It was for the defendant to attempt to do that and, indeed, by cross‑examination for example, of the plaintiff if the defendant so wished.  That, of course, would have fundamentally led to a different course at trial, but if we are right, it did not behove ‑ ‑ ‑

GAUDRON J:   Well, would it have?  Why would it not be sufficient to establish, as it was, that your client had been advised that if she did not undergo these procedures, there was a risk of amputation of her leg?  That was established and that, I would have thought, would have been the factual matrix in which the question, what course she would have taken if properly advised, had to be determined. 

MR PEEK:   Yes.  Your Honour, that brings me back to a distinction we draw between the present case and cases such as Chappel v Hart, which appears at the earlier part of my outline of argument, and that is a distinction between a doctor who, on the one hand, simply fails to discharge that required duty, and on the other – we say as here – who positively misstates the position in such a way as to overbear the patient.  Now, the Court will have noticed that the Full Court made very strong findings against Dr Raptis in terms of his very overbearing conduct and his credibility in the sense that they expressed doubts as to it and proposed to go on the basis that the plaintiff’s evidence was to be accepted, if there was a difference.  Now, on that basis, the plaintiff gave evidence that what she was told was that she had no choice but to have this operation, that if she did not have it, she would lose her leg, and that there was simply nothing to discuss.  All of the references to the judgments there bear out those submissions that we make at that point, and the court so found. 

GAUDRON J:   And it was not disputed that there was a risk of losing her leg, was it? 

MR PEEK:   Well, the thing is that there were other viable ways of proceeding to address that matter, and those things should have been discussed with the patient. 

GAUDRON J:   On any view, the question was whether one moved immediately to a bypass, was it not, rather than ‑ ‑ ‑

MR PEEK:   That is certainly something I wanted to come to, yes. 

GAUDRON J:   - - - rather than do an angioplasty and then a bypass. 

MR PEEK:   Yes, because of what I have called ‑ ‑ ‑

GAUDRON J:   And it was also not disputed that an angioplasty involved fewer risks, if it were to succeed, than did a bypass. 

MR PEEK:   Well, I do not know about the fewer.  Certainly, each had a range of risks associated with them.  The way that we put it is at 89 of the application book at paragraph 27: 

angioplasty was contra-indicated on a “risk/benefits analysis” –

because –

On the one hand, inflating a balloon in the lumen of the artery was unlikely to have any permanent effect upon a cyst –

if that was the problem, because, as the Court can appreciate, it is flexible and it simply moves.  But on ‑ ‑ ‑

GAUDRON J:   But there is no finding that it was a cyst-induced condition, is there? 

MR PEEK:   True, but, your Honour, the Full Court stated that it could have been a cyst – it could have been, of course, atherosclerosis and plaque, that is true – but that one could not be sure which it was.  Now, bearing in mind those possibilities, it behoved Dr Raptis to raise that with the patient and discuss the way forward.  Bearing in mind that it could be a cyst, that is why we say that angioplasty was contraindicated, because it would be useless against a cyst, but, on the other hand, carried a real substantial risk of dislodging material at the very crucial site, as it were, when the balloon went up the ‑ ‑ ‑

GAUDRON J:   What material?  Plaque? 

MR PEEK:   I am sorry, your Honour? 

GAUDRON J:   The only material it was going to dislodge was plaque. 

MR PEEK:   Plaque, if it was plaque, or cystic material, if it was cystic material, so those two things.  But your Honour is quite right; both have the same effect in that they clog, as your Honour appreciates, the veins, which of course has led to the damage in this case. 

So it is a question of adding to the risk on a risks benefits analysis, because, of course, what could have been done, and we say should have been done and certainly should have been discussed, was avoid this risk I have been talking about of angioplasty and move straight to a bypass.  Now, of course, that proved to be ‑ ‑ ‑

KIRBY J:   Yes, but all of these facts would have had to be explored at the trial.  You cannot have two goes at a trial ordinarily, and therefore the record was in order, the record was there, the Full Court found error in what the trial judge did and normally, in order to avoid the mischief and expense and the anxiety of a second trial, the Full Court is required to go on and reassess the factual matters unless there are issues of credibility, and it determined the issue of credibility in favour of your client.  So it then goes to the record and then reaches its own conclusion on the facts.  It seems to be an entirely orthodox appellate procedure and we would not normally get involved in all these factual matters; we just do not have the space.

So that you have to elevate it into something more significant, some error of principle or error of law, really to attract my interest in the matter, and I do not see it.  I can see you have arguments about the facts, I can fully understand that, but on the issue of principle, the duty to warn, the duty to have regard to the matter on the basis of any credibility issue.  All of that seems to have been sorted out in the Full Court, so I just do not see where this Court has a mandate to intervene in the facts of this case.

MR PEEK:   Yes.  We would, of course, be submitting to the Court that the Court should simply order a retrial; we would in no way be wishing ‑ ‑ ‑

KIRBY J:   I understand that, and you put that to the Full Court, but the Full Court has a duty to consider whether it can, on the record, determine the matter for itself, and that is saving not only a cost to parties but public costs, and the Full Court determined that it could do that, making the credibility assessments in your client’s favour and then looking at the facts as it saw them and judging the facts on a matter the trial judge had not come to, reaching its conclusion on the causation issue, which I should say is always a problem for a plaintiff in these medical negligence cases.  What would the plaintiff have done had the plaintiff been informed?  And they reached a conclusion and it is a factual conclusion.  Now, why would the High Court of Australia become involved in reassessing those facts?

MR PEEK:   We would submit that it was unfair and unduly hypothetical for the court to, as it were, ruminate on what the plaintiff would have done in circumstances completely divorced from what occurred, in the sense that what occurred was that she was told, “You have to have this operation”, no discussion about options.

KIRBY J:   But that would not change in a second trial.  You had your chance to put the issues relevant to causation in the first trial, so the second trial, one hypothesises, would be on the same facts and the judge in the second trial would have to make that assessment.  Why did not the Full Court have that opportunity and the right and the duty to reconsider the facts for itself?

MR PEEK:   We say, as a matter of principle in this case, they should not have, because the question to be addressed by the plaintiff was in the light of a range of proper warnings and discussions what would her position have been, and that of course never came to analysis at the first trial because the parties moved past each other like ships in the night, if I can put it that way.  But the second aspect is that, even if the court should have ventured into this area, they in fact erred in their conclusion because they have not, as they should have, realised that what should have been discussed with the plaintiff was the real difference between having angioplasty first and then moving to a bypass if that was unsuccessful, on the one hand, or going straight to bypass without angioplasty.  We know that the angioplasty was unsuccessful and therefore that would have been a superior option.  It would have been nice for the plaintiff to know of that superior option’s existence and it was very, very important because it carried substantially less risk of the harm that, in fact, did occur to her, because, as I have put it in the outline, the fact of the matter is that you had A per cent risk associated with balloon angioplasty – this is at page 29, your Honour – and B per cent risk associated with bypass; those risks were cumulative.

The point about this area of the law of course, it is trite to say, is that an increase in risk by the defendant is a breach, so that particularly in medical negligence cases, if we can demonstrate here that what has occurred is a substantial increase in risk and that harm has come about and that it, of course, follows from that very risk and we have all of those findings in our favour ‑ ‑ ‑

KIRBY J:   Did the Full Court not approach the matter on the basis that the breach was established and that what it was considering was whether it caused the injury to your client, the loss and damages to your client?  So it is the causation issue which you lost on, not at trial but in the Full Court.

MR PEEK:   Yes, but the only aspect of causation that we lost on was the question of would she or would she not have had the operation in any event.  We say ‑ ‑ ‑

KIRBY J:   That is a matter of assessing the facts.  It is within the province of the Full Court.

MR PEEK:   We rely on that last argument that I just put, to answer that.  May it please the Court.

GAUDRON J:   Yes, thank you, Mr Peek.  We need not trouble you, Mr Clayton.

Given that the Full Court proceeded on the basis that there was an evidentiary onus on the defendant to show that the applicant would have undergone procedures in question, even if advised of the risks, this is not a suitable vehicle to resolve the differences of opinion expressed in Chappel v Hart (1998) 195 CLR at 232. Moreover, the proposed appeal concerns only a question of fact, namely, whether the applicant would have undergone the procedures in question even if advised of the risks.

The Full Court was, in our view, entitled to decide that question on the evidence presented at first instance.  Accordingly, special leave is refused with costs.

AT 11.00 AM THE MATTER WAS CONCLUDED