Chappel v Hart S5/1997 [1997] HCATrans 221 (4 August 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S5 of 1997

B e t w e e n -

CLIVE A. CHAPPEL

Applicant

and

BERYL JEAN HART

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 AUGUST 1997, AT 11.00 AM

Copyright in the High Court of Australia

MR D.J. HIGGS, SC: If it please the Court, I appear with my learned friend, MR N. PERRAM, for the applicant. (instructed by Tress Cocks & Maddox)

MR P.M. DONOHOE, QC: May it please the Court, I appear with my learned friend, MR F. KUNC, for the respondent. (instructed by MacMahon Drake Balding)

DAWSON J: Mr Higgs.

MR HIGGS: Your Honours, the applicant is an ear, nose and throat specialist. The respondent was his patient. She had a condition which involved a ballooning of her oesophagus into which food caught. She underwent an operation to overcome that problem. The case did not involve at the end of the day any allegation against the applicant for negligence in terms of the way in which the procedure was carried out, rather, the case turned on whether there was any causal nexus between the doctor's failure to advise the patient of the unknown but theoretically possible chance of her ending up with that which she described to him when posing the relevant inquiry, a Neville Wran voice.

What happened is that the problem with her throat came about in this way and it took three steps. The procedure involved a scope being put into the throat so as to dissect the pouch into which the food caught. The oesophagus was perforated. That was step one. Step two involved the random chance of bacteria being present is the oesophagus which escaped into the chest cavity causing an infection known an mediastinitis. The third step involved that infection continuing on to such an extent as to compromise the right laryngeal nerve which meant that it ceased functioning and hence the weak voice. At page 84 of the application book Mr Justice Handley, at lines 34 to over the page 85 to 15, described the chance of this infection occurring as being one that was random or it would occur on a chance basis. It was relatively rare:

If the bacteria are present and a perforation occurs, mediastinitis will follow. The bacteria are not normally present, and if present one week may not be present the following week or for months or years thereafter.

A perforation of the oesophagus during this procedure can occur without any negligence on the part of the surgeon. Should this complication occur there is apparently nothing the surgeon can do -

The three-step procedure whereby the infection caused the problems that this lady finally suffered from - - -

DAWSON J: We know the facts, Mr Higgs, but it may be a bit more helpful if you proceed directly to the argument.

MR HIGGS: Your Honour, her evidence was that she would not have undergone the operation at the time or at the hands of Dr Chappel had she been given proper advice but that she would have deferred the decision and undertaken the operation at a later point in time. Mr Justice Handley in his judgment - - -

DAWSON J: And if she had done that there is still a risk that she would have suffered the same damage.

MR HIGGS: That is so.

DAWSON J: Yes. Why is it not a loss for chance case, loss for the chance to have a later operation performed by someone who was possibly more skilled, which might nevertheless have resulted in the same damage?

MR HIGGS: Your Honour, that was the approach, I think, that was taken by Mr Justice Handley. At page 90, after having acknowledged that there was a line of authority to say that causation is not necessarily satisfied in the event of the damage being a coincidence, at about lines 29 onwards he held that she lost the chance of going off and finding a doctor who would have had superior skill and experience that could have reduced the risk of damage and picking up at line 31:

Professor Benjamin had carried out some 150 procedures of this kind without a single perforation, although the general incidence of this complication in his unit was between 1 in 20 and 1 in 40.

McHUGH J: Is that an accurate description of his evidence?

MR HIGGS: No.

McHUGH J: No, it is not. He was refe rring to the number of operations, not the question of complications.

MR HIGGS: That is so. At page - - -

DAWSON J: But damages were assessed upon the basis that she was entitled to full damages in the circumstances.

MR HIGGS: That is right.

DAWSON J: Well, that is not loss of a chance.

MR HIGGS: No, that is right. It may have impacted upon the question of damage. Mind you, that was not the type of damage that was claimed in these proceedings either.

GAUDRON J: Is that not the critical point: what was the damage - what is the damage for which the plaintiff should be compensated, assuming other matters were established?

MR HIGGS: On the facts of this case, none, because all she lost was - - -

GAUDRON J: You are assuming that there was no loss. To say none, you must say no loss.

MR HIGGS: No loss.

GAUDRON J: Because you say she was subject to a risk which she would have been subjected to in any event, albeit later.

MR HIGGS: That is so and she would have made the decision to have taken that risk.

GAUDRON J: Okay, but you are taking the risk as the damage and is there any case which treats risk as such as damage rather than the actual physical impairment of the voice, et cetera, which subsequently occurred - which occurred, not subsequently, which occurred?

MR HIGGS: Your Honour, might I answer that - I hope I am answering your Honour's question. One can imagine a patient coming along to see a doctor and saying, "I don't want to undertake the risk now -" this is assuming proper advice had been given - "I want to defer that because of my particular circumstances at the time and, if I am going to take on the risk, I will take on the risk two or three or four years down the track." And it may be that in those circumstances being delayed in - not having the opportunity to delay the risk might sheet home to that particular plaintiff damage that can be established. One often sees that situation in measuring damages in cases where plaintiffs are dying and they die sooner than later because of - - -

McHUGH J: That is the classic case. Those cases are fairly common, are they not, medical negligence cases? It is your loss of chance. If it had been diagnosed earlier, I may have been saved and that is the argument, but why is not the proper way of looking at this case to say that the damage she suffered is the condition which she now has as a result of this failure to give her advice and the fact that she may have been subjected to the same risk at a later stage is only a matter that goes to the reduction of that damage? In other words, you say she suffered this particular loss, nevertheless if things had gone as they should have gone she still had 10, 15, whatever the percentage was, of that condition occurring, so it only goes to quantum. It does not go to liability.

DAWSON J: But you have got to find a basis for that - perhaps you ought to answer Justice McHugh first.

MR HIGGS: If that be so then it would mean, to apply the commonsense test that is said to govern causation, that in this particular case analysing what the retainer or the duty involves, namely to arm a patient with sufficient information as to decide whether or not she wants to take the risk on and she makes that decision, that in the facts of this type a mere temporal connection between a failure to advise and nothing more and the risk eventuating, which always is highly unlikely, will be sufficient and that seems to fly in the face of all authority.

McHUGH J: It is not a coincidence case. It is not the Hart & Honore-type situation which they laboured at such length in their work on causation. She suffered damage. Now, it may be I am condition by the "but for" test and I have never got it out of my system and I never will, but surely, even as a matter of commonsense, she suffered damage. She has now got an impaired body that she did not have before and which she would not have had but for this operation and she would not have undergone the operation.

MR HIGGS: But it is but for the operation and not the advice.

McHUGH J: It is the advice. Well, the advice is part of causal chain.

DAWSON J: And that is why I am suggesting that it may be a loss of a chance. She underwent the operation and thereby lost the chance of (a) postponing it and (b) of having it done by someone else with different or greater skills with improved technology. Now, with all of those things she may yet have had the same damage as she has now and it is a matter of assessing the value of the lost chance. It is not a matter of causation or, if it is a matter of causation, what the advice caused was to make an immediate decision to do what would have had to have been or may have had to have been done later.

MR HIGGS: It seems to be beyond dispute that she would have had to have undergone the operation eventually - Mr Justice Handley held that - and it also seems to be beyond dispute from the evidence that the very risk that she faced when she underwent the operation at the hands of Dr Chappel would have been the same relevantly as it was when she underwent the operation under the hands of Professor Benjamin.

McHUGH J: Not necessarily. The probability of risk was greater under Dr Chappel, because of his relevant inexperience, as opposed to a surgeon of apparent standing of Professor Benjamin.

MR HIGGS: Your Honour, Mr Justice Handley got it wrong when he looked at the evidence at page 6 of the transcript - - -

McHUGH J: Yes, I know.

MR HIGGS: - - - and he relied upon that to come to a finding in accordance with your Honour's reasoning and that was wrong and there was no other way, we would submit, that he could have come to a finding that she would have been better off at the hands of a surgeon that had more experience.

GAUDRON J: Well, there is always the possibility of improved technology as time goes by.

MR HIGGS: But she had the second operation, your Honour, and at that time, although the technology was different, it was not relevantly - it did not relevantly give her a better opportunity of avoiding the damage that she eventually suffered because the risk of perforation was the same - and that is to be found I think at page 2 of the appeal book - and Professor Benjamin gave evidence and said that the risk of perforation with this new laser technology was the same and there only has to be the slightest perforation and the damage occurs. When he gives evidence about the 1 in 20 to 1 in 40 chance he talks about experience and care, but there is no evidence as to what extent of experience is needed in order to fall within the 1 in 20 or 1 in 40 category. It is just completely silent. So there is no relevant - I am sorry.

McHUGH J: I thought these two judgments were fundamentally different and yet the third judge agreed with both of them.

MR HIGGS: Mr Justice Mahoney agreed with Mr Justice Handley in the alternative and goes on to say that even if she had to undergo the same type of operation generally that had with it the same risk that he goes on to say - - -

McHUGH J: Justice Mahoney does not agree with Justice Handley's reasoning, does he?

MR HIGGS: Yes, he does, your Honour.

McHUGH J: Does he?

MR HIGGS: At page 78 lines 25 to 40.

McHUGH J: Yes, I did not quite read that as an acceptance of the reasoning process of Justice Handley, but maybe it is.

MR HIGGS: Then his Honour went on at line 40 onwards to consider it in the alternative and, of course, Mr Justice Cohen concurred with both approaches. The judgment of Mr Justice Mahoney in the second approach, picking up page 81 line 25 through to page 82 line 15, we would submit with respect simply says that despite the fact that Mackie and his treatise talks about there having to be a necessary and sufficient precedent event to the result that is complained about or a sufficient tie in order to satisfy the causation test, at the bottom of the page he goes on to say that in this particular case he does not believe that those two things need to be satisfied and in effect he is saying that whether there is a particular tie or not, the temporal connection is sufficient and that, we would submit with respect, has to be wrong. It is a short point and that is the point.

DAWSON J: Thank you, Mr Higgs. Mr Donohoe.

MR DONOHOE: May it please the Court. My learned friend's argument founds itself on the proposition that if she undertook the operation later she would inevitably undertake the same risk and superficially, if one speaks of the risk as being mediastinitis, that has some attraction and he says there is no evidence that the risk could have been altered by experience or competence. That, we respectfully submit, ignores the evidence at application book 4 where Professor Benjamin said:

We have done studies simply by taking an x-ray of every patient who has this operation within an hour of the operation and I would think that, depending upon the experience and care with which the surgery is done, it could occur as often as one in twenty or thirty or forty operations,

So that quite apart from it being an available inference as a matter of commonsense, the evidence is there that experience and care are causally operative factors. My learned friend is quite right, we concede, when he says that if you read what Mr Justice Handley said at 90, literally he appears to confuse the risks. May I suggest to your Honours that while that is literally correct it is perfectly clear that Mr Justice Handley understood the distinction between the risk of perforation and the risk of mediastinitis. May I take a moment to point your Honours to the references that make that clear. Before I do that may I say that at page 90 lines 30 to 35 should be read as meaning this:

Professor Benjamin had carried out some 150 procedures of this kind without a single perforation -

wrong. Obviously he meant case of mediastinitis. I accept he did not say that -

although the general incidence of this complication in his unit was between 1 in 20 and 1 in 40.

That it was clear he was talking about perforations emerges if one goes to page 84. It is included in the passages which my learned friend made reference to but it is quite clear from line 17 where his Honour said:

Perforation of the wall of the oesophagus was a well recognised complication of this procedure. Professor Benjamin, a pre-eminent specialist in throat surgery, said that a study undertaken in his unit had shown that this complication -

he is plainly speaking there of perforation -

occurred once in 20 -

In the next paragraph he says, "Mediastinitis is a rare complication". His Honour Mr Justice Handley clearly grasped that the mechanism is perforation, mediastinitis and then paralysis, and he said what will be affected by experience and care is the first step in the process. It may very well be, he was saying, that there may be bacteria about but if the first step in the development of - - -

DAWSON J: We appreciate that, but one could not have said that mediastinitis was not a risk, whoever conducted the operation. That is the point. Now, your client recovered full damages, did she not?

MR DONOHOE: She did.

DAWSON J: And no account was taken of the risk, whoever did the operation, if it was a subsequent operation.

MR DONOHOE: Yes, I accept that and their case was run like that.

DAWSON J: Is it not a case of lost chance? She had lost the chance to have a later operation which would have carried some risk and which would have meant that she does not recover the full amount of damages as she did for what happened.

MR DONOHOE: Perhaps a case of that sort might have been run. One might have said, I accept, your Honour, very well she must recover but instead of getting 100 per cent she gets 90 per cent or whatever and someone might have developed the - - -

DAWSON J: It seems to me that is the only way you can approach the case.

MR DONOHOE: We would respectfully suggest that - - -

DAWSON J: That is probably an overstatement since that is what was not done.

GAUDRON J: It was run on an all or nothing, liability - - -

MR DONOHOE: Indeed, and has to this very moment until my learned friend sat down and in the notice of grounds of appeal. This is a causation case. He has said that all along and that depends upon the foundation that it is the very same risk in the sense of not only character but magnitude.

GAUDRON J: But it also depends on identifying the damage suffered as exposure to the risk which in fact eventuated.

MR DONOHOE: As I apprehend it, my learned friend emphasises that there was a risk of mediastinitis. I think he acknowledges that, but then he says that in a sense it was coincidental and therefore it is not truly cause and effect. That is the argument we have come to meet and it is not correct to say, with respect, that Mr Justice Mahoney founded himself on the reasoning of Mr Justice Handley. There is, indeed, as Justice McHugh noted, a subtle difference between them but it is an important difference. What Mr Justice Mahoney was doing at 78 and following was finding three bases for rejecting my learned friend Mr Higgs' arguments. He deals firstly with the basis for rejecting it between line 16 and 24 and he says there are the elements. He says:

damage resulting from the combination of the perforation, the infection and the nerve damage was something which, on the evidence, was foreseen and it was the fact that such a conjunction of contingencies could occur that was to be the subject of the warning which Dr Chappel should have given and the reason for giving it. Accordingly, I do not think that this submission should succeed.

His second basis for rejecting it appears between lines 26 and line 39 and what he says is it was not - he refers to Mr Justice Handley and he says he has:

shown why, upon the facts, this submission should not succeed.

And what he says the facts disclose, this is Mr Justice Mahoney, is:

It was not, in any relevant sense, inevitable that Mrs Hart would undergo the same operation in the same circumstances: as the evidence disclosed, had she been aware of the risk, she would not have had the operation performed by Dr Chappel but by a surgeon of greater experience -

and we submit that, read with the evidence to which I have adverted, that is not a simple adoption of Mr Justice Handley's reasons and had it been, when they are properly understood, it would have been correct, that what was variable was the risk of perforation and that depended upon care and experience. The third ground upon which my learned friend Mr Higgs' submission was rejected was Mr Justice Mahoney said that causation in the law is not coincident with the examinations of cause in philosophy and in common sense.

What he said is that sometimes they overlap but fundamentally causation in the law involves the process of evaluation and ascertainment of attributability of fault to an event that has occurred and once that was understood, while it may be that in the billiard ball or Hume sense of causation one could say that this was in a sense coincidental, he said, entirely consistently with what this Court has said in March v Stramare over and over again, it is a value judgment and he said when that value judgment is being made it provides a third and independent reason for upholding the judgment of the court below.

McHUGH J: What was the damage here that completed, let us say, the breach of contract between the parties? When the plaintiff agreed to undergo the operation, when she submitted to the operation, was there a breach of the contract at that stage?

MR DONOHOE: There had been a breach we submit before that stage.

McHUGH J: No, but a breach resulting in damage.

MR DONOHOE: Resulting in damage, yes.

McHUGH J: If that is so then the damage that you have claimed in this can only be consequential damage based on that breach. You have got to show - the breach then is simply undergoing the operation. The damage she suffered as a result of the operation going wrong is only consequential damage and raises questions of reasonable foreseeability of damage in the Wagon Mound sense, but it does not go to the cause of action.

MR DONOHOE: Yes.

McHUGH J: That is not the way the case was conducted, was it?

MR DONOHOE: No.

DAWSON J: Or you could put it on the loss of a chance basis and that is not the way the case was put.

MR DONOHOE: You could indeed.

DAWSON J: The damage was the loss of a chance to undergo a later operation conducted by a more skilled person with possible improved technology.

MR DONOHOE: Yes, we respectfully adopt that.

DAWSON J: You may, but that is not the way the case was conducted.

MR DONOHOE: Indeed, and the only basis upon which it is now challenged, we respectfully submit, is a basis that cannot be made out and we respectfully submit that, properly understood, this is a simply a facts case and of no special importance. May it please the Court.

DAWSON J: Thank you, Mr Donohoe. Mr Higgs.

MR HIGGS: Your Honours, the question does raise special consideration and it is a difficult point as demonstrated by the different decisions and the different way that this problem is approached in England in the House of Lords in the Banque Bruxelles Case - - -

McHUGH J: Can I just ask you: when the surgeon put his knife into the plaintiff was there damage suffered as a result of a breach of contract at that stage, quite apart from anything about the fact of the operation?

MR HIGGS: No. We say no, because all the advice, either in contract or in tort, as the House of Lords analysed the duty and the retainer in Banque Bruxelles, that retainer did not involve the doctor having to make the patient's mind up for her as to whether or not to proceed with the operation but rather it was confined to giving her sufficient information so that she could make a decision as to whether she would undertake the risk herself.

McHUGH J: But when is the damage complete - completes the cause of action? Whether one is looking at breach of contract or one is looking at the tort, in either - - -

MR HIGGS: It is complete in the event of her doing something that was relevantly different to what she would have done, to that which she would have done had the proper advice being given.

McHUGH J: But in this case that means submitting to the operation.

MR HIGGS: She was going to submit to the operation anyway.

McHUGH J: No, this operation.

MR HIGGS: Well, this particular operation she would not have submitted to but she would have exposed herself to the same random risk and that is the way - - -

DAWSON J: She lost the chance to do it later rather than then.

MR HIGGS: She lost that chance, but the question then to be - I am sorry, your Honour.

DAWSON J: And if that was the basis on which the case was conducted and that were rejected, you may have a point, but it was not.

MR HIGGS: Your Honour, the case below and the argument put before Mr Acting Justice Donovan was that it was a loss of chance case. He deals extensively with the arguments that were put to him in that regard and he dismisses them.

GAUDRON J: But on causation, not on damages.

MR HIGGS: No, his judgments are divided up to causation, one, loss of chance, two. He deals with that quite separately and there is an overlap between damages and loss of chance and that really highlights, we would submit with respect, the very difficulty of approaching the problems that these facts throw up. The House of Lords approaches it upon the basis that it goes to causation.

McHUGH J: There is not a lot of money involved in this case. If you were granted leave, are you prepared to undertake to pay the respondent's costs in any event?

MR HIGGS: I can get those instructions and I would have thought that I - - -

McHUGH J: I am just speaking for myself.

MR HIGGS: No, I think that we could get those instructions because the way the judgments now stand, although the amount of money involved in this particular case is not great, if this judgment stands it certainly has a significant flow-on effect to my client and I would have thought that I could get those instructions because Mr Justice Mahoney's decision, for obvious reasons, poses a problem for medical negligence insurers with respect to the question of causation. It, we say, blurs duty of care and causation.

DAWSON J: How long would it take to see whether you could obtain those instructions, Mr Higgs?

MR HIGGS: Half an hour, your Honour, or probably less.

McHUGH J: And not only pay the costs in any event in this Court but also to take away the existing costs orders in favour of the plaintiff. She might lose her damages but she - - -

DAWSON J: Will not lose costs.

MR HIGGS: I understand, your Honour.

DAWSON J: Yes, Mr Donohoe.

MR DONOHOE: Your Honours, may I say there is one further complication. It may be that it will not attract any comment from the Bench, but approximately $80,000 of this was paid some time ago to my client, so that - - -

DAWSON J: Very well, we will stand this matter down for you to obtain instructions. If you would mention it when you have or have not obtained instructions.

MR HIGGS: Thank you.

AT 11.31 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.38 PM:

DAWSON J: Mr Higgs, I see you are present in Court now.

MR HIGGS: Yes, your Honour. I have instructions to give the undertaking sought with respect to costs with this one caveat, and I do not think it is a problem: that we have paid some of the verdicts in advance so, in the event of us being successful, that the moneys that we have paid by way of verdict be an offset against any liability that we have with respect to costs.

DAWSON J: That would follow as a matter of course. You do not need an order.

MR HIGGS: That is so.

DAWSON J: Let me make it clear, Mr Higgs. What you are undertaking is not to seek to disturb the orders for costs in favour of the respondent in the courts below and you undertake that the applicant will bear the respondent's costs of this application and of the appeal in this Court?

MR HIGGS: That is so.

DAWSON J: Very well.

MR DONOHOE: May I have Your Honour's leave to say something that will take less than a minute?

DAWSON J: Yes.

MR DONOHOE: There was an exchange between members of the Bench and my learned friend about whether a loss of opportunity case was put below. I had said that loss of opportunity, as I understood your Honour the presiding Judge to be putting it, was not put. May I simply draw attention to those passages in the judgment that deal with the way loss of opportunity was put below, and they appear at pages 39 and 40, and we respectfully submit they support what I put to the Court, namely, that it was put on an "all or nothing" basis.

DAWSON J: No doubt that will form the basis of some argument.

MR DONOHOE: I just wanted to clarify what had been said on this application. May it please the Court.

DAWSON J: Very well. There will be a grant of special leave upon the undertaking given by Mr Higgs.

AT 12.40 PM THE MATTER WAS CONCLUDED