Chappel v Hart S88/1997 [1997] HCATrans 365 (11 November 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S88 of 1997

B e t w e e n -

CLIVE A. CHAPPEL

Appellant

and

BERYL JEAN HART

Respondent

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 NOVEMBER 1997, AT 10.20 AM

Copyright in the High Court of Australia

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

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

GAUDRON J: Mr Higgs.

MR HIGGS: Your Honours, the scope of the appeal is narrow. Our submission is that the respondent was not entitled to any of the damages claimed or proved upon the basis that the damages that she claimed and that she would be entitled to, if any, must arise from the opportunity to minimise the risk by deferring the operation that she underwent at the hands of Dr Chappel on 10 June 1983.

That was the approach of Mr Justice Handley, with whom the other members of the Court of Appeal concurred, with respect to the findings of fact that were made by his Honour at volume 2, 329, lines 10 to 45 of the appeal book, where his Honour referred to the evidence of Professor - or Dr Benjamin, and concluded that the opportunity to Mrs Hart was not to minimise the risk of the operation that she eventually underwent, could have been minimised if she had have gone off to Dr Benjamin, who, according to his Honour's reasons, by reference to the evidence that I will take your Honours to in a moment, he said disposed this, that, starting at line 30:

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. The defendant had carried out 6 of these procedures personally and had assisted -

KIRBY J: Six. He had carried out six of these procedures.

MR HIGGS: I am sorry.

and had assisted at 6 more.

Your Honours, that - - -

KIRBY J: Was there any evidence as to how many of these procedures were conducted in New South Wales, in a relevant - I mean, Professor Benjamin could not do them all.

MR HIGGS: No, no, there was no evidence of that type, your Honour. The evidence from Professor Benjamin was that he had done - - -

KIRBY J: It is like saying that we should only have Sir Maurice Byers before us every day.

MR HIGGS: Precisely.

KIRBY J: Agreeable though that would be.

MR HIGGS: I am sure it would. Your Honours, that was an incorrect interpretation of the evidence. The evidence was that of the 100 to 150 procedures that Professor Benjamin had carried out of this type he had never encountered the risk of mediastinitis leading to the type of injury that was sustained by the plaintiff. It was not evidence that of the 100 to 150 procedures that had been carried out that he had never been responsible for a perforation.

In relation to the other evidence referred to in this passage, we would submit, with respect, that the approach taken by Mr Justice Handley was correct, and I am talking about the evidence from Professor Benjamin as to the statistics in his unit, where perforations occurred when this type of operation was carried out. What Mr Justice Handley did, as did the trial judge, Acting Justice Donovan, he treated that evidence as being evidence that perforation of the wall of the oesophagus in this type of procedure was a well-recognised complication but it did not go any further than that.

That was the interpretation of that evidence that Mr Justice Handley had made reference to at 323 of the appeal book from lines 10 to 25.

The pouch in the plaintiff's oesophagus collected small scraps of food causing infection and inflammation. The condition is relentlessly progressive and surgery provides the only cure. The procedure involves the removal of the open wall of the pouch by its excision from the wall of the oesophagus. 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 occurred once in 20 to 40 procedures. In the great majority of cases, the complication causes no lasting ill effects.

Mr Justice Donovan at 271 of the appeal book - - -

KIRBY J: Can I just ask: there seem to be innocent perforations and sinister perforations. Is there any evidence about the incidence of sinister perforations causing the - what was the incidence of this sort of disability that the respondent suffered?

MR HIGGS: The incident of the type of problem that the respondent suffered was a theoretically possible risk that was unknown to have occurred.

KIRBY J: Ever?

MR HIGGS: Ever, in the textbooks. The problem that beset the respondent occurred in three steps. There was always, with this type of procedure, the risk of perforation when the Dohlman procedure was carried out that involved an endoscope or a scope being inserted into the patient's throat. There was always the risk of perforation of the oesophagus occurring.

The second step is that if perforation did occur, and there was the random chance of a particular bug being present, then it could escape from the oesophagus into the mediastinum, which is the chest cavity near the oesophagus.

The third step that occurred here was the infection was so virulent as to cause the right laryngeal nerve that innovates the right vocal chord to be compromised permanently and evidence was led that that was something of which people in Dr Chappel's position ought to have known of, even though it was not in the textbooks, even though, particularly in the circumstances of the inquiry that was made of him by the respondent when she said that she did not want to end up with a voice like Neville Wran.

Normally, when there is a perforation, what does occur is that nothing sinister flows therefrom. The way in which patients of this type are normally managed is that they will have no food for a significant period of time after the operation so as to minimise the risk of infection and, particularly, the risk of infection spreading into the mediastinum in this way.

Mr Justice Donovan, at page 271 of the appeal book at lines 25 to 40, also made reference to the evidence of Professor Benjamin when he said that he had carried out between 100 and 150 procedures and there had never been the problem of mediastinitis. Professor Benjamin says that:

the incidence of perforation is more common than most doctors acknowledge, possibly one in twenty, one in forty, but it only causes minor injury. Second is the risk of mediastinitis. This risk is less. The dangers are greater. But even here the likelihood is that the problems would clear up.

And then:

Professor Benjamin said in relation to mediastinitis -

and this is the specific evidence that we submit that Justice Handley misconceived the meaning of. He said:

"I believe, not having counted it, that I have performed between one hundred and one hundred and fifty operations and have not had a patient with that complication.

And in the context of the questions that were asked, the complication being referred to there was undoubtedly mediastinitis.

KIRBY J: That is no big boast if the facts that you have recounted are correct, that this is not mentioned in the textbooks. Professor Benjamin's experience was not remarkable if this is so rare that it is not mentioned in the texts.

MR HIGGS: No, that is right. We accept that.

Nevertheless, I think that every practising ear, nose and throat surgeon, whether he does this operation or not, is aware of the possibility of perforation and mediastinitis that may follow the operation."

This evidence is also referred to by Acting Justice Donovan at 279, line 10 and following where, in our submission, what occurred was that in relation to the question of causation, his Honour erred in reversing the onus of proof in relation to causation but nonetheless, at the end of the day, made a finding that there was no evidence that, by deferring the operation, the risk of this problem befalling the respondent would be any less.

At line 15, his Honour referred to the argument that was advanced at the trial:

Mr Higgs says all the plaintiff has lost is the chance to diminish the risk of an unknown but, in theory, possible risk of damage to the laryngeal nerve. That, he says, should not be regarded as a lost opportunity at all for the following reasons -

and then there are various arguments that are summarised that were advanced at the trial. Then, over the page at 280, picking up his Honour's reasons at line 35, his Honour said:

Theoretically I can see the attraction of Mr Higgs' argument that the risk would have been the same and the injury would have happened anyway. In order to support the defendant's proposition I would have to make that finding on evidence. There is no evidence that the risk in the sense of its being likely to occur as it did would be the same and the injury would have happened anyway. I think that such a finding would be speculation and I do not make it.

Just pausing there, what his Honour does say, we say with respect, he gets the onus wrong and I will develop that later on because there is a reference towards the end of the majority judgment in Bennett's Case about the possibility of this type of problem being approached by reversing the onus of proof. But, even so, what his Honour does not say, he does not say that the risk was not the same. He does not say that the risk was different. He just says that there was no evidence at all and in those circumstances that is the way in which, we would submit, he treated this evidence in the way that it was given during the course of the trial.

The evidence where Professor Benjamin refers to the one in twenty, one in thirty, one in forty risk at his unit was nothing other than a general reference to the range of incidence when this complication of perforation can occur. It did not go so far, and it is incapable, we submit, of supporting what we understand to be the respondent's contention that had the operation been deferred and had this lady gone to Professor Benjamin to have the operation carried out, that she would have had a significantly better chance of avoiding perforation.

And going on, his Honour then does develop his reasons and he says that, in effect from 280 to 281 line 35, that because the risk of perforation was such a rare event that had there simply been an operation carried out at a different point in time in exactly the same circumstances otherwise, the same surgeon, the same technique, the same everything else, the fact of the matter is that by virtue of the statistics that I have just referred to of it being an unknown but theoretically possible complication, that it is highly unlikely that this particular injury would have befallen the respondent and hence, because of the temporal connection, and it alone, causation was proved. His Honour goes on to say:

Further, as I see Mr Higgs' own argument, if the plaintiff had had the operation at a different time, the chances of the complication involving damage to her laryngeal nerve were still remote. I would conclude from this fact that had she had the procedure at another time, the probabilities strongly pointed to her not having the complication. Analysed this way Mr Higgs' argument seems to lead to a conclusion the very opposite of that he propounded. This conclusion could in other circumstances raise other difficulties concerning causation where a failure to warn is not sufficiently causally connected to the consequent injury but in my view that does not occur here.

KIRBY J: But how far can this be taken, given that you might have a heart attack in the operation theatre, or you might die under anaesthetic, and all sorts of temporal possibilities, as distinct from possibilities connected with the skill of the surgeon?

MR HIGGS: Well, that is our point, your Honour. We say that if all that can be said about us is, given the scope of the duty that we owe the respondent, if all that can be said - the scope of the duty is that we arm her with knowledge to enable her to make a decision as to whether or not she will undertake the risk and that is as far, from a causal point of view, as our duty goes. One can well understand in cases - - -

GUMMOW J: But was that duty discharged?

MR HIGGS: No.

GUMMOW J: Okay. Well, this woman ended up with this unfortunate condition; why was that not caused by your failure?

MR HIGGS: Because her evidence was that she would have undertaken the operation, in all likelihood, at a later point in time and taken on the risk. Indeed, she did undertake an operation - - -

GUMMOW J: I know that, but why is that an answer?

GAUDRON J: There is the time period in between in which she would not have had this condition, at the very least.

MR HIGGS: There would have been a time period but, also, over that period of time she would have continued to have suffered the problems - the severe problems that she was suffering at the time because of the condition to do with the pharyngeal pouch and she would have, in all likelihood, later on faced the risk and she would have, being armed with all of the knowledge that a proper discharge of the duty would have entailed.

GUMMOW J: Okay. Well, assume she had taken the risk, would it not have been more probable than not that the risk would have worked in such a way that she was not injured?

MR HIGGS: But only because of the temporal connection, not because of anything that we have done in the advice that we have given. What your Honours would need to do in order for that approach to be sustained, we submit, is to make the value judgment that there is a sufficient nexus between the breach of duty, of which we are guilty and which we concede, and the risk that befell her. Our duty of care, the duty of care that we owe her cannot, on the evidence, tell her anything other than, "You have the risk. You can avoid it by declining to undergo the operation." The duty of care that we had to discharge to the respondent could never go so far as to tell her when was the best time for her to undertake this procedure.

GAUDRON J: One of the difficulties I see in your argument is that I fail to understand why there was a duty of care, if, on your argument, there is always this risk. Your argument would lead to the conclusion, surely, that there is never a duty of care to warn of risks if the risk is going to occur in any operation.

MR HIGGS: No, your Honour. The evidence before the trial judge was, from Professor Benjamin himself, that even though the risk was one that was not reported in the textbooks and it was unknown to have occurred, nonetheless, it was know to be theoretically possible, and for anyone who carried out this type of procedure it was one that a surgeon ought to have been aware. The other line of reasoning that was relied upon in that regard was this: say, for example, someone like Caruso walks into a doctor's surgery and says, "Because of my job I really want to know what the outcome is. I don't want to end up with a Neville Wran voice; will you tell me as to whether or not there is any possibility of that?"

In those circumstances his Honour found that within the second limb of what is a material risk in Rogers v Whitaker, not being something that you can adjudge is a material risk, unadorned with any knowledge of the particular interest in this topic that the patient had, that nonetheless, by virtue of the fact of the inquiry and in the extreme example that I posed, because of the occupation that he pursued, given the state of knowledge with which people of this speciality were armed, even though it had not occurred, the proper course would have been to warn of the possibility of that type of injury befalling him. In this case, one of the facts relied upon by his Honour was that he knew that she was - - -

GAUDRON J: Why the duty to warn?

MR HIGGS: Because it was a risk that given the - - -

GAUDRON J: So that people can make a decision, surely.

MR HIGGS: Yes.

KIRBY J: Even though the incidence of the risk was so small that it was not written up in the textbooks.

MR HIGGS: Yes, because Professor Benjamin gave evidence that it was the type of risk that, nonetheless, was foreseeable and it is one that should have been warned of in the face of a specific inquiry of that type. There are two ways that the courts have approached it. There is the approach that I would suggest, with respect, that was referred to by your Honour Justice Gummow just a little while ago: why in the world are we not liable simply because of the temporal connection. That is overstating it, but nonetheless that is an approach and it is an approach to be found in the judgment of Justice Mahoney.

The approach that was taken by Justice Handley and the trial judge seems to have been, I know it was an approach that was undertaken differently because of the different onus of proof that Justice Donovan perceived applied, was that here, on the evidence, had she gone off to Professor Benjamin rather than it being mere speculation, to pick up the words of the majority judgment in Sellars v Poseidon, there was some loss of a chance of value that was not negligible that she lost, the lost chance being the better skill of Professor Benjamin in performing this type of procedure that Justice Handley says showed that he, instead of being at the one in twenty end of the spectrum of perforations occurring, he was, at the other end of the spectrum, being one in forty.

Now, what I would like to do firstly is to - and that seems to be the argument of the respondent as we perceive it in these proceedings, that on that point and that point alone, even though perhaps Justice Handley misinterpreted the evidence that he specifically referred to when he referred to the complications of mediastinitis, nonetheless when you look at the evidence in relation to risk of perforation, there was no misunderstanding of the evidence and that there was a material increase in the chance of the perforation being avoided and hence, the damage that arose was the lost chance of diminishing the risks of the procedure. There are a number of answers to that. The evidence from - - -

HAYNE J: Before you come to the evidence, do you say that the giving of a warning to this patient would have had any effect on her behaviour?

MR HIGGS: Yes, it would have.

MR HIGGS: Yes, it would have.

HAYNE J: What effect would it have had?

MR HIGGS: She would have deferred the operation, and she would have deferred it in the more likelihood to no later than June 1985, for reasons that I will develop in a little while, because that was the time when she, in fact, did undergo a procedure of this type which, although slightly different, carried the same risk of perforation as did the operation that was carried out by Dr Chappel.

GUMMOW J: Now, is there a finding to that effect?

MR HIGGS: No, there was not a finding to that effect.

GUMMOW J: Or could not find one?

MR HIGGS: No.

GUMMOW J: Well, is it agreed that that is so?

MR HIGGS: No, it is not agreed, but the evidence, in our submission, is uncontroversial and I can take your Honours to the evidence fairly quickly.

GAUDRON J: Yes, but what you might do when you have already suffered the damage of which complaint is made is quite different from what you might do if you have not already suffered it.

MR HIGGS: But, your Honour, what happened was that in 1985, in February of that year, the very type of complication that can arise because of the problem that she had occurred, there was a grape that stuck in her throat that needed to be surgically removed. At page 34 of the appeal book, volume 1, lines 21 to 35, she gave evidence as to what occurred as between her and Professor Benjamin. He told her:

"Well, you know all about the risks of this procedure". He said, "Now, I will tell you the risks about not having it".

Q. What did he say about that?

A. He knew I had the grape removed from my throat. He said, "That could happen to you again and you will find that you perhaps should not be driving away from cities because you might need another emergency of that kind which could arise". He said, "You will find yourself reducing your diet to suit your present circumstances and gradually your quality of life is going to deteriorate so that is your option".

At page 34, again, at the top of the page, she gave this evidence:

Q: The problem you were having with swallowing in the early part of 1985, was that worse than it had been prior to the time you went to see Dr Chappel?

A. It was constant. It could have been I realised why I was feeling this and that was adding to the difficulties of my voice.

So, there is no evidence and no suggestion that the procedure that Dr Chappel carried out, in any way, aggravated the serious problems that she was having with swallowing before she undertook the operation. It certainly aggravated her general condition because it diminished her power of speech but the problem with swallowing was constant.

GAUDRON J: Does that mean that the operation did not have its intended physical effect in any event?

MR HIGGS: The operation did - well, it might be interpreted that way. I think that there is other evidence - there is no finding about this that might be - that, to some extent, the operation alleviated the problem that she had with food catching in her throat. It was common ground that the purpose of the operation was to try and alleviate the problem by dissecting a flap of skin within the oesophagus that formed the pouch, so as to allow the food to go through, and that it sometimes can require a second procedure being undertaken because, during the course of the first procedure, to be on the safe side, you cut away too little as opposed to too much.

At page 48 of the transcript, line 30 to about 37, she gave evidence about the problems that she was having in April 1983, prior to the operation that Dr Chappel carried out. It was a condition that was very stressful, it was making her fatigued in her work, but she was able to go on, even though it was stressful. So, it was not an insignificant problem that she was having at that time, and it is one that constantly plagued her until 1985, when she underwent the operation that was carried out by Professor Benjamin.

At page 53, lines 25 to 35, or thereabouts, she gave evidence to the effect that when she underwent the procedure at the hands of Professor Benjamin, she was aware of the risk of her laryngeal nerve being compromised, no better warning than the problem that befell her, and she knew that she only had one good laryngeal nerve left, and yet she was prepared then to undertake that risk and undergo the procedure that Professor Benjamin recommended in the circumstances that I referred your Honours to earlier on.

At page 54 of the appeal book, from lines 45 to 55, line 10 it is plain that not only did she speak to Professor Benjamin about it, but she also had spoken to another doctor, Dr Ross, and that she was aware that her one remaining good laryngeal nerve was at risk because of this operation. The finding that his Honour Mr Justice Donovan found in relation to the condition was that it was relentlessly progressive, and the evidence of that is from Professor Benjamin at page 120, lines 10 to 20, where Professor Benjamin gave evidence that the symptoms of pharyngeal pouch:

are relentlessly progressive. The only relief is surgery -

there is no medication, and the problem can only get worse. In those circumstances, that evidence, in our respectful submission, being one that seems to be uncontroversial, that it must be that, in all likelihood, the operation that she - that the deferred operation was one that would have been deferred to a point in time no later than when the operation was, in fact, carried out in June 1985 by Professor Benjamin.

GUMMOW J: I do not quite understand this. I am probably being slow witted, but assume she had deferred the operation and assume that it had then gone ahead, what are the probabilities as to what then would have happened?

MR HIGGS: The probabilities are that it would not have happened.

GUMMOW J: She would have had a successful operation.

MR HIGGS: Yes.

McHUGH J: That is what I wanted to ask you about earlier, as to exactly what was the duty to warn in this case. Was it a duty that there could be a perforation whether the operation was performed with a rigid open tube endoscope or a flexible endoscope? Was that the duty or was it a duty to warn both that that could occur and that there was always a chance that by reason of bacteria, mediastinitis could ensue? What was the actual risk and what should she have been told about that? There was a two-stage process?

MR HIGGS: In light of the inquiry, the specific inquiry, that his Honour found was made, that she did not want to end up with a "Neville Wran voice", and the process by which that being possible being in the manner of a three-step way that I described earlier, the duty was to warn her that although rare, if known at all, nonetheless, it was possible.

McHUGH J: What was possible?

MR HIGGS: The risk of her ending up with a "Neville Wran voice".

McHUGH J: The reason I asked the question is that it seems to me, at the moment, it may throw some light on the whole question of causal connection, because it may well be an obviously known complication of this operation that there can be a perforation irrespective of the kind of endoscope that is used. But what is the risk of the perforation occurring and is it conditioned upon the ability of the surgeon?

MR HIGGS: No. Sorry, let me recant on that. The evidence that his Honour Justice Handley relied upon was the evidence that I referred your Honours to, and it is to be found at page 120 of the appeal book, line 40, and over the page to 121, line 10. It is that part of the evidence that I referred your Honours to that to some extent was extracted - or to be found in Justice Donovan's judgment:

Q. Can you give us, likewise, a statistic of this complication arising that does lead to mediastinitis?

The questions are all about mediastinitis.

You say it is very rare. Are you able to translate that in similar terms to the way that you have expressed yourself apropos the statistic of one in twenty to forty, or not?

That is to do with perforation. The answer was:

A. Could I give my own experience?

Q. Yes?

And then he says what was extracted - the part that I read out in the trial judge's judgment, about having done the 100 to 150 operations never occurred. If your Honours then go back to page 118 of the appeal book, lines 35 to 45, that, we would submit, and as we understand it, is the evidence that the respondents latch on to as discharging the onus of proof that there was a loss that Mrs Hart suffered, because she could have gone off to a better surgeon.

GAUDRON J: That is there in that answer, is it not? The risk depends on the experience and care with which the surgery is done.

MR HIGGS: Your Honours, our answer to that is this: firstly, that evidence was only evidence of general statistics that were gleaned by Professor Benjamin from his unit as between people that performed this type of operation, at another explained level of experience, and it - - -

GAUDRON J: Perhaps I can interrupt you there, Mr Higgs, because it is 11 o'clock on 11 November, and we ask that everybody now join us in observing one minute's silence in honour of all those who have been killed, injured or otherwise harmed by war.

Yes, thank you, Mr Higgs. Thank you, ladies and gentlemen. You were answering my question about the evidence as to experience and care.

MR HIGGS: That was an answer that was treated by the trial judge, at that passage that I referred your Honours to earlier on, as going to one issue and one issue only. That is that the risk of perforation was not uncommon. It was more common than, perhaps, most surgeons realised and what the answer does not do, so as to elevate it from that type of evidence to being evidence to show that Professor Benjamin would have given this lady a better chance of a successful outcome than Dr Chappel, was that there is no explanation in this answer or any other evidence as to the level of experience that you have to have in order to be in the one in twenty category as opposed to the one in forty category. It is simply a matter of speculation as to whether or not - - -

GAUDRON J: That brings you right back now to Justice McHugh's earlier question. What was the warning that was required?

MR HIGGS: Your Honour, the warning that was required and found to be required, that in light of the specific inquiry that was made by this lady, that she should be told of the possible risk of her ending up with a Neville Wran voice.

GAUDRON J: And of how it could be minimised?

MR HIGGS: You see, there is no evidence that, on the facts of this case, as between the operation that was carried out by Dr Chappel and the one that she could have gone off and sought from someone, she says, that was more experienced would have given, would have in any relevant way minimised the risk of this type of injury befalling her.

McHUGH J: Yes, but it seems to me that the problem that you have to face up to is this. It can be accepted that by reason of the presence of bacteria in the throat there was always a chance that mediastinitis could occur if there was a perforation of the oesophagus. But the question is, can experience reduce the risk of perforation and, if it can, then it seems to me your argument is in serious trouble.

MR HIGGS: Well, your Honour, to answer the question, or that which is implicit, as we understand it, and in an attempt to be helpful even though the answer might be unhelpful to me, that evidence was not challenged or cross-examined upon. It is the only evidence that bears on the question that your Honour asks and the result must be that there can be a different rate of perforation depending upon experience and the care, and there is no reference in the evidence as to the extent to which care has a part in that or experience, but given the robust and pragmatic way that the cases say that one should approach this type of problem when looking - - -

GUMMOW J: What does that mean? It just disguises the need for intellectual analysis? "Robust", what does that mean? We are not talking about physical exercise, we are talking about mental activity.

MR HIGGS: It is a little bit like the help that we get from the common sense approach with respect to causation, I suppose.

GUMMOW J: Yes, quite.

McHUGH J: Yes, well, I must say your argument gets its force only because the court has rejected the "but for" test. If the "but for" test was applicable, your argument would be dead in the water.

MR HIGGS: I know, there is no doubt about that and your Honour, the "but for" test that your Honour so well propounded in I think it was March v Stramere, works. But as I understand it, and I no doubt will be corrected if I am wrong, there, nonetheless at the end of the day, needs to be a value judgment made that one step in the robust and pragmatic, or intellectual process that one needs to exercise, in determining whether or not there is a question by reference to notions of a value judgment being made - - -

GUMMOW J: Yes, I know, but what are the values in the judgment? You do not get anywhere by saying "value of judgment", that just masks the problem again. I for one, am not going to repeat these formulae.

MR HIGGS: No, all right. Well, your Honour, to go back to the question, as I understand it, your Honour shifted - if the value judgment that needed to be made and needs to be better explained - from under the heading of causation to remoteness, and that is the reason why we put that in the alternative.

But, your Honours, in answer to your Honour Justice Gummow's question, in our submission, the way in which it should be approached is in this way, that the whole basis of liability being sheeted home to a defendant who is guilty of tort or a breach of contract is culpability, and if the damage that is suffered by the plaintiff - - -

GUMMOW J: Well, in a contract it comes back then to what the promise was.

MR HIGGS: The promise here is to exercise reasonable care and skill, so it is the same thing.

McHUGH J: Well, is it? I am not sure, because I think different results might flow from it. Under contract, you have to concede there was at least a nominal breach of duty and, therefore, the cause of action was complete, even if the plaintiff was only entitled to nominal damages. So, the real question is whether the damage then was reasonably foreseeable, is it not, that flowed from that breach? I suppose it is still a causation issue, you say.

MR HIGGS: It is a causation issue. And to come back to the question that your Honour posed, as we understand it, that your Honour is suggesting, perhaps, that we should have warned that this lady could have gone off to a more experienced surgeon to avoid, or to minimise this risk of perforation that is one of the three steps that led to her injury. As we understand that would - - -

McHUGH J: Yes, but, you see, your argument has tended to concentrate on the risk being another Neville Wran voice. But perhaps the duty was more complex than that; that she should have been told the stages, that there was a risk of perforation, and that it had these various complications, including one of them being mediastinitis. Now, if she had been told that, she may have gone to a better surgeon and the perforation may not have taken place.

MR HIGGS: But, your Honour, the evidence that the respondent relies upon here to prove that there was a surgeon that could have, outside the realms of speculation, given her a better chance that was of some value that was not negligible, the high point of the evidence available for the respondent to latch on in that regard is this evidence at page 118.

McHUGH J: Yes, I know, but that reinforces what, as a matter of commonsense, tells you that if you are going to have this instrument either put down your throat through the mouth, or in through the neck, as a matter of commonsense, one would think, that the risk of perforation depends on ability to perform the operation, and that is confirmed by what occurs at 118 of the book, and you failed to warn her about that. As a result, she undertook an operation when she may have been deprived of the opportunity of having it being done by a better surgeon and, although the chance of a bacteria infecting the oesophagus may have been present whoever did it, and there was always a chance that the perforation could occur, nevertheless, she was deprived of the chance of having an operation performed by a better surgeon.

MR HIGGS: But, your Honour, I do mean to be too glib in this, but that is the point. We say that the onus is on the respondent, or the plaintiff, to prove that there was a real chance of someone better being out there that could minimise the risk of the perforation, and I concede - - -

McHUGH J: Your doctor had done the operation six times and assisted six times. Dr Benjamin - I do not know whether he is still practicing, but he was certainly a famous Ear, Nose and Throat Specialist a few years ago - has done the operation 150 - - -

MR HIGGS: But - - -

KIRBY J: But the time will come when your client has done it 150 times. That is the nature of professional practice.

MR HIGGS: But, your Honour, there is no evidence that the difference in the risk of perforation being in any way other than speculative, being better when you compare the experience of Dr Chappel with that of Professor Benjamin. Dr Chappel was not a babe in the woods. His CV is in volume 2 - - -

McHUGH J: This is Bruce Benjamin, is it?

MR HIGGS: Yes, it is, your Honour. I do not cavil for one moment that Professor Benjamin is far more experienced than Dr Chappel. But that is not the end of the inquiry. In a case like this the easiest thing in the world for a plaintiff to allege is that there was always someone better out there to do the operation or that something more could be done. Now, if you accept that the plaintiff bears the onus of proof, surely, and that must be right because it is within the plaintiff's knowledge as to what he or she would have done and where he or she would have gone to, and the like - - -

KIRBY J: But it is not just subjective. You have three things running against you here. First, you have a very inquisitive patient who makes all sorts of inquiries. That is unusual but it happened and that is it - accepted. Secondly, you have a defect in advice, which you accept, and thirdly, as I understand it, you have an incidence of perforation which is the pre-condition to the risk that eventuated which is substantially higher, 100 per cent higher, in your client than apparently in Professor Benjamin. Therefore, the suggestion is, with this inquisitive patient, if she had been told, "Yes, there is a risk", that she might have gone along and got somebody else, maybe not Benjamin, but somebody else who was more experienced, who would reduce the incidence of perforation and thus the incidence of the infection that caused her disability.

MR HIGGS: It is true that of the three steps that led to this lady's injury, as your Honour Justice McHugh said, that the one thing that could be concentrated upon by the plaintiff was to see whether or not there was any real chance of minimising the risk by going to a person who could perform this operation and have a better track record with perforations.

McHUGH J: I suppose there is no evidence in this case as to what the standard of skills was of Chappel, was there, Mr Higgs?

MR HIGGS: There was evidence that he had done three of these procedures by himself whilst in private practice. He had done half a dozen as a registrar and he had assisted in half a dozen more. The evidence in that regard is to be found at page 131 and the better evidence is probably at 138 to 139 of the appeal book. At 131 Dr Chappel gave evidence first on this topic at lines 25 onwards:

Q. In 1983 had you performed this procedure before hand?

A. Yes, I had.

Q. On about how many occasions?

A. Abut a dozen times in my Registrar training and another two or three times since going to practice.

Q. And in relation to the two to three times whilst in private practice, would you have given the type of warning -

That is beside the point. Then he goes on down the bottom of the page - he did a similar procedure that involved the insertion of a rigid tube down the oesophagus called an "oesophaguscopy", or something like that, and he had done 50 or 60 of those as they were a very similar procedure, and then at page 138 that evidence in cross-examination was whittled down a bit because 131:

Your experience in relation to this procedure was confined to twelve operations as a Registrar?

And then over the page to line 20 he makes it plain that he has done two to three in private practice and that of half of the dozen that he did as a registrar it was only the six that he had done himself.

So there is no evidence, when you go to - you see, Professor Benjamin does not get up and say, "Look, you take this fellow's experience into account, and I would be better." He is never asked that.

McHUGH J: I know that, but the other thing is that, I assume doctors are like barristers. I mean, you can tell a good barrister the first day he appears in court, and his performance or her performance on the first or second day in court may be better than people that have been there 20 or 30 years. Maybe doctors are the same, I assume they are. Some people are brilliant, some are not. Is there any evidence as to the capacity of this particular doctor?

MR HIGGS: Dr Chappel?

McHUGH J: Yes. I mean, in terms of his general flair for this operation, his care and skill.

MR HIGGS: There was a finding by his Honour that he was careful and caring, in the judgment. There is - - -

KIRBY J: There is always going to be a hierarchy of skills, and I think a plaintiff cannot succeed simply because the plaintiff proves that there is somebody who would do a job better. That cannot be the law.

MR HIGGS: That is right. You see, the other thing, too, is that when you come to a judge - you see, if in fact this was going to be seriously asserted by the respondent, why is it that in order to elevate this assertion from mere - the assertion of there being a real chance that she would have had a better outcome if she had gone to someone else - why is it that they cannot, and they should not be required to ask the question, "Well, given that you've done 100 to 150, and you have got this man's track record, where does he fall in the one to twenty to one to forty as compared to you?"

You see, in that case that I will - that has cursed me for a long time, Ferrcom v Commercial Union, there was the judgment of Justice Handley in that case. That was a case where a crane turns over at Darling Harbour. The owner of the crane sues the insurance company, and it was one of those cases that went off because the owner of the crane had not given evidence that had he been warned of this particular exclusion clause that the insurance company only offered - would give insurance for a - registered as an unregistered crane, that he would - he did not succeed in proving causation, because he did not say that he would go off to other insurers and seek a policy from them that did not have this exclusion clause. Justice Handley in that case said that it is modification or a development of Jones v Dunkel that you draw the inference that the question that was never asked of Mr Ferrarese, who was the owner of that crane, was not asked because the answer would have been positively harmful. The reference to that is 22 NSWLR 389 at 418.

GAUDRON J: That matter does not advance you, does it, because you did not ask the question of your client either?

MR HIGGS: But he is not my witness, and the onus is not - it comes down to onus.

McHUGH J: You did not have the onus?

MR HIGGS: No.

GAUDRON J: But in the light of this evidence, which had been led - - -

GUMMOW J: There may have been an evidentiary onus.

GAUDRON J: In the plaintiff's case the evidence as to experience and care, that was the evidence, and then you have a doctor, of greater experience, who says he has never had this particular problem, although he does not say what his rate of perforation is, why has not the onus shifted to you?

MR HIGGS: For the same reason that the onus - I am sorry - - -

GAUDRON J: Yes, well, an onus to say, for example - - -

MR HIGGS: An evidentiary onus.

GAUDRON J: - - -well, I have had as much experience or sufficient experience to be as proficient as anybody else or I have got this flair which is great and which compensates for lack of experience.

MR HIGGS: Your Honour, that is not consistent with the approach that was taken, not only by the Court of Criminal Appeal in Ferrcom v Commercial Union but by the High Court on appeal when that question was determined in a very similar setting, that is what would you do in the event of the breach of duty not having occurred or the like? The reference to Ferrcom in the High Court is [1993] HCA 5; 176 CLR 332, I think. I can give your Honours that reference in a moment, I am sorry.

McHUGH J: Could you take me to the precise answer of the plaintiff when the hypothetical question was put to her as to what she would have done?

MR HIGGS: Yes, I think so.

HAYNE J: It is 37 to 38.

MR HIGGS: Yes.

KIRBY J: Was not there a debate in Ellis v Wallsend as to whether the question is what the plaintiff says retrospectively? Have not you to be a little bit cautious about this because, as Justice Gaudron said, once it has all happened everybody could be very wise after events.

MR HIGGS: No, that is so. Mr Justice Samuels in Ellis v Wallsend District Hospital said that you have to be very careful in assessing the evidence as to whether or not - because inevitably what will happen is that when you are asking someone what they would have done in the hypothetical situation of the warning being given and you are faced with the catastrophe having befallen you, the catastrophe has to colour the opinion that is expressed by the witness at the time.

KIRBY J: This is a stronger fact situation because in Ellis it was just a woman who went to the surgeon, whereas here it is agreed it is a woman who went and started interrogating the surgeon and making clear that she was very conscious of risks and wanted to make her own judgment on the matter.

McHUGH J: Given the answer at 118 and given her answer at 38, does not her answer at line 15 create some real problems for you as a matter of causation because she said:

I would have wanted the most experienced person, with a record and a reputation in the field.

MR HIGGS: But going to the most experienced surgeon does not necessarily mean that her chances of a better outcome are greater.

McHUGH J: It does mean this, does it not, that having regard to the answer at 118 there was a greater chance that she would avoid a perforation and, therefore, she had a greater chance of avoiding the mediastinitis.

MR HIGGS: I cannot cavil with the finding that she would, in all likelihood, if warned, not have had the operation at that time and would not have had the operation performed by Dr Chappel, but then I come back to the point that I have already developed, that we say that you cannot stop there. You have got to then ask whether or not this risk that she ultimately faced, and would have faced anyway, was the loss of a chance that had some value.

McHUGH J: One would have thought it had a high value because - perhaps a 95 per cent chance.

MR HIGGS: But that is - well, the point we say, that it is speculation, that there is no evidence of that. The onus is on the plaintiff. The evidentiary burden has not shifted. That is something that, in some circumstances, depending upon the facts of a case, can occur; but not here, when the question is not asked by the party that bears the onus of proof, for the very same reasons, or process of reasoning, that was adopted by Justice Handley in Ferrcom.

KIRBY J: Can I ask, is it agreed that the condition from which the respondent suffered has, as a precondition, perforation?

]

MR HIGGS: Yes.

KIRBY J: And is it agree that the incidence of perforation in operations performed by Professor Benjamin was significantly lower than the average incidence of perforation by other surgeons?

MR HIGGS: No, because you are looking - this evidence at 118, what are we looking at? We are looking at here he is in a unit that has a range of staff, the experience of which we have no idea about at all. Now, I appreciate that this is something that the person who ran this trial for the defendant at first instance has to cop, but this evidence came out of the blue. There was no report about it and, you then ask yourself what weight is to be given to it? Now, is it the situation that you have to say if that type of evidence is led, and it goes no further than the evidence that is set out at page 118, that that is not only evidence of the fact that perforations are not uncommon, which is the way that this evidence was used and only used by the trial judge that had the benefit of looking at the witness give the evidence, and that impression, we would submit, is of significance in the Abalos sense. You see, if you read that answer and give emphasis to the word "could":

occur as often as one in twenty, thirty or forty -

then that can colour that answer in a way that makes it perfectly legitimate for the judge to go not that step further and say that the evidence showed that Professor Benjamin had a significantly better strike rate than Dr Chappel.

GAUDRON J: But you can infer from the evidence that he had significantly greater experience. In fact, the evidence is directly to that effect, that he had significantly greater experience, and he relates the risk of perforation, at page 118, to experience.

MR HIGGS: But what experience? The thing is is that there are many things that are done in any field of professional indemnity or an endeavour that requires skill that is mastered earlier in the piece rather than later in the piece.

GUMMOW J: So? Well, what follows from that - - -

MR HIGGS: And in this case, you could hardly say that Dr Chappel was - sorry?

GUMMOW J: What follows from that general proposition?

MR HIGGS: I am being ably led. That you get to the one in forty more quickly. There is a word - what is the word? - monotonically is apparently an expression that your Honour Justice McHugh is enamoured with. You do not assume that there is an ever constant, increasing skill by reference to the number of operations that you carry out.

KIRBY J: But it is a false logic to say that the average strike rate of complication is between one and twenty and one in forty, and here is a surgeon, Professor Benjamin, who has carried out 150 without a single perforation.

MR HIGGS: Well, 100 to 150, I know I might be nitpicking but - - -

KIRBY J: Nevertheless, even if it be 100, it is still five times better than the average strike rate.

MR HIGGS: But, your Honour, the one in twenty is not necessarily the average strike rate, and it is not - - -

KIRBY J: Well, he says at 118 that they have done x-ray surveys and I thought he said that they have found that:

it could occur as often as one in.....thirty or one in forty.

MR HIGGS: It could, and you see this was a study, there is no evidence of the size of the study, that one hospital that threw up a result that, not only is it dependent upon experience, but it is also dependent upon care. There is no attempt made - - -

KIRBY J: No doubt the team and the facilities, and all sorts of other factors, but the fact of the matter is that you can reduce the incidence of perforation by the choice of surgeon and skill, and if the patient wants to know is there a risk, and is not told that, and if had been told it would have taken some inquiries to find where the risk could be minimised, well you, it seems, have to bear the risk.

MR HIGGS: But that, with respect, is not the inquiry. The inquiry is that this lady suffer the indignity of being exposed to a greater risk of perforation in the hands of Dr Chappel as compared to others. It is inevitable that you could always assert that in any procedure of this type, that there will be a range of risk, depending upon experience and care, and there are undoubtedly situations where there would be people that Dr Chappel would be better than. The one in twenty is not necessarily a figure that is an average. It is a figure that relates to this unit by reference to this - - -

GUMMOW J: Any statistician would laugh at this sort of evidence, really. It is just comical, in my view, comical.

MR HIGGS: Exactly.

KIRBY J: It is the only evidence that was before the primary judge.

MR HIGGS: And is that enough to ground the finding of the type that Justice Handley wanted to latch on to?

GUMMOW J: That does not mean you win, though.

MR HIGGS: Your Honour is teasing me. It should, if the onus has not been discharged, and you see what is more, I come back and I am sorry if I repeat myself, it comes back to the way in which the trial judge used this evidence. Not only did he confine the way in which he used this evidence by saying that it went, and went only, to showing that perforation was not uncommon. He also went on - even though he mucked up, with respect, the onus of proof - he went on to say that there was no evidence that the risk was not the same, and he went on to say that it would be speculation to make that finding.

Now, the fact that he, we would submit with respect, had the onus question wrong means, however, that when you go to that finding, by virtue of the observation that he had made that in that inquiry the finding of the risk would have been the same, would have been mere speculation, means that he, being cognisant of this evidence - I mean to say he refers to it in his judgment. The very submission that he is addressing, we would submit, even though it is my submission, is directly on point. The submission that he is dealing with is whether or not this lady lost the chance of a better outcome or lost the chance of minimising the risk by deferring it. He goes on to say that in relation to that very submission, that it would be speculation that there was no evidence. He is cognisant of this evidence, and he does not accept it in the way that the respondent is now contending for.

GAUDRON J: As you analyse the onus of proof issue as you define it, that may be a problem going to the assessment of damages, but in the face of evidence which supports an inference that the risk of perforation is reduced by experience and that the plaintiff would have sought a more experienced counsel, why does not the onus of proof then shift to you to establish that, in fact, the risks would have been the same contrary to the inference to be drawn from the evidence led in the plaintiff's case?

MR HIGGS: Because the trial judge that looked at this evidence - the only way - he does not say, and not only is the risk not the same, it is different because of this evidence at page 118, and it is no answer to say that there is some advantage to the respondent in that regard because he is - - -

GAUDRON J: I do not think you are answering my question.

MR HIGGS: I do apologise, I am trying to.

GAUDRON J: The question is why, in the face of the evidence in the plaintiff's case, that experience can minimise the risk of perforation and that the plaintiff would have sought a more experienced surgeon, does not the onus then move to you to disprove that or to show that the risks would have been the same? I am talking in terms of causation, not in terms of the assessment of damages.

MR HIGGS: The starting point is this, that in Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 at 416, in the majority judgment in the last paragraph, reference is made to the possibility of there being a shift in the onus of proof from the plaintiff to the defendant with respect to questions of causation.

GAUDRON J: I am just asking you, though, to address that question that really is there adverted to. It is not said that the onus does not shift. It just says that in Canada these issues have been discussed in the context of a possible shift and I am talking, really, in terms of an evidentiary shift in light of the evidence presented in the plaintiff's case in this case.

MR HIGGS: Your Honour, we submit that in relation to the question of causation, that is a threshold test before you get to the question of damages.

GAUDRON J: Yes, I am asking you to address it in terms of causation.

MR HIGGS: Because this evidence at page 118 is just simply not good enough to get to the stage where you make the inference that she, the plaintiff, has lost anything of any worth.

GAUDRON J: An opportunity to have an operation performed with a reduced risk is surely something of value.

MR HIGGS: But there is no evidence that there is going to be - - -

GAUDRON J: How to value it might be a different question.

MR HIGGS: What the plaintiff has to do, as we understand it according to Sellars v Poseidon, is to show in relation to the question of causation as to whether or not she has lost a chance that had some value.

GAUDRON J: Well assume that the evidence does show that. Why is the onus then not on you to counter it? Assume the evidence is capable of doing that, and the trial judge takes the view that it does do that, why has not the onus shifted to you to counter that to lead evidence to the contrary?

MR HIGGS: If, in fact, the - - -

GUMMOW J: That is what I thought. Sellars is a case about loss of an opportunity to acquire a commercial benefit.

MR HIGGS: Yes, that was the Pagini contract, if I recall.

GUMMOW J: Yes. Well, how does that immediately bear on this case in the particular question Justice Gaudron has been putting to you?

MR HIGGS: Firstly, it answers the query that is raised towards the end of the judgment in Bennett. It resolves that question that the onus should remain with the plaintiff and, secondly, we say that - - -

GUMMOW J: Does it say that? Does it refer to Bennett?

MR HIGGS: Yes, it does.

GUMMOW J: And this particular passage in the joint judgment of - - -

MR HIGGS: No, it is not that specific.

GUMMOW J: No, I did not think so.

MR HIGGS: But, your Honours, if, in fact, your Honours are of the view that this evidence at page 118 is sufficient to enable an inference to be drawn that there was a chance of some value over and above the chance that Dr Chappel offered this lady to avoid the risk of perforation, then it would be open, depending upon the weight that the trial judge gives to it, for an inference to be drawn of the type that is posed by your Honour Justice Gaudron so as to shift the evidentiary onus. But there was no - firstly, we say that the evidence at page 118 is not - - -

GUMMOW J: What about the passage in Bennett at 420, where there is a citation of Sir Owen Dixon's judgment in Betts v Whittingslowe, 420, the second paragraph, "In practice." A similar sort of problem, "in the absence of any sufficient reason to the contrary" - - -

MR HIGGS: Is your Honour looking at the passage starting, " In practice, it is now always necessary"?

GUMMOW J: Yes.

MR HIGGS: And then, down, "a `breach of duty coupled with an accident of the kind - - -

GUMMOW J: Yes.

GAUDRON J: Yes. There are some occasions when there is a shift of the evidentiary onus when it comes to causation and, particularly, when you acknowledge that there was a duty of the kind in question. You acknowledge that duty because it has some causative significance. You do not acknowledge a duty of care that has no causative significance to the injuries that actually were sustained.

MR HIGGS: But, your Honour, simply because the - if that is right, it would mean that the temporal connection, and it alone, would be sufficient to establish causation and that, we would submit - - -

GAUDRON J: I do not think it means that. It just does mean, though, that, at some stages, there is a shift of the evidentiary burden.

MR HIGGS: But, your Honour, that is so - - -

GAUDRON J: And it comes back, of course, to the question that Justice McHugh asked at the earlier stage of this proceeding: what exactly was the duty?

MR HIGGS: Your Honour, if in fact the onus shift is for, firstly, the trial judge - it is an assessment for the trial judge to make and it is not an assessment that he did make. On the contrary, he made the assessment that on this particular topic, even though the onus of proof point was one that he got wrong, he said that it would be mere speculation.

GAUDRON J: That is what we are asking, or that is what I have been asking. That has been the thrust of my questions. Did the trial judge get the onus wrong?

MR HIGGS: He said that it was for us to show - - -

GAUDRON J: On the question of causation.

MR HIGGS: Yes, in relation to the question of causation. He said that it would be mere speculation that the risk could be the same, and the converse applies, that it would be mere speculation that the risk would be greater. There are two answers that we have to it: we say, firstly, that the evidence at page 118 is not sufficient to give rise to an inference as would shift the onus, because it does not go far enough; and, secondly, in light of his Honour's finding that I referred your Honours to, it is not an inference that his Honour did in fact draw, that he had that special Abalos advantage and he declined to make a finding of the type or to make a finding that would give rise to the evidentiary onus shifting in the way that your Honour poses.

McHUGH J: Could I ask you, would you agree with this analysis of the issues: that the plaintiff's case is that she lost the chance of avoiding the risk of perforation by having the operation carried out by a more skilful surgeon than the defendant and that that involves two subissues; one that experience or skill can reduce the risk of perforation and, two, that the defendant is not as skilful in performing the operation as others?

MR HIGGS: That they are issues?

McHUGH J: Yes.

MR HIGGS: I concede that. That is so, and we say that the evidence does not go so far as to support the second subissue. I think that that is the point.

McHUGH J: Yes, that is the way you put your point.

MR HIGGS: Yes.

McHUGH J: So the real question is whether - you would say there is no evidence which casts any evidentiary burden on you that the defendant is not as competent as others or as skilful as others in carrying out this operation?

MR HIGGS: So as to give her - to pick up the words of Sellars - the loss of a chance of some value that was other than negligible; that it is mere speculation. It probably is a gloss on what your Honour says, but yes.

HAYNE J: And is it a loss of a chance of avoiding the risk of perforation or a loss of a chance of reducing the risk of perforation?

MR HIGGS: It is never the loss of a chance of avoiding the risk of perforation.

McHUGH J: No, that is right. I used the term "avoiding" but it is "reduce".

MR HIGGS: Always, as I think the learned President said in his judgment, the scope of the duty was simply to arm this lady with the choice as to whether or not she would expose herself to the risk.

In answer to a question that was posed a little while ago by

Justice Kirby - I think it was a question that your Honour asked - there is a case in Canada that is referred to in Rogers v Whitaker called

Reibl v Hughes (1980) SCR 880. In Canada the situation is different because there Ellis v Wallsend District Hospital does not apply in relation to the question of causation. It is more of an objective test that applies than a subjective test. Although, when you read the judgment, it is described as an objective/subjective test, that you look at what a patient would have done, judging that objectively, but taking into account, to some extent, but to a lesser extent than occurs in Ellis v Wallsend District Hospital, the particular circumstances of the particular patient. But it is an emphasis more on the objective than the subjective.

GUMMOW J: There is a later decision in the Supreme Court of Canada called Lawson v Laferriere (1991) 1 SCR 541, which struck me as a useful discussion of this by Mr Justice Gonthier at 605. Have you looked at that?

MR HIGGS: No.

GUMMOW J: Had your diligent junior unearthed that?

MR HIGGS: No, but my diligent junior, your Honour, has done this. There is a useful review of the authorities in a recent unreported judgment of the Court of Appeal in New South Wales by the President, Justice Mason and Justice Beazley that reviews all of the authorities including McGhee and that line of territory and it comes to the conclusion that the onus of proof rests with the plaintiff. And in Canada there is also a review of all of the authorities in Farrell v Snell which is one of the cases referred to in the footnote that I referred your Honours to in Bennett.

We have copies of those unreported judgments and if I could just hand them up to your Honours. I do not propose to take your Honours through them. The part of the judgment of Justice Mason in Bendix is from page 3 to 8 point 5 and in the judgment of Justice Beazley it is from pages 25 to 29. In Farrell v Snell which is - I think that is a 1990 authority in the Supreme Court of Canada - there is a useful summary of the cases from page 296 to 301. The point is made in one of the cases referred to in that case, in a case called Haag v Marshall that McGhee and the like -and it to some extent comes back to the question that your Honour Justice Gaudron posed - that the question that is posed in Bennett as to where the onus should be is really not an onus one, it is an inference one.

GAUDRON J: There are two questions in Bennett, really. One is in the majority judgment which, perhaps, is where the onus will be? The other is, what is sufficient to discharge the onus?

MR HIGGS: Yes. Well, I do not think that I can develop the argument any more than I have without repeating myself. I should also tell your Honours that the reference that I have made to Mr Justice Handley's judgment in Ferrcom v Commercial Union was considered by the Full Court of the Federal Court in Dominelli v Karmot [1992] FCA 550; 38 FCR 471 but 483 point 8, we say that it does not significantly impact upon it, but it is an authority that did deal with it.

GUMMOW J: Do you reagitate what seems to have been your reliance on Lord Hoffmann's speech in the Bruxelles Banque case?

MR HIGGS: Yes. Your Honours, you see when it comes down to - - -

GUMMOW J: It may be the passage that Justice Handley set out at 327 with the example of the skier.

MR HIGGS: Yes, as with all analogies, it is not completely on all fours because in that case the doctor does not profess to be an expert in mountaineering, but even so, we say that when you look at the valuation cases, certainly what is required overseas to give rise to an inference that is favourable to a plaintiff, on any view, is more than the evidence that we have here; that they are far more scrupulous in sheeting home to a plaintiff a burden to show that there is damage that is a result of the ongoing culpability, whether it be breach of tort or breach in contract, that is complained of.

It is not something which would necessarily stop your Honours but it would be a very different approach if the evidence at page 118 - it would be a different approach to the approach that has been taken overseas if this evidence was sufficient to prove causation and the valuation cases are helpful. There is a reference in the written submissions to the MGICA Case being a judgment of Mr Justice Lindgren that distinguishes the House of Lords' decision in Banque Bruxelles.

In Banque Bruxelles the House of Lords would deprive a plaintiff of damages regardless as to whether or not the improper valuation would have led to a no transaction case or a successful transaction case, the no transaction case being that if the valuation had been properly done, the House of Lords there held that even if the lender would not have lent the money at all and suffered the ignominy of the unexpected fall in the market, the plaintiff still would not be entitled to damages, the lender.

Justice Lindgren in MGICA declined to follow that, making the distinction there that in a no transaction case the plaintiff should succeed, his Honour's approach being that your Honours, the High Court, had a more compensatory frame of mind than the House of Lords, I think that is how he put it. But he also held that in a successful transaction case a distinction should be made between a loss that befalls a lender by virtue of the improper valuation and for which compensation can be given, as opposed to the loss which can be sheeted home to a negligent valuer for the free fall in the market that would not be compensatable even though, in a broad brush way, one could say that an unexpected or an unusual dip in the market is always, in general terms, within the bounds of that which is foreseeable.

GUMMOW J: The House of Lords' judgment has also been considered in an article by Professor Stapleton in (1997) 113 Law Quarterly Review, page 1. She takes a very critical view of Lord Hoffmann's methodology in all of this. It has not had many favourable responses, I would have thought, from what I can - - -

MR HIGGS: But in relation to the successful transaction-type case, there is not the same degree of criticism of it, we would submit, and it is certainly not the type of criticism that - for example, it did not attract that type of criticism in McElroy, the New Zealand case that is referred to that considers Lord Hoffmann's judgment in Banque Bruxelles, it also being a negligent valuation case.

The only other point in the appeal is the last point that we raise in relation to the question of damages and, as we understand it, the point is taken that the notice of appeal does not sufficiently raise this question. In our submission, if the appeal raises the question as to whether or not the damages claimed and proved by the plaintiff were causally related to the breach of duty, if the evidence at page 118 is capable of discharging the onus that rests upon the plaintiff, then, at worst, we would submit that the appropriate way of assessing damages is to say that she lost a 50 per cent chance of a better outcome.

GAUDRON J: Where do we get this 50 per cent from?

MR HIGGS: It is the difference between the one in twenty to the one in forty. I did law to avoid maths, and I hope that I will not be screamed down, but I am assured by those who know better that that is not - - -

McHUGH J: Well, you have got a mathematically-minded junior.

MR HIGGS: I have, your Honour.

GAUDRON J: That involves reading that evidence in a certain way, which is not necessarily the ordinary reading of it.

MR HIGGS: Well, it is only in a way adverse to us and, if you are to give any weight - that is the only evidence there. I mean to say, if it is evidence that is good enough to beat us to death in relation to the issue of causation, then, surely, we pose, that it is good enough to kick in when your Honours consider the question of damages and that, accordingly, the damages that she claimed and proved - those damages that she claimed were full compensation - is not something that was causally related to the breach of duty. She should not be shut out of a verdict at all, she should obtain a verdict - we do not suggest otherwise - and that the damages should be assessed in a Malec way by halving them.

GAUDRON J: I understand what you are saying, but let us assume one took the view that there really was not a proper finding as to the loss of chance. Why would the matter not go back for a retrial on the issue of damages, as to the value of the chance?

MR HIGGS: The point is, we would submit, that if it is to go back it should go back on causation and that, your Honour probably heard. That is, we would submit, if that evidence is good enough for causation, it must be good enough for damages because otherwise the inference that leads to the shift in the evidentiary burden would not be one that would arise.

GAUDRON J: Well, it is really a question of the finding made by the trial judge, and it is a question whether, indeed, he even approached damages on the basis of valuing a chance.

MR HIGGS: Your Honour, he certainly addressed the problem. The submission to that effect is referred to in various parts of his judgement. At 284 lines 30 to 35, 286 at about line 45, and 293 line 44 to 295 line 25, and there his Honour took note of the submission but said that Malec did not apply, it being limited to - - -

GAUDRON J: That is what I am saying. If his Honour did not approach the matter on the basis of a loss of a chance, there does not seem to be any finding as to the value of the chance.

MR HIGGS: There is no finding as to the value of a chance, but the only evidence that could conceivably be relevant to that assessment is the very evidence that the respondents rely upon, as we understand it, to enable them to succeed on the question of causation and hence - - -

McHUGH J: What is his Honour saying at 295, Mr Higgs, line 12:

I do not propose to approach it solely on the basis of a loss of opportunity although I do take that into account.

What does that mean?

MR HIGGS: Well, your Honour, with respect to his Honour, it is hard to understand what it means because it is first dealt with by his Honour at 284, lines 30 to 35, after considering the various authorities, his Honour found that:

It follows in law that in relation to causation there should be no application here of loss of chance principles as discussed in Malec.

McHUGH J: You would not dispute that, would you?

MR HIGGS: Well, the submission now is in the alternative if, in fact, causation. Malec only dealt with damages. It did not deal with the question - - -

McHUGH J: Yes, exactly, that is what I am saying. On your argument, loss of chance is the damage, and from beginning to end of your case, that was your argument, was it not?

MR HIGGS: Yes. No, I can see that your Honour. I appreciate what your Honour says. At 293 line 44 to 295 line 25, there is a discussion by his Honour of the various authorities in relation to this topic, and his Honour refers to it being a difficult area to assess.

GAUDRON J: That passage to which you took us at page 295, seems to be referring in context only to the loss of consultancy.

MR HIGGS: Yes. Your Honour, there was one - - -

GAUDRON J: I find nothing in that section of the judgment to suggest that his Honour did approach it on the basis of valuing the loss of a chance.

McHUGH J: Having regard to his Honour's discussion of Hotson, one would assume that his Honour took the view that percentages had nothing to do with causation and that that was something that had to be proved on the balance of probabilities. Having rejected your argument he assumed that the plaintiff had made out her case, damage being proved, and the next question was quantification.

MR HIGGS: Yes, and also, at page 281 of the judgment, about line 42, his Honour says, "This leads me to the issues raised by Malec's case". That, of course, was in the context of my argument. His Honour goes on:

At the very start of the majority judgment in Malec, a passage appears which makes it clear that the principle only applies to contingencies for which the defendant is not responsible.

Which was something that, with respect, we do not understand, although the same point applies that it is confined to the application to the issue of causation. That is picked over the following page, at line 15.

McHUGH J: Perhaps one thing you might help me on. I am quite confused in my mind about this issue. Assuming, in your favour, that this is a loss of chance case and your submission is broadly accepted, that 50 per cent is the proper discount factor, how do you deal with the period between when the operation occurred and when it was likely to have occurred? How do you deal with that in terms of determining the damages?

MR HIGGS: You would have to compare - sorry, your Honour is assuming that causation has been established on the balance of probabilities and if it just a question of assessment of damages?

McHUGH J: Yes.

MR HIGGS: If, in fact - - -

McHUGH J: Because on the hypothesis she would not have been having the operation maybe for up to two years hence, so she suffers during this period. I just have not worked it out.

MR HIGGS: She would suffer problems that arise from the loss of power in her voice that she would not have suffered over that period. On the other hand, she would have continued, in no way abated, the problems that she had with the swallowing.

McHUGH J: Except it was accelerated, was it not? Has that to be taken into account in some way? Her damage was accelerated, her suffering and damage was accelerated.

MR HIGGS: Yes.

McHUGH J: I am just not clear at the moment in my thinking as to how we would deal with the question of acceleration. It is not as if she had an instantaneous alternative in that she has lost a 50 per cent chance of something occurring; this is something that is going to be postponed.

KIRBY J: It seems a fair complaint that neither the grounds of appeal nor the relief that you seek by the orders you set out at pages 336 and 337 deal with the last point you have raised in your submissions.

MR HIGGS: If, in fact, your Honours are against me on the sufficiency of the notice of appeal, we would apply to amend the notice and to have leave in that regard.

KIRBY J: It cannot just be left. You have to have a document. You have to set out what you seek.

MR HIGGS: Your Honour, we could undertake to have that document done and to be filed shortly but the relief that we would seek is for the award of damages to be reduced by reference to the evidence at page 118 - - -

GAUDRON J: Or remitted?

MR HIGGS: - - -or alternatively, that it be remitted for the determination of that question. They are our submissions.

KIRBY J: We tell courts below to get their record in order. I think perhaps we ought to apply the same principles to ourselves.

GAUDRON J: Before you commence, Mr Donohoe, do I take it, Mr Higgs, you do, in fact, seek leave to amend your notice of appeal?

MR HIGGS: Yes, I do.

GAUDRON J: We perhaps should hear Mr Donohoe on that question before he commences his other submissions.

MR DONOHOE: That application is opposed and I am in a position to prove, and I will need to take your Honours to the appeal books, that the case litigated below was not the case that is being advanced upon appeal and, that had it been advanced, it could have been met by a great deal of evidence.

GAUDRON J: In that case, we will defer consideration of the question of amendment of notice of appeal until we have heard your submissions in globo.

MR DONOHOE: I am obliged, your Honour, it will assist me. We start our submissions from an entirely different commencing point from that adopted by the appellant. The case advanced by the respondent was never a loss of chance case. Loss of chance has developed this century from the seminal case of Chaplin v Hicks. In the context of a loss, the only character of which was a loss in the financial sense, so the - - -

GUMMOW J: But Chaplin v Hicks itself is a curious case because it is not like a lottery case. In other words, it is not a case of each integer involved in the competition or whatever you call it being the same and one being left out, as in marbles going into a barrel. These people were all different. Why do they each have an equal chance of winning the competition? I just do not understand. And then to translate that into terms of medical patients seems a bit curious too.

MR DONOHOE: Yes, indeed.

GUMMOW J: They are medical practitioners and professional expertise is being exercised.

MR DONOHOE: We would say this: Chaplin v Hicks is there, and Chaplin v Hicks has inspired claims for loss of a chose in action where there is no damage such as there is in this case, and it has been extended - and I am not here to argue against it - to the situation where a person goes to a doctor for diagnosis, and the doctor wrongly diagnoses, so the plaintiff then advances a case in substance like this, "I went to the defendant. The defendant did nothing to me. Because he or she did nothing to me, I lost the opportunity of earlier intervention, and that chance is something of value that I have lost." That case may come before this Court in the fullness of time, and has come before other courts, but it is not this case. This plaintiff simply said - - -

KIRBY J: That is something like CES, is it not?

MR DONOHOE: It is a little like CES. The plaintiff in this case said, "I was suffering from a sore throat" - and the extent of that suffering I need not develop for the moment - "I went to the appellant. The appellant failed to warn me" - the content of that warning I will come to in due course - "Because of that, I undertook that operation on the basis of the information furnished to me." She said, "I am a person accustomed to making difficult decisions. I do so on the information furnished to me. But I was not furnished with this information, and I underwent the operation and I suffered damage."

In terms of analysis of the trial, her cause of action in contract was complete when the evidence established that there was the relevant risk and, in breach of the term of his contract, her medical adviser failed to furnish her with advice in his surgery. Her cause of action in tort was complete when she established the duty, which was not in dispute, the breach of the duty and that she underwent the surgery.

McHUGH J: I am not sure that is right. You are now approaching it as if it was what is called "billiard ball causation". If you look at it in terms of billiard ball causation, she consulted a doctor about having an operation and he said, "I'll carry out the operation, and you need the operation," and she did it. What she complains about is that he failed to tell her something which would have caused her to take an alternative route, and that puts you in a very different type of causation.

MR DONOHOE: With respect, I see that method of analysing it, but may I, just for the sake of completing this analysis, say that the way we put the case is that but for that advice she would not have undertaken the operation and would not have sustained physical injury and that on the findings of the trial judge she would not have undertaken the operation in which, without controversy, she sustained injury. I just take the case that far for the moment. I accept - - -

HAYNE J: But without the reference by her general practitioner to this surgeon she would not have undergone the operation.

MR DONOHOE: Indeed.

HAYNE J: Is the general practitioner liable? Plainly, no.

MR DONOHOE: No, indeed. I am obliged to your Honour and adopt that.

HAYNE J: I would not embrace it too closely, Mr Donohoe; it was not intended to assist you in the development of the argument.

McHUGH J: Because your argument is very much a "but for" argument, and that is why I referred to billiard ball causation: but for the ball hitting the other ball, it would not have moved. Yours is a different type of causation.

MR DONOHOE: With respect, may I - - -

McHUGH J: It is a "by reason of" type of causation.

MR DONOHOE: I see the way your Honour puts it. May we develop - I am not running away from the question. In answer to Justice Hayne, the reason I accepted that was in the way this case was presented the general practitioner did not, in a common sense way, understood in a common sense way, play any part in the operation. We say that that puts the general practitioner in a different position. In a sense, to develop my argument, with all its flaws, we say that Mr Kennedy, in - - -

McHUGH J: What has got the flaws, your argument, or - - -?

MR DONOHOE: With all the flaws it may have that may be exposed. Mr Kennedy, counsel for the plaintiff, in effect had established his case when he established those elements, it was the defendant, and that is what makes this case, we respectfully submit, heretical - - -

GUMMOW J: This was brought both in contract and tort, was it not?

MR DONOHOE: It was.

GUMMOW J: There may be a distinction.

MR DONOHOE: Yes, but, we respectfully submit that it is crystal clear. Once one analyses what was being asserted that, certainly as a matter of pleading and as a matter of onus, the whole of this argument about risk lay at the feet of the defendant, because the defendant was saying in substance, "Oh, it is true, it is true that you have a bad voice". But what we want to say is this, "There was an ineradicable risk in this procedure. We accept that, because we are bound to on the findings, you would have deferred this operation for some period." We say that whatever that period - let it be called a year, three years, five years, 10 years - you would then have undertaken the operation and the risk would have been identical."

GAUDRON J: So, the defendant was saying at all stages, the damage was not the physical damage sustained by the plaintiff but the loss of a chance?

MR DONOHOE: With respect, the defendant never ran either case - - -

McHUGH J: Well, yes, surely it did. Is it set out at page 279 of the appeal book where the judge said that was the defendant's case.

MR DONOHOE: If your Honour goes to 278, his Honour identifies this as a submission by Mr Higgs, and I undertook and I should now begin to demonstrate that this was not the way the trial was conducted.

GAUDRON J: How else could it be but - I mean, it may not have been the way you conducted the trial. Mr Higgs was entitled to say, "Well they have conducted it on one point. I am prepared to put my submissions that that is on the wrong basis, and if that causes complications for the plaintiff, so be it."

MR DONOHOE: With respect, I will seek to demonstrate that Mr Higgs did not do that. He thought - this was not the case litigated. I accept that I am saying a great deal, but I can demonstrate that it was never pleaded and it ought to have been, that when the evidence of the plaintiff - - -

McHUGH J: What do you mean "pleaded"? I mean, you are the plaintiff.

MR DONOHOE: Yes.

McHUGH J: You are the one that has to do the pleading. What has the defendant to plead?

MR DONOHOE: The defendant has to plead, under the Supreme Court Rules, any fact not arising out of the preceding pleading upon which he relies to meet or diminish the plaintiff's case. The New South Wales Court of Appeal, in the decision of Government Insurance Office v Phillips, an unreported decision of the New South Wales Court of Appeal delivered on 27 August 1992, was concerned with a defence of what is loosely called "inevitable accident" and his Honour the President, Justice Kirby, said this:

Under the rules made pursuant to the that Act it is now necessary for a party to give proper notice to another of any defence which, if not pleaded specifically, may take the opposite party by surprise. In particular, where matters of fact not arising out of the preceding pleading could cause surprise, the matter of defence should now be specifically pleaded. The whole trend of modern pleading has been to avoid litigious ambush.

McHUGH J: It does not seem to me to have much to do with this particular case. Inevitable accident is a well-known defence, very much similar to volenti. But here the plaintiff defendant is saying, "Look, on the facts that the plaintiff relies on, the case is totally misconceived." It has got nothing whatever to do with the facts of this case. This is really a case about lost opportunity. That is the only case the plaintiff has got. Why has the defendant to plead that?

MR DONOHOE: For this reason. The case that was run was this: you would have proceeded with the operation proposed by Dr Chappel then and there. That is a profoundly different case to the case now being advanced. If the case being - that, I can demonstrate, that that proposition was put to the plaintiff eight times.

GAUDRON J: Yes, but that takes it - that is one line of defence, but in paragraph 3 of the defence the defendant has denied paragraph 9, which is a denial of causation.

MR DONOHOE: Yes.

GAUDRON J: Is that not enough to bring this issue into play?

MR DONOHOE: It was enough to permit the cross - - -

GAUDRON J: Excuse me, and has denied paragraph 11.

MR DONOHOE: Indeed.

GAUDRON J: Which is that she sustained the injuries set out in paragraph 10.

MR DONOHOE: Yes.

GUMMOW J: In consequence.

MR DONOHOE: In consequence, yes, I accept that.

GAUDRON J: Well that puts causation and damage in issue.

MR DONOHOE: I accept that and that justified the way in which the trial was conducted, that is to say, by constantly putting to the plaintiff, "You had a severe condition, you would have undertaken this operation then and there". The argument being advanced in this Court on causation is, and the only argument on causation advanced in the Court of Appeal was, that given that she would have deferred the operation, the risk of mediastinitis later in time whenever that might have been was relevantly identical. That was not a fact in the preceding pleading and was a substantial issue, not litigated in the course of the trial. She said in answer to - - -

GAUDRON J: It was the subject of submissions. It may not have been the subject of specific evidence but it was certainly the subject of submissions in the trial.

MR DONOHOE: Yes, I accept that. I accept that.

GAUDRON J: It did not come out of the blue.

MR DONOHOE: With respect, may I take the Court - the passages upon which I am rely are strongly, we respectfully submit, supportive of my contention. If the issue had been raised, as we respectfully submit it ought to have been raised, then Mr Kennedy - let it be assumed, and I do not want to get into an argument about onus for the moment, counsel for the plaintiff would have said to the plaintiff, "I know you say that you would not have undertaken the operation at the hands of Dr Chappel." He would have said, "But I now want you to assume that you would have had to undertake this operation later" and he would have explored with her when she would have undertaken it and he did not.

GAUDRON J: If counsel did not do it, that may be counsel's fault. You had the plaintiff in the witness box.

MR DONOHOE: Yes.

GAUDRON J: Right at the beginning of the case?

MR DONOHOE: Indeed.

GAUDRON J: And you had the pleadings?

MR DONOHOE: Indeed.

McHUGH J: The defence that is being run is only an argumentative plea of, in the old terminology, not guilty at common law. It is an argumentative defence of not guilty.

MR DONOHOE: No. May I take issue with that? The argument now being sought to be run is, upon analysis, confession and avoidance.

McHUGH J: No, it is not, they deny. The defendant says, "Your case is totally misconceived. You do not understand the nature of the facts and what legal issues arise from them." That is the defendant's case. You are running this as though it was a billiard ball causation type of case. Now that is a total misconception of this case. So your case fails. In so far as you had a case, it was a loss of chance case. That was the way the argument was put in the way I read the material.

MR DONOHOE: If that were truly the way the trial had been run, and given the finding that she would have deferred the operation and sought more skilled hands and so on, then it would have been a live issue at the trial when the later trial would have occurred and the whole subject of the relative likelihood of infection from mediastinitis would have been properly litigated and it was never litigated.

KIRBY J: The issue of damage was put in contest. If the correct legal classification is "loss of a chance," may it not be that it is in your client's interests that, if the trial addressed itself to the incorrect issue, that there should be, on the record, the application which the present appellant now foreshadows to have the matter sent back or determined here - if not determined here, sent back to have the correct legal classification addressed?

MR DONOHOE: Indeed. May we say that we particularly took that point in the written submissions so that we would have the benefit of seeing how it was put. We have prepared, and handed to your Honours, the pleading which we contend would have complied with the rules of the Supreme Court.

McHUGH J: What sort of a pleading is that?

KIRBY J: It certainly is not the common law pleading on which Justice McHugh and I were brought up.

MR DONOHOE: Nor I. It is certainly not. But it is certainly the product of Part 15 rule 13, which says that if you are advancing a fact not raised by the preceding pleading, you must plead it.

McHUGH J: Well, I think that is a completely erroneous interpretation of Part 15 rule 13.

KIRBY J: I sat in many cases - not exactly the same as this - and I never remember seeing a pleading like that.

MR DONOHOE: Indeed. We apprehend that if these cases are going to be properly litigated - and take this case, if I may - there now emerges, at the heel of the hunt, an extremely difficult question. It has arisen in submissions by counsel, namely, whether at point A and, say, on day one, the risk would have been identical in every respect with the risk on day 100. We do not know what day one is, we do not know what day 100 is. In the period that intervened, many things may have occurred. There may have been developments in technology, and there may have been many changes, so that one can say if we are going to look at the two times, they have to be the subject of proper evidence. That is the purpose of this rule, to enable the real issues, which is now said to be the real issue, to come from the pleadings.

McHUGH J: I must say I just totally disagree with your - Chief Justice Griffith once said sometimes it is quite embarrassing to explain the simplest thing. But I have never seen anything like this suggestion that such a pleading would be required by Part 15 rule 13. It has got nothing to do with it. It is talking about defences by way of, for example, performance, release, statute of limitations and so on, something that may take the opposite party by surprise. The defendant does not have to tell you how to run your case; the defendant says you have not got a case. If you did have a case, it would be a "loss of chance" case. Well, you have not run a "loss of chance" case, you fail. That is the way the defendant would argue its case, and if you did not grasp the nettle and attempt to prove a "loss of chance" case, and if that is the correct classification, then you fail. I mean, the relationship between parties in litigation is not that between trained nurse and a one month old child.

GAUDRON J: Might there be a difference, however - before you answer Justice McHugh - as to whether the case is approached in co ntract or in tort? You have pleaded both and, in your contract case, you say breach by failure to advise, consequence, direct and immediately in the contemplation of the parties, is that "I have the operation and I suffer the injury," and it might then be a case of the defendant saying, "Well, true it is you suffered those injuries, but the damage has to be reduced by reason of fact that some of it would have occurred anyway?" Well, maybe it is not, but if you look at it purely in contract, it may be a different case.

McHUGH J: Speaking for myself, it seems to me that the issue is the same in both cases because you have to prove damage in negligence to make out your cause of action and, although you have the cause of action in contract, which entitles you to nominal damages, you still have to prove a particular damage. And what is put against you is that the only damage that you have suffered is the quantification of the loss of a chance of reducing the risk of perforation by having the operation carried out by a more skilful surgeon. You have to put a value on that. So your case - what is put against you, as I understand it, either in contract or tort, is that the relevant damage is the value of loss of the chance of reducing the risk of perforation. That is all you ever lost, by reason of this failure on the part of the defendant to give the proper advice.

MR DONOHOE: May I seek to answer that in this way? If that analysis be right then, if we take a billiard ball medical negligence example, let us assume that the complaint of the plaintiff is that, but for the negligent advice, my child would not have been stillborn and that is established. Does it mean that the defendant can say, "All you lost was the chance of undergoing a procedure for the delivery of this child that was chancy, and you have to prove, not merely that the child was stillborn, but that you have to embark upon a loss of chance case in every medical negligence case".

McHUGH J: It depends upon what is the breach, and that is something that you have to define with precision. I was going to put to you a little earlier that your submissions had not identified, with any precision, what the precise breach was, because you cannot determine causation without precisely determining the breach.

MR DONOHOE: I accept that.

McHUGH J: Now, in this particular case, the breach seems to be the failure to advise you that there was a risk of perforation in the carrying out of this operation which could lead to a complication of mediastinitis. The question then is, what damage did you suffer in consequence of that failure to advise?

MR DONOHOE: Yes, and may I say, with respect, we accept that formulation of the warning that should have been given, with the additional words necessary to translate "mediastinitis" into language that the patient could understand. But we accept, with respect, that formulation, and then your Honour says - I take it your Honour says to me, "Assuming that is breached, what is the damage?" And the reason I chose the stillborn child illustration was to say that how you categorise the damage is an exercise in abstraction, or philosophy, or common sense, because there is always a level of abstraction. And there is nothing more abstract than approaching all damage as a loss of a chance that the result might have been a better outcome, is a useful way of putting that.

The submission - and I trust I am not at the risk of repeating it more than just emphasising it - such an analysis, that is to say of abstraction to say all you had, given that advice, was a bundle of opportunities, you had the information and then you had a bundle of opportunities, if that is right, then the illustration that I gave, namely that the stillborn child illustration would yield the loss of a valuable chance, yes, damage proved. But instead of getting 100 per cent, that is the old law, that you would get all the consequences of the wrong, you only get 95 per cent.

McHUGH J: But, see, it all depends on the circumstance of the case. What makes this case special is the fact that she would have had to have the operation one day or another. This would be a simple, in effect, "but for" case if she had been able to say, "If I had been told the risk, I would not have had the operation".

MR DONOHOE: Optional surgery, I accept that.

McHUGH J: Then everything - it would have just been a straight out billiard ball type causation case.

MR DONOHOE: Yes, I accept that I have greater difficulties.

McHUGH J: Yes. The real difficulty lies in the fact that she was going to have to have this operation; that on the evidence there was a risk of perforation even when the operation was done by the most eminent surgeon. But the way, as I understand you put your case is you say, "Well, an experienced surgeon could have reduced the risk and there were people who were more competent to do this operation than the defendant. Therefore, it follows that I was exposed to a greater risk than I should have been and I have suffered damage." Then there is a question then of valuing it.

MR DONOHOE: If I am forced, as the infant with the nurse, if there is no other hope for me but the loss of chance analysis of this case, then we say there is ample evidence to show that what she would have done was to place herself in better hands, that the evidence that your Honours have been taken to illustrates that more experience produces fewer perforations, the inference is clear that that has a substantial impact on mediastinitis.

KIRBY J: It is suggested that those figures would be laughed at by a statistician and I rather think they would. We have got a sample of 100 to 150.

MR DONOHOE: That, we would respectfully submit, may illustrate that it is not easy at this stage to put a figure on it, but if the case that we presented was, and if the case that I am forced back on is the one that your Honour has just summarised, then we say we can, of course, advance that case and that case was there on the evidence. We say it just happened to be there on the evidence in the way in which the case was litigated but it is there and, we respectfully submit, what Justice Gaudron said is right, that once you identify an integer as being experience and the fact that Professor Benjamin was more experienced, it is clear that she would have had a better outcome. I am anxious - and I note the time - to, without trying the patience of the Court - - -

GUMMOW J: Before you do that, it might be useful from my point of view anyway, over lunch, if you could consider again, Mr Donohoe, step by step, an analysis of what is involved in proving your case in contract.

MR DONOHOE: In contract.

GUMMOW J: Tort seems to overwhelm everything these days but one should start with a contract - - -

MR DONOHOE: Yes.

GUMMOW J: - - - because one has got a contract.

MR DONOHOE: I am obliged, your Honour.

GUMMOW J: In terms also of onus of proof on particular issues that would arise in a contract case involving Hadley v Baxendale principles.

MR DONOHOE: Yes.

GUMMOW J: I am not asking you to embark on it now but at some stage.

MR DONOHOE: And your Honour drew our attention to the case of Lawson v Laferriere.

GUMMOW J: Yes.

MR DONOHOE: May I invite the Court's attention to the passage at page 606 to give some respectability, if I may, to the way in which I am seeking to advance this, where Justice Gonthier said this:

If the chance itself is compensated, however, damages will only be measured according to the level of probability. If the actual damage which has been caused is compensated, then the full value of the actual damage will be accorded.

So, in that case, on slightly different facts, the court said if you are looking at, for example, a failure to diagnose - that is once in medical negligence - one can use these loss of chance cases to some extent. If one is looking at a case where physical injury has, in fact, occurred, then that is not the appropriate approach.

GAUDRON J: We will adjourn now until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GAUDRON J: Yes, thank you, Mr Donohoe.

MR DONOHOE: May I approach the matter from the point of view of the claim for damages for breach of contract? The evidence discloses that she raised the question of the health of her voice, and made the "Neville Wran" remark, at references AB1, 21; 58, 20, and in cross-examination at 143.

KIRBY J: Now, that is an unusual thing, is it not? That distinguishes this case and makes it, in a sense, stronger that Rogers v Whitaker.

MR DONOHOE: Yes, although in Rogers- - -

KIRBY J: It does not solve the particular problem, but it is an unusual thing for a patient to do.

MR DONOHOE: I am sorry I interrupted your Honour. Would your Honour repeat that? I missed it, your Honour.

KIRBY J: I say it is an unusual thing for a patient to start cross-examining the doctor about risks of this kind.

MR DONOHOE: Well, she certainly, as I recall it - I was only going to say my recollection of the circumstances in Rogers v Whitaker were that the plaintiff said she was concerned at the possibility of total blindness. But certainly here, we say, is a very strong case; a very strong, articulate, intelligent woman asking questions and saying, in the course of her evidence, that she was a person who regarded the right to have information as the foundation for making decisions as the critical aspect of the assumption of risks in life.

We say that when one turns to the finding at 270 in the judgment of Acting Justice Donovan, he found:

I am therefore of the view that the plaintiff did raise the question of the safety of her voice with Dr Chappel -

I am reading from line 16 to line 21 -

and she did say the words she claimed about this question including the Neville Wran comment.

This was at the time the contract was made and, at that time, the evidence discloses that the risk of perforation, and the risk of mediastinitis was, in the terms of Victoria Laundry v Newman Industries (1949) 2 KB 528, as being a serious possibility, or a real danger.

Yours Honours have heard the reference to the evidence that every ear, nose and throat surgeon knew of that danger. That reference is at appeal book 1, page 120 line 45. So that when this contract was made a loss that was foreseeable as likely to occur was mediastinitis damage to her voice, and so, we would respectfully submit, it is perhaps easier to see, as a matter of a case of breach of contract and damages flowing from it, that the breach was the failure to warn and the damage was the injury.

I accept in formulating it that way I now bring myself back to the challenge to me by Justice McHugh, which I should do my best to finalise in this way, if I may. The billiard ball approach to the question of causation which is one which Justice Mahoney, the President, at 316, was alive to. He examined it in some depth. May I take your Honours to the preceding page, 315, where under the rubric "Causation" his Honour said:

In the present case, prima facie the issue may be stated in the following way. The operation involved a risk of injury: the oesophagus might be perforated, infection might occur, and damage might be done to the patient's body.

We respectfully submit that it is clear that is how his Honour the President was approaching it.

What the plaintiff said, as the judge interpreted it, involved a request for advice as to what relevant risks existed. This risk was a risk of which she should have been warned and was not. Had she been warned of the risk, she would not have undertaken the operation at that time. (I put aside for the moment what subsequently she would or might have done). Accordingly, the failure to warn her led to her undertaking a risk which, had she been warned, she would not have undertaken. The risk was realised and the injury involved in it occurred. On this statement of the matter the question is whether the failure to warn her was the, or a, cause of the injury in the relevant sense.

That is one way in which we put our case.

HAYNE J: Does it matter then if at line 2 on 316 the sentence were concluded not "she would not have undertaken", but were to be concluded "she would not have undertaken then", for that is the factual position, is it not?

McHUGH J: Yes. I have inserted a note "at that time" alongside that passage.

MR DONOHOE: It is clear from the words in parenthesis that Justice Mahoney was alive to that question and sought to put it aside for the moment.

HAYNE J: Exactly.

MR DONOHOE: And we would have to concede, I apprehend, that, as your Honour has suggested it, that is what the evidence undoubtedly disclosed. His Honour made a finding that she would ultimately have undertaken at some indefinite time in the future. His Honour said she would not have undertaken it then but, equally, she would have undertaken it sometime. So to respond to the question from your Honour Justice Hayne, I accept - I think, I must accept that the evidence disclosed that she would not have undertaken it at that time.

McHUGH J: Can I test this in another professional field? Supposing a person sues a solicitor for negligence in these circumstances. He says, "I have received a gaol sentence because you, Mr Solicitor, did not advise me that I was at risk of being sent to gaol for this offence. If you had I would have sought to get a Queen's Counsel to appear for me and have had the sentence proceedings adjourned." Now, could you say, in those circumstances, the fact that he was gaoled is causally connected with the solicitor's advice?

MR DONOHOE: That is a view of the facts open to a trial judge, we would say. It is essentially a question of fact.

McHUGH J: Surely you could not say any more than the negligent advice deprived him of the opportunity of getting more experienced representation which may have reduced the risk of him being sent to gaol.

MR DONOHOE: That is certainly another way of viewing the facts and it is the alternative approach to this case which, if we are driven to, we embrace.

GAUDRON J: Is there not a difference between Justice McHugh's analogy and this case? In that case, the final act, if you like, is the judge's decision, the sentencing judge's decision. So you have a third player which you do not have in this case.

MR DONOHOE: Indeed.

GAUDRON J: It may be that that is properly characterised as a novus actus interveniens which means, in effect, that that is causative not the earlier actions.

MR DONOHOE: We would embrace that distinction also.

HAYNE J: The equation again may be drawn between the novus actus as between the judge and the bacterium but that is perhaps a comparison which we should not pursue at all.

KIRBY J: I really think we have got to have your help on the principle that is to be applied here, because whatever we say has to be applied by trial judges who are dealing with issues of this kind every week.

MR DONOHOE: Yes.

KIRBY J: Therefore, one has to draw a distinction between some cases where you look to the consequences of the wrong and simply do it in the orthodox way and some cases where you value what has occurred in terms of loss of a chance. Now, what is the point of distinction between the two? What is the principled point of distinction, because that is the important issue in this case?

MR DONOHOE: Yes, one must identify what is the damage that flows, or is alleged to flow, from the breach. If all that has flowed is the loss of a chance, that chance should be valued on the probabilities. If what has happened is that other substantial damage has been incurred, the plaintiff is prima facie entitled to recover all of the consequences of the breach subject to the principles of foreseeability.

McHUGH J: Well, can that be right? On that theory, if the hospital floor had collapsed while this operation was being carried out, and the plaintiff was seriously injured, she would be entitled to damages for it on the basis that she would not have been having that operation at that time if she had been given proper advice.

MR DONOHOE: No, we say, I had not, in formulating that, sought to reformulate the principles as the causation in March v Stremere which would answer the hospital illustration. In the hospital illustration, the "but for" test would be satisfied, but that is only a threshold, but no one as a matter of commonsense would say that the advice caused the damage just because she happened to be there. March v Stremere, we submit, produces different results and so with the mountaineer. The mountaineer's example presented the House of Lords with great difficulty but it was disposed of, we would respectfully submit, quite forcefully by the Full Court of the Federal Court, by saying, while it is true that "but for" the negligent advice, the mountain climber would not have been there when the avalanche occurred, but in Australia the "but for" test is only a threshold test and although that would have been passed in the mountaineer illustration, as a matter of commonsense, one would not say, as in your Honour's hospital floor illustration - - -

GUMMOW J: Where does the doctrine of novus actus stand these days?

MR DONOHOE: It is - - -

McHUGH J: It is alive and well.

MR DONOHOE: It is said to be, in March v Stramere, alive and well. And, with respect, I think it can be illustrated in this way: if one takes the illustration in March v Stramere of the head being struck off with the sword, if, as a matter of common sense, one concluded that it was not for having a head that the head came off, that is one application of how March v Stramere works, and novus actus has a life of its own quite apart from that. If one says that the overwhelming cause, or the intervening cause broke the causal chain, that is a separate inquiry. That is as far as it seems to have gone.

McHUGH J: Part of the problem - I did not bother answering that example in March v Stramere, but the problem with that illustration, with great respect, is that it overlooks the interlocking relationship between duty and breach. You do not get to causation unless there is duty and you are going to get to breach and, in all these illustrations about the sword and so on, one never gets to the question of causation. It is foreclosed by duty - - -

MR DONOHOE: The earlier inquiry.

McHUGH J: The earlier inquiry.

MR DONOHOE: I see. I certainly do not wish to seek to reargue March v Stramere this afternoon with your Honour.

KIRBY J: Has there been any academic writing on the question that I asked you, that is to say, when you apply the "loss of chance" doctrine and when you do not?

MR DONOHOE: Your Honour, we have found some articles. We have gone through a number of them. With few exceptions - - -

KIRBY J: You are not waiting for the authors to die before you attempt - - -

MR DONOHOE: No, it is not that, your Honour, and may I say I looked at them knowing your Honour's interest. Most of the articles do nothing more than say, "You start with Hotson and look what the High Court of Australia has done." They go through the decisions of this Court and then speculate about the future. There is the article by Mr Justice Hodgson in the ALJs about the nature of causation, and we can give your Honour a reference to one or two - may I have your Honours' leave to deal with it this way: we have looked at a number of articles, none of which, in our respectful submission, are of any real assistance. The only valuable inquiry of any depth, we would respectfully submit, is in Lawson v Laferriere 78 DLR 609, which is the decision of the Supreme Court of Canada which Justice Gummow referred to earlier on today, but - - -

GUMMOW J: Third series? Fourth series?

MR DONOHOE: Fourth series. It is in that that I found the inspiration for the proposition that if the only damage is loss of a chance, then the probabilities apply, but if actual damage has been caused, it is compensated for full value. But we would acknowledge that, with the more sophisticated approach which is - - -

GUMMOW J: But the full value here would have to take into account, would it not, in measuring that for value, one would have to take into account as a discount, if that is the way of putting it, the possibility that even if the professor had performed the operation it could have gone wrong.

MR DONOHOE: Yes. May we say - and I am coming close to agreeing with that - but we would say, for reasons which I accept are slightly novel in terms of practice - that if that discount was to be advanced it would have to be advanced by the defendant and quantified by the defendant.

GUMMOW J: Yes, I was meaning to suggest that.

GAUDRON J: Why is that? I mean, I know that is how it happens. I am just asking why is it? Is it because you identified the damage as the physical damage, we will say?

MR DONOHOE: Yes.

GAUDRON J: And prima facie that is compensable as such unless somebody establishes - unless the defendant establishes some good reason for not doing it?

MR DONOHOE: Precisely.

GAUDRON J: Is there anything where that has been said?

MR DONOHOE: No, on the contrary, and the only - - -

GAUDRON J: Is there anywhere where the contrary has been said?

MR DONOHOE: No, not that we can find. May I say this, your Honour - - -

GUMMOW J: Is there anything where it has been said either way?

MR DONOHOE: This case is novel, but may we draw an analogy from the failure to mitigate. The plaintiff establishes his loss. The defendant says, the plaintiff has failed to act reasonably in mitigating that loss by failing to undergo an operation, for example, or by failing to wear a seat belt. The authorities are clear that in those circumstances the plaintiff must, to take the seat belt illustration, adduce the evidence and lead evidence about what the impact or reduction of impact - I am not punning here - what would have been the consequences on the damages to which the plaintiff is prima facie entitled because of the failure to act reasonably to mitigate.

So we start with that as an analogous proposition to the propositions that we are debating today. In that respect, the notion that we urge upon the Court is not novel, but the alternative, we respectfully submit, is contrary to fundamental principle. I gave the illustration before lunch that there could be the chance of having a healthy child but a 5 per cent chance of the child being born stillborn. In a reported case, the name which I will give your Honours in a moment, that was dealt with by assessing the full damage suffered by the plaintiff and then, without any analysis of any sort, reducing it by 5 per cent. That decision - - -

GAUDRON J: By analogy with the concept of vicissitudes?

MR DONOHOE: One might have thought that, but no, and may I return to that, with the utmost respect, your Honour. That was a case of Bagley v North Herts Health Authority reported in the New Law Journal of 24 October 1986 at 1013, but they are propositions which were rejected out of hand - - -

GAUDRON J: Is that on your list of authorities?

MR DONOHOE: That is not, no, your Honour.

GAUDRON J: Do you have copies available?

MR DONOHOE: We will make copies - may I just say we have found our way to that case because of this passage in Hotson [1988] UKHL 1; (1987) 1 AC 750. Dealing with that suggestion, Lord Ackner said this and I quote - - -

GUMMOW J: At?

MR DONOHOE: At 793, I am sorry, your Honour.

Once liability is established, on the balance of probabilities, the loss which the plaintiff has sustained is payable in full. It is not discounted by reducing his claim by the extent to which he has failed to prove his case with 100 per cent. certainty. The decision of Simon Brown J. in the subsequent case of Bagley v. North Herts Health Authority.....in which he discounted an award for a stillbirth, because there was a five per cent risk that the plaintiff would have had a stillborn child even if he hospital had not been negligent, was clearly wrong. In that case, the plaintiff had established on a balance of probabilities, indeed with near certainty, that the hospital's negligence had caused the stillbirth. Causation was thus fully established. Such a finding does not permit any discounting - to do so would be to propound a wholly new doctrine which has no support in principle or authority and would give rise to many complications in the search for mathematical or statistical exactitude.

GAUDRON J: How does that stand with Malec v Hutton?

MR DONOHOE: It stands easily with Malec v Hutton because in Malec v Hutton what the Court was saying is that you look at those elements in the modern assessment of damages and those which are hypothetical have to be assessed on the hypothetical basis. What this was doing was saying at the end of the Malec v Hutton exercise, you take off another 5 per cent and the House of Lords, in that speech, said that was contrary to doctrine.

May I take up the question from your Honour regarding the vicissitudes of life? A way of looking at this case would have been to have approached it in the way this Court said the matter should be approached in the case of Wilson v Peisley. I think we have given your Honours copies of Wilson v Peisley. That was a case in which a plaintiff established the negligence of the defendant but it emerged that she had a predisposition to a terrible condition. The case is only reported in unauthorised reports. We think we have given your Honours the 7 ALR 571 report and, in substance, what the Court said was that you go through the orthodox procedure of assessment and at 576 to 577 his Honour the Chief Justice said:

It is apposite to point out at this point that the award is made between a plaintiff and a defendant. It is not simply a case of compensating the plaintiff for the injured condition without consideration of the potentiality of the pre-existing situation. In a case such as the present, the claim of the defendant to a just consideration of the likely results of that pre-existing condition, as reducing to its proper proportion the damages he should pay for what he has caused, is an important element in assessment. It was for the judge to decide what were the chances of the respondent's pre-existing condition having brought her psychological harm in the future in the ordinary pursuit of her life, and at what level those chances should be evaluated in making an award against the appellant.

KIRBY J: That seems to be contrary to what the House of Lords said. The House of Lords says you do not search for such mathematical certainty by adjusting the chances that the condition might have manifested itself anyway.

MR DONOHOE: With respect, it is a slightly different situation. I will endeavour to develop that.

KIRBY J: I must say I find it hard to see, in terms of principle, why what was said in the House of Lords is right. If the search is for what is the consequence of the wrong then if, in fact, the damage would have occurred anyway in a certain proportion, it seems just to make allowance for that proportion in calculating the allowance, given that all examination damages is looking into the future and speculating and trying to do what is just and commonsense.

MR DONOHOE: Your Honour, may I say that I would not seek to argue against that but we would seek to emphasise that there are different cases well settled in orthodox principle. First of all, you have a situation of a cascading pre-existing problem. It is perfectly clear that in evaluating damages the courts appreciate that the plaintiff may recover damages, but in assessing those damages, a pre-existing cascading condition has to be assessed. Equally, we see that in a case properly conducted where, as in Wilson v Peisley, you had a patient who was unsymptomatic, a plaintiff whose condition was unsymptomatic before the trauma, before the breach of duty, in discounting the vicissitudes of life, instead of starting as is conventionally done at 15 per cent except that that is the lore, one might say in the case of a person such as she or a person with the eggshell skull, that one might have to say, well, this unfortunate plaintiff might have bumped into a wall or she might have developed this terrible condition that the plaintiff developed in Wilson v Peisley in the ordinary course of human intercourse.

So, therefore, it is just, as your Honour Justice Kirby would say, to impose upon the defendant something less than the full award which would otherwise be awarded. But what the House of Lords was saying, as we apprehend it, or Lord Ackner was saying, is that it cannot be correct, having gone through whatever process of assessment is appropriate with regard to the uncertainties assessed on the probabilities, to then do another discounting exercise because this particular operation had a 5 per cent risk in it.

And it may be tested, perhaps, or illustrated more clearly in this way. Let us assume that we are speaking of an operation with a 30 per cent risk and the plaintiff says, "I went to my doctor, I told the doctor that I was very concerned about my voice". The evidence establishes that the plaintiff would not have undertaken the operation and the operation had a 30 per cent risk of failure. What the House of Lords is saying is that if she is damaged, you assess her damages. If she might have had a cascading illness that has to be taken off. If she was an eggshell skull, discount for vicissitudes, but you do not then take 30 per cent of at the end of that exercise. That is how we submit the authorities can be reconciled.

HAYNE J: How do you take account of the fact that you would have had to have the operation later, and in the example you just pose, there was a 30 per cent risk in that later operation? How do you take it to account?

MR DONOHOE: Indeed, your Honour. The way in which that case would have to be run is this: you would have to ascertain, one, that she would have undertaken the operation in any event. Not difficult, but that would be established. The plaintiff would not establish that, the defendant would establish that. Then you would have to establish when, in all probability, the subsequent operation would be undertaken and what would be the relevant risk at the time the operation would probably be undertaken.

So, for example, it might have been - in these dates, in 1983, there might have been a 30 per cent risk. In 1993, the risk might have been 25 per cent. Then you say, all right, she cannot get full measure. One has to say that she has suffered, let us say, $100,000 worth of damage, she would have had to undertake an operation in 1993, and that operation might have had a risk, a differential, from the risk that she actually undertook and a quite complex process of adjustment would then be undertaken, having regard to all of the circumstances at the date which, on the evidence, no doubt it could be several dates, and in a case such as this one would expect that that would be so, but you would - - -

HAYNE J: I still do not understand what principle you say is to be applied.

MR DONOHOE: Your Honour, may I endeavour to restate it. It is that she is entitled to damages assessed, without discount, at the time they occurred. That is to say, you just approach it on the basis that she is an injured woman who - then one has to undertake an assessment of in the conventional way. Now, if the defendant can establish that she would have undertaken an operation in any event, and that operation carried with it a risk, that might be taken into account in the discount for vicissitudes, for example, because that is a vicissitude which, on the evidence, must occur.

So, your Honour, we would say, approaching it in that way, there is nothing really novel about the exercise at all and, indeed, may I say this, that this trial occurred 11 years after the operation so that to a very large extent one would have thought it would be possible to say, "Well, we conclude that she would have undertaken the operation prior to the trial, so that the exercise of discounting would have been a finite or at least a more certain exercise." I am not trying to run away from your Honour's question.

McHUGH J: Is this what you are saying, as I understand it: when the risk of injury concerning which a defendant should have warned eventuates, there is always a causal connection between the failure to warn and the injury but, if the risk was present in alternative courses of conduct that could or would have been taken, then it is a matter for discounting the quantum of damage?

MR DONOHOE: Your Honour, I do not advance that if there is advice, and there is injury, there will always be a causal nexus.

McHUGH J: No, I was not - why not? If the risk of injury concerning which the defendant should have warned eventuates, why can you not say there is always a causal connection between the failure to warn of that risk and the injury which has eventuated because of that risk?

MR DONOHOE: If nothing extraordinary had happened - for example, to take your Honour's earlier illustration, if you - - -

McHUGH J: Well, we are leaving out novus actus.

MR DONOHOE: Yes, very well. Yes, your Honour, I would think ordinarily that statement of principle would apply.

McHUGH J: Now, do you accept the second proposition that if the same risk was also present in alternative courses of conduct which would have happened to have been pursued, it is a matter for discount?

MR DONOHOE: Yes, and we go - - -

McHUGH J: You may well get the same result in this case, whichever approach you adopt. It may be a question of onuses; evidence ultimately.

MR DONOHOE: Yes, but we do seek to emphasise that hidden within the phrase "the same risk" are at least three or four separate notions. They are the potential for damage and the materialisation of that potential, and risk in the sense of risk of injury - one can be a conceptual possibility, the other can be a bleeding nose.

McHUGH J: Yes, I understand. But it may be difficult, in some cases, to classify facts. For example, if somebody says to me, "Could you advise me the safest road between Sydney and Newcastle?" and I negligently advise the person to take a particular road which is not as safe, and that person follows my route and is injured, it might be difficult then to say that there is a causal connection. If, on the other hand, somebody says to me, "Is there any dangerous bridges on the road to Newcastle?" and I say, "No, there is not", as a result of negligence for my part, and they drive along that road and it collapses, then if the person says, "Well, if I'd been told of the risk I would have taken a much longer route", it may be said in that case that there is a sufficiently precise connection between the failure to warn and the risk which eventuated.

MR DONOHOE: Yes.

GUMMOW J: In addition to that Bagley Case, have you come across an earlier case called Clark v McClellan (1983) 1 All ER 416. It is discussed in an article, which we have been supplied with by the library, in volume 17 of the Oxford Journal of Legal Studies, page 205 at 223.

MR DONOHOE: Can I just have that reference again?

GUMMOW J: Yes, (1983) 1 All ER 416. What the writer of the article says, that in this case, Clark v McClellan, which was before Hotson:

The defendant, in breach of duty, prematurely operated upon the plaintiff without success. The judge reduced the damages to reflect the statistical chance that even had the operation been carried out at the proper time, it would not have succeeded fully in the plaintiff's case.

KIRBY J: That is inconsistent with the - - -

GUMMOW J: It is inconsistent with Hotson, but it may be consistent with Sir Garfield Barwick. That is what I have got on my mind.

MR DONOHOE: Yes. Your Honour, I am astounded to have to confess that that eluded us. May we have leave to put in a short written submission on that?

GUMMOW J: Yes, and on anything else that appears too, I think.

MR DONOHOE: We are obliged.

GAUDRON J: Within seven days.

MR DONOHOE: Within seven days.

GAUDRON J: And opportunity to Mr Higgs to reply thereafter within seven days.

GUMMOW J: One needs all the help one can get.

MR DONOHOE: There are some matters that I would just seek to deal with briefly, just principally, I think, by giving references to pages in the appeal books that might not have been mentioned by my learned friend. That there was a serious risk of perforation appears at 178, which is in volume 2:

Perforation of the oesophagus is a recognised -

I am reading from line about 18 -

recognised and well known -

but in the next paragraph:

Perforation is more likely where there is pathology in the oesophagus for example a pharyngeal pouch -

which is what we had in this case.

The passage at volume 2; 280, which my learned friend, Mr Higgs, took your Honours to, should be read in this context. At 278 his Honour said at line 32:

I therefore find that, had she been warned, she would not have had the operation on 10 June 1983. She would have deferred it. I cannot say she would have deferred it forever. I think she would have had it at some time in the future.

He then, under the heading of "Loss of Opportunity", addressed Mr Higgs' submission and he says at 280 line 36:

Theoretically I can see the attraction of Mr Higgs' argument that the risk would have been the same and the injury would have happened anyway. In order to support the defendant's proposition I would have to make that finding on evidence. There is no evidence that the risk in the sense of its being likely to occur as it did would be the same and the injury would have happened anyway.

He said, "I think that finding would be speculation" and he did not make it. The passage to the effect that it was a risk of which every ear, nose and throat surgeon was aware, is at AB 120, line 45. In the context of the evidence - - -

McHUGH J: Stopping at 280, the learned judge has asked himself the wrong question on any approach to the case, has he not? I am not sure if his Honour actively states what Mr Higgs' argument was at line 36. His argument may have been at the risk of it being the same but I am not sure he says the injury would have happened anyway, does he? I did not understand that to mean - - -

MR DONOHOE: No.

McHUGH J: It is not there in those propositions either.

MR DONOHOE: No, and I think in fairness to my learned friend, he concedes that probably statistically it would not have happened.

McHUGH J: Yes.

MR DONOHOE: Yes. I am obliged to your Honour, I think that is correct. At 118 this touches on relative skills. Professor Benjamin, at 118, talking about rents, we emphasise these words, lines 36 to 45 - in that passage your Honours will see, not only:

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, but it is usually just an escape of a few bubbles of air.

The rent, in this case, was described as a "considerable rent", and that appears at AB 2; 170 between lines 40 and 45. Finally, that the defendant regarded perforation as the big risk appears at AB 2; 178 line 25, 143 lines 40 to 45 and 152 line 15. May I now come to the application for leave to amend. Is that convenient?

GAUDRON J: Yes.

KIRBY J: Do we yet know the terms of the application?

MR DONOHOE: I do not.

GAUDRON J: Well, it is - - -

KIRBY J: You have not even received a little handwritten version from Mr Higgs?

MR DONOHOE: Nothing.

GAUDRON J: We do know it is an application for leave to add a ground that the trial judge erred in his assessment of damages by failing to assess damages as a loss of chance rather than the physical injuries which, in fact, the plaintiff suffered. Does that put it fairly?

MR DONOHOE: Yes, your Honour, and no doubt my learned friend Mr Higgs is indebted to your Honour.

KIRBY J: He must have had an easier lunch than you did?

MR DONOHOE: Indeed, I am sure he did. We take the principles to be these, that if the issue was not litigated below, and could possibly have been met by any evidence, leave to rely upon such a ground in this Court will only be granted in the most exceptional circumstances.

KIRBY J: Are you not in a bit of a cleft stick here, though, because as Justice McHugh pointed out, the contention of the appellant is that you have no right, but if you have a right, you only have this right and, therefore, if the trial did miscarry because the judge failed to raise his attention to the correct principle, then you are really putting it in an all or nothing situation too, are you not?

MR DONOHOE: We submit not. What we submit is that what was run below was a trial where the loss complained of was the undertaking of this operation and we can embrace both approaches to causation, that is whether it be properly regarded as a loss of a chance or the causal question and the quantum question can be both addressed at two levels, we say.

KIRBY J: But would you not need, I am only thinking of the record here, a notice of contention to say that even if the approach taken by the judge and the Court of Appeal was wrong, you re entitled to the judgment on the alternative basis of assessment of a loss of chance?

MR DONOHOE: Yes, I apprehend we would.

KIRBY J: Well, it may be that, in response to Mr Higgs' amendment, you may also wish to make an application.

MR DONOHOE: Yes. I am obliged to your Honour.

GAUDRON J: I take it you say that if you do approach it on a loss of a chance, the chance at issue is not having another operation at a later date at the hands of a more experienced surgeon, but the chance of not having this particular operation which results in the damage.

MR DONOHOE: We put it, may I say, in two ways. One is, we say that the damage was in what Justice McHugh has called the "billiard ball" sense of causation, but we simply say there has been the physical injury, and that was litigated, and one can look at the evidence and the way it was fought by saying, what she lost was the chance to postpone this operation and to undertake an operation in the hands of a more experienced surgeon at a later time.

GAUDRON J: I am not sure that you are not falling into thinking in the same way as your opponent, that it is that analysis, I think, that leads to the loss of chance as damages, whereas, if you say the real chance was simply the chance of not having the operation which, in fact, caused the damage, that is the chance that was lost, then you are very clearly, I think, in the realm of physical damage.

MR DONOHOE: Yes.

GAUDRON J: And, indeed, it is perhaps wrong to isolate the two. You have probably got to combine them together and say that that is what was lost; the chance not to have the operation which resulted in real loss and then - because whether or not you analyse it in terms of onus of proof or otherwise, then comes in the chance of having it at another time and place.

MR DONOHOE: May I respectfully adopt everything your Honour has said. The error that I have slipped into was using the word "risk" or "chance" without discriminating between the opportunity for choice and the inherent peril, or the peril. What we lost was the opportunity to choose not to proceed, and we suffered physical injury. That is the first way we put the case, and that is putting it in our preferred way.

The second, we say, that even if it be correct to approach this as a loss of a chance in the sense of the loss of the opportunity to reduce the risk, we say even looking at it that way, once you go to the evidence of Professor Benjamin, what we lost was something that was substantial and all notions of coincidence have no part in the causation analysis, and the quantum discount was never run. That is why we oppose the application for leave to amend to argue discounting on quantum. We say that aspect of the case was never run and I will endeavour to demonstrate that briefly. I will not repeat what I said earlier.

We say that aspect of the case was never run and I will endeavour to demonstrate that briefly. I will not repeat what I said earlier.

GUMMOW J: Could not the result be a new trial? You say they are shut out from that by the way in which they ran it before.

MR DONOHOE: Yes, and we are talking about a very serious decision because this lady would now be facing fresh cross-examination, no doubt. I will take you to the very forceful cross-examination that she has endured once. The prospect of a retrial is one that we would - - -

GUMMOW J: She is, what, 69 years of age?

MR DONOHOE: Yes, and would be trying to now recall events 16 years ago.

KIRBY J: It may be unfortunate.

MR DONOHOE: It may be.

KIRBY J: You have to act according to principle here.

MR DONOHOE: It may be a discretionary factor.

KIRBY J: You cannot just say, "We will forget the principles because it is a burden on the plaintiff".

MR DONOHOE: I accept that, your Honour. I put it no higher than a discretionary matter.

GAUDRON J: What case were they running in terms of their submissions about a loss of chance if you say they were not running this one. They were certainly running some case.

MR DONOHOE: They were. May I take you to it?

GAUDRON J: Mr Donohoe, I am assuming, and please correct me if I am wrong, that in the course of your argument as to whether or not leave should be granted, you are also addressing what would happen if leave were granted to make the amendment.

MR DONOHOE: Yes.

GAUDRON J: Yes. I am saying that only because your argument at this stage tends to suggest that the question whether or not leave should be granted might be reserved along with final judgment in the matter so that you should therefore address it on the basis, yes.

MR DONOHOE: Yes, thank you, your Honour.

KIRBY J: And you have foreshadowed your own application to file a notice of contention?

McHUGH J: Is my recollection right or wrong that on the special leave application we were told that the plaintiff had received the verdict monies.

MR DONOHOE: Yes. Some of them. Yes.

MR DONOHOE: Yes, some of them.

McHUGH J: Some of them.

MR DONOHOE: She has received about $80,000, I am instructed.

McHUGH J: Yes.

MR DONOHOE: Your Honours have as the starting point the pleadings - and I will not repeat what I said before lunch about the content of them. We have given your Honours a reference to GIO v Phillips, and I cannot advance that any further. Evidence in-chief, assuming that it was advanced by competent counsel addressing what he perceived to be the issues, explored whether or not she would have had the operation. At appeal book 137, she gave her evidence in-chief, what she would have done if she had been properly warned. She says:

I would certainly have not had that operation at that time had I been told.

That is at 37, line 25.

McHUGH J: You said 137.

MR DONOHOE: I am sorry, your Honour, I should have said 37 - I mean appeal book 1, page 37. She gave some very brief evidence about the difficulties she was encountering because, as we would put it, the only issue that counsel was addressing was whether or not she would have gone on with this operation had she been properly warned. At appeal book 1, 19 to 20, she had had some problems swallowing in 1982 and had developed a sore throat. She gave, at appeal book 1, 39, evidence about what the future held for her, about what she was planning to do with her full-time employment. That, we respectfully submit, would have been more fully explored if there had been a live issue as to whether or not she would have had postponed the operation and if so for how long. That is the important question.

The cross-examination began at appeal book volume 1, page 44, and at 67 - the cross-examination commenced, which continued on the one theme right through to page 73. What she was asked about were the difficulties she was having and, we respectfully submit, it was clear, and will become completely clear, that the thrust of this cross-examination was to say, "You were in such discomfort, you would have had it then and there under Dr Chappel, and even if you had decided to defer it, you would have had it in six month, twelve months, 1985, or whatever." The questions proceeded and one of the critical questions is at the top of 68, between lines 10 and 20, and I will read it:

Q. Mrs Hart what, if any, would be the impact on the decision concerning whether or not surgery should be proceeded with as suggested by Dr Chappel in 1983 had you been advised that there had been several reports of cancer developing in long standing untreated pouches?

A. Well, it's hard to give a sensible answer about cancer if you haven't been told you had cancer, but certainly everything inclines me to think I would seek a second opinion.

If the case that was being presented at that stage was, "I want you to assume that because of the risk of cancer or - - -

GAUDRON J: Was that proved?

MR DONOHOE: The risk of cancer was just - no, I think - correct me if I am wrong - I do not think there was any evidence of that being a risk. That was put, it was objected to, but it was allowed.

If the issue had been that she might have taken this course later on, the cross-examiner would have said, "Well, I know that is what you tell us, but I want you to assume that your condition was getting worse and cancer was a risk", whatever the cross-examiner wanted to put. He would have said, "I put to you that you would have had this operation under Dr Chappel", one possibility, or "If I accept that you would have deferred it, I want you to assume that you are now sitting in your chair assessing your position 12 months from now, three years from now, five years from now".

No doubt she would have then had an opportunity to say, "Well, I have never really thought about this, but I would have first of all had regard to my full time career". This was a woman with a senior position who had flourished in later life, was 55 and had five years of full time employment ahead of her, and Dr Lewkovitz gave evidence that there were means of ameliorating the symptoms, not curing the condition. But she was never given the opportunity of saying, "Well, if you are asking me how long I would have deferred it, I would have deferred it for this period". This is what the cross-examiner did.

He asked her seven times to agree that she would have undertaken the operation under the hands of Dr Chappel then and then. He did not once put the proposition, "I suggest that a year from now, you would have undertaken it". This appears from these questions and answers, at 68 line 42:

I would suggest to you that in the event of you having been advised of the possible complication of perforation that you would have decided to go ahead with the operation suggested by Dr Chappel in any event?

Repeat that please. Page 69, 15 to 20:

Q. I want you to assume for one moment that you were told of that possible complication. I would suggest to you that because of the problems you are suffering from at the time you would have made a decision in all likelihood to have proceeded with that operation in any event?

Page 69, lines 35 to 45:

Q. And a slight risk or complication of the perforation was a compromise of a laryngeal nerve that would lead to the problems that you now suffer, that all of those things, both the perforation and the consequential risk of compromise to the laryngeal nerve were rare complications flowing from the procedure that was proposed by Dr Chappel. I suggest to you that had you been given that explanation that you would have nonetheless proceeded with the operation suggested by Dr Chappel?

A. Not so.

Q: Can I ask you this, if you were given that explanation, are you able to answer as to whether or not you would have proceeded with the operation in the hands of another surgeon at that time?

A. I can only answer that I would have sought much more information, much more advice.

In the middle of that page 70, between lines 25 and 35:

Q. And following upon that advice having been given to you you determined that the problems that you were suffering from were sufficient as to warrant surgery?

And on 71 at lines 28 to 35:

Q. They are rare but nonetheless they are known to exist, would that alter your view at all as to whether or not you would have proceeded with the operation?

And on page 73, between 20 and 30:

Q. There is always that chance, remote though it might be, but, nonetheless, it is always there. Would that, the possibility of local infection at or near the site of the surgical wound, dissuade you from proceeding with this operation?

And she answers. It is put to her:

Q. But might I suggest this to you: If you were informed of there being a remote possibility of infection, and of an even more remote possibility of death, but albeit one that was there, perhaps one in relation to which the statistics were not as great as the likelihood of you being run over on the roadway but, nonetheless, there, doing the best you can now, that wouldn't have dissuaded you from proceeding, would it?

A. How do I know?

So, the whole of the cross-examination was forcefully directed to establish the proposition that she would have gone on with that operation then and there, and that is an important part of the plaintiff's case, because you do not get into the problem of changed risk.

If you say, "You would have gone on at this very time and place," then the problem that the very passage of time, and the statistical probabilities occurring, mean that it is almost certain she would not have had it had she postponed it by one day. That is why the cross-examiner was running his case, "This is when you would have had it, then and there.", not a case that it might have been undertaken, based on the finding of his Honour, some time on and we say that, if the case had been, "You would have undertaken this operation, say, at the end of your full time career," we could have led evidence about a number of things about the improving statistics of these incidents. We could have led evidence about whether or not she would have tried to live with these symptoms. We could have led that evidence, and we did not.

McHUGH J: I do not want to be critical of counsel at the trial, but one might have expected that counsel would have led all that sort of evidence anyway, just on the basis that the judge might take another view of the evidence. One can understand that Mr Higgs would cross-examine the way he did. No doubt the plaintiff genuinely believes that she would have postponed the operation if she had been given advice, and she has a finding of fact in her favour. This is an area of the law, subjective motivation, it is always very difficult to determine. One can never know whether - she has got the advantage - as to what she would have done, but she has got a finding of fact in her favour and you are entitled to rely on it. But that does not mean that Mr Higgs could not run an alternative case and say, "Well, even if she would not have gone ahead with it straight away, sooner or later she had to have the operation and, on that basis, she still must fail."

MR DONOHOE: That case could only run if - - -

McHUGH J: It was common ground that she had to have the operation.

MR DONOHOE: Well, no, I think, with respect, she said, "I do not know what I would have done," and his Honour found - it was a finding of his Honour. I think I am correct in saying that it was not common ground that she would have had to have it in any event.

Now, that leaves the question of if it were open to approach the question of the proper quantification, if it is to be approached on a "probabilities" basis - that is, the quantum issue - if that were open, we would respectfully submit that the relevant evidence is that - take the statistical evidence; it may be that statisticians would laugh at it but, properly understood, we understand that evidence to be, "You are asking me about the incidence of perforations; well, they occur in a range between one in twenty and one in forty." At the very least, that suggests that, putting aside for the moment the superior skills of the specially gifted, the statistics favour her having at least improved her prospects by 50 per cent if she placed herself in the hands of the person at the end of that scale.

We say that the proper way to approach it is to say that this is what she suffered. How likely is it that she would not have suffered any misfortune had she undertaken it later on and in more skilled hands? We say the likelihood is overwhelming as his Honour found, that she would have had a fortunate result. That ultimately comes, I suppose, to asking the question, "Who should have the benefit of fate playing a part? Should it be the wrongdoer or the victim?"

To ignore the fact that it having occurred, it almost certainly would not have occurred on the next occasion, we say, cannot be done and therefore, the proper approach to it is to say that she should receive her award of damages undiminished because the statistical or the likelihood, the probability, is immeasurable. Those are our submissions, may it please the Court.

HAYNE J: Before you sit down, Mr Donohoe, would you grapple with an example of a doctor with three patients, each of whom is to undergo the same operation and in respect of none of whom he offers a warning which he should have given of a risk that may occur. One of them is a patient for whom the surgery is entirely elective; one of them is a patient for whom the surgery is life-saving, in that sense, the patient has no choice, and the third is one who may defer the surgery three months, six months, whatever period you care to choose. Is the liability of the doctor to each of those patients identical if the risk comes to pass?

MR DONOHOE: He is liable to all three but in different quantums.

HAYNE J: And it is to be solved only at the question of quantification?

MR DONOHOE: Yes. May I say Rogers v Whitaker establishes the first, that she gets full value, and we say that it becomes more complex in the third case. Those are my submissions.

GAUDRON J: Yes. Thank you, Mr Donohoe. Yes, Mr Higgs.

MR HIGGS: Your Honours, the first submission that my learned friend made went to the pleadings and it can be answered shortly. We have copied Part 15 rule 20(3) and if I could hand up copies to your Honours.

McHUGH J: I think we have copies.

MR HIGGS: I am sorry. No, your Honour does not have a copy, I do not think. It is Part 15 subrule (3):

Where a pleading makes an allegation of the suffering of damage, or an allegation of an amount of damages, a pleading to that pleading by an opposite party shall be taken to traverse the allegation, unless the allegation is specifically admitted.

So, it just repeated the old common law rule that once you put on a defence you do not have to specifically traverse the allegation of damages and the note - it is in reverse order, I apologise, your Honours. If you could read it with the second page first. But on the front page in paragraph 15.20.3, it collects the authorities there for the proposition that subrule (3) applies to damages of all kind, whether special or general, and whether the alleged damage is part of the cause of action or not. So it covers both tort and contract.

That is the first submission. The second submission is that this trial, rightly or wrongly, was conducted upon the basis that Ellis v Wallsend District Hospital was a proper pronunciation of the law in relation to the question of causation, which leads to the trial having been conducted upon the assumption that it was for the plaintiff to prove, in a negligent advice case, what would have been done in the hypothetical event of the proper advice being given. In a situation where on an objective test it is more likely than not that the patient would have taken the risk and undergone the procedure, then usually, from an evidentiary point of view, the way in which that type of onus on the part of the plaintiff is discharged is for her to go into the witness box and say, "Well, even though the risk was minuscule, I wouldn't have undertaken the risk."

There is the High Court authority of Gould v Vaggelas, that is part of Justice Wilson's decision, that says, you do not always have to lead evidence as to what you would have done in the event of the proper advice being given if the inference can be drawn. If the risk was fairly minuscule in, as that case was, a misrepresentation case, then the inference is that you would take on board the minuscule risk and proceed.

It was never pleaded by the plaintiff that the way in which she proposed to prove causation was to say that she would have not gone ahead with the operation at the time but would have deferred it. We are not in a position to know how she is going to go about - - -

GAUDRON J: But she did say she would not have gone ahead with the operation that she in fact underwent; that is to say, the one that was resulted in her damages.

MR HIGGS: In her evidence she says that, your Honour, but on the pleading points that my learned friend raised, how in the world can we plead to something that he contends for when he does not plead the facts and circumstances upon which he relies to establish causation? In our respectful submission, that contention goes away because we can hardly be said to be ever in a position to be able to plead something that we never know the substance of the allegation until the evidence is led.

Usually you would expect in a case like this for the plaintiff to go into the witness box and say, "Even though this was a minuscule risk, I just would not have undergone the operation", as was the case in Rogers v Whitaker although Rogers v Whitaker was only to do with breach of duty, towards the end of the majority judgment and other parts it expressly disavows embarking upon the question of causation.

The second matter that we would like to deal with in reply is this: my learned friend made the submission that, in this case, there was a considerable rent in the oesophagus as a consequence of the procedure but the evidence was that even the slightest perforation gave rise to the same risk of mediastinitis. It did not matter what the size of the perforation was in order for this type of complication to flow.

The references in the transcript to that evidence can be quickly given. The first one is in volume 1, page 118, at line 45, where Professor Benjamin was asked:

If there is a full perforation, does mediastinitis always follow?

And the answer:

That depends on what a full perforation is. If there is any perforation mediastinitis can follow.

Similar evidence, but not perhaps to the same force, is to be found in the evidence of the other expert called by the plaintiff, Dr Lewkovitz. At page 100, lines 1 to 3 and, so, in that regard we say that the submissions by my learned friend are ill-founded.

KIRBY J: There was no attempt to quantify the incidence of mediastinitis in the number of 30 or 40 operations out of 100, or 30 or 40 operations that were referred to in the preceding question?

MR HIGGS: At page 118?

KIRBY J: Yes. Is there any attempt to quantify how frequent is this condition?

MR HIGGS: There was an attempt, but I think that it was an attempt made by his Honour, and my opponent at the trial objected to the question. Professor Benjamin, at page 120, line 40 - and it is the evidence that has already been referred to - was asked a question as to the statistics of the complications with respect to mediastinitis as opposed to perforation and, of course, that is the passage that, in our submission, has led to his Honour, Mr Justice Handley, falling into error, because he confused the complication of mediastinitis with the complication of perforation. But after those questions, at 121, line 10, his Honour asked a question of the type I think that your Honour was looking for, and there was an objection by plaintiff's counsel.

GUMMOW J: Is there any evidence as to the significance of the particular weaknesses of one patient as against another that makes them susceptible to the operation going wrong, to the possibility of perforation?

MR HIGGS: Not in this type of operation, no. Dr Lewkovitz - - -

GUMMOW J: There is no evidence one way or the other?

MR HIGGS: No. Dr Lewkovitz at page 99 of the appeal book - no. At one part of Dr Lewkovitz's evidence he outlined the Dohlman procedure and then went on to describe the random nature of how the mediastinitis occurs, and he says that it occurs in two ways either because there was bacteria present and or something else that in the normal course of events would not cause any problems but an inflammatory reaction sets up in the mediastinum and then that in turn leads to mediastinitis. In this particular patient, it simply happened to tract in such a way as to compromise the laryngeal nerve that innovated the right vocal cords.

KIRBY J: There was no analysis or suggestion, was there, or was there, of the greater incidence in, say, sepsis control or control the team that works on the operation? There is a hint here that this would not have happened if it had been done at one of the large hospitals, Royal North Shore, as distinct from Mona Vale.

MR HIGGS: Is the hint that your Honour is referring to at page 118?

KIRBY J: Or at 21 in the questioning of the respondent.

GUMMOW J: There must be so many variables that apply in these situations.

MR HIGGS: Exactly.

GUMMOW J: Of which we know nothing.

MR HIGGS: That must be right. There must be a number of variables but the number of variables, in relation to which we have control, or in relation to which a - - -

KIRBY J: In respect of which you are liable?

MR HIGGS: Yes. It is just one of the many things that can occur. That is the point.

KIRBY J: If you allege that it is something else, in terms of the forensic onus, do not you have an obligation if it is brought home to you to demonstrate that it was really because Mona Vale was well known for not having proper control of these things or there was an assistant surgeon who was no good, or the nurses never checked up and kept the patients off food, or all the other things that could possibly cause this complication, rare though it was, you would have to demonstrate that, would you not, forensically?

MR HIGGS: It is very hard for us to demonstrate something that is never - this is not a negligent procedure case. There is not one - there was, in fairness to the respondent, at the beginning of the trial, contrary, I think, to what the trial judge said and there was, at one point in time, an allegation of negligent procedure but that fairly quickly fell away. It certainly fell away by the time the submissions were made to his Honour and his Honour records that fact at the beginning of his judgment where he said, at page 248 lines 24 to 30, that even though:

The statement of claim in its original form asserted counts in both contract and tort.....The statement claim was amended on 27 May 1993. At the hearing, the claim concerning negligent procedures was not pressed -

There were three possible explanations as to how this particular compromise did occur, one of which was negligent procedure. It is to be found in one of the reports of Professor Benjamin. But, of course, those two other ways in which this injury could occur fell away because Professor Benjamin at the end of the day, in his evidence, said the way in which his Honour found the injury occurred, which is not challenged on any appeal, did not have anything to do with procedure. For that reason the allegation of negligent procedure was not pressed.

In answer to the question that your Honour asks, we would submit that in the conduct of a trial a defendant should not be obliged to, in these circumstances, explore every possible allegation of negligent procedure that could be conjured up and to meet it until it is actually alleged. My learned friend also - - -

McHUGH J: Sorry, before you go on, could you just help me with a point I think I have just grasped. For much of the argument and, indeed, for all of the argument, I have been under the impression that the mediastinitis is the rare condition, but is that wrong? Is the rare result in this case is the compromise of the right laryngeal nerve? So the mediastinitis is always likely to be there, if you have a full perforation in particular?

MR HIGGS: No, it is not always likely to be there. It is more common than perhaps a lot of people believe it to be and, I think it is at page 99 in Dr Lewkovitz's evidence, down towards the bottom of the page, that he talks about in a prophylactic way they are treated "Nil by mouth" to avoid that from being exacerbated in any way.

McHUGH J: What was so unusual about this case is the compromise of that right recurrent laryngeal nerve.

MR HIGGS: Yes. Normally, a mediastinitis has no lasting effect.

McHUGH J: So, if - it may depend on which way you approach this case, but the possibility of that happening in another operation was not even 5 per cent, it may have been a million to one, might it not, on the evidence?

MR HIGGS: Yes, it might have been, but there was no - as I answered an earlier question, it was a very rare event and it was never quantified with any precision.

McHUGH J: But does that make a difference in terms of the way you assess the damages in this particular case, if that becomes a relevant issue? The evidence about one in twenty, one in forty, was concerned with perforation, was it not?

MR HIGGS: Yes.

McHUGH J: And even if that had occurred, it may have been relatively inconsequential, so that what was highly important for the purpose of this case was the possibility that she would have suffered a compromise of the right recurrent laryngeal nerve.

MR HIGGS: Yes. And, you see, in relation to advice - I know it depends on how you approach it. To some extent, it may well be that do you say, is it - sorry, I withdraw that. It is the way you approach it, but what is it about the advice, any advice, that could be given that gives any real chance of this risk being, in any meaningful way, diminished?

McHUGH J: Yes. I am just wondering, I mean, maybe the plaintiff was lucky to get up on the negligence issue. No doubt this was known, and yet I notice that Dr Benjamin said that he had searched through the journals and through the reports and he could not find any example of it having occurred.

MR HIGGS: No, that is right.

GAUDRON J: But there was a question in this case.

MR HIGGS: No, it was a question, and it is not part of - - -

McHUGH J: Yes, I appreciate that. Do you accept that one way of looking at the case is to say that when the risk of injury concerning which a defendant should have warned eventuates there is, subject to any question of novus....., ordinarily a causal connection between the failure to warn and the injury and, if the same risk of injury was present in alternative courses of conduct which the plaintiff should or would have taken, it simply is a matter of reduction of damages?

MR HIGGS: Your Honour, our approach is, and the approach that we would submit is the correct one, is to firstly say, contrary to that which fell from your Honour Justice Gaudron of blending, or in some way bringing together notions of causation and damage, that if anything was made clear by Sellars it was that causation and damages should be approached separately.

McHUGH J: The way I analysed it, it did approach it separately.

MR HIGGS: I am sorry, your Honour, that is true. But we go on to say that the threshold test is whether or not, by reference to the scope of the duty, that on the balance of probabilities causation has been established, because, in our submission, it cannot be said that our advice had anything to do that was of any value to the plaintiff in order to minimise this risk.

McHUGH J: I know, but I may be hopelessly compromised by my long-standing belief in the "but for" test but the fact is this plaintiff suffered physical damage.

MR HIGGS: I thought that your Honour had been dissuaded from that heresy because of the concurring judgments after March v Stramere.

McHUGH J: That is so, but it may still, nevertheless, be operating on a subconscious level but this is not a case of the plaintiff losing an opportunity to back a winner or to win a horse race as in Howe v Teefy, or to win a beauty contest or to win a lottery or to even get a job. This is a case where the plaintiff has suffered physical injury by reason of your failure to warn. Now why is not, once the injury and the risk are precise and seen to be connected, why is not that enough to prove causal connection?

MR HIGGS: For this reason, because it is to be distinguished from negligent procedure cases. If it is a negligent procedure, it can be said - - -

GUMMOW J: It is a procedure. It does not matter whether it is careless or not on this theory.

MR HIGGS: But negligent procedure cases, in terms of causation, are to be distinguished from negligent advice cases because in a negligent procedure case it is the procedure, if done improperly, that causes the injury. That is different here. All we can do, I am sorry, I did not mean to - - -

GAUDRON J: I was going to say, perhaps the closer analogy in a case of this kind is trespass to the person, where the procedure is, in fact, done and done with an uninformed consent, if you like, and you are still talking about the procedure when it would not otherwise have been done.

MR HIGGS: That, your Honour, was considered by the House of Lords, I think in a case called Bolam where - - -

GAUDRON J: This Court has moved on from Bolam.

MR HIGGS: No, but not in that regard. This Court has moved on since Bolam, your Honour, but both in Bolam and in Rogers v Whitaker this type of case - in Bolam the allegation of trespass was made and the analysis was that in this type of case trespass does not come into it in the event of them having a general idea of what the operation was. Rather it is a case where an opportunity has been lost because the advice has not armed the patient to make decisions commensurate with the sovereignty that one has over one's own body.

So it is like the lottery here, when you look at what it is that we can do and the attitude of the patient that she is prepared to take the risk. If the risk is in no way, shape or form affected by the advice, then how is it that the - we say that the threshold test of causation has not been met. I know the way in which your Honour analyses it might come to the same result but, quite frankly, we would prefer to have a situation where, in cases like this in accordance, we say, to Sellars, where - that was a case about, as Justice Gummow said, the loss of a commercial risk - but nothing here is any different. If in fact there is the loss of a chance here that is to do with an outcome that she is prepared to take, even if properly advised, then, in our submission, causation is not established.

GAUDRON J: Why is that not the case in every case of failure to warn? For example, the failure to warn the man that there are hidden rocks in the rock pool, why is that not analysed in terms of the loss of opportunity not to dive or to dive elsewhere; or the injured worker who is not warned of the dangers inherent in a process?

MR HIGGS: Because that is a case where the obvious inference to be drawn is that the person would not jump into the pool where the rocks were. That is an inference that readily is drawn in favour of the plaintiff and in respect to which there can be no criticism. But here, it is quite different. The patient here has made it perfectly plain that she was prepared to take on the risk, albeit at a later point in time.

It is exactly the same as a whole lot of other advice cases where the question of causation, such as in misrepresentation cases and the like, and Gates is one case that we refer to in the written submissions, and Norwest, the other one where an insurance broker fails to secure adequate insurance. It is always tied up with, as in Ellis v Wallsend District Hospital, what the person who is being subject to the abuse of the negligent advice or the misrepresentation would have done, because tied up in this lady's cause of action is - the threshold test is whether or not in any material way her sovereignty over her own body has been compromised.

My learned friend also submitted that because of the cross-examination of the plaintiff at first instance, she was never given the opportunity of answering what she would have done had the operation been deferred. At page 50, lines 25 to 40 and elsewhere, she was cross-examined about the fact that she in fact did undergo the operation at the hands of Professor Benjamin in 1985 and, in our submission, that was sufficient, in the circumstances, as to meet that criticism of the way in which the case was run.

KIRBY J: Not quite, because that was a repair operation, was it not?

MR HIGGS: No, your Honour, it was for the very same problem.

KIRBY J: Yes, it was.

MR HIGGS: It is not a repair operation, no.

KIRBY J: Was it not?

MR HIGGS: No, it was a further operation in all respects, in terms of risk, the same as the operation that we carried out. The operation that we carried out needed to - that the pharyngeal pouch needed to be further dissected. So, there was a partial dissection of the pharyngeal pouch. One would assume in the normal course of events there was - - -

GUMMOW J: But was there the same risk to the nerve?

MR HIGGS: Yes. There was a difference in the procedure because the dissection - - -

GAUDRON J: Or was it a risk to the left laryngeal nerve - - -

MR HIGGS: Sorry, there was the same risk of perforation and, once that was there, then the same consequences flow.

GUMMOW J: To the other nerve.

MR HIGGS: Yes.

GUMMOW J: To the good nerve.

MR HIGGS: To the good nerve. But I do not want to mislead your Honour. The evidence was confined to this; that there was the same risk of perforation and, hence, consequential mediastinitis, because any perforation, provided it was a full perforation, even if it was very small, led to the same risk of mediastinitis. The references in that regard - Professor Benjamin gave evidence at page 116, from lines 30 to 40, where he was asked about the procedure that was carried out on 7 June 1985 and he was asked this question:

Was that a procedure that had less risks associated with it so far as say rupture of the oesophagus was concerned than the earlier procedures?

It has less risks but it still does have that risk of ruptured oesophagus.

And Dr Lewkowitz, at page 110, line 23, I think it is, to about 25 was asked - he is not so strong, but he gave evidence:

Q. The procedure that Dr Chappel carried out in 1983, as I understand it, can now be carried out using laser rather than ordinary electric current to cut. Is that right?

A. Yes.

Q. With the use of laser perforation is still a recognised complication, is it not?

A. Yes.

I think that the references about even a minor perforation causing to mediastinitis, I have already given those, 118, line 50, and at page 100 at about line 10.

Your Honour Justice Gummow in the course of argument asked my learned friend to address whether or not there is any different approach that should be made, depending upon whether the claim is made in contract or tort. In our submission, there should not be, and the starting point is this. The duty of care is the same - and authority for that proposition is to be found in Hawkins v Clayton, and the reference that we have given in footnote 11 on page 7 of the written submissions.

GAUDRON J: Is there not this difference though? If you were to succeed on causation in tort there would be a verdict for the defendant, but in contract there would be a verdict on proof of failure to warn, with perhaps nominal damages. Is that not right?

MR HIGGS: Your Honour Justice McHugh, in Alexander v Cambridge Credit (1987) 9 NSWLR 310 considered the point on causation. At page 357, at about point G, your Honour considered the case of Simonius Vischer v Holt & Thompson, and in relation to the question of causation, that was a negligent audit case, your Honour said:

In principle the same rule must apply in the law of contract unless the terms of the contract require the sole or dominant cause to be determined.

McHUGH J: That is a different issue. What Justice Gaudron is putting to you concerns causes of action. Upon breach of a contract the cause of action is complete; the plaintiff is entitled to a verdict; it might only be for one cent. What other damages the plaintiff recovers no doubt depends upon causation, and the tests are the same, the principles are the same for contract and tort. Damage is the gist of the action for negligence so the plaintiff must prove damage. But in contract, to have a cause a action, all she has to do is prove a breach of duty, and on your admission there has been a breach of that duty, and on any view of this case the plaintiff is entitled to a verdict for something.

MR HIGGS: Your Honour, in relation to that, if that be so, our submission is that the damages would be nil.

McHUGH J: It cannot be nil, it has to be a verdict for the plaintiff for something. It may be only nominal, but there has to be a verdict on your own admission. There is no way you can get a verdict in this case.

MR HIGGS: Your Honour, the only other proposition that I could put forward in that regard is that, in the same authority at 352 at about point C, that was at a time when the "but for" test was the test for causation in tort.

McHUGH J: But I appreciate that. I would not retract a word that is written on those pages, but we are dealing with two different - - -

MR HIGGS: I would not expect that your Honour would.

McHUGH J: No, I have retracted plenty of statements in my judgments, in some anyhow.

MR HIGGS: In March v Stramare.

McHUGH J: In some, but it is a question of proving a cause of action and one has to prove damage in negligence. One does not have to prove damage to have a cause of action in contract.

MR HIGGS: Yes, your Honour, I cannot advance it any further. They are our submissions.

KIRBY J: May I ask what is your attitude to the application that has been foreshadowed on the behalf of the respondent?

MR HIGGS: We would not oppose that.

KIRBY J: Yes.

MR DONOHOE: Your Honour, may I correct one matter? I gave a wrong answer to a question from Justice Kirby. I was referring to the cross-examination at 68 and I was asked whether there was evidence about cancer in untreated pouches. My learned friend did explore that. Dr Lewkovitz at 113 to 114, I apologise.

GUMMOW J: What is this application that you do not have any opposition for?

MR DONOHOE: I seek leave to file a notice of contention, if leave is granted to my learned friend, to amend his notice of appeal.

GUMMOW J: What would the notice of contention be?

MR DONOHOE: That, even if one approaches the quantum on a probabilities basis, his Honour was right for different reasons.

GUMMOW J: Yes, I see.

KIRBY J: That is on the loss of chance basis?

MR DONOHOE: Yes.

GAUDRON J: Yes, that is interesting. Well, that along with the question of the amendment of the notice of appeal will be reserved for final decision and I take it, just to be sure about this, that both parties have said all that they wish to say, both of the grant of leave and on the consequences should leave be granted.

MR HIGGS: Does your Honour want us to file a document within a time setting out the amendment in the way that we have outlined?

GAUDRON J: Yes, within seven days and similarly the notice of contention within seven days thereafter. And, of course, as already indicated Mr Donohoe has leave to file some written submissions on the English case, to which Justice Gummow referred, within seven days with a right of reply to you within a further seven days.

MR HIGGS: If your Honour pleases.

KIRBY J: And he would have come back with the notice of amended appeal after lunch.

MR HIGGS: Your Honour, we were not as lazy as perhaps your Honour might - we were looking at the contract point. We thought that that would have been of greater help and I do apologise. We should have handed some notes over the luncheon adjournment.

GAUDRON J: The Court will reserve its decision in this matter.

AT 4.11 PM THE MATTER WAS ADJOURNED