Green v Chenoweth B67/1997 [1998] HCATrans 424 (20 November 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B67 of 1997

B e t w e e n -

ROBYN PATRICIA GREEN

Applicant

and

JOHN CHENOWETH

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 20 NOVEMBER 1998, AT 10.07 AM

Copyright in the High Court of Australia

MR A.J.H. MORRIS, QC: May it please the Court. I appear with my learned friend, MR A.C. BARLOW, for the applicant. (instructed by Gilshenan & Luton)

MR S.C. WILLIAMS, QC: May it please the Court. I appear with my learned friend, MR T.D.O.J. NORTH, for the respondent. (instructed by Flower & Hart)

GLEESON CJ: Yes, Mr Morris.

MR MORRIS: Your Honours, in our submission, the duty of a medical practitioner to warn a patient of material risks is susceptible of analysis in accordance with Professor Hohfeld's scheme of rights and duties as involving a right on the part of the patient, a right which, in our submission, consists in the right of having the chance to make an informed choice based on an understanding of all the material risks. The breach of that duty, in our submission, deprives the patient of that valuable and substantial right.

GLEESON CJ: Mr Morris, a question arises as to whether this case is an appropriate vehicle for the determination of that issue, having regard to the way in which it was conducted at the trial. I have in mind what appears on page 21 of the application book.

MR MORRIS: Yes. Your Honours, in our submission, the fact that a concession was made at first instance does not detract from the suitability of this case as a vehicle to determine the special leave questions.

GLEESON CJ: But it produced the practical consequence that the trial judge did not make findings that would be appropriate to a resolution of that issue.

MR MORRIS: It only produced that practical consequence if it is assumed that the trial judge would not have taken the same view of the law unless the concession had been made. It appears that his Honour regarded the concession as a correct one and, in that sense, in our submission, the concession did not ultimately impact on the outcome of the hearing at first instance.

The fact is that the learned primary judge found that there was a chance that the plaintiff would have declined treatment but a less than 50 per cent chance. In our submission, this is a rare opportunity for the Court to decide the question which was left unresolved in Chappel v Hart as to whether or not a plaintiff in such circumstances can be compensated for the loss of a chance which equates to less than 50 per cent.

GLEESON CJ: What would be the order that you would seek if the appeal were to succeed?

MR MORRIS: That the matter be remitted to the primary judge so that his Honour can quantify that chance and award damages in accordance with that appropriate quantification.

GLEESON CJ: Thank you.

MR MORRIS: Your Honours, in our submission, there are a number of powerful reasons why this Court should reconsider the issue of compensating a patient in a failure to warn case of the loss of a chance. The issue is clearly one which both the Court of Appeal, in this case, and also the High Court in Chappel v Hart regarded as warranting further consideration. In this case in the Court of Appeal Justice Pincus at page 33 in the appeal record, in the leading judgment, referred to the fact that:

it would be desirable to attempt to deal with the appellant's argument by accurately defining the limits of the Malec doctrine -

but expressed the opinion -

that the present state of authority makes that a hazardous course.

And therefore indicated that he would dispose of the case -

more narrowly, on the basis that where what is complained of is bad advice, or lack of advice, the plaintiff cannot succeed without showing, on the balance of probabilities, that some relevant consequence ensued from the wrong;

I might pause at that point to say that we really do not quibble with the way in which his Honour expresses that in stating that the plaintiff must show:

on the balance of probabilities, that some relevant consequence ensued from the wrong;

Our submission, however, is that the relevant consequence is the loss of the chance, not the loss of a chance which is greater than 50 per cent and, in our respectful submission, the members of the Court of Appeal led themselves into error by assuming that a loss or damage is only sustained if the chance which is lost is a greater than 50 per cent chance.

A number of the members of the Court in Chappel v Hart referred to the potential application of "loss of chance" principles in medical negligence cases and specifically failure to warn cases. May I take your Honours very briefly to Justice McHugh in Chappel v Hart (1998) - - -

GUMMOW J: That is a dissenting judgment.

MR MORRIS: That is a dissenting judgment but it is significant to refer to the dissenting judgment because the majority considered that the case could be disposed of without referring to the "loss of chance" principles. It was the dissenting judges who had to dispose of the - - -

GUMMOW J: I am not sure that puts it accurately, Mr Morris.

MR MORRIS: I am trying to put it succinctly and, perhaps, therefore suffering in terms of accuracy.

GUMMOW J: You were trying to put it in a way that helps you and I understand that.

MR MORRIS: Your Honours, nonetheless, it is relevant that the dissenting judges did refer to the "loss of chance" principles but, at your Honour's suggestion, perhaps I should go to one of the majority and, particularly, Justice McHugh's judgment which is, of all of the judgments, that which analyses this issue most closely. I refer to paragraph [93] in his Honour's reasons which is - - -

GUMMOW J: Is there any judgment in the majority that deals with this?

MR MORRIS: This is a majority judgment, as I understand it.

KIRBY J: You said Justice McHugh.

MR MORRIS: I am sorry. I started with Justice McHugh. I was then going to Justice Kirby's judgment at paragraph [93]. In paragraph [93] it is split into a number of numbered subparagraphs and that dealing with the valuation of the loss of the chance is subparagraph 9 where his Honour observes that:

A further way in which, in some circumstances, the difficulties of causation for a plaintiff are alleviated is by treating the plaintiff's loss as a "loss of chance". In cases in which this approach is permissible, it may allow evaluation of the plaintiff's loss in terms of comparing the chances of suffering harm ( given the breach which has occurred) against those that would have existed (if the breach is hypothesised away).

Reference is made to an earlier case in which his Honour indicated his:

attraction to this approach as a more rational and just way of calculating damages caused by established medical negligence.

KIRBY J: There have been cases of this kind in Canada and in England and I think the United States. Have there been any such cases in Australia where the whole thing, as distinct from talking about it, where the Court has held that "loss of chance" theory can be applied to medical negligence?

MR MORRIS: There has been no such case directly on that point and that, indeed, is why, in our submission, this is an important case for granting special leave because, in our submission, there is no rational unity to the suggestion that the "loss of chance" principle applied in other branches of the law should - - -

GUMMOW J: What is the "loss of chance" principle? I go to a medical practitioner, I get bad advice and I get a wound which disables me. I am not complaining about loss of chance. I am complaining I cannot walk.

MR MORRIS: Well, that, in a sense, was the type of case that was considered in Chappel v Hart where the complaint was about the outcome of treatment - - -

GUMMOW J: That was your client's complaint here too.

MR MORRIS: My client's complaint - - -

GUMMOW J: She had a surgical procedure and she suffered grievously as a result, so she said. That was her case.

MR MORRIS: My client's complaint can, in our submission, be put slightly differently. It can be put in these terms. What she complains about is that the negligence which was found on the part of the medical practitioner deprived her of the right to make that choice for herself, whether she would take the risk or not. She had, in that sense, it forced upon her to take the risk because she was not informed that the risk existed. That is the chance that we say she was deprived of.

I was starting to say that to categorise medical negligence cases differently from other branches of the law deprives the law of rational unity and, in our submission, that can most starkly be illustrated by comparing this case with cases involving, for example, gambling losses or the locus classicus of Chaplin v Hicks where the loss was the loss of an opportunity to take part in an audition for a theatrical engagement.

In our submission, if the sort of analysis adopted by the Court of Appeal in this case were applied in 1911, the English Court of Appeal would have said this lady was one of 50 who had a chance of participating in an audition. Only 12 were to be selected so her chance was well less than 50 per cent, therefore she has lost nothing of value. What, in fact, she lost was the chance of getting that engagement, the chance of obtaining a benefit and the loss of that chance was compensable although discounted because it was less than a 50 per cent chance.

KIRBY J: But if you were looking for a good vehicle to test this theory, you would choose a case such as the one that went to the Supreme Court of Canada where there was a failure to diagnose cancer or like CES which came up to this Court but was then settled where there was a failure to diagnose a pregnancy. That sort of case presents the issue very clearly whereas, especially in the light of the factual concession, your case has complications for looking cleanly at the issue which is presented in the way the Supreme Court of Canada had to.

MR MORRIS: May I say two things about that? Firstly, in my submission, a concession made at first instance was not a factual concession. It was a legal concession as to the standard of proof which applied. It involved no concession on the facts but, putting that to one side, in our submission, one will seldom see a clearer case than this one where the patient was in the usual position of being advised to undergo medical treatment but not being told about the risks of that treatment and, therefore, losing the chance of choosing one way or the other whether or not to undergo that treatment.

In our submission, what makes this a particularly suitable vehicle for special leave and for the determination of the issue of principle is that one has in this case clear findings from the learned trial judge to the effect that there was a chance but it was a less than 50 per cent chance.

Your Honours, may I say that, in our submission, one of the powerful reasons why this area of the law should be reviewed is that the decision of the Court of Appeal leads to a situation which is always in the favour of the defendant in medical negligence cases involving a failure to warn. If the failure to warn deprives the plaintiff of the opportunity of choosing whether or not to go ahead with the medical procedure, and that chance falls between zero per cent and 50 per cent, the plaintiff loses, but then applying the Malec v Hutton principle, if the chance is between 50 per cent and 100 per cent, whilst the plaintiff wins, the plaintiff's damages are discounted to take account of that contingency.

What we submit, and I cannot put it any better than to say in terms of ordinary fairness, it seems extraordinary that the law operates in such a way that a person who loses the benefit of a 49 per cent chance loses altogether but the person who loses a 51 per cent chance does not win altogether, wins only to the extent of recovering 51 per cent of the damages which would otherwise be quantified.

We would also submit that the present state of the law as articulated by the Court of Appeal leaves a situation where tortious negligence may produce different consequences than other actionable failures to give proper advice. If one considers, for example, an action against a medical practitioner for breach of a contractual duty to give an appropriate warning, the reasoning in the Court of Appeal would suggest that there is, because proof of damage is not an element of proof of liability, one does not have to establish a greater than 50 per cent chance that the patient would have chosen a different course of treatment, one need only establish the loss of the chance and then apply the Malec v Hutton methodology to value that chance. The same may be said, for example, where the cause of action is a tort which is actionable per se, such as assault.

In our submission, it does leave the law in a strange position that this principle as enunciated by the Court of Appeal applies in tortious negligence cases but not in other areas of the law. We also submit that it produces results which could only be described as bizarre - in cases where a medical practitioner's failure to warn deprives a plaintiff of two chances, one of which is less than 50 per cent and one of which is greater than 50 per cent.

Might I just take a moment to illustrate that by putting a slight twist on the facts in Rogers v Whitaker. If the plaintiff in Rogers v Whitaker had been in a situation where there was a chance that she would have declined the operation if warned of the risk of blindness, but that was less than 50 per cent, then the Court of Appeal would say she must lose; but let us say that in addition to that there was another head of damages, another component, where the plaintiff goes into the witness box and says, for example, "Had I been warned that there was even a one in 10,000 chance of going blind as a result of this operation I would have deferred buying a new pair of glasses until after the operation and, therefore, I have lost $100 of damages" then that would be recoverable.

The extraordinary thing about that is that if she proves any damages then she has proved the elements of the cause of action for negligence and applying Malec v Hutton, she can recover anything as little as 0.1 per cent chance that she would not have gone ahead with the operation and, therefore, would not have been blinded.

In our submission, those sorts of bizarre results show that the attempt to distinguish between applying one standard of proof to determine liability and a different standard of proof to determine assessment of damages, deprives, as we have said, the law in this area of rational unity. Those are our submissions.

GLEESON CJ: Thank you, Mr Morris. Yes, Mr Williams.

MR WILLIAMS: May it please the Court. May we take up one point that our learned friend raised in which we perceive, with respect, a flaw. Our learned friend analysed a case in which there is a less than 51 per cent chance that a plaintiff would have proceeded to a certain surgery, in which case, as our learned friend said, the plaintiff would fail but if the chance of proceeding to the surgery was, perhaps, 51 per cent or of not proceeding to the surgery was 51 per cent, our learned friend contended that that plaintiff would succeed but subsequently damages would be reduced for the possibility that the plaintiff might have taken a different course.

In our submission, that analysis is flawed. Once the law determines the issue of causation, in terms of a past hypothetical fact, that past hypothetical fact, even if only a probability originally, becomes a certainty. It thereafter remains a certainty for the purpose of the case. The Malec v Hutton principle does not apply then to that fact which the law has treated as a certainty. A fact relevant to causation is forever determined and there is, in our submission, no subsequent reduction of that plaintiff's damages for the possibility that a different course might have been undertaken.

GUMMOW J: Now, what do you say about the inconvenience or otherwise of this case as a vehicle?

MR WILLIAMS: I was proceeding to that, your Honour. It is our general submission that it would be difficult to find a more inappropriate case in which this question should be tested before this Court. Much has been said in terms of the concession made at the trial, but the fundamental problem arose earlier. The issue with which our learned friend wishes to entertain the Court was not pleaded and was not the subject of the minute examination in the evidence which ought to be undertaken to define, so that this Court would have the matter of the chance determined by the trial judge, in a precise way.

It was not argued before the primary judge and your Honours do not have any view from him in respect of it. The fact that it was conceded adds to that flavour. The appeal would require this Court to overlook a consistent line of authority in this Court and in intermediate appellate courts which establishes that the parties are bound by the way in which they conduct their cases at trial, that appellate courts will not, other than in exceptional circumstances and usually then confined to a point of law, not entertain an appeal inconsistent with or fundamentally different from that party's case on trial.

GLEESON CJ: Mr Williams, we would like to hear what Mr Morris has to say in reply on that question. Thank you.

MR WILLIAMS: Thank you, your Honours.

GLEESON CJ: Mr Morris, what do you have to say in reply on this question of the appropriateness of this as a vehicle to determine the issue that you wish to raise?

MR MORRIS: Your Honours, we perceive that the principal argument against this being an appropriate vehicle is the concession that was made and is referred to in the appeal book at page 21.

GUMMOW J: Not just that, not just that, lack of pleadings for a start.

MR MORRIS: Your Honours, with respect, the suggestion on lack of pleadings is an unhelpful one, because - - -

KIRBY J: But why is it, because if, in fact, you are going to get into issues of loss of chance then, according to the overseas authorities, that is the sort of matter on which you get evidence of a statistical character or you get evidence that gives a foundation for evaluating the chance but if you do not plead it and do not particularise it and do not run it at the trial, it is rather like Chappel v Hart. You are coming up here and asking this Court, at the very end of the litigious battle, to try and reimpose a new construct on the facts. This issue will come to the courts. The question is when, and in what case, and this does not seem to be a suitable case.

MR MORRIS: I take the force of what your Honour says about the evidentiary considerations where one claims a loss of chance in the sense of loss of a medical probability, for example, but in this case, the only loss of chance in issue was the chance of the plaintiff choosing not to go ahead with the operation. That was an issue on which she gave evidence, she was cross-examined by our learned friend, Mr Williams, and his Honour made findings. The findings are clear, that there was some chance that she would not go ahead with the operation if warned but the chance was less than 50 per cent.

It was then only at the end of the trial, after that issue had been the subject of evidence and cross-examination, that the question was raised in final submissions as to what standard of proof the trial judge should apply in determining that point. That was not a matter, in our submission, for pleading. It was a matter for final argument and in the course of final argument, as his Honour says at page 21 in the record, he attempted to counsel for the applicant to make a submission consistent with that which we are now putting before this Court. Counsel for the applicant declined to do so and elected, as it were, to put his case on the basis that the standard of proof was balance of probabilities and that was the end of the matter.

In our submission, that is not a matter for pleading. It is not a matter for evidence beyond that which the Court heard at first instance and which gave rise to the findings of fact which I have mentioned. The difficulty - - -

KIRBY J: Yes, but the issue is, potentially, an important one in this area of discourse and, therefore, when one looks at it from the point of view of this Court, the clearer the record, the more early the issue has been raised, the clearer the evidentiary attention to the issue, then the better is the vehicle from this Court's point of view and the Canadian case of the misdiagnosis or failure to diagnose cancer is an excellent example of what could be presented to present the issue cleanly and provide this Court with an appropriate vehicle. This case, you did not plead it, you did not particularise it and then at the end of the case, your counsel would not even address it and now you come up here and try to get us to put a new construct on it.

MR MORRIS: I accept everything your Honour says, but may I reinforce the point that the Canadian case that your Honour speaks of is where the question is one of loss of chance in the sense that had the plaintiff been diagnosed at an earlier point in time, the plaintiff lost a medical possibility of being treated successfully. This is an entirely different - - -

KIRBY J: That case will come soon enough, Mr Morris. That case will come soon enough.

MR MORRIS: But, your Honours, with respect, this is a different type of case where the chance which has been lost is the chance of making an informed judgment. That is the type of case which, in our submission, arises more commonly, where all relevant evidence was adduced at first instance because the only relevant evidence was the plaintiff's own testimony as to what she would or would not have done in the circumstances, where she was cross-examined on that and where, in our submission, the clearest possible findings were made on that issue so as to squarely raise the special leave point, the finding that there was some chance that she would have declined treatment but it was less than a 50 per cent chance.

GLEESON CJ: Thank you, Mr Morris.

MR MORRIS: Thank you, your Honour.

GLEESON CJ: The Court is of the view that this case is not a suitable vehicle for resolution of the issues sought to be raised by the applicant and for that reason special leave is refused.

Is there any application for costs, Mr Williams?

MR WILLIAMS: Yes, may it please your Honours.

GLEESON CJ: Do you resist that, Mr Morris?

MR MORRIS: Your Honours, there is nothing I can properly say in resistance to that application.

GLEESON CJ: Thank you. The applicant must pay the respondent's costs of the application.

We will adjourn for a short time to reconstitute.

AT 10.33 AM THE MATTER WAS CONCLUDED