Bourke v MacNeil S160/2000 [2001] HCATrans 177 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S159 and S160 of 2000

B e t w e e n -

STEVEN GOWAN BOURKE

Applicant

and

PETER MACNEIL

Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MAY, 2001, AT 10.38 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC: May it please, your Honours, I appear with my learned friends, MR R.L. INGRAM and MS M.A. KUMAR, for the applicant. (instructed by Denniston & Day)

MR P.R. GARLING, SC: May it please the Court, I appear with my learned friend, MS N. OBRART, for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: If it please, your Honours. Your Honours, this is an application for special leave in a case, a medical negligence case, which ran for some 12 days at first instance in which five lay witnesses and about eight expert witnesses were called.

GLEESON CJ: What would be the nature of the primary issue we would have to determine?

MR TOOMEY: Your Honour, it is really an Abalos point. The question is whether it was open to the Court of Appeal to disturb the findings of fact of the trial judge.

GAUDRON J: There is some reason for thinking that the trial judge did not deal comprehensively with the expert evidence, is there not?

MR TOOMEY: We would say not, your Honour. We would say that his Honour dealt with every part of the evidence which needed to be and that the Court of Appeal judgment misunderstands his Honour's judgment. There are references to his Honour not having dealt with things, which he clearly did deal with.

Can I shortly put the contest? The contest was between these allegations on behalf of the plaintiff applicant that he had for 15 years suffered from oesophageal reflux, that in late 1984, troubled by the fact that it was increasing he went to see a GP who referred him to the general surgeon, Dr MacNeil, who is the defendant. Dr MacNeil decided that he needed an operation called a Nissen fundoplication by which the stomach is raised and the top of the stomach is stitched around the bottom of the oesophagus. The purpose of this operation is to prevent the reflux. The operation was performed on 10 December 1984.

The applicant's case was that shortly after that he began to suffer a condition of bloating, which continued when he went back to work about four weeks or so after the operation; that by June 1985 it had prevented him doing physical work; that by November 1987 it stopped him doing even the supervisory work in his concreting business that he had done between June 1985 and June 1987.

The plaintiff also alleged that the bloating was caused by a condition named Nissen post-fundoplication syndrome, "Nissen" being the name of the operation named after the Swedish surgeon who devised it. The syndrome, it was proved, was a known syndrome and said by Dr Bambach, a specialist gastric surgeon from the Royal North Shore Hospital, to occur so as to be disabling in, to use his words, less than five per cent of cases.

GLEESON CJ: On page 74, at line 15, Justice Rolfe referred to a particular question as "essential".

MR TOOMEY: Yes.

GLEESON CJ: Do you accept that description?

MR TOOMEY: Yes, your Honour, it was essential that we prove that. His Honour resolved that question against us on the basis that the symptoms before the operation were the same as the symptoms afterwards, and that is one of the things we say it was not open to the Court of Appeal to do because there was ample evidence before the trial judge that the condition from which the plaintiff suffered afterwards was post-fundoplication gas bloat, that is the condition which arose from the operation. It could not, therefore, by definition, be a condition which had existed before the operation.

The way that the Court of Appeal decided that question against the applicant was to go into the facts and to say that on the facts his Honour had to find that the symptoms were, before and after, the same. The subtext of - - -

GLEESON CJ: The reasons appear to be summarised, do they not, on the bottom of 166 and the top of 167?

MR TOOMEY: Yes, that is correct, your Honour. That is correct. But, your Honour, essential to this complicated fact structure was the fact that his Honour believed that, as appears at 164 and 165 that the findings made by his Honour were "glaringly improbable".

Now, can I just tell your Honours what his Honour thought was "glaringly improbable"? It was "glaringly improbable", he found, that the applicant had not sought medical attention for 11 months after the operation when he said that he was suffering this condition of bloating and it was becoming worse and it stopped him working in his trade physically from six months after the operation.

The fact is that it was not disputed in the trial, as appears at page 40 in the trial judge's findings of fact, it was not disputed at line 20:

that the plaintiff was substantially disabled -

from six months after the operation and that from then on he was -

incapacitated for work -

So, what his Honour, Mr Justice Rolfe, had difficulty with was that he did not go to a doctor for 11 months, from which he drew the conclusion that he could not have had the symptoms he said he had and yet, it was not in dispute in the trial that six months after the operation he was unable to continue with physical work and this, in our respectful submission, was just one of many errors of fact made, not by the trial judge, but by the Court of Appeal.

GLEESON CJ: You would say that was an error at page 155, lines 25 to 30?

MR TOOMEY: Yes, we would, your Honour. We would, or we would put it this way, that there was ample evidence on which his Honour could find that what he was suffering from after the operation was not what he was suffering from before.

Your Honour, the question of when the symptoms came on was important for the diagnosis. The general medical consensus was that the post-fundoplication gas bloat syndrome usually manifested itself early after an operation. The Court of Appeal determined that he did not suffer from the Nissen fundoplication syndrome because the symptoms had not manifested themselves early.

Therefore, they said, as the defendant's doctors had said on the same basis, he did not suffer the syndrome but if that was wrong, if indeed the symptoms had manifested themselves so as to disable him from work within six months of the operation, the whole foundation - - -

GAUDRON J: Where is the evidence that six months was - - -

MR TOOMEY: The operation was - - -

GAUDRON J: I thought the evidence was that you would expect to see these symptoms within a few days.

MR TOOMEY: I do not know that it was as soon as that, your Honour, but his evidence and the evidence of the lay witnesses was that it demonstrated itself very soon after the operation and there was a hospital note of bloating while he was in hospital, in the few days he was in hospital after the operation. So there was evidence on which it could be found that the bloating was present then. It was full of sub-factual disputes. There was also a dispute - - -

GAUDRON J: Is it that the problem with this case - essentially, it went to the Court of Appeal on contested facts. If you look at the respondent's notice of appeal, they were really contesting factual findings.

MR TOOMEY: Yes.

GAUDRON J: And at best the facts are still in contention, are they not?

MR TOOMEY: Your Honours, that is to approach the matter on the basis that it was open to the Court of Appeal simply to substitute their own findings of fact and that, indeed, appears to us to be the basis on which they did approach it but we say it was not open to their Honours to do that because the contest on when the symptoms first manifested themselves depended upon the evidence of five lay witnesses against the inferences to be drawn from some things which were recorded by doctors between January 1985, a month after the operation, and November 1985.

GAUDRON J: But did it not also depend on the doctors having noted that they were the same symptoms as before?

MR TOOMEY: Your Honour, the note of the same symptoms as before arises initially from a report made four years later by the GP in which he said - he recorded a number of symptoms and said, ie, the same as before the operation but he did not record before the operation the crucial symptom of bloat which is the mark of the syndrome. He did not record it before the operation and yet, four years later, he said "Bloating, the same as before the operation". Now, it was open to his Honour - - -

GLEESON CJ: Was he not diagnosed as having irritable bowel syndrome before the operation?

MR TOOMEY: Yes.

GLEESON CJ: And is not bloating one characteristic of that?

MR TOOMEY: Well, it can be but there was expert evidence from the plaintiff's experts that he never suffered from irritable bowel syndrome.

GLEESON CJ: I am looking at page 126, paragraph 132.

MR TOOMEY: Yes. Your Honours, there is a difficulty with that. That formed one of the bases of his Honour's findings:

"It is my opinion that Mr Bourke had -

a condition "characterised" by -

pre-operatively by gastro-oesophageal reflux disease and symptoms of delayed gastric emptying.

The difficulty with that - you see, Professor de Carle was the defendant's expert and was vigorously attacked and one of the bases on which he was attacked was that there was a gastric emptying test done before the operation which was normal. There was not delayed gastric emptying before the operation. So, to rely upon Professor de Carle is to misunderstand or to overlook some of the evidence as to the plaintiff's pre-operative condition.

Your Honours, there were many, many twists in the facts. His Honour considered them, recognised the conflicts, recognised that the essential matter to be determined was first, was there a change in the symptoms; second, when did it manifest itself? On the basis of ample evidence, his Honour made that decision and we say it is very difficult to demonstrate it in 20 minutes but we say that in many, many ways the Court of Appeal was mistaken, factually mistaken as well as, we say, mistaken in law on what it was open to them to do in overturning that decision. It really makes a mockery of Abalos if this can be done.

GLEESON CJ: I am not sure that is a fair comment, Mr Toomey. Whether the reasons of Justice Rolfe were right or wrong, he gave elaborate reasons for disagreeing with the trial judge, not on the basis that he was simply looking at the facts again and, in effect, ignoring what the trial judge found in deciding for himself.

MR TOOMEY: Yes. Well, can I give your Honours some instances of where, we say, his Honour Mr Justice Rolfe was factually in error? At page 154 - this was in the context of his Honour considering the significance of Mr Bourke not having reported his post-operative symptoms to doctors in the early time - he said:

There are difficulties, in my opinion, with his Honour's findings. First, Mr Bourke never said that, contrary to the fact, he reported improvement or absence of symptoms to the doctors, when there was no improvement or no absence of symptoms. There is, of course, the evidence of Dr Bambach that some patients do not complain to the operating surgeon. However, this was not a situation in which there was a lack of complaint but, as I have said, a positive assertion of improvement.

So his Honour says one explanation for this which has been advanced by discount because he did not just not complain, he positively asserted improvement. If one looks at 119 where what Dr Bambach said is set out, at line 30:

That is an interesting point in surgery, because it is well recognised that when patients come back to see their surgeon after having had what is a fairly major operation they will not infrequently report that they are doing well, that they don't have symptoms, but everything is fine -

In other words, the very thing which Mr Justice Rolfe said was not present, the report of improvement rather than the report of lack of symptoms, was present in what Dr Bambach had said. Justice Rolfe, at page 165, after citing Devries, said that:

his Honour acted on evidence which, at the least, was "glaringly improbable".

The evidence was glaringly improbable, according to his Honour, because the man must have gone to see a doctor and must have complained earlier than 11 months but he did not deal at all with the fact that it was accepted in the trial that he was incapacitated for physical work after six months and it would not have happened like that. It would not have happened in a day. His evidence, that of his three workmen and that of his wife, was that he was having difficulty from, virtually, the time of the operation and certainly from the time he went back to work he was unable to work and he had bloating which had not been present.

Now, your Honours, that was a matter of fact. The trial judge saw those five witnesses and had to weigh up the sort of man it was who had not made complaint, who had, I might remind your Honours, suffered oesophageal reflux with pain for 15 years before the operation, something which his Honour would have taken into account but Mr Justice Rolfe did not in regarding the evidence as "glaringly improbable".

His Honour went on to say that:

the evidence is at odds with evidence which, in my opinion, was "incontrovertibly established", viz the histories given by Mr Bourke to the various doctors.

What was incontrovertibly established, perhaps, was that the histories had been given. In the light of what Dr Bambach, the gastric surgeon, had said that did not incontrovertibly establish the truth of them.

GLEESON CJ: Thank you, Mr Toomey. Yes, Mr Garling.

MR GARLING: If your Honours please. Your Honours, may I remind your Honours there are two applications for special leave, only one of which can be relevant, namely the one numbered 160. It goes to issues of liability. No 159 goes to issues of the method of assessment of damages and the principles involved. That is a hypothetical question, the Court of Appeal not having delivered any decision on those issues.

In the event that 160 of 2000 was to succeed, the appropriate course would be for this Court to, in our respectful submission, remit the matter to the Court of Appeal for the determination of the balance of the undecided issues.

MR TOOMEY: We agree with that, with respect.

MR GARLING: Your Honours, on the question then of application in proceedings No 160, we submit, firstly, that there is no point of general importance and the application does not appear to be put on that basis. Secondly, we submit that at pages 169 and 170, Mr Justice Rolfe correctly adverted to the relevant principles of law to be found in that series of cases, the most recent of which is State Rail Authority v Earthline Constructions.

Your Honours, we submit that when one examines thirdly, the reasons that led his Honour Justice Rolfe to the conclusions which he did, which are set out at pages 166 through to 168, that the exercise in which he had engaged was a legitimate and correct exercise of the principles of law governing the question of appellate intervention.

Your Honours, it will not be of assistance to the Court if I were simply to regurgitate by reading those pages, but the attacks which my learned friend brings to bear on those reasons, we submit, do not carry the day. May I take your Honours to those reasons to make good that point? At the bottom of 166, about line 35, the first reason given by his Honour was that he was:

satisfied -

that the plaintiff was -

suffering from the same symptoms before the operation as after it.

He took that satisfaction from essentially contemporaneous documents. May I remind your Honours that one of the features of this case was that the pre-operative histories were generally referred to the year 1984. As my learned friend has told your Honours, the operation was in December 1984 and the post-operative histories were in the course of 1985. The evidence in this case was given in 1997 so that a period of between 12 and 13 years had passed between the happening of those events and the giving of evidence.

In those circumstances, we submit, the role of the contemporaneous documents, ie, the doctors' notes recorded by them at the time achieved a degree of significance which the trial judge did not accord them, but which Justice Rolfe and the Court of Appeal did.

Your Honours, we next submit that if one looks, in particular, at the reasons at page 167, about line 35, paragraph 233, Mr Toomey attacks the finding of "inherent improbability" saying that there was no dispute at the trial that the applicant was disabled from physically working in June 1985.

Your Honours, that is not the point that Mr Justice Rolfe is dealing with. In our respectful submission, the point he is dealing with is there was no consultation with a medical practitioner of any kind, either the treating surgeon, the general practitioner or anyone else in a period during which the applicant claimed he was extensively disabled and no reference by the trial judge to that apparent disconformity.

In those circumstances, we submit, your Honour, the reason which Justice Rolfe gives on that page is entirely correct and more so is it correct that the question of actual disability from physical work needs to be considered against the background that his Honour found that there was another disorder present, both before and after the operation and that is to be noted at the bottom of 167 and 168.

My learned friend, your Honours, took your Honours to the extract of the evidence at page 119 of Dr Bambach and read to your Honours the extract from Dr Bambach's quotation. Your Honours, may I just ask your Honours to read just a few words more than my learned friend did in respect of Dr Bambach's evidence, because what Dr Bambach there said was whilst it may be that patients do not complain to their operating surgeon what does happen, in his experience - and, of course, it was a hypothetical one - he says:

then they will go and see someone else not so long after, a physician or their local doctor, and say something which is quite different.

It was that element, your Honours, which was absent in this case.

Your Honours, we submit that the construct put forward by the applicant, namely that there were findings based on credibility and demeanour which ought not to have been interfered with, overstate the role of credibility and demeanour in this case. May I ask your Honours to go to page 23 of the book at line 35, which is where the trial judge seems to have made his finding, which can be described as his finding of credibility and demeanour with respect to the applicant. The trial judge says:

I also bear in mind the danger of accepting too readily, the evidence of a patient, such as the plaintiff, who, with the benefit of hindsight, has had an unfortunate result of surgery. In this regard, however, I found the plaintiff and his wife to be honest witnesses, unsophisticated, but truthful.

Your Honours, that is a finding which may be accepted by us. It says nothing about the accuracy of their evidence 13 years on when compared with contemporaneous documents. An "honest", "truthful" and "unsophisticated" witness can, quite mistakenly, give an account of facts from 13 years ago so as to paint a picture which is not accurate. It says nothing of their honesty or truthfulness that their belief is not an accurate one.

In those circumstances, we submit, it is open to a Court of Appeal as Justice Rolfe engaged in the exercise of doing, which is to establish the accuracy of the facts of what occurred. Such a finding, we would submit, does not impinge upon that.

Your Honours, we submit that the application by the applicants, as I earlier put but which we re-emphasise, understates the role of contemporaneous documents which were recorded at a time well before the litigation commenced in circumstances where there was no reason for those doctors and their notes that they made to be anything other than accurate. Your Honours, the applicant in the course of the trial made no particular attack on the recording of those histories nor was it suggested that any of the doctors had a motive to do anything other than to record them accurately.

Your Honours, as we have earlier put, we submit for the reasons set out by his Honour Mr Justice Rolfe, the exercise he engaged in was correct. May it please the Court.

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, may I take you to the bottom of page 32 of the book:

The issue of causation depends to a large extent on the acceptance as to when the symptoms of `gas bloat' first manifested themselves. All the experts seem to agree that it can be a complication following Nissen Fundoplication surgery. The evidence is that generally, the symptom disappears over a period of time. However, in a small percentage of cases, it can persist.

I told your Honours what Dr Bambach said -

On the one hand, we have the statements recorded in the reports of Dr MacNeil, Dr Fleming, and to some extent, Dr Childs, that the plaintiff was greatly relieved following the operation. However, on the other hand, we have the evidence of the plaintiff supported by his wife and lay witnesses, Mr Murphy, Mr Millward and Mr Burgess, to the effect that the plaintiff suffered serious and incapacitating bloating from the immediate post-operative period onwards.

I think the plaintiff, in his unsophisticated way, may have reported improvement or indeed absence of symptoms to the doctors when he saw them. However, I think the true position is, that, he did suffer these symptoms from the early post operative period, but tended to dismiss them originally, as he thought that they were part of the normal post operative sensations which he had been told to expect.

And his Honour goes on.

Now, your Honours, that is not a finding that there was a determination made on any basis other than the fact that his Honour, having seen five witnesses who gave evidence on the crucial, factual basis of when the symptoms manifested themselves, that on the credit of those witnesses, accepting that the plaintiff had made the other statements to the doctors, still his Honour thought that the credit of those witnesses was such that it established that he had had the symptoms at the crucial time.

In our respectful submission, no matter how one applies sophisticated techniques to it, there is no way of overcoming that. What the Court of Appeal did was to use 100 pages to explain why his Honour was wrong without, in our respectful submission, ever giving to the credit finding of his Honour, the weight which Abalos and Devries, Brunskill, Jones v Hyde, all say must be given. How can it be said to be "glaringly improbable" that he did suffer the symptoms?

There were four experts, including, I might tell your Honours, the defendant MacNeil, who had, at some time, diagnosed the plaintiff as suffering the post-fundoplication syndrome. Dr MacNeil in November 1986 was recorded as saying that he believed the plaintiff may be suffering, he described as the late effects, of the post-fundoplication operation and he was referring to this gross and disabling bloating which the plaintiff suffered from that time. May it please, your Honours.

GLEESON CJ: The outcome of this appeal turned upon issues of fact which were, and remain, in contention. The approach adopted by the Court of Appeal to its consideration of those factual issues discloses no error of principle and the case does not raise an issue which warrants a grant of special leave. The application is refused with costs.

MR TOOMEY: If the Court pleases.

GLEESON CJ: Both applications are refused with costs.

AT 11.12 AM THE MATTER WAS CONCLUDED