Gilchrist & Anor v Down [2010] HCATrans 24 (12 February 2010)

Last Updated: 17 February 2010

[2010] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A11 of 2009

B e t w e e n -

PAULINE ANNE GILCHRIST AND PHILLIP CONNOR

Applicants

and

REGINALD ALAN DOWN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 FEBRUARY 2010, AT 10.29 AM

Copyright in the High Court of Australia

MR M.B. MANETTA: May it please the Court, I appear for the applicant. (instructed by Boylan & Co)

MR A.R. HARRIS, QC: May it please the Court, I appear with MR S.J. DOYLE for the respondent. (instructed by Wallmans Lawyers)

FRENCH CJ: Thank you. Yes, Mr Manetta.

MR MANETTA: This case involves a short point, but an important one, and that is the proper sphere of the operation of objective considerations.

FRENCH CJ: Do you not face the problem that your client is disbelieved?

MR MANETTA: On the contrary, your Honour, she was found to be a truthful, honest - - -

FRENCH CJ: No, but in relation to the question of what she would have done had she been told of the greater risk ratio?

MR MANETTA: Yes. It is not so much a question of disbelief as the proper inference is that subconsciously she is tailoring her evidence, but that is only - - -

KIEFEL J: I think that might be doing disservice to her. I thought what the court was trying to say is that people can quite honestly, believing what they say, say that if I had been warned of this additional risk, I would not have undertaken the operation, whereas human experience that the court brings to bear might suggest that they are perhaps underestimating, with hindsight, what they would have done, that the object that she was attempting to achieve was of sufficient importance to her that it is unlikely that the difference in degree of risk would have really altered her in the pursuit of her objective. I think that is really what the court is saying, is that human experience brought to bear might suggest that however honestly she puts forward her evidence, it should not be accepted as evidence of truth in fact of what she would have done.

FRENCH CJ: I think the passage I have in mind, Mr Manetta, is at paragraph 166 of the trial judgment at page 35 of the application book:

Against the background I have outlined, her evidence is unconvincing. I do not suggest she was being untruthful when she gave that evidence.

So there is no question of her honesty.

MR MANETTA: Yes. Firstly, if I can address, the trial judge there was labouring under the erroneous methodology that the Full Court corrected, namely, that the analysis of risk ratio and having found that she did not conduct any analysis in her head of the relative risk associated with the surgery, she had, as it were, an irrational determination to proceed with the surgery irrespective of the risk, but that finding was overturned in the Full Court.

FRENCH CJ: No, you are referring there to 54 at page 55 in the judgment of Justice Anderson. I am just looking at how they dealt with it. They said:

the reasoning of the judge was over-analytical. It was not necessary to attempt to rationalise G’s evidence in terms of numbers, ratios or percentages.

MR MANETTA: Yes, and also at paragraph 34 and following on page 51 of the application book.

FRENCH CJ: Yes.

MR MANETTA: There is a highly analytical approach and it was not appropriate. At the bottom of the page:

her evidence regarding the numerical risk figure was confused. That much is clear, but in my view that is a product of the questions she was asked and her rather simple and basic approach to the whole topic.

The point I want to make in response to the questions earlier addressed is that when a court finds that a witness is not to be believed, even though he or she was an honest witness, it is usually because of a subconscious tailoring of evidence in response to some catastrophic or other outcome of the medical negligence case, as the operation in question, or one or other of what I have called “contaminating factors” in my outline. Where there are no contaminating factors, such as in the case at bar, then there is no basis to disbelieve an honest witness and in that respect, objective considerations, what a reasonable person would do, no longer becomes a relevant test and should be discarded. But in deference to the objective test, which is really a test only to be used in cases involving contaminating factors, in deference to that, their Honours have applied the objective test on the view that a reasonable person in the applicant’s place would have proceeded with the surgery notwithstanding and that therefore this applicant must be disbelieved.

In doing that, the court fell into error, I think, in following the obiter dictum of Justice McHugh in Rosenberg’s Case to the effect that objective considerations will almost always be the most important factor. Whether or not it is fair to say they should be the most important factor in cases involving contaminating factors, namely, considerations which might otherwise compromise the reliability of evidence of an otherwise truthful witness, whether they are the most important factor, they should not really be a factor at all where there are no contaminating factors or if they are a factor, they should just be one factor in the mix and not the most important factor.

The facts in this case are actually of short compass and quite uncontroversial. The first applicant wanted permanent sterility. She thought that the odds given of one in 2,000 were good odds. She thought that the odds of one in 1,000 were not good odds. She had no regard for the relative risks of the pill versus tubal ligation, save to the extent that she did not want the operation if it was riskier than the pill, but that does not translate into the converse proposition that if the operation were better than the pill, she wanted it. To her mind, one in 1,000 or one in 500 were not good enough odds. That is an idiosyncratic decision because it may well be that a reasonable person in her place would have accepted those odds, but the idiosyncrasy of that position is exactly what the subjective test protects in Rosenberg.

In a case such as this where there has not been any catastrophic result, the surgery is non-corrected, there is nothing wrong with her when she goes into the surgery, it is elective surgery, she does not have to have it, the result is the birth of a child, not any injury at all, let alone permanent or debilitating injury, and she is found to be an impressive and honest witness, then she should be believed and her idiosyncratic testimony should be respected because there are no contaminating factors and it should not be displaced by having regard to a reasonable person test which is only appropriate to test subjective testimony when there is a risk of it being contaminated in this way.

The problem that that translates into for principle in general is that we now have authority at intermediate appeal court level to the effect that objective considerations may be used to defeat otherwise honest evidence in a situation where there is no other factor that can be brought to bear to undermine the credibility or reliability of the evidence and that tendency is to subvert the subjective test that was laid down by this Court in Rogers v Whitaker and replace it almost by stealth with an objective test. The result of that is to reorient the course of the jurisprudence set down by this Court for the whole of the country contrary to the expressed intent of this Court. I do not know that I can put it any higher than that, but on page 55 of the judgment it is clear in paragraph 52 at point 20:

Very simply, if the respondent had informed G of the less favourable risk ratios in the published literature she would still have undertaken the procedure because even those ratios were much better than those offered by the contraceptive pill.

Paragraphs 53 and 54 are all findings based on the pure application of objective tests. They are not findings that are sustained by the evidence. That is clearest, I think, at point 30, the end of paragraph 54:

had she directed her mind to the comparison of the risks of becoming pregnant –

So there is a concession that she did not direct her mind to that –

whilst remaining on the pill as compared with the risks following the operative procedure, she would no doubt have been heartened by the considerably better odds if a tubal ligation were performed.

That is purely objective reasoning and it is fallacious in this context because if she has not turned her mind to the risks, she cannot be said to have made a choice. The only evidence we have is that she considered one in 2,000 good odds, one in 500 bad odds. She knew that the risk was small, but small does not mean that it is acceptable. It has to be acceptably small to her mind, that is the whole point of the subjective test, and quite apart from the fact that the characterisation of “small” cannot be divorced from the positive misrepresentation of one in 2,000.

FRENCH CJ: There is a risk with your approach, is there not, of constraining with a sort of rule oriented approach the rather holistic business of making a judgment of – just essentially at the end of that – a judgment of fact? You do not accept you will find the evidence unconvincing as to what she would or would not have done, you look to other external factors to make a judgment on that. It just concerns me a bit that one subdivides these approaches into subjective and objective tests. There is really a requirement to consider a whole range of facts, including, of course, and giving all appropriate weight to her own testimony.

MR MANETTA: The problem is that rules have to be applied when the court has made clear that the test that we are applying is a subjective test. Then in order to preserve the subjectivity of the test, one has to be careful about the extent to which one relies on objective considerations. The testimony was only found to be unconvincing by the application or by reference to an objective test, not for any inherent unreliability or any other of the general grounds upon which a testimony can be discredited. In fact, there are positive findings that she was a truthful, honest and impressive witness. So the only reason she is disbelieved is because she has said that she would do something which many people would not have done, or most people indeed probably would not have made the same choice, but that - - -

FRENCH CJ: The question still asked is, what would she have done? That is the counterfactual, is it not, that the court had to address?

MR MANETTA: Yes. The simple answer to that is, if she was aware of the possibility of alternative procedures, a hysterectomy being the one that is postulated, but even if there were no alternative procedures available to her which were sufficiently less risky in her mind, then the proper inference is that she would have done nothing and continue to take the pill and bearing in mind that the only reason the pill is said to have a 99 per cent success rate is because of human error in failing to take it, so there is nothing inherently risky about taking the pill, it is 100 per cent safe, absent human error. So the natural conclusion is that she would not have undergone the operation and continued to take the pill as before.

There is no basis to deprive her of her right to that idiosyncratic behaviour. Indeed, if this lady is not to be believed, it is hard to imagine a case where anyone’s subjective testimony will be believed save in cases where it actually coincides with what a reasonable person would do, though again you get the tendency of the Rogers v Whitaker test to be replaced by an objective standard which has been specifically rejected in this jurisdiction. It seems to me there is no avoiding that, there is no getting around it, that is why this case is probably the best vehicle to decide the point that if this witness is not going to be believed when she says she would have done something that most people would not have, then no witness will ever be believed except when their testimony coincides with what a reasonable person would be most likely to do in the circumstances.

So it is an ideal vehicle for the determination of a point of general importance and one which will allow the court to refine its statement of principle in the Rosenberg case to correct or confine the obiter dictum of Justice McHugh as to the operation of objective tests and to prevent the test from being diverted into the channels of objectivism and preserve the respect that is due under the test to subjective decision-making. This is one of the cases where, as Justice Cox pointed out in Gover’s Case which received the endorsement of this Court in Rosenberg, that where there has been a finding of a breach of duty, there is a finding of negligence, the court should not be excessively slow to find in favour of the plaintiff, and this is exactly an example of a court being excessively slow to find in favour of an honest plaintiff who happens to have made a peculiar choice. I would not say personally that is particularly peculiar. Surgical operations are intrusive and they are big decisions. If one in 1,000 are not good enough odds for her to undertake that decision, then that is her choice. She is an autonomous

decision-maker and it ought not to be queried. She should not be second guessed about decisions about her own body, as it were.

Another ground, perhaps, for consideration that makes this a good vehicle is that my clients are poor and they have limited education, limited prospects and they of anyone can ill afford to have a medical negligence compounded by judicial error, though in the interest of justice as well, it behoves this Court, in my respectful submission, to correct the errors below. I do not think there is anything I could usefully add.

FRENCH CJ: Yes, thank you, Mr Manetta. We will not need to trouble you, Mr Harris.

The first-named applicant for special leave contends that the Full Court erred in the approach it adopted to the trial judge’s finding adverse to the first-named applicant on the question of causation. The court was said to have erred in allowing objective considerations to dominate its reasoning in applying a subjective test. The trial judge did not accept the first applicant’s evidence as to what she would have done if told of the greater risk ratios. The Full Court criticised some aspects of the trial judge’s reasoning but accepted the conclusion that the first applicant, had she been given the additional information, would have proceeded with the operation.

The decision of the Full Court, in our opinion, on what is essentially a question of fact is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused.

Mr Harris, do you seek costs?

MR HARRIS: We do, if your Honour pleases.

FRENCH CJ: Can you resist that order, Mr Manetta?

MR MANETTA: No, your Honour.

FRENCH CJ: Special leave will be refused with costs.

AT 10.50 AM THE MATTER WAS CONCLUDED