Carey-Hazell v Getz Bros & Co

REASONS FOR JUDGMENT THE COURT: 1 The Court has before it three Notices of Motion connected with an appeal brought by Karen Carey-Hazell (the appellant) from the judgment of Kiefel J given on 6 July 2004, wherein her Honour dismissed the claims by the appellant in medical negligence against the three respondents and ordered her to pay costs. 2 On 15 October 2004, French J ordered the appellant provide security of $75,000 for the first respondent's costs of the appellant's appeal, and $75,000 by way of security for the second and third respondents' costs of the appeal. 3 On 27 April 2005 the first respondent by Notice of Motion sought that the appeal be dismissed. A similar Notice of Motion by the second and third respondents seeking dismissal of the appeal was filed on 12 May 2005. On 2 June 2005 the appellant filed a Notice of Motion seeking that she be given leave to file a Substituted Notice of Appeal (which appeared as annexure 1 to the Notice of Motion), that the Order for security of costs made by French J on 15 October 2004 be set aside, or alternatively that the Order be varied by providing a reduced amount of security for costs. 4 The first respondent was at the relevant time an Australian distributor of a St Jude mitral heart valve which was implanted at an operation on 20 June 1996 at the Sir Charles Gairdner Hospital. The second respondent was the appellant's cardiologist and the third respondent was her surgeon. 5 The implantation was not successful. Over a period the appellant subsequently suffered from blood clotting and a stroke. The valve was eventually removed and a pig tissue valve inserted. Such a valve is not as long-lived as a mechanical valve. 6 The contentions of the appellant at trial were that the mechanical valve was faulty, with the consequence that she suffered severe adverse symptoms attributable to the development of thromboembolisms and their aftermath; she was not properly advised of the possible consequences of the operation and had she been so advised she would not have embarked on it. 7 The trial lasted some thirteen days and evidence was given by eight expert medical witnesses. 8 The central conclusions by Kiefel J, [2004] FCA 853, were: '272 The applicant has been unable to establish liability in any of the respondents. So far as concerns the first respondent it has not been shown that the St Jude Medical valve was defective or unfit for its known purpose. The first respondent did not otherwise breach a duty of care owed to the applicant under the common law, assuming that such a claim remains open to her. The necessary advices about the prospect of a prosthetic valve being necessary, the risks associated with it and the need for a lifetime regime of anticoagulant drugs were provided by the second or third respondents. If it was necessary to advise the applicant of the alternative of a tissue valve, the third respondent did so. The applicant was therefore sufficiently informed. In any event I do not accept that she would have elected to have a tissue valve and not a mechanical valve. Almost all of the applicant's present symptoms and inability to work are caused by her pre-existing conditions. Had she established liability her damages would be limited. 273 The application will be dismissed with costs.' 9 On 27 July 2004, within time, the appellant filed a Notice of Appeal from the judgment of Kiefel J of 6 July 2004. That Notice of Appeal contained 42 grounds of appeal. 10 On 6 August 2004 the first respondent filed an application for security for costs and on 26 August 2004 the second and third respondents filed a similar application. 11 The applications for security for costs were heard by French J on 28 September 2004. As earlier noted, on 15 October 2004 his Honour ordered the appellant to provide $75,000 by way of security for the first respondent and a total of $75,000 for the second and third respondents. 12 His Honour further ordered: '2 The appeal be stayed until such security has been provided or until further order. 3 The respondents have liberty to apply for further security for their costs of the appeal on 7 days' notice. 4 The appellant have liberty to apply to reduce the security for costs of the appeal on 7 days' notice. 5 The appellant is to pay: (a) The first respondent's costs of its motion; (b) The second and third respondents' costs of their motion.' 13 Subsequent to the Orders of French J on 15 October 2004, the appellant has provided nothing by way of security for costs. 14 Mr T Molomby SC, who appeared for the appellant on the hearing of the motions, conceded that 'the reality now is that it is not possible to provide any security, any amount by way of security for costs'. Later Mr Molomby said that if the ultimate decision of the Court was to decline to remove the security ordered by French J, he requested that the Court nevertheless not take any action by way of striking out the matter or any relevant part of the matter so that the appellant might have time (and he suggested three months), to raise the security nevertheless from other sources. It was put to Mr Molomby if the appellant was unable to raise any amounts required for security for costs in, say four to six weeks, she would be unlikely to be able to raise it in the further time provided by a three month time limit. 15 On 2 June 2005 the appellant filed a Notice of Motion seeking to file a Substituted Notice of Appeal, which would have the effect of reducing the number of grounds of appeal to six. Whether such reduction would, in any material way, reduce the scope of appeal is moot. She asks that the security be reduced to nil or some smaller amount than originally ordered by French J. 16 On 8 June 2005 French J ordered that the two Notices of Motion by the respondents seeking the dismissal of the appeal for want of provision of security, and the Notice of Motion by the appellant seeking to file an Amended Notice of Appeal and have the amount of security for her appeal reduced, the order for security be set aside, or the amounts ordered to be paid reduced be heard before the Full Court. 17 It is with those three Notices of Motion that the Court is presently concerned. 18 The power exercised by French J to order security for costs is given by s 56 of the Federal Court of Australia Act 1976 (Cth) which relevantly provides: 19 '56 Security (1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. (3) The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given. (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.' 20 Order 28 of the Federal Court Rules deals with the making of an application for security for costs. 21 Order 28 r 4 provides: 'Where the Court orders an applicant to give security for costs, the security shall be given in such manner, at such time, and in such terms (if any), as the Court may by order direct.' 22 Order 28 r 5 provides: '5(1) Where the Court orders that the applicant provide security for costs, it may order - (a) that the proceeding on any claims by the applicant for relief be stayed until security is provided; or (b) that if the applicant fails to comply with the order to provide security within the time limited in the order, the proceeding be thereafter stayed or dismissed. 5(2) Subject to sub-rule (3), the Court may set aside or vary any order made under this Order. 5(3) Where a proceeding stands dismissed pursuant to an order under this Order, that order shall not be set aside or varied except in special circumstances.' 23 Order 52 r 20, relating specifically to appeals, provides 'Unless the Court or a Judge otherwise directs, no security for costs of an appeal to the Court shall be required.' 24 It is to be noted that French J did not direct the security to be given at any particular time. 25 His Honour, relying on O 28 r 5(1), ordered that the appeal be stayed until the security was provided. 26 French J ordered the provision of security in the context of the appellant having filed an Amended Notice of Appeal on 10 September, a Further Amended Notice of Appeal on 15 September, and a Further Re-Amended Notice of Appeal on 20 September 2004. The last document was described in his Honour's reasons for judgment, [2004] FCA 1334, at par [14] as being 36 pages long, containing 32 grounds of appeal with over 130 subparagraphs. His Honour set out the 32 grounds and commented at par [14], 'As may be seen from these grounds, the hearing of the appeal is likely to involve a wide ranging and detailed review of the evidence before her Honour with respect to challenges made to her findings of fact.' 27 French J concluded at par [3] that 'given the nature of the appeal that [the appellant] has lodged it is appropriate that she provide some security for the costs of the appeal.' His reasons for that conclusion were: '33 In my opinion, Ms Carey-Hazell has by her Further ReAmended Notice of Appeal set up, without the benefit of legal advice, a very substantial task for herself in prosecuting the appeal. She has also imposed a considerable burden upon the respondents in dealing with it. She raises numerous challenges to the trial judge's findings on matters of fact. Such questions of law as are raised appear to occupy a very minor proportion of the time required to hear the appeal as a whole. Although I am not in a position to say that Ms Carey-Hazell's appeal is without merit, the prospects of its success are not enhanced by wide ranging and detailed factual challenges and the want of any legal advice to narrow the issues before the Full Court. To the extent that it is largely a fact-based appeal, turning on the facts of a particular case, it does not raise any wider public interest issue which would weigh against an order for security for costs. … 35 In the circumstances, in my opinion, security ought to be ordered and the appeal stayed until further order. Any order for a permanent stay or for dismissal of the appeal if security is not provided will be a matter for the Full Court - Endormer Pty Ltd (In Liq) v Australian Guarantee Corporation Ltd [2001] FCA 510 per Beaumont J.' 28 In giving liberty to apply his Honour commented at par [36], 'There will be liberty to all parties to apply to vary the order if circumstances should change. In particular, there may be an opportunity for the amount of security to be reduced if the scope and likely duration of the appeal is reduced. This may lead Ms Carey-Hazell to give consideration to a serious culling of the grounds of appeal. That, of course, is a matter for her and any legal advice which she may obtain.' 29 Subsequent to the filing of the Notices of Motion by the first respondent and by the second and third respondents to dismiss the appeal for failure to provide security ordered by French J (and no doubt because of those motions) the Notice of Motion by the appellant seeking the setting aside of the order for security for costs and seeking leave to file a substituted Notice of Appeal was filed on 2 June 2005. 30 Because of the suggestion of French J referred to above, that 'there may be an opportunity for the amount of security to be reduced if the scope and likely duration of the appeal is reduced', it is necessary to have some detailed regard to the nature of the proposed appeal. 31 The proposed Substituted Notice of Appeal (together with a further ground 5(a) which counsel for the appellant seeks also to be included by leave) is in the following terms: '1. The trial judge erred in law in her consideration of whether a chip on the leaflet of the valve could cause a thrombus to develop, as follows: (a) in concluding that 'had that been the case one would have observed at explant the localised build up of material at the site of the chip' (para 201), in that: (i) she failed to give reasons for that conclusion. (ii) she failed to take into account evidence to the contrary. (b) in concluding that 'here it (i.e. material) was quite generalised across the whole surface of the valve' (para 201), in that: (i) she failed to give reasons for that conclusion. (ii) she failed to take into account evidence to the contrary from Ms Mitrangas and Ms Bethel. (iii) she took into account the irrelevant considerations that Dr. Mahon had not been called as a witness and Dr Titus had not been asked any questions on the topic. (c) in concluding that 'the observation that thrombus first develops, or develops to a greater extent, in the hinge area is unreasonable' (para 202) in that: (i) she failed to give reasons for that conclusion. (ii) she failed to take into account evidence to the contrary. (d) in concluding that "thrombus is more likely to be created because of the effects of the movement of blood through that area" (para 202) in that: (iii) she failed to give reasons for that conclusion. (iv) she failed to take into account evidence to the contrary. (e) in concluding that observation made of the valve at explant suggest to the contrary" (i.e. to the contrary that the development of a thrombus was because of the chip) (para 203) in that: i. she failed to give reasons for that conclusion. ii. she failed to take into account evidence to the contrary. 2. The trial judge erred in law in her consideration of whether the first respondent had proved that the chip did not exist when the goods left the control of the manufacturer St Jude Medical Inc, as follows: (a) in failing to take into account that there was no direct evidence of the handling of the valve prior to supply, only of system, whereas there was direct evidence of its handling by Ms Smentek and Mr Long, each of whose evidence excluded any possibility of the chip being caused by their handling. (b) in taking into account as a reason against some of the possibilities suggested for how the chip might have been caused that there was no evidence for them, while failing to take into account that there was no evidence for any of the possibilities. (c) in failing to assess the competing likelihoods of the various possibilities by which the chip might have been caused. 3. The trial judge erred in law in finding that the first respondent was not in breach of duty to warn the second and third respondents of the risk of thromboembolism, as follows: (a) her finding that the second and third respondent were well aware of the risks (para 217) was contrary to the evidence that they were not aware that the degree of risk was 2-5% per patient year. (b) her finding that the Physician's Reference Manual conveyed this warning to the third respondent (para 217), was contrary to the evidence in that the manual did not specifically warn of the level of risk. 4. The trial judge erred in law in rejecting the tender of the Review of Field Experience Reports (16.02.04 p472) The liability of the second and third respondents 5. The trial judge erred in law in failing to take into account that the risk of thromboembolism was 2-5% per year, not 2-5% absolutely. 5 (a) The trial judge erred in law in failing to find that there was a duty to warn the appellant that the risk of thromboembolism was 2-5%, whether regarded as an absolute percentage or a percentage figure per year. Damages 6. The trial judge erred in law in her consideration of damages, in failing to take into account: (a) that the salary of $40,000 offered to the appellant in 1991, and used by her Honour as a reference point, was a base salary only, to be supplemented by commissions. (b) that the removal of the valve within a year of its implanting caused the appellant to undergo two open heart operations instead of one, and therefore that when her current tissue valve requires replacement, that will be her third operation instead of her second. (c) the evidence of the second respondent that the appellant will not be able to return to work either full time or part time after a third open heart operation. (d) that the appellant was hospitalised on at least five occasions because of thromboembolic events caused by the valve, not only two occasions as stated in the judgment (para 264). (e) the significantly increased risk of mortality associated with a third open heart operation. (f) the evidence of the appellant as to domestic expenses. (g) the evidence of past medical expenses. (h) the evidence of past travel expenses. (i) the evidence of future treatment expenses.' 32 Particularly having regard to the proposed grounds one, two and six, it is important to note that an appeal to a Full Court from a judgment at a trial, is a re-hearing. As the Practice Note 1 makes plain, there is an obligation to identify what factual findings an appellant contends ought to have been made, and the reason for so contending. Further, in this case, the appellant is not seeking simply a finding that there was error in the trial, which would require the matter being sent back for re-trial; what the appellant seeks is for the Full Court to enter judgment on liability against the respondents. The orders sought by the proposed Substituted Notice of Appeal are: '1. The appeal be allowed. 2. The Orders of Kiefel J in W75 of 2001 made 6 July 2004, 2 September 2004 and 18 November 2004 be set aside. 3. Judgment be entered on liability for the appellant against all respondents. 4. The matter be remitted for retrial on the question of damages. 5. The Respondents pay the appellant's costs of the proceedings before Kiefel J. 6. The Respondents pay the appellants' costs of this appeal.' 33 Since the Orders for security of costs by French J, the appellant now has the benefit of legal advice and legal representation, and it was submitted that the reformulation of the appeal has resulted in a much more organised appeal, within a shorter compass than that presented to French J. 34 Ground 1 essentially is a complaint that various conclusions were reached without reasons being given and matters not taken into account in the judgment. It was said that all of those can be dealt with by looking at the judgment and 'no more'. 35 It was contended that similarly the scope of enquiry on the appeal in respect of the matters referred to in grounds 2, 4 and 6 are matters which could be argued on the proposed appeal in the orthodox way and would not require extensive and time‑consuming reference on the appeal. 36 These submissions are disputed by counsel for the respondents. Mr. Villa for the first respondent contended that 'this reformulation does not give rise to a simple, narrowed scope of appeal'. 37 The conclusions by the primary judge, he submitted, have to be examined in the context in which the issue to which the conclusion arises, which includes the extent to which the issue was in dispute between the parties and what relevance the issue played in the case as a whole. By way of illustration, it was submitted that the conclusion expressed in par [201] of the primary judge's reasons has to be looked at in the context of par [117] to par [129] of those reasons, where there is a detailed description and analysis of the various opinions given by the experts on both sides of the litigation concerning the chip on the valve. 38 Ground 4, dealing with the tender of the document entitled 'Review of Field Experience Reports' was said to have been only faintly pressed before the primary judge, and then only on the basis of similar fact evidence and it was rightly rejected. However, we were told that to address the issue on appeal would require inspection of the actual field reports occupying seven lever arch folders and consisting of 2,600 pages. 39 On the question of the scope of the appeal the solicitor for the first respondent, Anthony Roger O'Reilly from Minter Ellison, estimated that having regard to the matters raised by the Substituted Grounds of Appeal and based upon his experience and knowledge of the conduct of the proceedings at first instance, that even if the appellant were granted leave to file the proposed Substituted Notice of Appeal the appeal would occupy five days of hearing time. 40 The evidence of Mr. O'Reilly was not the subject of challenge and indeed Mr Molomby accepted 'on any view of the matter if an appeal were to be permitted, it would involve substantial costs for the respondent[s]'. 41 However, of greater significance to the disposition of the present motions is the nature of the appeal which is raised by grounds 3, 5 and 5a. 42 The appellant now contends that while she was told by the third respondent that a mechanical valve carried a risk of thromboembolism, and that she would need to take anticoagulants, it was not explained 'how far the anticoagulants removed or reduced the risk', nor was she given any 'dimension of the risk, statistical or otherwise'. In particular, the case she wants to argue on the appeal is that the risk of thromboembolism with a mechanical valve was 2 to 5% per patient year and 'that the risk is cumulative over the number of years the patient has the valve implanted and therefore the risk of thromboembolism for a patient implanted with the St Jude mechanical valve for 10 years is 20-50% and for 20 years if 40-100%'. 43 She asserts that she was not told of any percentage risk, and her complaint now goes further. The appellant asserts, 'The implications of a risk expressed merely as a percentage per patient year are unlikely to be understood by patients. Most patients would readily grasp the point, however, if the doctor told them something along the lines of - "the risk of having a thromboembolism during the first 10 years you have a mechanical valve is about 40%. That is, studies have shown that about 4 out of 10 people who receive mechanical valves have a thromboembolism within the next 10 years." The difference between being told merely that there is a risk, and that there is a risk as just outlined, is dramatic.' 44 In support of this argument the appellant wishes to put before an Appeal Court an article by Dieter Horstkotte, Hagen Schulte, Wolfgang Bircks and Bodo Strauer, 'Unexpected Findings Concerning Thromboembolic Complications and Anticoagulation After Complete Ten Year Follow-up of Patients with St Jude Medical Prosthesis', (1993) J. Heart Valve Dis. Vol 2 No 3. This article was not before the primary judge, although a different version of it was. The article which the appellant wishes the Appeal Court to consider is said to be evidence going to the quantification of the risk of thromboembolism, and of the nature and extent of the warning that she asserts she should have been given. 45 However, that article concludes at page 300 'We conclude from our data that the expected and now proven low thrombogenicity of the St Jude Medical prosthesis may allow the lowering of the intensity of anticoagulation based on scientific facts rather than arbitrarily.' (emphasis added) 46 There is a serious dispute between the parties as to what a risk of '2 to 5% per patient year' means. The article that was not before her Honour does not conclude the matter. The assertion that there is a 'low thrombogenicity' seems difficult to reconcile with a contention that the risk is properly to be quantified at between 20 and 50% over ten years, and between 40 and 100% over 20 years. 47 The case concerning the warnings that ought to have been given, which the appellant now wishes to advance on her proposed appeal, was not run below. It is true that the appellant in par [26] to par [27] of the Statement of Claim pleaded 'thromboembolism [resulting from clotting upon the surface of the applicant's St Jude mitral valve and acute fibran thrombus thereupon] was at all material times a complication associated with the St Jude mitral valves occurring at the rate of approximately 2 to 5% of patients for every year the valve is implanted even if the patient took ant-coagulation medication (as occurred in the applicant's case)'. 48 The written submissions for the appellant at trial concerning the failure by the second and third respondents to warn, were directed to the complaint that she was not given sufficient information from either of them to enable her to make an informed choice about which valve to use. In that context, it was submitted that there was a 'failure to be told the 2% to 5% risk of clotting with the mechanical value'. There is no reference in those submissions to a rate 'per annum', or 'per patient year'. 49 It is clear that the meaning of a risk expressed as '2 to 5% per patient per year' or '2 to 5% per patient year' is a matter in serious dispute, a dispute which does not seem to have been canvassed at trial. Kiefel J said at par [95]: 'The expert medical witnesses were agreed that the development of a thromboembolism in a patient with a mechanical mitral valve such as the St Jude Medical valve and on anticoagulant drugs was uncommon but well known amongst cardiologists and cardiac surgeons in 1996'. It is difficult to reconcile a statement that the development of a thromboembolism was 'uncommon', with the quantification of the risk the appellant now propounds. 50 The primary judge noted in par [95] that 'Professor Hughes considered the rate of complications to be 2 to 5 per cent per annum if a patient is taking anticoagulant drugs.' Professor Hughes, in a report of 16 July 2002, said 'The risk of thromboembolism in a patient whose INR is well maintained between 2.5 and 3.5 is generally expected to be low, perhaps in the order of 0.5% to 2% per annum.' Later in the report he said, 'In 1996 I would warn a patient that the risk of thromboembolic events on Warfarin, even if it were under reasonable control, would be approximately 2% per annum and that the risk of haemorrhage would be approximately the same. I would also warn them that most of these events would be minor but that they were potentially life and limb threatening.' 51 There are difficulties in whether the statistical risk can be confidently stated to be of any particular order. There is further disputation as to what a risk expressed as '2% to 5% per patient year' or as '2 to 5% per annum' really means. There is the further complication that whatever be the risk of thromboembolic events, the proportion of which of those events would be minor and which would be serious is problematic. 52 What is clear is that the case that the appellant now wish to argue, namely that she should have been advised (and was not) that 'the risk of having thromboembolism during the first ten years of having a mechanical valve is about 40%', was not the case that was run at trial. 53 Where an appellant wishes to assert that the trial judge erred in not doing something that she was not invited to do at first instance, the appellant has to show that it is expedient in the interests of justice for her to be permitted to run the appeal on that basis. Even if the appellant were to overcome that hurdle, it would not be fair to permit that course, without requiring some security for the costs of the respondents on the appeal, should it be unsuccessful. 54 Given that circumstance, and the concession that the costs of the appeal to the respondents will be substantial in any event, this is not a case where the amount of security for costs ordered to be provided should be reduced or eliminated. 55 In the circumstances it is appropriate to permit the appellant a short but defined time within which to satisfy the Orders made by French J in relation to the provision of security. On what grounds the proposed appeal might be conducted is a matter that ought to be deferred until security for the respondents' costs has been provided. That aspect of the appellant's motion is reserved to the Full Court which will hear her appeal, in the event that she provides the security ordered by French J. 56 For the above reasons the Orders of the Court are: 1. The security for costs ordered by French J on 15 October 2004 to be provided by the appellant for the first respondent's costs of the appeal, and for the second and third respondents' costs of the appeal, be provided by 4pm on Friday 5 May 2006. 2. If the appellant fails to comply with the order to provide security for the first respondent's costs by 4pm on Friday 5 May 2006, the proceeding be dismissed as against the first respondent; if the appellant fails to comply with the order to provide security for the second and third respondents' costs by 4pm on Friday 5 May 2006, the proceeding be dismissed as against the second and third respondents. 3. The costs of the parties on the Notices of Motion be costs in the appeal. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.