Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344

High Court of Australia|1998-09-02|Before: Hayne JJ

The application of the foregoing principles to the facts of this case, as now established, presents difficult puzzles upon which reasonable minds may differ; as indeed they have. The strongest arguments for Dr Chappel, as it seems to me, are those which lay emphasis upon a logical examination of the consequences which would have flowed had he not breached his duty to warn his patient. Dissecting the facts in that way affords a powerful argument which would banish from consideration the events which in fact occurred in the operation which he carried out. All that would have happened, had he given the requisite warning, would have been a change in the timing of the operation and of the identity of the surgeon. For Dr Chappel, these were irrelevant changes as the evidence showed that, whenever the operation was performed and whoever did it, the tripartite chances which had to combine to produce the misfortune which Mrs Hart suffered were extremely rare. There was thus an equivalence of unlikelihood. They were risks inherent in the procedure, not wholly avoidable even by the most skilful and experienced of surgeons. In the view which Dr Chappel urged of the case, Mrs Hart was left with nothing more than the time sequence. To burden a surgeon, in whose actual performance no fault could be found, with civil liability for randomised chance events that followed the surgery would not be reasonable. It would penalise him for chance alone. It would do nothing to establish a superior standard in the performance of the work of surgeons generally.

In Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd[165], Lord Hoffmann emphasised that commonsense answers to questions of causation will differ according to the purpose for which the question is asked. The answer depends upon the purpose and scope of the rule by which responsibility is being attributed. In Rogers v Whitaker, this Court decided that "a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment" and that:

"a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."[166]

These standards have fairly been described as onerous. They are. But they are the law. They are established for good reason. When not complied with (as was held to be so in this case) it should occasion no surprise that legal consequences follow. This was an unusual case where the patient was found to have made very clear her concerns. The practicalities are that, had those concerns been met as the law required, the overwhelming likelihood is that the patient would not, in fact, have been injured. So much was eventually conceded. In such circumstances, commonsense reinforces the attribution of legal liability. It is true to say that the inherent risks of injury from rare and random causes arise in every surgical procedure. A patient, duly warned about such risks, must accept them and their consequences. Mrs Hart was ready to accept any general risks of the operation of which she was warned. However, she declined to bear the risks about which she questioned the surgeon and received no adequate response. When those risks so quickly eventuated, commonsense suggests that something more than a mere coincidence or irrelevant cause has intervened. This impression is reinforced once it is accepted that Mrs Hart, if warned, would not have undergone the operation when she did.

Although no statistical or other evidence was called to demonstrate that recourse to a more experienced surgeon would necessarily have reduced the risk of the kind of injury that occurred (and while some risk was unavoidable), intuition and commonsense suggest that the higher the skill of the surgeon, the less is the risk of any perforation of the oesophagus into the mediastinum. In 100 to 150 operations of this kind, Professor Benjamin had never experienced mediastinitis. Whilst that may indeed be the result of chance and amount to good luck on his part (and on the part of his patients) intuition and commonsense suggest that the greater the skill and more frequent the performance, the less the risk of perforation. And without perforation (already a rare occurrence) the second and third events necessary to produce paralysis of the vocal cords in a patient like Mrs Hart (occurrences even more rare) would not occur. As Gaudron J points out, the nature of the risk would be the same. But the degree of risk would be diminished. This was the view taken by the Court of Appeal[167]. It is a view which involved no error.

Once Mrs Hart showed the breach and the damage which had immediately eventuated, an evidentiary onus lay upon Dr Chappel to displace the inference of causation which thereupon arose. He failed to do so. Nor, in my view, causation being established, did he prove that Mrs Hart would have been exposed to the same, or substantially the same, possibilities of like injury if she had postponed the procedure and had it done by someone more experienced, as was her right. On the contrary, the evidence demonstrated that the chances of her receiving such injury in any other operation were minuscule. For the reasons stated those chances would probably be even smaller in the hands of a surgeon with the experience and skill of Professor Benjamin.

To the complaint that Professor Benjamin (or his equivalent) could not possibly undertake every Dohlman's operation (any more than the most skilful barrister can appear for every client) the answer comes back. This was not an ordinary patient. It was an inquisitive, persistent and anxious one who was found to have asked a particular question to which she received no proper answer. Had a proper answer been given, as the law required, it was found that she would not have undergone the operation at the hands of Dr Chappel when she did. It is virtually certain, then, that she would not have suffered mediastinitis at all. She would not have been injured. She would not have been obliged to bring her case before the courts. She therefore adequately proved causation. Dr Chappel did not displace the inferences to which her evidence gave rise. Nor was it shown that the damages to which she was entitled should be reduced on the footing that they would have occurred in any event.

As to the question of loss of a chance, Dr Chappel, by leave, added a ground of appeal to assert that Mrs Hart's damages should have been assessed in those terms[168]. Mrs Hart resisted the amendment but, in any case, said that it mattered not[169]. At trial, the only claim for damages, which she had asserted, was in respect of the physical injury done to her vocal cords and its sequelae. She neither pleaded, nor sought to prove, a case expressed in terms of a loss of a chance. Accordingly, no evidence was tendered as to the value of that chance. The case is therefore not one in which an entirely new perspective should be adopted at such a late stage. One day loss of a chance in this area of discourse will return to this Court. However, this case must be approached on the footing that the loss suffered by Mrs Hart was that claimed: physical injury and its consequence - nothing more.

HAYNE J. On 10 June 1983, the appellant, an ear nose and throat specialist, performed an operation on the respondent. The respondent, who was then employed by the New South Wales Department of Education as a Principal Education Officer - Library Services, had first been referred to the appellant in April that year because she had a persistent sore throat and was experiencing difficulty swallowing. In May 1983, the appellant diagnosed a pharyngeal pouch in the oesophagus - a pouch in the oesophagus in which food could be caught. The appellant recommended to the respondent that she have surgery and explained to her that the procedure could be undertaken through the mouth or through the neck. She chose the former method and the procedure (a Dohlman's operation using a rigid endoscope) was carried out at Mona Vale Hospital on 10 June 1983.

The respondent's recovery did not proceed as would be expected and she was transferred to Royal North Shore Hospital. There, she came under the care of other doctors. She was told that her oesophagus had been perforated in the operation. Infection set in and it became clear that one of her laryngeal nerves (the right recurrent laryngeal nerve) was damaged. This affected her voice despite the steps that were taken by another consultant ear nose and throat specialist (Professor Benjamin) to treat the damaged nerve and allow her proper use of her vocal cords. As a result of this treatment (first an injection of a gel foam paste and later a teflon injection of the vocal cords) her voice improved but she was left with a weak and husky voice, the use of which tired her.

She continued to experience difficulty in swallowing and in February 1985 had to have a grape which had lodged in her throat removed under general anaesthetic. In June 1985, Professor Benjamin undertook another procedure to treat the pharyngeal pouch. This procedure resolved that problem but left her voice as it had been after the first operation.

The respondent felt that the problems with her voice prevented her performing her work properly and in August 1985 she retired, having been assessed as medically unfit to continue in her employment.

In 1989 she began an action against the appellant in the Supreme Court of New South Wales claiming damages. The action was framed in breach of contract and in negligence. She alleged that the appellant had failed to warn her of the risks associated with the procedure and had performed the procedure negligently and that in consequence of that negligence or breach of contract had sustained injuries, namely a perforated oesophagus with "consequent division of one of the laryngeal nerves and paralysis of the right vocal cord" and had suffered loss and damage being out of pocket expenses for medical and hospital expenses and economic loss because she was unable to continue her work.

The primary judge (Donovan AJ) gave judgment for the plaintiff for damages including $30,000 general damages, $72,581.96 for past economic loss and $35,000 for the past and future economic loss of not being able to take engagements as a consultant in the years after she would have been bound to retire on account of age. An appeal against the judgment, and a cross appeal about assessment of damages, were both dismissed by the Court of Appeal. The appellant now appeals by special leave.

At trial, the respondent's claim that the appellant conducted the original procedure negligently was not pressed and no evidence was led in support of that claim. The respondent limited her claim to an allegation that the appellant had failed to warn her of the risks of the operation. The primary judge found (and it is not now disputed) that in the course of the consultation with the appellant in May 1983 the respondent told him that "I don't want to wind up like Neville Wran" - a comment which the respondent described in her evidence as being a "throw-away line" but which was taken by the primary judge to be a clear indication by the respondent to the appellant of concern for the safety of her voice. It was found that the appellant did warn the respondent that there was a risk of perforating the oesophagus in the course of the procedure but he did not warn her that the operation posed a risk to her voice. The primary judge found (and again this is not now disputed) that in the light of her reference to Neville Wran the risk to the respondent's voice was a material risk of which she should have been warned[170]. The risk was slight but if it was realised, the consequences for the respondent were large.

The central question debated on the hearing of the appeal to this Court was the question of causation. Did the appellant's failure to warn of the risk to the respondent's voice cause all or any part of the loss she claimed?

There are several features of the case which it will be necessary to bear steadily in mind.

1. The appellant's breach of duty was his failure to warn the respondent of the risk to her voice; he performed the procedure concerned without negligence. In particular, to perforate the oesophagus in the course of the procedure, while not intended, was not negligent. > > 2. The respondent's condition was one which could be treated only by surgery and her condition was one the symptoms of which, it was accepted, were correctly described by Professor Benjamin as being "relentlessly progressive". > > 3. Although perforation of the oesophagus in the course of a procedure like that performed by the appellant on the respondent was not uncommon (according to Professor Benjamin a perforation might occur once in every twenty or thirty or forty operations) it is very rare for that then to be complicated by infection of the mediastinum (mediastinitis). According to the Professor, the compromise of the recurrent laryngeal nerve, which the respondent suffered, may have been caused by operative trauma, intubation trauma during anaesthesia or spread of infection from the mediastinitis. In his report prepared in May 1994 and tendered in evidence at trial, Professor Benjamin said: > > "With respect to the paralysis of the right vocal cord and the cause, it is very difficult to say which is the most likely idiological factor. Vocal cord paralysis during or after an uncomplicated or a complicated endoscopic operation for pharyngeal pouch is very uncommon. However in view of the mediastinitis and the long term nature of the paralysis perhaps it is likely the paralysis was associated with perforation of the oesophagus and mediastinal infection." > > 4. Because the pharyngeal pouch could be treated only by surgery and because the respondent's symptoms would have grown worse over time, it was accepted that she would have had an operation of the kind she did have at some time. > > 5. The respondent swore that, if the appellant had told her of the risks to her voice, she would not have had the operation when she did but would have sought further advice because she would have wanted the operation performed by the most experienced person with a record and reputation in the field. (The primary judge accepted the respondent as a witness of truth.) There was some evidence to suggest that the better the surgeon, the less likely was there to be a perforation of the oesophagus.

The elementary proposition that a defendant is liable in negligence only if the damage suffered by the plaintiff was caused by the defendant's negligent act or omission identifies the connection between the defendant's act or omission and the plaintiff's damage as that of causation. As is said in Bennett v Minister of Community Welfare[171]:

"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense[172]. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude[173]."

The resolution of that question will often find expression in an assertion of its result without any lengthy articulation of reasons. Especially would that be so in a case where policy considerations do not assume prominence in the process.

In this case, however, it is as well to try to identify the process of reasoning that is adopted.

The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged.

If the damage of which the plaintiff complains would have happened without the intervention of the negligent behaviour, it will often be possible to conclude that the negligent behaviour was not a cause of that damage. Thus, to take examples cited in Prosser and Keeton on the Law of Torts[174]:

- a failure to fence a hole in the ice plays no part in causing the death of runaway horses which could not have been halted if the fence had been there[175]; > > - a failure to have a lifeboat ready is not a cause of the death of a person who sinks without trace immediately upon falling into the ocean[176]; > > - the omission of crossing signals by an approaching train is of no significance when a car driver runs into the sixty-eighth car in the line[177].

If, however, the damage of which the plaintiff complains would not have happened without the intervention of the negligent behaviour, it will often be possible to conclude that the negligent behaviour was a cause of that damage. Thus, the plaintiff in Rogers v Whitaker[178] would not have had surgery on her blind eye if she had been warned of the risk that the operation posed to her good eye. The negligent failure to warn her of that risk was held to be a cause of her damage.

The "but for" test is, however, neither a comprehensive nor exclusive test of causation[179]. To take but one example where its application is not conclusive, it does not readily resolve the case where two causes are at work and either of them, alone, would have been sufficient to bring about the result. If two separate fires, negligently lit by separate persons, merge to destroy the plaintiff's home, and each fire would have been sufficient in itself to cause the damage, is each of the fire lighters liable[180]? If the "but for" test were to be applied to each defendant's conduct separately then neither would be liable. And what if neither fire, by itself, would have destroyed the plaintiff's house[181]?

The "but for" test is of most use as a negative test. If it is not satisfied, it is unlikely that there is the necessary causal connection. But showing that "but for" the defendant's conduct, the plaintiff would not have suffered damage does not demonstrate the required degree of connection between the defendant's act or omission and the plaintiff's damage. The application of a "but for" test does not identify what might be called the "quality" of the causal connection. No doubt it is with this in mind, that the cases and literature use many different epithets to describe the kind of causation that is necessary - "proximate cause", "legal cause" and so on - as opposed to "causation in fact"[182]. (No doubt also, those epithets will sometimes reflect the value judgments or policy considerations mentioned in cases like March v Stramare (E & M H) Pty Ltd[183].)

The importance of examining the nature of the connection between the negligent conduct and the damage can be demonstrated in this way. If the respondent had not been operated on when she was, but had had her operation on another day, the chances are that she would not have suffered the damage to her laryngeal nerve that she did. There may have been no perforation of the oesophagus, there may have been no infection, there may have been no damage to the nerve. The whole tenor of the evidence given at the trial was that if it was the infection that led to paralysis of the laryngeal nerve (and this was the explanation favoured by Professor Benjamin in his written report) infection was such a rare event that it was unlikely (indeed very unlikely) that it would have happened if the operation had been performed on another day. Of course, the respondent did suffer a perforated oesophagus, she did suffer an infection, she did suffer paralysis of the laryngeal nerve. But if she had not attended the hospital on that day, the probabilities are that none of this would have happened. And if the appellant had told her of the risk to her voice, she would not have had the operation when she did. But precisely the same argument would be open if, instead of suffering damage to her voice, as she has, the operating theatre in which her procedure was performed had been struck by lightning, or a runaway truck, and she had been injured. But for the negligent failure to warn she would not have been in harm's way.

No doubt the case of the lightning strike or the runaway truck invite consideration of novus actus interveniens and whether, although "the earlier wrongful act or omission may have amounted to an essential condition of the occurrence of the ultimate harm, it was not the true cause or a true cause of that harm"[184]. But that is no more than a particular example of the general proposition that the tort of negligence requires a particular kind of causal relationship between the negligent act or omission of the defendant and the damage suffered by the plaintiff.

Being able to say that the damage would not have happened but for the negligent act or omission is not enough. As Windeyer J said in Faulkner v Keffalinos (where the plaintiff had been injured in a car accident, and then injured in a separate car accident before the trial) [185]:

"The consequences that flow from the second accident cannot I think be regarded as caused, in any relevant sense, by the defendants' tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident, the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened: but lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence."

In my view, the only connection between the failure to warn and the harm the respondent has suffered is that but for the failure to warn she would not have been in harm's way. The appellant's conduct did not affect whether there would be pathogens present in the respondent's oesophagus when the procedure was carried out; his conduct did not affect whether the pathogens that were present would, in all the circumstances, produce the infection which they did; his conduct did not affect whether that infection would damage the laryngeal nerve as it did. Of course, he manipulated the instrument which perforated the oesophagus but he did so without negligence.

I should mention the recent decision of the House of Lords in Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd[186]. Lord Hoffmann, who gave the leading speech, said that[187]:

"... common sense answers to questions of causation will differ according to the purpose for which the question is asked"

"... one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of that rule".

So much may be accepted. But consideration of the purposes of asking about causation in a case like the present should not be permitted to obscure the fact that the search is for a relationship between the negligent act or omission of one party and the damage which the other party alleges has been sustained.

The law of negligence may be seen as directed to several purposes but purposes of compensating the injured and promoting reasonable conduct are prominent among them. In this particular area of negligent advice by a medical practitioner it is important to bear in mind "the paramount consideration that a person is entitled to make his own decisions about his life"[189].

With these purposes in mind, it may be suggested that a sufficient causal relationship is established by showing that the subject-matter of the negligent conduct - a failure to warn of risk to the voice - is the very subject-matter of the damage. But that connection is not enough. If it were enough, it would follow that if the operating theatre had been struck by lightning and the respondent had suffered damage to the laryngeal nerve (because of the resulting power surge affecting the diathermy equipment being used in the operation) the appellant would be liable but that he would not if the power surge caused burns to her body. Similarly, it would mean that the appellant would be liable if the respondent's voice were damaged as a result of an infection stemming from some failure of the hospital to sterilise, properly, instruments or other items used in the procedure.

No doubt the fact that what I have called the subject-matter of the negligent conduct and the subject-matter of the damage are the same is important to that intuitive process of analysis that is referred to when it is said that questions of causation are questions of fact to be resolved as a matter of commonsense. But important as this consideration is, it is not determinative.

Nor is it enough to say that a purpose of this area of the law is to promote reasonable conduct by medical practitioners and, particularly, the giving of advice necessary to enable people to make their own decisions about their lives. Enlarging the circumstances in which damages will be awarded if there has been a negligent failure by a medical practitioner to advise a patient of risks may well tend to promote the giving of fuller advice. So too may the imposition of a penalty for failing to give proper advice. But the ambit of the liability is not to be decided only according to whether enlarging that ambit will promote careful conduct. The question of causation must still be answered[190]. What is the connection between the negligent act or omission and the damage sustained?

The difficulty in the analysis that looks only to whether the subject-matter of the negligent conduct (failure to warn of risk to voice) and the damage suffered (damage to the voice) are the same is that it does not pay sufficient heed to the comparison that the law requires between the facts of what happened and the hypothetical facts of what would have happened if there had been no negligent act or omission.

It was accepted in this case that, if the respondent had been given proper advice of the risks of the operation, she would, nevertheless, have had the operation which she did. She would have had it at a different time and may have had it performed by a different doctor but she would have had it done. Until she had the operation, she would have continued to suffer the discomforts and dangers that she was suffering when she consulted the appellant - persistent sore throat, difficulty in swallowing, a constant danger of food being caught in her throat. But the hypothetical situation that was to be considered was one in which the respondent had the operation in any event.

If she had had the operation at some later time and if she had engaged the appellant to perform it, the risk of her suffering the consequences to her voice that in fact befell her would, for all practical purposes, have been the same[191]. If she had been given proper advice, even if she would have then deferred the operation, that would not have altered the risk that her voice would be affected (any more than it would have affected the risk that the operating theatre would be struck by lightning).

If, on being given proper advice, she would have deferred the operation, I would conclude that the respondent did suffer damage and would suffer damage because she did not defer the operation. But the damage she would suffer in those circumstances would not be the damage to her voice - it would be the loss of the period for which she would have deferred the operation and have had her voice and her job, subject nevertheless to the continuing disabilities of her untreated condition. Thus, if, because of the failure to warn, she had the operation (say) two years earlier than she otherwise would have had it and if the damage to her voice thus occurred two years earlier than it might have occurred in a later operation, she would have lost two years of employment and attendant enjoyment of life, discounted to take account of the disabilities she would have suffered during that period of two years. But the damage to her voice would not be caused by the failure to warn.

The respondent's claim focused upon the damage to her voice. The evidence that was led, and the arguments that were advanced on her behalf, were all directed to showing that the appellant's failure to warn caused the respondent the physical damage which she had suffered (the damage to the laryngeal nerve with consequent effects on her voice) and the economic consequences that were said to follow from that damage. No evidence was led to suggest that the respondent, if advised of the risks to her voice, would have deferred the operation for any significant period. She said that she would have sought "a second opinion ... perhaps several opinions" and no doubt this would have taken time but it was not suggested that she would then have put off the operation for some months let alone years. Thus no factual foundation was laid for a claim based upon delaying the operation.

It will be seen that the comparison I have drawn is between the times at which she would have confronted the risk about which she should have been warned. It is not a comparison that involves any prediction of whether that risk would have occurred if the operation had been deferred. That is because the operation has risks even if reasonable care is exercised; those risks cannot be eliminated by the exercise of reasonable care. It was not alleged in this case that the appellant performed the procedure negligently. That is, it was not alleged that the risk which the respondent faced in undergoing this operation could be eliminated if the surgeon was careful. This is not to deny that professional performance varies: that some surgeons are better than others. But the law is not concerned to do more than enforce standards of reasonable care. The respondent could ask no more than that the doctor she engaged to perform this procedure should exercise reasonable care in doing so, and the appellant did just that.

There was evidence that if she had been properly advised of the risks to her voice, the respondent would not have had the procedure performed by the appellant, but by another doctor. There was, as I have said, some evidence which suggested that the better the doctor, the less the chance of perforation of the oesophagus. That evidence was, at best, exiguous and stopped far short of identifying any sound basis for assessing what effect the surgeon's skills may have had on the unusual chain of events which happened in this case. Nevertheless, it was submitted that the evidence permitted the conclusion that the appellant's failure to give a proper warning of the risks deprived the respondent of a chance to seek better treatment, or exposed the respondent to a greater risk of injury than she faced in undergoing the procedure at the hands of the appellant.

I deal first with the contention that the failure to warn deprived the respondent of a chance to seek better treatment.

I do not think it necessary or appropriate to analyse this case as one of loss of a chance. There are several reasons why that is so.

First, the case was not put in this way at trial. The damage which the respondent alleged that she had suffered was the physical damage to her voice and the economic consequences of that damage. She did not seek to make any loss of chance case at trial.

Secondly, the chance which it is now said that the respondent lost is the chance to engage a better doctor. She said in evidence that she "would have wanted the most experienced person, with a record and reputation in the field". But it was never part of the respondent's case that the appellant should have told her to seek a better doctor; it was never suggested that there had been some negligent failure by the appellant to refer the respondent to another doctor. Moreover, it is important to bear steadily in mind that it was not said that the appellant had performed the procedure negligently. Thus it was never suggested that she was deprived of the opportunity to have the procedure performed properly - only that had she been advised of the risks to her voice she (of her own volition) would have sought out the "most experienced" practitioner in the field.

I do not consider that the appellant should be held responsible for the loss of that chance. No doubt it may be said that the failure to warn led to this result - in the sense that "but for" the negligent failure to advise, the respondent would have pursued the course that she described in her evidence - but why should the law provide for compensation for loss of that chance and what is it that she lost?

The law of negligence is intended to compensate those who are injured as a result of departures from standards of reasonable care. It is not intended to compensate those who have received reasonable care but who may not have had the best available care. To hold that the appellant's failure to warn the respondent of the risks of the operation caused her to lose the chance of the best available care would depart from that fundamental premise of the law of negligence.

Further, what is it that is lost when it is said that the respondent lost a chance of better treatment? It is said that by going to the best doctor in the field she could have reduced the chance of an adverse outcome of the operation. She could not, however, have eliminated those risks. How then is this alteration in the size of the risks to be measured and how is the loss of it to be compensated?

Leaving aside whatever may have been the difficulty of assembling evidence that bore upon the point (and those difficulties may have been very large) what kind of enquiry would have to be undertaken? Presumably the comparison to be made would be a comparison between the risks if the procedure was carried out by the appellant and the risks if the best available doctor carried it out. But how would that be measured? Any observer of skilled professionals at work knows that some are better than others but it is equally obvious that the performance of even the best is subject to variation. Is the comparison to be made a comparison with the best performer doing his or her best work? But how is that to be demonstrated? It is often enough difficult to identify what reasonable care requires; proof of what would be the best available care would be harder. And why should the law of negligence concern itself with more than what reasonable conduct would require?

Further, the risks of which we are speaking are risks that are very small. If the risk of disaster is assessed as being (say) 1 in 100 if the procedure is performed by the appellant but 1 in 200 if performed by another, what use is to be made of that data? If we are to speak in the language of loss of chance, has the respondent lost the chance of a 99.5 per cent chance of successful operation in return for a 99 per cent chance? Has she, that is, lost a 0.5 per cent chance of success? What is that worth? (The point is all the sharper if the comparison is between a 1 in 10,000 and a 1 in 20,000 chance.) Or is the relevant conclusion that the chances of disaster could have been halved?

Whichever description of the change in the risks is adopted, how does one assess the value of the chance that has been lost? It was suggested in the course of argument that it is reflected in the assessment of damages by discounting the damages otherwise allowed. But that invites attention to what are those damages that are to be discounted - is it, as the argument appeared to assume, the damages attributable to the physical consequences which the respondent suffered? That could be so only if the physical consequences which the respondent suffered were caused by the appellant's negligence.

All of these considerations point to the conclusion that the loss of chance analysis is flawed and should not be adopted. I therefore need not (and do not) express any view on the difficult questions that arise where a plaintiff claims damages for negligence, as opposed to contract, and contends that the damage suffered is the loss of a chance[192].

Much, if not all, of what I have said about the contention that the respondent lost a chance of better treatment applies equally to the mirror contention that she was exposed to greater risk.

I agree with McHugh J that there is insufficient evidence in this case to say, on the balance of probabilities, that the appellant's failure to warn exposed the respondent to greater risk of injury. The respondent would have had the operation at some time. The operation has risks even if performed by the most skilled surgeon available. There was very little evidence on the difference between the risk of injury actually faced by the respondent and the risk that she would have faced had the operation been performed by, say, Professor Benjamin.

I do not need to deal separately with the respondent's claim in contract. If the appellant's failure to warn the respondent of the risks of the operation was a breach of contract, for the reasons I have given earlier, I do not consider that that breach caused damage to her voice or caused her to lose a chance of better treatment or exposed her to greater risk.

I have said that the resolution of the question of causation will often be asserted without lengthy articulation of reasons. Since it is a question of fact resolved as a matter of commonsense and experience, the conclusion is often reached intuitively. The description of the steps involved in that kind of process is difficult and is apt to mislead. Articulating the reasoning will sometimes appear to give undue emphasis to particular considerations. No doubt if policy and value judgments are made, they should be identified. But the lengthy analysis which I have made should not be taken as intending to state any qualification upon the generality of the propositions recognised in cases like March v Stramare (E & M H) Pty Ltd. Causation is a question of fact to be resolved as a matter of commonsense. I have made the extended analysis which I have in order to draw out the various considerations which I consider bear upon the resolution of a difficult and unusual case, not because I consider that a trial judge should be expected (except, perhaps, in the most unusual case) to do more than record the conclusion that he or she reaches about whether the plaintiff's damage was caused by the defendant's negligence.

The respondent did not establish that she had suffered damage as a result of the appellant's negligence. The claim having been framed in breach of contract and breach having been established, she is, of course, entitled to nominal damages but, in my view, to no more. I would allow the appeal.

[1] Referring to Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 355 per Mason CJ, Dawson, Toohey and Gaudron JJ, 363-364 and 368 per Brennan J.

[2] See March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509 per Mason CJ_._

[3] Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 681 per Lord Reid, cited with approval in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 per Mason CJ, 523 per Deane J_._

[4] See March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408.

[5] See Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

[6] See Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 per Brennan J; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 422 per Gaudron J.

[7] See Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 422 per Gaudron J.

[8] [1945] HCA 31; (1945) 71 CLR 637 at 649.

[9] See, for example, Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410; 1 ALR 125 and Quigley v The Commonwealth (1981) 55 ALJR 579; 35 ALR 537, where there was an onus on a plaintiff employee to establish what he would have done if different working conditions had been provided, referred to in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420 per Gaudron J.

[10] See Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 422 per Gaudron J.

[11] Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 per Dixon J. See also Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 467 per Mason J.

[12] See Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 421 per Gaudron J.

[13] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 421 per Gaudron J referring to SS Singleton Abbey v SS Paludina [1927] AC 16 at 27 per Lord Sumner.

[14] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642 per Deane, Gaudron and McHugh JJ, see especially at 642-643. See also Jobling v Associated Dairies Ltd [1981] UKHL 3; [1982] AC 794; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497-499 per Dawson, Toohey, Gaudron and Gummow JJ.

[15] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643 per Deane, Gaudron and McHugh JJ.

[16] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

[17] [1991] HCA 12; (1991) 171 CLR 506 at 509. See also my judgment in that case at 530-531.

[18] [1991] HCA 12; (1991) 171 CLR 506.

[19] [1954] HCA 74; (1954) 91 CLR 268.

[20] [1954] HCA 74; (1954) 91 CLR 268 at 276.

[21] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-413:

"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense (Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277-278 per Dixon CJ, Fullagar and Kitto JJ; March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 per Mason CJ, 522-523 per Deane J). In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude (March v Stramare (E & MH) Pty Ltd)."[22]

Hart and Honoré, Causation in the Law, 2nd ed (1985) at 14.

[23] [1991] HCA 12; (1991) 171 CLR 506 at 509.

[24] [1961] HCA 73; (1961) 106 CLR 33.

[25] [1961] HCA 73; (1961) 106 CLR 33 at 46-47.

[27] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310-311; March (1991) 171 CLR 506 at 514.

[28] "Increases" in this context includes "creates".

[29] [1951] UKHL 4; [1952] AC 292 at 299.

[31] [1951] UKHL 4; [1952] AC 292.

[33] See, for example, Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490; Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 433. United States and Canadian courts, on the other hand, determine causation issues in medical cases on an objective basis (Canterbury v Spence 464 F 2d 772 at 791 (1972); Reibl v Hughes (1981) 114 DLR 3d 1 at 16). In practice, there is likely to be little difference in the application of the subjective and objective tests in medical issue cases. Human nature being what is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred. For that reason, the restrictions on appellate review laid down in Abalos v Australian Postal Commission (1990) [1990] HCA 47; 171 CLR 167 and other cases are likely to have little application.

[35] cf Hogan v Bentinck Collieries [1949] 1 All ER 588 at 601 where Lord MacDermott said that he did not think that there would be any causal connection between an injury sustained in the course of employment and an injury sustained by the worker as the result of the hospital, where the worker was taken, catching fire.

[36] cf Hart and Honoré, Causation in the Law, 2nd ed (1985) at 167.

[37] Rogers [1992] HCA 58; (1992) 175 CLR 479; Nagle [1993] HCA 76; (1993) 177 CLR 423.

[38] Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 293-294; Daniels v Anderson (1995) 37 NSWLR 438 at 528.

[39] At the trial the plaintiff abandoned any claim that the procedure had been carried out with a lack of due care or that the defendant was otherwise in breach of duty in performing the procedure.

[40] "We have done studies simply by taking an x-ray of every patient who has this operation ... and I would think that, 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".

[41] [1991] HCA 12; (1991) 171 CLR 506.

[42] Petelin and Durham, The Professional Writing Guide, (1994) at 114-115; Williams, Style, (1990) at 22-27.

[43] [1961] HCA 73; (1961) 106 CLR 33.

[45] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 349-356.

[46] [1992] HCA 58; (1992) 175 CLR 479.

[47] [1992] HCA 58; (1992) 175 CLR 479 at 490.

[48] [1992] HCA 58; (1992) 175 CLR 479 at 492.

[49] Chitty on Contracts, 27th ed (1994), vol 1, "General Principles" at s26-015.

[50] Filed pursuant to a direction given at the hearing of the appeal in this Court.

[51] [1991] HCA 12; (1991) 171 CLR 506. See also Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 276-278, 284-285; The Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465 at 476; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-413, 418-419, 428.

[52] [1991] HCA 12; (1991) 171 CLR 506 at 509.

[53] [1991] HCA 12; (1991) 171 CLR 506 at 514.

[54] [1991] HCA 12; (1991) 171 CLR 506 at 516; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 413.

[55] See the discussion of Mason CJ in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 517 of M'Kew v Holland & Hannen & Cubitts [1969] UKHL 12; [1970] SC (HL) 20.

[56] [1998] 2 WLR 350; [1998] 1 All ER 481.

[57] [1998] 2 WLR 350 at 356; [1998] 1 All ER 481 at 486.

[58] [1998] 2 WLR 350 at 357; [1998] 1 All ER 481 at 487-488.

[59] [1998] 2 WLR 350 at 356; [1998] 1 All ER 481 at 487.

[60] [1998] 2 WLR 350 at 358; [1998] 1 All ER 481 at 488.

[61] [1998] 2 WLR 350 at 357-358; [1998] 1 All ER 481 at 488.

[63] [1998] 2 WLR 350 at 358; [1998] 1 All ER 481 at 489.

[64] [1992] HCA 58; (1992) 175 CLR 479.

[65] [1992] HCA 58; (1992) 175 CLR 479 at 486-490.

[66] [1992] HCA 58; (1992) 175 CLR 479 at 489.

[67] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420-421.

[68] [1994] HCA 4; (1994) 179 CLR 332 at 355, 363-364, 368.

[69] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 351, 353.

[70] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 368.

[72] Fleming, "Probabilistic Causation in Tort Law", (1989) 68 Canadian Bar Review 661 at 662.

[73] Snell v Farrell [1990] 2 SCR 311 at 326-328. See also Scott, "Causation in Medico-Legal Practice: A Doctor's Approach to the 'Lost Opportunity' Cases", (1992) 55 Modern Law Review 521; Stauch, "Causation, Risk, and Loss of Chance in Medical Negligence", (1997) 17 Oxford Journal of Legal Studies 205 at 213-216.

[74] Fleming, "Probabilistic Causation in Tort Law", (1989) 68 Canadian Bar Review 661 at 663. See also Coote, "Chance and the Burden of Proof in Contract and Tort", (1988) 62 Australian Law Journal 761 at 772.

[76] cf Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241 at 282-283, 302-303.

[79] [1994] HCA 4; (1994) 179 CLR 332 at 349, 355.

[81] [1988] UKHL 1; [1987] AC 750.

[82] cf Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 367.

[87] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 353.

[88] [1990] HCA 20; (1990) 169 CLR 638. See also Wilson v Peisley (1975) 50 ALJR 207 at 210; 7 ALR 571 at 576-577; Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 at 1609-1610; [1995] 4 All ER 907 at 914-915; Athey v Leonati [1996] 3 SCR 458 at 470-471.

[89] [1990] HCA 20; (1990) 169 CLR 638 at 643-644.

[90] [1990] HCA 20; (1990) 169 CLR 638 at 643. Canadian authority is to the same effect: Graham v Rourke (1990) 74 DLR (4th) 1 at 15; Athey v Leonati [1996] 3 SCR 458 at 470-471.

[91] See The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 94; Graham v Rourke (1990) 74 DLR (4th) 1 at 15.

[92] Giesen, International Medical Malpractice Law, (1988) at par 268; cf Milstein, "Causation in Medical Negligence - Recent Developments", (1997) 6 Australian Health Law Bulletin 21.

[93] Giesen, International Medical Malpractice Law, (1988) at par 284-286; Hart and Honoré, Causation in the Law, 2nd ed (1985), Pt III; Laferrière v Lawson (1991) 78 DLR (4th) 609 at 621-639.

[94] Giesen, International Medical Malpractice Law, (1988) at par 284 referring to the German Federal Supreme Court.

[95] Honoré, "Causation and Remoteness of Damage", in International Encyclopedia of Comparative Law XI, (1983) Ch 7 s 1.

[96] Honoré, "Causation and Remoteness of Damage", in International Encyclopedia of Comparative Law XI, (1983) Ch 7 s 105.

[97] Milstein, "Causation in Medical Negligence - Recent Developments", (1997) 6 Australian Health Law Bulletin 21; Mendelson, "The Breach of the Medical Duty To Warn and Causation: Chappel v Hart and the Necessity to Reconsider Some Aspects of Rogers v Whitaker", (1998) 5 Journal of Law and Medicine 312 at 315-318.

[98] Danner and Sagall, "Medicolegal Causation: A Source of Professional Misunderstanding", (1977) 3 American Journal of Law and Medicine 303. See also Mendelson, "The Breach of the Medical Duty To Warn and Causation: Chappel v Hart and the Necessity to Reconsider Some Aspects of Rogers v Whitaker", (1998) 5 Journal of Law and Medicine 312 and Barratt and Bates, "O tell me the truth about evidence", (1997) 21 Australian and New Zealand Journal of Public Health 441.

[99] Hotson v East Berkshire Area Health Authority [1988] UKHL 1; [1987] AC 750; Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074; Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232.

[100] Farrell v Snell (1990) 72 DLR (4th) 289; Lawson v Laferrière (1991) 78 DLR (4th) 609.

[101] A review of United States cases appears in Perrochet, Smith and Colella, "Lost Chance Recovery and the Folly of Expanding Medical Malpractice Liability", (1992) 27 Tort and Insurance Law Journal 615. See Appendix A, at 629-637.

[102] CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 56-57. Special leave to appeal was granted in that case and the hearing commenced but the proceedings were settled. See comment Milstein, "Causation in Medical Negligence - Recent Developments", (1997) 6 Australian Health Law Bulletin 21 at 25-26.

[103] For example Sullivan v Micaleff [1994] Aust Torts Rep 81,308.

[104] Giesen, International Medical Malpractice Law, (1988) at par 289.

[105] Chappel v Hart unreported, New South Wales Court of Appeal, 24 December 1996.

[106] Chappel v Hart unreported, Supreme Court of New South Wales, 4 July 1994 at 51.

[107] [1992] HCA 58; (1992) 175 CLR 479.

[108] Faulkner v Keffalinos (1970) 45 ALJR 80 at 86; March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509.

[109] [1961] HCA 15; (1961) 105 CLR 569 at 591.

[110] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 509.

[111] Liesbosch, Dredger v Edison SS (Owners) [1933] UKHL 2; [1933] AC 449 at 460.

[112] Tahir v Haringey Health Authority unreported, English Court of Appeal, 18 January 1995 per Leggatt LJ. See comment (1996) 4 Medical Law Review 92.

[113] Perrochet, Smith and Colella, "Lost Chance Recovery and the Folly of Expanding Medical Malpractice Liability", (1992) 27 Tort and Insurance Law Journal 615 at 625-627; Mendelson, "The Breach of the Medical Duty to Warn and Causation: Chappel v Hart and the Necessity to Reconsider some Aspects of Rogers v Whitaker", (1998) 5 Journal of Law and Medicine 312 at 317-318, where it is suggested that medical negligence insurance is too expensive, that difficult areas of surgery are being abandoned in favour of less risky areas and that defensive medicine is often practised as a consequence of recent legal requirements.

[114] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-413.

[115] Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277-278; March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 522-523.

[116] [1954] HCA 74; (1954) 91 CLR 268 at 277-278.

[117] [1972] UKHL 4; [1972] AC 824 at 847.

[118] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 533 per McHugh J (diss). But see now Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 428.

[119] Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074 at 1090 per Lord Bridge of Harwich.

[120] Prosser and Keeton on the Law of Torts, 5th ed (1984) at 265.

[121] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 413.

[122] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 522.

[123] March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 517.

[124] (1971) 45 ALJR 80 at 86; Hart and Honoré, Causation in the Law, 2nd ed (1985) at 122.

[125] cf March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 522, 524.

[126] Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277.

[127] As Hayne J acknowledges and provides for.

[128] Chitty on Contracts, 27th ed (1994), vol 1, "General Principles" at par 26-015.

[129] Russell, "Establishing Medical Negligence - A Herculean Task?", (1998) 3 Scots Law Times 17 at 20-22.

[130] Milstein, "Causation in Medical Negligence - Recent Developments", (1997) 6 Australian Health Law Bulletin 21.

[131] Fleming, "Probabilistic Causation in Tort Law", (1989) 68 Canadian Bar Review 661.

[132] See eg Central of Georgia Railway Co v Price 32 SE 77 (Ga) (1898) described by McHugh J.

[133] See eg Hotson v East Berkshire Area Health Authority [1988] UKHL 1; [1987] AC 750; Lawson v Laferrière (1991) 78 DLR (4th) 609.

[134] Milstein, "Causation in Medical Negligence - Recent Developments", (1997) 6 Australian Health Law Bulletin 21 at 22-23.

[135] Leask Timber and Hardware Pty Ltd v Thorne [1961] HCA 73; (1961) 106 CLR 33 at 39, 46.

[136] M'Kew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] UKHL 12; [1970] SC (HL) 20.

[137] Daniel v Anderson (1995) 37 NSWLR 438 at 539.

[138] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

[139] Because an event occurs after another event it is therefore caused by that other event.

[140] Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 433; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 559-560, 581-582; Gover v South Australia (1985) 39 SASR 543 at 564-566; cf Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490.

[141] Reibl v Hughes (1981) 114 DLR (3d) 1 (SCC); Haughian v Paine (1987) 37 DLR (4th) 624 (Sask CA); Schanailec Estate v Harris (1987) 39 CCLT 279 (BCCA); Arndt v Smith [1997] 2 SCR 539; cf McInnes, "Failure to warn in medical negligence - a cautionary note from Canada: Arndt v Smith", (1998) 6 Torts Law Journal 135.

[142] Canterbury v Spence 464 F 2d 772 at 791 (1972); Cobbs v Grant 502 P 2d 1 (1972).

[143] As Mahoney P observed in the Court of Appeal in this case, Chappel v Hart unreported, New South Wales Court of Appeal, 24 December 1996 at 7; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560.

[144] As in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

[145] Anchor Products Ltd v Hedges [1966] HCA 70; (1966) 115 CLR 493 at 500; Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448 at 456; Government Insurance Office of NSW v Fredrichberg [1968] HCA 54; (1968) 118 CLR 403 at 413-414; cf Colvilles Ltd v Devine [1969] 1 WLR 475 at 479; [1969] 2 All ER 53 at 58. See generally Atiyah, "Res Ipsa Loquitur in England and Australia", (1972) 35 Modern Law Review 337 at 345.

[146] Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649.

[147] [1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 1012.

[148] Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074 at 1087, 1090.

[149] See eg March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420-421.

[150] [1973] 1 WLR 1 at 6; [1972] 3 All ER 1008 at 1012.

At a glance

Court

Decision date

Before

Source

Judgment (241 paragraphs)

Parties

Cases Cited (33)

Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998)