HRNG ADELAIDE, 7-10 April 1995 #DATE 8:6:1995 #ADD 4:9:1995

JUDGE1 BOLLEN J This is an appeal by the unsuccessful defendant in an action in the District Court. The appellant is a dental surgeon. He is a specialist in oral and maxillo-facial surgery.

The appellant performed an operation on the respondent at the Wakefield Street Hospital on 15th April 1989. In 1987 a dentist whom the respondent consulted had referred her to an orthodontist because she was grinding her teeth. That was caused by a malocclusion. In due course the respondent became the patient of the appellant. The appellant advised the respondent that she should have an operation to correct the malocclusion. The operation was to be by way of breaking and realigning the jaws. It was performed.

The operation left the respondent with pain and disability. Sometimes the pain was severe. The respondent had other surgery and treatment from other doctors and surgeons. Some area of pain was relieved but still she was, and is, suffering pain and discomfort.

The respondent claimed damages for breach of duty and in negligence. I think that the pleadings were wide enough to cover the causes of action of breach of contract and negligence. It does not matter which is considered. This is no place to embark further upon the debate about contract or tort. If there was a breach of contract it consists of a negligent omission. The learned trial judge saw the case as one "based on professional negligence". So be it.

The allegations against the appellant boiled down at trial to two. One was failure adequately to advise the respondent of possible adverse effects of the operation. The other was failure to provide proper post-operative care and management. There was, in the end, no evidence to justify the second allegation. So the case came down to a case about "informed consent". Had the appellant given adequate warning to the respondent about "possible untoward consequences of the operation" (words of the learned trial judge).

The learned trial judge found that he had not, that he was negligent in that sin of omission and that the respondent thereby suffered damage. He awarded damages. His Honour found that, had she been warned, the respondent would not have had the operation.

Expert witnesses were called on each side. The learned trial judge said: "The expert witnesses were Professor J D deB Norman and Dr J Locke (called by the plaintiff), and Professor A N Goss (called by the defendant). Like the defendant, all the expert witnesses are oral and maxillo-facial surgeons.

Evidence was also received by way of the tender of hospital and medical records and a number of written reports."

More must be said about what happened. Let the learned trial judge speak. He said: "In 1987, the plaintiff's dentist referred her to Dr S Oleschenko, an orthodontist, because her front teeth were wearing down due to bruxism (grinding of teeth). Dr Oleschenko referred her in turn to the defendant. The defendant saw the plaintiff in November 1987 and February 1988 and advised her that she should undergo the operation and associated orthodontic treatment.

The operation requires an osteotomy (cutting of bone) on each side of both the maxilla (upper jaw) and the mandible (lower jaw). The surgeon exposes the bone by incising tissue in the inside of the mouth. After the osteotomy, the jaws are realigned and fixed in position by metal plates in the maxilla and metal screws in the mandible. The associated orthodontic treatment requires the placing of

bands on the teeth and the periodic adjustment of those bands over a period extending either side of the operation.

In the case of the plaintiff, the bands were fitted by Dr Oleschenko in April 1988. Following further consultations with the defendant between February and April 1989 and a decision to advance the date of the operation, the plaintiff was admitted to the Wakefield Street Hospital on 14 April 1989 and the operation was performed the following day. The plaintiff's condition and medication were monitored in intensive care by an anaesthetist and intensive care specialist, Dr McCleave. She was eventually discharged on 20 April 1989. At first she experienced general pain in her head, but thereafter the pain began to localise along the right side of her jaw. She also began to experience numbness around the mouth.

On 24 April 1989, the plaintiff was readmitted to Wakefield Street Hospital with severe pain in the right side of her face. The numbness around the mouth was still the same. She was examined by Dr McCleave and a Dr Benny. The defendant also arranged for her to be examined by Dr Guerin, ear nose and throat surgeon.

The plaintiff was discharged again on 27 April 1989 and thereafter cared for at home by the person who was to become

her second husband. He also took over the cooking, ironing and washing. The plaintiff was on six week's leave from her

employment as a hairdresser with Toulay's Hair Design which she had commenced in January 1989. She was taking pethidine

prescribed for her by her general practitioner and his locum service.

The plaintiff consulted the defendant again on 3, 18 and 25 May 1989. The defendant advised her against pethidine and referred her to a physiotherapist for ultrasound and interferential treatment. He also recommended that she see a psychiatrist. The plaintiff was upset by the recommendation and refused to act on it. She was unable to return to full time work as a hairdresser because of continuing pain. She obtained two shifts per week in the bar and TAB agency of the Elizabeth Tavern between July and September 1989. She resigned from that work because she found she was making mistakes with money under the influence of her medication. She saw the defendant on three further occasions before August 1989. She continued to take pethidine for the pain.

The plaintiff's last consultation with the defendant was on 23 August 1989. By this time, her pain had become concentrated in three separate areas: in a vertical line from immediately under the right eye through the eye to the eyebrow, along the line of the mandible from the right

earlobe to the centre of the chin, and in the fleshy part of the right side of the neck immediately under the mandible.

The plaintiff elected to seek other advice in about September 1989. She felt that the defendant was not taking her seriously. Dr Oleschenko referred her to Dr (now Professor) Goss. Professor Goss admitted her to the Burnside Memorial Hospital on 17 November 1989. He explored the maxilla under general anaesthetic and found good bony union of the osteotomy and no external evidence of nerve damage. He removed the plates in the maxilla and performed a cryofreeze of the right infra-orbital nerve. That nerve supplies sensation to the right cheek area under the right eye.

Following her discharge, the plaintiff was admitted to the Royal Adelaide Hospital on 24 November 1989 with severe pain. An abscess was lanced, and she was investigated by the Pain Clinic at the hospital. Professor Goss was a member of the Clinic. She was discharged on about 1 December 1989.

The pain under and through the plaintiff's right eye disappeared as a consequence of the cryofreeze procedure.

As was expected, however, she was left with numbness under her right eye. The plaintiff's other symptoms persisted. Professor Goss prescribed a tricyclic anti-depressant in lieu of pethidine. He also advised that she should wear a splint which Dr Oleschenko made for her.

Between February and June 1990, the plaintiff undertook casual work three nights a week as a cleaner with the Woodville Council. She was assisted in that work by her second husband, whom she married in May 1990. In that same month, she was referred to a Dr Marzec, ear nose and throat surgeon. Dr Marzec referred her to Dr T Wilkinson, a specialist in temporo-mandibular joint dysfunction, and Dr Wilkinson sent her back to Professor Goss.

The plaintiff worked as a casual kitchen hand and waitress between June 1990 and January 1991. For a few months thereafter she ran a day care centre for children at her home, having attended a four day course of instruction. She resumed her employment as a cleaner with the Woodville Council in July 1991. In the financial year July 1991 to June 1992, she earned a gross income of $13,872. Again she was assisted by her husband in that work.

The plaintiff's pain got worse towards the end of 1991. She saw Professor Goss in December 1991 and January 1992, but then elected to terminate the association. By this time, she had consulted solicitors who arranged for her to see Dr Locke. Dr Locke urged the plaintiff to return to Professor Goss, but she declined to do so.

Dr Locke performed two operations on the plaintiff at St Andrews Hospital. On 24 March 1992, he removed all four screws from the mandible. On 14 July 1992, he resected the infra-orbital nerve.

By the first operation, Dr Locke hoped to treat tenderness in the floor of the mouth and pain in the right side of the jaw. Dr Locke's view at that time was that the pain and

tenderness were caused by irritation from a protrusion beyond the bone of the lowest screw in the mandible. At a consultation on 11 May 1992, the plaintiff reported that she had been free of pain in her jaw for several weeks.

The second operation performed by Dr Locke was designed to treat a recurrence of pain under and through the plaintiff's right eye by terminating the peripheral function of the infra-orbital nerve. The pain had been previously treated by the cryofreeze performed by Professor Goss. Again the pain was replaced by numbness under the right eye.

In August 1992, the plaintiff commenced methadone treatment for pethidine addition at the Drug and Alcohol Dependency Unit at Waranilla.

On 14 December 1992, the plaintiff flew to Sydney with her mother for examination by Professor Norman. She presented to Professor Norman with continuing complaints of numbness and pain.

On 21 January 1993, the plaintiff was admitted by Dr Locke to St Andrew's Hospital following complaints of locking of the jaw. Dr Locke thought that the complaints were suggestive of temporo-mandibular joint dysfunction. He found that jaw movements upon manipulation under general anaesthetic were free and unrestricted, and elected not to proceed with surgical exploration. On 28 January 1993, the plaintiff reported to Dr Locke that her facial pain and jaw restriction were much improved. There were no further episodes of locking after the manipulation."

The learned trial judge then referred to some of the plaintiff's earlier medical history.

His Honour then said: "The expert witnesses were in general agreement that the plaintiff suffered from myofacial pain disorder before the operation. Myofacial pain disorder is commonly associated with temporo-mandibular joint dysfunction, and the condition is thought to have a psychogenic component. The defendant

was informed of the condition at the outset by Dr Oleschenko, and he later noted the presence of 'TMJ SYMPTOMS' in his records. The expert witnesses were also in agreement that the operation in question would not and did not remedy the plaintiff's myofacial pain disorder. The defendant said in evidence that his plan was to separately treat the problem after the operation.

As I have said, the plaintiff's case is brought under two broad heads. First, the defendant's alleged failure to warn the plaintiff of the possible untoward consequences of the operation. And second, the defendant's alleged failure to provide proper post-operative care and management.

I should say at once that I do not consider that the plaintiff has made out a case under the first head with respect to the pain in her jaw. Clearly the pain which she experienced in her jaw after her convalescence from the operation was in excess of the warnings which she was given by the defendant, but most if not all of that pain would have been due, both directly and indirectly, to a persistence of her myofacial pain disorder and associated temporo-mandibular joint dysfunction. Doubtless the disorder and the dysfunction were exacerbated by the surgery, but the evidence does not provide a reliable basis for a finding that any such exacerbation was permanent. So, with respect to the plaintiff's case under the first head, I will confine my attention to the issue of nerve damage."

So the basis in which an award of damages was made was that the appellant had not fulfilled his duty to warn, or adequately to warn, the respondent of the risk of permanent and painful nerve damage. No other allegation succeeded. Nor should it have done. There was no sufficient evidence on which to condemn the appellant in any other way.

I must again quote at length from the admirable reasons of the learned trial judge. He said: "At stake here is the advice or information which the defendant provided to the plaintiff for the purpose of

enabling her to make an informed choice whether or not to undergo surgery. Advice or information, which a surgeon provides for the purpose of bracing a patient psychologically for surgery already decided upon, is relevant only to the extent that it affords the patient a reasonable opportunity to reverse the decision.

Next, it may not matter whether a surgeon provides advice or information orally or in writing. If, however, the surgeon provides a pamphlet which contains some advice or

information but not other advice or information, it behoves the surgeon in his discussions with the patient to make a

particular point about the omitted advice or information.

The defendant's first two consultations with the plaintiff were on 27 November 1987 and 10 February 1988. On the first at least of those occasions he explained the nature of the operation proposed, and advised that orthodontic treatment would be a necessary pre-requisite. I am satisfied that the plaintiff's decision to proceed necessarily comprehended a treatment plan which comprised both the orthodontic treatment and the surgery. I am satisfied that the decision was taken no later than April 1988, which is when Dr Oleschenko fitted the bands following the defendant's second consultation with the plaintiff on 10 February 1988. This means that the information and advice which the defendant tendered to the plaintiff prior to April 1988 provided the basis for her decision at that time to proceed. The defendant's third consultation with the plaintiff was not until 28 February 1989.

The plaintiff's evidence in relation to the consultation on 27 November 1987 was that the defendant handed to her a pamphlet of which exhibit P7 is a copy. She no longer has the original. An example of the original is exhibit D5. She was given no other pamphlet, either then or at any other time. She was told during the consultation that there could be slight bruising and some swelling; that the swelling would be at its worst for about 48 hours after the operation and settle down to normal within six weeks; that she would experience some form of numbness around her mouth following the surgery; that the degree of numbness would gradually improve and she would get back to normal feeling within a period of about nine months; that there would be some pain; and that she could expect to be away from work for three to four weeks. The defendant did not tell her that it was possible that there would be permanent numbness following the injury.

The defendant's evidence with respect to the first consultation was that he handed two pamphlets to the plaintiff, namely, one or other of exhibits D5 and D6, and D8. The defendant was unable to say which of exhibits D5

and D6 he gave to the plaintiff because at that time he was transferring from wire fixation to rigid fixation of the jaw. Exhibit D5 was relevant to wire fixation and exhibit D6 was relevant to rigid fixation. The defendant said he cannot challenge the plaintiff's evidence that she was given exhibit D5. He said that the purpose of the pamphlets was to supplement his discussion with the plaintiff about the surgery. Although he has no particular recollection of the discussion, his invariable practice is to go through the operation with a patient step by step, and to discuss the possible consequences with respect to pain, swelling, bruising, scarring and nerve damage. On the topic of nerve damage, the defendant's evidence was:-

'I then spent some time discussing the nerves, and I would mention that 99.9 percent of people, there is always going to be, in the initial phase, some numbness in the facial area, and I usually just make a mark on my face, going from the eyes down to my chin area. I then go on and discuss that there are, in some cases, permanent numbness, and that's, in my hands, a very small percent, and I don't quote any percentages. I then go on to say with this type of numbness you can bite your lip. The frequency of biting the lip is not increased, but if you bit the lip you don't realise you have bitten the lip. The next thing I discuss is that it can be hot, and if things are hot they can burn the lower lip, upper lip and tongue, because that's the order that drinks go into your mouth. I then mention there can be food on the lips, but you don't realise it's there. Again, the frequency of food going on the lip doesn't increase, but your knowledge that it's on the lips is not there. I also mention that people don't realise that you have got this numbness, but you are the only person that knows that you've got this numbness. That's it for the first conversation, and then I ask them to read through the pamphlet. and there is usually a white spot on the back of the pamphlet, and I ask people to write down any questions that there are of this operation.'

As for the consultation on 10 February 1988, the plaintiff said in examination in chief that nothing was mentioned about the surgery, and basically it was just a check-up. She said that on no occasion except the first did the defendant talk to her about numbness following the surgery. After prompting in cross-examination, the following exchange took place:-

'Q. Can I suggest to you that during the consultation of 10 February 1988, Dr Hribar gave you a general description of the surgery as to what was required and gave you some warnings as to the sorts of things that might go wrong, including some advice about pain and numbness.

A. I remember him describing the surgery, basically with the skull showing me, I don't remember anything about screws and plates being mentioned, I just took it that it would be wired as per the little sheet that I said I recognised yesterday, and basically that's all I can remember that was said.'

The defendant's evidence about the second consultation was that he asked the plaintiff whether she had any questions on the pamphlets, and that he again discussed the operation in detail. The plaintiff's only question was whether her health cover would extend to the further orthodontic treatment proposed, and the defendant agreed to write a letter on the topic. The defendant said that he would have supplemented his discussion with references to a skull and jaw bones which he kept in his rooms for the purpose.

At this point, I quote that part of the defendant's evidence which deals with the explanation which he said he gave to the plaintiff on the second consultation, and invariably gave to all patients, on the topic of nerve damage:-

'... I have to put special instruments down the cheek area and down in to the tongue side to protect the nerves when I am doing this operation. That is why I mentioned tongue and cheek. Then with special instruments I separate the two parts of the lower jaw. And then I mention that there is a groove in the lower jaw and that groove contains the nerve that holds the sensation to the teeth, gums and lips. I then go to the second jaw with the flap on it and I open the flap up and show them the red, white and blue. That that is the nerves and blood vessels that supply the sensation. And that the nerves come through to the teeth as demonstrated on the models. That they come through onto the gums and there is a little hole that they come out to supply the lip. I mention that this nerve has to be stretched and, by stretching it, they are going to have a numb lip. I also mention that, with nerve injuries, that that is purely a sensory nerve and not a motor nerve and so, therefore, whatever they feel is not what other people see. And then I use the analogy of Sylvester Stallone, saying that he can't move his lips, because he had facial nerve damage, which is the motor nerve. Because some people I have found from my experience when I mention my nerves they think of facial paralysis. That is, Bell's palsy. ... I then mention that the nerves - this numbness can be temporary, or, in some cases, it can be permanent. But that hasn't been a big feature with my patients. That there is a small number that do go permanently numb and, to them, it doesn't matter what statistics I give to them, it is complete numbness for sometime. I also explain to them that, with time, that this area shrinks.'

Later in his evidence the defendant was asked whether by the end of the second consultation he had discussed the likelihood of numbness with the plaintiff, and his answer

was:- 'I said there would be 99.9% at the start, immediately after the operation and then as time progressed, most people would get the numbness back but there would be areas, that this would be a patchy recovery, but with teenagers it's nine months, with adults two years but it could be longer but some people end up with permanent numbness.'

The defendant said he demonstrated the area of numbness to the plaintiff by indicating with his fingers on his own face a line from the eyes to the corners of the lips and down to the chin area.

So much then for the consultations in November 1987 and February 1988." And: "The defendant's clinical notes contain three further entries made prior to 14 April 1989, which is when the plaintiff entered hospital for the surgery. For 28 February 1989, the clinical notes read 'Consultation'. The defendant said that, after a number of discussions with Dr Oleschenko at this time about the plaintiff's pain, a decision was taken to use splint therapy to alleviate the symptoms. For 3 March 1989, the diary reads 'face bow'. The defendant said that facial measurements were taken on that day. For 7 April 1989, the clinical notes read 'Impression'.

When the cross-examiner suggested that on 28 February 1989, the date of the third consultation, the defendant spoke to her of the possibility of some permanent numbness, the plaintiff replied:-

'There was never anything said about numbness being permanent, that I can remember very clearly, he said from about 6 to 9 months that I would have numbness.'

The defendant made no clinical note of the immediate pre-surgical consultation, but his diary shows that an appointment was made for 14 April 1989 at his rooms 'for review'."

The learned trial judge had earlier mentioned the pamphlets which the appellant gave the respondent. The pamphlets gave some information about the proposed surgery. His Honour said and made findings about the pamphlets thus: "It is necessary at this point to identify the precise area of dispute between the parties about what transpired on 27 November 1987 and 10 February 1988. Although it is common ground that the possibility of numbness was mentioned on one occasion at least, the defendant asserts and the plaintiff

denies that there was mention also that the numbness might be permanent. The dispute is confined to oral communications between the parties. It will be recalled that the plaintiff's recollection that the defendant handed exhibit D5 rather than exhibit D6 to her on 27 November 1987 was not disputed by the defendant. I need not make a finding about exhibit D8, because its contents are confined to the topic of diet. I note in passing, however, that the defendant wrote the word 'PAMPHLETS' and the date '27/11' on one of the proforma records which he kept and added to from time to time over the relevant period.

I find on the balance of probabilities that the plaintiff received exhibit D5 rather than exhibit D6. Exhibit D5 prefaces general information about the surgery with the following:- 'This pamphlet is intended to give general information about

combined treatment involving orthodontics and jaw surgery. It is hoped that it will stimulate questions that you might

wish to ask at the time of initial consultation. I encourage family members such as parents or spouses to read this pamphlet and to come to the consultation. Specific information about diagnosis, treatment planning, orthodontic and oral surgery procedures, risks, and possible complications of the anticipated treatment will be explained at that time. The goal of the consultation is to provide information that will allow you to make an informed decision regarding your treatment needs.'

The pamphlet takes the patient through the various phases of a treatment plan from pre-surgical orthodontics to surgery to post surgical orthodontics. Under the heading 'Factors Unique to Jaw Surgery', the pamphlet deals with the factors of scars, intermaxillary fixation, speech, diet, swelling and pain.

I am satisfied on the evidence that nerve damage, whether temporary or permanent, is a factor unique to jaw surgery, yet exhibit D5 makes no reference to that factor.

Although, as I have found, it is likely that exhibit D5 rather than exhibit D6 was handed to the plaintiff, exhibit D6 is significant for the light which it throws on the defendant's practice between 1987 and 1989. It will be recalled that in about 1987 the defendant replaced exhibit D5 with exhibit D6 after changing from wire fixation to rigid fixation of the jaws.

Exhibit D6 is divided into three sections headed 'Treatment Aims', 'Sequence of Treatment' and 'Important Aspects'. In the section 'Important Aspects', the pamphlet deals with the factors of psychological aspects, pain, jaw stabilisation, scarring, swelling, soft tissue response to the surgery and nerve injury. The factor of nerve injury is dealt with as follows:- 'NERVE INJURY It is common to have loss of sensation with orthognathic surgery especially when it involves the lower jaw. This means there is normal movement of the lips but there is a loss of awareness. Obviously, no-one will realise you do not have feeling in the lips except for yourself. The return to sensation is a gradual process and is patchy but it is usually self limiting. For example, in the young it can take 9 months and for the older patients it will take longer.'

It will be apparent that, although exhibit D6 remedies the omission by exhibit D5 of any reference at all to nerve injury and numbness, the patient is still not informed that loss of sensation may be permanent."

After making appropriate reference to Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 489 and 490 the learned trial judge marched to his conclusion thus: "In my opinion, exhibits D5 and D6 are relevant to a

resolution of the allegation that the defendant failed to warn the plaintiff of the possible consequences of the operation. Those exhibits make it clear that it was the defendant's practice to supply patients with written warnings about the probability of pain and swelling, but not about the risk of permanent loss of sensation. Although it is true that the defendant supplemented written information with verbal information, I am satisfied that nothing said by the defendant to the plaintiff at any time prior to the making of her decision to proceed with the treatment plan could have been reasonably construed by the plaintiff as a warning about the risk of permanent nerve damage. I am also satisfied that nothing said by the defendant to the

plaintiff during the period from February to April 1989 would have given her a reasonable opportunity of choosing to terminate the treatment at that stage. The defendant did not, to borrow the words of the High Court, communicate relevant information in terms which were reasonably adequate for the purpose.

Before leaving the topic of pamphlets, I mention the defendant's evidence that, shortly before the operation and at the time that he handed forms regarding use of autologous blood to the plaintiff, he also handed to her a pamphlet headed 'Jaw Surgery: Pre-Operative and Post-Operative Instructions' (exhibit D9). Although the pamphlet is not primarily concerned with post-operative symptoms, reference is made to swelling and pain.

I need not dwell on the question whether nerve damage with consequential permanent loss of sensation is a material risk inherent in the operation. There was no challenge to Professor Norman's view that the operation - attended as it was by retraction, the cutting of tissue and bone and the use of screws - exposes the sensory nerves in the face to a significant risk of permanent damage. Professor Norman explained that the nerves which sustained permanent damage in this case were the mandibular nerve, which supplies sensation to the mouth and the lower lip in particular, and the infra-orbital nerve, which supplies sensation to the area of the cheek below the eye. I am satisfied that the plaintiff, had she been warned of the risk, would have attached significance to it.

I hold that the defendant's failure to advise and warn the plaintiff of the risk of permanent nerve damage constitutes a breach of his duty of care to the plaintiff."

The learned trial judge preferred the evidence of the respondent to that of the appellant. The learned trial judge found, of the respondent, "that her general presentation in the witness box was objective and dispassionate, and she gave me no reason to doubt her reliability on the critical issue of informed consent". Of the appellant, the learned trial judge said: "For his part, the defendant relied, not upon his notes or any independent recollection, but upon his 'invariable practice'. I think that the defendant tended, with the

benefit and wisdom of hindsight, to equate what he should have done five and more years ago with what he did do or would have done five and more years ago. In my view, there was a significant degree of reconstruction in his evidence."

The learned trial judge was, in my opinion, perfectly entitled to prefer the evidence of the respondent to that of the appellant. In the end it came down to the impression which the parties made upon the learned trial judge.

Mr Martin QC, for the appellant, wrote in his outline of argument thus: "2.2 The evidence of the respondent concerning the content of the various consultations with the appellant was vague and uncertain. It did not provide a satisfactory basis upon which to reject the evidence of the appellant as to his invariable practice.

2.3 The Learned Trial Judge should have found either that the appropriate warning had been given in the terms described by the appellant or that the respondent had failed to prove that the appropriate warning had not been given."

I cannot agree. The words spoken in evidence on the issue by the respondent amounted to a denial that adequate information had been given her. The question whether she was "vague" and "uncertain" was one for the adjudication of the trial judge who saw and heard her. The evidence given by the respondent was certainly adequate to defeat the assertions based on "invariable practice" of the respondent.

Breach of duty was proved by adequate acceptable evidence. What of causation? His Honour spoke briefly on the issue. He said: "There remains the question whether the plaintiff's response to an adequate warning would have been to decline the surgery. Was the defendant's breach of duty the cause of the plaintiff's loss? In Battersby v Tottman (1984) 35 SASR 577 at 582 and 583, Cox J drew attention to a difference in the authorities as to whether the test is an objective or a subjective one. I am satisfied on the evidence that, on either test, the question should be answered in the plaintiff's favour."

Mr Martin QC submitted that the respondent failed to prove that she would not have had the operation had she been given an appropriate warning about the risk of permanent nerve damage and numbness. I agree that the respondent carried the onus. I agree that the test is subjective. "Would this particular person, this plaintiff, have had the operation if..."? That is the question. I agree that objective facts may be called in aid to prove that, subjectively speaking, that person, the plaintiff, would still have had the operation or to prevent the discharge of the plaintiff of that onus. Mr Martin submitted, in effect, that an examination of her past "medical history" suggested that the plaintiff did what doctors or surgeons suggested without demur. But the plaintiff swore that she would not have had the operation had she been warned. Mr Martin wrote (and spoke to the point): "The respondent's evidence was not capable of displacing the strong inference from the objective evidence that the respondent would have proceeded with surgery notwithstanding the warning."

I do not think that the mere acquiescence in surgical advice over the past raises a "strong inference" that the respondent would have proceeded here notwithstanding any given warning.

And, as I said, the respondent swore that she would not have had the operation. Her evidence was accepted. At page 28 to 29 she spoke a little vaguely. The evidence is: "Q. How important to you was the question of any numbness that you might have suffered following the operation.

A. If I had - it is hard to explain. It didn't worry me because I was relying on what he told me. If there had been a chance that I had known it would be permanent numbness then I don't know whether I would have gone ahead and had the operation done."

I think that in the context the words "I don't know that I would have had" is but little different to "I would not have". But at page 68 the respondent said: "Q. You have told us about numbness and other difficulties and pain that you've suffered. If Dr Hribar had told you of these potential difficulties, which you had in fact suffered, would you have proceeded to have the surgery.

A. No, I wouldn't have proceeded to have the surgery."

I should mention that there was objection to this question asked in examination in chief of the respondent. But the objection was not upheld. The objection was based on failure to plead "causation". But I think that there was no need to plead that the plaintiff in a case like this would not have had the operation if a warning had been given. Perhaps it is a point of law. Perhaps it is inherent in the allegation of loss sustained.

But the fact is that the respondent said that she would not have gone on had the warning been given. The latter quoted passage no doubt related to numbness and other disabilities. But it is, I think, plain from the two answers which I have quoted that a warning of risk of permanent numbness and nerve damage would have meant that there would have been no operation.

The causes of action pleaded were established. There was, and is, entitlement to an award of damages.

The learned trial judge said of damages: "My assessment of the plaintiff's damages will need to reflect the fact that she was destined to experience migraine type headaches and myofacial pain in any event. Nevertheless, from the evidence including the evidence of her second husband, it is clear that, over a period which lasted at least until late 1992, the plaintiff experienced significant pain and suffering and loss of amenities as a result of her choice to undergo the surgery. The major relevant events in that period were the orthodontic treatment, the surgery itself, the readmission a few days later, the cryofreeze, the admission for treatment of an abscess, the investigation by the pain clinic, the prescriptions of pethidine and then tricyclates, the removal of the screws, the resection, and finally the methadone programme. The major relevant symptoms in that period were jaw pain immediately following the surgery and during convalescence, pain alternating with numbness under the right eye, numbness in and around the mouth, and the effects and side-effects of medication. Those events and symptoms were disruptive of the plaintiff's family and social life

and her recreational activities over a period of more than three years.

The plaintiff's principal disabilities now are associated with numbness in and around her mouth. Her evidence was that she burns herself quite regularly because she cannot tell how hot things are. She often gets blisters on her lips. Food and liquid drool from her mouth, and she finds that embarrassing. She cannot detect food with the tip of her tongue. She rarely uses makeup because it feels uncomfortable. She dislikes the altered sensation of kissing. She often gets itchy on the mouth and right side of her face.

The heads of damage for consideration are past economic loss, non economic loss past and future, gratuitous services and special damages.

Counsel for the plaintiff submitted a schedule of calculations with respect to a period which begins with the subject operation and ends with the plaintiff's resumption of work with the Woodville Council in July 1991. On the basis of a net earning capacity of $233 per week, the total loss for the period is, in round figures, $17000. Bringing favourable and unfavourable contingencies into account, I allow past economic loss at $13,000.

Although in a sense the worst is behind her, the plaintiff can expect to suffer her numbness for the rest of her life. With respect to non-economic loss, I allow $20,000 for the

The plaintiff is entitled to be compensated for the voluntary services provided by her second husband to the extent that those services exceeded the services that he would have provided as a member of the plaintiff's household in any event: Bruno v Davies (1988) 144 LSJS 226 at 238. The services were more of a domestic than a nursing nature. The evidence lacks detail and the award must be moderate. I allow $750.

Special damages have been agreed as to quantum only at $8709.50. The sum includes allowances with respect to the plaintiff's admission to St Andrew's Hospital on 21 January 1993 for treatment by Dr Locke. It will be recalled that the plaintiff's complaints at that time were thought by Dr Locke to be suggestive of temporo-mandibular joint dysfunction. Since I have not found that any liability should attach to the plaintiff's myofacial pain disorder and associated temporo-mandibular joint dysfunction, I disallow the sums of $200 and $770 which she has claimed for the relevant surgical and hospital fees. I allow $7739.50 for special damages.

In summary, the assessment is as follows:- past economic loss 13,000 non economic loss past 20,000 future 20,000 gratuitous services
750 special damages 7,739.50 $61,489.50"

The appellant challenges the amount of the award. There is in it an award of $40,000 for non-economic loss. It is that which is challenged. It is challenged not only as being manifestly excessive but on a ground of principle. Mr Martin wrote in his Outline: "In assessing non economic loss the Learned Trial Judge erred in taking into account disabilities that were not related to permanent nerve damage about which the appellant failed to give a warning, namely, 'numbness under her right eye', 'inability to open her mouth to the full extent' and difficulty biting into hard food.

In respect of her non economic loss, the respondent was entitled to be compensated only for the permanent nerve damage and numbness about which the appellant should have given a warning. Such damage and numbness is confined to the tip of the tongue and lips. The award of $40,000.00 was manifestly excessive."

Mr Halliday, junior counsel for the appellant, addressed us on the question of damages. He said: "It is our submission that the only products of the failure to warn, if it is so that the appellant failed to warn, are the numbness about the lips both upper and lower and the necessary consequence of that numbness to the tip of the tongue and parts of the gums. But that his Honour, in reaching a decision to award $20,000, must have fallen into error in taking into account what he said at p.1,239 'She has numbness under her right eye'. Numbness under the right eye is manifestly, on the evidence, not a product of the injury that was found that the doctor failed to warn about."

The point of principle is most interesting. Is the respondent entitled only to damages for (in the apt words of Mr Halliday) " the products of the failure to warn" or for all other pain, suffering and loss of amenities caused by having the operation. There appears to be no direct evidence on the point. In Gover v SA (1985) 39 SASR 543 at 563 Cox J said: "There is a question whether any of this evidence about the risk of blindness really matters on any view of Dr. Perriam's knowledge. The fact is that no such disaster happened. Mr. McCarthy submitted that the evidence on the topic shows, at the least, how lax the standards of Dr. Perriam and his witnesses were generally. I do not find the evidence helpful in that respect. There is a nice question whether it is open to the plaintiff to argue that she is entitled to recover against the defendants on the ground that, had she been warned about the risk of blindness, she would not have had either operation and therefore would not have suffered the entropion and trichiasis. I do not think that proposition can be upheld, even assuming that the premiss is soundly based. If I am wrong in holding that Dr. Perriam was not under a duty in the circumstances to warn of the possible blindness complication, the fact is that the plaintiff has suffered no damage by reason of his breach of duty. No authority was cited to me on this question. However, it seems to me that

on principle the different types of operation and their respective risks have to be reckoned separately. They were separate procedures, and one could have been performed without the other. There is no reason to suppose that the plaintiff did not understand that. In the circumstances I do not think that it can be said that the entropion and trichiasis that resulted from the canthoplasty were caused, in the relevant sense, by the failure to warn the plaintiff of a blepharoplasty risk."

This passage may seem to be capable of supporting the submission made by Mr Halliday. But I think that the remarks of Cox J may be simply remarks addressed to the evidence before him. If not, I venture, with respect, to differ. I think that, logically, if a patient has had an operation which he or she would not have had if not negligently advised then any adverse consequence of the operation must have been caused by the negligent advice and must sound in damages. Would he or she have suffered those consequences had he or she been fully warned about the risk of other consequences? No. Well, then, damages must cover both sets of "consequences". That I think to be the logical conclusion. Yet I can see that as a matter of policy that the law might seek to confine the assessment of damages in cases like this to the "products of failure to warn". The incremental approach to issues of proximity and causation nowadays always have regard (even if the regard comes to nothing in the end) to questions of policy. Would the "full recovery" idea go too far, push the bounds of recovery of damages in cases like this too far. For a time I thought that the decision of the High Court in Neall v Watson (1960-61) 34 ALJR 364 might be relevant here. The head note adequately tells us the facts and what was decided: "A plaintiff brought an action for damages for injuries he suffered in a collision between a motor car driven by himself and another car driven by the defendant. At the time of the accident, in which he sustained severe physical and nervous injuries, the plaintiff, though apparently in good health, was at the limit of his endurance by reason of the intensity with which he had been working and great

family responsibilities and worries. He returned to work shortly after the accident, but was unable to do the intense work he had been doing previously and later transferred to employment of a lighter nature. Seventeen months after the accident, his health being then still in a precarious state, he fell ill with severe pneumonia caused by a virus infection, was in hospital for two months, had treatment for a year, and was thereafter a chronic invalid.

Held, that the defendant was not liable for the damage suffered by reason of the pneumonia and the ill health and incapacity for work which followed that illness." At page 367 the Court said: "The respondent is liable only for the injuries he caused, in the sense in which the law speaks of cause and consequence. He cannot, however, escape any of this liability by showing that the sufferer from his wrong-doing would not have suffered as he did had he been a different sort of man. It does not avail a defendant to show that the victim of his negligence was weak and easily injured. But, on the other hand, a defendant is liable only for the harm his negligence causes, not for harm later ensuing from the operation of a new and independent cause."

That seems to offer an analogy which might be decisive. But in the end I think the facts are not comparable to the facts here. Nor is the case, at best, a situation in which harm is "later ensuing... from... a new and independent cause". It all comes from the one source. That is, the operation.

In Havenaar v Havenaar (1982) 1 NSWLR 626 the plaintiff suffered severe injuries for which he was awarded damages. He turned to alcohol in excess to relieve pain. That caused a condition of pancreatitis. One issue on appeal was whether he was entitled to damages in compensation for the adverse effects of pancreatitis on his life and earnings. Hutley JA thought not. Reynolds JA did not consider the point. Glass JA thought that the plaintiff was entitled to such damages. Glass JA said: "So the question for decision is whether the bouts of pancreatitis induced by alcohol during that period represent a recoverable head of damage. That they were caused by the defendant's negligence is not in dispute. But it is argued that they are a remote consequence of it having regard to the conscious intervention of the plaintiff in breach of medical advice as a link in the causal chain. Since Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) decision [1961] UKPC 1; (1961) AC 388, the test of remoteness is based exclusively on foreseeability. If the harm suffered by the plaintiff is foreseeable as a possible outcome of the defendant's negligence it passes the test of remoteness. It is not necessary for the plaintiff

to show the precise chain of events which connects the negligence and that harm or the foreseeability of that particular harm as a possibility. It is enough if harm of that kind is foreseeable in a general way as a possible result.

'That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established.' Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, at p390.

Differences of judicial opinion may arise in determining the class of injury to which the particular harm belongs: Rowe v McCartney (1976) 2 NSWLR 72. In my opinion, however, the appropriate genus here should be described as an aggravation of the plaintiff's mental and/or physical malady by treatment administered in an attempt to relieve his symptoms. It is to such a category that one would assign complications resulting from careless medical treatment or addiction to pethadine(sic) medically prescribed as an analgesic. That class of harm is clearly foreseeable as a possible outcome of negligence in the driving of a vehicle.

Since it is foreseeable in a general way it is nothing to the point that the defendant may not have foreseen as a possibility the particular harm viz the resort to alcohol as a pain relieving measure or the continued resort to it by the plaintiff after the dangers had been explained to him. His Honour found as a fact that the employment of alcohol as an analgesic and the condition of pancreatitis which it produced were of a character foreseeable as a possible result of the defendant's careless driving and this finding is in my view invulnerable to attack.

It will be recalled that his Honour also found that the

plaintiff resorted to alcohol because of a special weakness to which others may not have succumbed. At this point the

evidence produces a convergence between the foreseeability in a general way principle and the eggshell skull principle.

It has been held that if a burn injury is reasonably foreseeable and the trauma operating on premalignant tissues produces a cancer, the defendant is liable for the latter development since the amount of damage suffered from the burn depends upon the characteristics and constitution of the victim: Smith v Leech Brain and Co Ltd (1962) 2 QB 405. So it would seem to me that the bouts of pancreatitis constitute a deterioration in the plaintiff's condition for which damages are recoverable either because they are a form of worsening foreseeable in a general way or one which is attributable to the sort of person the plaintiff happened to be whether this was foreseeable as a possible source of aggravated damage or not. If because of a predisposition to it, he had been plunged by the pain of his spinal injury into incurable alcoholism I cannot see that the defendant could escape liability for that or any pancreatic damage which ensued."

This is not a satisfactory authority because there was no majority view to support my opinion. But I find the reasoning of Glass JA relevant and useful here. And I respectfully agree with and about that reasoning. There must be room for different opinions. I think that the full recovery idea is sound. It should be adopted. The learned trial judge did adopt it. He should be upheld. On that assumption I cannot say that the total amount awarded is manifestly excessive.

But for the allowance for future non-economic loss the point of principle can be put aside. There is, in my opinion, no reason to think that the allowance for future non-economic loss should be reduced in any event. That is to say whether the trial judge assessed on a wrong principle or not.

Mr Halliday said: "We would say that to the extent to which his Honour found that the plaintiff suffered from eating difficulties and restrictions of biting hard food, that that component is due to the temporo-mandibular joint problem and is not related at all to the problem about which she says she was not warned, or the trial judge found she was not warned - that is, numbness to the lips, front of the mouth; such things that attach to that problem, that is to say, the burning, the itching to the mouth, the numbness and the blistering when eating hot food, kissing and so on we would accept would be a consequence of the numbness, but not that is(sic) which is related to the back of her jaw, the difficulty biting on hard food."

Compare these disabilities or consequences with the learned trial judge's recital of "principal disabilities" now (see page 17 supra paragraph 2). They may be summarised thus - - Numbness in and around the mouth, - Frequent burning, - Blisters on her lips, - Drooling, - Inability to detect food with the tip of her tongue, - Makeup uncomfortable, - Itchy mouth (and at right side of face), - Altered sensation of kissing.

There is no real difference. The learned trial judge has for the future assessed damages based on things which happen to be the products of failure to warn. It may seem that $20,000 is generous for those sufferings and loss of amenities. But she can, as the learned trial judge said, expect "to suffer her numbness for the rest of her life". She was 38 years at trial. The allowance of $20,000 is not out of proportion to the loss.

Harking back to "past loss", much other than the products of failure to warn were taken into account. I can now say no more than that I think that the learned trial judge came to a conclusion which was not out of proportion to the injury. I think that the award of $20,000 for past loss was within the bounds of a fair and reasonable assessment.

JUDGE2 KING CJ In my opinion this appeal should be dismissed. I agree in general with the reasons of Justice Bollen. I would add only a brief caveat on the question of causation. I would not wish to be taken as necessarily assenting to the view that where a patient undergoes an operation which the patient would not have undergone if properly advised as to a particular risk, the patient is entitled to recover damages not only for the detriment against the risk of which he or she was not warned but also for any other detriments resulting from the operation however unrelated to that risk.

2. Cases may occur which will give rise to difficult questions of causation. There may be operations which result in detriments which are quite unrelated to the risk against which it was the surgeon's duty to warn. Those detriments may occur in conjunction with the detriment concerning which the surgeon should have warned. It may be in some cases that the detriment against which the surgeon should have warned does not materialize at all but other detriments against the risk of which warning was given or was not required, do ensue.

3. Strict logic would seem to indicate that if a patient undergoes an operation which he or she would not have undergone but for the negligent failure to warn, any detriment resulting from the operation should be regarded as caused by the negligent failure. It may be argued, however, that that is pressing logic too far and that on grounds of fairness and policy the only detriments for which damages should be allowed as causally related to the failure to warn, are those against the risk of which the surgeon should have warned.

4. I do not think that it is necessary to explore this issue of causation in the present case. The residual disabilities to which the learned trial judge adverted in his assessment of damages for future loss were disabilities against the risk of which the appellant should have warned. There are elements of the assessment of pre-trial damages which are somewhat doubtful but I think that they are sufficiently connected with the risk against which the respondent should have been warned, to regard them, on any view of causation, as resulting from the negligence.

JUDGE3 DUGGAN J In my view this appeal should be dismissed.

2. I agree generally with the views expressed by Bollen J but I also subscribe to the note of caution sounded by King CJ on the matter of causation.

3. In my view a simple application of the "but for" test is not conclusive in a case such as the present where it is suggested that there should be compensation for a detriment other than that in respect of which there was a failure to warn of possible consequences. It is important to bear in mind that the causative link in such cases is the fact of reliance. Rogers v Whitacker (1991) 23 NSWLR 600 at 608, 618. (The issue of causation was not argued in the subsequent appeal to the High Court.) In my view there are sound reasons of policy why that consideration should have the effect of restricting the ambit of damages to sequelae which are related directly to the advice and reliance.

4. However I agree that on the facts of the present case it is unnecessary to resolve this issue.