Golski, K.M. v. Kirk, D. [1987] FCA 200

O'Grady v. Botany Wools (Australia) (1964) 64 S.R. (N.S.W.) Black v. The Mayor, Councillors and Citizens of the City of South Melbourne (1964) 38 A.L.J.R. 309

Sidaway v. fhe Board of Governors of the Bethlem Royal

Hospital and the Maudsley Hospital [1985] 1 A.C. 877

Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582

Anchor Products Limited v. Hedges (1966) 115 C.L.R. 493

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

KATHERINE MARY GOLSKI Executrix of the Estate of the late ALEX GOLSKI vy. DUNCAN MURRAY KIRK

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KATHERINE MARY GOLSKI Executrix of the Estate of the late ALEX GOLSKI

2. The order of the Supreme Court of the Australian Capital Territory dated 26 June 1986 be set aside.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KATHERINE MARY GOLSKI Executrix of the Estate of the late ALEX GOLSKI

KELLY J: This is an appeal from a decision of the Supreme Court of the Australian Capital Territory (Miles CJ). His Honour allowed an amendment to the statement of claim in an action brought by the respondent against the appellant as Executrix of the estate of the late Dr Alex Golski, an orthopaedic surgeon. By his indorsement on the writ issued on 14 September 1978 the respondent claimed "damages for negligence as a result of an operation performed by the late

By his statement of claim delivered in April 1979, the respondent, after preliminary averments, alleged that in June 1976 he attended on Dr Golski for treatment "for the meniscus to his left leg" and was subsequently admitted to hospital in that month where Dr Golski performed a left meniscectomy. The statement of claim went on:-

damaging cutting or otherwise interfering with the long' saphenous nerve

(b) Commencing the operation by an incision which was higher than normal and which thereby damaged the said nerve."

The defence delivered 15 July 1980 traversed the allegations contained in that paragraph. The sufficiency of that traverse is not challenged.

On 4 July 1985 the respondent's solicitors wrote to the appellant's solicitors to give notice of a proposal to effect an amendment to the statement of claim by inserting in the particulars appended to paragraph 5 the

"(c) Failing to properly and adequately manage the plaintiff's treatment.

(d) Recommending to the plaintiff (well knowing that the plaintiff would be likely to act on the said

recommendation) that the plaintiff undergo the said left menisectomy [sic].

(e) Failing to advise the plaintiff prior to so recommending of the nature and extent

of the operation and of the risk that during the said operation the long

saphenous nerve might be damaged cut or otherwise anterfered with and of the consequences thereof."

By letter dated 6 September 1985 the solicitors for the appellant refused her consent to the proposed amendments.

By notice of motion dated 26 November 1985 the respondent sought leave to amend paragraph 5 in the way proposed in his solicitors' letter of 4 July 1985. The motion was heard by the Registrar of the Supreme Court who dismissed it on 1 April 1986. The respondent appealed to the Supreme Court and on 26 June 1986 Miles CJ upheld the appeal, allowed the amendments sought and ordered that the respondent should pay the appellant's costs of the appeal. The appellant sought and was granted leave to appeal to this court.

In his reasons for judgment Miles CJ noted that 1t was common ground that the respondent's right to bring proceedings against Dr Golski's estate expired some time in 1979. He thén said:-

enable the plaintiff to add a new cause of action to the claim in negligence already

long line of cases going back to Weldon v. Neal (1887) 19 QBD 394, ...

The question for me to determine is simply whether the proposed amendment does no more than give further particulars of the plaintiff's claim on the cause of action sued upon, or whether it gives rise to an allegation of a further and distinct cause of action."

Before his Honour the respondent argued that the allegation of a failure adequately to advise the appellant did no more than give further particulars of the breach of the general duty of care owed the respondent by Dr Golski as his treating surgeon. It was submitted for the appellant that the respondent had made an allegation of negligent surgery and that to allege now an allegation of negligent advice was to introduce something so different that it must be a difference in kind amounting to an allegation of a

breach of a distinct and separate duty of care involving

In Weldon v. Neal (1887) 19 QBD 394 the plaintiff had been nonsuited in an action for slander and refused leave to amend. Subsequently she was granted leave to amend her statement of claim by the Court of Appeal. She amended her statement of claim to set up in addition to the claim for slander fresh claims in respect of assault, false imprisonment and other causes of action which, at the time of the amendment, were barred by the Statute of Limitations although not' barred at the date of the writ. The Divisional Court ordered that the paragraphs stating the fresh causes of action be struck out,

the date of the amendment, would be barred by the Statute of Limitations, it would be

allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."

for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."

Read v. Brown (1888) 22 OBD 128 per Lord Esher MR at p.131.

See also Cooke v. Gill [1873] L.R. 8 C.P. 107 at p.116, per

Diplock Ld defined a cause of action as "simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person."

In Marshall v. London Passenger Transport Board [1936] 3 All E.R. 83, the Court of Appeal considered a case where a plaintiff had been injured in a collision involving his bicycle and a tramcar. He issued a writ claiming damages for personal injuries and loss sustained by reason of the negligence of the defendants, their servants and agents. His statement of claim set up a claim of negligent driving. Subsequently he was granted leave to add further particulars which set up a case of neglect to keep the tram

track and highway in repair, describing that neglect as a

breach of statutory duty. It was held by the Court of Appeal that the amendment introduced a new case which if set up in an action commenced at the date of the amendment would have been barred by lapse of time. The amendment was disallowed. At p.88, Lord Wright MR said:-

"ee the proposed amendment would, if allowed, have set up a new cause of action involving quite new considerations, quite new sets of facts, and quite new causes of damage and unjury, and the only point of simularity would be that the plaintiff had suffered certain injuries. No doubt in cases of negligence injury 1s the gist of the action, but 1t is only one element. The cause of action involved duty, breach and damage, and the proposed amendment would have set up an entirely different duty and an entirely different breach of that duty. The one remaining feature of damage, 1t may be, would have been the same."

[1941] 1 All E.R. 228, in which the facts were very similar, the Court of Appeal followed and applied Marshall's case,

See also Haylan v. Purcell (1948) 49 S.R. (N.S.W.) 7 and

Dornan _v. J.W. Ellis & Co. Ltd. [1962] 1 Q.B. 583. In Dornan's case a workman employed by the defendants suffered injury to his eye when a drill being operated by a fellow worker snapped into pieces, one of which flew into his eye. When the statement of claim was delivered it alleged that the accident was caused by the negligence of the defendants, their servants or agents and gave particulars alleging in substance that the defendants had failed to provide the plaintiff with means of protecting his eyes against a defective tool. When the action came on to be heard after

the applicable limitation period had expired the plaintiff

applied for leave to amend his statement of claim by adding an allegation that the accident had been caused by the negligence of the fellow worker or other servants or agents of the defendants and that the defendants were therefore vicariously liable. At p.591, Holroyd Pearce LJ said of the

"In those two cases the amendment not only produced a new case, a new set of ideas: it actually produced a new cause of action, since the cause of action for breach of statutory duty is different from the cause of action for common law negligence ..."

"The fresh allegations do not introduce a new cause of action, nor, in my view, 'a new set of ideas'. The original allegations were not against Stewart: but they were allegations that the defendant company's servants or agents had failed in the provision of goggles and a proper drill. Admittedly that was an allegation of a breach of duty for which the company could not avoid liability under the former doctrine of common employment. But it was all part of the allegation that through lack of proper care of the defendants, their servants or agents the plaintiff suffered injury. The allegation against the fellow-workman was an extension of the case rather than a new case. It must be a question of degree in each case on its particular facts. I regard this as a difficult case which is near the line."

"Mr Taylor, for the defendants, contends that the present case 1s in the same class as Marshall's case and Batting's case. But not without hesitation I have come to the view that it is not. The story that is now set up by the plaintiff is the same story as that set up all along, namely, that the plaintiff lost his eye from a piece of the drill which was being operated by Stewart. And, as I think, what 1s now sought to be done is not to make out a new case of negligence, but to persist in the old story and invite the judge

at the trial to approach it, to interpret it, from a different angle or aspect. It is a

different approach to the same main story of the accident."

In O'Grady v. Botany Wools (Australia) (1964) 64 S.R. (N.S.W.) 359, a Full Court of the Supreme Court of New South Wales (Walsh, Ferguson and Asprey JJ) held that, where the proceedings had been identified upon the filing of the declaration as based on common law negligence, an amendment to the declaration to provide for the addition of counts based on breach of statutory duty after the expiration of the appropriate limitation period would amount to _ the institution of different proceedings and should not be allowed.

403, the Full Court of the Supreme Court of Victoria dealt with a claim by the respondent that he was an invitee in respect of whom the appellant municipality had failed in its duty to use reasonable care to prevent damage from an unusual danger in a swimming pool, namely, a submerged piece of timber, Of which it knew or ought to have known. At the trial the plaintiff sought and obtained leave to plead that he had hit his head on the bottom and that the defendant had failed in its duty to warn him of the unusual danger constituted by the combination of the depth of water and the platform from which the plaintiff had dived. The court held that the amendments of the plaintiff's pleadings allowed at the trial introduced for the first time a new claim made on a new basis and, because of the appropriate limitation

p.415, gave consideration to several authorities including

Marshali's case, Patterson v. Richards [1963] V.R. 179,

Harris v. Raggatt [1965] V.R. 779 and Dornan's' case

we have referred this amendment, in our opinion, should have been refused. It is

true that the amendment did not set up a new cause of action in the technical sense as defined above, although paragraph 6 of the statement of claim was substantially amended as we have indicated, the gravamen of the complaint against the amendment = is in relation to the particulars of negligence. But although it may be true that' the plaintiff is not pleading a new cause of action inasmuch as he is' still claiming damages for the same injuries and, so far as these amendments are concerned, for the same breach of duty, still the case disclosed by the amendments is, in our opinion, a new departure, a new head of claim. As Holroyd Pearce, LJ, said in the passages cited above, it 1s 'a new claim made on a new basis' - the claim for damages is now based on 'a new set of ideas'. As the same learned judge said, in determining whether there us a new departure or a new basis of claim or a new set of ideas, it us often a matter of degree. Here there is set up an entirely different kind of unusual danger by which it us alleged that the injuries complained of were caused. This means, in our opinion, that the case made under the original pleading is so different from that made under the amendment that the defendant must have been taken completely by surprise by the new case it was called upon to meet,"

nom. Black v. The Mayor, Councillors and Citizens of the

City of South Melbourne (1964) 38 A.L.J.R. 309. The High

Court held, affirming the actual decision of the Supreme Court of Victoria, that, even assuming that the respondent

was the occupier of the premises and the appellant an

invitee, there was no evidence to support a finding that the injury was caused by an unusual danger and hence the respondent was not liable. All five justices agreed that the appeal should be dismissed. Kitto J agreed in the judgments of the Chief Justice and Menzies J while Taylor J agreed that the appeal should be dismissed for the reason

given by the Chief Justice. Amongst those reasons appeared

"T would, however, wish to say briefly that, in my opinion, the Full Court were in error in holding that the variation in the particulars which the plaintiff gave ought to have been disallowed and the plaintiff compelled to stand on his original

particulars. It seems to me quite plain that, throughout, the plaintiff's cause of action did not change, though his

particularizing of the facts by which he proposed to sustain that cause of action did significantly alter. Tt would, in my opinion, have been an improper exercise of judicial discretion for the trial judge in this case to have refused the plaintiff the opportunity to present his proofs of that cause of action differently to the manner in which he had originally proposed. Questions of surprise and disadvantage because of a change of course in proof can almost always be met by adjournment and appropriate orders as to costs. It would certainly have been so in this case. As there was, in my opinion, no new cause of action involved in_ the changed particulars, no question of the statute of limitations fell for consideration."

The exact status of that passage was a matter for some debate before us, it being submitted that it was obiter dictum. I Go not think it necessary to decide that question. I note that each of the Full Court and the High Court agreed that no new cause of action was involved. The

injured appellant sought at all times to make a case that he

was an invitee, that the respondent was an occupier and that

it failed in its duty to take reasonable care to prevent damage from an unusual danger: before amendment, the presence of a submerged piece of timber of which it knew or ought to have known; after amendment, the combination of the depth of water and the platform from which the appellant had dived. The case might reasonably be said, therefore, to fall on that side of the line favourable to the plaintiff seeking to amend referred to in Dornan's case and, in my respectful opinion, is to be taken as no more than dealing with the facts of the case in question. I would respectfully take the view that the learned Chief Justice did not seek to overturn the long line of authority stemming

from Weldon v. Neal (supra) but sought merely to deal

appropriately with a particular set of facts before him in a way which was in the event in the plaintiff's favour although, ultimately, of course, the decision went against him.

was given before but which was reported after the judgment

of the Full Court of the Supreme Court of Victoria in City

of South Melbourne v. Black [1964] V.R. 403, Sholl J said at

p.786 that the appropriate test was whether the proposed amendment was sufficiently closely related to what was already alleged as to make it fair that it should be allowed. He said:-

between the plaintiff and the members of the committee of management of the association,

generally. Otherwise no new facts at all are involved, so far as I can see, No legal obligations or duties of a new content are

In Hall v. National & General Insurance Co. Ltd. [1967] V.R. 355, Gowans J, at p.366, applied the test adopted by Sholl J in Harris v. Raggatt (supra). He took the view that there were really no new facts requiring investigation although there was plenty of new law.

In Hristeas v. G.M.H. Pty. Ltd. [1968] V.R. 14, the plaintiff began an action claiming damages for personal injuries alleging in his original statement of claim that he had been engaged upon the task of welding with an electric welding apparatus and that on 16 October 1963 his body had come into contact with a live electrified portion of such apparatus whereby he suffered anjury. Subsequently he sought to amend his statement of claim to allege that his injuries resulted from repeated operations by him during the period ending on 16 October 1963 of a pressure hand-grip forming part of the welding apparatus, which hand-grip required repeated vigorous contractions of the right hand. A Master granted leave to amend. On appeal Pape J held that the leave to amend was properly granted on the basis that the proposed amendment raised no new cause of action on a

different case but was merely a changed or additional

approach to the same facts based on the same cause of

action. Although he expressed himself as having some difficulty in determining the precise basis on which the decision of the High Court in Black v. The Mayor,

Councillors and Citizens of the City of South Melbourne

[1968] A.L.J.R. 309 was come to, he held that since the basic facts which he was considering were similar to those

in Black's case he was bound to follow the case. He took

the view that the High Court in Black's case could have

proceeded on the basis that, since the amendment proposed did not involve the addition of a new cause of action in the technical sense, it would have been an improper exercise of judicial discretion to disallow the amendment solely because a new action pleading those facts would have been statute barred, Alternatively, he considered that the decision might not be based on any disagreement with the earlier authorities but upon the view that, accepting the propositions set out in those authorities, the amendment

sought in Black's case was not a new claim on a new basis.

He referred to the dictum of Windeyer J in Anchor Products

Limited v. Hedges (1966) 115 C.L.R. 493, at p.499:-

"The cause of action was negligence. The particulars of the acts or omissions which were relied on as constituting the negligence alleged could, at the discretion of the trial judge, be expanded by amendment to meet Matters that emerged in the course of the trial. The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it."

(Australia) Pty. Ltd. [1971] V.R. 378, Lush J held that a

statement of claim which had originally alleged negligence at common law could be amended after the expiration of the limitation period to allow a claim in respect of a breach of statutory duty. His Honour gave extensive reasons for reaching that conclusion but, with no disrespect to him, I consider that it is unnecessary to give detailed consideration to those reasons since the Full Court of the Supreme Court of Victoria effectively overruled his decision

in Cutrona v. Harnischfeger of Australia Pty. Ltd. [1977]

701 provides an interesting illustration of the application of the relevant principles. In an action against his employer for damages the plaintiff in his statement of claim alleged that his injuries were caused by the negligence of the defendant and its servants and he gave particulars, After the expiration of the limitation period he applied to amend his statement of claim by alleging further particulars of negligence and by adding a claim for damages for breach of statutory duty. The amendments were allowed by a Master. Menhennitt J held that the proposed amendments, particularizing, although altering, the facts by which the plaintiff proposed to sustain the cause of action in negligence, and the proposed amendments to the particulars of negligence, whereby, inter alia, allegations of non-compliance with certain legislative provisions were to be introduced, should be allowed. In allowing that

amendment his Honour considered that allegations of that

non-compliance were simply particulars of negligence. However, he upheld the appeal against the proposed amendments alleging breach of statutory duty as a new cause of action,

referred to the decision of the High Court in Renowden v.

McMullin (1970) 123 C.L.R. 584. In that case the writ bore

a general indorsement alleging breach of contract and breach of a duty of care. The statement of claim subsequently delivered made no claim based on breach of contract. More than six years after the events alleged to have given rise to the claims in guestion the plaintiff sought leave to amend the statement of claim by introducing a claim based on alleged breaches of contract. The majority of the High Court, Kitto, Menzies and Owen JJ, held that the causes of action on which a plaintiff relies are to be ascertained exclusively by reference to the statement of claim without regard to the indorsement on the writ. The amendments proposed by the plaintiff sought to raise a cause of action, not mentioned in the statement of claim, which was statute-barred, and should not be allowed. At p.613, Owen J, with whose judgment Kitto and Menzies JJ agreed, said:-

been dropped from the action and 1f, at some later date, the plaintiff seeks to

re-introduce it he ought not in fairness to the defendant be allowed to do so if by that time the claim would have been statute barred had an action then been begun to enforce that cause of action."

In my opinion, despite the challenge made to the authority of the dictum of Barwick CJ in Black v. City of

South Melbourne (supra) it lays down a principle which is

binding on this Court. I respectfully adopt the view taken of its authority by the Full Court of the Supreme Court of

victoria in in Cutrona v. Harnischfeger of Australia Pty.

Ltd. [1977] V.R. 306 at p.309. The dictum appears to me,

with respect, to follow logically from Weldon v. Neal (1887)

19 QBD 394, Marshall v. London Passenger Transport Board

[1936] 3 All E.R. 83, Batting v. London Passenger Transport

Board [1941] 1 All E.R. 228, Dornan v. J.W. Ellis & Co.

(Australia) (1964) 64 S.R. (N.S.W.) 359 and to be not

inconsistent with Renowden v. McMullin (1970) 123 C.L.R.

In my Opinion, a plaintiff should not be allowed to introduce new claims by amendment which in substance amount to the bringing of a new action for claims already barred by statute. However, where the proposed amendments do not change the cause of action but do no more than particularize the facts by which the respondent proposes to sustain it even though the facts sought to be brought forward under the amendment are quite different from those

In reaching this conclusion I consider it unnecessary to give any further consideration to the question whether a new cause of action depends on a substratum of facts freshly pleaded, on a new claim in law or on a combination of both. In my opinion the applicable considerations are those in the two propositions set out above,

made by Lord Diplock in Sidaway v. The Board of Governors of

the Bethlem Royal Hospital and the Maudsley Hospital [1985]

"In English jurisprudence the doctor's relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient's health in any particular respect in which the patient has sought his aid, has hitherto been treated as single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment in the improvement of the physical oer mental condition of the patient for which his services either as a general practitioner or specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skilfully the treatment advised is carried out.) The Bolam case itself embraced failure to advise the patient of the risk involved in the electric shock treatment as one of the allegations of negligence against the surgeon as well as negligence in the actual carrying out of treatment in which that risk did result in injury to the patient. The same criteria were applied to both these aspects of the surgeon's duty of care. In modern medicine and surgery such dissection of the various things a doctor had to do in the exercise of his whole duty of care owed to his patient is neither legally meaningful nor medically

practicable. Diagnosis itself may involve exploratory surgery, the insertion of drugs by injection (or vaccination) involves

intrusion upon the body of the patient and oral treatment by drugs although it involves no physical intrusion by the doctor on the patient's body may in the case of particular patients involve serious and unforeseen risks."

"Por the last quarter of a century the test applied in English law as to whether a doctor has fulfilled his duty of care owed to his patient has been that set out in the summing up to the jury by McNair J in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582."

That test, obviously taken by Lord Diplock to cover diagnosis, treatment and advice (including warning of any risks of something going wrong however skilfully the treatment advised be carried out) was stated by McNair J in

"TA doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. «se Putting it the other way round, a man {scil. a doctor] is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who

Counsel for the respondent submitted that in the circumstances the claim against the estate of the deceased was originally a claim in negligence and the amendments allowed did not change the character of the claim in the slightest. The claim in respect of advice was in respect of

something which, as Lord Diplock said, was all part of the

Assuming that the advice, lack of which is now complained of, had been given, the respondent might have refused to undergo the proposed operation. Whether he would have or not does not, of course, appear and nothing can be taken from that. It was suggested during argument that a failure to give advice might in an appropriate case result

in an assault on the patient undergoing surgery following

that failure. As Lord Scarman said in Sidaway v. Board of

Governors of Bethlem Royal Hospital and the Maudsley

"BR doctor who operates without the consent of his patient is ... guilty of the civil wrong of trespass to the person: he is also guilty of the criminal offence of assault,"

Damage is the gist of the action for negligence. The claim now sought to be made by the respondent is really brought under two heads. They are:-

(a) that Dr Golski negligently operated causing physical injury;

(b) that he negligently failed to give advice which might have resulted in the respondent's refusing to undergo the operation.

When the matter is put in that way, it will be seen that the damages claimed in respect of the negligent performance of the operation and the failure to give the

appropriate advice must lead to two different inguiries as

Had the advice been given and the respondent nevertheless undergone the surgery and assuming that the surgery had been performed negligently, nothing would be adde@ to the claim for it would still remain one for negligent performance of the surgery.

Because, so the respondent alleges, warning was not given he underwent surgery which he might have refused. His damages would then have had two components. First there would have been those flowing from the alleged negligent performance of the operation, secondly there would have been those flowing from the invasion of his bodily integrity brought about by the failure to advise appropriately. However, it would have been necessary to offset against that invasion the continuing effects of the condition from which he was suffering and in respect of which he sought advice from Dr Golski.

It will be seen, therefore, that in one essential feature, that relating to damages, the inquiry based on the fresh particular would be much more extensive in character and in some'respects quite different in kind from that which would have followed upon the mere negligent performance of the operation.

Assuming that failure to give the advice referred to is to be taken as being negligent advice in the circumstances and a breach of the duty of care which Dr Golski undertook when he entered upon the advice and treatment of the respondent, it seems to me that the nature

of the claim is quite different. The claim as originally

brought sets up an ordinary enough claim in negligence with ordinary cnough damages alleged to flow therefrom. The claim now sought to be brought, although to be taken, following Sidaway's case, as brought in respect of a breach of one aspect of the one comprehensive duty of care, is nevertheless different in kind on its -facts and requires investigation of different damages although, of course, one element of the damages, that flowing from the actual alleged negligent performance of the operation, remains common to both inquiries,

In my opinion, therefore, the amendment is in respect of a different cause of action as that phrase is properly to be understood and the appeal should be allowed with costs.

For the reasons given by Beaumont J, whose judgment I have had the advantage of reading, I agree that the respondent's application for leave to appeal on a question of costs should be refused.

It is to be noted that the respondent has not sought to bring a claim for breach of contract. Counsel for the appellant submitted that the case was one of tort and could only be one of tort. I express no opinion on this aspect.

I certify that this and the 20 preceding pages are a true copy of the Reasons for

Judgment herein of the Honourable Mr Justice Kelly.

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KATHERINE MARY GOLSKI Executrix of the Estate of the late ALEX GOLSKI

BEAUMONT J. By a writ issued out of the Supreme Court of the Australian Capital Territory on 14 September 1978, the respondent sued the appellant claiming damages for negligence as a result of an operation performed by the late Dr. Alex Golski on the respondent in June 1976. In his statement of claim delivered in April 1979 and annexed to these reasons, the respondent alleged that Dr. Golski negligently treated the respondent in the course of operating on him in June 1976. By letter dated 4 July 1985, the respondent's solicitors informed the appellant's solicitors of their intention to seek to amend the statement of claim by adding certain additional material. The foreshadowed amendments were described in the solicitors' letter as follows: ",..it is proposed to affect an amendment to the

Statement of Claim by inserting in the particulars to paragraph 5 the following additional paragraphs:

(d) Recommending to the plaintiff (well knowing that

the plaintiff would be likely to act on the said recommendation) that the plaintiff undergo the

(e) Pailing to advise the plaintiff prior to so recommending of the nature and extent of the operation and of the risk that during the said

operation the long saphenous nerve might be damaged cut or otherwise interfered with and of

The appellant having refused her consent to the amendment, the respondent applied for leave to amend. The application was contested by the appellant on the ground that the effect of allowing the amendment would be to enable the respondent to add a new cause of action thereby avoiding the relevant limitation provisions (see Weldon v. Neal (1887) 19 O.B.D. 394). It was and is common ground that, in respect of any claim by the respondent against the estate of Dr. Golski, the

Miles C.J., in allowing the amendment, held that since Dr. Golski owed a single duty of care to the respondent, involving the three aspects of diagnosis, advice and treatment, the amendment sought did not involve the introduction of a new cause of action. His Honour held that since breach of the duty to advise (including warning of any risks of something going wrong however skilfully the treatment advised is carried out) was thus merely an aspect of Dr. Golski's general duty of care to his patient, the amendment did no more than give further particulars of the cause of action already sued on. It followed, the learned Judge held, that because no distinct cause of action was sought

to be introduced, the rule in Weldon v. Neal had no application.

The appellant now appeals, by leave, from that decision.

Generally speaking, an amendment duly made takes effect, not from the date when the amendment is made, but from the date

of the original document which it amends (see Tilcon Ltd. v. Land

and Real Estate Investments Ltd. [1987] 1 W.L.R. 46 at pp.49-50).

In Weldon v. Neal, supra, Lord Esher (at p.395) referred to the

",..amendments are not admissible when they prejudice

the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust."

The test is whether the amendment introduces a new cause of action or merely gives further particulars of a cause of

action already sued on (see Renowden v. McMullin (1970) 123

C.L.R. 584; Biack v. The Mayor, Councillors and Citizens of the City of South Melbourne (1964) 38 A.L.J.R. 309 at p.310).

In this connection, reliance was placed by the respondent upon the following observations made by Windeyer J. in

Anchor Products Ltd. v. Hedges (1966) 115 C.L.R. 493 at p.499 -

"In the present case the trial judge allowed, indeed suggested, an amendment of the plaintiff's statement of claim by the addition of a general allegation that the accident spoke for itself. This was, in the circumstances, a permissible course. The cause of action was negligence, The particulars of the acts or omissions which were relied on as constituting the negligence alleged could, at the discretion of the trial judge, be expanded by amendment to meet matters that emerged in the course of the trial. The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it."

It was there held that a plaintiff who tenders evidence directed to proving the defendant guilty of a particular act of negligence is not thereby precluded from relying upon the principle of res ipsa loguitur. The case and the remarks of Windeyer 3., when viewed in context, do not bear upon the present question, which is whether the amendment sought would introduce a new cause of action. That question is addressed by identifying the cause of action already sued upon and then inquiring whether what is now proposed constitutes a fresh cause of action; or

whether the amendment does no more than provide additional

In my opinion, what is now sought is the introduction of

The cause of action sued on in the statement of claim is professional negligence in the surgical treatment of the respondent in the course of the operation carried out by Dr. Golski in June'1976. What is now sought to be sued on is a different cause of action, that is to say, professional negligence in advising the respondent whether he should elect to undergo the surgery. Such a cause of action is quite distinct from the existing cause of action. The acts of negligence alleged are different in principle. They are alleged to have been committed at different times. Ex hypothesi, the alleged failure to advise with respect to the surgery occurred, if at all, before the operation took place. They are different breaches of duty even if, for some purposes, it may be accurate to say that they are different aspects of a doctor's general duty

following observations of Lord Diplock in Sidaway v. Bethlem

"In English jurisprudence the doctor's relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient's health in any particular respect in which the patient has sought his aid, has hitherto been treated as single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment in the improvement of the physical or mental condition of the patient for which his services either as a general practitioner or specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skilfully the treatment advised is carried out.)"

In Sidaway, supra, it was argued on behalf of the plaintiff (at p.874) that a doctor is under a duty to make

disclosure to the patient of all material facts, subject to the exception of the North American "therapeutic privilege" (see

Canterbury v. Spence (1972) 464 F. 2d. 772; Reibl v. Hughes

(1980) 114 D.L. R. (3d) 1). It was contended that the doctor was

in effect a "quasi-trustee" (see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 at pp.485-6). The next

step in the argument (at p.874) was to submit that while the

Bolam test (Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 at p.586), i.e. whether the doctor's conduct would

be accepted by a responsible body of professionals, applied with regard to diagnosis and treatment, it was not the correct test for warnings. The contention was that, in this context, a higher standard of care was required. It was said that the doctor's

duty was to tell the patient the material risks and the choices

, These submissions were rejected by the House of Lords,

Lord Scarman dissenting. The point Lord Diplock was making in the passage now relied on by the respondent was that it was not possible, by fragmenting the doctor's general duty of care into a number of separate compartments, to isolate a separate Hedley Byrne type of duty to warn the patient about the risks of surgery and to apply to that duty of care a standard higher than that

applied in Bolam. But this conclusion does not touch upon the

present question which is whether there are different breaches of

a duty of care giving rise to distinct causes of action.

The claim now made is different, in principle and in point of timing, from the claim originally made. Negligently failing to warn of the possibility of physical damage being caused if surgery is undergone is a different thing from negligently causing physical damage in carrying out the surgical procedure. The respective claims involve, potentially at least, different measures of damages. In the former case, even if the patient cannot show that he would have declined to undergo the surgery if an adequate disclosure had been made (see Chatterton v. Gerson [1981] 1 0.B. 432 at p.445; Thake v. Maurice [1986] Q.B. 644 at pp.680-1; Gold v. Haringey Health Authority,

Schiemann J., The Times, 17 June 1986), it is possible that

damages could still be awarded to a patient for the loss of the opportunity to consider whether or not he or she should undergo

surgery (see Luntz, Assessment of Damages, 2 ed. at pp.82-3; cf.

Hotson v. East Berkshire Health Authority [1987] 2 W.L.R. 287).

It is not necessary, for present purposes, to decide whether the degree of disclosure required of a doctor should be that propounded by the majority of the Lords in Sidaway (Lord Keith, Lord Bridge and Lord Templeman). The law in Australia is

not yet settled (see Gover v. State of South Australia (1985) 39

S.A.S.R. 543 at pp.551-3; David Partlett, Note "Negligence -

Liability of Medical Practitioner - "Informed Consent Doctrine -

Legal _ and Policy Implications" (1985) 59 A.L.J. 341; Simon Lee,

Note "Operating under Informed Consent" (1985) 101 L.O.R. 316;

Harvey Teff, "Consent to Medical Procedures: Paternalism,

Self-Determination or Therapeutic Alliance ?" (1985) 101 L.O.R.

432; Andrew Grubb, Note "Medical Law - 'Informed Consent' to

Medical Treatment: Who Decides - the Patient or the Doctor?"

(1985) C.L.J. 199; Christopher Nedwick, "The Doctor's Duties of

Care under Sidaway" (1985) Vol.36 N. Ireland L.Q. 243; Lord

Scarman "Consent, Communication and Responsibility" (1986) Journal of the Royal Society of Medicine, Vol.79 p.697; Sheppard

J. "Informed Consent", a paper delivered to the Auckland

Medico-Legal Society on 16 September 1986). It matters not for

our purposes whether the more demanding North American test or

the Bolam formulation is adopted. On either approach, a failure

to warn or even a misleading recommendation will give rise to a cause of action which is independent from a cause of action accruing from negligent performance of the surgical procedure. It follows, in my view, that since the respondent was seeking to introduce a novel cause of action, the application to amend

The respondent seeks leave to cross-appeal against the order for costs made by Miles C.J. The learned Judge ordered

that the respondent pay the costs of the application but, since

the proceedings were interlocutory, leave to cross~appeal is required. Costs are, of course, discretionary, and it will only be in rare cases that leave to appeal from a decision to award costs will be granted. There is nothing extraordinary about the order for costs made by Miles C.J. On the contrary, it is usual for a party seeking an indulgence to pay the costs of the application, especially where, as here, the application throws up a difficult legal question. Since I propose to allow the appeal

with costs, the question is now academic. I would refuse leave

I propose that the appeal be allowed with costs, that the orders made by Miles C.J. on 16 June 1986 be set aside and that, in lieu thereof, the respondent's application for leave to

amend be refused with costs; and that leave to cross-appeal be

For the sake of completeness, it should be noted that I have not dealt with one matter mentioned in the reasons given by Miles C.J. The appellant indicated on the argument of the appeal that she would not oppose the amendment of the statement of claim by the addition of item (c) in the letter of the respondent's solicitors dated 4 July 1985. The view was taken, no doubt

correctly, that such an amendment fell within the existing cause

I certify that this and the preceding Sév07r (F) pages are a true copy of the Reasons for Judgment herein of

IN THE SUPREME COURT OF THE ) oo J No. S.C. 1439 of 1978

AND: KATHARINE MARY GOLSKI the Executrix of the Estate of the late ALEX GOLSKI

Defendant STATEMENT OF CLAIM Writ issued on the 14th day of September 1978. Ll. Alex Golski was a medical practitioner specialising in

orthopaedic medicine carrying on his practice at his surgery at 32 Coxen Street, Hughes in the Australian Capital Territory.

2. The said Alex Golski died on the 6th day of May 1978 and by his will he appointed Katharine Mary Golski to be the executri of his estate.

3. In the month of June 1976 the plaintiff attended the late Alex Golski for treatment for the meniscus to his left leg which at that time was causing the plaintiff pain with some recurrent swelling.

4. 'As a result of these symptoms and the complaints made to the late Alex Golski, the plaintiff was admitted in the month of June 1976 to the John James Memorial Hospital where the late

3. In breach of his duty to the plaintiff the defendant negligently and unskilfully treated the plaintiff for the said oe meniscectomy: Particulars: (a) During the course of the said operation damaging cutting __

or otherwise interfering with the long saphenous nerve.

(b) Commencing the operation by an incision which was higher

than normal and which thereby damaged the said nerve.

6. In consequence of the matters aforesaid the plaintiff

suffered great pain and sustained severe injuries and disabilities

and incurred loss and expenses and he has thereby suffered loss

(i) The plaintiff born on 4 September 1951 has sustained an area of numbness from the operation scar on his left knee extending to the inner border of the foot and corresponding in its distribution to the skin area supplied by the long saphenous nerve.

(ii) Extremely severe pain in the left leg together with the numbness referred to above and a complete inability to lift the leg following the operation. The plaintiff was unable to walk for four weeks after the operation and had a period of physiotherapy and hydrotherapy for a further period of three months. It is claimed that this unusual prolonged convalescence was caused by the negligence of the deceased and was considerably

All other medical accounts have been paid by Medibank.

AND the plaintiff claims special damages as particularised

above and general damages. DATED this day of Popa 1979. \

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

RYAN J.: I have had the advantage of reading in draft the

Reasons for Judgment of Kelly J. I agree with his analysis of the authorities in which a distinction is drawn hetween an amendment to a pleading which raises a new cause of action, or a "new set of ideas", and one which merely gives different or additional particulars of what is essentially the same case. The distinction is not always easy to draw, especially where, as here, what is contended ta be the new cause of

action has a number of facts common to that originally

pleaded, and attracts the same legal classification such as negligence. If the duty allegedly owed by the defendant to the plaintiff is pleaded in sufficiently wide terms, it will frequently be possible to state alternative particulars of negligence which are mutually inconsistent in the sense that the existence of one depends on the absence of the other. Indeed, there is high authority for the view that the duty of Care owed to the plaintiff should be pleaded as widely and Simply as possible and nat dissected into its component

parts. In Karatzidis v. Victorian Railways Commissioners

£1971] VR 360, a Full Court of the Supreme Court of Victoria

(Winneke CJ, Pape and Adam JJ) in a joint judgment, observed

"Tt should be said that the particulars of demand in this case alleged alternative causes of action. They were, however, all allegations of negligence, with the particulars of negligence being stated as if they were new and different causes of action. This method of pleading is, as this Court has said on previous occasions in recent years, apt to be confusing and misleading in the conduct of the trial and we think should be dropped. In reality, in cases of this kind there is only one cause of action, namely, a cause of action for negligence, it being alleged that there has been a failure to take reasonable care for the safety of the employee. In our opinion, in the anterests of conducting with propriety this class of litigation, cases of this kind should be pleaded simply and straight- forwardly as cases of negligence."

On that view, the dictum of Lord Diplock in Saidaway v.

Bethlehem Royal Hospital £19853 AC 871 at 893 would have

permitted the plaintiff to have alleged simply that his

injury had been due to Dr. Golski's negligent treatment. An

example of such a pleading can be found in Barnett v. Chelsea

and Kensington Hospital Management Committee £19693 1 QB 428

where it appears, at 434, that the plaintiff's case was

"The said death was due to the negligence of the defendants by their servants oar agents in not diagnosing or treating the deceased's condition."

However, in this case the relevant paragraphs of the

"3. In the month of June 1976 the plaintiff attended the late Alex Golski for treatment for

the meniscus to his left leg which at that time was causing the plaintiff pain with some recurrent swelling.

4. As a result of these symptoms and the complaints made to the late Alex Golski, the Plaintiff was admitted in the month of June 1976

ta the John James Memorial Hospital where the late Dr. Golski performed a left meniscectomy.

5. in breach of his duty to the plaintiff the defendant negligently and unskiifully treated the plaintiff for the said meniscectomy." It was to paragraph 5 that the plaintiff sought to append the additional particulars which are the subject of this appeal. It wall be seen that the pleader has himself chosen to dissect the duty of care owed by the late Dr. Golski to the plaintiff, and toca confine the cause of action to one for

negligent and unskilful performance of the meniscectomy.

Accordingly, to support properly paragraphs (d) and (e) of

the proposed additional particulars it would be necessary to amend paragraph 5 to include an allegation of negligent advice, or to substitute for the present allegation of negligent performance of the meniscectomy a more generalized allegation of a breach of the duty of care owed by Dr. Golski as an othopaedic surgeon to the plaintiff. Either amendment would, in my view, raise a different cause of action in the

sense of the complex of duty, breach and damage referred to

by Lord Wright in Lochgelly Tron and Coal Co. Ltd. v.

McMulian (19347 AC i at 25,where his Lordship observed:

"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, Ereach, and damage thereby suffered by the person to whom the duty was owing: on all this the liability depends ..."

In a case such as the present, the alleged breach of duty consisting in failure to warn of the risks inherent in an operation, or in recommending that the plaintiff undergo an inherently risky operation, has almost certainly been earlier than, and distinctly separate from, the performance of the operation itself. In my opinion, that distinction argues strongly that a breach of duty constituted by failure to warn or improper advice gives rise to a differant cause of action from that in which the breach is constituted by unskilful performance of the operation itself. At the very least, the introduction of failure to warn or improper advice brings

into existence a "new set of ideas" in the sense in which

that phrase was used by Holroyd Pearce L.J. in Dornan v. J.W.

Ellis & Co. Ltd. £1962] 1 OB 583 at 591 and 592. It is also conceivable that the damage flowing from a failure to warn or improper advice, may be different from that caused by a lack of care or skill in carrying out a surgical procedure. (For a discussion of the available measures of damages for negligent failure by a medical practitioner to diagnose and treat the

plaintiff's condition, see Hotson v. East Berkshire Health

I therefore agree with Kelly J. that the appeal should be allowed with costs and leave to amend the statement of claim by adding the further paragraphs (d) and (e) of particulars to paragraph 5 of the statement of claim should

TI certify that this and the preceding four (4) pages are a true copy of the Resons far Judgment herein of the Honourable Mr. Justice Ryan.