Hookey v Paterno [2009] VSCA 48

(a) advised her to undergo inappropriate treatment involving maxillofacial surgery to correct a malocclusion in circumstances where, it was said, he ought to have recommended dental treatment without surgical intervention;

(b) failed to warn her of high risks of complications of non-union of bone and nerve damage associated with the surgical component of the treatment plan; and

(c) carried out a surgical procedure on or about 8 July 1998 without due skill and care;

2 At trial, the allegation that the surgery was not performed with reasonable skill and care was abandoned. The judge held, however, that the appellant had:

(a) negligently advised an inappropriate treatment plan; and

(b) negligently failed to adequately warn the respondent of risks;

and that the respondent's injury, loss and damage was caused by those breaches and negligence. Damages were assessed at $1,057,833.00 (exclusive of interest).

(a) challenges the judge's findings concerning the appropriateness of the treatment plan (grounds of appeal 1 - 3 and 10);

(b) challenges her Honour's findings concerning the warnings that ought to have been given and that the failure to give such warnings was a cause of injury, loss and damage (grounds 4 - 9); and

(c) challenges the damages awarded by the judge and, in particular, -

1. the general damages awarded, which he contends are manifestly excessive; and
2. the damages awarded for future medical and like expenses, including attendant care and home help, which he contends fail to make a sufficient allowance for the vicissitudes of the improvement of the respondent's condition (grounds 13 and 14). [1]

4 The respondent plaintiff was born on 14 October 1949. Apart from the consequences of her malocclusion, she was in good health although she was at all relevant times a smoker who smoked 20 cigarettes a day. By 1996 she had developed a significant unusual Class 2 Division 2 malocclusion ('a 2-2 malocclusion'), which is a category of malocclusion arising from and defined by a molar relationship and an anterior tooth - incisor relationship. In effect, the lower jaw fails to grow forward to match the upper jaw with the result that the lower teeth (instead of aligning with the upper teeth) move towards the palate and the upper teeth are tipped backwards. It causes a deep bite, often referred to as a 'scissor bite', because of the overlap. The respondent had hallmark 2-2 features such as a reduced lower third anterior facial height and square facial form but her 2-2 malocclusion was unusual due to the presence of a large 'overjet' caused by entrapment of the lower lip and she had missing molars on the lower left jaw. When a 2-2 malocclusion is unusual and there are missing posterior teeth, the bite can get progressively worse and move superiorly upwards.

5 By late 1996, she was having difficulty eating and chewing, she had a sinus type pain, and she was dribbling a lot and had cracks or redness at the corners of her lips that would not seem to go away. In evidence in chief, she said that her problems were of little significance but, in cross-examination, she said that the pain was annoying her. She said her teeth 'seem not to be able to coincide together ... when I tried to bite it did not come together' and there was extra effort in chewing which seemed to cause pain because she had to try to pull her mouth to eat properly. She also said that there was an ache - persistent pain in the teeth - that was troublesome, and that it felt like some sort of dental problem, and that there was redness and a problem of bite.[2] She consulted a GP, who prescribed antibiotic lozenges and cream, but she found that they did not solve the redness problem.

6 In early 1997, she consulted a general practitioner dentist, Dr Romano (who was also a friend). Upon examination, Dr Romano noted that the respondent presented with facial pain and angular cheilitis (a persistent infection that is the result of cracks developing at the angle of the lips and the accumulation of saliva).[3] He suspected her teeth were the cause of the problems and he obtained x-rays and concluded that her overbite had worsened. He outlined to her possible treatment plans, such as a combined surgical/orthodontic solution, and referred her to an orthodontist, Dr Robert Schwartz.[4]

7 Following consultation with the respondent, and after further diagnostic studies, Dr Schwartz reported to Dr Romano that, in his view, the respondent's condition would best be treated by a combination of orthodontic treatment and surgery, and that he had referred the respondent to the appellant in relation to his proposed combined treatment plan. Among other things, Dr Schwartz wrote this:

Anteriorly, the overjet measures 7 mm, while the overjet is also exaggerated (6-7 mm or 90%) and traumatic on the palatal mucosa. Both dental midlines are non-coincident relative to the facial midline with the upper deviated to the right by 1-2mm and the lower positioned to the left by a similar amount.

Analysis of the lateral cephalogram confirms a moderate Class II skeletal base (ANB 7˚) and moderate brachyfacial, or horizontal, growthy pattern...

Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved.

The simplest plan would be to retract the upper incisors without lower arch treatment (i.e. maintaining the increased overbite and Class II occlusion). This would leave Daniela with a reduced overjet of 3-4 mm - far less than ideal - and would require extraction of upper premolars. However, the resultant poor facial aesthetics (increased naso-labial angle and retruded upper lip) precludes this treatment plan as a feasible alternative.

An ideal treatment plan would involve a combined orthodontic - orthognathic surgery approach to advance the mandible, expand the maxilla (via orthodontics alone or surgically-assisted) and increase the lower anterior facial height. Posterior implants in the third quadrant would facilitate orthodontic de-compensation and would provide Daniela with a full functional occlusion (incorporating crown & bridge-work) post-treatment.

Daniela is happy to explore a surgical treatment plan, including implants, and I have taken the liberty of referring her to Mr. Stephen Hookey. I will await his report prior to finalising a surgically-assisted treatment plan ...[5]

8 On 4 April 1997, the respondent together with Dr Romano attended the appellant in his rooms. The appellant examined the respondent and advocated a treatment plan of five stages, which he subsequently confirmed in a letter dated 4 April 1997 to Dr Schwartz (which he copied to Dr Romano). Among other things he wrote:

Thank you for asking me to see Daniela who I saw today with Guido Romano with regards to her potential jaw correction.

It appears quite complicated and involved although I felt Daniela had quite a good grasp as to what the likely treatment scenarios may well be.

...

... I have discussed with Daniela the ideal sequence of events and have asked her to consider this prior to discussing it further with yourself:

(1) Surgically assisted maxillary expansion.

(2) Fixed orthodontic therapy to level and align both arches.

(3) Mandibular advancement surgery to create a Class I skeletal and dental situation.

(4) Post-surgical orthodontics and retention phase therapy.

(5) Full prosthetic work-up with implant placement. I would suggest a conventional bridgework in the lower right quadrant and three fixtures in the left mandible for a fixed bridge.

I believe this treatment would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution.

I look forward to achieving a good result for Daniela and have asked her to get back to yourself and Guido with her final decision ...

9 As the judge recorded in her reasons,[6] there was a dispute as to what the appellant explained and did not explain to the respondent at the first consultation on 4 April 1997, and at subsequent consultations on 1 July 1997, 30 May 1998 and 8 July 1998.

10 The respondent's evidence was that, at the first consultation, the appellant explained and she understood that the proposed treatment plan involved expanding her upper jaw, which the appellant told her had collapsed in, an operation to cut her upper jaw, then expand her upper jaw by an apparatus in the palate that she would have to turn every day, and that there would then be an operation to cut and extend or advance her lower jaw and implant two teeth that were missing on the left hand side. She said that she asked how long this would take, and that the appellant said she would be ready for the Olympics. She added that:

I tried to ask some questions, but you know, I'm just told everything was easy, 'I've done a lot of operations'.

Did he tell you of complications that might arise?---No.

Now, did he tell you of - just let me go to the - did he tell you of the risk of infection which could cause the treatment to fail?---No he didn't.

Did he tell you of any risk of non-union of bone?---No, I'd never heard of any such thing.

Did he tell you of any risk of permanent loss of sensation?

---No, he told me I might have some swelling and some - you know like I'd be all swollen up and bruised but that would go down and I would be fine.

Did he tell you of any possible permanent or long standing complication?---No.

Had he warned you of any of those matters would you have had this surgery?---No.

Was the problem that you had a significant problem for you?

---No.

11 The respondent could not recall whether she had asked the appellant any other questions but she said that, after the consultation, she asked Dr Romano on the way out.

12 The appellant's evidence[7] was that, at the 4 April 1997 consultation, he began by reading the referral, then met the respondent (and Dr Romano) and, after pleasantries, said words to the effect: 'You have been referred by Dr Schwartz to talk about your particular problem and I would like to go through that with you'. He stated that he then went through the salient points of Dr Schwartz' letter with the respondent, examined her and discussed and explained the proposed treatment. He deposed that he told her that as a surgeon he had been asked to consult with her with regard to the potential difficulties that Dr Romano and Dr Schwartz were going to have with the treatment plan in the management[8] of her malocclusion. He recalled that he referred to her missing teeth, and to the desire of Dr Romano to replace those teeth and crown others, and the complexities of having a non-surgical orthodontics only treatment, and to options as they were presented to him. He said that he explained to the respondent that she had an unusual malocclusion, and a problem associated with the vertical height of her face, and that her lower jaw sat back behind her upper teeth and that the problem with her malocclusion was that she had lost vertical height - her lower teeth were impacting on her palate, the space available for replacing missing teeth vertically was not sufficient to make a crown and bridge reconstruction over implants, and that in order to address the problem a surgical option was being sought. He recalled how he had looked for signs of recognition - a nodding of head and eye contact - and he saw that from time to time the respondent looked to Dr Romano for confirmation.

13 The appellant also said that he explained the three treatment options of do nothing, orthodontics only and combined orthodontics and orthognathic surgery, and that he explained the proposed orthognathic surgery and discussed the risks of complication. In particular, he recalled that he warned the respondent that there was a risk of major 'catastrophic' events associated with general anaesthesia (major cardiovascular events, major allergic reactions, significant bleeding, airway obstruction). He stated too that he warned the respondent of local structural issues relating to the nerves and vessels running through the bones and structures - in particular the mandibular branch of the trigeminal nerve, which runs through the jaw bone and supplies the lip, chin and teeth. He deposed that he said to her words to the effect:

'The main problem we have is the trigeminal nerve' (which he demonstrated) ... in 95 per cent of cases this nerve is injured with the operation ... it's a feeling nerve to your lip and chin and you must expect to feel numb in your teeth, in your lip and chin after the operation ... this can be frustrating as a sensation. It's not dissimilar to the feeling you have in your foot when you cross your legs and you have pins and needles or tingling or numb feeling in your foot after that time ... recovery generally occurs over a 12 month period, and that the recovery phase is not dissimilar to the feeling in your foot as the nerve sensation recovers, but it's over an extended period. One in ten patients will still be numb at the end of 12 months however, and beyond that time we can't expect recovery of significance. ... Most people cope with the numbness because it's partial often and they compensate ... most people will live with some numbness. ... you will expect unpredictable - it would be unpredictable. If numbness is still there in 12 months time it's very difficult to expect full recovery'.

14 The appellant said that he also told the respondent that the titanium screws and plates can become infected and may need to be removed; and that from time to time a tooth can be damaged and may need follow up root canal treatment or extraction, and that, if Dr Schwartz were unhappy with the respondent's bite after the surgery, the appellant might need to go back in and perform surgery for a malposition or mal-union of the bone - one in 40 patients may need to have repeat surgery - and that there may be a relapse, where the jaw moves back in the direction that it has come from.

15 When tested in cross-examination, it appeared that the appellant's direct recollection of what he had said to the respondent on 4 April 1997 was limited to the words 'catastrophic', 'jaw expansion' and 'go away and think about it', and he accepted that he did not use the words 'trigeminal nerve', or the phrase '95% of cases'. But it was clear that he had signed off on this treatment card (such signing- off being a single character akin to '7' or 'the sign of Zorro') which he said signified that he had completed his obligations, including advice of risks and complications associated with the treatment.

16 It was common ground that the appellant did not warn of the risk of non-union (which he said was a very rare complication); or of the risk of unremitting pain (which he said was a very rare complication), and that, at the end of the consultation on 4 April 1997, he said that he would send quotations for his parts of the treatment, and that the respondent should 'think about it' and discuss any queries with Drs Romano and Schwartz.

17 On 8, 15 and 30 May 1997, the respondent attended Dr Shwartz, who put in place the first phase of the treatment plan: separators, banding and a maxillary expansion device.

18 On 11 July 1997, the respondent consulted the appellant again and he once again discussed with her the treatment to be performed under the treatment plan. The respondent said nothing of that consultation in her evidence in chief but agreed in cross-examination that it had occurred. There was a dispute between the parties as to precisely what was discussed during that consultation. Broadly, each party claimed that the same matters each had said were discussed at the consultation on 4 April 1997 were again discussed. The appellant did not, however, sign off his treatment card to the effect that warnings were given on 11 July 1997.

19 On 16 July 1997, the appellant performed surgery on the respondent's upper jaw. The respondent said she had some pain in the few weeks afterwards because the upper jaw was being extended so much. She then underwent an orthodontic programme of expansion of the teeth of her upper jaw. She adjusted the expansion device each day, which caused her pain, and she went to her local doctor at least once for pain relief. Her post-operative recovery was otherwise uneventful. The appellant's evidence was that he saw the respondent on a number of occasions post-operatively.

20 On 30 May 1998 and 8 July 1998, the respondent consulted the appellant preparatory to the second operation, which was to lengthen the lower jaw. There was a dispute at trial as to precisely what was discussed during the course of those consultations. The respondent gave evidence in chief about that as follows:

In May of 98 or July 1998 when Mr Hookey's notes record that you saw him did he give you any advice on complications or risks of the surgery that he was proposing?---No.

Did you understand your jaw was to be cut?---Yes.

Did you understand that plates were to be inserted into it?

---Yes.

Was there any advice to you about the risks of non union of your jaw?---No.

Infection?---No.

Recurrent or persistent pain?---No.

Or loss of sensation?---No.

21 In cross-examination, however, the respondent conceded that on 30 May 1998, the appellant had discussed the next phase of the treatment which her, which involved a lengthening of the lower jaw. She also agreed that he examined her and spent some time (she could not recall how long) discussing the surgery to be performed on her lower jaw, and that he explained what he was going to do. She could not recall if he saw her again before the date of the surgery.

22 The appellant's evidence was that he examined the respondent on 30 May 1998 and found satisfactory de-compensation (positioning of the teeth with braces) as a result of the surgery and orthodontic treatment of the upper jaw. He said that he explained and demonstrated the lower jaw surgery that he was to perform. He ordered radiographs and arranged further review prior to surgery. He again explained that the operation involved separating the vertical from the horizontal part of the jaw bone, sliding the jaw forward with bone touching bone and applying screws and plates to the side of the bone. He said that he explained too that, in the area where there were no teeth, the split can be difficult and the forces more demanding on the jaw, and it was his view that two plates may be needed. He said that he told the respondent that, if the fracture (osteotomy) were not straightforward, he may need to pierce the skin and place extra fixation.

23 The appellant deposed that he was confident that he had discussed the risks or complications of the proposed surgery at the consultation on 30 May 1998 or 8 July 1998 or both, but that he had no direct recollection of giving warnings on 30 May 1998 or on 8 July 1998. He said, however, that the second consultation, which was in his Collins Street rooms, was the more significant. His recollection was that on that occasion he reiterated that no operation is without risk or complications and he reminded the respondent that when she woke from the surgery she would be bruised, swollen and numb, and that there were things that could linger beyond a certain time; there was a risk of local problems that may require further surgery; and the risk of numbness in particular. He said that by demonstration on a skull and on his own face he explained the operation and the area where the titanium screws and plates would be placed, and pointed to areas such as the nerve traversing the bone cuts and the adjacent teeth. He said he explained and demonstrated that the nerve is in the segment with the teeth and will move forward with the jaw, and he referred to complications related to the nerve which supplies feeling to the lip and chin. He said that he told the respondent that nerve damage was expected in 95 per cent of patients[9] and that she would wake up bruised, swollen and numb. He said that he told her that the numbness was a complication of the manipulation or the movement of the nerve, and was likely to persist for some months, and there was a one in ten chance of having lingering numbness beyond 12 months. He added that anaesthetic and operative bleeding issues were also discussed. He said that he told the respondent that the surgery was to endeavour to achieve the bite that Dr Schwartz had prepared for, and that if there were a relapse or problems of healing there may be a need to reoperate. He said that the respondent did not ask any questions on 30 May 1998 or 8 July 1998 that he could recall.

24 On 16 July 1998, the appellant performed mandibular advancement surgery (sagittal split osteotomy) on the respondent. There was a dispute at trial as to the details of the respondent's recovery from that surgery. The respondent stated that she had been in burning, unremitting pain ever since the surgery. She spoke of the onset of the burning pain in the right lower jaw immediately after the operation and said that it never resolved. She deposed that the anaesthetist came to see her a few times after the operation because there was no way of controlling the pain, especially on the right side, which was 'unbelievable'. It was 'burning pain, terrible burning pain which has remained with me which goes redder here on my right side when it - as it gets worse.' Asked if the pain stayed the same, got better or got worse, she said '[I]t never got better'. She deposed that, between July and December 1998, she continued to have the burning pain all the time. She said the burning pain continued in January 1999. Her case was that she had suffered burning, unremitting pain from the time of the operation, and that the pain continued and was the cause of need for opiates (which in turn caused many of her ongoing difficulties).

25 The appellant's evidence was that after the initial post-operative phase, the respondent was progressing reasonably well but with ongoing symptoms of swelling and numbness, and only later complained of pain. In cross-examination, however, the appellant accepted that the respondent was taking Mersyndol Forte for pain and had been admitted to Freemason's Hospital for pain prior to consultation with him in August 1998, and he conceded that: 'I think that the magnitude of pain and the significance to her was something I did not pick up on'.

26 On 17 December 1998, the appellant removed the titanium plates. At that point he was of the opinion that the respondent's continuing pain was probably caused by infection. By mid January 1999, however, he started to suspect a problem concerning bony union and thus referred the respondent to a physician, Dr Jacobivitz, who excluded the possibility of an underlying disease, and to the hyperbaric unit at the Alfred Hospital, where the respondent undertook a course of hyperbaric treatment to encourage bony healing, albeit to no avail.

27 On 3 March 1999, the appellant removed an upper right tooth to relieve pressure on the respondent's right ramus and, on 30 March 1999, he performed a debridement and curettage of the osteotomy sight and inserted new titanium plates. He noted on that occasion that the inferior alveolar nerves were intact.

28 The respondent, however, continued to experience pain and the appellant suggested a referral to Dr Jane Tinca at the Barbara Walker Centre for Pain Management for evaluation. The respondent did not attend that clinic.

29 In October 1999, the appellant referred the respondent to a plastic surgeon, Mr Ian Carlisle, for further management. Mr Carlisle diagnosed mal-union in the body of the mandible region and over eruption of the posterior maxillary segments into the gingival posteriorly. He performed a number of surgical procedures to achieve bony union, and did so, but the results were less than satisfactory. The jaw as he reset it was misaligned and the respondent did not experience any relief from her pain.

30 In February 2000, Mr Carlisle referred Mrs Paterno to a psychiatrist, Dr Lovirpierre, and he has since treated her with a variety of medication including narcotics. The respondent developed gastrointestinal complications to the narcotic therapy.

31 The appellant gave evidence that he considered the treatment plan was appropriate and as to why it was. Evidence was also given by a number of treating practitioners and other expert witnesses as to the suitability of the treatment plan. In reasoning to the conclusion that the treatment plan was not appropriate, the judge referred to some of that evidence as follows:

16 Mr Hookey stands by his treatment plan for Mrs Paterno as being the optimal treatment for her malocclusion.

17 When asked during his evidence about any other salient features of Mrs Paterno's presentation, in addition to facial pain and angular cheilitis, Mr Hookey said: 'The desire of the referring practitioners to restore her dentition and their desire to create a more normal morphology of her jaws'. The plaintiff's counsel point to there being no mention of a desire by the plaintiff for morphological normalisation. They argue that there was a significant gap between the plaintiff's presenting symptoms, and justification for the treatment plan including surgery proposed. This disparity between the technical correction of the malocclusion, and the presenting complaints is also reflected in the letter Mr Hookey wrote recommending the treatment plan which 'would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution'.

18 In his evidence in chief Mr Hookey said that the relevance of her being a smoker was related to the risks of anaesthetic. He also said that it was relevant as it was his policy not to perform implants on smokers. He agreed in cross-examination that her smoking should have been regarded as relevant to the risk of non-union of bone, but not to an extent that made the surgery unsuitable for her.

19 Supporting the appropriateness of the treatment plan is the evidence of Dr Schwartz, whose referral letter indicated his support for a combined orthognathic/orthodontic treatment approach as the 'ideal' one. I note, however, that in his referral letter he stated 'Orthodontic treatment options are dependent on the degree of skeletal and dental correction that is to be achieved'. I take that to indicate that there were other options, but it does not reflect whether the availability of other options short of the plans that were proposed as the 'ideal treatment plan', but other than one he called 'the simplest' plan, were canvassed with the plaintiff. Nevertheless, Dr Schwartz's evidence still supported the appropriateness of a combined surgical and orthodontic approach, as he had recommended, and for which he provided the orthodontic treatment throughout.

20 Dr Bruce Taylor, an experienced orthodontist, was retained by the defendant's solicitors to provide an opinion on the appropriateness of the treatment plan, and examined the plaintiff late last year. He said he had 'no doubt' that the treatment plan was appropriate and 'whilst I acknowledge the view other treatment options may have been explored, the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice'. He did not see the plaintiff's age as a contra-indication for this approach and said in his experience of over 20 years in orthodontics, many patients had been treated successfully without complication of greater age than this patient. In cross-examination he agreed that in any area of medicine the recovery rates in older people may not be as great as in younger people, and that smoking and higher age increased the level of risk in orthognathic surgery.

21 Dr Taylor said discussion of options by a dentist may well have included talk about partial dentures and palliative care for the angular cheilitis. He said: 'The objective of partial dentures would be to add to the biting ability and to open the jaw or widen the opening, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice one would suggest it was really camouflaging the problem, rather than treating the root of the problem, which essentially was the foreshortened lower jaw'. He said treatment with a partial denture is diminishing these days, and bringing the jaw forward would improve the efficacy of a partial denture, even if implants were not to be done to replace the missing teeth.

22 He agreed that a displacement appliance could be used as a diagnostic tool to see whether shifting the lower jaw would improve pain levels, 'but is not a definitive treatment, nor will it address the problems associated with aesthetics'. He agreed that if it did not improve the pain, that would reduce the reason for performing the surgery other than for aesthetics. He said it was most unusual these days to use such a splint and was not something that was routinely done, and by 'these days' he included 1997. He was under the impression that facial aesthetics were a motivating factor in the plaintiff seeking treatment.

23 Dr Taylor acknowledged that there were other possibilities that could be tried, but said: 'It is not, if you like, the ideal in terms of a technical point of view in producing the best possible bite'. The benefit from what he called the definitive way to correct her presenting problem, if it had gone as expected, would be that she would have had a far better occlusion, a better ability to eat, better aesthetics, whether she wished for them or not, it would be highly likely to have cleared up her angular cheilitis 'and there would be a good chance that it would address the problem of her pain'.

24 The defendant also relied on the expert opinion of oral and maxillofacial surgeon, Associate Professor Robert Jones of the University of Adelaide, whose reports were tendered without his being required to attend for cross-examination. He did not examine the plaintiff for his original opinion on the appropriateness of the treatment plan, but did examine her in Melbourne early this year for a further opinion.

25 Associate Professor Jones' opinion was that the treatment plan was appropriate for the plaintiff with her presenting problems, which he originally understood to include concern about her facial appearance. He states that the mechanical treatment of skeletal Class II occlusions in this way helps support temporomandibular joints, although it could not be guaranteed to cure the facial pain, and it would help treat the angular cheilitis perhaps in conjunction with antifungal medications. He did not believe her age was a contra-indication to jaw corrective surgery, but agreed that the incidence of problems with surgery is increased in patients older than 40 over younger patients. He said that does not mean patients over the age of 40 should not have this type of surgery provided these problems are discussed beforehand. His own verbal information to patients includes that the risk of permanent numbness to the lip is higher in older patients. His mention of the chances of non-union is that it is extremely low, and his standard warning does not relate that risk to age.

26 His reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks.

27 Mr Jones maintained his opinion that the treatment plan was the best chance of curing her problems, despite its unfortunate outcome, after he examined her in January 2007.

28 The plaintiff relied upon the expert opinion of Professor David, an oral and maxillo-facial surgeon, whose approach as head of the Australian Craniofacial Unit in Adelaide would, he said, be to treat a patient such as Mrs Paterno by having her seen by various members of a team of specialists, including an orthodontist, but also speech pathologist and social worker if surgery to change facial structure were to be contemplated. He had her assessed by such a team in order to give the medico-legal opinion sought from him by the plaintiff's solicitors.

29 Professor David's view was that in a woman of Mrs Paterno's age, there was a higher than normal risk of non-union of bone and associated complications such as nerve damage in performing a sagittal split osteotomy and, for that reason, it is unlikely that he and his team would offer a woman of her age with her condition this solution for her facial discomfort. He said that the presenting complaint of pain could be treated with the trial of a splint to raise the space between jaws vertically, and that would ascertain whether the complaint of pain was due to the temporomandibular joint, a proposition of which he was not convinced.

30 As part of Professor David's team, the plaintiff was examined by Dr Michael Nugent, an experienced orthodontist. He said that it would be unusual for him to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late 40s because at that age the risk of complications following surgery to the mandible is high. In such cases he would recommend the most conservative program to restore the occlusal function, which would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).

31 Mr Ian Carlisle, an experienced plastic surgeon who also has training in dentistry, and specialises in oral and facial surgery, gave evidence both as to his treatment of the plaintiff on referral by Mr Hookey, and also as to issues relevant to the appropriateness of the treatment. He said that in his experience, this sort of orthognathic surgery would only be performed for pain or for cosmetic reasons. If it were for pain, you would want to try to establish whether the surgery was likely to relieve the pain, and in those circumstances it would not be uncommon to have a bite raising appliance made and worn for some months. If it did not improve the pain 'a lot', it would be his view that one would probably not proceed with the surgery.

32 A further factual issue going to the appropriateness of the treatment plan emerged during the hearing. In his oral evidence, Mr Hookey said that both then and now it has been his firm policy not to perform tooth implants on patients who are smokers. He said the reason for this is that there is too high a failure rate - of between 15% to 20% - in smokers.[10]

32 The judge concluded that the treatment plan was not suited to the respondent's needs and that it was negligent of the appellant to recommend it. Her Honour found that:

41 I am satisfied from the evidence outlined that the treatment plan was technically the optimal way to create a normal occlusion in the plaintiff's mouth. However, I am also satisfied that the decision to recommend it did not adequately take into account its suitability for her in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances....

....

45 ...Despite Dr Taylor's and Mr Hookey's evidence, I am satisfied by the evidence of both Professor David and Mr Carlisle that the trial of a splint device for some months to see whether creating more vertical height would relieve the pain was a more appropriate approach before recommending surgery of this extent if such surgery were aimed at alleviating the presenting pain which at most was of a very moderate level.

...

48 The seriousness of the presenting condition and its likely future, including any potential deterioration in the patient's health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.

...

50 In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orothodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks... [11]

Recognised complications and appropriate warnings

33 Evidence was also given by a number of treating practitioners and other expert witnesses as to possible complications of the treatment plan and the warnings which, in their view, ought to have been given to the respondent. Her Honour referred to some of that evidence as follows:

63 The eventuality of non-union of bone appears on the evidence to be a rare consequence of this operation. Mr Hookey stated that he had never known it to occur before. Both Mr Jones and Mr Carlisle acknowledged it to be a known possible consequence of which they would give patients warning, although they confirmed that it was very rare. Although Mr Jones' own warnings to patients do not specifically detail any increased risk of non-union as a result of age, he accepted that age increases the risks of this surgery. Mr Carlisle said there was no question that age increases the technical difficulties in performing the operation. Dr Turner conceded that in principle age increases the risk of the non-healing of bones. While Mr Hookey still knows of no other instances from the plaintiff's, it is a risk of which he now says he ought to warn.

66 So far as the risk of nerve damage was concerned, ultimately the defendant conceded that the description 'high risk' of nerve damage applied in Mrs Paterno's case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage. [Counsel] argued, however, that such nerve damage could be expected to cause permanent numbness or diminished sensation, whereas the consequence of severe hyperaesthesia is most unusual, and did not require mention or warning to the patient. To this, the plaintiff's argument is that it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage. ...[12]

34 The judge had earlier concluded that the warnings which were given were inadequate. Her Honour held that:

65 The statement of claim ... only alleges a failure to warn of 'high risks' attributing that description to the risk of non-union of bone. On the evidence in this case I am unable to find that that was a high risk due to its extremely rare incidence, even after allowing that it was greater than for an average patient due to the plaintiff's age and being a smoker...

66 So far as the risk of nerve damage was concerned, ultimately the defendant conceded that the description 'high risk' of nerve damage applied in Mrs Paterno's case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage.

35 In the judge's opinion it mattered not that the nerve damage of which there was a significant risk of occurrence could be expected to cause only some permanent numbness or diminished sensation and not the sort of continuous burning pain of which the respondent complained. Her Honour said that she accepted the respondent's argument that:

66 ... it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage... I am therefore satisfied that in order to fulfil his duty of care, it was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk of her being left with permanent nerve damage as a result of the second operation.

36 Finally, evidence was given by several of the treating practitioners and other expert witnesses as to the likely nature and cause of the plaintiff's complaints, to some of which the judge referred as follows:

54 ... It is clear that there was in fact non-union of bone on both the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a 'bucket handle' effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.

55 In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.

56 Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was 'settling' by which he says he was not referring specifically to pain but the overall operation result. By early November he had decided to schedule a reopening of the right split site, as a result of [the] continuing complaints of pain.

57 Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and the numbness respectively.

58 Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hookey or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.

59 Mr Ian Carlisle believed that there had been damage to the inferior alveolar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the non-union was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said 'any nerve that 's been damaged can go on and perform and behave in a way that can cause unremitting pain'. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.

60 A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff's pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage...In my view Mr Carlisle was in a better position to assess the plaintiff's condition over a considerable period of time, and in this case I would accept his view [of] the likelihood of nerve damage over that of Dr White, despite his area of specialty, especially as it is supported by the opinions of both parties' 'expert' maxillo-facial surgeons.[13]

37 The judge concluded that the respondent's pain was caused by nerve damage:

61 I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno's jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injection such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve cause in the original surgery.

Was the treatment plan shown to be negligent?

38 The appellant contends that it was not open to the judge on the evidence before her to find that the recommendation of the treatment plan was negligent in the circumstances which obtained. Counsel submitted that, on the evidence, there was a strong body of medical opinion that the plan was well suited to the respondent's needs and relied in particular on the report of Associate Professor Jones, on which he was not cross-examined and in which he roundly endorsed the suitability of the plan; the report and oral evidence of Dr Taylor, who also endorsed the suitability of the plan; the evidence of Dr Schwartz, who considered that the treatment plan was wholly appropriate, that an orthodontics only plan would not have been feasible, and that he would recommend the plan today for persons of the respondent's age and presenting condition; and on the fact that Dr Romano was the first to contemplate a combined orthodontic and surgery plan and did not disagree with the plan proposed by Dr Schwartz and the appellant. Contrastingly, counsel submitted, the contrary opinions of Professor David and Dr Nugent were premised on incomplete information as to the respondent's presenting condition and the problems which she sought to have rectified.

39 In our view, there is force in those submissions. Clearly there was a strong body of medical opinion in support of the view that the plan was appropriate to the respondent's needs. Beginning with Dr Schwartz, we refer again to his letter of advice to Dr Romano of 4 March 1997 in which he advocated the combined orthodontic - orthognathic surgery approach to advance the mandible, expand the maxilla (via orthodontics alone or surgically-assisted) and increase the lower anterior facial height. The respondent's case involved the contention that the appellant should not have accepted the view of Dr Schwartz that it was necessarily appropriate to alter the respondent's facial morphology by jaw lengthening surgery. Dr Schwartz was asked about that in evidence in chief and said that he still held the opinion which he had expressed in the letter, and that if he were today faced with a patient such as the respondent with the same presentation he would recommend the same course of action:

To achieve the - a Class 1 Occlusion, which is what we try to achieve in dentistry and orthodontics, and to provide the best functional and aesthetic result for the patient.

40 Asked then by the judge whether he had told the respondent that she needed surgery, he answered that he had, because he considered that the combined surgical orthodontic treatment plan was necessary to give the respondent the best functional and aesthetic outcome.

41 Dr Schwartz was not challenged on that evidence. It was not put to him that the decision to recommend the plan did not adequately take into account its suitability for the appellant in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances. Nor was it put to him that it was necessary or desirable before recommending surgery to conduct a trial of a splint device for some months to see whether creating more vertical height would relieve pain. Nor was he offered the opportunity to respond to the notion that his recommendation of a:

'complex and protracted course of treatment, of combined surgery and orthodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising' ..., fell below 'the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks'. There was not the slightest mention made to him of there being any 'more conservative [and, presumably, efficacious] measures to improve [the respondent's] chewing ability'. [14]

42 In effect his opinions were not put in issue. He was given no opportunity to comment upon the criticism of the course which he had proposed.[15]

43 We go next to Associate Professor Jones' report. Professor Jones was an associate professor in oral and maxillofacial surgery in the University of Adelaide and, after outlining the treatment plan recommended by Dr Schwartz, he stated this:

Treatment plan

I agree with this treatment plan.

The mechanical treatment of skeletal Class II malocclusions in this way helps support the temporomandibular joints, and therefore facial pain, although this could not be guaranteed.

Surgically assisted expansion of the maxilla is the treatment of choice for the management of transverse deficiency of the maxilla in adult patients, as it is the most stable way to treat this particular problem.

The alternative is to segmentalise the maxilla at the time of orthognathic surgery, however the stability of the segmentalised maxilla is thought to be inferior to that of the surgically assisted expansion.

It is normal practice for orthodontic alignment and decompensation of the dentition, to be carried out prior to orthognathic surgery to correct the skeletal problem, namely the Class II occlusion.

(b) Contra-indications

In relation to age, I believe Ms Paterno's age was not a contra-indication to jaw corrective surgery. I have personally carried out jaw corrective surgery on a number of patients well over 40 years of age.

While I agree the incidence of the problems associated with surgery is increased over younger patients, there is no contra-indication to carrying out jaw corrective surgery in patients of this age group. There is an increase in the incidence of permanent nerve damage, and there is an increase in the incidence of non-union and malunion in patients of this age, but this does not mean patients over the age of 40 should not have this type of surgery, provided these problems are discussed beforehand.

44 Professor Jones was not cross-examined at all although, as has been seen, the judge remarked in her reasons that 'his reports do not reflect his knowing that Mrs Paterno was a smoker, and do not mention whether that was a contra-indication for the surgery nor whether it increased the relevant risks'. If we may say so with respect, however, the fact that Professor Jones did not mention smoking did not detract from the force of his opinion. If anything were to be made of the effects of smoking, it was incumbent on the respondent to make the running. So, unless the respondent chose to cross-examine Professor Jones and put to him that his report failed to take into account that the respondent was a smoker, and that if he had taken that into account his conclusion could have been different, it was to be assumed that the respondent accepted that he had taken it into account or if not that it would have made no difference. Furthermore, as the later evidence of Professor David revealed, although smoking increased the risk of mal-union and non-union, mal-union was very rare, even in the case of smokers, and non-union was even rarer.

45 Counsel for the respondent submitted that it was not until late in the trial that the respondent was alerted to the significance of smoking, as a consequence of something said by the appellant in his evidence about having a policy of not carrying out implants on smokers. But that argument is not persuasive. It is clear that the respondent knew from very early in the trial, if not before, of the supposed significance of smoking. Mr Newton gave evidence about the subject as part of the respondent's case before the appellant even got into the witness box; and Professor David gave evidence about the subject before the appellant's case was closed; thus leaving plenty of time for the respondent's counsel to apply to recall Associate Professor Jones if in fact they had been taken by surprise.

46 We turn to Dr Taylor's evidence. Dr Taylor was a specialist orthodontist and, in his report dated 16 January 2007 he stated that:

2. Appropriateness of treatment plan

Based on the information provided in your background papers there is no doubt that the treatment plan presented to the patient by Drs Romano, Schwarz [sic] and Hookey was appropriate. Whilst I acknowledge the view other treatment options may have been explored the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice.

In basic terms a contributing factor to facial pain can be over closure of the mandible. A contributing factor to angular cheilitis can be overclosure. The overclosure in turn is commonly caused by a foreshortened mandible which is apparent from the cephalometric tracings provided with the history. Moreover the retruded mandible would impact significantly on the facial appearance of the malocclusion.

The definitive way to correct the overclosure/foreshortened mandible is the surgical advancement of the lower jaw. That procedure in turn necessitates the need to move the teeth hence the orthodontic treatment and that procedure also often requires correction in the transverse plane hence the initial surgically assisted maxillary expansion procedure.

The age of the patient should not be seen as a contra-indication. A more important aspect is her general medical condition rather than the age per se. My experience of over twenty years in dealing with similar cases confirms age in itself is not a deterrent and that many patients have been treated successfully without complication of greater age than this patient.

47 In cross-examination, he agreed that implants were more likely to fail in a smoker than a non-smoker and that smoking and higher age increased the level of risk. It was not suggested to him, however, that the respondent's age or the fact that she was a smoker rendered the treatment plan inappropriate for her.

48 The judge asked him what other treatment options he had in mind when he referred to them in his report and he answered as follows:

Older type of treatments. It may well have included a range of partial dentures, the objective of which would be to add to the biting ability, to open the jaw or widen the opening of the jaw, which in turn would help the angular cheilitis and may have improved the pain. It would have done nothing or little in terms of the aesthetics or the appearance, and in contemporary dental practice, one would suggest it was really camouflaging the problem rather than treating the root of the problem, which essentially was the foreshortened lower jaw.

HER HONOUR: And is that how you'd explain it to your patient? - - - That is how I'd explain it to my patient, yes.

49 Asked then as to the propriety of a trial with an appliance of the kind referred to by Mr Carlisle to lift the lower jaw before surgery, he answered that:

An anterior mandibular displacement appliance, which is really what he's referring to, is a diagnostic tool to see whether shifting the lower jaw will improve or alter the pain levels, and that 's certainly a recognised treatment or diagnostic aid, but is not a definitive treatment, nor will it address the problems associated with aesthetics.

50 He agreed that, if a trial with such a device did not reduce pain, there would be reduced reason for performing the surgery, apart from aesthetics, but he added that it would be most unusual these days to use such a splint - '[i]t is not something that is routinely done' - and he said that: 'it would be unusual for an orthodontist or an oral surgeon to have someone [wear] a diagnostic splint'.

51 It was put to him that there was little if any point in undergoing the surgery if it were not possible to complete the plan with implants, and he disagreed with that proposition. He said that:

There are two aspects to the surgery. One is to bring the jaw forward the purpose of which would improve the relationship of the anterior teeth, the teeth that she did have, would vastly improve the aesthetics, the appearance. If one then decided to do implants then that would be ideal. However there are other ways of filling in the spaces at the back such as a partial denture, but the efficiency of the partial denture would be far greater had the mandible been brought forward.

52 The judge later took the matter up with him herself, and this was the result:

HER HONOUR: Dr Taylor, you said earlier when the proposition was put that the end result might not be implants because the patient's a smoker and the surgeon states he won't do - categorically won't do implants on smokers because of the known increased chance of failure, you said that there is - you put two aspects to the surgery that could still vastly improve the patient's condition, one being to bring the jaw forward, which would vastly improve the bite on existing teeth? - - - Correct.

Even if ultimate implants aren't going to occur? - - - Correct.

Now, if - well I understand from the evidence that at that stage this was - this plan was drawn up Mrs Paterno had only one existing lower back molar that was on the right side, there being none still on the left and the other on the right already missing, how would you foresee that proceeding if the surgery is done and you're not going to proceed to implants at the end. How improved could her bite be - her chewing ability be with just that one right molar? - - - Her chewing ability simply on the anterior teeth would be vastly improved...

Sorry, the chewing ability on the back teeth, if there's only one lower back molar how does it improve? - - - yes, the chewing ability on the anterior teeth, the teeth that she has would be vastly improved. If I can describe, she would have been biting like that - top teeth, bottom teeth. So the lower teeth are actually biting on the roof of her mouth. Forget what's not at the back.

Yes? - - - The jaw is brought forward. She now has contact between the upper and lower front teeth. Regardless of what's gone on with that. Ideally, to fill in the back teeth as well would give her great benefit further. Filling those gaps at the back, ideally, these days, would be done with implants. If there's a contra-indication for implants, such as a heavy smoker, then a partial plate would still give her a better outcome by having had their jaw brought forward.

53 The judge asked him to 'hypothetically now exclude aesthetics as a motivator at all', and to say 'does that leave the balance of going ahead with this treatment plan the end result of which would not be implants while she continued to be a smoker?' He answered that it would:

If one is striving to get an ideal occlusion regardless of aesthetics but in terms of eating efficiency, and hopefully also reducing pain, then fundamentally the jaws need to relate correctly. And the way that that can only be achieved is to have orthognathic surgery, in this case to bring the jaw forward.

54 Later the judge returned to the same subject and asked him to expand on the:

two aspects to the surgery that could still vastly improve the patient's condition [in the absence of implants], one being to bring the jaw forward, which would vastly improve the bite on existing teeth - - - Correct.

HER HONOUR: Even if ultimate implants aren't going to occur? - - - Correct.

55 She then put it to Dr Taylor that the respondent had had only one back molar on the right side and none on the left and she asked him to explain how the surgery could improve the respondent's bite if she were not to have implants. He answered that '[h]er chewing ability on the anterior teeth would be vastly improved':

HER HONOUR: Sorry, the chewing ability on the back teeth, if there's only one lower back molar how does it improve? - - - Yes, the chewing ability on the anterior teeth, the teeth that she has would be vastly improved. If I can describe, she would have been biting like that - top teeth, bottom teeth. So the lower teeth are actually biting on the roof of her mouth. Forget what's not at the back.

HER HONOUR: Yes? - - - The jaw is brought forward. She now has contact between the upper and lower front teeth. Regardless of what's gone on with that. Ideally, to fill in the back teeth as well would give her great benefit further. Filling in those gaps at the back, ideally, these days, would be done with implants. If there's a contra-indication for implants, such as a heavy smoker, then a partial plate would still give her a better outcome by having had their jaw brought forward.

56 In re-examination, he reiterated that, given the respondent's presenting symptoms:

the contemporary and modern approach in dentistry is to undertake combined, orthodontic orthognathic surgery. To try alternatives such as partial dentures and what we call opening the bite with various prostheses, is really 1950's dentistry in the latter part of the 21st Century [sic].

If the treatment plan had proceeded as we would have expected it to proceed and as it normally proceeds, that the patient would have a far better occlusion, a better ability to eat, better aesthetics, whether she wished to have them or not. It would be highly likely to clear up her angular cheilitis, and there would be a good chance that it would address the problem of her pain.

57 As the judge remarked in her reasons for judgment, there was of course also a body of opinion that the treatment plan was not suited to the respondent, and to the effect that it would have been advisable to proceed by way of a more conservative treatment regime. But with all respect to the judge, it appears to us that that body of opinion was substantially qualified and certainly not as strong as the favourable opinions already referred to.

58 We start with the report of Dr Michael Nugent, a specialist orthodontist. The substance of his report was limited to this:

It is difficult to assess Mrs Paterno's occlusion and general facial appearance as the original records are not available. My experience dealing with growth and development problems has been gained working as a consultant orthodontist to the Australian Craniofacial Unit which was established in 1975. It would be very unusual for myself to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her late forties. I feel at that age the risk of complications following surgery to the mandible is high. My recommendation in such cases would be to institute a program to restore the occlusion in the most conservative manner possible. In all such cases the restoration of correct occlusal function would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).

59 Cross-examined on his report, he agreed that he would have had to see the X-rays in order better to assess the respondent's case, but he said that:

Intuitively with - with that sort of patient I think you know, I would - I would aim to do the most conservative dental approach and there are - there are other ways of treating her.

60 Asked whether he agreed with Dr Taylor's opinion that the treatment plan was in keeping with contemporary dental practice he answered:

Yes. I'd agree providing the patient was suitable from an age point of view particularly.

61 He was pressed on that answer and asked whether, given the limited information which had been available to him, he was really in a position to dispute Dr Taylor's opinion that the treatment plan was suitable for the respondent. He answered:

Well, I still feel and I feel quite strongly that while you might outline a plan like that in a younger patient, I think that late 40 year olds I'd - I would be very hesitant as I've said.

You'd need to see something in the presenting condition that justified the recourse to surgery. Is that what you say? - - - Well, I'd need to see something that - that forced surgery as the only alternative treatment to correct the problems.

62 He said that he considered that the absence of teeth as opposed to the foreshortened mandible was the main problem but agreed that he would possibly have known more if he had seen the ceph tracings. He also agreed with the proposition that surgical advancement was the definitive way to correct a foreshortened mandible.

63 Then in re-examination he said that the more conservative treatment options which he had in mind were:

a partial denture or something, [so] as to do two things, to prevent the overclosure and therefore - and see how the - patient responded to that. You know, it'd be a trial, see how you go. The advantage of that method would be that if - if you didn't for example cure the overclosure you could increase the size of the partial denture. You could carry out a selection - of strategies to cure if that was the - if overclosure was part of the aetiology of the angular cheilitis, because it may've been just a fungus infection.

I would think that it would be suitable and I would be surprised if it wasn't successful and so - but if it was successful I would then maybe look a bit further on think, well, you know, can we improve things? You know, by permanently - by using implants rather than a partial denture which can be a disadvantage to wear, and then - - -

By implants do you mean synthetic teeth implanted into the lower jaw? - - - Into the bone.

65 In the result, Dr Nugent did not disagree with Dr Taylor's opinion that the efficiency of a partial denture would have been far greater if the mandible were brought forward by surgery, although, presumably he would not have agreed with Dr Taylor's opinion that the alternative of opening the bite with various prostheses would be to revert to 1950's dentistry in the latter part of the 20th Century. Nor did he dispute Dr Taylor's observation that to use prostheses would be really to camouflage the problem rather than treat the root of the essence of the problem, which was the foreshortened lower jaw. Dr Nugent accepted that the treatment plan would have been suitable for a younger patient.

66 The one point of significant difference between Dr Nugent and Dr Taylor was that Dr Nugent would have been 'very hesitant' to recommend such a plan for a patient in their late 40's because: 'I feel at that age the risk of complication following surgery to the mandible is high', whereas Dr Taylor was clear that, while the incidence of problems associated with surgery is increased with the age of the patient, 'there is no contra-indication to carrying out jaw corrective surgery in patients of this age group'; and that, despite an increase in the risk of nerve damage, and an increase in the incidence of non-union and mal-union, it 'does not mean patients over the age of 40 should not have this type of surgery' (an opinion consistent with that of Associate Professor Jones and, as will be seen, to some extent supported by Professor David).

67 It will be recalled that Mr Carlisle was the plastic and reconstructive surgeon to whom the appellant referred the respondent when he was unable to cure her pain and that Mr Carlisle diagnosed non-union. In his report, he explained how non-union sites on the left and right hand sides of the mandible were exposed through neck incisions and the area of non-union debrided back until there was bleeding bone. He stated that the respondent was then placed into a Class 1 occlusion with bone taken from the iliac crest to assist in filling the gaps. He said, however, that it was difficult to bring her into an ideal occlusion on the right side as the large gap in the bone would have led to further non-healing problems. He reported that a compromise was reached, therefore, and the bone held on both sides with A O construction plates until bony union was achieved.

68 Although he said nothing of it in his report, over objection Mr Carlisle was also permitted to give expert evidence in chief as to the fact that, as part of his practice, he performed the same sort of surgery on some of his patients as the appellant had performed on the respondent, and of the warnings which he gave to his patients before carrying out such surgery. In substance he said that in his experience there were two reasons why patients requested that kind of surgery: pain and cosmetic reasons. He opined that, if the motivation were the alleviation of pain:

it would not be uncommon to have a bite raising appliance made, which would clear the occlusion so any discrepancies in the occlusion would be partially overcome, and - on wearing that for a number of months, if the pain was improving a lot, one could assume that in fact the surgery to move the teeth into a position of a more normal occlusion would be significantly helpful.

If it didn't improve the pain? - - - Then - and that was the indication for the surgery, then it would probably not be successful in that regard [scil. alleviating the pain]...

69 He stated that the major complications with this sort of surgery 'in the long term' are that the mandibular branch of the trigeminal nerve can be bruised during the procedure and in some cases it can produce a permanent sensory change. He said that there was no doubt that, with older patients, the procedure can be more difficult, in that the bone does not seem to want to split as easily as it does in a younger person, and 'so probably [there is] an increased risk of nerve dysfunction in the long term'.

70 Asked about the suitability of the operation for someone in her forties, he said this:

So if one deals with a patient of, say, 49 years, in relative terms, we're talking of a patient in the older category, is that so, or not? - - - Well, that's a very personal sort of - - -

No, I don't mean it that way, is 49 as high as the risk goes in terms of age, or do you operate on patients older than 49 - - -? - - - I think that would be the upper limit of where one would [be] looking at this type of surgery, I think that I may have operated on someone a little older than that, but it would be unusual.

71 Asked what complications he discussed with patients, he said that he discussed the risk of the anaesthesia, the risks in the post-operative period of bleeding, swelling, numbness of the lip which he said would invariably be present, and risks in terms of the airway following this procedure. He said that probably up to 5% of people who had the operation suffer from permanent post-operative numbness of the lower lip and that he always warned patients about that risk.

72 In cross-examination he explained that the sort of numbness he was talking about was numbness of virtually half the chin; in effect altered sensation or a total absence of sensation. He said it was not the sort of burning pain experienced by the respondent, and that the risk of the sort of burning pain suffered by the respondent was highly unusual.

73 Asked about tests which he had undertaken to attempt to identify the cause of the respondent's pain, he said that, despite those tests, 'this pain remained somewhat of a mystery'.

74 Finally, when questioned about his view on the desirability of the kind of surgery carried out by the appellant, he said that, in the end, there were really only two reasons for such surgery, pain and aesthetics, and that he would class difficulty in chewing as pain. He did not suggest that it was inappropriate surgery in this case.

75 We go last to Professor David's evidence. In his report he stated that:

The treatment plan as set out by Mr Hookey would be appropriate for the mechanical correction of the deformity as described with the following qualifications:

(a) the relationship of the deformity with which this woman had lived for well over 40 years, and the pain she says was not chronic is dubious, and a clear understanding should be had that correction of the deformity towards the facial skeletal norms of the rest of society does not necessarily relate to curing pain.

(b) performing a saggital split osteotomy in a woman of this age with a partially edentulous mandible gives a higher than normal risk of non-union and associated complication such as nerve damage. For this reason, it is unlikely that I and my team would offer a woman of this age, with this condition, this solution for her facial discomfort and certainly not for the angular cheilitis, which merely requires the application of some cream.

76 In his report, Professor David also stated that he considered that the decision to operate on the respondent was 'an unwise decision' and that if she had been managed without surgical intervention on her mandible, the sequence of events which led to her pain and suffering would have been avoided.[16]

77 It emerged in oral evidence, however, that Professor David had expressed that opinion on the basis of an incomplete understanding of the facts. As he disclosed in oral evidence in chief, his understanding of the only purposes of the treatment plan had been the relief of pain and the eradication of angular cheilitis:

[M]y understanding of the treatment plan was for the relief of pain and for relief of the cracks at the corner of the mouth as compared to being to restructure her face to make it look better or function better in some way.

...

So the point that I have made in my report is that - the first point, is that such a [plan] from the point of view of correcting the facial skeleton towards the norm, and nicely constructed into disciplinary management with [the] orthodontist and oral surgeon, is inappropriate for such symptoms. It is my experience over 35 years [that] I have never once seen somebody who's had an operation even for quite severe pain, even if it was emanating from the temperomandibular joints, that actually solved that pain problem.

78 Turning to his evidence in cross-examination, he confirmed that, in forming his opinion as to the propriety of the treatment plan, he had not been aware that the respondent presented with difficulties in chewing, or that her malocclusion was such that her lower teeth were impacting on her palate, or of the extent of her overbite. Rather, he had been of the view that the only presenting problems were facial pain and angular cheilitis:

Yes, did she tell you that she was - did she tell you or not tell you that she was having - experiencing difficulty chewing? - - - She did, not at the time, but at the time she saw me.

Yes, yes, I should have clarified - did she tell you that prior to attending Dr Romano from whom she was referred to Dr Schwartz from whom she was referred to Dr Hookey, prior to that she had experienced difficulty in chewing? - - - No, her indications that she gave to me were that she had pain, and that she had angular cheilitis.

Did she tell you that again prior to attending Dr Romano, who referred her to Dr Schwartz that there was a problem of impaction of the - of incisors onto the palate? - - - No, that was not raised with me.

She - your report continues after noting her presenting - have you assumed her presenting condition to be as she has described it to you, and you've noted in her report - in your report pain in the teeth, and some cracks at the side of her mouth, angular cheilits on which she didn't place significant weight? - - - I have no reason to not - to doubt her.

You've assumed that to be the extent of the problem as she perceived it prior to attending on Dr Romano, for the purpose of expressing the opinions that you express in your report? - - - Correct.

...

Assume I'm asking you questions in relation to a patient that has a severe Class 2 Division 2 malocclusion with a significant overbite. Did you understand that was part of Mrs Paterno's presenting condition as understood by those who treated her? - - - Yes.

The overbite was in the order of seven and a half millimetres? - - - No, I didn't.

Did you understand that? - - - I didn't understand any of the details because in fact when she came to me she was quite different.

79 In cross-examination, Professor David also accepted that it made a difference to the assessment of the efficacy of the plan to know that the respondent had presented to the appellant with the full range of symptoms described and upon the referral from an orthodontist to address the orthodontic morphological issues identified by the orthodontist as impacting upon the respondent's ability to eat and chew and the impaction of her incisors on her palate:

...he's taking this patient ... not in isolation to address angular cheilitis ... not in isolation to address a complaint of facial pain but rather the context in which the surgery is to be contemplated, viewed independently from the viewpoint of the patient, looking at all options, is to address the orthodontic morphological issues identified by the orthodontist which are impacting on among other things the ability to chew, to eat and the impaction of the incisors to the palate? - - - Well, if that is the construct that you are putting me into then of course he takes into account those things. However, that's not the situation that I understood this patient to be in.

Correct, because there is information which I have put to you and I've asked you to assume, which was not part of the construct that you were asked to advise upon? - - - Yes, correct.

On the construct that I've asked you to advise upon you say, yes, the maxillofacial surgeon must now view the patient afresh with a view to what is in his opinion the options, advantages and disadvantages available of different treatments available to the patient. But bearing in mind and taking on board what's been advised by the orthodontist, and if necessary conferring with the orthodontist? - - - And indeed the patient and other people as well.

...

And it's in that context that contra-indications such as the patient's age, being over 40, and medical history insofar as she's a smoker, ought to be considered? - - - Correct.

80 It further emerged in the course of Professor David's cross-examination that:

(a) although an increase in age and smoking increased the risk of mal-union and non-union, the risk of mal-union (even with the increase in risk the consequence of age and smoking) was 'a very rare complication' and 'non-union is even rarer than mal-union';

(b) although there was an increase in the risk of nerve damage the result of age, the amount of the increase was unquantified - as best Professor David could say, the risk of nerve damage in the best hands was in the order of 10% and, in his own practice of over 30 odd years, it was about 11.5%, with some 'indication' in the literature that it increases with age; and

(c) smoking as such did not increase the risk of nerve damage at all.

81 Then, on the nature of the risk of nerve damage, Professor David explained that the sort of nerve damage of which he spoke was of a kind that produced numbness affecting the lip and chin, whereas nerve damage causing unremitting, disabling pain of the kind suffered by the respondent was not a high risk but on the contrary 'an exceedingly rare complication':

... and just to clarify that again, that risk we're speaking of is the risk of a numbness affecting lip and chin? - - - Correct.

...

Leaving aside that pain, that post surgical pain, a persistent sensation of pain but short of a disabling pain is a very rarer complication of sagittal split osteotomy? - - - That's correct.

I think you may have touched on this, Professor, in your evidence yesterday at p. 933 - and I'll remind you of it if necessary - an unremitting disabling pain post sagittal split osteotomy is an exceedingly rare complication? - - - Correct.

The presentation that Mrs Paterno has is unfortunate in the extreme but it is not a common concomitant of sagittal split osteotomy? - - - Correct.

It's not a high risk but an exceedingly rare complication that has befallen her? - - - It's rare.

Exceedingly rare? - - - Exceedingly rare.

82 As to the propriety generally speaking of performing sagittal split osteotomy surgery on a patient of more than 40 years of age, Professor David said that he almost agreed with Associate Professor Jones, although it all depended upon the facts of the case:

You see Professor Jones is of the view that age is relevant, but it does not mean that patients over the age of 40 should not have this type of surgery provided the problems are discussed beforehand? - - - I can see that, yes, and I would almost agree with him.

Thank you? - - - But there is a reservation. I have never said that people over the age of 40 shouldn't have that sort of surgery, but when you take into account the balance, then it is a very significant thing to draw to their attention and I believed in the way in which it was presented to me that in this case it becomes a particular problem.

Yes. On the way it was presented to you? - - - Correct.

The risks and complications of orthognathic surgery in the form of a sagittal split mandibular advancement procedure? - - - Yes.

83 Finally, Professor David agreed that professional minds could reasonably differ as to whether the treatment plan was appropriate in the particular circumstances of this case:

And there is in this instance you would say a respectable difference of opinion between eminent practitioners on this question? - - - The subject of very proper argument I would say, indeed not only in the courts but in public.

Yes, and so do you agree with my expression or not 'a respectable difference of opinion between eminent practitioners'? - - - Yes.

84 In the result, as it seems to us, Professor David's evidence cast real doubt on the worth of Dr Nugent's opinion that he would have been 'very hesitant' to recommend such a plan for a patient in their late 40's because 'I feel at that age the risk of complication following surgery to the mandible is high'. As the evidence of Professor David showed, the risk of complication following surgery to the mandible, even in someone in their late 40's, was not high, unless of course one regards as a complication the sort of numbness of chin and lip that affects 10 to 11.5% of all those who undergo the operation.

85 Additionally, as it seems to us, Professor David's evidence supported Dr Taylor's opinion that, although the incidence of problems associated with surgery is increased with the age of the patient, 'there is no contra-indication to carrying out jaw corrective surgery in patients of this age group'; and that, despite an increase in the risk of nerve damage, and an increase in the incidence of non-union and mal-union, it 'does not mean patients over the age of 40 should not have this type of surgery'. It depends upon the presenting condition of the patient and the adequacy of the warnings given to the patient about the risks of the surgery.

86 As has been noticed, the judge accepted that the treatment plan was technically the optimal way to create a normal occlusion in the respondent's mouth, but her Honour considered that the decision to recommend it 'did not adequately take into account its suitability for her in light of the relatively limited extent of her presenting problems and the heightened risk factors in her circumstances'.

87 With respect, we disagree. According to the evidence, the respondent's presenting problems were not limited. Although Professor David was incorrectly instructed that they were confined to cheilitis and facial pain, in fact the respondent had presented to Dr Romano and then to Dr Schwartz and then, finally, to the appellant suffering from much more fundamental problems of difficulty in chewing, an overbite of 7.5 mm and a malocclusion so pronounced that her lower teeth were impacting on her palate. As Professor David frankly acknowledged in cross-examination, it made a difference to the assessment of the efficacy of the plan to know that the respondent had presented to the appellant with the full range of symptoms described and upon the referral from an orthodontist to address the orthodontic morphological issues identified by the orthodontist as impacting upon the respondent's ability to eat and chew and the impaction of her incisors on her palate.

88 It is also pertinent that neither Dr Nugent nor Professor David considered that the treatment plan was inappropriate for a patient suffering in the way that the respondent in fact presented and that, while both men had reservations about the suitability of the plan for a patient of the respondent's age, those reservations were qualified. It will be remembered that Dr Nugent expressed himself 'very hesitant' to recommend such a plan for a patient in their late 40's because: 'I feel at that age the risk of complication following surgery to the mandible is high'. But in fact the risk of complication, or at least the risk of the only complications identified in evidence, was not high. According to Professor David, the risk of a numbness to the chin and mouth was between 10% and 11.5% with some 'indication' of an increase with age, while the risk of mal-union was 'rare', the risk of non-union was 'even rarer', and the risk of intense continuous pain of the kind suffered by the respondent was 'exceptionally rare'. Not surprisingly, perhaps, Professor David said he had never contended that people over the age of 40 should not have the sort of surgery in question. His view was simply that 'when you take into account the balance, then it is a very significant thing to draw to their attention'; and, to the extent that there was a difference in views as to the propriety of the treatment plan, he considered that it was one about which eminent professional minds could reasonably differ.

89 It will be remembered that the judge said that she was satisfied by the evidence of Professor David and Mr Carlisle that the trial of a splint device for some months to see whether creating more vertical height would relieve the pain was a more appropriate approach before recommending surgery of this extent if such surgery were aimed at alleviating the presenting pain which at most was of a very moderate level.

90 But with respect, that conclusion overlooks parts of both men's evidence and evidence of other witnesses which were of particular significance. To begin with, Professor David gave his evidence about the use of a splint device to check for the relief of pain while still labouring under the misapprehension that the respondent's only presenting problems were facial pain and cheilitis. As he later conceded, if the position were that the respondent had presented first to Dr Romano and then to Dr Schwartz and then to the appellant suffering from the full range of problems thus identified, the position was different, and one of the things which the appellant should properly have taken into account was the recommendation of Dr Schwartz that the optimal way to address the orthodontic and morphological issues he had identified was by way of the treatment plan.

91 Secondly, as Dr Taylor said in his evidence, which on this point was not contradicted, while use of a diagnostic tool to see whether shifting the lower jaw would improve or alter the pain levels, it was not a definitive treatment, and it would not address the problems associated with aesthetics. Admittedly, the respondent was not primarily motivated by aesthetic improvement but, as she said, any woman is concerned about her appearance. It can hardly be doubted that, if Dr Schwartz and the appellant had formulated a treatment plan without regard to its aesthetic effects on a patient who was in fact an attractive woman, they would have been doing less than should reasonably be expected of them. As the appellant submitted, therefore, he was entitled to have regard to Dr Schwartz' identified need for morphological normalisation.

92 Thirdly, the judge's reasoning pays no regard to Professor Jones' wholly uncontradicted evidence that surgically assisted expansion of the maxilla was the treatment of choice for the management of transverse deficiency of the maxilla in adult patients; that the respondent's age was not a contra-indication to jaw corrective surgery; and that such increases in risk as there were with patients over 40 years of age did not mean that patients over the age of 40 should not have this type of surgery, provided the problems were discussed beforehand. As already observed, we do not accept that it was permissible for the judge to put aside Professor Jones' opinion on the basis of supposition that he may not have taken the added risks of smoking into account. As we have said, the respondent's counsel chose not to cross-examine Professor Jones, which means that counsel did not consider that putting the effects of smoking to him could affect the weight or reliability of his evidence. And the only evidence about the effects of smoking was that, while it increased the risk of mal-union and non-union, the risk of mal-union (even with the increase in risk the consequence of age and smoking) was 'a very rare complication'; 'non-union is even rarer than mal union'; and smoking did not increase the risk of nerve damage at all.

93 Fourthly, Mr Carlisle's evidence does not appear to us to take the matter much further; for the reason that his view about testing for pain relief with the use of a bite raising appliance assumed that the respondent's principal reason for seeking treatment was pain. Hence, his conclusion that if the bite raising appliance did not relieve pain, there would be no point in proceeding with the surgery. To the contrary, however, as Dr Taylor said in his evidence, in fact the object in view was to achieve an ideal occlusion, regardless of aesthetics, to provide for efficient eating. To that end, the fundamental requirement was that the jaw needed to relate correctly, and the only way that could be achieved was to have orthognathic surgery by, in this case, bringing the jaw forward. That was why, as he put it, the contemporary and modern approach in dentistry is to undertake combined, orthodontic orthognathic surgery. And, as he said, to try alternatives such as partial dentures and opening the bite with various prostheses would be to revert to 1950's dentistry, effectively just camouflaging the problem rather than treating the root of the cause of the foreshortened lower jaw.

94 The judge said that she regarded it as being relevant to the recommendation of the treatment plan that:

the factors that increased the standard risks of those procedures in '[the respondent's] case, namely, her age and her smoking habit, which I am satisfied increased the risk of her jaw not healing satisfactorily, as well as the risk of permanent nerve damage.[17]

95 But, as already noted, although there was evidence of some increase in the risks the result of age and smoking, it was hardly significant. At the risk of repetition, the risk of mal-union (even with the increase in risk the consequence of age and smoking) was 'a very rare complication' and 'non-union is even rarer than mal union'; the increase in the risk of nerve damage the result of age was minimal - as best Professor David could say, the risk of nerve damage in the best hands was in the order of 10% and, in his own practice of 30 odd years, it was about 11.5%, with some 'indication' in the literature that it may increase further with age; and smoking as such did not increase the risk of nerve damage at all. Thus as will be remembered, Dr Taylor was of the view that the respondent's age was not a contra-indication for the surgery. His experience over twenty years in dealing with similar cases confirmed that age was not a deterrent. And Associate Professor Jones' unchallenged opinion was that such increase in risks as there were did not mean that patients over 40 should not have this type of surgery.

96 The judge said that, although the seriousness of the presenting condition and its likely future, including any potential deterioration in the patient's health without the treatment, would often be important, it played no role in this case, except that it was accepted that the angular cheilitis was a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction.

97 But with respect that is not correct either. The evidence was that the prospect of further deterioration was thought to be a significant consideration in deciding to operate. Mr Carlisle said in his evidence that it was always assumed that, if a patient presents with a significant malocclusion, a significant overjet, and an absence of space within which to create the appropriate dentition, one concern may be that the condition will progress if left untreated and create problems of temporomandibular pain into the future. Admittedly, he added that he had seen a number of people that were over 40 who had really very significant skeletal abnormalities and yet did not complain a lot of any joint dysfunction. But in the context in which he said that, we take it to mean that the people of whom he spoke somehow managed to put up with the deterioration in their condition rather than that they became no worse for lack of treatment. Dr Romano had been treating the respondent for a number of years and observed that her overbite was worsening. That is what led him to refer her to Dr Schwartz for advice as to the orthodontic procedures which might be implemented to ameliorate the problem. And as Mr Hookey said, the respondent's condition was unusual because it had been left for some time and had progressed to the point where Dr Romano sent the respondent to Mr Hookey with some concern. Most importantly, Mr Hookey gave unchallenged evidence that, because of the unusual nature of the respondent's Class 2 Division 2 malocclusion, and the absence of posterior teeth, her bite could progressively get worse and move superiorly upwards.

98 The judge regarded it as being relevant to the question of whether recommendation of the treatment plan was negligent that:

'on the evidence, it does not appear that any of [the alternatives such as partial dentures and opening the bite with various prostheses] were even mentioned to Mrs Paterno - the only apparent alternative discussed being the 'simplest plan' of orthodontically pulling the upper front teeth back mentioned, but dismissed by Dr Schwartz.[18]

99 We shall come later to whether the alternatives were discussed. But with respect, whether or not they were so has nothing to do with whether recommendation of the treatment plan 'fell below the reasonable standard to be expected of a professional recommending significant surgical treatment with its attendant risks'. Arguably, it might bear on the question of whether there was a failure to warn of consequences and alternatives which, despite their inferiority, the respondent may have chosen in preference to the treatment plan. But logically, it says nothing as to whether the plan was adapted and appropriate to treat the respondent's condition. And, as has been seen, the weight of the expert evidence was that the treatment plan was the best way to treat the respondent's condition.

100 The judge concluded that, in the circumstances as she found them to be, it was negligent to recommend the treatment plan, which would at best take 18 months to two years to complete, and involve the respondent in two stages of surgery under general anaesthetic with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means, without exploration of more conservative measures to improve her chewing ability.

101 In our view, however, that conclusion breaks down at several levels. First, the circumstances were in significant respects not as the judge found or assumed them to be. Notably, the respondent's presenting problems were not limited to angular cheilitis and facial pain. Of greater concern was that the respondent had an unusual and worsening Class 2 Division 2 malocclusion productive of an overbite of 7.5 mm and inability to chew without her lower teeth impacting on her palate. Nor was the primary object of the plan the relief of pain. The facial pain, although noticeable, was not bad. On a scale of 1 to 10, the respondent assessed it as being at less than one. Thus, as Mr Hookey said in his evidence, he saw no point in asking Dr Schwartz to conduct a pain relief trial with a jaw lifting appliance. The primary purpose of the surgery was to address the restoration of the respondent's bite and, as the judge found, the optimal way to achieve that was by means of the surgery which was recommended.

102 Secondly, the increase in risks the result of age and smoking were plainly not as significant as the judge seems to have thought them to be. As we have pointed out, on the evidence, the increased risk was hardly significant. We acknowledge that the appellant said otherwise at one point in his cross-examination:

And you didn't mention to her the combination of her age and smoking make this high risk surgery, did you? - - - Not together as a wrapped explanation.

And it's the package of the two that does make it high risk surgery? - - - Yes.

And you didn't warn her of it? - - I warned her of either aspect, but [not] the package of the two and the implications thereof.

It's the package of the two that makes it high risk surgery isn't it? Age and smoking? - - - Yes.

But whatever weight is to be attributed to that section of the cross-examination, and we note that it came towards the end of the second day of a plainly very lengthy and arduous interrogation, it does not prevail against the objective evidence that the risk of mal-union (even with the increase in risk the consequence of age and smoking) was a very rare complication; that non-union is even rarer than mal-union; that the increase in the risk of nerve damage the result of age was minimal; and that smoking as such did not increase the risk of nerve damage.

103 Thirdly, the judge's reasoning rests fundamentally on acceptance of Professor David's original opinion, which in turn was based on an assumption that the principal object of the treatment plan was to relieve facial pain and cheilitis, and his consequential observation that there would be no point in undertaking surgery for the relief of pain without first testing with a wedge or other such thing whether it alleviated the pain. As has been seen, however, the assumption was flawed, and so too therefore was the conclusion. As Professor David frankly conceded, once the true scope of the respondent's presenting condition was revealed to him, it made a difference to the assessment of the efficacy of the plan to know that the respondent had presented to the appellant with the full range of symptoms described and upon the referral from an orthodontist to address the orthodontic morphological issues identified by the orthodontist as impacting upon the respondent's ability to eat and chew and the impaction of her incisors on her palate.

104 Fourthly, while it is true that the recommended treatment plan was destined to take 18 months to two years to complete, and to involve the respondent in two stages of surgery under general anaesthetic with post-operative pain involved in braces, bands, and expansion of her palate by orthodontic means, the fact was that the respondent's presenting condition was such that something needed to be done to alleviate her condition and, on the evidence, the alternative was to revert to 1950's style dentistry, using things such as partial dentures and opening the bite with various prostheses, which effectively would just have camouflaged the problem rather than treating the root of the cause of the foreshortened lower jaw. As against that, as Associate Professor Jones said, the plan which was recommended was the treatment of choice for the management of transverse deficiency of the maxilla in adult patients, and it was normal practice for orthodontic alignment and decompensation of the dentition to be carried out prior to othognathic surgery to correct the skeletal problem.

105 Finally, the judge referred to evidence given by the appellant that there was a high risk of implants not being successful if the respondent remained a smoker and that it was his policy not to perform implants on a patient for so long as the patient remained a smoker. The judge doubted that that was the appellant's policy but said that, if it were, it rendered the treatment plan even less appropriate for treatment of the respondent's condition.

106 With respect we do not agree. In our view the judge's conclusion overlooks the clear and unchallenged evidence of Dr Taylor that even without implants there was good reason to carry out the surgery. As has been seen, when it was put to him by counsel for the respondent that, unless the implants were to be undertaken, there would be no purpose in the surgery, he strongly disagreed and explained how the surgery would vastly improve the patient's condition and chewing ability by bringing forward her jaw.

107 In reasoning to her conclusion that the recommendation of the plan was negligent, the judge observed that the question of whether an appropriate standard of care had been met does not depend solely on whether the treatment offered or recommended was in accordance with what a respectable body of other professional opinion says was appropriate to offer. It was necessary, too, she said, to weigh the nature of the treatment, including its intrusiveness and its risk factors, against the nature and severity of the presenting problems which the treatment was aimed to resolve, and its prospects of doing so.

108 With respect, we agree. As the High Court said in Rogers v Whitaker,[19] in Australia the standard of care to be observed by a skilled professional is that of the ordinary skilled person exercising and professing to have that special skill. But that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession; even though, in the area of diagnosis and treatment, it will often have an 'influential or decisive role to play'.[20] While evidence of acceptable professional practice is a useful guide, it is for the court to adjudicate on what is the appropriate standard of care, after giving weight to the paramount consideration that a person is entitled to make his or her own decisions about his or her life.

109 At the same time, however, in a case like this where something unforeseen has gone wrong, it is important to avoid the temptation of looking back from the patient's present condition and reasoning that, because of what has occurred, there must have been a significant risk of its occurrence that should have been avoided. For so to reason is neither logical nor fair. As Gleeson CJ warned in Rosenberg v Percival:[21]

In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be eventuated.

110 In this case, once one takes into account the strong body of professional opinion that the treatment plan was appropriate to the respondent's needs; the objective evidence as to how the plan, if it had been successful, would have met the respondent's needs; the relatively low risks of any major complication; and the evident shortcomings of alternative treatment options, we are not persuaded that the recommendation of the treatment plan fell short of the standards of advice to be expected of an ordinary skilled person exercising and professing to have the special skill of an oral maxillofacial surgeon. To the contrary, once one puts aside problems of whether there was sufficient warning of the possible risks of the surgery, and of the advantages and disadvantages of alternative treatment options (which is a different matter to be dealt with under the heading of the case of failure to warn), it strikes us that it may well have been negligent for the appellant not to put forward the plan for consideration as the preferred treatment option. To test that, imagine what sort of complaints might be made by a patient suffering the same ailments as the respondent who consulted an orthodontist and surgeon and was not advised of the availability of the sagittal osteotomy procedure. In any event, we do not consider that there was evidence in this case sufficient to establish on the balance of probabilities that the appellant's recommendation of the treatment plan was negligent.

111 As was earlier noted, the judge concluded that the warnings which were given were inadequate because, once the respondent's age and the fact she was a smoker 'were factored into the already significant statistics of patients who may have permanent nerve damage' there was a 'high risk' of permanent nerve damage about which the appellant failed to warn. The judge further held that 'had the nature of the operations been more adequately explained, in particular the high risk of permanent nerve damage, she would not have agreed to proceed.'

112 The appellant contends that the judge erred in failing to make findings as to the full and precise content of the warning which ought to have been given.

113 We do not accept that contention. As it appears to us, the judge made a clear finding as to the content of the required warning, as follows:

[I] am therefore satisfied that in order to fulfil his duty of care, it was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk of her being left with permanent nerve damage as a result of the second operation.

...

...a warning to Mrs Paterno...which informed her that there is a percentage of patients for whom the effects of nerve damage is permanent [sic], that the risk to her of this occurring was higher because of her age and additionally because she was a smoker, and that although usually nerve damage from this operation resulted in numbness or similar change in sensation, nerves can always react by causing pain.

114 The appellant contended that, inasmuch as numbness or similar change in sensation was the only adverse consequence of permanent nerve damage of which there was a high risk of occurrence, it was not necessary for the appellant to warn of the possibility of chronic pain or indeed of any other possible adverse consequence of permanent nerve damage and thus, the judge was in error in holding that it was necessary for the appellant to mention the possibility of nerve damage resulting in continuing pain.

115 We do not accept that contention either. As Santow AJA said in Johnson v Biggs:[22]

a duty to warn in relation to a prospective surgical operation encompasses both a duty to warn of the risks of proceeding as well as the risks of not proceeding, where the patient's physical well-being may be at stake in either case. Those risks need to be put in perspective. They require the clinician's overall assessment of their likelihood and gravity of consequence expressed so as [to be] intelligible to the lay patient...

116 In this case, the risk of permanent nerve damage needed to be given. In order to convey to the lay patient the gravity of the possible consequences of that risk, it was necessary to outline them in sufficient detail and simplicity to be comprehensible. That does not mean that the appellant was bound to itemise every possible symptom, no matter how remote the chance of occurrence. But it does mean that he had to take care not to mislead the respondent as to the scope of the possible consequences. And, plainly, to refer to numbness or similar sensation without mentioning the possibility of other neurological consequence was likely to mislead. Such is the natural aversion to pain of most human beings that a patient could well take a different view of the risk of nerve damage according to whether it carried with it even an outside chance of causing permanent pain. Consequently, like the judge we consider that the appellant was bound to warn the respondent that, although numbness or similar sensation was the most likely consequence of permanent nerve damage, it was not the only possible consequence of it; there was also an outside chance or, if you like, rare possibility, of it resulting in continuing pain.

117 The judge found that such warning as the appellant gave was inadequate in that it did not condescend to the possibility of continuing pain. As her Honour put it:

Even were I to accept his version of what was said - and I do not in its entirety because it is so very heavily reliant on reconstruction - his explanation of the likely consequences or symptoms from nerve damage, in my view, significantly underrated them, even though severe pain is not a common result. To compare permanent nerve damage as being like pins and needles in one's foot in the long term, in my view, significantly underrated the significance of the long-term effects of nerve damage, even if they were more likely to be altered sensation than chronic pain.

118 It follows from what we have already said that we agree with the judge that the appellant failed to discharge his duty to warn the respondent of the risks of the proposed surgery. By referring to the possibility of permanent nerve damage and yet mentioning numbness or similar altered sensation as the only consequence of the possible nerve damage was significantly to underrate the significance of possible long-term effects of the permanent nerve damage if it occurred, and in our view was likely to create in the mind of the respondent an incomplete and therefore misleading perception of the scope of the risks which the proposed surgery entailed.

119 The appellant contended that, in order to be appropriate, any warning ought describe not only the order of risk and the nature of the mechanism of the risk, but also its likely consequences and more particularly the consequences of not proceeding with the proposed surgery. But in this case that does not seem to us to take the matter much further. It is clear that the respondent was told what the likely consequences would be if she did not undergo the suggested surgery. What she was not told of were the possible consequences if she did proceed with it.

120 The judge found that, if the high risk of permanent nerve damage had been explained to the respondent, she would not have gone ahead with the operation. As her Honour put it:

My impression of Mrs Paterno is that she is a sensible woman of reasonable intelligence who was, however, heavily reliant upon the advice of the professionals she consulted. I am satisfied that between the faith expressed in Mr Hookey's ability by Dr Romano, the support for the plan from Dr Schwartz, and the confidence of Mr Hookey himself and his talk of his previous successes with the surgery, the force of Mr Hookey's optimism is what encouraged her to agree to the plan. I am satisfied that, had the nature of the operations been more adequately explained, in particular the high risk of permanent nerve damage, she would not have agree to proceed.

121 With respect, we see no reason to disagree with her Honour's conclusion. Once the respondent discharged the burden of establishing that the appellant breached his duty to warn her of the risks of the surgery (as we consider she did),[23] the onus shifted to the appellant to identify evidence sufficient to establish that there was no causal connection between the failure to warn and the decision to proceed with the operation.[24] In effect, all that the appellant could point to was that the respondent understood that the treatment plan called for significant and painful surgery to the upper jaw and later the lower jaw, an extensive and unpleasant course of orthodontic treatment, that all surgery carries risks and that it entailed the need to undergo a general anaesthetic which carried with it the risk albeit not large of life-threatening consequences.

122 In the appellant's submission, the respondent's willingness to undertake that course as against continuing with the effects of the presenting condition strongly evidenced that she would have proceeded, even if an appropriate warning about the risks of nerve damage been given.

123 It seems to us, however, that there are at least two answers to that. First, as her Honour said, the suggestion that the respondent's willingness to proceed in spite of the adversity which she knew the treatment plan would entail presupposed that she was adequately advised of the extent of that discomfort and the risks attached. Secondly, there is a world of difference between facing the prospect of a course of treatment involving significant pain and discomfort, even an extended course of treatment extending over a couple of years, with the knowledge that it will conclude with the pain and discomfort resolved, and the prospect of continuing pain extending indefinitely into the future about which nothing could be done. One might well not hesitate to undertake the first if persuaded by a competent professional that it was likely to succeed, but not be willing to do so if it were revealed that there was a possibility of the latter kind.

124 The appellant also referred to the risks of surgery to which the respondent had voluntarily subjected herself on other occasions, including occasions before the commencement of the treatment plan and occasions after the complications arose and she subjected herself to further treatment to try to overcome them.

125 But the judge dealt with that argument in a fashion with which we agree. The surgical procedures undergone before the treatment plan began were, first, a stapedectomy in 1977 when the respondent was in her twenties, to avoid permanent deafness; and, secondly, a hysterectomy at the age of 41. Of the first the judge said that it bore no similarity to the treatment plan and of the latter her Honour said that the considerations involved were of considerably more pressing importance than the symptoms and presenting problems associated with the respondent's malocclusion. We agree. The surgical procedures undertaken after the treatment plan left her with continuing pain were all directed to eradication of that problem. If anything, the fact that the respondent was prepared to risk them in order to rid herself of the pain makes it the more likely that she would not have been prepared to embark on the treatment plan if warned that one of the risks albeit a remote one was the risk of continuing pain.

126 The judge assessed the respondent's damages in the sum of $1,057,833.00 made up of general damages of $350,000, medical expenses of $168,433, husband's carer services of $127,050 and future expenses for psychiatric, medical and hospital, pharmaceutical and therapeutic care of $412,350.00.

127 The appellant contends that the award for general damages was manifestly excessive, and the damages awarded for medical and like expenses failed to make a sufficient allowance for the vicissitude of withdrawal from opioids and corresponding improvement in the respondent's condition.

128 We are not persuaded by those criticisms. The judge gave detailed consideration to the dimensions of the respondent's pain and suffering and loss of enjoyment of life and to the chances of her lifestyle improving over time.[25] As the judge said, the object of general damages is to compensate for the respondent's protracted pain and suffering over the seven years which led up to the trial and into the future. And as the judge observed, the respondent was at the time of the trial 57 years of age and the prospect for her future was that pain management programmes or other supportive services would only moderate her suffering to some extent. As against that, $350,000 does not strike us as at all excessive.

129 The complaint concerning medical expenses is equally unpersuasive. The judge allowed varying discounts for the possibility of improvement the result of pain management strategies. Nothing persuasive was offered in argument or in the appellant's written submissions as to why those discounts should be thought of as inadequate deductions.

131 Since preparing this judgment we have had a chance of reading in draft the reasons of Neave JA. It is apparent that we disagree with her Honour as to whether the evidence established on the balance of probabilities that the appellant's recommendation of the treatment plan was negligent. We are, however,

strengthened in our view, as to the appellant's failure to warn and as to the assessment of the respondent's damages, by what her Honour has written on those issues.

132 In 1998, the appellant, Mr Stephen Hookey, a dentist with qualifications in oral and maxillofacial surgery, operated on the lower jaw of the respondent, Mrs Daniela Paterno. This surgery was the third stage in a course of orthodontic and surgical treatment intended to overcome symptoms caused by her jaw malocclusion.

133 Unfortunately, the operation had disastrous consequences for Mrs Paterno. Her lower jaw did not unite and she had to have further surgery. Despite five remedial operations, as well as hyperbaric and other treatment, she continues to have a persistent burning pain in her face, for which she takes opiates, which have serious side effects. Parts of her lip and her chin are numb and she has difficulties eating, her speech is slurred and her previously attractive appearance has been seriously affected.

134 A County Court judge held Mr Hookey liable in negligence to Mrs Paterno and awarded her damages of $1,057,833 for her injuries (exclusive of interest). Her Honour held that, having regard to Mrs Paterno's presenting problem, her age (47 at the time of treatment) and the fact that she was a smoker, it was negligent for Mr Hookey to propose a treatment plan requiring lower jaw surgery, without exploring more conservative measures to improve her chewing ability and treat her facial pain.[26]

135 Her Honour also found that Mr Hookey had negligently failed to warn

Mrs Paterno of the relevant risks of surgery, and that if she had received such a warning she would not have had the surgery.

136 This is an appeal from her Honour's findings as to liability and quantum.

137 When Mrs Paterno first sought treatment for her dental problems she was aged 47 and in good health. Towards the end of 1996 she consulted her general practitioner because she had a bad cold and was suffering from pain which she thought was sinus pain. She also remembered 'biting things and trying to, you know, chew. There was ... something not right'. She had a condition like cold sores in the corners of her mouth, which she was able to mask with make-up. Her doctor prescribed antibiotics, but these did not clear up the sores and she used to 'dribble a lot'. In her evidence in chief, she said that on a scale of one to ten her pain was not even up to one; it was 'just a discomfort' which she had thought might be dentally related.

138 In cross-examination, Mrs Paterno reiterated that she was not suffering intense pain, but was finding her chewing problem annoying because her 'mouth didn't seem to come together'. She had had cracks and redness in the corner of her lips for some time, and a pain which seemed to extend into her teeth.

139 Towards the end of 1996, Mrs Paterno accompanied her husband to his appointment with their dentist and family friend, Dr Romano, and told him about her symptoms. Dr Romano organised an x-ray of Mrs Paterno's jaw and told her that the sores in the corners of her mouth were a condition known as angular cheilitis, caused by her overbite, which had worsened over time. He referred her to Dr Schwartz, an orthodontist. I refer in more detail below to the evidence about the condition for which Mrs Paterno sought treatment.

140 After undertaking various diagnostic studies, Dr Schwartz wrote to Dr Romano expressing the view that Mrs Paterno's condition would be best treated by a combination of orthodontic treatment and surgery. In his letter of March 1997, he said the following:

As you know, she presents with an unusual Class II division 2 malocclusion. It is peculiar due to the presence of a large overjet caused by entrapment of the lower lip. However she has other hallmark II/2 features such as a reduced lower third anterior facial height and 'square' facial form.

Daniela's presenting complaint is of recurrent chronic facial pain and angular cheilitis - both of which are related to her loss of vertical dimension.

Daniela has had extractions of the 26, 35, 36, 37, 44 & 46 (in addition to all four third molars) masking the Class II nature of the molar relationships. However, the canines are almost a full unit Class II. There is no extra space requirements in the maxilla, while in the lower arch, the incisors are slightly imbricated despite the presence of patent extraction spaces posteriorly. No crossbites or scissor-bites are evident.

...

The simplest plan would be to retract the upper incisors without lower arch treatment (i.e. maintaining the increased overbite and Class II occlusion). This would leave Daniela with a reduced overjet of 3-4 mm - far less than ideal - and would require extraction of upper premolars. However, the resultant poor facial aesthetics (increased naso-labial angle and retruded upper lip) precludes this treatment plan as a feasible alternative.

An ideal treatment plan would involve a combined orthodontic - orthognathic surgery approach to advance the mandible, expand the maxilla (via orthodontics alone or surgically-assisted) and increase the lower anterior facial height. Posterior implants in the third quadrant would facilitate orthodontic decompensation and would provide Daniela with a fully functional occlusion (incorporating crown & bridge-work) post-treatment.

141 Dr Schwartz referred Mrs Paterno to Mr Stephen Hookey, who had previously treated patients referred by Dr Schwartz and Dr Romano. He provided Mr Hookey with Mrs Paterno's x-rays and a lateral cephalogram.[27] On 4 April 1997 Mrs Paterno and Dr Romano met with Mr Hookey in his rooms. Mr Hookey examined Mrs Paterno and described a proposed course of treatment. He said he would send her a quote and that she should think about the proposed treatment and raise any queries with Dr Romano, Dr Schwartz or him, if she wanted to do so.

142 Mr Hookey wrote to Dr Schwartz[28] saying that he had discussed Mrs Paterno's 'potential jaw correction' with her and asked her to consider it. He proposed a treatment plan including five stages, which were summarised by the learned trial judge as follows:

1. Surgically assisted maxillary expansion (surgery to split the upper jaw bone in the centre and insert an expandable plate into the palate).
2. Fixed orthodontic therapy to level and align both arches (orthodontic expansion of upper jaw and teeth alignment, over a period of 9 months or more).
3. Mandibular advancement surgery to create a Class I skeletal and dental situation (surgery splitting lower jaw on left and right and advancing jaw forward, fixed with plates and screws).
4. Post-surgical orthodontics and retention phase therapy.
5. Full prosthetic work-up with implant placement. He suggested a conventional bridgework in the lower right quadrant and three fixtures in the left mandible for a fixed bridge.[29]

143 In his letter Mr Hookey described this as the 'ideal sequence of events', and wrote that he believed this treatment 'would give her an ideal result in terms of establishing a favourable morphology and the jaw joint symptoms should show some resolution'.

144 Mrs Paterno agreed to have the treatment and saw Dr Schwartz, who began it by using separators and banding and fitting a maxillary expansion device in her jaw.

145 On 11 July 1997, Mrs Paterno had another consultation with Mr Hookey and on 16 July 1997, Mr Hookey performed surgery on her upper jaw. She then underwent an orthodontic programme of expansion of the teeth of her upper jaw, which concluded in January 1998. Although she consulted her local doctor for pain relief during this period, she recovered well from the first operation.

146 On 13 May 1998 and 8 July 1998, she again saw Mr Hookey before the second operation, which was designed to lengthen the lower jaw. As I explain below, there is dispute about what Mr Hookey told her about the risks of the operation at the first and subsequent consultations.

147 On 16 July 1998, Mr Hookey performed surgery on Mrs Paterno's lower jaw, which involved separating the vertical part of the jaw bone from the horizontal part on the right and left sides of her face, and moving the horseshoe of the lower jaw forward to lengthen it. Two titanium plates were placed on the left side of the jaw to add vertical stability, and a mini-plate was placed on the lower right side.

148 Mrs Paterno's case is that she had burning, unremitting pain almost immediately after the second operation and that she continues to have severe pain. It is common ground that she is now suffering from intractable pain.

149 In December 1998, Mrs Paterno's face was swollen, her chin was numb, she had a lump or callus on the right side of her lower jaw and was suffering from a burning pain in the same area.

150 In an attempt to deal with these problems, Mr Hookey removed the mini-plate under a general anaesthetic on 17 December 1998, but Mrs Paterno's symptoms continued. Initially, Mr Hookey appears to have considered that the pain was probably caused by an infection in the bone (osteomyelitis) and Mrs Paterno was treated with antibiotics. In February 1999 Mrs Paterno commenced hyperbaric oxygen therapy at the Alfred Hospital to eradicate infection and promote healing. Around that time, Mrs Paterno noticed that one of her upper teeth was biting into the gum in her lower jaw and after an unsuccessful orthodontic solution was attempted, Mr Hookey removed one of her back teeth on 3 March 1999.

151 On 30 March 1999, Mr Hookey removed a floating fragment of bone and the one remaining right molar, curetted the osteotomy site, and placed new plates on each side of Mrs Paterno's jaw. Her hyperbaric therapy continued and she had 29 treatments in all. Mr Hookey told Mrs Paterno that he thought she had osteomyelitis, and he was hopeful that the operation would deal with the infection and overcome her pain. She subsequently received further orthodontic treatment from Dr Schwartz.

152 Because Mrs Paterno was continuing to suffer severe pain, in October 1999 Mr Hookey referred her to Mr Ian Carlisle, a craniofacial and plastic surgeon. Mr Carlisle diagnosed painful non-union of both sides of the mandible, resulting in a 'bucket-handle' effect. Her upper posterior teeth were biting into the gum of the mandible where she had no teeth. Mr Carlisle performed an operation which involved the use of large plates to stabilise the jaw and bone grafts taken from Mrs Paterno's hip. Mrs Paterno spent three days in intensive care. Ultimately this operation resulted in bony union, though the jaw remained non-aligned. The plates were later removed but this did not give Mrs Paterno any relief from her pain. Shortly before undergoing this surgery, Mrs Paterno took an overdose of medication and was admitted to hospital.

153 After attempting to isolate the cause of the pain by local anaesthetic injections, Mr Carlisle referred Mrs Paterno to Dr Lavoipierre, a psychiatrist who specializes in pain control. She had further corrective surgery in April 2003, which involved cutting her upper jaw, and inserting titanium plates and implants into her lower jaw. Since then she has been unsuccessfully treated with a variety of medications, including opiates for the pain she continues to suffer. She has developed gastro-intestinal complications from the narcotic therapy.

154 Her Honour summarised Mrs Paterno's present condition as follows:

There is no dispute that Mrs Paterno has undergone extensive remedial treatment and that no further surgery is likely to improve the current state of her mouth and jaw. She has been left with permanent cosmetic consequences of scarring on her neck, from Mr Carlisle's remedial surgery which required access to both sides of the jaw through the skin, and a misaligned lower jaw so that her face is asymmetrical, and noticeably extended on the right hand side. She has a distorted bite, although two crowned implants on each of the left and right rear lower jaws are satisfactory in restoring some chewing ability. She has some sensory loss to her lower lip on the left side. On the right, she is still suffering chronic pain on the outer jaw, and associated neck pain.

She takes large quantities of a variety of medications, and in particular is now dependent on opiate-based pain relief. This has had the consequence of serious bowel problems, for which she has described at least two periods of previous hospitalisation and in respect of which further surgery is apparently contemplated.

The interplay of medication for those conditions has distressing consequences in her daily living. The effect of the morphine has significant consequences on her concentration and probably is also connected with some of her oral disabilities, when her tongue becomes caught and words are slurred and the right side of her mouth, especially the lower lip, sags.[30]

155 Her Honour also noted that there was dispute between the parties as to whether Mrs Paterno was continuing to suffer psychologically. That matter is relevant to the appeal against her Honour's decision on quantum and I return to it later in my reasons.

Was the treatment plan negligent?****[31]

156 Mrs Paterno's statement of claim alleged that the treatment plan was negligent because surgically assisted maxillary expansion and mandibular advancement was inappropriate for a person aged over 40 who presented with symptoms of facial pain and angular cheilitis. It was further pleaded that the surgical component of the plan carried with it a risk of non-union of bone and of nerve damage, and that dental treatment involving the use of implants and a crown/bridge combination without surgical intervention would have been an appropriate form of treatment for Mrs Paterno's malocclusion.

157 The fifth stage of Mr Hookey's treatment plan involved 'full prosthetic work-up with implant placement'. The pleadings did not allege that the treatment plan was inappropriate because Mrs Paterno was a smoker. That issue emerged at the trial, when Mr Hookey testified that he did not perform implants on smokers, because the failure rate was 15 or 20 per cent. He said that he had told Mrs Paterno that she would have to give up smoking to have the implants. She denied that she had been told that this was the case. The disputed evidence on this issue is discussed below, in the context of the discussion of Mr Hookey's alleged failure to warn Mrs Paterno of the risks of surgery.[32]

158 Her Honour held that it was not necessary for Mrs Paterno to have specifically pleaded that a treatment plan involving implants was negligent because she was a smoker, in order to take account of Mr Hookey's evidence that he did not perform implants on smokers. She said that Mr Hookey's evidence was 'an implicit acknowledgment by [Mr Hookey] that the fact of [Mrs Paterno] being a smoker increased the risk of failure of at least one stage of the treatment plan, a stage which in lay terms was the part she wanted, the replacement of missing teeth to improve her chewing ability and lift or support her upper back jaw'. [33]

159 Mr Hookey's counsel did not submit that the manner in which Mrs Paterno's claim had been pleaded prevented her Honour from taking this matter into account, though it was said that her Honour should not have been satisfied that Mrs Paterno was not told of the risks associated with smoking.

160 I now turn to the evidence relating to Mr Hookey's alleged negligence in preparing the treatment plan.

161 I have already referred to Mrs Paterno's evidence about the condition for which she sought treatment, including angular cheilitis, minor facial pain and difficulty in chewing.[34]

162 Mrs Paterno consulted Dr Romano and saw Dr Schwartz and Mr Hookey for advice about her symptoms of facial discomfort, chewing problems and angular cheilitis. As her Honour remarked, Mrs Paterno was a very attractive women prior to the surgery,[35] and it is common ground that she was not seeking treatment to improve her appearance.

163 Mrs Paterno was cross-examined as to why she went to see Mr Hookey and she said that:

I was going to see Mr Hookey so that he could implant two teeth in because I was missing two teeth, he was going to extend the jaw to implant two teeth.

164 In cross-examination she was asked whether, if she had been offered a solution not involving surgery to solve her pain and chewing problem, she would have been concerned if that solution would have made her less attractive. She said she would have liked to know what alternatives would help her chew and solve the problem she had, but she had not been given alternatives.

165 Professor David David, a craniomaxillofacial surgeon and head of the Australian Craniofacial Unit in Adelaide, provided an expert report to Mrs Paterno's solicitors and gave oral evidence.

166 In his report, Professor David noted that he did not have access to the radiographs made before Mr Hookey performed the initial operation, and therefore could not compare them with the radiographs taken after Mr Carlisle's subsequent operation on Mrs Paterno.

167 In relation to the diagnosis of Mrs Paterno's original condition, he relied on Dr Schwartz's letter to Dr Romano, which indicated that Mrs Paterno's presenting complaint was recurrent facial pain and angular cheilitis - both of which are related to her loss of vertical dimension. He noted that in his interview with Mrs Paterno, she had said that the facial pain was short term, and that Mr Hookey's correspondence had focussed on the fact that she had a 'facial skeletal complex that deviated from normal' and that it presumed that if the treatment plan was implemented the facial pain would cease.

168 Professor David said that the treatment plan proposed by Mr Hookey would have been technically appropriate for mechanical correction of the jaw deformity, with the qualification that Mrs Paterno had had a malocclusion for well over 40 years, her pain was not chronic and that there should be 'a clear understanding ... that correction of the deformity towards the facial skeletal norms of the rest of society does not necessarily relate to curing the pain'.

169 Professor David reported that performing the surgery for a woman of Mrs Paterno's age created a higher than normal risk of non-union and associated nerve damage. It was unlikely that he or his team would offer surgery to a woman of that age for relief of facial discomfort, and certainly not for angular cheilitis, which merely required the application of a cream. The decision to operate on her was 'unwise' and produced a result involving non-healing and loss of bone.

170 At the trial, Professor David said that the source of Mrs Paterno's pain before the operation was either sinus pain or temporomandibular joint pain. He had not seen surgery of this type relieving temporomandibular joint pain in 35 years. He referred to four journal articles as the foundation for his opinion that older patients having this type of jaw surgery have a greater risk of neuro-sensory deficit. He said that in his own practice the risk of permanent nerve damage was 11.5 per cent, that it increased with age, and that he operated on people of Mrs Paterno's age 'only very reluctantly and for very substantial reasons'.

171 In cross-examination, Professor David said he had understood that Mrs Paterno had had a severe class II division 2 malocclusion, though he did not see the associated radiology or have access to all the details of her condition before surgery. When asked if he would have been assisted by further information as to the nature and extent of the malocclusion he said '[o]nly in as much as the severe malocclusion was being addressed for some other reason than the pain or angular cheilitis'. However he conceded that he did not know that Mrs Paterno's overbite was seven and a half millimetres before the operation performed by Mr Hookey, and that Mrs Paterno had not told him that she had had difficulty chewing or that her incisors were affecting her palate.

172 He was asked whether it was reasonable to consider whether surgery to change Mrs Paterno's jaw morphology might address the strains on her temporomandibular joint, which were a possible source of pain. His answer was as follows:

That's where the reasonableness runs out because the very first thing that you would do if you were in my team would be to cast your team wider and speak to the speech pathologist, who talks about the posture of the jaws within speech and swallowing. You would speak to the social worker and have an extensive social and psychiatric, perhaps an assistance for the patient to work out whether in fact this is not because they are unhappy, that they're clenching their jaw, that there is some other issue and no other issues afoot. He would ask an ENT surgeon to check more carefully about the sinuses to whether the pain was coming from there and then after many meetings on this issue, the next step would be to put some sort of posterior dental support in, like a bite block or some form of less invasive thing and give them a long trial of seeing whether this pain, in other words a splint that [eases] the pressure that you propose and then he might reassess the situation, but in all my time I have never seen one case where a person had jaw surgery and relieved pain with this sort of surgery.

173 Professor David also said that it should not have been assumed that Mrs Paterno's jaw morphology was the cause of the angular cheilitis, and that other possible causes should have been investigated by a physician.

174 He was cross-examined about the view expressed by Associate Professor Jones in his report to Mr Hookey's solicitors, that the treatment plan was appropriate, provided the risks were fully discussed with the patient. Professor David said that he would 'almost agree' with Associate Professor Jones that although age was relevant, it did not mean that patients over 40 should not have this type of surgery, provided that the problems were discussed beforehand. However he continued as follows:

[b]ut there is a reservation. I have never said that people over the age of 40 shouldn't have that sort of surgery, but when you take into account the balance, then it is a very significant thing to draw to their attention and I believed in the way in which it was presented to me that in this case it becomes a particular problem.

175 He said that the highest risk associated with the operation was numbness to the lip and chin. In his experience, that risk was in the order of 11.5 per cent and increased with age.

176 In a passage on which Mr Hookey's counsel relied, Professor David said that he and his team had a different view from Associate Professor Jones, and that this was 'the subject of very proper argument'. It was then put to him that there was in this instance 'a respectable difference of opinion between eminent practitioners' on the question, and he said he agreed with that expression. Professor David acknowledged that different approaches were taken by maxillofacial oral surgeons who practised with orthodontists, and plastic surgeons who practised in a multi-disciplinary team including an orthodontist, a speech therapist and other relevant experts.

177 Counsel for Mr Hookey asked Professor David how the difficulties which Dr Schwartz had identified in correcting Mrs Paterno's malocclusion by orthodontic treatment alone could have been addressed without surgery. Professor David maintained his view that Mr Hookey should not have accepted the orthodontist's view that it was necessary to alter Mrs Paterno's facial morphology by jaw lengthening surgery, without investigating other options. Professor David was also asked about Dr Schwartz's view that this was 'the ideal plan' for Mrs Paterno. He said that it would have been an ideal plan if Mrs Paterno was 25, and was concerned about her appearance. He went on to say that a maxillofacial surgeon should have considered the contraindications for surgery, including the fact that Mrs Paterno was over 40 and was a smoker.

178 Dr Nugent, a specialist orthodontist at the Australian CranioFacial Unit, also provided a report to Mrs Paterno's solicitors and testified at the trial. In his report he said that

Photographs are available that show her original malocclusion and they indicate at that stage she had a retrusive mandible with an overjet that was significant. These photographs were taken in 1997, and there is a frontal photograph taken at the same time. There are also frontal and lateral photographs taken before surgery. The original panoramic and cephalometric x-rays from before the surgery were not able to be located by the surgeon Mr Steven Hookey or Orthodontist Dr Robert Schwartz and so were not available to be assessed.

...

It is difficult to assess Mrs Paterno's occlusion and general facial appearance as the original records are not available. My experience dealing with growth and developmental problems has been gained working as a consultant orthodontist to the Australian Craniofacial Unit which was established in 1975. It would be very unusual for myself to recommend a program of orthodontics, surgery and complicated restorative dentistry (implants etc) in a patient presenting in her later forties. I feel at that age the risk of complications following surgery to the mandible is high. My recommendation in such cases would be to institute a program to restore the occlusion in the most conservative manner possible. In all such cases the restoration of correct occlusal function would be dental (orthodontics and restorative dentistry, including implants in appropriate cases).

179 In his evidence in chief, Dr Nugent said that Mrs Paterno exemplified the complications of jaw surgery in a woman of her age, and that the risks of complication were negatively affected by the fact that she was a smoker.

180 In cross-examination Dr Nugent said that surgery would address the difficulty of undertaking orthodontic treatment in a patient lacking sufficient vertical facial height, but that there were more conservative means of addressing this problem.

181 It was put to him that in order to weigh up the benefits of the surgery, he would need to have seen Mrs Paterno's original records and x-rays, and he said that would have been very useful. He acknowledged that he had not seen the reports of Dr Romano, Dr Schwartz or Mr Hookey.

182 Counsel for Mr Hookey put to Dr Nugent the opinion of Dr Taylor[36] that Mrs Paterno's treatment was in accordance with contemporary dental practice. He agreed with that opinion, provided that the patient was suitable 'from an age point of view particularly', but repeated his opinion that he would be very hesitant to outline a plan like this for a person in their late forties, and that he would need to see something that 'forced surgery as the only alternative treatment' to correct Mrs Paterno's problems.

183 Counsel for Mr Hookey asked Dr Nugent to comment on computerised cephalometric tracings of x-rays taken of Mrs Paterno's jaw in 1997, and he said they were not as useful as the x-rays, and were no more useful than the description of the problems for which she sought treatment.

184 In re-examination Dr Nugent said that surgery would not be the first alternative to deal with Mrs Paterno's angular cheilitis, facial pain and dribbling. He would look at other alternatives because of the risk of complications. He said that angular cheilitis, combined with sinus pain or discomfort at times, would not be an indication for surgery. Before considering surgery he would have tried the use of a partial denture to replace the missing teeth and to see how the patient responded. If that was successful, implants could have been considered to replace missing teeth. Like Professor David, he supported a team approach involving different specialists to determine the appropriate treatment for the malocclusion.

185 Mr Carlisle is a plastic surgeon with qualifications in both medicine and dentistry. In his evidence in chief he said that he also performed jaw lengthening surgery, and that patients sought this procedure to relieve pain and for cosmetic reasons. He said that if a patient was suffering from pain it would not be uncommon to have a bite-raising appliance made which would help to partially overcome the occlusion. If the pain reduced significantly, one could assume that surgery to move the teeth into a more normal occlusion would be helpful. If it did not reduce the pain, then surgery would probably not be successful. About five per cent of people who had the operation ended up with permanent numbness in the lip.

186 In cross-examination he said that the age of 49 would be 'the upper limit' for performing this kind of surgery. The bone in patients in their upper 40s becomes more brittle and there is a risk of bumping the nerve and creating some kind of permanent sensory change. About five to ten per cent of people experience some kind of permanent sensory change as a result of the surgery, and the sensation of numbness could include the lower lip and virtually half the chin. A burning pain sensation following the operation was highly unusual, but it could occur because '[a]ny nerve that's been damaged can go on and perform and behave in a way that ... can cause unremitting pain'. He concluded that what had happened to Mrs Paterno was a rare complication.

187 Mr Carlisle was cross-examined about the indications for jaw surgery. He said that a chewing problem did not equate to an inability to eat, and he did not think that was an indication for surgery. However skeletal discrepancies could lead to pain, and it was that symptom which was the indication for surgery. He had seen a number of people with significant skeletal abnormalities who had not complained of pain.

188 Mr Carlisle was also cross-examined about Mrs Paterno's prognosis if she had not had the original operation. He agreed that in a patient with a significant malocclusion and overbite and an absence of space to create dentition, one concern might be that the condition would progress if untreated and create temporomandibular pain in the future. He said that the suitability of the jaw surgery depended on what the patient complained of. If there was pain, surgery could be justifiable, but it was inappropriate to relieve angular cheilitis.

189 In his evidence in chief Mr Hookey said that Dr Schwartz's referral letter indicated that Mrs Paterno had a Class II Division 2 malocclusion caused by the fact that her lower jaw had not grown forward to match her upper jaw. To compensate, 'the lower lip pushes the upper teeth backwards ... and the lower teeth, because they've got nowhere to bite, move towards the palate'. He said that because Mrs Paterno had had some of her posterior teeth extracted, 'the bite [could] progressively get worse and move superiorly upwards'.[37] He had also observed that Mrs Paterno had some creasing at the corners of her mouth, and that this worsened as the teeth came together and the bite overlapped. She had lost some vertical dimension in her face, and this contributed to the creasing and the presence of angular cheilitis.

190 Mr Hookey said that recurrent facial pain was not 'of major consequence' when he saw Mrs Paterno, though her degree of overbite made the muscles that move the temporomandibular joint work harder, which could cause pain. He observed a totally missing segment of teeth in her lower jaw, and said that 'so ultimately this area was going to be addressed with some of reconstruction [sic] with implants or partial dentures'.

191 Mr Hookey said he had agreed with Dr Schwartz's view about the limitations of 'the simplest plan,' which involved orthodontic treatment to retract the upper incisors only. This would have had negative effects on facial aesthetics and would have required the extraction of a tooth on each quadrant of the upper arch. He had not agreed with Dr Schwartz's proposal that implants should be put in place as the first stage of the treatment plan.

192 Mr Hookey said that he had noted that Mrs Paterno was a smoker and that the failure rate of dental implants was 15-20 per cent in smokers. It was the policy of his practice not to do dental implants in smokers, though some other practices did perform implants in smokers. He said that he had told Mrs Paterno that was the case. The evidence as to whether he did so is discussed in the section relating to breach of the duty to warn at [256]-[271] below.

193 Mr Hookey conceded that the proposal was to extend Mrs Paterno's jaw to make room for implants, and that he had made no reference in his quote or in the written treatment plan to the fact that he would not do the procedure if she continued to smoke.

194 In re-examination Mr Hookey was asked whether, if the treatment plan was continued but there were no implants, there would be any benefit to Mrs Paterno. He said that there would be a benefit, in that the operation would have created space for a partial denture to restore the segment of missing teeth. It would have been possible to create a partial denture without braces and orthodontic treatment, but this would have been difficult because of the height of her jaw. Mr Hookey said that if Mrs Paterno had the surgery, but not implants, she would have benefited because '[s]he would no longer hit the palate, she would have a full complement of functional teeth stabilising tooth over-eruption. She would have an improved dental aesthetic result and a more cleanable mouth'.

195 In his evidence at trial, Dr Schwartz maintained the view expressed in his letter to Mr Hookey that a combined orthodontic-orthognathic surgery plan was 'the ideal treatment approach'. He said that he had never seen a case of non-union of the jaw bone.

196 In answer to a question from her Honour Dr Schwartz said that this approach would give Mrs Paterno the best functional and aesthetic outcome. In cross-examination, Dr Schwartz said that the indicators for the jaw surgery were 'the likelihood of achieving a good Class I occlusion and ... for aesthetic reasons'. He said that pain itself was not an indicator for surgery, nor was angular cheilitis. He was asked whether difficulty chewing was an indicator and responded that there were numerous reasons why people might have difficulty chewing.

197 In re-examination he said that he believed that 'doing a non-surgical or conservative approach would not be feasible to achieve any sort of result that would be functional or aesthetic - and/or aesthetic'.

198 Associate Professor Jones, an oral and maxillofacial surgeon at the University of Adelaide, provided reports to Mr Hookey's solicitors, but did not give evidence at the trial. He reported that the treatment plan was appropriate. It would support Mrs Paterno's temporomandibular joint, though relief of facial pain could not be guaranteed, and would help to treat the angular cheilitis, perhaps in combination with anti-fungal medications. He said there was an increase in permanent nerve damage, non-union and mal-union in patients over 40, but that this did not mean that patients over 40 should not have jaw surgery, provided these problems were discussed beforehand. He said that 'the original treatment plan was correct and ... the sequence of events was unfortunate and unusual'.

199 His report did not refer to the fact that Mrs Paterno was a smoker, and he incorrectly said that in addition to other symptoms she 'was also concerned about her facial appearance'. In his final report he said that he was not able to examine Mrs Paterno's original pre-operative radiographs, but was able to examine her original study photographs and study models, which confirmed she had a Class II Division 2 malocclusion, with the features described by Dr Schwartz.

200 He said that the treatment helped to support temporomandibular joints and to alleviate facial pain, 'although this could not be guaranteed'.

201 Dr Bruce Taylor, a specialist orthodontist, provided a short report to Mr Hookey's solicitors, which said that his opinion was based on the 'information you have provided and a collection of files the patient briefly showed [him]' and that

Based on the information provided in your background papers there is no doubt that the treatment plan presented to the patient ... was appropriate. Whilst I acknowledge the view [that] other treatment options may have been explored the treatment plan presented whilst being complex is in fact in keeping with contemporary dental practice.

202 Dr Taylor said that overclosure of the mandible could be a contributing factor to facial pain and angular cheilitis, and that this 'would impact significantly on the facial appearance and the malocclusion'. The definitive way to treat the problem was the surgical advancement of the lower jaw. In his opinion, the patient's age should not be seen as a contraindication for surgery, and the patient's general medical condition was 'a more important aspect'. He also said that in his experience as an orthodontist, the complications suffered by Mrs Paterno were 'extraordinarily rare'.

203 In cross-examination Dr Taylor agreed that the recovery rates for older people were not as good as those for younger people. He said he had understood from the correspondence of Dr Schwartz and Dr Nugent that Mrs Paterno's presenting complaints included pain of longstanding duration, angular cheilitis, difficulty chewing, traumatic overbite and appearance. He said that the surgery would be appropriate if the pain was 'severe,' and agreed that smoking was something which needed to be taken into account.

204 He said alternative treatment options, which included partial dentures, would not have done anything in terms of appearance, and would only have camouflaged the problem. He said that the trial process of fitting an appliance to lift the lower jaw, which Professor David had supported, had 'no real down side' but it was now unusual to do it.

205 He was asked if there was any reason to do the surgery without implants, and said that it would 'vastly improve the aesthetics, the appearance'. If there was then a decision to do implants, that would be ideal. If there was a decision to use a partial denture, its efficacy would be greater if the mandible had been brought forward.

206 It was put to Dr Taylor that aesthetics were not the presenting complaint, and he said that this was his interpretation of the material he had seen. In response to a question from her Honour, he referred to other treatment options, including partial dentures, but said that they 'would have done nothing or little in terms of the aesthetics or the appearance,' and in contemporary dental practice would just camouflage the problem caused by the foreshortened lower jaw. Her Honour asked Dr Taylor what his position would be if aesthetics were excluded. He said that non-surgical solutions would not produce 'the ideal in terms of ... producing the best possible bite'. He said he had seen 450 or so combined orthodontic-orthognathic cases and had never seen non-union of a mandible.

207 Her Honour asked Dr Taylor whether surgery would have benefited Mrs Paterno, even if she could not have had implants because she was a smoker. He said that a partial plate would have improved her chewing ability and given her a better outcome if the jaw was brought forward.

208 In re-examination counsel for Mr Hookey asked Dr Taylor the following:

The evidence is that Mrs Paterno had a malocclusion which was structurally related, a significant Class II Division 2 malocclusion, she had difficulty chewing, she had facial pain which she described to Professor David as going from her face in to her teeth. She had severe angular cheilitis that persisted despite medication and had on examination - on appearance, the folds on the corner of her mouth which would explain the development of angular cheilitis by reason of her overbite and the collection of saliva in the folds. That she had severe dribbling or drooling to the extent where the pillow was wet in the morning. And that she complained of the lower teeth incise or incisors impacting in to her palate and that all of that was confirmed on examination and observation of her facial morphology. If you assume those, that as the presentation, what does it say about the suitability or otherwise of an approach that doesn't involve orthognathic surgery and an approach that does involve orthognathic surgery?

209 Dr Taylor said that this affirmed the view expressed in his report. To try partial dentures and opening the bite with prostheses was 1950s dentistry. The contemporary approach was to undertake combined orthodontic and orthognathic surgery. He said he would not have recommended the 'simple plan' of retracting the upper incisors without surgery, and that Mrs Paterno 'would be better off doing nothing'. Assuming that Mrs Paterno's presenting complaints were those described by counsel for Mr Hookey, it would be reasonable to expect that if the treatment plan proceeded, she would have 'far better occlusion, a better ability to eat, better aesthetics, whether she wished to have them or not. It would be highly likely to clear up her angular cheilitis and there would be a good chance that it would address the problem of her pain'.

210 The learned trial judge noted that the case was not one of misdiagnosis, because all of the experts had agreed that Mrs Paterno had a Class II Division 2 malocclusion. Her Honour said that in determining whether the treatment plan was negligent

professional knowledge in the field is clearly predominant to identify available treatment options. However, I do not understand that to mean that the question as to whether an appropriate standard of care has been met in a particular case, that depends solely on whether the treatment offered or recommended is in accordance with what a respectable body of other professional opinion says was appropriate to offer.[38]

211 Her Honour accepted that the treatment plan was technically the optimal way to create normal occlusion for Mrs Paterno, but said that its appropriateness was to be determined in light of the condition for which treatment was sought and that

[t]hose circumstances would include a weighing of the nature of the treatment including its intrusiveness, its risk factors, against the nature and severity of the presenting problems which the treatment is aimed to resolve, and its prospects of doing so.[39]

212 Her Honour said that Mrs Paterno did not seek treatment for cosmetic reasons and none of the professional opinion suggested that the orthodontic - orthognathic treatment was appropriate to treat her angular cheilitis. The predominant reason for the treatment must therefore have been to treat her difficulty chewing and to relieve her pain, which was relatively minor. The consensus of medical opinion was that surgery would not guarantee pain alleviation. Her Honour accepted the evidence of Professor David and Mr Carlisle that the possibility of surgery relieving the pain could have been tested by use of a splint device for some months.

as to the purpose of correcting or improving Mrs Paterno's ability to bite and chew, I am satisfied that, without the orthognathic surgery, alternative methods of improving her bite were not without limitations or downsides. Partial dentures were mentioned in evidence as possible, but described as outdated dentistry by Dr Taylor, with some discomfort, and Mr Hookey said that the lack of space in Mrs Paterno's mouth would have limited their effectiveness. The use of implants alone was said by Mr Hookey to be impractical because of a lack of vertical height allowing access to place them in her limited jaw space. On the evidence, it does not appear that any of these were even mentioned to Mrs Paterno - the only apparent alternative discussed being the 'simplest plan' of orthodontically pulling the upper front teeth back, mentioned but dismissed by Dr Schwartz.

Also relevant to the recommendation of treatment were the factors that increased the standard risks of those procedures in her case, namely, her age and her smoking habit, which I am satisfied increased the risk of her jaws not healing satisfactorily, as well as the risk of permanent nerve damage.

The seriousness of the presenting condition and its likely future, including any potential deterioration in the patient's health without the treatment, would often be important. In this case, they appear to have played no role, except that it was accepted that the angular cheilitis had been a recurring problem, and would continue to recur, the facial pain to the extent it disturbed her had been present for some months, and her biting and chewing difficulties were unlikely to improve without correction. There is no evidence that her condition was likely to deteriorate. As against that, she was being recommended a treatment plan that would at best take 18 months to two years to complete, involving her in two stages of surgery under general anaesthetic and with much post-operative discomfort from swelling, pain, some prospectively temporary numbness, difficulty eating and many, many months of the discomfort and some pain involved in braces, bands, and expansion of her palate by orthodontic means.

The defendant's counsel urges that I infer from the fact that Mrs Paterno did agree to the treatment plan, knowing what it included, that she must have been considerably troubled by her presenting complaints. Her evidence does reflect that she was told about each step, and I accept that by agreeing to it she must have been willing to undergo considerable and protracted and expensive discomfort. However her agreement to it presupposes not only that its risks were adequately explained, but that she was adequately advised that she had other options, including of doing nothing.

In these circumstances, the recommendation of a complex and protracted course of treatment, of combined surgery and orthodontics, to achieve a technically corrected jaw alignment without exploration of more conservative measures to improve her chewing ability and to test whether the presenting pain would be significantly relieved by jaw raising, in my view fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks. Further, if it were Mr Hookey's opinion that there was a high risk of implants not being successful if the plaintiff remained a smoker, it was, in my view, an even less appropriate treatment plan to recommend.[40]

214 In essence, the first three grounds of appeal allege that her Honour erred in finding that Mr Hookey was negligent in recommending surgery to Mrs Paterno, that her finding was against the weight of the evidence, and that she gave inadequate reasons for concluding that that the treatment plan recommended by Mr Hookey 'fell below the reasonable standard to be expected of a professional person recommending significant surgical treatment with its attendant risks'.[41]

215 Ground of appeal 10 alleges that her Honour erred in 'failing to consider discretely and independently the respondent's case as to negligence in advising an inappropriate treatment and negligence in failing to adequately warn of a 'high risk' of complication'.

216 Apart from the issue raised by ground of appeal 10, which is discussed below, Mr Hookey's counsel accepted that her Honour correctly stated the test for determining whether the treatment plan was negligent, but submitted that in concluding that the treatment plan was negligent, her Honour had given inadequate weight to the evidence of Dr Schwartz, Associate Professor Jones, and Dr Taylor that the treatment plan involving orthognathic surgery was appropriate for Mrs Paterno. In support of that submission, counsel submitted that Professor David's and Dr Nugent's evidence that the treatment plan was inappropriate for Mrs Paterno did not accurately reflect her presenting condition, because neither of these experts had access to the radiography showing the nature of her jaw malocclusion, before Mr Hookey operated on her.

217 Counsel relied on Professor David's agreement in cross-examination there was 'a respectable difference of opinion between eminent practitioners' as to the advantages and disadvantages of the approach that had been adopted, and said that therefore there was no basis on which her Honour could properly depart from the body of professional opinion which supported Mr Hookey's approach. Counsel also submitted that Mr Hookey was entitled to have regard to Dr Schwartz's referral, which identified the need for 'morphological normalisation' and that her Honour was not entitled to regard the referral as irrelevant because Mrs Paterno had not said that this was what she wanted.

218 Counsel relied on a statement by Handley JA in Ainsworth v Levi,[42] which was said to support the proposition that where there were two competing views as to the practice which should be followed and a medical practitioner followed one of those approaches, the trier of fact could not hold that the practice was negligent unless it was clearly wrong. [43]

219 Counsel also submitted that her Honour had erred in finding that the treatment plan was 'even less appropriate' because of Mr Hookey's opinion that there was a high risk of implants not being successful if Mrs Paterno remained a smoker. Counsel said that Mrs Paterno might have stopped smoking before the implants were to be undertaken, and that in any case Dr Taylor's evidence was that even if the implants could not have been done, Mrs Paterno would still have derived substantial benefits from the procedure. It was said that her Honour had given insufficient weight to these matters in concluding that a treatment plan contemplating implants was negligent, because it may not have been possible for the implants to have been inserted. Counsel also pointed out that, following the later corrective surgery, Mrs Paterno had received successful implants in her lower jaw.

220 Counsel for Mrs Paterno submitted that her Honour's conclusion that the treatment plan was negligent was based on Mrs Paterno's relatively minor symptoms, her age and the fact that she was a smoker, and said that her conclusion was clearly open on the evidence.

221 Further, Mr Hookey had said that he did not put implants into smokers and the whole purpose of the treatment plan was to insert implants in Mrs Paterno's lower jaw. When it was put to Mrs Paterno in cross-examination that Mr Hookey had told her that she could not have implants if she continued to smoke, she had said '[b]ut that's what I went to see him for, for the implants'. The learned trial judge had seen Mrs Paterno give evidence over four days and had correctly taken the view that her answer was truthful, spontaneous, and reflected genuine surprise.

222 In Rogers v Whitaker,[44] a plaintiff who had gone blind after surgery on her right eye claimed damages for negligence from a doctor who had failed to warn her of the rare risk of suffering sympathetic blindness and losing her vision in her left eye. It was not alleged that the surgery was negligently performed.

223 The High Court declined to follow the English decision in Bolam v Friern Hospital Management Committee,[45] which held that a doctor was not negligent if he or she acted in accordance with a practice accepted at that time as proper by a responsible body of medical opinion. It was held that the Bolam principle does not apply in this country:

In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.[46]

224 In their joint judgment, Mason CJ, Brennan, Dawson, Toohey, and McHugh JJ said that evidence of acceptable medical practice was an important indication of the appropriate standard of care, but in cases of allegedly negligent failure to warn, the concept of patient autonomy required 'the courts to adjudicate on what is the appropriate standard of care'.[47] Even in the sphere of diagnosis and treatment which is 'the heartland' of the skilled medical practitioner',[48] the Bolam principle had not always been applied,[49] although medical opinion will often have 'an influential, often a decisive, role to play'.[50]

225 Gaudron J placed less emphasis on medical opinion than the other members of the court, even in cases of diagnosis and treatment. She said that in cases involving diagnosis and treatment, the evidence of medical practitioners is 'of very considerable significance'.[51] However, even in such cases

the nature of particular risks and their foreseeability are not matters exclusively within the province of medical knowledge or expertise. Indeed, and notwithstanding that these questions arise in a medical context, they are often matters of simple commonsense ... Accordingly, even in the area of diagnosis and treatment there is, in my view, no legal basis for limiting liability in terms of the rule known as 'the Bolam test' ... That is not to deny that, having regard to the onus of proof, 'the Bolam test' may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule-of-thumb in some jury cases, but it can serve no other useful function.[52]

226 In Rosenberg v Percival,[53] another case involving an allegedly negligent failure to warn, Gummow J referred to the following principles derived from Rogers v Whittaker:

(i) [I]t has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.[54]

(ii) [I]t is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'.[55]

(iii) The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.[56]

...

(v) '[W]hether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often decisive role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.[57]

227 Her Honour correctly followed the approach applicable to diagnosis and treatment in considering whether the treatment plan was negligent. [58] Her statement that '[i]t is not for a court to decide whether it is appropriate or preferable'[59] for a team including a speech therapist and psychologist to be involved in determining the treatment plan, as was suggested by Professor David, shows that she was well aware of the considerable weight to be given to evidence of 'a reputable body of medical opinion'.

228 Contrary to ground of appeal 10, I do not consider that her Honour elided the standard of care applicable to Mr Hookey's duty to warn Mrs Paterno of the risks of the operation, with the standard of care applicable in cases of negligent diagnosis or treatment. As I have said, her Honour appreciated that greater weight was to be given to medical opinion in determining whether the treatment plan was negligent, than in deciding whether there was a negligent failure to warn.[60] It was clearly appropriate for her Honour to take account of 'the particular circumstances of the patient',[61] including Mrs Paterno's presenting condition, in deciding whether the treatment plan was negligent. Read in context, her Honour's reference to Mrs Paterno's choice to undergo treatment related to the symptoms for which she sought treatment, and the purpose of the treatment plan. In my view, ground of appeal 10 is not made out.

229 Leaving aside ground 10, Mr Hookey's counsel did not contend that her Honour applied an incorrect test in finding that the treatment plan was negligent. In essence, however, he alleged that the conclusion reached by her Honour meant that she must have given insufficient weight to the evidence of the experts who testified that the treatment plan was appropriate. I do not agree. I consider that the judge correctly held that the treatment plan was negligent. I take that view for the following reasons.

230 First, as Gaudron J said in Naxakis v Western General Hospital and Anor[62]

[b]efore turning to the evidence in this case, it is important to bear in mind that the test for medical negligence is not what other doctors say they would or would not have done in the same or similar circumstances. Even less so, is it that other doctors have not said that they would pursue a particular course of action, a factor that seems to have been significant both at first instance and in the Court of Appeal.

To treat what other doctors do or do not do as decisive is to adopt a variant to the direction given to the jury in Bolam v Friern Hospital Management Committee (the Bolam rule). According to the Bolam rule, 'a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice.[63]

231 Secondly, I do not consider that her Honour was obliged to substantially discount the evidence of Professor David and Dr Nugent because the radiographs showing Mrs Paterno's condition before surgery were not available to them. Professor David had access to Dr Schwartz's report, which gave a detailed description of Mrs Paterno's condition.

232 As Nettle and Redlich JJA note in their reasons, Professor David conceded in cross-examination that Mrs Paterno did not tell him that she was having difficulty chewing when she sought advice from Dr Schwarz and Mr Hookey. However, he also said in cross-examination that he was aware that Mrs Paterno had 'a severe Class II, Division 2 malocclusion with significant overbite'.

233 The following passage of Professor David's cross-examination is also significant.

Counsel: Assuming a presentation of a suspected temporomandibular joint pain the mechanism that you've agreed was a reasonable matter to consider, pain in the teeth extending into the face, difficulty chewing and biting, feeling not right in the face, and the emergent - the existence of these folds upon which saliva collects and infects, we're now in a region where a combined- and a lack of anterior support and all the matters I've put by way of morphology, we're now in the territory where a combined surgical and orthodontic treatment regime represents a reasonable consideration to address the totality of the patient's problems. Is that not so?

Witness: Not so in this case, no.

234 Thus, even when Professor David took account of the full range of Mrs Paterno's problems, as described by counsel for Mr Hookey, he considered that the treatment plan was inappropriate without further investigation of the cause of Mrs Paterno's symptoms.

235 Dr Nugent said it would have been useful for him to have seen Mrs Paterno's x-rays, but also indicated that he had read a description of her pre-operative condition, and had seen the photographs taken before her operation.

236 I note also that neither Associate Professor Jones nor Dr Taylor had access to the pre-operative radiology when they gave their opinions. Associate Professor Jones' report did not refer to the fact that Mrs Paterno was a smoker, incorrectly assumed that she sought treatment for aesthetic reasons, and assumed that her pain was caused by the condition of her temporomandibular joint, in circumstances where the cause of her pain had not been fully investigated. I do not consider that Mrs Paterno's counsel's failure to cross-examine Associate Professor Jones on the affects of smoking required the trial judge to give lesser weight to his opinion. Mr Hookey himself conceded that Mrs Paterno's smoking, combined with her age, increased the risk of complications.[64]

237 Dr Taylor's opinion was incorrectly based on the assumption that the purpose of the jaw surgery was to correct pain of longstanding duration, and concerns about aesthetics. Having regard to these limitations in the evidence of Professor Jones and Dr Taylor I do not consider that her Honour was required to give their views greater weight than the views of Professor David and Dr Nugent.

238 Thirdly, as her Honour said, the appropriateness of the treatment plan had to be considered in light of Mrs Paterno's presenting symptoms. Mrs Paterno was in good health at the time she sought medical advice. Her relatively minor symptoms included low level facial pain, angular cheilitis and some difficulty chewing. Although Dr Schwartz referred to her 'recurrent chronic facial pain' in his referral letter to Mr Hookey, the latter accepted in his evidence that the pain had not been of major consequence.

239 Fourthly, none of the medical experts said that orthognathic surgery was appropriate to treat Mrs Paterno's angular cheilitis, and there was general acceptance that it was not guaranteed to alleviate her facial pain. As her Honour correctly noted, the main reason for the surgery was to improve Mrs Paterno's biting and chewing ability, by correcting the malocclusion and inserting implants to replace the missing teeth in her lower jaw.

240 Fifthly, as her Honour said, there was no evidence that Mrs Paterno's condition would inevitably deteriorate if she did not have surgery. Mr Hookey said only that her bite could (not would) worsen, and Mr Carlisle said that 'one concern may be that the condition will progress if left untreated'.

241 Sixthly, in my view the judge did not mistakenly substitute her own judgment for that of the medical experts. The question her Honour was required to resolve in this case was not simply a matter of choosing between competing clinical judgments, where a plaintiff will often be unable to prove that a defendant was negligent. As her Honour acknowledged, the treatment plan was technically the best way of giving Mrs Paterno normal occlusion. But the question here was whether it was appropriate for the treatment plan to be recommended, having regard to Mrs Paterno's presenting problem, the risks of surgery, and the benefits of the procedure in overcoming Mrs Paterno's symptoms.

242 In weighing those benefits and risks, commonsense can play some part, as was recognised by Gaudron J in the passage from Rogers v Whitaker cited above.[65] For that reason, I do not consider that Professor David's acknowledgment in cross-examination that there was a difference of opinion between practitioners as to the appropriateness of the treatment plan, required her Honour to hold that Mrs Paterno had not proved that the plan was negligent.

243 I note also that the question put to Professor David assumed that Mrs Paterno had been warned of the risks of surgery because of her age. Associate Professor Jones said that the treatment plan was appropriate, provided that the patient had been warned of the risks. Although the issue of whether Mr Hookey discharged his duty to warn is different from the issue of whether the treatment plan should have been recommended, these two questions cannot be completely separated. An elective treatment which involves some risk may be appropriate for a patient who decides to proceed with it despite full knowledge of the risks, but be inappropriate for a patient who is unaware of the possible risks, and seeks treatment for symptoms which are not severe or life-threatening.

244 Ainsworth v Levi[66] does not assist Mr Hookey. In that case, the plaintiff appealed against the trial judge's decision to withdraw some questions of fact from the jury, and to direct the jury in relation to other questions of fact that if the defendant could show that there was a reputable body of opinion supporting his advice and the jury accepted that was the case, they could not find for the plaintiff. As Mahoney JA stated on appeal, the trial judge's jury direction was not a direction as to the principle of law in Rogers v Whitaker, but a direction as to the effect of the evidence and the issues of fact which had emerged at the trial.[67]

245 Seventhly, Professor David, Dr Nugent and Mr Carlisle testified that Mrs Paterno's age increased the risks associated with surgery, and Mr Hookey accepted that that was the case. Although neither Mr Hookey nor Associate Professor Jones considered that such surgery was always inappropriate for patients over 40, Mrs Paterno's age was a significant factor in weighing the risks of the surgery against the benefits it was intended to achieve in treating her malocclusion. While the complication of non-union was rare, and the main risk was an approximate 11.5 per cent risk of nerve damage, this was not an inconsiderable risk which could appropriately be disregarded in devising an appropriate treatment plan for Mrs Paterno. I return below to the risk that the implants would fail because Mrs Paterno was a smoker.

246 In assessing whether the treatment plan was negligent, her Honour was entitled to take account of the evidence of Professor David and Mr Carlisle that the trial of a splint device would have enabled Mr Hookey to ascertain whether Mrs Paterno's pain would be relieved by the surgery. I do not agree with Nettle and Redlich JJA that Mr Carlisle's evidence about trial of a jaw-raising device did not assist Mrs Paterno, because the goal of the treatment plan was to achieve 'an ideal occlusion', rather than to relieve her pain. Mr Carlisle's view was expressed in the context of his evidence that the main reason that patients sought surgery was either cosmetic or to relieve pain.

247 Her Honour was required to give some weight to the evidence of Mr Hookey and Dr Taylor that there would have been difficulties in improving Mrs Paterno's bite by using partial dentures, or by using implants alone. Her Honour clearly did so, when she noted that without orthognathic surgery alternative methods of improving Mrs Paterno's ability to bite and chew, such as partial dentures or use of implants alone were 'not without limitations or downsides'.[68]

248 Eighthly, in assessing the costs and benefits of the treatment plan, her Honour was entitled to take account of what it was intended to achieve. The fifth stage of the plan was implant placement. Mr Hookey testified that jaw surgery would increase the height of Mrs Paterno's lower face so that the implants could be inserted. However Mr Hookey's case was not that there was no room for the implants without expanding the jaw. Dr Schwartz considered that the implants could be done before the jaw surgery. Regardless of this difference in view, it is clear that the placing of implants was a central purpose of the treatment plan. Mr Hookey's evidence was that he would not put in implants in smokers.

249 Assuming for the moment that Mrs Paterno was unaware of the fact that she could not have implants if she continued to smoke, I would accept her counsel's submission that it was open to her Honour to conclude that the treatment plan was negligent because the fifth stage of the treatment plan could not necessarily have been completed. The implants were an integral part of the treatment plan proposed by Mr Hookey. The patient history form completed by Mrs Paterno did not ask her whether she was a smoker. There was no evidence that Mr Hookey made any assessment of whether Mrs Paterno would be able to give up smoking before the implants were performed. The quotation given to Mrs Paterno included a quotation for implants, and one of the reasons that Mr Hookey rejected the view that conservative treatment would have been appropriate was that it would not have been possible to perform implants without performing the jaw surgery.

250 This point is not necessarily met by the fact that Mrs Paterno might have derived other benefits from jaw surgery to bring her jaw forward. The reason she sought treatment was to obtain implants. The fact that she had successful implants inserted after Mr Carlisle's surgery to correct the previous non-union of her jaw is not relevant to the question of whether Mr Hookey should have recommended a treatment plan involving implants which he would not have carried out, if Mrs Paterno continued to smoke.

251 Having regard to the conditions from which Mrs Paterno was suffering at the time of surgery, the fact that the surgery would not necessarily correct her facial pain, her age and smoking habit, and the fact that no attempt was made to test whether the moderate pain from which she was suffering would be relieved by raising her jaw, I consider that her Honour correctly held that the treatment plan did not accord with the standard to be expected of a medical practitioner recommending surgery of this kind. I also consider that her Honour gave adequate reasons for her decision.

252 Grounds of appeal 1 to 3 and 10 are not made out in my view.

Was there a failure to warn?****[69]

253 I now turn to the appeal against her Honour's finding that Mr Hookey negligently failed to warn Mrs Paterno of relevant risks of the jaw lengthening procedure.

254 Mrs Paterno's statement of claim alleged that Mr Hookey did not warn her that the surgical component of the five stage plan was inappropriate for a person over 40, and did not warn her of the high risk of complications of non-union of bone and nerve damage. It was said that if Mrs Paterno had been warned of the risk of these complications, she would not have agreed to the surgery. It was further alleged that if she had been told that dental treatment involving the use of implants and a crown/bridge combination, without surgical intervention, would have been appropriate to deal with her malocclusion, she would not have agreed to the surgical component of the plan.

255 A doctor has a duty to warn a patient of a material risk inherent in proposed treatment.[70] At the trial, counsel for Mr Hookey conceded, as he had to, that if it was established that there was a high risk of bone non-union or of nerve damage as a result of the jaw surgery, this amounted to a material risk.[71] Although it would have been sufficient for Mrs Paterno to claim that the surgery involved a material risk of which Mr Hookey had negligently failed to warn her, her case was conducted on the basis that bone non-union and nerve damage were high risks of the orthognathic surgery. The appeal must therefore be considered on that basis.

256 Mrs Paterno said that at her first consultation with Mr Hookey, he had explained the proposal to operate on her upper and lower jaws, and had told her he had done many of these operations. He said that he would send her a fact sheet about the operation, and had in fact done so. She said she did not recall being told that smoking was a contraindication for surgery or that she should give up smoking before the operation.

257 Mrs Paterno denied she had been told of the risk of infection, the risk of non-union of bone, or the risk of permanent loss of sensation in her face. She said that Mr Hookey had told her it was a simple operation, and told her that 'I might have some swelling and some - you know like I'd be all swollen up and bruised but that would go down and I would be fine'. She denied that she had been told that about 10 per cent of patients would have some numbness for a time, but that this was likely to resolve. She also said that she had not been given other options to address her symptoms, and denied that Mr Hookey had discussed a non-surgical approach for overcoming her malocclusion, or explained what the difficulties of taking such an approach would be. She said that when she saw Mr Hookey again before the second jaw surgery he did not give any advice on complications or risks.

258 In cross-examination, Mrs Paterno said that Mr Hookey had shown her an album of people before and after they had had the kind of surgery he proposed. When it was put to Mrs Paterno that Mr Hookey had said that he was concerned about her history of smoking, she denied that he had done so.

259 It was put to Mrs Paterno that Mr Hookey had explained that he had reservations about putting implants into the jaw at the beginning of the treatment, because the jaw might move and the implant would end up in an incorrect position. She said that she knew there was a discussion between Dr Schwartz and Mr Hookey about that, but she did not recall this being discussed with her at the first consultation. Counsel also put to her that Mr Hookey had said that it was not his policy to put implants in smokers because there was evidence of a high failure rate, and she responded '[b]ut that's what I went to see him for, for the implants'. She had understood that the purpose of the jaw surgery was to create a space for the dental work which would be done by Dr Schwartz and Dr Romano.

260 Mrs Paterno was cross-examined about other surgery she had undergone[72] which involved a general anaesthetic. In response to a question from her Honour she said '[w]ith a general anaesthetic there's always risks, but you take that risk under a general anaesthetic'. She was asked why she would have a general anaesthetic which included the risk of heart attack or stroke but wouldn't take a risk of numbness to her lip. She responded:

I took a risk of an anaesthetic, it's a risk you take, but you don't - I didn't want to take a risk of having any numbness at all because a woman does not want to be numb on the lips.

261 Counsel for Mr Hookey asked her whether she should have gone ahead with the surgery if Mr Hookey had, contrary to her evidence, warned her of the fact that it might be necessary to remove the screws and plates from her lower jaw if she experienced pain or infection. It was put to her that given the surgery contemplated removal of the screws and plates when the lower jaw bone healed, the fact that they might have to be removed as a result of infection could not have changed her decision to proceed with the surgery, as it did not involve any extra risk. She replied '[i]f I knew there was a danger why should I go ahead and have the thing - why should I risk this danger. It wasn't that bad my mouth'.

262 She was also asked if she would have gone ahead with the operation if Mr Hookey had warned that there was a very low risk of non-union of the bone, and that he could only remember two or three patients over the 3000 cases he had seen in which this had occurred. She said that she would have done so, but that if she had been advised of the risk of relapse, by the lower jaw moving back, she would have sought further clarification before having the surgery.

263 In re-examination Mrs Paterno's counsel asked her what approach she would have taken to the surgery if she had been warned of the chance of non-union or mal-union of the jawbone. She responded:

I would have been very careful, every surgery has its risks, but if I would have known everything, I don't think I would have gone ahead because knowing the risks of osteomyelitis and all these things, no way, no I wouldn't have gone ahead, the pain and what I was suffering wasn't that great for me to go ahead.

She also stated that she had been recommended by three surgeons to have knee surgery in the late 1980s, but had sought herbal treatment instead.

264 Dr Romano, Mrs Paterno's dentist, who accompanied her to her first consultation with Mr Hookey, said that the discussion was a quick one and dealt with the mechanics of the surgery. He said that 'Mr Hookey reassured a very apprehensive Mrs Paterno and Mr Paterno, that it was pretty straightforward, he does about a 150 a year and that it was like a walk in the park', and had said that her had done jaw surgery on Dr Schwartz's partner. Mr Hookey had made no reference to a concern about Mrs Paterno's history of smoking, or to risks such as an unusual reaction to anaesthetic or medication, and he made no reference to significant bleeding. Mr Romano also said that the only reference to numbness was that Mr Hookey had said that Mrs Paterno might have some numbness in the lip, which normally disappears. He did not discuss the possibility of infection. Mrs Paterno's counsel asked him whether Mr Hookey had explained 'all material risks and complications associated with the surgical component of the management of her mouth including the risk of infection that could cause the treatment to fail' and Dr Romano said that he had not.

265 In cross-examination, Dr Romano said that he did not think there was any discussion of the risk of complications. He said 'I think Mrs Paterno was quite apprehensive and she said, you know, 'Can anything go wrong?' and that's when he said 'Well, you know, surgery' in general terms 'can go wrong', but then ... 'I'll send you a letter in writing and you'll get all ... the stuff'. Dr Romano said there were other options to treat Mrs Paterno's overbite and angular cheilitis, including orthodontic treatment, use of a night guard to raise her bite, use of a partial denture and topical treatment of the angular cheilitis.

266 In his evidence in chief Mr Hookey said that he had discussed three options with Mrs Paterno. The first treatment option was to do nothing. In those circumstances she would still have the morphology (position of jaw and teeth) that she had prior to treatment. The second option would involve the use of braces, which would compound the negative effect of Mrs Paterno's bite. Her other teeth would be tilted further back and she would need to have further extractions. That option would not overcome the lack of available space for a partial denture or crown and bridgework with implants. The preferred option was a combination of orthodontics and surgery which included braces, jaw lengthening surgery and follow-up crown and bridgework.

267 Mr Hookey said he had told Mrs Paterno that the risk of surgery included the risks of anaesthesia and bleeding, and that in 95 per cent of cases there was some damage to the trigeminal nerve, which would cause numbness. He had told her that recovery from the numbness caused by injury to the trigeminal nerve generally occurs over a 12-month period, and the sensation is like having a foot recover from pins and needles. One in ten patients would still be numb at the end of that period. Mr Hookey said that he told Mrs Paterno that the symptom of numbness was unpredictable and that 'if numbness is still there in 12 months' time it's very difficult to expect full recovery'. He also said that it was his routine practice to tell patients that '[t]he screws and plates can sometimes become infected and they need to be removed. It is not my practice to routinely remove screws and plates, but the screws and plates perform a purpose for three months during bone healing and you can quite safely remove them after three months, is what I say'.

268 In relation to the risk of mal-union of the bone, he said that he had told Mrs Paterno 'that if the bone has not healed in the correct position then from time to time we have to go back and reoperate on the jawbone' but that only about one in forty patients who undergo surgery on both sides of their jaw require repeat surgery. Mr Hookey conceded that he had not warned Mrs Paterno of the risk of non-union of the bone because in his experience this was a very rare complication.

269 Mr Hookey initially said that he had noted that Mrs Paterno was a smoker, and that in discussing the treatment plan with her he had told her that she would have to give up smoking to have the implants, because it was his policy not to perform implants in smokers. However he conceded in cross-examination that he could not specifically recall whether he warned her about the age and smoking factors associated with her case, and said that he was relying in part on his knowledge of the warnings he typically gave to patients comtemplating jaw surgery.

270 Prior to the second operation, Mr Hookey said he had reiterated his advice that no operation was without risks and complications, and that Mrs Paterno would be bruised, swollen and numb when she awoke from her surgery. He had referred to the risk of problems that might require further surgery, and the risk of numbness in particular. He had again told her that there was a one in ten chance that she would experience lingering numbness beyond 12 months. He had also referred again to the problem of relapse where the jaw moved back despite the surgery, and the problem of mal-union.

271 In cross-examination Mr Hookey said that he did not get any written acknowledgement from Mrs Paterno that she had been advised of the warnings of risks and complications at the time of the consultations in his rooms. He also said that the risk of mal-union of the jaw was relatively high and was 'a warnable risk' and conceded that in a person of Mrs Paterno's age, non-union was a high risk as well.

272 Associate Professor Robert Jones provided a report to Mr Hookey's solicitors setting out the information he would provide to a patient who was considering a combination of surgery and orthodontic treatment to deal with a malocclusion. That information referred to an incidence of pain and infection requiring the removal of plates and screws of less than one per cent. This problem was said to be more common with the upper jaw than with the lower jaw, but in some cases the use of plates in the lower jaw caused problems with infection and required removal.

273 The information provided by Professor Jones referred to the fact that swelling usually occurred after the operation and lasted for two to three weeks. It described the main 'downsides to the procedure' as 'the swelling, the discomfort, the fact that you would be in hospital for a period of three to five days, a general anaesthetic and the operation'. It continued as follows:

The operation as you know, and as I have pointed out, would be to break the jaws to set them in a new position and it does come with downsides. We have talked about all of the upsides, but the downsides in general terms relate to the swelling and discomfort, the hospital stay and also some numbness to the lips and chin following this surgery. The chances of a permanent problem with the numbness to the lips and chin is fairly low and is in the area of 2 to 5% depending upon age, the older the patient the higher percentage of chance of permanent numbness to the lip. The younger the patient the much better the recovery is and in young patients the permanent rate of anaesthesia is somewhere in the order of 1 to 2%, in the older age group of patient it jumps up. The time for recovery of this nerve is on average 6 months or so, however, it can last for a lot longer period of time, some patients recover earlier and some patients recover later. The average time is about 6 months. The numbness can continue to recover further over time and of recent times I have had a number of patients who have indicated that the return of sensation continues to occur over a longer period of time and may take 18 months to 2 years or more to recover. Other complications are infections of the jaw which usually relate to the plates and screws, but there can be infections for other reasons. A bone infection can occur with an osteomyelitis but this is extremely rare and of the number of cases I have done over the years, this would have to be less than a 1% chance of getting a bone infection. The chances of a non union occurring is extremely low, and in fact over the years I have been doing this type of surgery, the incidence of a non union has been extremely low and I can only remember 2 or 3 patients over the three thousand cases that I have done. Similarly the situation with a mal union, in other words where the jaws unite or join up in an incorrect position, this is extremely low as well. The only other thing which can present a problem on occasions relates to relapse and the further the jaws are moved, the higher the chances of relapse.

274 Dr Taylor said in cross-examination that he agreed with the contents of Associate Professor Jones' report as to the warnings that should be given to a patient about surgery. He agreed that there was a risk that implants might fail in a smoker and that a patient should be warned of that risk. He gave a non-responsive answer to the question whether a warning that the jaw might not unite should be given, but said that he had never seen such a case. As an orthodontist he did not see examples of mal-union.

275 Mr Ian Carlisle said that the major complication of this kind of surgery was that the patient could have her trigeminal nerve bruised, which could bring about a permanent sensory change. He said that he would discuss the risk of anaesthesia with patients, the risks of bleeding, swelling and numbness of the lip in the post-operative period, the risk of infection and the risk of non-union. He said that about five per cent of people who had lower jaw surgery ended up with permanent numbness of the lip. In cross-examination he said that non-union following surgery of this kind was rare. He said that for older patients the risk of permanent numbness affecting half the chin was about five per cent. The risk of a burning pain sensation was highly unusual, but it did occur.

276 Her Honour noted that in this case, the specific allegation was that there was a failure to warn of the high risk of non-union of the bone and of nerve damage. She went on to say:

The allegation that there was negligence in failure to warn of the risks of the treatment requires as a first step identification of what risks may have required a warning by reference to what risk or risks eventuated, or what was the cause of injury to the plaintiff. There must then be consideration of whether those are risks of which warning ought to have been given, and if so whether adequate warning was in fact given of those risks.

The defendant argues that the case fails at the first step, and does not even get so far as consideration of whether there were adequate warnings of those risks, because the evidence does not establish that the injuries suffered by the plaintiff and, in particular, the chronic severe pain in her jaw which has been central to her continued suffering, were caused by either nonunion of bone or by nerve damage.[73]

277 Her Honour said that the evidence did not support the proposition that Mrs Paterno's chronic pain was caused by the non-union of bone. However having referred to the opinions of Professor David, Associate Professor Jones, Mr Ian Carlisle, and Dr Owen White, her Honour said that she was satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno's jaw, which developed soon after the surgery of July 1998, was caused by nerve damage. Her Honour said that

[t]here was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injections such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve caused in the original surgery.[74]

278 Her Honour said that although non-union was a rare consequence of the operation, she considered that it was a material risk of which a warning ought to have been given. However, her Honour was unable to find that the risk was a high risk, as pleaded by Mrs Paterno, because of its extremely rare incidence, even after taking account of the fact that it was a higher risk for Mrs Paterno than for an average patient, because of her age and the fact that she was a smoker.[75]

279 So far as the risk of nerve damage was concerned her Honour said that:

ultimately the defendant conceded that the description 'high risk' of nerve damage applied in Mrs Paterno's case once her age and the fact she was a smoker were factored into the already significant statistics of patients who may have permanent nerve damage. Mr Masel argued, however, that such nerve damage could be expected to cause permanent numbness or diminished sensation, whereas the consequence of severe hyperaesthesia is most unusual, and did not require mention or warning to the patient. To this, the plaintiff's argument is that it is not necessary that the precise symptoms of the injury be foreseeable and the subject of warning, but the injury itself, so that with hyperaesthesia being a known although less usual consequence of nerve damage, the defendant is responsible nevertheless for that consequence because there was a high risk of causing the injury from which it has resulted, that is, the nerve damage. I am satisfied that it is appropriate to address the question in that way, and I am therefore satisfied that in order to fulfil his duty of care, it was necessary for Mr Hookey to warn Mrs Paterno that there was a high risk of her being left with permanent nerve damage as a result of the second operation.

Taking into account ... the evidence including that of Mr Jones and Mr Carlisle as to what they would explain to a patient in such circumstances, I am satisfied that a warning to Mrs Paterno was required which informed her that there is a percentage of patients for whom the effect of nerve damage is permanent, that the risk to her of this occurring was higher because of her age and additionally because she was a smoker, and that although usually nerve damage from this operation resulted in numbness or similar change in sensation, nerves can always react by causing pain.[76]

280 In relation to the question of whether a warning about the risk of permanent nerve damage had actually been given, her Honour considered that Mrs Paterno's evidence was compromised by her distress about her physical condition, the effects of strong medication and inevitable hindsight bias.[77] She made the following observations relating to Mr Hookey's and Dr Romano's evidence about what had been said at the consultations with Mrs Paterno:

Mr Hookey admits that he does not have a direct memory of most of the specifics of what he said to Mrs Paterno, and that what he said in evidence was largely based on what it is his usual practice to say. Further, he said that he does not, as a habit, use percentages in discussing with patients the number of them who would get numbness, as he feels that it is more meaningful to say one in ten or one in twenty. He agreed that in combination the plaintiff's age and her smoking made this risk higher, but he said he did not tell her that specifically as he does not like to risk offending patients, so he says he factored into the figures he used her age, but it would seem not her smoking. His transcription of his notes, it eventuated, was not a direct transcription and he had no recollection of some of the detail as to warnings which it included.

Also present at the first consultation was Dr Romano. His evidence is that the defendant did not warn the plaintiff of the risk of permanent nerve damage at the first consultation. Without analysing all of its details, I decline to give much weight to Dr Romano's evidence about these matters because, in my view, his perception of the events is also heavily influenced by hindsight, there has clearly been an acrimonious falling out between him and Mr Hookey in the meantime, and in my view his evidence is also probably influenced by his knowledge that he was a part of the events that took Mrs Paterno to Mr Hookey and that he encouraged her to have confidence in Mr Hookey's advice and recommendations.

Mr Hookey concedes that he did not explain to the plaintiff that her age or being a smoker increased the risk of her suffering nerve damage as a result of this operation, and he concedes that there was in her circumstances a high risk of that. Even were I to accept his version of what was said - and I do not in its entirety because it is so very heavily reliant on reconstruction - his explanation of the likely consequences or symptoms from nerve damage, in my view, significantly underrated them, even though severe pain is not a common result. To compare permanent nerve damage as being like pins and needles in one's foot in the long term, in my view, significantly underrated the significance of the long-term effects of nerve damage, even if they were more likely to be altered sensation than chronic pain. Again in the context of the presenting problems for which the operation was being undertaken, I consider that there was inadequate warning of the risk of the consequences of nerve damage and permanent symptoms from it. [78]

281 Her Honour then said that the crucial question was whether Mrs Paterno would have refused the treatment plan if she had been adequately warned of the risk of permanent nerve damage. The judge referred to the fact that Mrs Paterno had had an operation on her left ear in 1977 and a hysterectomy in 1992, and had had subsequent operations to deal with the effects of her jaw surgery. She commented that the symptoms that led to Mrs Paterno agreeing to the operation on her ear and the hysterectomy were 'of considerably more pressing importance than the symptoms and presenting problems that sent her to her dentist and eventually to Mr Hookey'.[79]

282 Her Honour said that the fact that Mrs Paterno had had subsequent surgery to treat the non-union of her jaw and pain reflected the 'dire circumstances' in which she found herself, her initial willingness to try what was recommended in order to find a cure and, ultimately, her desperation to find some relief from her chronic pain.[80]

283 Her Honour said that the strongest argument in support of Mr Hookey's case that Mrs Paterno would have undergone the treatment even if she had been warned more fully about the risks of nerve damage, was that she was prepared to agree to a five step plan which would involve protracted discomfort and expense over an 18 month to two year period. However, that argument assumed that Mrs Paterno was fully advised of the extent of the discomfort. Her Honour said that Mrs Paterno

is a sensible woman of reasonable intelligence who was, however, heavily reliant upon the advice of the professionals she consulted. I am satisfied that between the faith expressed in Mr Hookey's ability by Dr Romano, the support for the plan from Dr Schwartz, and the confidence of Mr Hookey himself and his talk of his previous successes with the surgery, the force of Mr Hookey's optimism is what encouraged her to agree to the plan. I am satisfied that, had the nature of the operations been more adequately explained, in particular the high risk of permanent nerve damage, she would not have agreed to proceed.

284 I refer to other aspects of her Honour's reasons in discussing the grounds of appeal.

285 Ground of appeal 4 alleges that her Honour's finding that the warnings given were inadequate was against the weight of the evidence.

286 Grounds 5 and 6 allege that her Honour erred in finding that if adequate warnings had been given to Mrs Paterno, she would not have proceeded with the surgery, and that this finding was against the weight of the evidence.

287 The seventh ground of appeal alleges that her Honour :

erred in finding that a failure by the appellant to give adequate warnings to the respondent was a cause of any injury loss or damage, as Her Honour failed to:

(a) First, identify precisely the complication(s) (injury/injuries) the respondent has suffered.

(b) Second, as to each such complication, determine whether there was a 'high risk' of that complication.

(c) Third (in the event that (b) was answered affirmatively), determine the precise content of the warning that ought to have been given as to the risk of that complication, having regard to:

(i) The fact that complication was rare or very rare;

(ii) The likely consequence of the complication, in the case of nerve injury, an area of numbness;

(iii) The alternative of not adopting a combine orthognathic - orthodontic treatment plan would be tooth removal and unacceptable aesthetics, or a continuation of the presenting problems of severe malocclusion, difficulties chewing and eating, feeling 'not right', facial pain and angular cheilitis, or trial procedures that were unlikely to best address the respondent's condition;

(iv) The fact that the appellant and the respondent's other treating practitioners (Dr Romano and Dr Schwartz) believed that the proposed treatment plan was appropriate and offered the best prospect of addressing the respondent's complaints and condition.

(d) Fourth, determine what if any warning was given as to the risk of that complication, and whether that warning was adequate.

(e) Fifth, if adequate warning was not given as to the risk of that complication, determine:

(i) If the risk not warned of is related in a physical sense to the injury suffered;

(ii) If so, determine whether if that warning had been given, the respondent would not have proceeded to surgery.

288 In the alternative, ground 8 alleges that her Honour's finding that Mr Hookey's failure to give an adequate warning was the cause of injury went against the weight of the evidence. Ground 9 alleges that her Honour did not give adequate reasons for finding that the failure to warn Mrs Paterno of the risk of complications was a cause of injury.

Are the grounds of appeal relating to the failure to warn made out?

289 In order to recover damages for a negligent failure to warn, Mrs Paterno had to prove, on the balance of probabilities, that:

• she should have been warned of the high risk complications of jaw surgery;
• she was not warned of these risks;
• the injury she suffered was within the scope of the risks against which she should have been warned; and
• she would not have gone ahead with the surgery, had the proper warning been given.

I deal with the grounds of appeal relating to each of these matters in turn.

What were the complications of which Mrs Paterno should have been warned[81]

290 As I have said, her Honour concluded that because the non-union of bone was not a high risk of the surgery Mrs Paterno's claim could not succeed on the basis that her injury was caused by Mr Hookey's failure to warn her that this might occur. However,

a warning to Mrs Paterno was required which informed her that there is a percentage of patients for whom the effects of nerve damage is permanent, that the risk to her of this occurring was higher because of her age and additionally because she was a smoker, and that although usually nerve damage from this operation resulted in numbness or similar change in sensation, nerves can always react by causing pain.[82]

291 In essence, grounds of appeal 7(a), (b) and (c) contend that her Honour erred in finding that Mr Hookey should have warned Mrs Paterno of the risk of nerve damage which could cause permanent numbness or pain. Her Honour's conclusion on that matter was at least partly based on what she described as Mr Hookey's concession that the combination of Mrs Paterno's age, and the fact that she was a smoker, increased the risk of permanent nerve damage.

292 Counsel for Mr Hookey submitted that her Honour was mistaken in considering that Mr Hookey made this concession. He said that whilst Mr Hookey had said in evidence that both age and smoking were separate risk factors, he had not conceded that the combination of those factors increased the risk of nerve damage. Counsel also said that there was no other evidence which indicated that the combination of age and smoking increased the risk of permanent nerve damage. In particular, counsel referred to Professor David's evidence that smoking had an impact on healing, including the healing of cut bone, but that he did not know whether the risk of nerve damage was increased if the patient was a smoker.

293 Counsel for Mr Paterno submitted that her Honour had correctly taken account of the concession made by Mr Hookey.

294 The relevant passage of cross-examination was as follows.

COUNSEL: You said - her evidence was you said she was a smoker, but it was all right because her general medical health was OK?

WITNESS: Well...

HER HONOUR: Concerned that she was a smoker but ...

COUNSEL: Yes?

WITNESS: I think if you're a smoker your general medical health is not OK.

COUNSEL: Do you deny she - you said the words to her to the effect of her evidence?

WITNESS: I can't remember.

COUNSEL: And when you were asked about what risks you explained, you said in relation to the proposed surgical treatment plan in your answers to interrogatories 'I explained to the plaintiff the following possible risks and complications, healing problems, further surgery, and risk of nerve damage'. In September last year you didn't mention smoking as a factor?

WITNESS: Obviously not.

COUNSEL: And you didn't mention to her the combination of her age and smoking made this high risk surgery, did you?

WITNESS: Not together as a wrapped explanation.

COUNSEL: And it's the package of the two that does make it high risk surgery?

WITNESS: Yes.

COUNSEL: And you didn't warn her of it?

WITNESS: I warned her of either aspect, but the package of the two and the implications thereof.

COUNSEL: It's the package of the two that makes it high risk surgery isn't it? Age and smoking?

WITNESS: Yes.

COUNSEL: And if you were to inform a person so they could give informed consent to the procedure they'd need to know that package?

WITNESS: Yes.

COUNSEL: And you didn't put it in those terms to her at all did you?

WITNESS: No.

295 In my opinion, her Honour was entitled to treat Mr Hookey as having conceeded that the combination of Mrs Paterno's age and smoking habit required a warning that the risks of nerve damage were increased by those factors. It was therefore open to her Honour to conclude that Mrs Paterno should have been warned of the high risk of permanent nerve damage caused by the combination of her age and the fact that she smoked.

296 Even if I have reached the wrong conclusion on that point, there was ample evidence to support the conclusion that Mrs Paterno's age alone required a warning of the increased risks of permanent nerve damage.

297 The fact that older patients were more likely to suffer permanent nerve damage was conceded by Mr Hookey, and was supported by other expert witnesses. In his report to Mr Hookey's solicitors, Associate Professor Jones said that he would tell a patient that the 'downsides' of the surgery included

some numbness to the lips and chin ... The chances of a permanent problem with the numbness to the lips and chin is fairly low and is in the area of 2 to 5% depending upon age, the older the patient the higher the percentage of chance of permanent numbness to the lip ... The time for recovery of this nerve is on average 6 months or so, however it can last for a lot longer period of time, some patients recover earlier and some patients recover later.

298 Dr Taylor said in cross-examination that he agreed with the contents of Associate Professor Jones' report as to the warnings that should be given to a patient about surgery. He agreed that a patient who smoked and was older had an increased level of risk of complications, and that it would be important for such a patient to be advised that this combination increased the risk that the surgery would fail.

299 In his report to Mrs Paterno's solicitors, Mr Carlisle said that it was normal practice for the full range of risks of jaw surgery to be explained prior to intervention. The most common risk of this kind of surgery was nerve damage, which was

in the order of 10% in the best hands. Infection, malunion, nonunion and very rarely as in this lady's case, the process of the damage to the inferior dental nerve on the right side, to a 'neuropathic pain'. In the older person with an edentulous mandible these risks are increased.

300 In cross-examination, Mr Carlisle said that it was highly likely that a patient having sagittal split surgery would have a period of numbness affecting the lip and chin, and that the risk of permanent numbness increased with age, because bone in older people was more brittle, and there was a greater likelihood of bumping a nerve during surgery. He said that any nerve that had been damaged could go on to cause unremitting pain, although an unremitting burning pain was a highly unusual complication.

301 The duty to warn is not confined to common risks. As Kirby J noted in Rosenberg v Percival,[83] it is the patient who ultimately carries the burden of the risks of medical procedures.

Therefore, unless such risks may be classified as 'immaterial', in the sense of being unimportant or so rare that they can be safely ignored, they should be drawn to the notice of the patient. Only then can an informed choice be made by the person who alone, in law, may make that choice, namely the patient.[84]

302 In this case, however, Mrs Paterno assumed the burden of proving that there was a high risk of nerve damage as a result of the surgery. The existence of that high risk was supported by the medical evidence. Her Honour was therefore justified in finding that Mr Hookey should have warned Mrs Paterno of the risk of permanent nerve damage because of her age, regardless of whether the fact that she was also a smoker further increased that risk.

Did Mr Hookey sufficiently warn Mrs Paterno of the risks of the operation?[85]

303 As I have explained, her Honour expressed reservations about Mr Hookey's evidence as to the content of the warning he had given Mrs Paterno, and Mrs Paterno's memory of what she had been told. Her Honour said that even if she accepted that Mr Hookey had warned Mrs Paterno of the risk of nerve damage, he had underrated its consequences.

To compare permanent nerve damage as being like pins and needles in one's foot in the long term, in my view, significantly underrated the significance of the long term effects of nerve damage, even if they were more likely to be altered sensation than chronic pain.[86]

304 Mr Hookey's counsel submitted that her Honour did not make a positive finding that he had failed to warn Mrs Paterno of the risks of permanent nerve damage. Counsel said that her Honour had in fact found Mr Hookey had warned Mrs Paterno of the possibility of nerve damage, though he did not specifically refer to the risk of the rare complication of unremitting pain.

305 Counsel submitted that it was not open to her Honour to find that Mrs Paterno had proved that the warning given by Mr Hookey was inadequate, simply because he had compared the effects of nerve damage to pins and needles in the foot. It was unnecessary for Mr Hookey to warn Mrs Paterno of the risk of suffering unremitting pain as a consequence of permanent nerve damage, because this was an exceedingly rare consequence of such damage.

306 In support of that submission, counsel relied on Professor David's evidence in chief that, although some people suffered numbness caused by permanent nerve damage, most people were able to cope with its effects. In cross-examination Professor David said that unremitting disabling pain was a very rare consequence of sagittal split osteotomy. Similarly, Mr Carlisle had said that although about five per cent of patients having the operation experienced permanent numbness and altered sensation in the mouth and teeth, a sensation of burning pain was 'highly unusual', though it did occur.

307 Counsel said that Mrs Paterno had pleaded that Mr Hookey had failed to warn her of high risk complications of surgery. Counsel said that it was therefore not open to Mrs Paterno to contend that Mr Hookey should have warned her of unremitting pain, which was a very rare complication. The pleading also precluded Mrs Paterno from relying on the fact that unremitting pain was a complication which required a warning because of its severity, even though it rarely occurred.[87]

308 Finally, counsel referred to the need to consider the scope of the duty to warn in a therapeutic context. He relied on Santow AJA's comment in Johnson v Biggs[88] that:

[r]isks are not always calculable but the patient needs the doctor's assistance to make an informed choice. When seeking advice about the risks of an investment, the concern is predominantly with the financial risk of making the investment. On the other hand, a duty to warn in relation to a prospective surgical operation encompasses both a duty to warn of the risks of proceeding as well as the risks of not proceeding, where the patient's physical well-being may be at stake in either case. Those risks need to be put in perspective. They require the clinician's overall assessment of their likelihood and gravity of consequence expressed so as intelligible to the lay patient and responsive to that patient's expressed concerns and questions. The duty to warn, like the duty that attends actually carrying out a surgical procedure, is assessed according to that standard of reasonable care and skill required of an ordinary skilled person exercising and professing to have the relevant special skill ... In assessing after the event the adequacy of a surgeon's warning, it must be remembered that medicine is a science where knowledge is imperfect. It is also an art in which judgment is brought to bear by the doctor, taking proper account of the patient's questions and concerns, in giving the patient the wherewithal to reach an informed decision. Not every detail, or every contingency if of minor consequence, is necessarily relevant or useful if a warning is to be balanced and informative.[89]

309 Mr Hookey's counsel said that when the low risk of unremitting pain was weighed against the desirability of treating Mrs Paterno's jaw malocclusion, it was not necessary for Mr Hookey to warn her of the rare risk of chronic pain or permanent numbness after the surgery.

310 Counsel for Mrs Paterno submitted that, contrary to that submission, her Honour had made a positive finding that Mr Hookey had not warned Mrs Paterno of the risk of permanent nerve damage, and the evidence supported this finding. Even if Mr Hookey had given a warning of some nerve damage, that warning was insufficient because it did not alert Mrs Paterno to the fact that between five and ten per cent of people suffered permanent numbness of the lip or chin, and that in rare cases it could lead to chronic pain.

311 In my opinion, her Honour did find that Mrs Paterno was not warned of the high risk of permanent nerve damage because of her age. This is implicit in her Honour's reference to evidence other than that given by Mr Hookey and Mrs Paterno, and from her comment that she 'did not accept Mr Hookey's evidence in its entirety because it is so heavily reliant on reconstruction'.[90]

312 I agree with her Honour's finding. Although her Honour expressed reservations about the evidence of Mr Hookey, Mrs Paterno and Dr Romano, other evidence supported Mrs Paterno's claim that she was not warned of the risk of permanent nerve damage (as opposed to nerve damage causing transitory numbness). As her Honour noted, neither Mr Hookey's answers to interrogatories nor the written material he said his secretary had given Mrs Paterno suggested she had been adequately warned of the complication of permanent nerve damage.

313 Mr Hookey signed a treatment card indicating that he had 'completed [his obligations]' regarding the treatment and processes associated with it relating to risks and complications, and information regarding costs and treatment sequencing. However, his memory of what he said on that occasion was limited to using the words 'catastrophic' in relation to anaesthetic procedures and 'jaw expansion', and to telling Mrs Paterno to go away and think about the operation.

314 Mr Hookey agreed with Mrs Paterno's evidence that he did not mention the trigeminal nerve or the fact that 90 to 95 per cent of patients have numbness after surgery, at the first consultation. Even if Mrs Paterno's evidence that she did not receive relevant documents is rejected, the tendered version of the document headed 'General Information for Jaw Surgery' did not adequately warn her of the possibility of permanent nerve damage. The section in that document headed 'Complications said only that

[b]leeding may occur up to ten days after surgery and require special treatment. Damage to the nerve in the lower jaw which supplies sensation to the lower lip can occur and this can lead to a feeling of numbness in the lower lip. This is usually only transitory in nature. Some settling of the jaw position after surgery can occur which leads to a change in your bite. These complications will be discussed in detail with you closer to the time of surgery.

315 A careful reader might perhaps regard the statement that nerve damage is 'usually only transitory in nature' as implying that there is a possibility of permanent nerve damage. However, it is not reasonable to expect a patient contemplating surgery to parse a written description of the possible complications in that way.

316 Mrs Paterno and Mr Hookey also disagreed about what was said to Mrs Paterno at the consultations on 30 May 1998 and 8 July 1998, before the operation to lengthen her lower jaw. In her evidence, Mrs Paterno agreed that on May 30, Mr Hookey had discussed the proposed surgery, but said he had not discussed the risks of non-union of the jaw, infection, persistent pain or loss of sensation. She could not recall seeing him again before the operation.

317 Mr Hookey said that although he could not directly recollect the warnings he had given Mrs Paterno on 30 May 1998 and 8 July 1998, he was confident that he had discussed the risks and complications of surgery with her, and had told her there was a one in ten chance of numbness persisting for more that 12 months.

318 I do not accept the submission made on behalf of Mr Hookey that if he had warned Mrs Paterno of the risk of 'nerve damage', that was sufficient to satisfy his duty to warn her of high risk complications. A warning that an operation may cause nerve damage does not alert a patient to its various possible effects. These range from transitory numbness of the jaw and chin, to a five to ten per cent chance of permanent numbness causing dribbling and discomfort, to the rare complication of chronic pain. Her Honour correctly held that the warning given to Mrs Paterno did not sufficiently alert her to these consequences.

Was Mrs Paterno's injury within the scope of the risks against which she should have been warned?[91]

319 Ground of appeal 7(e) contends that her Honour wrongly held that Mrs Paterno's injury was within the scope of the risk against which Mr Hookey should have given a warning.

320 In Rosenberg v Percival, Gummow J explained that two questions must be resolved in deciding whether a plaintiff's injury was caused by a failure to warn of risks associated with treatment. He said that

[a]t the first level, the risk must be related in a physical sense to the injury that was suffered. Thus, a medical practitioner will not be held liable for the failure to warn a patient of a material risk of damage to 'her laryngeal nerve', if the injury that eventuated resulted from a misapplication of anaesthetic. This is so despite the fact that the patient would not have had the treatment and therefore would not have suffered the injury from the misapplication of anaesthetic if the patient had been warned of the risk to 'her laryngeal nerve' This can be seen as an example of a situation where the application of the 'but for' test would lead to an unacceptable result. [92]

321 The second question relates to whether the patient has established that he or she would not have had the treatment which caused the harm if an appropriate warning had been given. I return to that issue below.[93]

322 At the trial, Mr Hookey's counsel contended that it was unnecessary to consider whether he had warned Mrs Paterno of the risks of non-union of the bone or nerve damage as the result of jaw surgery, because the evidence did not show that her chronic severe pain was caused by either of those risks. Her Honour's findings on that matter were as follows:

While I agree that the evidence does not support that Mrs Paterno's chronic ongoing jaw pain was caused by the nonunion of bone, I am satisfied that she had suffered significant injury as a result of it. It is clear that there was in fact nonunion of bone on the right and left sides of her mandible from the sagittal split osteotomy performed by Mr Hookey. Despite some fibrous union, her jaw remained unstable, in a 'bucket handle' effect, after the orthodontic braces were removed. That condition required surgical remedy by fusion, which unfortunately still left her with a permanently misaligned jaw with significant aesthetic and functional detriment, to say nothing of a still imperfect occlusion and worsened morphosis.

In relation to the chronic pain on the right side of her jaw, the defendant argues that the evidence does not support a positive finding that it was due to nerve damage, and that its cause remains vague, with possible psychological aspects.

Mrs Paterno complained of pain on the right side of her jaw very soon after the operation when the effect of local anaesthetic had worn off and as the immediate swelling abated. She had not had such pain before that surgery. By late July Mr Hookey was prepared to prescribe [mersyndol] forte for it, noting that the general condition of the post operative jaw was 'settling' by which he says he was not referring specifically to pain but the overall operation result. By early November [he] had decided to schedule a reopening of the right split site, as a result of her continuing complaints of pain.

Professor David described the proximity of both nerves and major blood vessels in their passage through and near the mandible and their proximity to the area of the operation. His opinion was that major damage to the sensory nerve on the right side of her face and minor damage to the motor nerve on her lower lip were responsible for the pain and numbness respectively.

Associate Professor Jones attributed the hyperaesthesia to damage to the inferior dental nerves, which he notes are anatomically positioned within the jawbone. After examining the plaintiff, he found the lower branches of the trigeminal nerve were not functioning when tested. She had a complete anaesthesia of the left mandible nerve and painful dysesthesia of the right, which would fit in with a diagnosis of anaesthesia dolorosa, which he felt was responsible for her facial pain, although he could not determine exactly whether it was the initial surgery of Mr Hosking or subsequent remedial surgery which caused it. He noted the incidence of permanent anaesthesia and unfortunately dysesthesia associated with this operation increases with increasing age, however the painful dysesthesia is rare.

Mr Ian Carlisle believed that there had been damage to the inferior alveoloar nerve, to which he said there is almost invariably some irritation during the surgery because the process is to split bone on each side of the inferior alveolar nerve. He considered that the bucket handle effect of the nonunion was relevant and said that achieving the union of bone, by the operation he performed, does not necessarily get rid of nerve damage pain. He said 'any nerve that's been damaged can go on and perform and behave in a way that can cause unremitting pain'. He said altered sensation from nerve damage can vary, it can be paresthesia or, in a smaller subset, hyperaesthesia, and although he could not give figures on what proportion would be burning pain as a result, he said it was highly unusual but does occur.

A specialist neurologist, Dr Owen White, was not prepared to say that the plaintiff's pain was clearly neuralgic, largely because when he saw her in July 2001 her complaints of facial pain were diffuse and bilateral, and there had been no offset which would be expected by then. However, he saw her only once, at the request of Mr Carlisle who was still treating her at that stage. I note that despite Mr Carlisle's protracted attempts to alleviate her ongoing pain without success, he still said that he had always believed her complaints of pain to be genuine. In my view Mr Carlisle was in a better position to assess the plaintiff's condition over a considerable period of time, and in this case I would accept his view on the likelihood of nerve damage over that of Dr White, despite his area of speciality, especially as it is supported by the opinions of both parties' 'expert' maxillofacial surgeons.

I am satisfied by these opinions that the severe burning pain to the right side of Mrs Paterno's jaw which developed soon after the surgery of July 1998 was caused by nerve damage. There was some exploration as to whether the continuation of that pain beyond the various remedial operations and for which injections such as those administered by Mr Carlisle and Dr Courtney have provided no lasting relief, may be perpetuated by the process called central nerve sensitisation. Whether that is to be categorised as physically or psychologically caused perception of pain in my view does not matter in this context, because it was a sequel to physical damage to the nerves in the vicinity of the mandible where split on the right side, and if the pain has become intractable through a combination of physical and superimposed psychological features, it is nevertheless factually caused by the damage to the nerve caused in the original surgery.[94]

323 In my opinion, the contention that Mrs Paterno's injury was not within the scope of the risk against which Mr Hookey should have given a warning is hopeless. The learned judge applied the correct test in determining whether Mr Hookey was liable. Her Honour said that Mrs Paterno could only recover for negligent failure to warn if she proved that her injury was caused by the risks in relation to which the warning should have been given.[95]

324 This is not comparable to a case where a patient is not warned of a risk of damage to a nerve, but suffers such an injury from another cause, for example from the anaesthetic. Mrs Paterno was not warned of the high risk of permanent nerve damage causing numbness and, in rare cases, chronic pain. The pain was a foreseeable consequence of permanent nerve damage,[96] which her Honour held Mr Hookey had not warned Mrs Paterno about.

325 Her Honour held that a warning which explained the effects of nerve damage should have been given to Mrs Paterno. She carefully reviewed the evidence about the cause of Mrs Paterno's pain. The finding that the pain was a consequence of nerve damage was supported by the evidence.

326 I was initially concerned by her Honour's comment that the non-union of the bone had caused Mrs Paterno significant injury. Her Honour held that because there was not a high risk of non-union of the bone, Mr Hookey was not required to warn Mrs Paterno of this complication. It follows from that conclusion that if Mrs Paterno's pain was caused by non-union alone, it could not be said to have been caused by breach of the duty to warn.

327 However later in her judgment, her Honour made it clear that she was taking the consequences of non-union into account, not because Mr Hookey had a duty to warn Mrs Paterno about bone non-union, but because 'the defendant failed to adequately warn of nerve damage and the operation would not have occurred if he had'.[97] Assuming that Mrs Paterno proved that she would not have had the operation if she had been adequately warned of nerve damage, I consider that there was a sufficient causal connection between Mr Hookey's failure to warn of the risks of the operation and the effects of bone non-union for the later effects to be taken into account in assessing Mrs Paterno's loss. To paraphrase the comments of Gaudron J in Chappell v Hart,[98] a case which also concerned causation, it would be 'sophistry rather than common sense' to say that Mrs Paterno cannot recover for injury caused by bone non-union arising from an operation she would not have had if she had been adequately warned of the risk of permanent nerve damage.

328 I now turn to the question whether her Honour erred in holding that Mrs Paterno would not have had the operation if she had been warned of the risk of permanent nerve damage.

Would Mrs Paterno have gone ahead with the surgery if the proper warning had been given?[99]

329 These grounds of appeal challenge her Honour's finding that if Mrs Paterno had been adequately warned of the risk of permanent nerve damage she would not have had the surgery. After discussing Mrs Paterno's evidence and taking account of the surgery which she had had in the past, her Honour said that she was satisfied on the balance of probabilities that Mrs Paterno had satisfied that requirement.

330 Counsel for Mr Hookey submitted that her Honour had asked herself the question whether Mrs Paterno would have had surgery if she had been warned of the permanent nerve damage which might result in the rare complication of unremitting pain. In doing so, she had applied the wrong test. The correct question was whether Mrs Paterno would have agreed to surgery if she had been given a therapeutic warning which weighed the risk of nerve damage against the benefits she would obtain from jaw lengthening surgery.

331 Counsel also submitted that, even if her Honour had applied the correct test, her finding on this issue was not reasonably open to her. It was said that her Honour should have given greater weight to the fact that Mrs Paterno had had surgery for other conditions, despite the risks associated with that other surgery, and to Mr Hookey's evidence that he recalled telling Mrs Paterno that an anaesthetic could have catastrophic effects.[100] It was said that her Honour could not have found that a warning of nerve damage would have deterred Mrs Paterno from having surgery if a warning of the catastrophic effects of anaesthesia did not do so.

332 Counsel also submitted that her Honour had not taken sufficient account of the problem of hindsight bias in weighing Mrs Paterno's evidence. In support of that submission, he referred to Kirby J's discussion in Chappel v Hart[101] of the difficulties in ascertaining a particular patient's subjective response if they had been warned of relevant risks. Kirby J remarked that

[t]he subjective criterion involves the danger of the 'malleability of the recollection' even of an upright witness.[102] Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure at all[103] (where it was elective) or for postponing it and getting a more experienced surgeon (as in this case).[104]

333 Finally, counsel submitted that while an appellate court should be reluctant to reverse a trial judge's finding of fact that a person would have gone ahead with treatment even if an appropriate warning had been given, the same constraint did not apply to the reversal of a finding that a person would not have had treatment if they had been warned of the risks of that treatment, where the demeanour of a patient giving evidence was less likely to be important because the patient might genuinely believe that they would not have had treatment in those circumstances. He relied on McHugh J's statement to that effect in Rosenberg v Percival.[105]

334 Counsel for Mrs Paterno submitted that her Honour had correctly considered whether Mrs Paterno would have consented to the treatment plan if she had been aware of the risk of nerve damage and its possible consequences. Once Mrs Paterno proved, on the balance of probabilities, that Mr Hookey had failed to warn her of the high risk of permanent nerve damage, and that she had suffered such damage, the onus shifted to Mr Hookey to adduce evidence showing that the damage was not caused by the failure to warn.[106] He said that even if Mr Hookey's evidence was sufficient to satisfy that evidentiary burden, her Honour was entitled to take account of all the circumstances in deciding whether Mrs Paterno would have gone ahead with the operation, had she received an appropriate warning. These included Mrs Paterno's perception that her presenting symptoms were minor, the fact that she was not seeking treatment for aesthetic purposes, the fact that there were other possible options for treating her malocclusion, and her evidence that she would not have had the surgery if she had been warned of the risk of having a permanently numb lip. Her Honour's finding that Mrs Paterno would not have had the surgery if she had been adequately warned of the effects of nerve damage was therefore open on the evidence.

335 In my opinion, the submissions made on behalf of Mrs Paterno should be accepted. As Kirby J remarked in Chappell v Hart, the dangers of accepting a patient's statement that they would not have had a particular type of medical treatment if an appropriate warning had been given

should not be over-stated. Tribunals of fact can be trusted to reject absurd, self-interested assertions.[107]

336 Further, as McHugh J recognised in Chappell v Hart

once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection . An evidentiary onus then rests on the defendeant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff.[108]

337 It is doubtful whether Mr Hookey satisfied the evidentiary burden in this case. Mrs Paterno's symptoms were minor, and there were other treatments for her condition. However, even if the evidence was sufficient to discharge the evidentiary burden resting with Mr Hookey, her Honour gave adequate reasons for accepting Mrs Paterno's evidence that she would not have had the surgery if she had been warned of the risk of permanent nerve damage.

338 Mrs Paterno was prepared to undergo surgery and orthodontic treatment and suffer some post-operative pain. However, when she was asked in cross-examination why she would have a general anaesthetic which included the risk of heart attack or stroke, but wouldn't take a risk of numbness to her lip, she responded:

I took a risk of an anaesthetic, it's a risk you take, but you don't - I didn't want to take a risk of having any numbness at all because a woman does not want to be numb on the lips.

339 Her Honour had the opportunity to observe Mrs Paterno over the four days on which she gave evidence and regarded her as a credible witness, even when hindsight bias was taken into account.

340 Having regard to the above matters I do not consider that grounds of appeal 6, 7(e), 8 or 9 are made out.

341 As I have said, her Honour awarded Mrs Paterno damages in the sum of $1,057,833. This included $350,000 in general damages, and $412,350 for future expenses after allowing for vicissitudes.[109]

342 Mr Hookey now contends that the award of general damages was manifestly excessive (ground of appeal 13); and that the damages for future medical and like expenses, including attendant care and home help, were manifestly excessive, and made an inadequate allowance for the vicissitude of an improvement in Mrs Paterno's condition (ground of appeal 14). Mr Hookey originally contended that her Honour erred in applying a multiplier of 780 to the cost of ongoing expenses (ground of appeal 15), but has since abandoned that ground of appeal. I deal with grounds 13 and 14 in turn

Were the general damages manifestly excessive?[110]

343 Her Honour described the effects of Mrs Paterno's injuries as follows:

In addition to the five remedial operations and the ultimate result of continuing to experience chronic pain on the right side of her face, the plaintiff has been left with permanent numbness in her lower lip and a structurally altered mouth that still affords her difficulty chewing, and such that at times her ability to speak is distorted. Her strong medication may well contribute to her slurring of words, dribbling and slackness of the right side of her mouth, but there is no doubt that structurally her mouth has been changed, that the lip is numb, and even were she to be weaned from the extent of medication she currently takes, these disabilities will not be fully corrected. She has permanent scarring on both sides of her neck as a result of the surgery in December 1999 by Mr Carlisle and Mr Redman, who needed to approach the mandible from outside and through her skin. The appearance of her face will remain asymmetrical, noticeably extended on the right side compared with the left.

A further enormous effect on the plaintiff has been the side-effects of large and continuing quantities of medication. As a consequence of prolonged use of opiate-based drugs, she has suffered severe bowel side-effects, to the extent of at least twice being hospitalised for those. This has reached a stage where as her husband describes, she needs to counter constipation with substances that cause her to lose control of her bowels while heavily sedated, and she soils her bed regularly.

...

Also of significance has been the quantity of medication which she has needed for various consequences of her injuries. The precise drugs and dosages have been changed over the years, but since at least early 2000 there has been a large quantity of medication to address pain, anti-depressants, and various medications for the gastric complications from other medication.

The effects of her injuries have very dramatically and seriously changed the plaintiff's life. Beyond mere ageing, she presents now as a different person from the one filmed in March 1997, admittedly at a joyous occasion and 'dressed up'. I accept that the overall change has been to impose on her chronic intractable pain, only partially alleviated by large quantities of in itself debilitating medication. She has lost a lot of weight and is physically weakened. I accept that she feels dependent, and at times humiliated by the extent of her reliance on her husband for physical assistance. She has lost all confidence to socialise outside her family, and is described by Dr Lavoipierre as now virtually a recluse, needing constant assistance and also supervision for her pain, depression and anxiety.[111]

344 Her Honour went on to consider the prospect that Mrs Paterno's daily living might be improved by undertaking a pain management program which would reduce or eliminate her reliance on opiates for the purpose of pain management, and have the consequence of relieving the severe bowel complications caused by her opiate use.[112]

345 The learned judge accepted that, under the supervision of Dr Lavoipierre, all reasonable treatment options had been explored and no further curative solutions had been offered or were available.[113] She referred to the evidence of Dr Jane Trinca, a specialist in pain medicine, that Mrs Paterno had expressed an interest in participating in a pain management program at the Barbara Walker Centre, but that the selection process for the program is rigorous and only one in eight applicants are successful. Her Honour considered that there were significant barriers to Mrs Paterno's acceptance into the program, and that even if it were to succeed, the program would give her strategies to deal with her ongoing physical condition and to cope with her pain, but would not cure it.[114] Her Honour referred to Mrs Paterno's bowel problems, psychiatric issues and the need for her to withdraw from her use of morphine before entering a pain management program and concluded that:

[t]hese features, together with the many years of chronic pain and pain management problems, indicate that while a possibility, [Mrs Paterno's] successful rehabilitation through a pain management program is not a probability.[115]

346 The judge awarded Mrs Paterno $350,000 in general damages to compensate her for 'past and likely future pain and suffering and loss of enjoyment of life resulting from her injuries'.[116]

347 Counsel for Mr Hookey argued that the general damages awarded by the learned judge were manifestly excessive, because Mrs Paterno continues to enjoy social activity and her pain is managed by medication. It was submitted that there are treatments available to Mrs Paterno that would overcome the side effects of the opiate medication. Relying on the evidence of Dr Trinca, counsel submitted that if Mrs Paterno was accepted into a pain management program, it was likely that she would reduce or eliminate her use of opiates. It was said that having regard to that possibility, the general damages award should be reduced to an amount in the range of $200,000 to $250,000.

348 Counsel for Mrs Paterno submitted that the learned judge had taken careful account of the pain and suffering and loss of enjoyment of life that she had suffered. Mrs Paterno had sustained the injuries that were the source of her suffering while she was in the prime of her life and very socially active, and, in addition to enduring considerable pain, she had experienced a loss of self-worth. Her Honour had taken proper account of the prospect that future treatment might bring about an improvement in Mrs Paterno's lifestyle.

349 In CSR Readymix (Australia) Pty Ltd v Payne,[117] Winneke P explained the principles which govern appellate consideration of an award of damages for personal injuries made by a judge:

The principles by which an appellate court will be guided in an appeal of this nature are not in doubt. Where it is alleged on appeal that a judge's assessment of damages is manifestly excessive an appellate Court, before it interferes, should be satisfied that the judge has acted on a wrong principle, or has misapprehended the facts or, for these or other reasons, can be seen to have made a wholly erroneous estimate of the damages suffered. It is not enough that the appellate court itself might have awarded a different sum: per Lord Wright, Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-617; Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 at 195-6, per Dixon CJ and Kitto J. It is apparent from such statements of principle that a trial judge, in assessing damages, is involved in the exercise of a form of discretionary judgment and, as such, that judgment should stand unless the appeal court is clearly satisfied that the judicial function has not been duly performed: Minchin v Public Curator of Queensland [1965] ALR 91, per Kitto J at 95-6; Bratovich v Mitchell [1968] VicRp 72; [1968] VR 556 at 557-8.

Notwithstanding the principles to which I have adverted, it remains true that an assessment of damages made by a judge is not as inscrutable as an assessment made by a jury: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369, per Gibbs, J. Unlike the jury, the trial judge is expected to give reasons for the assessment which he makes and, in a case like this where damages are claimed under several heads, it is usually desirable that the reasons should descend to some degree of particularity in respect of each head of damage.[118]

350 His Honour went on to note that in assessing damages for pain and suffering and loss of amenities, the trial judge had the opportunity to observe the injured plaintiff and the effect of the injuries on him or her.[119]

351 I conclude below that her Honour took adequate account of the possibility that Mrs Paterno might be able to reduce her reliance on opiates if she gains acceptance into a pain management program. As her Honour noted, successful involvement in the program could improve Mrs Paterno's quality of life by enabling her to cope better with the pain and relieve her bowel management problems, but will not cure her pain, or the other effects of surgery described above.

352 As her Honour correctly recognised, the jaw lengthening surgery had appalling consequences for Mrs Paterno. The effects of that surgery will continue for the rest of her life. Her Honour did not act on incorrect principle or take a mistaken view of the facts. She carefully explained the reasons for the general damages award that she made.

353 In these circumstances the claim that the general damages were manifestly excessive is not made out.

Was the award for future medical and like expenses excessive?[120]

354 The learned judge awarded Mrs Paterno $412,350 for future medical expenses.[121] That amount included awards for separate expense categories calculated, where appropriate, using a multiplier and adjusted to account for the vicissitudes of life. I will discuss each category in turn.

355 Her Honour accepted that Mrs Paterno is likely to need ongoing psychiatric assistance, and estimated that this would be required on a monthly basis for the foreseeable future. The future cost of psychiatric treatment was calculated at $45,000. Her Honour found that there was only a moderate prospect of Mrs Paterno's need for psychiatric care reducing over the remainder of her life, and reduced the amount by 15 per cent for this contingency, resulting in a total award of $38,250.[122]

356 The cost of future medical and hospital expenses was calculated at $183,000. Her Honour included in this amount the cost of fortnightly visits to both a GP and a gastroenterologist, and of monthly visits to a colorectal specialist. Her Honour also made allowance for an average of one hospital admission per year, as well as pathology, X-ray and ultrasound testing related to Mrs Paterno's bowel and intestinal problems.[123] Her Honour awarded $183,000 for future hospital and medical expenses, but reduced this amount by 30 per cent for vicissitudes, producing a total of $128,100.[124] In particular, her Honour recognised that expenses associated with gastroenterological and colorectal care would be significantly reduced, and possibly eliminated, if Mrs Paterno is able to manage her pain without using opiates.[125]

357 Separate allowance was made for the cost of in-patient detoxification from morphine ($5,500), and of a pain management program ($8,000). The total amount of $13,500 was not reduced for vicissitudes.[126]

358 The learned judge acknowledged the difficulty in assessing Mrs Paterno's likely future pharmaceutical needs on the information available to her. Her Honour was satisfied that her needs are likely to be substantial and ongoing, but said that the future need for morphine and medications relating to her bowel difficulties was uncertain. Her Honour calculated Mrs Paterno's future pharmaceutical expenses at $171,000. In arriving at this amount, her Honour halved the cost of bowel-related medication currently taken by Mrs Paterno, and excluded long-term use of morphine, but recognised that alternate medication may be used in the future. The above amount was reduced by 30 per cent for the possibility that Mrs Paterno's participation in a pain management program might reduce the extent of her pharmaceutical expenses.[127]

359 Finally, allowance was made for physiotherapy and speech and occupational therapy. Her Honour made allowance for intensive therapy regimes over a 12 month period, followed by less regular assistance, but acknowledged that not all of these aspects of Mrs Paterno's care would be addressed through successful completion of a pain management program.[128] In addition, allowance was made for the purchase of a mattress and other equipment, carer time to drive and accompany Mrs Paterno to therapy sessions, home assistance, transport to doctors and attendant care (other than for attending rehabilitation services). A reduction of between 10 and 20 per cent was applied to some, but not all, components of this expense category,[129] resulting in an award of $112,800.[130]

360 Counsel for Mr Hookey did not make detailed oral submissions on the amounts allowed for particular types of future expenses. In essence, his submission was that the amounts awarded for future medical and like expenses were too high because, as was asserted in relation to the general damages award, insufficient allowance had been made for the possibility of Mrs Paterno's withdrawal from opioids. Again, counsel relied Dr Trinca's evidence[131] that Mrs Paterno was a suitable candidate for a pain management program. Reference was also made to Mrs Paterno's own evidence that she was interested in enrolling in such a program, and to Dr Lavoipierre's evidence that he would in the future send her to a pain specialist and cease prescribing analgesics.

361 It was argued that a reduction of 15 per cent for vicissitudes should be treated as an absolute minimum. Counsel submitted that the total amounts awarded by her Honour for medical and like expenses[132] should be reduced to the following amounts:

• psychiatric care: $31,500 (a 30 per cent reduction for vicissitudes, compared with the 15 per cent allowed by her Honour);

• medical and hospital expenses: $91,260 (50 per cent reduction for vicissitudes, compared with the 30 per cent allowed by her Honour);

• pharmaceutical expenses: $85,000 (50 per cent reduction for vicissitudes, compared with the 30 per cent allowed by her Honour after reducing the cost of bowel medication by half); and

• physio, speech and occupational therapy expenses: $75,000.[133]

Counsel submitted that, based on the above recalculated amounts, the total amount awarded to Mrs Paterno in respect of future medical and like expenses should be reduced to $296,260.

362 Counsel for Mrs Paterno said that it was trite law that future expenses must be reduced to account for the vicissitudes of life, and that the 30 per cent reduction applied to the amount awarded for future pharmaceutical expenses adequately accounted for the possibility that Mrs Paterno's condition might improve through pain management strategies.

363 It is necessary to briefly refer to the evidence of Dr Lavoipierre, Dr Trinca and Dr Courtney about the possibility that Mrs Paterno might manage her pain without relying on opiate medication.

364 Dr Laviopierre, a psychiatrist who has treated Mrs Paterno, testified that her pain was unrelenting and caused her anxiety and depression. He said that she had sought treatment at the Royal Melbourne Hospital pain centre, but that the pain management program was 'not efficacious in [terms] of relieving any of her pain, or indeed improving her quality of life'. In cross-examination, Dr Lavoipierre conceded that Mrs Paterno's participation in the program had to be suspended due to gastrointestinal complications. He was, however, doubtful that further pain management treatment would bring about a dramatic improvement in her situation. Dr Lavoipierre considered that it was unlikely that Mrs Paterno would be able to cease her use of opiate medication, though he said he could not predict the future.

365 Dr Trinca, who practices in the area of pain management, gave evidence that Mrs Paterno may be suitable for admission to a pain management program, but said that she was not in a position to make an comprehensive assessment of her suitability. Dr Trinca identified a number of factors which would prevent Mrs Paterno's admission to such a program in the short term, including her depression, as well as her heavy opiate use and related bowel problems. She said that before being admitted to the program, Mrs Paterno would need to withdraw from opioids, and her bowel problems would need to be stabilised to the satisfaction of her gastroenterologist.[134] Dr Trinca said that if she withdrew from the opiates and gained admission to the program, she was likely to have a better quality of life, and her pain level could remain as it is, or improve.

366 Dr Courtney, an anaesthetist and pain management practitioner, saw Mrs Paterno in late 2002, for the purpose of administering ketamine injections to facilitate her withdrawal from opioids.[135] He gave evidence that withdrawal from opiods and the development of pain management techniques improves function and was the 'optimal choice'. He also said that patients who withdraw from opioid use and complete a pain management course sometimes relapse. In Mrs Paterno's case, he said that her long use of opioids may mean that she is less likely to successfully complete a pain management program in the future.

367 Based on this evidence, it was open to her Honour to consider that it was far from certain that Mrs Paterno would be able to manage her pain without using opiates. The extent of the reduction for the contingencies which should have been made in this case is not susceptible to precise mathematical calculation. Her Honour carefully explained her reasons for her value judgments about the reductions to damages awarded for future expenses. In doing so, she did not err in principle and was not mistaken as to the facts. Ground 14 therefore fails.

368 For the above reasons I would dismiss the appeal.

[1] Grounds 11, 12 and 15 were not pursued.

[2] As depicted in photographs taken by Dr Schwartz.

[4] Letter of referral from Dr Romano to Dr Schwartz of 14 September 1997.

[5] Letter from Dr Schultz to Dr Romano of 14 March 1997.

[7] Based partly on his notes, partly on memory and partly upon his practice.

[8] The transcript reads 'manuscript', but that is not likely to be correct.

[9] Although he said that he did not use the expression '95 per cent of patients'.

[15] Rees v Bailey Aluminium Pty Ltd & Anor [2008] VSCA 244 [21] (Ashley, Redlich JJA, Coghlan AJA).

[19] [1992] HCA 58; (1992) 175 CLR 479, 487.

[21] [2001] HCA 18; (2001) 205 CLR 434, 441 [16].

[22] [2000] NSWCA 338, [53].

[23] See Chappel v Hart (1998) 195 CLR 232, 247-248 [34] (Mc Hugh J) and [93(7)] (Kirby J).

[24] Ibid [34]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 462 [88].

[27] A lateral cephalogram is a film on which orthodontic treatment, dental treatment or corrective jaw surgery can be planned.

[28] The letter was copied to Dr Romano.

[32] See [256]-[271] below.

[34] See [137]-[138] above.

[36] Dr Taylor was an expert witness called by Mr Hookey.

[37] This evidence related both to Mrs Paterno's condition when Mr Hookey saw her at the first consultation, and to the explanation he said he had given to Mrs Paterno.

[42] NSWCA (30 August 1995), BC9505263.

[43] Ibid 12-13; see also 11 (Mahoney JA).

[44] [1992] HCA 58; (1992) 175 CLR 479.

[45] [1957] 2 All ER 118 ('Bolam'); see also Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] UKHL 1; [1985] AC 871. Note that there had been some restatement of the Bolam test in England: see Bolitho (Deceased) v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232, 241-3 ( Lord Browne-Wilkinson).

[46] [1992] HCA 58; (1992) 175 CLR 479, 487 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

[49] See Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 562-3 (Reynolds JA); E v Australian Red Cross Society & Ors [1991] FCA 20; (1991) 27 FCR 310, 360-361.

[50] Rogers v Whitaker (1992) 173 CLR 479, 489.

[52] Ibid 493. See also Breen v Williams (1995) 186 CLR 71, 114 (Gaudron and Mc Hugh JJ).

[53] [2001] HCA 18; (2001) 205 CLR 434, 453-454.

[54] Rogers v Whitaker (1992) 173 CLR 479, 487.

[57] Ibid 489-490 (emphasis in original).

[62] [1999] HCA 22; (1999) 197 CLR 269.

[63] Ibid 275. See also 285-286 (McHugh J) and 297-298 (Kirby J).

[64] See [294] below.

[65] See [225] above.

[66] NSWCA (30 August 1995), BC9505263.

[67] Ibid 11-12 (Mahoney JA); see also Kirby P's comments on this issue in Lowns v Woods NSWCA (5 February 1996) BC9600091, 8.

[70] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 490 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

[72] This included a dental procedure, an operation for bunions and the removal of nodules from her thyroid, and a hysterectomy.

[77] Ibid [71]. As to hindsight bias, see [79].

[81] Grounds of appeal 7 (a), (b) and (c).

[83] [2001] HCA 18; (2001) 205 CLR 434.

[87] See the comments on this issue in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 458 ( Gummow J).

[88] [2000] NSWCA 338, BC200007233.

[92] [2001] HCA 18; (2001) 205 CLR 434, 460.

[93] See [329]-[340] below.

[96] Cf Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, 461 (Gummow J).

[99] Grounds of appeal 6, 7(e), 8 and 9.

[100] Note also that the 'Dental Implants' brochure said that 'a few people have may have a serious reaction to an anaesthetic'. There was dispute about which documents were given to Mrs Paterno at the first consultation with Mr Hookey.

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

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

[104] Chappel v Hart (1998) 195 CLR 232, 272.

[105] [2001] HCA 18; (2001) 205 CLR 434, 444.

[106] Chappel v Hart (1998) 195 CLR 232, 273 ( Kirby J), 257-258 (Gummow J).

[109] The balance of $295,483 comprised $127,050 for Mrs Paterno's husband's carer services and $168,433 for medical and like expenses to date (less savings in alternative dental treatment).

[117] [1998] 2 VR 505.

[118] Ibid 508. See also Murphy v Mark [1977] VicRp 38; [1977] VR 316, 320.

[119] Ibid 508-509. See also Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 616-7 (Lord Wright); Moran v McMahon (1985) 3 NSWLR 700, 723 (Priestley JA), 726-7 (McHugh JA).

[131] See [347] above.

[132] Excluding the amount awarded for inpatient detoxification from morphine and a pain management program, which was not challenged on appeal.

[133] Counsel did not explain the vicissitude reduction that was applied to each of the amounts which comprise the total award made in respect of these expenses.

[134] In this respect, I note that Professor Peter Gibson, Director of Gastroenterology at Monash University, has recommended surgical intervention to better manage Mrs Paterno's constipation.

[135] As a result of this treatment, Mrs Paterno was able to withdraw from opioids for a period before her pain increased again.