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(a) Was the appellant in breach of his legal duty to the respondent by failing to warn her that, in proceedings to remove the tooth, there was a risk of infection which could have grave consequences or otherwise by failure to give the respondent an appropriate warning?

(b) If so, was the plaintiff’s damage caused thereby?

4. The appellant is not to be bound by his admission that any warning should have been given to the respondent.

5. The respondent is to pay the costs of the appeal.

6. The costs of the previous trial are to be costs in the cause.

IN THE SUPREME COURT OF THE ) No. ACTCA 29 – 2003

) No. SC 76 of 2002

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: KAI HUEN

Appellant

AND: CHRISTINE JOY HYLAND

Respondent

Judges: Higgins CJ, Gray and Madgwick JJ

Date: 19 April 2004

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal by a dentist against a judgment against him for damages for negligent treatment of a patient. It is convenient to refer to the appellant and the respondent respectively as the plaintiff and defendant. The appeal is only as to liability and he does not challenge the learned trial judge’s substantial assessment of damages. The issue presents as one of the causative effect of a failure to warn the patient of risks inherent in a tooth extraction. However, an examination of that issue raises other issues.

A nurse needs a tooth extracted

2. At material times, the plaintiff was an experienced registered nurse. On or about 19 February 1996 she developed pain in the left side of her face, which became severe, and sought an appointment to see her usual dentist. The latter’s receptionist told her that he was not available but that the defendant, a locum tenens, was. She inquired as to the defendant’s abilities and was told that he was a capable dentist. She was given an appointment for 21 February 1996. The pain thereafter increased. Before seeing the defendant, however, the plaintiff had no difficulty in fully opening her mouth, no clicking in the joint of either jaw and nothing to indicate to her that she had any fever in any part of her body.

2.3. At the dental surgery on 21 February, the plaintiff filled in a questionnaire before seeing the defendant. So far as it went, it indicated no relevant history of health abnormality except in relation to her teeth. The questionnaire did not ask about infections generally or any of the common symptoms of a fever.

2.4. When the plaintiff saw the defendant, she told him of her toothache. He examined her and took an x-ray of her teeth. The x-ray did not include a view of the roots of her upper third left molar (the left wisdom tooth) nor of the teeth adjoining it. The defendant told the plaintiff that the tooth was “quite decayed” and should be removed.

2.5. The plaintiff had an engagement of a religious nature at her daughter’s school and a social appointment of importance to her. She told the defendant she was busy that day and had a few things to do; she told him their nature. The defendant told her that the tooth needed to come out. She agreed that that should be done forthwith. The defendant extracted the tooth. The plaintiff believed that the defendant used excessive force and had mechanically injured her temporomandibular joints (“TMJ”).

2.6. Before the procedure was undertaken, it was common ground that the defendant gave the plaintiff no information, either orally or in written form, of any risk that might be associated with the procedure. The defendant then removed the tooth under a local anaesthetic. After the procedure, the defendant gave the plaintiff a form containing written advice on “HOME TREATMENT FOLLOWING DENTAL EXTRACTION”. It contained the following relevant material:

“below are steps that you can follow to reduce pain, bleeding and promote healing.

…

contact your dentist if you have any concerns.”

Events following the extraction

7. The next day the plaintiff could not “open her mouth enough to eat a cheeseburger” and she had pain. On 26 February, five days after extraction of the tooth, she saw her general medical practitioner Dr Langtry, who understood that the complaint was of left ear pain and prescribed antibiotic medication. That doctor considered that there might be a “dental problem”. The plaintiff denied in her evidence in chief that she then had any “fever or raised temperature”. Two days later she saw another dentist, Dr Labour, because the pain and inability to open her mouth properly had continued. By that time her jaw was clicking. Dr Labour initially prescribed anti-inflammatory medication, followed by intra-oral splinting. 7.8. On 8 March the plaintiff consulted her brother Dr Madden, a medical general practitioner, because of worse pain and spasm in a facial muscle. In April her brother referred her to Dr Vickers, an oral and maxillary facial surgeon. 7.9. Dr Vickers unsuccessfully treated the plaintiff by manipulation of the jaw joints under general anaesthetic. His investigations, including an MRI scan, established bilateral disc displacement within the TMJ and on 1 May 1996 he performed an arthrocentesis (the injection of cortico steroid materials into the joint spaces) on both sides of Mrs Hyland’s face. 7.10. Pausing in the narrative, the reports of Drs Langtry, Labour and Madden indicate nothing suggestive of negligence on the part of the defendant. Dr Vickers’ report said: “In discussions with Dr. Kai Huen and Dr. Gilbert Labour and perusal of their notes it is apparent that Mrs. Hyland has been treated appropriately by the initial dentist who extracted the upper left wisdom tooth. There is no evidence to support that the treatment by Dr. Huen was inappropriate, and indeed there is also no evidence to indicate the connection between the upper left wisdom tooth and her temporomandibular joints.”

8. The plaintiff’s symptoms continued. Dr Vickers referred her to Dr Egan, an expert in preventive dentistry and the relationship of the functioning of the teeth to the health and function of the TMJs. 11.12. Dr Egan reverted to conservative measures – splinting, analgesics and physiotherapy. More importantly, for present purposes, he was struck (as is the lay person) by the coincidence, on the plaintiff’s accounts, of the defendant’s removal of her tooth and the onset of the TMJ difficulties. Dr Egan went on to become, indeed, the plaintiff’s champion, going so far as to ask Professor Norman, of whom more below, to reconsider his opinions which were adverse to the principal way in which the plaintiff framed her case, namely, as one of mechanical injury to the TMJs occasioned by the defendant’s use of allegedly excessive force in removing her tooth. In February 1997 Dr Egan referred the plaintiff to Dr Peppitt, who specialised in the conservative management of TMJ problems and shortly after to Prof Norman. 11.13. Prof Norman, who was called at trial by the defendant, on 4 June 1997 performed an osteoarthrectomy for the plaintiff’s intra-articular TMJ ankylosis (the condition of immobility within the joint cavity). The expert opinions

9. In the first of his reports which was tendered, a report to the plaintiff’s solicitors, Prof Norman said: “The question has been put as to whether or not this may have been the result of physical trauma due [to] an allegedly traumatic extraction. … It is the writer’s belief that physical trauma was most unlikely to have been the cause.”

10. Prof Norman continued: “It is possible for a suppurative arthritis to give rise to such an intra capsular ankylosis and one might hypothesise that the extraction of an infected (repetition infected) tooth may be sufficient to cause a bacteraemia and subsequent infection of the joint. You will appreciate that this may be drawing a rather long bow and in the absence of all the clinical records, both dental and medical, the writer is not in a position to develop this further and his major concern is the progress of the patient following the arthroplasty and what treatment, if any, may be required in the future. Suffice to say that the trips to Sydney and the MRI scan and the operation clearly identified what the problem was. It has not clarified to the writer’s satisfaction that it was the result of suppuration although you will appreciate that intra articular sepsis may have occurred following a dental extraction of an infected tooth and this extraction giving rise to the infection within a joint. The question is, did Mrs. Hyland have a febrile illness immediately prior to or following the extraction and was she given a course or courses of broad spectrum antibiotics in the post operative extraction period by her general medical practitioner. Are you able to obtain that information?” (emphasis added)

11. The doctor further expanded his views in a report of 10 December 1998. “I refer to recent correspondence regarding your client and the discussions enjoined with Mr. & Mrs. Hyland during the course of the recent consultation.

It is not the writer's belief that excess force during the extraction of an upper third molar tooth would have given rise to a temporomandibular ankylosis and this referring to the ankylosis between the ball of the jaw joint and its socket in the temporal bone. It is, however, possible that a septic arthritis arose from that extraction. To establish the nexus it would be necessary to ascertain from the patient’s general medical and dental practitioners whether or not there was any episode of pyrexial illness in the 2-14 days post extraction. The figure 14 days is arbitrary, of course, and you will appreciate that an initial bacteraemia may have been caused during the extraction of the tooth with dental forceps. There is no departure from accepted practice in causing such a bacteraemia and it happens with frequency and the majority of extractions are not complicated by either local or distant infection. It is improbable that subsequent alveolar osteitis or dry socket would have given rise to such a bacteraemia unless there was instrumentation of the socket.

It is the writer’s understanding that following the extraction of the upper molar tooth under local anaesthesia (the correct method) the patient developed, on or before the 23rd February, an ipsilateral otalgia which she described as an incredible earache. She felt unwell and was ‘crook at work’. She apparently consulted Dr. Mary Langtry seeking advice as to whether or not there was an infection present and at that stage was complaining of pain in the left maxilla radiating to the left ear. It is understood that she was not febrile. Augmentin Forte (an excellent choice) was prescribed by Dr. Mary Langtry and she was referred to Dr. Gilbert Labour, dental surgeon, in Mawson, ACT. He did not believe that there was an infected socket and apparently advised her that the antibiotic might be ceased. She was at that stage complaining of ‘a tight mandible and problem with jaw’ and it is understood that an occlusal splint was prescribed.

She also indicated jaw muscle spasm giving rise to trismus and consulted Dr. Madden who prescribed a benzodiazepine (Valium) which was ‘not much help, off the planet’. Thereafter, she consulted Dr. Gilbert [Labour] again in regard to the prescription of the small occlusal splint (‘proper’ splint).

…

In due course, she came under the writer’s care and underwent a left temporomandibular arthroplasty with resection of the ankylosis. That operation was carried out on 05JUN1997 and the writer provided the following information to the consultant pathologist, Dr. Fiona Bonar:

‘Dear Dr Bonar, A long history of left temporomandibular joint pain with decreased range of movement, extension and flexion 14mm gape. 14kg weight loss, now 62kg. Joint pain ++ and locking, failure of excellent conservative therapy and temporomandibular arthroscopy. Dr Shnier’s first class MRI shows secondary OA in left jaw joint. Now joint space and no normal disc extant. Your usual and fastidious opinion please doctor. Thickened synovial membrane “cartilage”. No loose bodies per se. ? para-articular chondroma with ankylosis.’

The writer encloses a copy of Dr. Bonar’s valued report which confirmed advanced degenerative arthritis/osteoarthritis et hoc genus omne. The final diagnosis – ‘Advanced osteoarthritic change with synovial fibrosis and extensive fibrocartilagenous metaplasia (in ankylosis clinically)’. Please be advised that Dr. Bonar has, inter alia, a catholicity of experience in bone and joint pathology.

The question arises as to whether the physical trauma of the extraction of an upper molar tooth under local anaesthesia in an adult woman would give rise to an ankylosis and the writer is unable to provide you with an explanation as to how this might occur and it would appear to be improbable in the extreme.

The possibility of a low grade septic arthritis giving rise to an ankylosis is a different matter and there are no shortage of cases in the literature showing a septic joint arising out of an isolated locus or focus of acute infection giving rise to a bacteraemia (i.e. a shower of micro-organisms in the blood stream).

The writer must advise you that the nexus might be considered tenuous by some and much will depend on the clinical notes and the opinions of those doctors and dentists that examined Mrs. Hyland in the fourteen days following the extraction of that tooth. Was the tooth infected, had she complained of pain (toothache) to her dentist (or her doctor) for days or weeks and was the extraction relatively straightforward, was there any associated acute or chronic abscess associated with the tooth root and was there any exodus of pus from the socket following the extraction? These are matters that the dental and medical practitioner will comment upon and it is appropriate for you to obtain reports from Drs. Mary Langtry and Michael Madden in addition to Dr. Noel Egan and Dr. Peter Vickers (records and detailed correspondence to various practitioners concerned in her care) … write to his co-workers in the practice in Canberra.” (emphasis added)

17. There was, it was common ground, no medical evidence, apart from Prof Norman’s interpretation of events (see [21] below), of any of the crucial indicia of an infection of the kind Prof Norman appears to have viewed as relevant. 17.18. In a third report, after hearing from Dr Egan, Prof Norman said: “I refer to your recent correspondence regarding your client and the medical and dental opinion bearing date 10 December 1998 which you hold on file. On the writer’s return from working and lecturing in Iran, he received a letter from Dr Noel J Egan, MDS,FRACDS,FICD (dental surgeon) relating to this matter and reflecting on a copy of the report about which you had apparently sought his opinion. In his letter, my colleague and former classmate suggested that ‘you basically suggest that there is a high probability that the disturbance to Christine’s joint was subsequent to an infection which was transmitted at the time of the extraction. This is an occurrence which I believe you indicate to be not unusual’

The writer would respectfully suggest that you and his colleague refer to that earlier report where the writer stated:

‘It is however, possible (not highly probable) that a septic arthritis arose from that extraction’

In regard to the observation that the writer believed this to be ‘not unusual’ your attention is drawn to the concluding paragraph at page 3 relating to the possibility of a low grade septic arthritis giving rise to ankylosis (secondary to a septic joint). This is a statement relating to joints in general and now the jaw joint in particular. The writer has qualified his statement at page 4 and stated, inter alia:

‘The writer must advise you that the nexus might be considered tenuous by some and much will depend on the clinical notes and the opinions of those doctors and dentists that examined Mrs Hyland in the fourteen days following the extraction of that tooth’

In essence therefore, Mr Faulks, the writer at no stage suggested ‘a high probability’ or, ‘you indicate to be not unusual’. (emphasis in the original)

19. Thus Prof Norman did not wish to be understood as saying that a possible infectious cause of the TMJ arthritis was not unusual. There would therefore appear to be no basis in his reports for concluding that an occurrence of that kind was clinically common, even though there was no shortage of such cases “in the literature”. 19.20. In his oral evidence Prof Norman said that “since the advent of antibiotics trauma is the major cause of osseous ankylosis. Prior to 1940 sepsis was the major cause …”. Prof Norman was adamant that the plaintiff’s condition was not caused by trauma. The sort of trauma necessary would be “massive” and of the order that would produce a frank compound fracture. He went on to say that “I believe that it [the cause] was sepsis”. This was because the plaintiff had no symptoms of TMJ dysfunction or pain before the defendant’s extraction of her molar. He said that Dr Bonar, a “renowned” pathologist had, in discussion with him, said that infection could not be ruled out: “it was either longstanding osteoarthritis or burnt out disease from infection”. In Prof Norman’s view, the infection probably arose from a bacteraemia: “… any extraction of a decayed tooth is usually associated with a bacteraemia, the presence of bacteria, in the circulating blood … [the tooth is] not far from the back of the tuberosity. The bugs just need to hop across in that venous plexus and so forth across to the jaw joint. It’s not far for them to move”. 19.21. The cross-examination of Prof Norman by counsel for the plaintiff consisted firstly of a vigorous effort to discredit his infection theory. To counsel’s point that “no doctor who treated Mrs Hyland had diagnosed any such [febrile] illness”, Prof Norman responded that, despite that, Mrs Hyland had said that her toothache was accompanied by her feeling “cold and very unwell”. Counsel moved to the possibility of a much later onset of infection, namely during the injection of the steroids into the joint by Dr Vickers (see [9] above). 19.22. The following exchanges then occurred: “…and of course in performing an arthrocentesis infection could be introduced to the joint without any departure from perfectly normal and proper medical practice, correct?---Yes, and its for that reason that I always cover my patients who are undergoing arthroscopy or arthrocentesis with an antibiotic.

Well there’s no evidence of that occurring in this case, doctor, but ---?--- Which I am greatly criticised.

…Your opinion, of course, is based upon, to a large extent, what you found at operation and the histopathology report? --- Yes, because I am the only person, Mr Stretton, that’s seen inside that joint.

Yes, and if infection had have been introduced or occurred in the joint at the time of the arthrocentesis, there would have been no difference in what you saw, or in the histopathology report, compared to infection introduced at the time of the extraction? --- I accept that, I have no quarrel with that.

Now, if we accept that there was no evidence of a febrile illness at or about the time of the extraction, is it not more probably that the – if as you hypothesise, it was infection that caused some of the – or the major damage, that it’s more likely that that infection could have been introduced unwittingly at the time of the piercing of the joint in the arthrocentesis process? --- Look it is possible, and didn’t I advert to that earlier, when your friend was asking me?

You may well have professor, and because I suggest to you the piercing of a joint, or the introduction of an instrument of some kind into the joint is quite often associated with infection, subsequently? --- No, no.

Or can be associated with infection? --- No, I don’t accept that.

No? --- An infection may follow arthroscopy or arthrocentesis or an intra-articular injection of local anaesthetic or cortoid ..(indistinct) …

Right? --- But this is not – in Australia this is not common because Australian doctors, surgeons and physicians, rheumatologists, use an aseptic and careful technique, and because the materials that we are using are, thanks to the standards association and so forth, of high quality.

Yes, but you agree with me that there is a possibility of some infection having occurred? --- Yes, of course the possibility but not frequently.”

23. It seems an inescapable inference from Prof Norman’s reference to his being “greatly criticised” that, even when a surgical instrument is to be introduced actually inside a TMJ with a consequent, generally medically accepted risk of infection, there is a body of expert opinion which counsels against “covering” a patient with (i.e. requiring or advising the administration of) an antibiotic. 23.24. The remaining piece of presently relevant medical evidence is that of Dr Peppitt. In his report of 4 November 1999 he said: “There are a number of issues that need to be explored in relation to this case:

24. The Extraction

It is accepted clinical practice that a radiograph showing all of the root structure is taken prior to extraction of the tooth. This was not done in this case however, the tooth was extracted whole and evidently without too much difficulty (a few minutes).

2. Trauma to the Temporomandibular Joint

Any extraction requires force and it is highly possible that the force applied to the jaw initiated Mrs Hyland’s subsequent problems. Certainly in the history a cause/effect relationship exists.

Subsequent trauma to the joint occurred in the manipulation under anaesthetic (MUA) by Dr Vickers and arthrocentesis by Dr Cooper.

3. Infection into the Joint

Dr Norman, in all correspondence sent to me directly 8th April 1997; 13th May 1997; 5th June 1997 and 2nd July 1997 and in all my conversations with him even during the surgical [procedure], did not mention the possibility of infection subsequent to extraction as being a possible cause of the joint problem. In his report of the operation (5th June 1997) he gives three possible differential diagnos[es], mentions trauma however, does not mention injection.

Hypothetically there are two possible modes of introduction of an infective agent into the temporomandibular joint in Mrs Hyland’s case:

A. Subsequent to the extraction somehow through the tissue planes in the maxilla to the joint – I think it is more likely that the maxillary sinus would be affected however, will accept Dr Norman’s advice that it is common. I have not witnessed this in 17 years of conservative management of the temporomandibular joint.

A.B. Direct introduction via an infected needle in either the arthrocentesis or surgical manipulation under anaesthetic (if the joint was injected at that time).

4. Failure to Warn

A. If infection is as common as Dr Norman indicates as a [sequelae] of upper wisdom tooth removal there is a definite failure to warn. (emphasis added)

B. All extractions should warn of pressure to the jaw, teeth, bone and tissues.”

25. In a letter to the plaintiff of 14 September 1999 Dr Peppit also said: “Dr Norman also believes that the extraction and subsequent infection have caused your problem. I can’t agree that this is the mode of the effect and would have preferred direct trauma to the joint as being the most likely cause. Infection causing temporomandibular joint problems is, in my opinion as a conservative manager of temporomandibular joint problems, a rare occurrence and in my 17 years of clinical practice in this field I have not witnessed it.

Dr Norman feels that ‘There is no departure from accepted practice in causing such a bacteraemia and it happens with frequency…’ I can’t agree with this statement in my experience. In any case (hypothetically) if this is a common situation surely the Dentists, Doctor and Oral Surgeon you saw after the problem arose would have provided it as part of their provisional diagnosis and (original emphasis) why did the original dentist fail to warn you of such a common occurrence as a possible problem with extraction?” (emphasis added except where otherwise indicated)

26. In light of the medical evidence the learned trial judge said: “ The plaintiff pleaded her case against the defendant on two grounds. The primary case was based on an allegation of excessive force being used. The secondary basis was of a failure to warn of a risk of infection from the removal of a badly decayed tooth. This secondary ground assumed significance in the case because the defendant's principal expert, who was the plaintiff's treating specialist, strongly disagreed that the type of force used to extract a tooth could damage the temporomandibular joint, and expressed the view that the most likely cause of the damage to the joint was an infection caused by the release of a ‘shower of bacteria’ when the badly decayed tooth was extracted. The plaintiff gave evidence that had she been advised of a risk of damage from infection by the badly decayed tooth, she would have sought antibiotic cover. The plaintiff is a trained nurse.’

The trial judge’s reasoning

27. His Honour found that the plaintiff was a witness of truth but considered that, to some extent, she had misremembered events in the defendant’s surgery, and that the degree of force used by the defendant was not as great as she recalled. Further, his Honour accepted, as he was well entitled to do, the evidence of Prof Norman and Dr Vickery that, as his Honour put it, it was “not possible to cause damage to the TMJ by applying force in extracting an upper molar”. 27.28. His Honour continued: “It follows that, even though I am satisfied that the defendant should have ensured that an x-ray of the root of the tooth was taken before the extraction, this negligence was not the cause of her present difficulties.”

28. His Honour then turned to Prof Norman’s infection theory, which had been denied by Dr Peppitt (and also by Dr Bonar). On this matter his Honour concluded: “Despite this evidence being le[d] in the plaintiff's case against the theory that the jaw damage was caused originally by bacterial infection, Mr Crowe submitted for the defendant that on all of the theories as to the original cause, bacterial infection was the most likely, and given Professor Norman's eminence in the field of jaw disorders, on all of the evidence I am satisfied, on the balance of probabilities, that the original cause of the jaw disorder was a bacterial infection flowing from the breaking up of what Dr Huen described as a very decayed tooth. Professor Norman described the extraction and breaking up of a decayed tooth as creating a "shower of bacteria" which could set up an infection which within 24 to 36 hours could cause the damage which he observed on operation to the plaintiff's jaw, and I am satisfied that this is the most probable cause of her infection.”

29. His Honour continued: “Having established this to be the most likely outcome, the question remains whether the defendant was in breach of his duty of care in failing to warn the plaintiff of the risk of infection, and whether the failure to warn caused the problem. Mr Crowe conceded, properly, that if Professor Norman's evidence is accepted, which he said it should be, it would follow that failure to warn would be made out. I would add that the need for a warning of infection must be greater in a case such as this, where Dr Huen described the tooth as very decayed, and where he did not have an x-ray of the root of the tooth. The real issue in this case was that of causation. “

30. With respect it is by no means clear that, if Prof Norman’s evidence be accepted, a case of negligent failure to warn would thereby be made out. 31.32. In any case, one would think it is likely to be relevant to determine just what kind of warning should have been given to the plaintiff. This plaintiff was an experienced and trained nurse. The plaintiff’s evidence as to what she would have done if warned about infection

31. The plaintiff gave the following evidence in chief: “As far as you can recall prior to that procedure were you given any antibiotic cover? --- No.

By that I mean prior to the procedure were antibiotics recommended? --- No.

And prior to the procedure with Dr Huen, back in February, was any antibiotic cover recommended? --- No.

If Dr Huen had told you on the day he extracted [the] tooth, before extracting it, that there was a risk of infection would you have gone ahead with the procedure then and there? --- No.

What would you have done or asked for? --- Antibiotic cover.

As nurse, you were fully aware, I take it, of the availability of such cover before a medical procedure? --- Yes.

If Dr Huen had have told you that there was a risk with the extraction procedure, that you might suffer damage to your cartilage and temperomandibular joint, would you have proceeded with the extraction by Dr Huen on that day? --- No.

Why not? --- Not to risk any complications.

What would you have done, do you believe, had you been told of that possible complication? --- I would have asked for somebody that actually specialises in removal of teeth.”

34. In cross-examination the following exchanges occurred: “Now what about the wisdom teeth, do you remember when they were taken out? --- When I was about 19 – 18-19, and it was at the Woden Valley Hospital

All right. Were they all taken out in the one procedure or were they separate procedures? --- They were two different procedures.

Had you been having pain as a result of the – a problem with your wisdom teeth? --- Yes

And were they taken out just with a local anaesthetic? --- Yes.

I take it you weren’t given antibiotics for those procedures? --- I was.

You were given antibiotics were you? --- Yes

Was that because you had an infection? --- Yes

By the way, you had commenced your nursing training immediately after leaving school, is that correct? --- Yes. Yes.

So you were actually still in training as a nurse, were you, at the time when these procedures were carried out? --- Yes.

And I take it that in the course of your training, and indeed your experience as a nurse, you’re well aware that infection is a risk with any sort of surgical procedure? --- Yes.

Any sort of surgical intervention? --- Yes.

So you well knew that there was some risk of infection even with a tooth extraction? --- Yes.”

…

… you’ve said in your evidence that if you’d been given certain warnings you might have done something different, remember saying that in answer to some questions by Mr Stretton? --- Yes.

The reality of course Mrs Hyland is for example you well knew that there was a risk of infection with this extraction? --- Yes.

You’ve said that, you didn’t request antibiotics from anybody did you? --- No.

So if Dr Huen had said to you ‘Well there’s a risk of infection with this procedure’ it would have made absolutely no difference to your agreement to undergo the procedure would it? --- Yes.

I’m having some difficulty in following that. You’ve already said that you knew there was a risk of infection? --- Yes.

You didn’t need to be told, did you? --- No.

You’re a nurse? --- Yes.

You know there’s a risk of infection with any interventionist procedure? --- Yes.

It’s not, I want to suggest to you, common or even the done thing to give people antibiotics just in case is it? --- Prophylactically, yes.

For every sort of interventionist procedure? --- No, no.

Indeed it’s very rare – I withdraw that – there is some real reluctance to prescribe antibiotics willy-nilly isn’t there? --- Yes.

Because of the development of resistance? --- M’mm.

You don’t seriously tell this court do you that if Dr Huen had said to you in the course of talking about the extraction, ‘This tooth needs to come out, of course you’re aware that there’s some risk of infection’ that you would then have said ‘Well I want antibiotics’? --- No.

Similarly, you didn’t need to be told, I want to suggest to you, that there was a risk that there would be some pressure applied to the region of your head in the course of pulling the tooth out, extracting the tooth, you knew that didn’t you, you’ve already said you did you see Mrs Hyland, are you seeking to change that? --- No.

So that if Dr Huen had said to you ‘Well the tooth needs to come out and of course you will feel some pressure and I will need to apply some force to the tooth to remove it’ that wouldn’t have changed anything would it, as a matter of common sense? --- Yes.

Well, you knew it, didn’t you? --- Yes.

So what difference would it have made if Dr Huen had told you what you knew? --- No, that isn’t what I’m talking about.

Is what you’re talking about that if you’d known that there was a risk that you might go on to develop an ankylosis of the left [temperomandibular] joint, that then you would’ve perhaps sought somebody else to do the procedure? --- Yes.”

The case put to the defendant in cross-examination

35. After the plaintiff gave evidence, the defendant was cross-examined to suggest that his reliance on the plaintiff’s general appearance of wellness and the absence of any warning of infection from the questionnaire (which appears not to have been designed to discover a history of infection) was insufficient. Thus, the plaintiff through her counsel was advancing, as an alternative to her principal hypothesis, the use of excessive force causing mechanical damage to the TMJ, a case that there was insufficient investigation of the question of possible infection. The defendant denied there was anything lacking in what he had done, as a matter of proper practice. It was further suggested that what the defendant should have done was to take an x-ray that included a view or views of the roots of the tooth. However, the context suggests that the criticism of failure to x-ray the roots was aimed at the defendant’s failure to ascertain, before operation, whether the shape of the roots would necessitate more than usual “resistance” to the tooth’s removal by the defendant; in other words, it was a criticism in aid of the principal hypothesis of mechanical damage. 35.36. It is noteworthy that the defendant was not cross-examined as to his not having warned the plaintiff of the risks of infection. Consideration

36. Nevertheless, the defendant by his counsel made the concession to which his Honour referred and his Honour did not err in relying on it, notwithstanding that the concession seems to have stemmed from some misunderstanding of Dr Peppit’s evidence. 37.38. The difficulty is that there has been no finding as to what form the warning should have taken. No doubt it is to be inferred from counsel’s concession that the warning not given was the requisite warning. What constitutes a requisite warning was laid down in Rogers v Whittaker (1992) 175 CLR 479 at 490: “We agree that the factors referred to in F v. R. by King C.J. … must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.”

37. However, those general strictures cast no light on what particular warning should have been given in this case. 39.40. As his Honour observed, once the concession was made, the “real issue in this case was that of causation” and, as his Honour noted, McHugh J said in Rosenberg v Percival (2001) 205 CLR 434: “Under the Australian common law, in determining whether a patient would have undertaken surgery, if warned of a risk of harm involved in that surgery, a court asks whether this patient would have undertaken the surgery. The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery. What a reasonable person would or would not have done in the patient's circumstances will almost always be the most important factor in determining whether the court will accept or reject the patient's evidence as to the course that the patient would have taken. But what a reasonable person would have done is not conclusive.” (emphasis in the original)

38. There was no finding by his Honour that the defendant should have warned of the risk of the development of TMJ ankylosis from any possible cause, notwithstanding that both in her evidence in chief and in cross-examination it was put by her that such a warning would have caused her to seek more specialised treatment. Such a duty was not alleged in the pleadings, as we read the Statement of Claim; nor, it appears, was such an allegation ultimately relied on by the plaintiff in the light of all the evidence at the trial. Nor did the concession of counsel for the defendant go so far. 41.42. Thus the warning should, on the concession made, have had to do with the risk of infection and, perhaps, the possible consequences of it. But the plaintiff well knew that, in general, there is a risk of infection with any operative procedure. Indeed, in cross-examination she agreed with the suggestion that it was not realistic (“seriously”) to suggest that, had she been told there was some risk of infection, she would have demanded antibiotics, and she had never made a case in her evidence in chief that, on that account, she would have sought treatment elsewhere. What else ought to have been said to the plaintiff was never explained either by the plaintiff or through any other witness. Nor was the defendant given the chance in cross-examination to deal with any other suggested warning. The evidence suggests that the actual form of the requisite warning would likely have been the subject of some controversy among the expert witnesses. 41.43. The important point is that, unless one knows just what warning should have been given to the plaintiff it is, with respect to his Honour, impossible to say with any tolerable degree of confidence how “this patient” would have responded to the stimulus of a warning and whether she would have undertaken the extraction at the defendant’s hands. 41.44. His Honour said: “Mr Stretton, for the plaintiff, made the submission that, not only would a reasonable person, if warned that there was a real risk that could be averted by obtaining antibiotics, obtain such protection, but that the plaintiff, being a nurse and a person who had previously been advised to take antibiotics for a wisdom tooth extraction, and having a brother who was a general practitioner, should be believed when she says that, if properly advised, she would have obtained antibiotic cover. I am satisfied that this is so, and that if she had obtained such cover, she would not have experienced the ongoing problems that she has suffered. Accordingly, I find that her difficulties have been caused by the negligent failure of the defendant to warn her of the risk of infection and the availability of antibiotics to prevent infection.

It was argued that because she was a nurse and because she was generally aware of the use of antibiotics, and had previously been advised to take antibiotics following the removal of a tooth, the failure to warn was not the cause of her failure to take antibiotics. It seems to me that this is not sustainable. A patient is not expected to self-diagnose the need for antibiotics, and indeed medical practitioners would properly be criticised if they were to prescribe such substances on a patient's self-diagnosis, even where that patient is a trained nurse.” (emphasis added)

45. In other words, his Honour seems to have found a need for a warning in the terms emphasized, and to have concluded that the plaintiff would have taken antibiotics if so warned. However, with respect, this overlooks the plaintiff’s concession in cross-examination. One may accept to the full the established restraints on an appellate court, including the fact that transcripts often do not tell the full story and that the trial judge has many advantages denied to the appellate court, see now Pledge v Roads and Traffic Authority; Ryan v Pledge [2004] HCA 13 (unrep 11 March 2004) at [43] and Fox v Percy (2003) 77 ALJR 989 at 993-995. It nevertheless seems to us that a judge could not, without giving persuasive reasons for doing so, simply accept the plaintiff’s evidence-in-chief in disregard of cogent and relevant cross-examination that appears, on a fair reading, to have completely undercut the relevant evidence in chief. Absent such reasons, his Honour’s conclusion appears to have been unwarranted. 45.46. The position then is that there was a bare concession by the defendant of breach of a duty to give the requisite warning and, at best for the plaintiff, no evidence as to whether the plaintiff would have altered her intention to have her tooth removed if she had been given such a warning. There was therefore no evidence which could found a conclusion that causation had been established. The plaintiff, in such circumstances, must fail. 45.47. The plaintiff relied on observations by Kirby J in Chappel v Hart (1998) 195 CLR 232 at 268-278 to suggest that, once a plaintiff has shown breach of a duty to warn and damage which immediately eventuates, an inference of causation thereby arises and there is an evidentiary onus on the defendant to displace it. But Kirby J was dealing with the question, on the facts in Chappel v Hart, whether or not failure to give a warning, which would admittedly have caused the plaintiff to delay an operation that, when eventually undertaken, would still have the same risks as the undelayed operation, should be regarded as the cause of the risks that were unfortunately realised in the actual operation. It seems to us that Kirby J was discussing the shifting of an evidential onus in the context of a particular factual question the resolution of which, though it may fairly commonly occur, might provide precedential guidance of an important kind. That is not the kind of factual situation which this case presents. Kirby J was not, it seems to us, intending to lay down a novel proposition that, in all cases, breach of duty and immediately ensuing damage of themselves raise an inference that the breach of duty was causative of the damage. There would be no basis in logic or pre-existing case law for such a suggestion. The cases principally relied on by Kirby J to suggest that an evidential onus on causation may shift to the defendant, do not support any such universally applicable principle. Nor did Kirby J’s views on that point, even if we are mistaken in understanding his Honour’s intentions, garner the support of either of the two other judges who formed the majority in Chappell v Hart. Gaudron J said: “Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action.” (emphasis added)

46. Gummow J also approached the matter in a way that does not support a universal proposition that breach of duty soon followed by damage necessarily implies, absent other evidence, causation of the damage by the breach. Thus his Honour said at 257: “It is true that in some cases of a failure to warn by a medical practitioner an application of the "but for" test without qualification could lead to absurd or unjust results. Such would have been the situation if, for example, instead of suffering damage to her laryngeal nerve, Mrs Hart had been injured through the misapplication of anaesthetic. Whilst it would still be open to conclude that, but for Dr Chappel's failure to warn her of the possibility of damage to her voice, she would not have opted for the operation at that time and would not have been injured by the anaesthetic, the law would not conclude that the failure to warn of the risk of injury to the laryngeal nerve caused the injury resulting from the anaesthetic.

The present appeal is significantly different from the situation described. In Mrs Hart's case, the very risk of which she should have been warned materialised.” (emphasis added)

49. Nor did the reasoning of either of the minority judges, McHugh and Hayne JJ support any such proposition.

50. The significant points here are that (a) at best for the plaintiff, taking all of her evidence into account, there was no evidence fairly capable of being relied upon which would indicate what she might have done had she been given an appropriate warning and (b) no inference that the damage occurred because of the lack of such a warning can be drawn because there was no finding as to the terms of the requisite warning, with the result that (c) no inference about the likely effect of such a warning on the plaintiff is possible. Disposition of the appeal

51. For these reasons, the judgment as to liability should be set aside.

52. It would not, however, be a just result that the plaintiff should thereby finally fail in her quest for compensation. The impression is that both the parties, in the heat of the battle over the plaintiff’s failed principal hypothesis of mechanical damage to the TMJ, and also his Honour, by reason of the defendant’s concession, overlooked the practical necessity to establish with some reasonable particularity what warning should (if any should) have been given. It may be, for example, that a warning that the removal of the tooth could cause infection resulting in grave problems with the TMJ might be found appropriate. Or it may not. Or it might be, for example, that if there were one chance in 100,000 of such a problem occurring, then a warning to that effect might be appropriate. One would, perhaps, in such an event, need very persuasive evidence from the plaintiff herself before rejecting a view that, in reality, it was unlikely that a reasonable person would, faced with such a small risk, opt to continue with a bad toothache rather than submit to the proposed procedure.

53. Thus, despite an erroneous outcome of the trial against the defendant, it would be unjust and unsatisfactory in the peculiar circumstances of this case, finally to shut the plaintiff out. Equally, where the trial has thus miscarried, the defendant should not in any retrial be bound by the admission of counsel that some warning (form unspecified) should have been given. What appear to be the real questions have, in the events that have occurred, not been litigated. Such a situation ought not be permitted irretrievably to prejudice either party.

54. In our opinion, the Court’s jurisdiction and powers are sufficiently wide to give effect to the above considerations. It is clear that this Court is not a court of strict appeal only: s 37N(3) of the Supreme Court Act 1933 gives the Court a discretion to receive further evidence and that Act contemplates that the Court will give decisions on appeal that “it considers just” even if an unappealed interlocutory judgment should stand in the way: s 37O(4). Similar provisions in the Federal Court of Australia Act 1976 (Cth) were reconsidered, after the decision in CDJ v VAJ (No.1) (1998) 197 CLR 172, and held to create an appeal by way of rehearing: see Cubillo v Commonwealth (2001) 183 ALR 249 at 316. Further, the Court of Appeal is an emanation of the Supreme Court: s 37D(1). As such it has “all…appellate jurisdiction that is necessary to administer justice in the Territory”: s 20(1). Justice, of course, does not mean what may idiosyncratically appeal to the judge or judges constituting the Court but justice according to law. On an appeal by way of rehearing, the Court should, so far as possible, give “the judgment which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at 561, Fox v Percy supra and Pledge supra. In general, too, it is axiomatic that parties are, for the sake of bringing an end to litigation and the orderly administration of justice, ordinarily to be bound by the conduct of their legal advisers. However, such salutary general admonitions may not fairly be applicable in every case. Here, the award or denial of a substantial verdict appears to rest on a mistake of fact leading to an inadequate exploration of a crucial issue and the mistake was apparently common to the parties and the trial judge. The case is one of a trial which has miscarried rather than of, as it were, a free-standing judicial error the correction of which should, in justice, be finally decisive. In our opinion, the just outcome, by the application of legal reasoning and the application of legal precepts, is that there should be a new trial limited to the following issues: 1. Was the defendant under a legal duty to warn the plaintiff that there was a risk of infection which could have grave consequences or to give her some other and, if so, what warning? 2. If so, was the plaintiff’s damage caused thereby?

55. The plaintiff should pay the costs of the appeal. The costs of the previous trial should be costs in the cause. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 19 April 2004

Counsel for the Appellant: Mr G B Evans

Solicitor for the Appellant: Abbott Tout

Counsel for the Respondent: Mr G Stretton

Solicitor for the Respondent: Snedden Hall & Gallop

Date of hearing: 9 February 2004

Date of judgment: 19 April 2004

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