It was open to the defendants, of course, to adduce evidence that Dr Felzen was extremely skilled in performing the particular procedure, that her engagement by the defendants to participate in its performance revealed no want of reasonable care for the plaintiff's safety, and that nothing she had done had caused injury to the plaintiff.[28] It was also open to the defendants to adduce evidence - going to what was characterised as the issue of "material risk", and also, it was said at trial, to the question whether the plaintiff would have consented to undergo the procedure had she known of Dr Felzen's intended participation - that Dr Felzen's participation had produced actual or potential benefits for the plaintiff's management. The defendants, indeed, did adduce evidence generally along those lines - although not from Dr Felzen who, without explanation being given, was not called. But the circumstance that such evidence might be adduced does not mean, when the application to amend was made, that there was not evidence which could support the aspect of the amendment now being considered.
58 Sixth, when the application to amend was made, the defendants were only part way into their case. The plaintiff did not seek to recall any witnesses other than the plaintiff. The defendants did not seek to recall the plaintiff or any of the witnesses called on her behalf. The expert evidence earlier called for the plaintiff either supported the enlarged case - so far as it could do so - or it did not. The defendants did not show that they were disadvantaged by the non-recall - it could not be said that there was an inability to recall - any of the plaintiff's witnesses.
59 Seventh, being only part way into their case when the application to amend was made, the defendants had an opportunity of addressing the enlarged case without response from the plaintiff's side. The defendants took that opportunity, being given the benefit of a "free kick" by the learned judge's refusal of the application by plaintiff's counsel to recall their client.
60 Eighth, the submission of plaintiff's counsel on the appeal that the amendments concerning Dr Felzen did not give rise to considerations of "material risk" and "informed consent",[29] but rather raised an issue of breach of an implied term of a contract, was, in my opinion, on textual analysis at least largely correct. The amended statement of claim, with respect to Dr Felzen, substantially focused on a number of ways in which the defendants were alleged to have breached their agreement with the defendant.
61 But then, it may be asked, what is to be made of the allegation, in a paragraph of the statement of claim which otherwise raised a plea of so-called want of informed consent, that the plaintiff would not have consented to undergo the procedure had she been informed that Dr Felzen was to perform a significant part of it? The particular allegation, it should be noted, said nothing about "material risk" - by contrast with the "material risks associated with the procedure" elsewhere identified in that paragraph of the statement of claim. It might be concluded that, properly analysed, the pertinent allegation was simply an assertion that the defendants' breach of contract was causative of the plaintiff's injury because she underwent the procedure when - absent the breach - she would not have done so, performance of the procedure causing her injury.
62 But counsel for both sides, and in turn the learned judge, approached the particular allegation as if it raised issues concerning want of informed consent of the different kinds discussed in Rogers,[30] Chappel and Rosenberg. The defendants' counsel made submissions on the footing that the need for identification of a material risk inherent in proposed treatment made necessary a search for, and identification of a material risk in one doctor rather than another performing that treatment. The question whether there is a true analogy between a risk inherent in proposed treatment and a risk in one doctor rather than another performing that treatment was never adequately explored, however, either at trial or in this court.
63 There is, I think, a real question whether the principles concerning duty and breach which were framed in Rogers and expanded upon by Gummow J in Rosenberg,[31] and the principles concerning causation which were analysed in Chappel and Rosenberg (only for sake of convenience, acknowledging a want of accuracy, I shall refer to them as "the Rosenberg analyses") could apply by direct analogy to a case where a patient, having agreed with Dr A that he will conduct a procedure, it being important to the patient that the doctor do so, is not told by Dr A that Dr B will perform a substantial part of that procedure - Dr B being unknown to the patient, and it being plain that the patient would not have undergone the procedure had he or she known of Dr B's intended involvement.
64 Chappel was not a case of that kind.[32] No other authority was cited, at trial or on the appeal, that dealt with circumstances such as I have identified. The formulation of the practical content of the duty of care, and the particular application of general principles of causation which would follow if the Rosenberg analyses did not have direct application, are not matters which could be lightly resolved. It is quite inappropriate that this Court should attempt to resolve them in the particular circumstances of this case.
65 In the event, the defendants' counsel at trial was correct in submitting, in substance, that the issue considered by Rogers required identification of material risk (which may be identified on an objective or subjective basis), and that, as one aspect of proof of causation, the risk must relate to the injury sustained.[33] But it did not necessarily follow, having regard to the prospect that the particular proposed amendment did not as a matter of principle raise a Rogers issue, that the judge erred in rejecting the second, and perhaps the first of those propositions. This is not to say that the reasons why the judge rejected the proposition(s) - which assumed the applicability of the Rosenberg analyses - were themselves sound.[34]
66 Ninth, there were two elements within the further submission for the defendants that the judge erred in holding that the question whether the plaintiff would have consented to the procedure had she been informed of Dr Felzen's intended role was to be determined objectively: First, that the judge in fact made such a determination. Second, that it was wrong in the particular context.
67 The judge certainly said that any evidence which the plaintiff gave about the matter could only be reconstruction with the benefit of hindsight. Assuming the applicability of the Rosenberg analyses, that was unexceptional.[35] But it is only part of the story. In the context of a Rogers breach of duty, the causation enquiry turns upon whether the particular plaintiff would have consented to the treatment if apprised of the risk. If a subjective approach was equally relevant in the context of the non-disclosure now under consideration, then it would have been wrong for the judge to hold that the response of a reasonable person in the plaintiff's circumstances should be taken to be the plaintiff's response. But, as McHugh J opined in Rosenberg,[36] what a reasonable person would or would not have done will "almost always be the most important factor in determining whether the court will accept or reject the patient's evidence as to what he or she would have done" - though not conclusive of that matter. Note also his Honour's observation[37] that in "some cases where there is no direct evidence as to what the patient would have done, the judge may infer from the objective facts that the patient would not have undergone the procedure."[38]
68 In the present case, the learned judge referred in her ruling to "an objective assessment of all the evidence as to whether the plaintiff was or was not likely to have consented." She referred also to "a finding to be made on the objective evidence about whether the plaintiff, in her own circumstances, was likely to have changed her mind ... ." In my opinion those passages should not be read as meaning that the plaintiff's putative response to provision of the pertinent information was to be neither more nor less than the response of a reasonable person in the postulated situation. Rather, I think that her Honour was saying that the decision should be arrived at by considering what the plaintiff would have done, assessed by consideration of the objective circumstances, and not distracted by the evidence, predictable and not likely of great value, which might have been given by the plaintiff had she been recalled.[39] Assuming the applicability of Rosenberg analyses, her Honour did not err. Neither did she prefer a test other than counsel for the defendants submitted was appropriate.
69 Tenth, there was evidence from which the jury could have inferred that the plaintiff would not have consented to Dr Felzen's involvement in the performance of the procedure, had she known of the intended involvement. The evidence enabled conclusions that the plaintiff had been very cautious before deciding to undergo this quite new procedure, and that she had been influenced to do so by Dr Lanzer's professed expertise, his advice as to the suitability of the procedure in her case, and the circumstance that he would be performing it. The jury might well have concluded that, had the plaintiff been told that another doctor was to take an active part in performing the procedure, she would have decided not to undergo it. It is true that the jury might have concluded, when all the evidence was in, that the plaintiff would probably have consented to the performance of the procedure by both doctors. The jury might have concluded that plaintiff would probably have been persuaded by an account of Dr Felzen's qualifications and skills that the procedure would be no less safe, or no more dangerous, by reason of that doctor's intended involvement. It might have concluded that the plaintiff would probably have consented to Dr Felzen's participation on the footing that, even if the procedure would be less safe by reason of such participation, the period of surgery would be the less, this minimizing a different risk. But the question how the plaintiff would probably have responded to being informed that Dr Felzen was to actively participate in the procedure was one to be decided on all the evidence at trial's end. It was then for the plaintiff to satisfy the jury that she would have decided not to undergo the procedure had she known about Dr Felzen's intended involvement.
70 Eleventh, I reject the defendants' submission that the learned judge failed to consider the overall justice of the matter, but instead concentrated upon unfairness to the plaintiff. Her Honour, in my opinion, approached the question whether to permit amendment of the statement of claim even-handedly, with the overall justice of the matter to the forefront.
71 The only reference which the judge made to potential unfairness to the plaintiff was in connexion with the application by plaintiff's counsel to recall his client to give evidence of what she would have done had she been informed of Dr Felzen's intended involvement. For reasons that are plain, such evidence was likely to have been useful in different ways to the plaintiff and defendants. What the judge did, by refusing the application, was very probably deny the plaintiff the opportunity of giving favourable evidence upon a fact in issue, and at the same time deny the defendants an opportunity for a credit attack on the plaintiff. Regardless of her Honour's reference to possible unfairness to the plaintiff, the ruling itself was even-handed and accorded with the justice of the situation. That is the more so when it is remembered that the defendants made no application to recall the plaintiff for any purpose.
72 I go to the second of the conclusions which I earlier expressed. It can be shortly explained. Counsel for the defendants did not make an unequivocal application that the trial be aborted after the judge had granted the plaintiff leave to amend. Rather, he made a perfunctory and qualified application to that effect, as one of two alternative courses that he proposed. He advanced no decisive argument in support of the trial being aborted. Indeed, as the learned Chief Justice remarked in argument, not even at that point did he contend that there should be a new trial or else he would be shut out from cross-examining the plaintiff about the newly-raised matters.
73 Further, apart from the fact that counsel for the defendants did not unequivocally apply to have the trial aborted,[40] there were, or the defendants at least very probably thought that there were, considerable advantages for the defendants in the trial proceeding as it did. I have already described those apparent advantages.
74 Finally, the stark fact that the trial proceeded without the plaintiff being recalled bespeaks no error. Defendants' counsel made no submission that he should have an opportunity of further cross-examining the plaintiff, nor made any application to do so. The course that he took is readily explicable. The matters raised for the defendants on the appeal were considerations which might have told in favour of a different forensic decision at trial. They might have influenced the judge to a different decision had they been raised. But they do not show that her Honour's decision that the plaintiff should not be recalled, in response to application made only by her own counsel, involved an error in the exercise of judicial discretion, when regard is had to the particular circumstances of the trial. That is so although her Honour's reasons in that connection mentioned unfairness to the plaintiff in the context which I earlier described.
Ground 4
75 The fourth ground of appeal reads as follows: