In the appellant's written submissions, the word "endoscopically" was inserted in parentheses after the word "remove". Mr Neil did not explain the basis on which it was suggested that word should be inserted.
51 The passage I have emphasised was that which appeared in the appellant's written submissions. After extracting that quote, the written submissions argued, "the respondent was never able to explain why in the appellant's situation, he had acted contrary to such accepted wisdom". It was submitted that on the basis of that extract alone, there should have been a verdict for the appellant. Alternatively the appellant relied on res ipsa loquitur.
52 A number of comments may be made about that submission which require the passage to be put in the context of the unitalicised passage I have included from Professor Cotton's work.
53 First, it will be noted that the passage refers to "patients with familial adenomatous polyposis", a condition Professor Williamson said that the appellant did not have. People with that condition tend to form polyps as a familial trait.
54 Secondly, when this passage from Professor Cotton's work was put to the respondent, he disagreed with the proposition that it meant the author "regarded large sessile polyps as too hazardous to remove". He appears to have accepted there was a hazard in the treatment of large sessile polyps, but thought the quote was a generalisation.
55 Thirdly, and more importantly, on page 287 of the same book the following appears:
" Problem polyps
Sessile polyps
Having appreciated the principles of current density in electrocoagulation, it should be obvious why removal of large sessile polyps (Fig.10.29a) or broad-stalked polyps presents problems to the endoscopist. Fortunately, many so-called 'sessile' are simply semipedunculated and can be pulled up by the snare onto an adequate and compressible pseudostalk. Having snared a polyp, the closed snare should always be moved to and fro; if the mucosa moves, but not the bowel wall, there is no danger; if the colon moves too, the full thickness of the wall has been 'tented' (Fig.10.29b) and the snare should be repositioned to take only a smaller part. If a polyp base is over 1.5 cm in diameter, without a stalk, the safe course is to take the head piecemeal in a number of bits (Fig. 10.30); each bit can be cut through with no risk of full-thickness burns and little risk of bleeding since the vessels of the head are much smaller than those in the stalk. With the submucosal injection technique described below, however, it may be possible to remove flat sessile polyps up to 1.5 - 2 cm in diameter in a single specimen.
Sometimes a sessile polyp is better removed by surgery (or laparoscopy), but this should be a matter of expert opinion and clinical judgment; sessile polyps up to 5 cm in diameter can be removed, providing that the hazards and the trauma involved are appreciated by all concerned and that the endoscopist is very experienced. As a rule of thumb it has been suggested that sessile polyps occupying more than one-third of the colon circumference, or involving two haustral folds, are too big for safe endoscopic removal. If in doubt it is better to make repeated piecemeal attempts at different sessions to lessen the chance of full-thickness heat damage to the bowel wall, to give time for histological assessment (surgery will be indicated if any piece contains malignancy) and to allow the site to be checked for recurrent polyp tissue. The endoscopic approach is the obvious one in a patient who is a bad operative risk and is prepared to accept repeated endoscopy. In a younger patient, or if there are technical difficulties, it may be better sometimes to admit that the risks of surgery are not excessive compared to the trials of aggressive endoscopy, which may not remove all neoplastic tissue, or the use of a laser which destroys the evidence."
56 In my view, this passage directly contradicts the appellant's reliance on the earlier short extract from Professor Cotton's work. It supports the proposition that the question whether a sessile polyp is removed by surgery, laparoscopy or endoscopy is "a matter of expert opinion and clinical judgment, not that they are "too hazardous to remove" and, further, that if "a polyp base is over 1.5 cm in diameter, without a stalk, the safe course is to take the head piecemeal in a number of bits", a proposition which was illustrated in Figure 10.30. As I have said, the primary judge accepted the respondent's evidence that the appellant's polyp measured approximately 2 cm in diameter. There was no issue that he removed the polyp piecemeal. Accordingly, rather than demonstrating the apparent negligence of the respondent, as the appellant submitted, Professor Cotton's work supported the proposition that the respondent acted in accordance with accepted practice in removing it as he did.
57 The passage I have emphasised from Professor Cotton's work also advised that once snared a polyp should be moved to and fro to determine whether in doing so the colon moved as well. If it moved, that demonstrated the full thickness of the wall had been "tented" (i.e. the snare had captured the intestinal wall as well as the polyp) so that there was a risk of mechanical perforation of the duodenal wall if the polyp was removed endoscopically. In this case the respondent performed that test and the appellant's duodenal wall did not move: see primary judgment (at [72], [94]).
58 Mr Neil also submitted that independently of Professor Cotton's work and the medical evidence accepted at trial, the Court could hold the appellant must have undertaken the endoscopic removal of the polyp negligently because the appellant's duodenum was perforated. He argued that Rogers v Whitaker left this course open.
59 In Rogers v Whitaker the defendant was an ophthalmic surgeon who failed to warn Mrs Whitaker, the plaintiff (who was almost totally blind in her right eye) of the possibility that if he operated on her right eye, there was a risk, said to occur only once in approximately 14,000 such procedures, of a development of sympathetic ophthalmia in her left eye. The defendant argued that in not warning Mrs Whitaker of this risk, he was acting in accordance with the standards of the medical profession generally. The High Court held that those standards were not determinative, that he should have warned the patient, and that he was liable to compensate her.
60 In their joint judgment, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ considered (at 483 - 484) the operation of the "so-called Bolam principle, derived from the direction given by McNair J to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118." They observed that in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871 (at 881), Lord Scarman stated the Bolam principle in these terms:
"The Bolam principle may be formulated as a rule that 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. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment."
61 There was evidence from a body of reputable medical practitioners that, in the circumstances of the case, they would not have warned Mrs Whitaker of the danger of sympathetic ophthalmia. There was also evidence from similarly reputable medical practitioners that they would have given such a warning: Rogers v Whitaker (at 484).
62 Their Honours said that the basis of the Bolam principle lay in the recognition that, "in matters involving medical expertise, there is ample scope for genuine difference of opinion and that a practitioner is not negligent merely because his or her conclusion or procedure differs from that of other practitioners". They referred (at 484 - 485) to authorities in which the Bolam principle had been applied in cases of competing medical opinion and in which it had been held, in short, that the plaintiff had not discharged the onus of proving the medical practitioner had failed to exercise the ordinary skill of a doctor practising in the relevant field. They considered (at 485 - 486) the division in the House of Lords in Sidaway as to whether the Bolam principle should apply in a case concerning an allegation of failure to warn a patient of inherent risks of proposed treatment. The majority of the House of Lords in Sidaway (Lord Scarman dissenting) held that it did.
63 They then referred (at 486 - 487) to shortcomings in the application of the Bolam principle in cases involving the provision of advice or information. In such cases, if it was applied, then "even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be disclosed and the express desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion".
64 In their Honours view (at 487, footnotes omitted):
"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. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it 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'."
65 The Court considered and approved F v R (1983) 33 SASR 189 in which King CJ held that expert medical evidence could not exclusively determine whether a medical practitioner had been negligent in failing to warn a patient of the risks in an operative procedure. They then said (at 489, footnotes omitted):
"Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. 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 . Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether 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 a 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…" (emphasis added)
66 Gaudron J expressed concern (at 492) about a duty of care for medical practitioners expressed as a "single comprehensive duty" covering diagnosis, treatment and the provision of information and advice. Such a statement, in her view, said " nothing worthwhile … as to the content of the duty" and "fails to take account of the considerable conceptual and practical differences between diagnosis and treatment, on the one hand, and the provision of information and advice, on the other." She said (at 492 - 493, footnotes omitted):
"The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practising in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk.
The matters to which reference has been made indicate that the evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment. However, even in cases of that kind, 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. And, at least in some situations, questions as to the reasonableness of particular precautionary measures are also matters of 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' which is to the effect that a doctor is not guilty of negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice. 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." (emphasis added)
67 The plurality cited three decisions in support of the proposition that the standard of care to be observed by a skilled person was not determined solely by reference to practice in the relevant profession or trade. In the first, Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588, architects retained to supervise and inspect the execution of certain works in accordance with plans and specifications failed to inspect reinforcing mesh before concrete was poured. When the framework was removed, the slab collapsed, injuring an employee. Evidence was led at the trial of the practice of architects where an obligation for periodic inspection or supervision is accepted. Barwick CJ (with whom Kitto, Taylor and Menzies JJ agreed) described that evidence (at 593) as "[u]seful and persuasive" but not "decisive of the legal obligations which such a retainer as an architect imports". Windeyer J made similar observations (at 601). Florida Hotels is a case in which Gaudron J's observation in Rogers v Whitaker about the utility of common sense is clearly pertinent.
68 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 was a case in which the plaintiff was injured during corrective surgery, directed towards straightening and lengthening her spine. The procedure was undertaken at a Sydney hospital under the supervision of an orthopaedic surgeon. The plaintiff called a consulting neurologist who had practised in London, but not in Sydney, who gave evidence for the plaintiff as to the relevant anatomy, normal and morbid, of the significance of the signs which the plaintiff exhibited, and of the risks involved in applying traction in cases where there is a tethering of the spinal cord. The trial judge refused to permit him to give evidence as to what could or ought to be done in cases where the existence of tethering is, in some degree, indicated. The trial judge rejected that evidence on the basis, inter alia, that he was not a Sydney practitioner. The remarks of Reynolds JA (with whom Hope and Hutley JJA agreed), which were footnoted in Rogers v Whitaker (at 487) appear to be directed to the territorial exclusion the trial judge had applied. Thus Reynolds JA said (at 562 - 563):
"(64) It also, in my view, is based on a wrong assumption that a jury should be directed that, if what is charged as negligence is shown to have been done in accordance with the usual and customary practice and procedure then prevailing in what was called a particular 'medical community', they cannot find negligence. This, in my opinion, is plainly wrong, because it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence. …
(65) These obvious facts do not render inadmissible an expression of opinion without temporal connotation as to medical facts and practices, because the conduct in issue occurred one, two, three or nine years earlier….Though evidence of local practice is admissible as to whether what was done constituted negligence, local practice provides no basis for the exclusion of evidence by experts lacking local experience as to the correct way in which a particular treatment should be performed, or whether a particular treatment should be given at all."
69 Nothing in Albrighton, in my view, supports the proposition that in that case the jury could have found the defendants negligent absent medical opinion about the procedure in which the plaintiff was injured.
70 In E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310, the third case to which the High Court referred, the plaintiff contracted AIDS in 1984 as a result of receiving a post-operative blood transfusion from blood plasma collected by the first and second defendants and administered at the hospital for which the third defendant was responsible. The defendants sought to rely on American practice as to the procedures for collecting blood and, it would appear, devising procedures for excluding high risk donors. Wilcox J (at 357) considered whether, in determining the question of breach of duty by a medical practitioner, the practitioner was "entitled to exoneration if it appears that he or she has acted in accordance with ordinary professional practice". After discussing Bolam, Sidaway, Albrighton and F v R, he held (at 360) that "whilst evidence of the practice usually adopted by persons in the position of a defendant will generally be of great assistance, and often decisive, the way must be left open to a plaintiff to persuade the court that the practice does not ensure an adequate standard of care". His observation, in my view, does not advance the jurisprudence on this issue beyond the general statements in Rogers v Whitaker to which I have referred.
71 Mr Neil argued that the Court could conclude the respondent was negligent, notwithstanding the expert opinion accepted by the primary judge to the contrary, first because the appellant's wall was perforated in the operation. As to this it serves to recall that the primary judge accepted that a perforation was rare, and (at [86]) the opinions given by the experts called by both the appellant and the respondent that perforation of the duodenum wall could occur without any negligence on the respondent's part.
72 Mr Neil stressed, however, that the Court could reach an opposite conclusion because the polyp was large and was so understood by the respondent, secondly, because it was a sessile polyp and it was so understood by the respondent and thirdly, because the respondent could not observe the other side of the polyp from that which he was observing.
73 The first two propositions do not advance the issue. There was ample expert evidence that a sessile polyp of 2 centimetres in diameter could be removed endoscopically. As to the third point, the respondent agreed he could not see the back of the polyp as he was removing it. However it was never put to him that not being able to see behind the polyp meant it was not safe to proceed.
74 When it is borne in mind that the respondent removed the polyp piecemeal i.e. did not grasp the entirety of it, especially a side he could not see, this point becomes, in my view, as Mr Menzies of Queens Counsel, who appeared for the respondent on appeal, but not at trial, with Ms K Burke submitted, a red herring. Indeed the fragility of this submission was underlined by Mr Neil's concession that "the problem may well be because the respondent could not see what was on the other side". He simply did not know - the issue had not been explored at trial - despite six experts, including the respondent, being called. There is no basis, in my view, on which the Court could conclude that the respondent acted negligently in removing the polyp piecemeal without being able to see the other side.
75 The procedure the respondent adopted was that advocated by Professor Cotton to obviate risks during removal of sessile polyps, namely to snare the polyp, move it to check that there was no tenting, then proceed with piecemeal removal. To the extent that inference is available, in my view it favours the respondent. The inference I would draw is that whatever risk may flow from not being able to see the other side of the polyp is obviated by the movement test, and then by its piecemeal removal.
76 Mr Neil submitted that Rogers v Whitaker supported the proposition that if all members of a particular profession were doing something that was not in accordance with what the Court considered to be careful practice, then the Court should say so. That submission was pitched at such a high level of generality as to be meaningless. It fails to recognise the careful distinction all members of the High Court drew in Rogers v Whitaker between diagnosis and treatment, and warning of risks. Mr Neil did not suggest any sensible route by which the Court could impose a view as to careful practice contrary to the medical opinions called on both parties' behalves.
77 Mr Neil could not refer the Court to any case since (or before) Rogers v Whitaker in which the court had taken the course he propounded in a case which involved clinical judgment in an operational context.
78 It will be recalled that the primary judge rejected the appellant's argument that the accident bespoke negligence in reliance upon Scott LJ's reasons in Mahon v Osborne [1939] 2 KB 14. His Lordship was of the view that that inference would only be drawn if, inter alia, "in the ordinary experience of mankind such an event does not happen unless the person in control has failed to exercise due care" and queried how a judge could have sufficient knowledge of surgical operations to draw such an inference in a "complicated abdominal operation". His Honour rejected the appellant's case in this respect because of the medical evidence that injury such as occurred could occur in the course of a polypectomy without negligence on the part of the surgeon. Mr Neil did not directly address this passage of his Honour's reasons. For my part I find it compelling in the circumstances of this case.
79 In my view the appellant has not demonstrated any error on the primary judge's part in dealing with the issue of liability. In my view this was a case where the plurality view in Rogers v Whitaker as to the often decisive role professional opinion may play has strong resonance.
80 I would reject the appeal insofar as it concerns liability.
81 I turn to damages, like his Honour, against the possibility this conclusion is incorrect.
82 The appellant's written submissions on damages were diffusely expressed. In short they pointed, as the respondent observed, to evidence favourable to the appellant, asserting, baldly, that the primary judge ought to have accepted it. Save to that extent, the submissions did not identify error on the part of the primary judge in undertaking the necessarily evaluative exercise involved in assessing damages.