Morocz v Marshman

Ground 1 (a) ‑ Admissibility of expert reports

1. Ground 1(a) of the appellant's second amended Notice of Appeal contends that: His Honours' exclusion of all or any of the expert reports and matters relevant, resulted in an impermissible exercise of judicial discretion, and as a consequence a substantial miscarriage has occurred.

Relevant principles

1. The exclusionary "opinion rule" in s 76 of the Evidence Act 1995 (NSW) provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Subsequent provisions provide exceptions to the opinion rule.
2. Section 79(1) of the Evidence Act provides: (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
3. In Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588 at [31] it was established that the starting point for evidence to be admitted under s 79(1) is the need to "identify why the evidence is relevant". Further: To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge".
4. The plurality in Dasreef at [37], held that it was ordinarily the case that the expert's evidence: …must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded.

The appellant's excluded expert reports

1. The appellant accepts that the primary judge identified the correct test of admissibility in addressing the tender of the expert evidence, but submits that his Honour misapplied that test. Lengthy written submissions were advanced challenging the primary judge's rulings, the essence of which may be summarised as follows: The excluded experts fulfilled the Makita requirement and had the specialized knowledge to inform and assist the court on the issues in dispute - causation and breach.
2. The appellant made specific submissions in relation to most (but not all) of the excluded expert reports. I propose to deal with each expert report separately.

Associate Professor Egilius Leonardus Spierings

1. Associate Professor Spierings' report was dated 13 November 2009. At that time, he was an associate clinical professor in the Department of Neurology at the Harvard Medical School in Boston. Associate Professor Spierings has eminent academic and clinical research qualifications in the fields of neurology and craniofacial pain management.
2. The primary judge concluded that: 1. Associate Professor Spierings was not qualified to address the content of what a surgeon in the position of the defendant in 2007 should have told the appellant about her contemplated surgery; and 2. Associate Professor Spierings' report did not even set out to address the question of what a surgeon in the position of the defendant in 2007 should have told a person in the position of the appellant about her contemplated surgery.
3. The appellant submitted that Associate Professor Spierings had sufficient expertise to provide an opinion on the relationship between the autonomic nervous system and pain, migraines and headaches, particularly since he has published research on the link between headaches and sympathectomy.
4. The appellant accepted that the research she was seeking to tender was not tendered at the hearing before the primary judge, and was not discussed by Associate Professor Spierings in the body of the excluded report. The appellant submitted that this omission by Associate Professor Spierings was inexplicable.
5. On this basis alone, the appellant has failed to demonstrate why Associate Professor Spierings' evidence is relevant, which is a pre-condition to the admissibility of expert evidence.
6. There is a further, and fundamental, problem with the admissibility of Associate Professor Spierings' report. Nowhere in that report or in the attached materials does Associate Professor Spierings set out any question he was asked or explain what question or questions it is that his report is addressing. There is a complete failure to even attempt to explain how the field of "specialised knowledge" in which Associate Professor Spierings is expert, and on which the opinion may or may not be based, applies to the facts assumed or observed so as to produce the opinion propounded. At its highest, Associate Professor Spierings' report identifies certain symptoms complained of by the appellant and opines about a connection those symptoms may have with the nervous system.
7. Even accepting that there are circumstances where "little articulation or amplification" will be required to demonstrate the basis of an expert opinion, Associate Professor Spierings' report does not explain how his field of "specialised knowledge" underpins any of the opinions he expresses nor does he explain how he has applied his specialised knowledge to the facts assumed or observed so as to produce any of the opinions contained in his report.
8. The primary judge correctly ruled that Associate Professor Spierings' report was not admissible.

Professor Peter Drummond

1. Professor Drummond provided a report dated 27 October 2009. At the time of writing the report, he was a Professor of Psychology at Murdoch University, Perth. Professor Drummond has eminent academic and clinical research qualifications in the field of psychology.
2. The primary judge concluded: 1. Professor Drummond had "no history of study, experience, training or specialised knowledge regarding management of patients with hyperhidrosis or those who have undergone a bilateral endoscopic thoracic sympathectomy" and therefore was not qualified to give an expert opinion on what warnings should have been given to the appellant. 2. Professor Drummond's expertise had no relevance to the issues in the appellant's case, rendering his whole report irrelevant.
3. Although they were not attached to his report and were not made available to this Court, Professor Drummond noted that he had been asked to address five issues and he regarded all but one of those issues as outside his area of expertise. He suggested in his report that the appellant's then lawyers address those questions to a medical specialist who performs sympathectomies or refers patients to specialists for this operation.
4. Professor Drummond states in his report that his expertise extends to expressing opinions about the effect of a sympathectomy on facial blood flow, sweating, pupillary activity and lacrimation.
5. The appellant did not identify any part of Professor Drummond's report which was submitted to be relevant to the issues in this appeal. Rather, an attempt was made to tender a number of documents referred to by title as "publications" in an annexure to Professor Drummond's report. The appellant submitted, in oral address in support of the tender of those documents, that she was "not certain why [Professor Drummond] wrote such a minimalistic report when he had the publications available".
6. I have already addressed the admissibility of the documents sought to be tendered. In my view, the appellant has failed to demonstrate why Professor Drummond's evidence in his report is relevant, which is a pre-condition to the admissibility of expert evidence.
7. The primary judge was correct to reject the tender of Professor Drummond's report.

Professor Richard Imrich

1. Professor Imrich is an endocrinologist based in Slovakia. He provided a report dated 18 June 2011 and a supplementary letter dated 24 February 2012. He has academic and clinical research qualifications in the field of the cardiac function and the autonomic nervous system. The focus of his current role is "[r]esearch in neuroendocrine regulations of immunity and metabolism". The majority of the publications included in his CV relate to research into rheumatic and endocrine diseases.
2. Professor Imrich interviewed the appellant and performed two autonomic tests, each directed at checking her heart rate.
3. The primary judge declined to admit this report on the basis that Professor Imrich was "not able to express an appropriately supported medical opinion about cardiac function".
4. The appellant accepted in her written submissions that "Professor Imrich may not have been able to give evidence as to the particular warnings that should be given". This is a sufficient concession to determine the admissibility of Professor Imrich's report given the issues in the present case.
5. There is, however, a further fundamental issue with the admissibility of Professor Imrich's report. Professor Imrich was asked questions about the state of scientific knowledge regarding the effects of sympathectomy on cardiac function. This was a relevant inquiry, in addressing the question of whether the procedure carried risks to the heart which should have been known by a person in the respondent's position in 2007. The problem, however, is that Professor Imrich's report does not explain how it is that his opinion is based on his field of "specialised knowledge" and how it is that this specialised knowledge applies to the facts he assumed or observed so as to produce the opinion he expressed.
6. Finally, the testing performed by Professor Imrich on the appellant takes the question of admissibility no further. The results measure her heart rate. Professor Imrich does not provide an opinion about the cause of those results. Indeed, Professor Imrich only puts his conclusions so high as to say "the results indicate borderline bradycardia with diminished heart rate response…".
7. The primary judge was correct to reject the tender of Professor Imrich's report.

Professor Lilianne Mujica-Parodi

1. Professor Mujica-Parodi provided a report dated 29 June 2010. In her curriculum vitae she is described as a "research neuroscientist and professor of Biomedical Engineering, Psychiatry and the Program in Neuroscience" at Stony Brook University, New York. She describes herself in the report as a "clinical researcher".
2. The primary judge ruled that this report should not be admitted because the questions she was asked "are not questions that Professor Mujica-Parodi is qualified to answer in the particular context of this case".
3. Thirteen separate questions were posed for Professor Mujica-Parodi to address. A number go the heart of the issues in this case, for example "What risk warnings ought to be given in respect of such surgery". It is clear that Professor Mujica-Parodi has no experience in treating palmar hyperhidrosis or in performing bilateral sympathectomy procedures. She does not explain anywhere how her field of "specialised knowledge" in which she is expert by reason of her "training, study or experience", and on which her opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion expressed.
4. It is not possible to discern from Professor Mujica-Parodi's report what specialised knowledge she brought to bear in answering the thirteen questions. It is unclear whether the assertions made in her report are based on anything more than her unexplained "professional view" or precisely what facts she assumed in addressing each of the questions.
5. The appellant acknowledged in her written submissions that "this aspect of the case was poorly formulated and defined in the pleadings, and [the appellant's] counsel failed to identify with precision the relevance of this report in the context of the case."
6. It may be true that if the requirements for the admissibility of expert evidence required by s 79 of the Evidence Act were properly addressed with Professor Mujica-Parodi an admissible report of some kind could be produced. It is clear, however, that those requirements were not addressed in the present report.
7. The primary judge was correct to reject the tender of Professor Mujica-Parodi's report.

Associate Professor Peter Crack

1. Associate Professor Crack is a Senior Lecturer in the Department of Pharmacology at the University of Melbourne.
2. The primary judge ruled his report to be inadmissible as he did not consider Associate Professor Crack was qualified to answer the questions asked, nor did he think that the questions were relevant to the issues at hand.
3. Associate Professor Crack's report reveals that he responded to a number of questions, all directed to whether sympathectomy (described variously) could have certain consequences. Only one question was expressly directed to the symptoms of the appellant. This report principally addresses the question of whether those conditions could be caused by the procedure, not whether the conditions the appellant complained of were caused by her procedure. Critically, the report does not address whether any of the conditions identified were known at the relevant time to be potential side effects of the procedure.
4. The report does not address any issue relevant to this appeal. While the appellant provided this Court with Associate Professor Crack's report and curriculum vitae, she did not make any specific submission about why his report should have been admitted.
5. The primary judge was correct to reject the tender of Associate Professor Crack's report.

Dr Randy Beck

1. Dr Beck is a chiropractor. His qualifications were not provided to this Court. The primary judge noted, in his first judgment, that Dr Beck has a PhD in psychology.
2. Dr Beck examined the appellant prior to preparing his report, dated 25 August 2015. The primary judge admitted the record of the complaints made by the appellant to Dr Beck.
3. The remainder of the report was not admitted, as Dr Beck was found not to be qualified to answer questions about the risks and consequences of sympathectomy procedures.
4. The appellant did not make any specific submissions about why the remaining parts of this report should have been admitted into evidence. It is clear that Dr Beck is not a medical doctor and does not practice in neurology or surgery. His report does not meet the fundamental requirements of s 79(1).
5. The primary judge was correct to reject the tender of those parts of Dr Beck's report.

Professor Paul Komesaroff

1. Professor Komesaroff is a physician, medical researcher and philosopher at Monash University in Melbourne. The primary judge rejected the tender of his report.
2. The appellant did not provide this Court with a copy of the report nor make any specific submissions about its admissibility.
3. It is unnecessary in those circumstances to say any more than to the extent that the appellant challenges the primary judge's ruling about the admissibility of Professor Komesaroff's report, that challenge is rejected.

Conclusion re excluded experts

1. For the reasons above, Ground 1(a) of the Notice of Appeal should be rejected.

Ground 1(b) ‑ Section 5O of the Civil Liability Act

1. Ground 1(b) of the appellant's second amended Notice of Appeal contends that: His Honour misdirected himself, as the provisions of s 5O Civil Liability Act do not apply by reason of the application of s 5P Civil Liability Act.
2. Section 5O of the Civil Liability Act 2002 (NSW) provides a defence to liability, where a professional proves that their conduct fell within the standard of acceptable professional practice. Section 5P provides that s 5O does not apply to the failure to give a warning, advice or information.
3. The primary judge did not make any findings based on s 5O of the Civil Liability Act. Nothing in the second judgment reveals that the primary judge misunderstood or misdirected himself with regards to the proper meaning and purpose of s 5O or 5P of the Civil Liability Act.
4. The appellant misunderstands the nature of the primary judge's reasons.
5. Ground 1(b) of the second amended Notice of Appeal should be rejected.

Grounds 2, 3 and 4(a) ‑ Alleged errors in finding that the appellant was properly and adequately warned of certain risks and failing to find she should have been warned of other risks

1. I will address Grounds 2, 3 and 4(a) of the Notice of Appeal together as they each raise essentially the same issues. Although put in slightly different ways at various places in her lengthy written submissions, the essence of these complaints is that: 1. in relation to the material risks that she was warned about, the primary judge erred in finding that those warnings were adequate; and 2. the primary judge did not properly identify all the material risks about which the appellant should have been warned.

Warning of material risks ‑ Relevant principles

1. A medical practitioner owes a patient a single comprehensive duty: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 489. The joint judgment in Rogers continued: 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.
2. As Rogers explained, "except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it", a choice which is "in reality, meaningless unless it is made on the basis of relevant information and advice". The judgment continued: 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.
3. The duty to warn extends to warning about "material risks" which may attend a proposed treatment. A risk is "material", relevantly for present purposes, 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: Rogers v Whitaker at 490; Wallace v Kam [2013] HCA 19; 250 CLR 375 at [8].
4. In this appeal, the appellant complained that, with regard to the risks she was warned about, the primary judge erred in finding that she was adequately warned. As regards this complaint, the identification of the risk and the need for a warning was not in question. With respect to the risks that she was not warned about, the appellant complained that the primary judge erred in finding that it was not necessary for the respondent to warn her of those risks. As regards the second part, the identification of relevant risks is critical.
5. In F v R (1983) 33 SASR 189 at 192, which was cited with approval by the High Court in Rogers, King CJ said: The extent of the duty to disclose is to a degree limited by the consideration that the essential task of the doctor is the care and treatment of the patient. The purpose of disclosure is to provide the patient with the information necessary to enable him to make informal decisions concerning his future and, in particular, whether to undergo proposed treatment. The duty extends therefore only to matters which might influence the decisions of a reasonable person in the situation of the patient. A risk of harm or of failure might be so slight in relation to the consequences of not undergoing the proposed treatment that no reasonable person would be influenced by it. The duty to disclose does not extend to such a risk. Of course a small risk of great harm might call for disclosure although a greater risk of a slight harm would not. A doctor is not expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision making of a reasonable person … The more drastic the proposed intervention in the patient's physical make-up the more necessary it is to keep him fully informed as to the risks and likely consequences of the intervention.
6. The amount of information that a careful and responsible doctor is required to disclose depends on a complex of factors, the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient and the general surrounding circumstances: Rogers at 489.

The evidence in this case

1. As I have said, at [9], the primary judge found that liability had not been established in this case for two principal reasons: First, that Dr Marshman warned Ms Morocz of all matters that the experts indicated she should have been warned about and that she proceeded to have the operation knowing those things. Secondly, that any other matters that Ms Morocz has established, and that I have found, Dr Marshman failed to warn her about were in my opinion not matters that he was required to mention.
2. So far as the lay evidence at the trial was concerned, the primary judge described the appellant as "articulate and reliable". The primary judge commented that, given her demeanour and forthright answers, even against her own interest, "[i]t is difficult in such circumstances not to accept everything that she has said as truthful." This, however, was not of great significance to the primary judge, since there were only limited differences in the parties' accounts of the pre-operative consultation. The primary judge found the evidence of the respondent to be "equally impressive". The primary judge was able to resolve any contest between the evidence of the appellant and the respondent by reference to the available contemporaneous documents and concessions made by each witness in cross-examination.
3. The primary judge's findings about the adequacy of the warnings given in this case were informed by the eight expert reports which were admitted in evidence. Of these, three were tendered by the appellant. These were prepared by each of: 1. Dr Tomlinson, Consultant General and vascular surgeon at Norwest Private Hospital; 2. Professor Morris, Professor of Surgery at the University of New South Wales and the St George Hospital; and 3. Professor Reilly, a neurosurgeon practising in South Australia.
4. The remaining five expert reports were tendered by the respondent. These reports were prepared by, respectively: 1. Professor Harris, Professor of Vascular Surgery at the University of Sydney and a practising vascular surgeon; 2. Dr Hugh, a Fellow of the Royal Australasian College of Surgeons and a surgeon at St Vincent's Hospital; 3. Professor Watson, a Professor of Medicine at the University of Sydney and the head of the Sydney Adventist Hospital Clinical School; 4. Dr Patel, a medical doctor who specialised in treating patients with hyperhidrosis; and 5. Professor O'Rourke, a Fellow of the Cardiac Society of Australia and New Zealand and a cardiac surgeon with St Vincent's Hospital.
5. The appellant's experts, Dr Tomlinson, Professor Morris, and Professor Reilly, together with Professor Harris and Dr Hugh, gave concurrent evidence in the proceedings. The conclave was asked questions by counsel appearing for both parties and, on occasion, the primary judge.
6. Professors Watson and O'Rourke each gave individual evidence and were cross-examined by counsel then appearing for the appellant.
7. The primary judge noted that "[t]here is general agreement among the experts in this case concerning the known or recognised risks or side effects of a bilateral endoscopic thoracic sympathectomy in 2007."
8. In this regard, with the exception of a reservation by Professor Reilly about the use of the word "cure", the experts who gave concurrent evidence agreed that the STS Brochure given to the appellant adequately addressed those risks which were the known or recognised in 2007: WITNESS REILLY: …In my view the term, "cure", which I think is used in the brochure was inappropriate, and that would be my major criticism of it that it didn't allow for the possibility of either failure of the operation or recurrence of the condition. HIS HONOUR: Apart from that criticism, do you discern that there are any risks or side effects known in the profession in 2007, and not referred to in the brochure that you think should have been? WITNESS REILLY: No. HIS HONOUR: All right, Dr Harris, what's your view? WITNESS HARRIS: It was a brochure designed to provide information for patients as a background to discussion with their doctor and I thought it reasonably covered the topic, and there were no material matters in there that I thought were omitted. HIS HONOUR: Thank you. Dr Hugh? WITNESS HUGH: My answer to your proposition, your Honour, is no. HIS HONOUR: Thank you. Dr Morris? WITNESS MORRIS: I don't have the brochure in front of me but I'm comfortable with what others have said. WITNESS TOMLINSON: No. HIS HONOUR: Your answer is no? WITNESS TOMLINSON: Mm
9. The appellant submitted that, contrary to the findings of the primary judge, she was not adequately warned of the following risks: 1. Return of palmar hyperhidrosis; 2. Disabling compensatory hyperhidrosis; 3. Intercostal neuralgia.

Return of palmar hyperhidrosis

1. The primary judge found that the appellant had been properly and adequately warned of the risk that her condition would recur. While noting that the respondent did not warn the appellant in terms that she might experience the return of her condition, the primary judge found that the issue was addressed in the pre-operative information provided to the appellant "by reference to the percentage chances of success of the operation".
2. As I outlined at [12], the primary judge acknowledged that the procedure was described as a "cure" of the appellant's condition in the STS Brochure and that the respondent had used the word "cure" during the 3 August consultation. His Honour noted that in both cases, however, the use of the word "cure" was qualified by the information that the success rate is less than 100 per cent. His Honour said, at [88]: In other words, if Ms Morocz was advised that the operation was associated with a limited failure rate, she was simultaneously being advised that there was a corresponding chance that her sweaty palms might either not be eliminated or might return.
3. The appellant submitted that the primary judge "ought to have found that the recurrence rates and likelihood was improperly misrepresented and disguised". The appellant's submission should be rejected.
4. The STS Brochure given to the appellant sets out, under the heading "What are the Chances of Success?", that: The probability of success varies with the anatomic location of the excessive sweating. ETS will cure approximately 95‑98% of excessive hand (palmar) hyperhidrosis…
5. In the expert conclave, the return of palmar hyperhidrosis was identified as a factor about which a warning should be given. Dr Hugh gave evidence that he would tell his patients that the return of palmar hyperhidrosis occurred in about 2.8 per cent of cases.
6. The appellant's submissions did not address the findings of the primary judge or the expert evidence given on this topic.
7. Instead, the appellant complained about an alleged inconsistency in the respondent's evidence about whether ETS is an effective and permanent option. She accepted, however, that this alleged "inherent contradiction" was not questioned or explored in evidence before the primary judge.
8. The appellant next quoted the evidence of Professor Watson, a witness called by the respondent, that "there are other influences on sweating other than just the direct sympathetic fibres" but accepted that Professor Watson was not asked what those other influences were.
9. This evidential gap identified is sought to be filled in the appellant's written submissions by references to Professor Drummond's report (which was excluded by the primary judge) and documentary material which is not in evidence and which is not admissible on this appeal.
10. A further, and fundamental, obstacle to the appellant's success on this point is that all but one of the references the appellant gave did not address the risk of return of palmar hyperhidrosis, but rather risks of abnormal facial sweating, having goosebumps while eating and other forms of compensatory sweating.
11. The only direct reference to evidence about the recurrence of palm sweating referred to by the appellant was based on a document, not in evidence, dated two years after the relevant time, in 2009.
12. The appellant's complaint about the primary judge's findings concerning the warning about the return of palmar hyperhidrosis should be rejected.

Disabling compensatory hyperhidrosis

1. The primary judge found the appellant was adequately warned of the risk of disabling compensatory hyperhidrosis. The experts agreed that the STS Brochure given to the appellant disclosed that risk. The warnings included in the STS Brochure are extracted at [13] above.
2. The primary judge commented that the adequacy of providing warnings through the STS Brochure was not a significant issue in the trial, given that the respondent had verbally warned the appellant of the risks, and it was clear that the appellant had "read and understood" the STS Brochure.
3. The appellant submitted that she was warned of "compensatory sweating", but that this was a misleading term. This was because "compensatory sweating" is not "compensatory", apparently on the basis that compensatory sweating is not synonymous with "compensatory hyperhidrosis". The appellant alleges she should have been warned about the risk of pathological sweating following the procedure.
4. It is sufficient to address the appellant's complaint about this issue to recall that: 1. the appellant pleaded that the relevant failure was one to warn about compensatory hyperhidrosis not "pathological sweating"; and 2. no challenge is made to the primary judge's finding that the appellant had read and understood the STS Brochure and that in that Brochure she was warned of "severe compensatory sweating" that interferes with a patient's lifestyle in 5‑10 per cent of patients.
5. All of the experts who gave evidence, including the three experts called to give evidence by the appellant, addressed the matter on the basis that the "severe compensatory sweating" described in the STS Brochure provided an adequate warning about the risk of "compensatory hyperhidrosis". The appellant accepts that the distinction she now seeks to draw between compensatory hyperhidrosis and severe compensatory sweating was not "tested and explored" in the evidence before the primary judge.
6. The distinction the appellant seeks to draw in her written submissions between "severe compensatory sweating" and "compensatory hyperhidrosis" is put on the basis of a number of articles, none of which were in evidence or before the primary judge. It finds no support in the evidence that was before his Honour or which is before this Court.
7. The appellant's submission concerning compensatory hyperhidrosis should be rejected.

Intercostal neuralgia

1. The appellant accepted that the STS Brochure disclosed "pain" as a possible consequence of the surgery and that the respondent had spoken to her about pain following the surgery. Further, the respondent stated in a letter to the appellant's general practitioner dated 4 August 2006, the day after the initial consultation, that the appellant was "aware" of the risk of intercostal neuralgia.
2. The primary judge concluded that this contemporaneous record was made the day after the initial consultation and well before litigation was contemplated: see [16] above.
3. The appellant submits that the warning she received as to intercostal neuralgia was inadequate, downplaying the possible severity of pain.
4. The appellant's submissions rely on a number of documents, a few of which were in evidence, but which were not regarded as significant by the experts who gave evidence. The further documentary evidence that the appellant relied upon for this submission was not in evidence and, for the reasons given above, should not be admitted on this appeal.
5. The fundamental problem with this aspect of the appellant's case was that she was specifically warned of nerve pain in both the STS Brochure and in discussions with the respondent. The appellant's complaint that the warning was inadequate gained no support in the evidence of the medical practitioners who gave evidence. The concurrent evidence given by the experts, including the three experts called by the appellant, agreed that the warning in the STS Brochure on this topic was adequate.
6. The appellant's submission about intercostal neuralgia should be rejected.
7. Accordingly, I would reject Ground 2(a) of the Notice of Appeal.
8. The appellant next submitted that the primary judge erred in finding that the respondent was not required to warn her of the following risks: 1. Bradycardia, decreased innervation of the heart and exercise intolerance (grouped together by the appellant as effects on the cardiac function); 2. Impairment of emotional response, anxiety, depression and debilitating headaches; 3. Undergoing the procedure at all; 4. Disruption or imbalance of the autonomic nervous system and major effects on regulatory processes due to an altered set point of the nervous system.

Risk of bradycardia, decreased innervation of the heart and exercise intolerance (grouped together by the appellant as effects on the cardiac function)

1. The primary judge found that bradycardia had limited clinical implications, and that "it has not been shown by the evidence in this case to be painful, uncomfortable, distressing, inconvenient, or that it requires further medical intervention or medication." Bradycardia was not a risk that the respondent was required to warn the appellant about.
2. The primary judge found that the appellant was warned that some patients may suffer from abnormal heart rhythm (which warning was contained in the STS Brochure). The appellant was not, in any event, required to be warned of abnormal heart rhythm because she was not within the age category of patients to whom the risk applied. Further an abnormal heart rhythm is different to the slowing of the heart rate which the appellant complained about and pleaded she should have been warned about.
3. An important starting point for the appellant's submission on this topic is her assertion that the primary judge erred in ignoring her evidence about the effects of the procedure on her "functioning". The appellant's medical records list a number of symptoms about which she complained after the sympathectomy (for example, dizziness, numbness in her hands and slowed reaction time). The evidence does not reveal if any of these symptoms are connected to a slowed heart rate, or even if the appellant was experiencing a slowed heart rate at the time of experiencing those symptoms. The appellant's submission, which focussed on her symptoms, related to issues of causation, not to breach of the duty to warn. The fact that the appellant suffered various medical issues following the operation is not, of itself, probative of the existence of known risks she should have been warned about prior to making the decision to undergo the sympathectomy.
4. The appellant's submissions on this issue also quote heavily from the report of Professor Richard Imrich. I have earlier concluded that his Honour's ruling rejecting the admission of that report was correct.
5. The appellant's submissions also misunderstood the nature of a failure to warn case. When challenging the expert evidence of Dr Hugh (an expert called by the respondent), the appellant submitted, "The fact that negative outcomes and adverse effects are not readily publicized cannot define the standard of care, and dictate what the content of warnings are". The primary judge was required to consider the available evidence to determine what was known or reasonably capable of being known at the relevant time as an important part of determining whether a warning was required about that matter. The submission apparently advanced by the appellant that it was not relevant for the primary judge to consider evidence about the extent to which a side effect of a procedure should have been known by a reasonably competent medical specialist practising in the area at the time is not correct. The primary judge correctly considered the available evidence and made findings about the state of knowledge of a reasonably competent medical specialist practising in the area at the relevant time.
6. The appellant submitted that the primary judge's reasoning was based on the STS Brochure, which was misleading, and therefore his conclusions were flawed. She submitted that there is evidence that bradycardia is a direct consequence of a sympathectomy. She submitted that the reference in the STS Brochure to abnormal heart rhythm is included as a risk of any operation or general anaesthetic, and that this "improperly disguised" the direct impact of the procedure on cardiac function.
7. The first critical problem with this part of the appellant's case is that none of the experts, including the three experts called by the appellant, considered that the STS Brochure was deficient in failing to contain any warning about cardiac function, including bradycardia.
8. A second and overarching problem in the appellant's submissions, which is particularly acute in the case of complaints about the failure to warn of effects on the cardiac function, is that she refers to medical literature and reports which are not in evidence. Some of the evidence is identified, some included in the appeal books and some quoted from a source which cannot be determined. This evidence is not admissible. Even if it were admitted, it would not assist the appellant. There is no basis to conclude that these documents comprise an acceptable body of medical opinion. Nor is there any basis to conclude what effect, if any, the material would have on the evidence of the witnesses who gave evidence at the trial, including those witnesses whose reports were filed by the appellant.
9. The appellant's complaint about failure to warn about effects upon the cardiac function should be rejected.

Impairment of emotional response, anxiety, depression and debilitating headaches

1. With respect to the failure to warn of the risks of: 1. suffering anxiety or depression; 2. having an impaired emotional response; and 3. experiencing debilitating headaches; the primary judge found that the respondent did not warn the appellant of these risks, but that he was not required to, since none of the experts who gave evidence considered any of these things to be a "known possible or likely risk or side effect of the procedure".
2. The appellant's submissions regarding each of these risks follow a similar approach: in effect, the submission in each case is that her expert evidence which was excluded and the further evidence that she sought to lead on appeal contradicts the expert evidence given at trial and accepted by the primary judge.
3. I have concluded that the primary judge was correct to reject as inadmissible the expert reports which were excluded from evidence. That conclusion is sufficient to address this complaint by the appellant. Further, having carefully reviewed the appellant's submissions on this topic and the underlying material referred to, I am unable to conclude that even if that material were admitted it would have any impact on the expert evidence that was given at the trial or the primary judge's findings on these issues.
4. The appellant's complaints about the primary judge's findings about warnings concerning the impairment of emotional response, anxiety, depression and debilitating headaches should be rejected.

That the appellant should have been advised to undertake alternative procedures and not to undergo the procedure

1. The primary judge found that the respondent was not obliged to advise the appellant that she should not have the procedure at all. In reaching that finding, the primary judge also concluded that the appellant's symptoms were "comparatively severe". This separate complaint about the same subject matter is the subject of Ground 4(a) of the Notice of Appeal, where the appellant submits this finding was made in error.
2. The primary judge emphasised patient autonomy, particularly where surgery is elective: I take it to be uncontroversial that patients regularly seek out and undergo elective cosmetic procedures. A bilateral endoscopic thoracic sympathectomy is an elective procedure although not classically purely cosmetic. Commonly performed elective cosmetic procedures include rhinoplasty, breast augmentation or reduction, face lifts and blepharoplasty or eyelid revision. Orthodontic intervention for teeth straightening and related procedures are also well known and common. In some cases the need for these procedures may be associated with a surgical candidate's chronic pathological concern for his or her appearance. In others there may be functional medical reasons why the surgery is appropriate. However, as far as the material before me suggests, it has never been the law that a cosmetic surgeon had a legal duty to refuse elective surgery to a patient if the surgeon's personal view, or if the reasonable medical view, was or ought to have been that the surgery was unnecessary or unwarranted. If it were otherwise the availability of purely narcissistic cosmetic procedures would be entirely foreclosed. Such surgeries necessarily carry with them a range of serious and potentially life threatening risks that on one view may appear to be disproportionate to the perceived benefits to be achieved. There may appear to be an ethical dilemma for surgeons offering these procedures in cases where according to their own assessment the risks outweigh the benefits. In such cases it may be assumed that refusing to perform the surgery is an available option.
3. I agree with the primary judge that patient autonomy is an important principle which informs the extent of the duty owed by medical practitioners to warn patients of the risks of procedures they are contemplating.
4. An important problem for the appellant in relation to this complaint is that she conducted extensive investigations prior to consulting the respondent and was enthusiastic about undergoing the procedure. She gave evidence that she believed at the time, based on her own independent investigations, that alternative treatments were inferior to surgery. The appellant was obviously an intelligent and well educated person who had herself conducted considerable research and sought out the respondent to perform a sympathectomy.
5. The appellant had read and understood the STS Brochure which contained a reasonably lengthy description of alternative treatments and concluded on this subject "In general, surgery is contemplated only when the less invasive medical treatments have failed to provide adequate treatment."
6. In those circumstances, the primary judge was correct to conclude, on the evidence before him, that the appellant's symptoms prior to surgery were "comparatively severe". Her behaviour, after having conducted the detailed research she did, including about alternative treatments, and in deciding to go ahead despite understanding that surgery should only be contemplated when the less invasive medical treatments have failed to provide adequate treatment is only consistent with her symptoms being comparatively severe.
7. The appellant's submission that she should have been warned not to undergo the sympathectomy is principally founded upon the excluded evidence and further evidence sought to be tendered on this appeal, which, she submits, contradicts the expert evidence before the primary judge. That evidence is not admissible.
8. The appellant's complaint that the primary judge erred in failing to find that the appellant should have been advised to undertake alternative procedures and not to undergo the sympathectomy should be rejected.

The major effect of the procedure on the autonomic nervous system

1. The appellant also includes as a ground of appeal a complaint about the failure of the primary judge to find that the respondent should have warned her about the major effect of the procedure on the autonomic nervous system and the regulatory processes associated with such.
2. The appellant did not direct any submissions to this complaint, except for her general argument that the procedure was misrepresented to her.
3. The appellant's complaint about this topic suffers from the fundamental difficulty that all the experts who gave evidence were silent about this issue and the surgical conclave was not asked about it.
4. The primary judge was correct to conclude that the respondent's obligation to provide information as to the general impact of the procedure did not extend to the matters concerning the effect of the procedure on the autonomic nervous system complained about by the appellant.
5. For these reasons, Grounds 2(b), 3 and 4(a) of the Notice of Appeal should be rejected.

Ground 4(b) of the Notice of Appeal - factual causation

1. In the second judgment the primary judge made contingent findings regarding factual causation, in the event that his conclusion about breach was wrong. He found that even if the respondent had breached his duty of care and failed to warn the appellant of material risks, the appellant would still have chosen to have the procedure.
2. For the reasons above, I do not consider the primary judge to be in error on the issue of breach. Therefore, it is unnecessary to address the primary judge's contingent conclusions about causation and Ground 4(b) of the Notice of Appeal should be rejected.

Additional issues sought to be agitated by the appellant

1. The above reasons address each of the grounds in the Notice of Appeal. There were, however, two additional matters raised in the appellant's written submissions that should be briefly addressed.

Alleged miscarriage of justice by incompetence of counsel

1. The appellant complained in her written submissions that she suffered a miscarriage of justice as counsel representing her: 1. did not effectively prepare, examine and cross-examine the witnesses in the trial; and 2. did not properly understand, plead or argue her case.
2. The crux of this argument is that her counsel at the trial did not understand her claim properly, nor prepare sufficiently to enable him to effectively engage with the expert witnesses.
3. This issue is not raised in the Notice of Appeal. For that reason, the availability of such a complaint should not be determined in the present case.
4. I am prepared to accept that there may be circumstances in which it will properly be arguable that a judgment in a civil trial may be set aside as a miscarriage of justice by reason of the incompetence of legal representation. I agree with what Basten JA said in Bott v Carter [2012] NSWCA 89 at [28], that: the plurality [in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1] accepted that incompetence of counsel might provide a basis for setting aside a judgment and orders at trial if it had created a miscarriage of justice: at [82]. (Although the reasoning dealt with a criminal trial, the same result may follow in respect of a civil matter.)
5. Even in that context, however, the mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a judgment as a miscarriage of justice.
6. In the present case, assuming the appellant were given leave to pursue this claim, I would conclude that the appellant has not shown any miscarriage of justice by reason of the exclusion of the inadmissible expert reports or failure to cross-examine or challenge the admissibility of the expert evidence which was given. There is nothing to suggest there was evidence that was not brought to the attention of the primary judge that could have materially changed the outcome of the case. Further, a number of the critical experts gave concurrent evidence to facilitate the Court's understanding of the issues in dispute. Those experts, including those called by the appellant, gave evidence fatal to the appellant's case.
7. As to the appellant's complaints about the way the case was pleaded and argued at trial, there is no basis to conclude that any miscarriage of justice occurred. The appellant's real complaint, it now appears, is that the description of the procedure in the STS Brochure is different to the procedure correctly understood and properly described. The appellant has based this comparison on all of the material she seeks to tender on this appeal. I have concluded that this material is inadmissible. The appellant's case at trial was significantly different to that which she sought to advance on appeal.
8. Even if the appellant were given leave to pursue this claim, she has not established that she suffered any miscarriage of justice by virtue of how the case was conducted before the primary judge.

Trespass

1. The appellant's written submissions, but not her grounds of appeal, also invite this Court "to allow an alternative pleading under TRESPASS" (emphasis in original).
2. The only place trespass was addressed in the Notice of Appeal was in seeking order 7 that: Determination if [sic] the procedure, in light of the documented effects and side-effects and substantial difference as to the nature of interference with bodily systems and organs, constitutes trespass to a person and substantial wrong.
3. To the extent that including this order in the Notice of Appeal can be treated as an application to amend her pleadings and conduct a case of trespass, leave should be refused.
4. It is axiomatic that a party ordinarily should not be permitted to raise a new point on appeal: Coffs Harbour City Council v McLeod [2016] NSWCA 94 per Gleeson JA at [42]; Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [51].
5. In the present case, the appellant has not established that she suffered prejudice by virtue of the way the case was pleaded below and, in particular, she has not established that any different conclusion would or even might have been reached if her case was pleaded in trespass.
6. It would be an unacceptable departure from basic principle to permit the appellant to amend the Notice of Appeal and the pleading now to allege trespass. This issue was not the subject of a separate ground of appeal. The request for an amendment was buried deep in the submissions at pages 42 and 105 of the 152 pages of the appellant's submissions. No application to amend was made in oral submissions before this Court.
7. Leave to amend the Notice of Appeal to allege a new case based on trespass should be refused.

Conclusion and orders

1. For the above reasons, I would dismiss the appeal. The orders I propose are as follows: 1. Notices of motion dated 20 August 2015 and 4 September 2015 dismissed. 2. Appeal dismissed. 3. The appellant pay the respondent's costs of the appeal on a party‑party basis as agreed or assessed. Table A (98.8 KB, doc) Table A (303 KB, pdf)
2. EMMETT AJA: This appeal is concerned with a claim by the appellant, Ms Maria Morocz, that she was not adequately warned by the respondent, Dr David Marshman, of the possible consequences of a medical procedure carried out on Ms Morocz by Dr Marshman for a condition known as hyperhidrosis. Ms Morocz sued Dr Marshman in the Common Law Division of the Supreme Court. On 17 April 2015, a judge of the Common Law Division (the primary judge) ordered that the proceedings be dismissed. On 29 May 2015, the primary judge ordered Ms Morocz to pay Dr Marshman's costs on the indemnity basis from a date following the expiration of an offer of compromise made to Ms Morocz.
3. The primary judge found that Dr Marshman warned Ms Morocz of all matters that the experts who gave evidence indicated she should have been warned about and that she underwent the procedure knowing those matters. His Honour also concluded that any other matters that Ms Morocz established that Dr Marshman failed to warn her about were not matters that he was required to mention.
4. Ms Morocz now appeals to this Court from the orders made by the primary judge. By her second amended notice of appeal, Ms Morocz raised numerous grounds of appeal. In her submissions, Ms Morocz also sought leave to tender a substantial volume of further documentary evidence on the appeal. Ms Morocz also made complaints in her submissions about the competence of her representation before the primary judge. Finally, Ms Morocz, in her submissions, sought to invite this Court to allow an alternative pleading of trespass, which had not been raised at first instance.
5. I have had the considerable advantage of reading in draft form the proposed reasons of Payne JA, who has addressed the grounds of appeal and extensive submissions made by Ms Morocz in considerable detail. I agree with his Honour that the appeal should be dismissed. I agree with the orders proposed by his Honour.

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