Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269; 162 ALR 540; 73 ALJR 782

Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269; 162 ALR 540; 73 ALJR 782 - HCA 1999 case summary — Zoe

[74]

· The power of the judge to withdraw the decision from the jury was one to be exercised with considerable caution[75]. > > · It was to be exercised where the only possible verdict which could reasonably be open on the evidence adduced at the trial was one for the defendant. > > · In evaluating the jury's response to the evidence, there was attributed to them not only reasonableness in the finding of facts and the drawing of inferences from those facts[76] but also that they were people of "ordinary sense and fairness"[77] who would bring these qualities to bear in making their findings upon the disputes of fact which the judge left them to decide. > > · A distinction was drawn between inferences (which a jury may properly draw from the facts) and mere conjecture or speculation (which is not permissible)[78]. > > · But the question was never, as such, whether the judge, if he or she were the tribunal of fact, would draw the inferences and make the findings which the plaintiff invited[79]. It was not whether the judge thought the case made for the plaintiff was probable or improbable[80]. It was whether the jury, presumed to be reasonable and accurately instructed on the law, could properly find that every ingredient in the plaintiff's case was established[81]. > > · In approaching a decision on these questions it must be assumed in the plaintiff's favour that the jury will take a view of the evidence most favourable to the plaintiff[82] and will reject all evidence and inferences favourable to the defendant[83]. The judge's role was not that of balancing the weight which he or she would personally attribute to the respective cases of the plaintiff and the defendant. No amount of contradictory evidence, even if it were overwhelming, would warrant the withdrawal of a civil case from the jury[84]. If, approached in this way, the facts could reasonably justify a finding in favour of the plaintiff upon the contested elements in the claim, receiving the jury's verdict was an entitlement of law. The judge had no lawful authority to deprive the plaintiff of it[85].

[147]

"COUNSEL: I suggest to you that whilst he might have, there was nothing in any way untoward in his treatment in Mr Jensen deciding not to conduct a angiogram, having regard to the course he followed and to the findings that Mr Jensen himself made? > > Yes, I still believe that one should have considered the undertaking of an angiogram after considering all of the pattern. > > COUNSEL: But the decision not to perform a angiogram, you would not consider, I suggest, to have been in any way in dereliction of Mr Jensen's duty or anything of that nature? > > No, I don't think it is negligent at all. I think it should have been a matter that perhaps should have been considered. > > COUNSEL: Yes, but it is certainly not a question, it is not a matter that, on looking at the notes and reviewing the case completely, a decision not to conduct a angiogram would not in the circumstances - you would not regard it as in any way negligent, would you? > > I don't believe it is a negligent act, I think as I said it is something which should have been considered calmly at the time in view of the pattern of the whole situation. > > ... > > HIS HONOUR: Did you wish to add to what you have just said, Mr Klug? > > What I was saying, your Honour, is I think that after considering all of the information, then as I said before I believe that consideration should have been given to undertaking an angiogram to exclude any other cause of the subarachnoid haemorrhage. > > COUNSEL: Yes, but a decision not to conduct a angiogram you wouldn't consider in the circumstances to have been a decision that was in any way careless? > > No, no, I don't think it is careless, I think it is a variation of interpretation. I think, for instance, if 10 neurosurgeons had faced this problem, a number may have said 'let's do an angiogram' and a number may have said it is not necessary. I think there would have been a difference of opinion here. My opinion, from my analysis of the case, I felt that there was a reasonable ground to consider the undertaking of the angiogram." (Emphasis added)

[177]

"The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case', in the words of Lord Reid: Stapley v Gypsum Mines Ltd[141]. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co v Norwich Union Fire Insurance Society[142]; Admiralty Commissioners v SS Volute[143]; Yorkshire Dale Steamship Co v Minister of War Transport[144]; Alphacell Ltd v Woodward[145]; McGhee v National Coal Board[146]. It is supported also by this Court's decision in Fitzgerald v Penn[147]. > > It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability [Wrongs Act 1936 (SA), s 27], the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense. > > Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing[148]. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments[149]. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn[150] 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula'[151]."

At a glance

Court

Decision date

Before

Source

Judgment (324 paragraphs)

Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269; 162 ALR 540; 73 ALJR 782 (13 May 1999)

Parties

Legislation Cited (2)

Cases Cited (37)