Shead v Hooley

COUNSEL : A: Mr S Walmsley SC, Ms F Clark R: Mr G B Hall QC, Ms I Ryan SOLICITORS : A: Phillips Fox R: Hunt & Hunt CATCHWORDS : Negligence - Medical Negligence - whether surgeon failed to give adequate warning of possible adverse consequences - whether surgeon operated without undertaking sufficient investigation - whether the practice of surgeons was given sufficient weight by trial judge - whether failure to warn was a cause of injuries suffered by patient - whether patient's evidence proved this loss flowed from failure to warn - whether damages flowed from failure to warn - whether pre-operative condition should be taken into account in assessing damages. Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 Watts v Rake (1960) 108 CLR 158 Coulton v Holcombe (1986) 162 CLR 1 Devries v Australian National Railways Commission (1993) 177 CLR 472 Brunskill v Sovereign Marine & General Insurance (1985) 59 ALJR 842; 62 ALR 53 Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23 CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Warren v Coombes (1979) 142 CLR 531 Rogers v Whitaker (1992) 175 CLR 479 Ainsworth v Levi (NSW Court of Appeal, 30/8/95, unrep) Chappel v Hart (1998) 195 CLR 232 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 DECISION : Appeal and cross-appeal dismissed. See paragraphs 77 and 78.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P BEAZLEY JA DAVIES AJA

JUDGMENT 1 MASON P: Davies AJA, with whose reasons I agree, explains why surgery on 22 January 1993 without an immediately preceding gastroscopy did not entail any negligence. However, the verdict based alternatively upon negligent failure to warn of the risk of gastroparesis should stand, for the reasons his Honour gives. 2 This leaves the challenges to damages. I agree with Davies AJA, but wish to add some additional comments. 3 A plaintiff who succeeds solely on the ground of negligent failure to warn of a risk attending an operative procedure will have damages for physical injury assessed on the basis that he or she would not have undergone that procedure that day had there been a proper warning. 4 But it does not follow that the plaintiff will be deemed healthy but for the surgical intervention. His or her pre-existing medical condition and its propensity to develop must be taken into account. The negligent surgeon is not liable to compensate in respect of that for which he or she bears no responsibility (see Wilson v Peisley (1975) 50 ALJR 207 at 209, 212; 7 ALR 571 at 574, 581-2, Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498-9). 5 Sometimes the plaintiff's prognosis and the surrounding evidence are such as to lead the court to conclude that a proper warning would have led to deferral but not cancellation of the operation. Leaving aside the situation addressed in Chappel v Hart (1998) 195 CLR 232 (where the negligently omitted warning was held to have increased the risk of the catastrophe occurring), the damages payable to such plaintiff should allow for the acceleration of the catastrophe (Chappel at 286-7), but they should not ignore the intervening discomfort of the original condition nor should they treat the catastrophe itself as the compensable consequence of the initial negligence. 6 In the present case the assessment of damages did not proceed along these lines. Perhaps all parties were concentrating upon the alternative claim of negligent surgery, which succeeded below but which fails in the Court of Appeal. 7 The appellant submits that the damages should be reduced to reflect the possibility that, independently of his negligent failure to warn about gastroparesis, the respondent would at some later date have sustained the post-operative injuries of which she complains. This submission encounters two difficulties: first, this was an area where the appellant bore an evidentiary onus (Watts v Rake (1960) 108 CLR 158 at 159, Chappel at 263, 273-4, 278); secondly, the case was not run this way at trial and the respondent might have conducted her case differently if it had been (Coulton v Holcombe (1986) 162 CLR 1). In these circumstances, it would be unjust to allow the appellant to raise this issue for the first time on appeal - all the more so, because of the possibility on the evidence that the ulcer was healing and would have been shown to be healing in the event of a gastroscopy or other procedure before the hypothetical deferred surgery. 8 BEAZLEY JA: I agree with Davies AJA. 9 DAVIES AJA: This is an appeal from the judgment of a Judge of the District Court of New South Wales, his Honour Judge Goldring. The respondent, Ruth Lesley Hooley, had sued the appellant, Dr Geoffrey Vernon Shead, for damages for pain, suffering and injury following an antrectomy (surgical removal of the lower third of the stomach) and a vagotomy (cutting the trunk of the vagus nerve to stop it secreting acid) which Dr Shead, a consultant surgeon, had performed. The learned trial Judge gave judgment for Ms Hooley in the sum of $933,363. 10 Ms Hooley was a trained nurse and had for many years been employed on a part-time basis in the Intensive Care Unit at St Vincent's Hospital and for periods at Prince of Wales Hospital. She had also studied for a Bachelor's degree in Theology and was employed as a teacher of Religious Studies and English at Our Lady of Mercy College, Parramatta. In 1992, as a result of ill-health, Ms Hooley gave up or gave up substantially her part-time nursing but she continued to teach. 11 Ms Hooley had a history of medical problems, of which I mention only those relevant to the operation which was performed. In 1976, Ms Hooley suffered a gastric ulcer which was treated with drugs. In the late 1980's, Ms Hooley suffered from nausea, bloating and discomfort, symptoms which appeared to be related to gastric problems. Suffering from abdominal pain which radiated to the back, she consulted her general practitioner who, in February 1990, referred her to a gastroenterologist, Dr Elliott. Dr Elliott diagnosed helicobacter pylori gastritis, perhaps associated with superficial ulceration which may have caused problems in the past. He treated Ms Hooley with drugs, two courses of what is known as "triple therapy". 12 In 1991, Ms Hooley again consulted her general practitioner. She was suffering from pain which radiated through to her back and was feeling bloated and was having difficulty with eating. The general practitioner considered that Ms Hooley was again suffering from an occurrence of helicobacter pylori and treated Ms Hooley with drugs. In February 1992, Ms Hooley saw her general practitioner complaining of bloating, nausea and discomfort. On 27 July 1992, Ms Hooley saw her general practitioner complaining of epigastric pains. Zantac Pro-10 was prescribed and she was referred to Dr Elliott. 13 Ms Hooley saw Dr Elliott on 3 August 1992. He noted symptoms of severe epigastric pain, vomiting and an incident of haematemesis, that is a blood show, associated with vomiting. On 6 August 1992, Dr Elliott performed a gastroscopy and ascertained that there was a 3-4cm linear gastric ulcer in the pre-pyloric region. As the two courses of "triple therapy" had not overcome the problem and as he thought she was responding to Ranitidine, Dr Elliott continued with that drug. On 17 September 1992, Dr Elliott performed a follow-up gastroscopy. This showed that the pre-pyloric ulcer seemed to be healing but a 2cm linear gastric ulcer was still present. Given the failure to achieve better healing, Dr Elliott changed the drug to Omeprazole (Losec). 14 On 29 October 1992, Dr Elliott performed another gastroscopy. This failed to show any significant healing of the pre-pyloric ulcer. A second small superficial ulcer was also present in the pre-pyloric region. He noted that biopsies on the last occasion had confirmed a benign ulcer with large numbers of helicobacter pylori associated. Dr Elliott decided to treat Ms Hooley with Omeprazole, Tetracycline and Flagyl, the "triple therapy". He wrote to the general practitioner to say that this combination had been unsuccessful when tried previously but that the only other option would be surgical management. 15 On 26 November 1992, Dr Elliott noted that Ms Hooley had been troubled by continuing epigastric pain and had had three small haematemeses of bright blood over the last month. She had also lost 2.5kg in weight. He performed a further gastroscopy which showed marked inflammation in the antral region with several superficial ulcers and persistence of her chronic gastric ulcer. Dr Elliott wrote to the general practitioner to say that the failure of healing in the last eleven weeks would make it unlikely that the ulcer would heal medically. He recommended surgical treatment. 16 By this time, Ms Hooley was having problems with eating. She was suffering severe pain and was being woken up with pain during the night. She frequently vomited, sometimes bringing up blood. She was feeling bloated and was losing weight. 17 The general practitioner referred Ms Hooley to Dr Shead, a surgeon. Dr Shead noted that Ms Hooley had had a pre-pyloric gastric ulcer for six months, that she had had pain almost continuously since the onset and that the pain was centred in her abdomen, back and shoulder. Dr Shead recommended surgery. He wrote to the general practitioner to say that Ms Hooley had had a history of six months of ulceration which had not responded to medication, of pain which was now radiating into the back and shoulder and of vomiting which was occasionally bloodstained. Dr Shead said that Ms Hooley was a reasonable candidate for surgery. Dr Shead asked for the results of any investigations and medical reports done during the past few months. Dr Shead wrote at the same time to Dr Elliott expressing his view. He said that he was interested to have Dr Elliott's opinion as to Ms Hooley's current situation and also the results of any investigations and biopsies. 18 On 17 December 1992, Dr Elliott wrote to Dr Shead summarising Ms Hooley's history and saying, "I feel that she is now a candidate for surgical treatment and I understand that you have arranged this for her early in the New Year". On 18 January 1993, Dr Shead replied to Dr Elliott thanking him for all the information that he had sent and advising that he expected Ms Hooley would be coming into the hospital towards the end of the month for surgery. 19 Ms Hooley's condition appeared to deteriorate, if anything, during December 1992 and January 1993. In December, the general practitioner prescribed Pethidine, a narcotic, for the pain. Ms Hooley saw her general practitioner again on 14 January 1993 and he ordered blood tests. On 18 January 1993, she saw her general practitioner and was prescribed further Pethidine. Ms Hooley gave evidence that during December/ January she suffered more severe pain than ever before. Ms Hooley was admitted to Westmead Hospital on 21 January 1993 and, on 22 January 1993, Dr Shead performed the truncal vagotomy and the antrectomy. 20 The operation performed by Dr Shead was a standard operation for dealing with her problems. The removal of the lower third of the stomach not only removed the ulcers in that part of the stomach but also removed cells in that region of the stomach which stimulated acid secretion. The cutting of the vagus nerve also impaired acid secretion. No complaint has been made as to the manner in which the surgery was carried out but complaint has been made as to whether it was proper for Dr Shead to operate when he did, particularly without undertaking a further investigative gastroscopy, or ensuring that it was performed. Complaint has also been made that Dr Shead failed to give a proper warning of possible adverse consequences of the operation. 21 Two aftermaths of the surgery were significant. First, tissue removed during the operation was sent for a pathological analysis. It was ascertained that the ulcer previously seen in the pre-pyloric region had healed, although evidence was found of gastritis and of a 1.5cm superficial ulcer in the antrum. 22 Secondly, there are many possible consequences of the operation which was performed. One may be gastric retention with associated "dumping" and diarrhoea. The trial Judge accepted that gastric retention for more than one month occurs in 3 to 9 per cent of cases, sometimes requiring further surgery. The trial Judge accepted Dr Shead's evidence that, based on reported incidents, the chance of prolonged chronic gastroparesis as severe as Ms Hooley suffered was about one in 10,000 cases. 23 After the operation, Ms Hooley suffered from great pain and discomfort. It became clear that she was suffering from delayed gastric emptying and, as the condition continued, that she suffered from gastroparesis. Ultimately, Ms Hooley's pain and discomfort was so great that another surgeon, Dr Coleman, on 24 November 1993, performed a gastrectomy (removal of her stomach).

Medical Treatment or Surgery? 24 Dr C R Vickers, a gastroenterologist who had been called in to advise Ms Hooley after she had developed gastroparesis, reported and gave evidence that, in his view, Ms Hooley had not arrived at the point where surgery, such as that performed by Dr Shead, had been called for. He expressed the view that Dr Elliott had not tried all possible drugs and that, in any event, the ulcer found by Dr Elliott in August 1992 had shown signs of healing and had reduced from at least 3cm to 2cm. He said that the ulcer may have reduced even more than that as Dr Elliott's later reports did not express an actual measurement of the ulcer and perhaps he had not measured it. Regarding surgery, Dr Vickers said in cross-examination:- "If her symptoms and her haemorrhage were severe and there was a true risk of malignancy and the ulcer was truly non healing and was responsible for those symptoms, surgery was an option. But it has to be the surgery of last resort."

In brief, Dr Vickers thought that the time for surgery had not arrived and that, as the ulcer had showed signs of healing, medical treatment was called for. 25 However, Dr Vickers' view on these points was inconsistent with the views of all other medical experts in the case. The views of Dr Shead and Dr Elliott, that surgery was appropriate, was supported by the evidence of Dr Brown and Dr Hugh, surgeons, both of whom gave written and oral evidence, and Dr Perkins, a gastroenterologist, who reported but did not give oral evidence. There was also another witness, Dr Katherine Ellard, a gastroenterologist. Dr Ellard was called in the plaintiff's case. Her evidence was given clearly and without equivocation. In the course of her evidence, Dr Ellard, when speaking of the treatment, said:- "At that stage I think most gastroenterologists would have put their hands up in horror and said: 'We are not going to be able to eradicate this organism. I cannot promise it will make the ulcer heal anyway and we should look at surgery.' … … I would have referred this patient to a surgeon. … I think she had been given gold standard Helicobacterpylori eradication therapy for that time and I think that is as much as one could reasonably have expected to do." 26 As to the fact that the pathology report did not find the chronic ulcer, Dr Ellard said:- "… The other abnormalities seen on that report show there had been chronic inflammation and so there may have been some superficial ulcers on that particular day but the report does confirm that there was a chronic process going on. … The fact that new superficial ulcers are developing when this woman was on maximal treatment is really unusual." 27 On the whole of the evidence, the trial Judge found that Dr Shead had not been negligent in recommending surgery. The trial Judge said that the surgery undertaken was a standard treatment at the time. His Honour said:- "In this case no criticism was made by the experts called by either party of the surgical techniques used by Dr Shead. The majority of them agreed that surgery was indicated, and that the procedure carried out by Dr Shead was appropriate."

I take those sentences to be a finding which rejected Dr Vickers' view that Ms Hooley's condition had not reached the stage where surgery was indicated.

On-table Gastroscopy 28 However, his Honour agreed with another criticism made by Dr Vickers. Dr Vickers said that, in his opinion, the surgery should not have proceeded unless a further gastroscopy had been taken either shortly before the operation or at the time of the operation to see whether or not Ms Hooley's ulcer was healing. 29 Dealing with this point, it is necessary to look at the evidence in a little more detail. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said, at p 479:- "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. (See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167.) If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ( S.S. Hontestroom v S.S. Sagaporack [1927] AC 37, at p 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill (1985) 59 ALJR, at p 844; 62 ALR, at p 57)."

See particularly Abalos v Australian Postal Commission (1990) 171 CLR 167. 30 However, when, as in the present case, the findings of a trial Judge do not depend on matters of credibility, the approach of the Court is different. In Devries, at p 479, Deane and Dawson JJ said:- "An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence."

See also State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588. This point has particular application when the findings which are challenged are inferences drawn from the primary facts, which have been found by the primary judge or otherwise established, rather than the primary facts themselves (see Warren v Coombes (1979) 142 CLR 531). 31 In the present case, the findings of the trial Judge do not depend to any marked extent on matters of credibility. Rather, it seems to me, his Honour misapprehended the substance of the evidence before him. 32 The trial Judge said that, "The evidence of all the experts, including Dr Shead himself, is that in cases such as that of Ms Hooley, surgery must be a last resort". His Honour went on to find that:- "In this case there was one step which was not taken and which, I find, despite the evidence of Dr Hugh and Dr Brown to the contrary, would have been reasonable, and that was to undertake a further gastroscopy, if not in the operating theatre, then within a week or so prior to the operation. If that had been done, it would have revealed that the chronic ulcer had healed, and that there were remaining acute ulcers and gastritis for which the proper treatment was, even given Ms Hooley's previous unfortunate lack of response to medication, medical rather than surgical, and the vagotomy and antrectomy would not have proceeded at that time. Though it was not pleaded specifically, I find that on the evidence it may well have amounted to a breach of duty for Dr Shead to have operated more than 6 weeks after he had examined Ms Hooley, at least without further reports from the referring gastroenterologist or at least the GP on her condition and use of drugs in the intervening time. The only report from the treating gastroenterologist, Dr Elliott, to Dr Shead, referred to his conclusions formed before December 9. A later report might have revealed improvement in her condition, and should have indicated the use of narcotic analgesics." 33 The reference by his Honour to "last resort" does not, in my opinion, reflect accurately the effect of the evidence given by the experts other than Dr Vickers. The true position appears to have been adequately expressed by Dr Perkins, who reported, "The surgery performed - truncal vagotomy and antrectomy - is entirely appropriate for prepyloric ulceration that remains after adequate medical therapy". Even Dr Vickers said, in his evidence, that the operation, if performed, was better performed at a time of election rather than at a time of emergency. 34 The effect of Dr Shead's evidence was that the circumstances were such that surgery was called for and that a gastroscopy was not a usual part of the operation except in an emergency situation. Dr Shead said:- "A. She was presented to me as a patient who had severe abdominal pain radiating through into the back since August which had not responded to treatment and which was associated, in Dr Elliot's words, with several small haematemeses. Haemato for blood, emesis is vomiting. … A. … The patient still had pain. That circumstance had not change [d] and the fact that she had haematemesis was relevant because haematemesis can occur as much as from acute ulceration as from chronic ulceration. Haematemesis occurs - I will leave it at that. Patients have died from haematemesis from acute ulceration. So whatever the cause of her pain in relation to her condition, and it may have been due to the chronic ulcer, it may have been due to the acute ulceration, it may have been due to the acute chronic gastritis which we know was present from the previous biopsies in the antrum away from the ulcer, any of those may have produced the pain. In fact, the pain went through to the back and it is generally understood that back pain in the presence of ulceration is caused by stimulus of nerves in the pancreas which lies immediately behind the antrum of the stomach. So presumably the inflammatory process or the ulcer if it is a deep one stimulates those nerves and produces the pain. So there were several causes for her pain. She still had pain and that was the reason for doing the operation even though the chronic ulcer may have healed." 35 Dr Hugh reported to like effect:- "On-table gastroscopy is not a routine part of a peptic ulcer operation and many peptic ulcer surgeons are in fact not trained in gastroscopy. In any case, I disagree with the view that on-table endoscopic findings should influence the decision about an elective ulcer operation. Such a suggestion ignores of one of the fundamental characteristics of peptic ulceration which is that it is episodic . This means that the ulceration process fluctuates over time, with regular bouts of healing followed by relapse. The endoscopic findings on a particular day have to be put into the context of the overall clinical course, which in this case was one of intractability with continuing disabling symptoms and periodic breakdowns of the ulcer. It was this intractable clinical course which was the indication for operation, and single endoscopic findings would be relatively unimportant in the overall management decisions."

Dr Hugh was not cross-examined on that part of his evidence. 36 Dr Elliott, Dr Perkins and Dr Brown expressed no view about an on-table gastroscopy. However, Dr Ellard, who was called in Ms Hooley's case, was plainly against Dr Vickers' view on this matter. Dr Ellard's view was that surgery had been indicated and that delay was undesirable. Dr Ellard said that she had never encountered an occasion where there was an on-table gastroscopy performed except in an emergency situation. Dr Ellard gave this evidence:- "Q. You would expect the circumstances to be emergencies? A. Certainly, used in emergency surgery where the ulcer is really pumping away, really bleeding, sometimes endoscopy is done by the surgeon at the time of surgery in order to try and stop the bleeding by using a laser or injecting the ulcer with adrenalin or some other circumstances so surgery is not necessary. Very occasionally they might do an endoscopy to localise a particular abnormality in the stomach but I have not heard of it done under these sort of circumstances." 37 Dr Vickers, of course, had started from the viewpoint, which the trial Judge did not accept, that surgery had not been indicated. Dr Vickers went on to express the view that the surgeon should, in any event, have performed an on-table gastroscopy. However, his evidence in support of this view was most unsatisfactory. Dr Vickers gave this evidence:- "Q. Doctor, I suggest that in circumstances where procedures of the type that Miss Hooley had carried out, it was very unusual for such a procedure to be carried out at this time, a gastroscopy on-table prior to surgery? A. I totally disagree. People who come in haemorrhaging from the stomach they go to the operating theatre and you have to perform a gastroscopy to know the exact site of the bleeding. You have to know where it is coming from. Q. You speak, do you, in those circumstances of something more akin to an emergency procedure? A. Yes. Q. Where the symptoms are not so dramatic, it's unusual, isn't it, it was unusual at that time? A. It's unusual because the fact that most people who get operated on for elective ulcer surgery are done very quickly. So there's not likely to be much change in the nature of an ulcer between the last endoscopy and the surgery. This particular case is markedly different to the usual. We have a space of nine weeks and nine weeks of on-going treatment for an ulcer, of an ulcer that was already decreasing in size." 38 One can see that, when it was put to him that it was unusual that the procedure was carried out in circumstances such as Ms Hooley's, Dr Vickers expressed himself with the extravagant words, "I totally disagree". Yet, he could support his opinion only by reference to an emergency situation. As Dr Vickers was being asked as to whether the procedure was unusual in circumstances such as Ms Hooley's, which was elective surgery, he ought to have replied, as Dr Ellard did, that he had never encountered it. Dr Vickers did not point to any occasion where a surgeon, in the position of Dr Shead, had performed a gastroscopy. 39 Although Dr Vickers emphasised that surgery should have been a last resort, it is interesting to compare the evidence he gave as to the conduct of Dr Elliott and Dr Shead with his evidence as to the subsequent operation when there was a complete gastrectomy, that is, the removal of the whole stomach. This took place with the approval of Dr Vickers at a time when Dr Shead had recommended that, because tests showed that the stomach was showing signs of improvement, more time should be given to allow the gastroparesis to subside. Dr Vickers said that he approved of the decision to operate because Ms Hooley had lost weight and she was a desperately ill woman. She had severe vomiting and could not eat without vomiting. This was affecting her psyche as well. In his view, the most likely procedure to help her was a complete gastrectomy. 40 That evidence is reminiscent of the picture which Ms Hooley was presenting in December 1992, when she was vomiting, suffering from haematemesis, losing weight and in great pain, pain of such a nature that she sought and received narcotics. I am not criticising Dr Vickers' approval of the decision that there be a complete gastrectomy. I merely point out that decisions to operate may be made having regard to the total condition of the patient. 41 It seems to me that the finding of the trial Judge of liability on this count was wrong. Dr Shead recommended surgery and operated when Ms Hooley was admitted to Westmead Hospital. In the meantime, the symptoms which Ms Hooley described had, if anything, got worse. Between recommending surgery and undertaking the surgery, Dr Shead had written to the general practitioner and to Dr Elliott advising of the course that he proposed. He had sought access to the reports. He read those reports and read the opinion which Dr Elliott expressed to him that surgery was appropriate. I cannot see any element of negligence in Dr Shead's proceeding to operate on 22 January 1993. 42 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said, in Rogers v Whitaker (1992) 175 CLR 479 at 487, that the content of the duty of care is not to be determined either solely or even primarily by reference to the practice followed by or supported by a responsible body of opinion in the profession. It is a matter for the courts. Their Honours went on to say, however, at p 489:- " 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 …" 43 Similarly, in Ainsworth v Levi (NSW Court of Appeal, 30 August 1995, unreported), Mahoney JA said:- "This does not mean that 'the practice followed or supported by a responsible body of opinion' is irrelevant. Evidence as to that practice may help to decide what proper care and skill requires to be done and it may be evidence that the defendant, in doing a particular thing, acted with proper care and skill. But, in the end, 'it is for the courts to adjudicate upon what is the appropriate standard of care'." 44 As I mentioned earlier, the whole of the medical evidence seems to suggest that, at the time, the medical profession considered that truncal vagotomy and antrectomy were appropriate for pre-pyloric ulceration which medical treatment had failed to heal. The evidence of all the medical practitioners other than Dr Vickers was that, on the information available to Dr Shead, Ms Hooley's condition had failed to heal and surgery was called for. The trial Judge accepted the medical evidence on this point. The evidence was further that, having made the decision that medical treatment had failed and that surgery was called for, it was not usual for a surgeon to do an on-table gastroscopy. Indeed, no medical practitioner, including Dr Vickers, gave evidence of ever having encountered such a procedure otherwise than in an emergency situation. 45 In a case such as this, it seems to me to be wrong to infer negligence on the part of Dr Shead when he performed the surgery which all medical practitioners who gave evidence other than Dr Vickers said was the appropriate treatment to be given. 46 It seems to me that, by referring to the surgery as a "last resort" and by determining that an on-table gastroscopy ought to have been performed, the trial Judge was exercising a clinical judgment which did not conform with the approach of those who were skilled in the field. In my opinion, his Honour's approach was wrong. His Honour also found that it may have been negligent for Dr Shead to operate more than six weeks after he had examined Ms Hooley. However, this was not pleaded as a particular of negligence and neither the allegation nor the reason why time passed before Ms Hooley was admitted to hospital was investigated. The proposed notice of contention should not be accepted in this respect. 47 As to whether there should have been a gastroscopy undertaken between the time of Dr Elliott's last gastroscopy in November 1992 and Ms Hooley's admission to hospital, that seems to me to have been a matter for the gastroenterologist, Dr Elliott. He did not undertake one during that time and he did not suggest that one should be taken. Of course, he was of the view that surgery was indicated.

Failure to Warn 48 The trial Judge held that Dr Shead gave no adequate warning to Ms Hooley of the possible consequences of the surgical procedure. Dr Shead himself had acknowledged that there were many possibilities of the surgery which could be serious. He had thought it was not necessary to warn of the risk of gastroparesis because there were other possibilities which were of equal or greater significance. In this respect, Dr Shead referred to pulmonary embolism and went on to say:- "A. I didn't warn her of that. I didn't warn her that she might have a post-operative haemorrhage and that may cause death and occurred at 1.5 per cent. I didn't warn her that her wound might dehisce, her intestines come out on the bed in the hospital and she has to go back to the theatre to be operated upon again. I didn't warn her that she might have a leakage from the anastomosis producing peritonitis and perhaps death which occurred in 2.4 per cent. I didn't warn her of wound infections which have 7 per cent or of acute pancreatitis or of intestinal obstruction. There are many complications occurring in the early phase after an operation and they include delayed gastric emptying which, as I say, like the others is an early complication but not nearly so severe as these other complications of which I did not warn her."

Those, of course, were not the only serious consequences which could flow from the operation and the trial Judge referred to others. 49 A notice of contention that has been filed in relation to his Honour's finding that it was not necessary for Dr Shead to give a warning about prolonged chronic gastroparesis, which Ms Hooley suffered, as the number of reported incidents were so slight. In my opinion, the trial Judge was wrong to distinguish specifically between short-term and prolonged gastroparesis. The condition of significant delayed gastric emptying was a recognised incident of the surgery, occurring in the vicinity of 3 to 9 per cent of cases. In most cases, the problem rectified itself within a reasonable period but, on occasions, there were long-term problems and a complete gastrectomy was a recognised means of dealing with the matter when prolonged gastroparesis occurred. 50 In my view, it is clear that the warnings given by Dr Shead were perfunctory only. They were warnings that an ulcer might recur and that there could be diarrhoea and "dumping". Those matters were not of the seriousness of the matters referred to by Dr Shead in the passage I have set out above, nor of the seriousness of gastroparesis, nor of that of the several other problems mentioned by the trial Judge. I do not suggest that Dr Shead was bound to mention each of the possible consequences individually, but he was bound to make it clear to his patient that there might be very serious consequences and what was the nature of those consequences. One of the possibilities was gastroparesis, which was sufficiently common to be discussed. In addition to the evidence of Dr Vickers that Ms Hooley should have been warned of gastroparesis, there was evidence from Dr Ellard that a warning should have been given. It was her practice to warn patients of possible adverse consequences once the risk was above 1 per cent. In the case of chronic delayed gastric retention, the figures of 3 to 9 per cent were given in the textbooks. Some patients developed the condition after the surgery but in subsequent weeks improved as their stomachs started to work again. A smaller number of patients had a much more chronic course and their stomachs did not return to normal functioning. 51 The importance of a warning is that a patient should have sufficient knowledge of the problems and risks involved in a procedure to make an informed judgment as to whether or not to undergo the procedure. Where elective surgery is concerned, it is the patient's choice as to whether or not it occurs. See Rogers v Whitaker at p 490. In the present case, Ms Hooley was not aware of the possibility of gastroparesis and, although she was a nurse, she was not aware of many of the other significant risks which she would face. 52 There was no challenge in the appeal to the finding of the trial Judge that Dr Shead was negligent in not giving a more adequate warning to Ms Hooley. The issue debated in this appeal is whether the lack of a warning caused any damage and, if so, what was the nature of the harm and what damages should be assessed.

Causation and Damages 53 Counsel for the appellant has submitted that, as the trial Judge thought it was unnecessary for Dr Shead to warn of the possibility of prolonged gastroparesis, it has not been established that any damage was caused by his failure to do so. 54 However, the trial Judge found:- "In my view, it is more probable than not that if she had received proper warning … the surgery performed by Dr Shead would not have taken place at that time. Ms Hooley would not have undertaken the procedure of truncal vagotomy and antrectomy at the time she did. … … I find, more probably than not, that Ms Hooley would not, had Dr Shead fulfilled his duties, have undergone the operation when she did. It is not material to the question I must determine that she may have undergone it later after obtaining further opinion, whether at the hands of Dr Shead or of some other surgeon. By that time the circumstances would have been different from those pertaining at the time she was obliged to make the choice whether or not to proceed with the surgery." 55 Ms Hooley's evidence did not correlate well with the finding made by the trial Judge as to the nature of the warning that should have been given. Her evidence was as follows:- "Q. If you had been told that there was a risk that you might have a complication called gastroparesis, what would you have done if that word had been used? First of all, perhaps I should ask you, did you at that time know what the word gastroparesis meant? A. No, never heard of it. Q. If the doctor had said to you: 'Well one of the possible complications in this surgery is gastroparesis', what would you have done? A. I would have said: 'What's that?' Q. Yes? A. I would have asked him what the implications of it were in terms of how serious it was and I have thought long and hard about this. I'm quite certain that had I discovered how devastating this could be, I would never have, you know, gone through with that procedure then. I would have gone and got at least a second and probably a third opinion and I would also have asked each of those people what my options were, what other alternatives were available to me." 56 Although Ms Hooley did not give evidence directed specifically to the warning which his Honour considered should have been given, I am satisfied that the trial Judge was entitled to conclude, from the evidence which Ms Hooley gave and from the nature of the warning that his Honour thought should have been given, that, had Ms Hooley understood the devastating consequences that could have resulted in a number of ways from the operation, she would have chosen, at least, to obtain a second opinion on the matter. Had that been done, it is unlikely that the operation would have proceeded when it did. I am also of the opinion, as I have said, that his Honour was wrong in excluding the possibility of long-term chronic gastroparesis from the warning which should have been given. In the circumstances, Ms Hooley's evidence was sufficient. 57 That leads to a consideration of the judgments in Chappel v Hart (1998) 195 CLR 232. The present facts are not identical with those considered in Chappel v Hart, for in that case the patient had given evidence that, had she been warned of the dangers, she would have delayed the surgery and had it performed by the most experienced surgeon in the field. There is no evidence in the present case that there was any surgeon more suitable to carry out the operation than Dr Shead and there was no criticism of the manner in which Dr Shead performed the operation, other than the issue as to whether a further gastroscopy should have been performed. 58 In a case such as the present, issues of causation and assessment of damages can give rise to difficult problems. However, the starting point is the finding of a duty of care which a medical practitioner has to the patient and a failure on the part of the medical practitioner to fulfil that duty by taking proper steps to protect the patient. Breach of the duty is treated as materially contributing to the physical injury suffered by the patient unless there is a sufficient reason for a contrary finding. 59 In Chappel v Hart, at p 239, Gaudron J said:- "Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided … If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action. … And the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury unless there is 'sufficient reason to the contrary' …" 60 At pp 247-248, McHugh J, dissenting on the facts of the case, said:- "… the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff." 61 At p 257, Gummow J said:- "In Mrs Hart's case, the very risk of which she should have been warned materialised. In his written submissions filed by leave after the hearing of the appeal, Dr Chappel conceded that, if the surgery had been performed at a different time, then '[i]n all likelihood' Mrs Hart 'would not have suffered the random chance of injury'. In addition, the particular risk involved had been the subject of a specific inquiry by Mrs Hart of the medical practitioner who then was engaged by her to perform the surgery. She was a person for whom the potential consequences of damage to her voice were more significant than the 'statistical' risk. Those additional factors combined with the satisfaction of the 'but for' test were sufficient to establish causation in this case. Here, the injury to Mrs Hart occurred within an area of foreseeable risk. In the absence of evidence that the breach had no effect or that the injury would have occurred even if Dr Chappel had warned her of the risk of injury to the laryngeal nerve and of the consequent risk of partial or total voice loss, the breach of duty will be taken to have caused the injury …" 62 At p 278, Kirby J said:- "Once Mrs Hart showed the breach and the damage which had immediately eventuated, an evidentiary onus lay upon Dr Chappel to displace the inference of causation which thereupon arose. He failed to do so. Nor, in my view, causation being established, did he prove that Mrs Hart would have been exposed to the same, or substantially the same, possibilities of like injury if she had postponed the procedure and had it done by someone more experienced, as was her right. On the contrary, the evidence demonstrated that the chances of her receiving such injury in any other operation were minuscule. For the reasons stated those chances would probably be even smaller in the hands of a surgeon with the experience and skill of Professor Benjamin." 63 I need not mention any passages from the dissenting reasons of Hayne J. 64 On the issue of damages, the majority of their Honours ruled that probabilities, not speculation, should be taken into account. At pp 241-242, Gaudron J said:- "Once it is accepted, as in my view it must be, that the risk of injury would have been less if, as Mrs Hart deposed, she had retained the services of the most experienced surgeon in the field, the argument that, at best, Mrs Hart was entitled to nominal damages must be rejected. Rather, Mrs Hart is entitled to damages for the injuries suffered. In the calculation of those damages, however, the question arises whether there was a probability that Mrs Hart would have suffered harm of the kind that eventuated no matter when or by whom surgery was performed. If that was a probability, allowance should have been made for it ( Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-643, per Deane, Gaudron and McHugh JJ). However, neither the trial judge nor the Court of Appeal adverted to the question." 65 Gummow J said, at p 263:- "In the present case, it would have been for Dr Chappel to show … that Mrs Hart's damages were to be reduced to reflect the possibility, being more than a speculation, that independently of his negligence Mrs Hart would have sustained at some later date the injuries of which she complained. That was not the way in which the case for the appellant was presented. Rather, the attempt was to show a lack of causation and to deny any liability." 66 At p 262, Gummow J also said:- "In the present case, the obtaining of adequate advice as to the risks involved was a central concern of Mrs Hart in seeking and agreeing to undergo the surgical procedure in question. It would, in the circumstances of the case, be unjust to absolve the medical practitioner from legal responsibility for her injuries by allowing decisive weight to hypothetical and problematic considerations of what could have happened to Mrs Hart at the hands of some other practitioner at some unspecified later date and in conditions of great variability." 67 In Chappel v Hart, all Judges were in agreement that the case was not appropriately treated as one where the patient had simply lost the chance of having the operation performed by a more experienced surgeon, a contention which had been put forward on behalf of Dr Chappel.

The Trial Judge's Findings 68 The trial Judge relied particularly upon six principles stated by McHugh J, including the passage set out above. His Honour held that, properly warned, Ms Hooley would not have agreed to Dr Shead or any other surgeon performing the vagotomy and antrectomy on 22 January 1993, at least until other possibilities had been explored. His Honour did not make a finding as to whether Ms Hooley would have undergone an operation later after obtaining further opinion, holding that it was not material to do so, as, by that time, the circumstances would have been different from those pertaining at the time when she elected to proceed. Although it was not expressly stated, I think it was inherent in his Honour's finding that, if Ms Hooley had sought a second opinion, the risks would have been reduced, if only because there would have been a later gastroscopy which would or may have shown that the chronic ulcer was healing. 69 Once it was shown that there was a failure on the part of Dr Shead to warn Ms Hooley of the risk of gastroparesis and that Dr Shead breached his duty of care towards his patient in failing to warn her of the risk, and once it was shown that the risk eventuated, then the law as enunciated in Chappel v Hart is that the breach of the duty should be treated as materially causing or contributing to the injury unless good reason to the contrary is shown. In the present case, no such reason was established. Dr Shead was unable to establish that the risk which Ms Hooley faced would not have been reduced if an adequate warning had been given. There was a possibility, even a probability, that, had a further opinion been obtained, a further gastroscopy would have been performed and the state of the chronic ulcer would or may have appeared different from that shown in the gastroscopies taken by Dr Elliott. It follows that causation was established. 70 As I have mentioned, the case should not be approached on the basis of loss of a chance. Damages should have been assessed taking into account Ms Hooley's probable prognosis had the surgery not proceeded on 22 January 1993. The trial Judge did not take that matter into account and counsel for the appellant has given notice of proposed amendments to the notice of appeal seeking to raise this issue. Counsel very properly conceded, nevertheless, that in his submissions to the trial Judge, he did not ask the trial Judge to make allowance for the pain and suffering and financial losses that Ms Hooley would have suffered in any event. In this circumstance, as the trial Judge was not asked to consider the matter, I would not grant leave to amend the notice of appeal to raise the ground. If the issue had been raised at the trial, there would or should have been other evidence adduced to deal with it. 71 There were several matters with respect to damages which were raised in the notice of appeal. The first was the award by the trial Judge of general damages of $250,000 of which $150,000 was attributed to the past. On this ground, it has been submitted that the award was excessive and, furthermore, that his Honour failed to take account of the fact that the two experienced counsel before him had both put forward a figure of $150,000 for general damages. 72 On this issue, I need say very little. The award was high, but it does not appear to me to have been so high that it was outside the range that a judge should have determined in the exercise of his or her discretion. As it was the figure which his Honour thought appropriate, it matters not that counsel may have put forward a lesser figure in their submissions on damages. 73 With respect to future dental and medical treatment, including the need for drugs, counsel are agreed that the figure should have been $426,163 rather than the figure allowed of $443,958. 74 It is also agreed that interest on general damages should have been $18,750 rather than $10,650 and that interest on past loss of earnings should have been $11,775 rather than $1,863.90. 75 As the result of these changes, the sum awarded could be adjusted from $933,363 to $933,579. As the difference is so slight, I would not order any variation.

Ground 6 76 Ground 6 of the notice of appeal raises issues in respect of the disallowance by the trial Judge of questions asked during the cross-examination of Ms Hooley. No submissions were presented in support of this ground and I have not identified any questions disallowed the answers to which would have been likely to affect the result of the trial.

Orders 77 I propose that the appeal and the cross-appeal should be dismissed. The appellant should pay the costs of the appeal. I would make no order as to the costs of the cross-appeal. 78 The application to amend the notice of appeal should be dismissed. The application to file a notice of contention should be allowed insofar as it seeks to raise the matters set out in paragraphs 2 and 3 of the proposed notice. A notice of contention framed accordingly should be filed forthwith.

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