Judgment
1ALLSOP P: I have had the great benefit of reading in draft the reasons of Beazley JA and Basten JA. Though relatively simple in its primary factual matrix, this case reveals the subtleties and difficulties that underlie questions of causation. I have not found the resolution of the case easy. That difficulty stems from the fulcrum around which the question of liability turns: the value judgment involved in deciding whether it is appropriate that Dr Kam should be liable for the harm caused by the manifestation of neurapraxia. I have come to the view that it is not appropriate. I differ somewhat from Basten JA in concluding why the appeal should be dismissed. Given the comprehensive discussion by Beazley JA of the background, facts and authorities, for which I am grateful, I am able to state my reasons shortly.
2The reasons of the primary judge were, if I may say so, clear, concise and precise. His Honour set out the framework of the causal analysis by reference to the Civil Liability Act 2002 (NSW), s 5D. In my respectful view, however, though his Honour reached the correct conclusion, the analysis by which he reached his conclusion paid insufficient regard to the structure of analysis required by s 5D. In particular, I disagree with his Honour's approach to s 5D(1)(a). The difference in my approach to that adopted by the primary judge broadly conforms to the difference of approach I have to that primarily adopted by Basten JA. In the circumstances of this case, the enquiry required by s 5D(1)(a) required a full factual analysis of what Dr Kam did and did not say and what Mr Wallace would have done. The limitation on the scope of liability of Dr Kam arises from the enquiry and conclusion under s 5D(1)(b).
3It is thus necessary, first, to say something of the operation of s 5D. The framework within s 5D is the division of the enquiry into "the distinct elements of factual causation and scope of liability ... in line with the recommendations in ... the Ipp Report": Strong v Woolworths Ltd [2012] HCA 5 at [19] (per French CJ, Gummow J, Crennan J and Bell J). See also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at 440 [45]. The debt that the authors of the Ipp Report owed to Professor Stapleton that was acknowledged in the Ipp Report reinforces the proposition stated in Strong (above) that the subject of s 5D(1)(a) is a purely factual enquiry and not one in which value judgments are made and into which policy considerations intrude: cf March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506. That is the burden of much of the scholarship of Professor Stapleton in this area. That conclusion is also, and principally, derived from the words of the statute, by the two words in parentheses: "(factual causation)".
4Thus, the task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as "proximate cause" or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not.
5Of course, the factual enquiry in s 5D(1)(a) is governed by the nature and content of the duty and its breach since that is the "negligence" referred to in s 5D(1). It is the connection between that and the harm that is to be analysed, factually.
6The duty is that described by Mason CJ, Brennan J, Dawson J, Toohey J and McHugh J in Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 483:
"to exercise reasonable care and skill in the provision of professional advice and treatment ... [being] a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in the appropriate case. It is of course necessary to give content to the duty in the given case."
(Citations omitted.)
See also at 489:
"Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of advice and treatment is a single comprehensive duty."
7If a medical procedure has material risks (being risks to which in the circumstances a reasonable person in the patient's position would be likely, if warned, to attach significance or to which the patient would be likely, if warned, to attach significance if the medical practitioner is or should reasonably be aware of that fact) that are inherent, then, leaving to one side the exigencies of emergency or other questions of therapeutic judgment, the scope and content of the duty of care includes a duty to warn the patient of those material inherent risks: Rogers v Whitaker at 487-490, in particular at 490.
8Whether any set of circumstances where there has been said to be a failure to disclose and appropriately warn of more than one risk may be better viewed as several distinct breaches of the same duty or one interconnected failure to disclose all relevant inherent risks will depend upon a factual enquiry. Here, one operation was being contemplated. The potential benefits and risks of undergoing that operation were all part of the relevant information, as a whole, which the appellant was entitled to have in order to make up his mind, after weighing all relevant information, as to whether to seek the benefits of the procedure, by hazarding such risks as it entailed. It is unrealistic to posit a coherent factual enquiry for the purposes of s 5D(1)(a) by only asking what would have been his decision had he only been told part of what he should have been told. The duty was one comprehensive duty. If it was breached, that occurred, on the appellant's case, by failing to tell him of both possible risks - neurapraxia and paralysis in an appropriately framed and coherent warning that would have enabled him to weigh the benefits and the hazards of the procedure. There are at least two further reasons not to limit the enquiry under s 5D(1)(a) in this way: first, the words of the paragraph and its content do not call for a partial factual enquiry or a factual enquiry truncated by a policy based reason; and secondly, such a truncation may well be factually incoherent. The relationship of the different risks to each other may be close or it may be distant. That may depend upon a number of matters, including the medical relationship of the risks or the attitude or background of the patient.
9The correct course is to undertake the whole factual enquiry called for by s 5D(1)(a) in order to determine the factual relevance and connection of the negligence to the harm caused.
10One then turns to the operation of s 5D(1)(b) to assess whether it was "appropriate for the scope of the negligent person's liability to extend to the harm so caused". It is that enquiry which will draw in (without intending to be exhaustive) value judgments, an assessment of the scope of the risks, the type of breaches and risks involved, their relationship to the risk that came home and legal policy questions as to how widely to permit the scope of liability to reach.
11Strictly speaking, neither enquiry under s 5D(1)(a) or (b) has been undertaken. Factual matters were not found by the primary judge that bear principally upon the enquiry under s 5D(1)(a). For present purposes, those factual matters were what Dr Kam said and what Mr Wallace would have done had full and adequate disclosure been made. These involve assessment of credit and of the witnesses generally. It is not possible for this Court to undertake that factual enquiry. It is only possible for this Court to finalise the matter by assuming that Mr Wallace was not warned of the risk of catastrophic paralysis and if so warned he would not have undergone the operation, and by coming to a view about the operation of s 5D(1)(b) on the facts as they stand.
12The enquiry and conclusion under s 5D(1)(b) involve a value judgment. In circumstances where s 5D(1)(a) has been satisfied, for the enquiry under (1)(b) to produce an answer that the scope of the liability of the medical practitioner in Dr Kam's position should not extend to the harm that would not have occurred had he or she not been negligent, it is necessary that there be a conclusion either of the tenuousness of the factual link or some limitation by reference to the rule of responsibility involved. For instance, in Chappel v Hart [1998] HCA 55; 195 CLR 232 at 257 [66] and Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 460 [83], Gummow J gave the example of harm being caused by the misapplication of an anaesthetic in an operation that would not have taken place had the doctor disclosed some inherent medical risk. His Honour characterised the sheeting home of liability as (Chappel at 257 [66]) an "absurd" or "unjust" or (Rosenberg at 460 [83]) an "unacceptable" result that would prevent the law concluding that the negligence caused the harm. This analysis was, of course, at common law under the approach dictated by March v Stramare in which value judgments form part of the process of reasoning about causation. The same kinds of value judgments attend the operation of s 5D(1)(b) (and s 5D(4)), as well as, in another context, s 5D(2). The drawing of a conclusion that a consequence of posited liability would be "unjust", "absurd" or "unacceptable" would be relevant to the conclusion of appropriateness for s 5D(1)(b). Thus, to use the language of the statute, one might restate the point made by Gummow J in his Honour's example by asking whether it is appropriate to extend liability to the defendant where his or her negligence only placed the plaintiff in the place at the time permitting a risk unrelated to that involved in the duty that was breached to come home. If the ceiling of the operating theatre falls in, if the surgeon collapses and strikes the patient, if the anaesthetist misapplies the anaesthetic, if any of countless other things, foreseeable or unforeseeable, go wrong with an operation, a value judgment, based on the rule of responsibility concerned (Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22) will have to be made, under s 5D(1)(b). It is in this enquiry that the relationship between the content of the duty (the rule of responsibility), the nature of the risk the subject of the duty and what harm occurred is important: March v Stramare at 516; Faulkner v Keffalinos (1970) 45 ALJR 80 at 86; H L A Hart and T Honoré Causation in the Law (Oxford, 2nd Ed, 1985) at 122.
13At common law, the ascription of a causal character to a factor without which the harm would not occur, rather than of a non-causal character as a mere condition placing the plaintiff at the place of the harm, depends ultimately on a value judgment (that may well be contestable) made by reference to such (overlapping and at times synonymous) factors as the rule of responsibility and the legal policy underlying it, the content and scope of the duty, the risk addressed by the rule and the duty, the character of the breach, the foreseeability or remoteness of the harm, the intervention of other factors (human and non-human) and their nature, and evaluative common sense. Such considerations also find their place in the enquiry in s 5D(1)(b). Causation is part of the legal analysis concerning whether to attribute legal responsibility and award compensation in a just and coherent way conformable with the legal rule at hand.
14Here, unlike in the above examples, the harm was factually caused (under s 5D(1)(a)) by the manifestation of an inherent risk that was related to the duty that was breached. The harm here did not occur by the acts or omissions of a third party, or by misapplied anaesthetic, or by some random act or circumstance of the day distinct from the duty to warn. One of the risks, of a number of which Mr Wallace should have been warned, came home. Mr Wallace was in one sense entitled to make his decision on the basis of complete information. That said, the approach to the enquiry under s 5D(1)(b) should reflect the underlying legal aims of the duty and the rule of responsibility: that is, to protect the patient by holding the doctor responsible for the harm that may result from material inherent risks that were not the subject of warning. The duty and the rule of responsibility are not to protect the patient from the risk of an uninformed decision; they are not to protect the integrity of the decision: Rosenberg at 456 [61] and Rogers v Whitaker at 489-490. They are to protect the patient from harm from material inherent risks that are unacceptable to him or her.
15In the value judgment necessary for s 5D(1)(b), one can readily contemplate circumstances where it was not appropriate to extend the scope of liability, even though a but for test was satisfied. Recovery for the costs of, and inconvenience involved in, an entirely successful operation, in which none of the inherent risks that should have been the subject of a warning came home, might be one. The conclusions that sheeting home such liability would be absurd, unjust, unacceptable or inappropriate would be readily understandable. That conclusion also brings with it the proposition that it is necessary that a risk not warned against come home for there to be an appropriate causal relationship between the breach and the harm. This is the proposition that lies at the heart of the American cases discussed by Beazley JA and referred to below.
16Another example is that of an inherent risk being clearly disclosed and expressly accepted by the patient, who was content to hazard that risk; that very risk comes home; but the operation would not have been undergone had a quite different risk been disclosed. The factual causal (but for) link may be clear; so, it might be thought, is the injustice or opportunism of the claim. If it is correct to say that injustice and opportunism are suggested by those facts, one is driven to ask what is different about the case here: where the risk that came home was not disclosed, but would, if alone disclosed, have been accepted.
17In both examples in the previous paragraph, the hazarding of the risk was acceptable to the patient. Unless the further disclosure or disclosures required is or are such that it or they bears or bear on the acceptability of that risk, one would assume that that risk remained acceptable. What was not acceptable was the combination of all the risks such that the procedure became unacceptable. An example of the further disclosure bearing on the acceptability of a risk might be as follows. If the occurrence of neurapraxia was disclosed that risk may have been acceptable in itself with its usual consequences; but if neurapraxia could, in some cases, trigger other catastrophic neurological consequences it would be impossible to say that the risk of neurapraxia had been accepted, even though only the "usual" consequences and discomfortures of it had manifested themselves. But, if neurapraxia was an acceptable risk or hazard, but other risks quite unrelated to it were not, the claim would still be for damage from harm (neurapraxia) the risk of which was acceptable.
18Of course, these questions are intensely factual involving the relationship between the risks, what risks were acceptable and what were not - whether severally or in combination. Thus, it might not be possible to disentangle one risk from another, in which case the fact that one risk came home would not entitle a conclusion that it should be examined severally. If, however, the risks can be seen as separate and distinct, that is one not bearing on the likelihood of the other occurring, or having no other relevant medical relationship or connection or no known relevant connection for the patient, the policy reasons behind the approach of Gummow J being transferred to the enquiry under s 5D(1)(b) are powerful. By this approach, recovery is limited to risks coming home that were material and that should have been disclosed, and that were not acceptable, in the sense that the patient would not have been willing to hazard that risk for the benefits of the procedure.
19It is undoubted that the duty is a single comprehensive duty, but the harm for which the doctor should be held liable is the just and appropriate consequences of his or her breach of failing to warn of inherent risks. That, however, should not extend to harm from risks that the patient was willing to hazard, whether through an express choice or as found had their disclosure been made. This limits recovery to what was an unacceptable risk (or risks) and harm therefrom that has (or have) not been the subject of a warning.
20Here, the relevant findings of the primary judge at [91]-[94] were clear:
"[91] In my opinion the plaintiff would not have declined the surgery if warned of the possibility of this condition in general or specific terms as a risk of the surgery he was contemplating. This is so in my opinion whether the risk is characterised as a risk of bilateral femoral neurapraxia, local nerve damage, weakness in either or both of his legs or in general terms that he could be left temporarily worse off with a condition fitting these descriptions. This is for the following reasons.
[92] As the result of his preoperative condition, as described by him, the plaintiff was desperate for some form of pain relief. He had attended a pain management centre in an effort to try to reduce the pain in his back and legs. He agreed he had had some difficulty attempting to do this. He had tried physiotherapy but this had not helped. He was taking more and more medication with no corresponding benefit. He could only walk with the aid of a walking stick. No conservative measures had worked. Dr New had foreshadowed the need for surgery. The plaintiff was 'absolutely fed up with having to take medication'. He was in a perpetual (medicated) daze. He told Dr New that the fact of the matter was that he was not getting any better. He felt inadequate and useless. He had severe restrictions in movement. This was a cause of significant stress and anxiety. He had bouts of depression because his future was uncertain. He approached Dr Kam for assistance to try to do something about unremitting pain, because he could barely move. Dr Diwan had told him that surgery might be risky. He agreed Dr Kam had told him the same thing. By the time he saw Dr Kam for the second time 'he was desperate for relief'. He could hardly walk. He had tried everything and nothing had worked. He had even had suicidal thoughts. To the suggestion that he was in desperate straits, he agreed he was in a lot of pain. The last resort was to undergo surgery.
[93] A key to understanding what the plaintiff would have done if warned of the risk that in fact materialised is to compare the plaintiff's condition before the operation with the effects of the bilateral femoral neurapraxia itself. There is in my opinion no comparison at all. In a report dated 26 November 2004 addressed to Dr Kam, Dr Awad referred to the bilateral femoral neurapraxia and indicated that the plaintiff's 'power in his legs is slowly improving and he has some anti-gravity movements and he has been slowly mobilised with the physiotherapists'. As earlier recorded, Dr Dowla found that by 25 February 2005 the objective neurophysiological evidence did not support the existence of any definite neuropathic abnormality.
[94] In my opinion, having regard to his desperate preoperative plight, the plaintiff would not have declined the proposed surgery upon the basis of a possible risk of the condition that he suffered in fact. The prospect for this plaintiff of some mild and temporary interference with power and sensation in his lower limbs is out of all proportion to the disabling and distressing condition from which he hoped Dr Kam's surgery would provide a cure or at least some relief. It is to my mind inconceivable, or at the very least highly unlikely, that the plaintiff would have hesitated for a moment to submit to a procedure which he knew to be attended by all of the risks Dr Kam said he informed him of, as well as the risks of which on my finding he should have been informed, in circumstances in which he was in a desperate search for relief from unremitting pain, when there was a 70 to 75 per cent chance of some relief and when the relevant cost to him may have been a mere temporary loss of power and sensation in his lower limbs of the nature, extent and duration of the condition that materialised."
These findings were to the effect that that the risk of neurapraxia was acceptable to Mr Wallace. That risk came home.
21There was no suggestion that the neurapraxia was medically related to the risk of catastrophic paralysis. On the material, they can be taken to be distinct risks, albeit part of the various matters that should have been disclosed to Mr Wallace in one body of disclosure.
22I will assume for the purpose of seeking to resolve the appeal that Mr Wallace would not have undergone the operation had he been warned of the 5 per cent risk of catastrophe and that Dr Kam did not disclose this risk. That is to say, however, on the material, that he would not have undergone the operation knowing of the additional and distinct risk of the catastrophic paralysis.
23The expression of the matter by Gummow J in Rosenberg at 461 [86], though in the context of a single risk, supports the conclusion that extending Dr Kam's liability through the enquiry under s 5D(1)(b) would not be appropriate. To paraphrase what Gummow J said in Rosenberg, it will be appropriate for the scope of liability to extend to circumstances where the doctor fails to warn the patient of a particular consequence and that consequence (reflecting a material risk) in fact eventuates. The rule of responsibility seeks to hold the doctor liable for the consequence of material risks that were not warned of that were unacceptable to the patient.
24This approach has the support of the United States cases to which Beazley JA refers. The requirement that the undisclosed risk come home in an overwhelming number of jurisdictions (see the citations in Cochran v Wyeth Inc 3 A 3d 673 at 680 (2010)) reflects the widespread acceptance of a qualification of the but for test conformable with notions of legal causation reflected in the use of the phrase "proximate cause". This use of the expression "proximate cause" in this context can be seen to involve the employment of a limiting factor based on legal policy considerations drawn from a value judgment of the kind that falls to be made within s 5D(1)(b), by reference to the content of the duty.
25It is to be recognised here, however, that the risk that came home, neurapraxia, was undisclosed. If this is where one left the analysis, the words of Circuit Judge Robinson speaking for the Court of Appeals for the District of Columbia in Canterbury v Spence 464 F 2d 772 at 791 [32] (1972) (though necessary to transpose into a situation of multiple risks to be disclosed) might appear to support the appellant's argument, albeit in the context of objective rather than subjective causal analysis:
"If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not."
26One must, however, recognise the importance of the phrase "because of the revelation of the ... risk or danger". The Court in Canterbury v Spence was emphasising the relationship between disclosure and manifestation of the risk. The further relevant fact here is that the primary judge found, with some clarity, that this risk, although undisclosed, was acceptable to Mr Wallace in that it, as a risk distinct from the catastrophic paraplegia, would not have led Mr Wallace to decline the operation. It is the value judgment to be made consequential on that finding that is critical. That value judgment, in the circumstances here where the risks are distinct, in my view, is one that is indistinguishable from that to be made consequent upon disclosure and acceptance of the risk that came home.
27Further, it is important to understand how the appellant ran his case below. The primary judge described this in [95] of his reasons, as follows:
"Although, as I have found, the plaintiff would have undergone the surgery even if warned of bilateral femoral neurapraxia or local nerve damage, the plaintiff contended that if he was entitled to be, but was not, warned of some risk that would have led him to decline the surgery, he is legally entitled to complain about the consequences of any risk that eventuates, even if that specific risk would not by itself have led him to do so. In this case that translated to a proposition that if the plaintiff would have declined the surgery if warned of some catastrophic outcome of which he was not warned, but which did not materialise, but would not have declined the surgery if warned of bilateral femoral neurapraxia, which did materialise, he is entitled to succeed because the latter condition was caused by the very fact of an operation he would have declined if properly warned."
28This is also how the matter was in substance put on appeal. This makes clearer the legitimacy of equiparating the value judgments based on actual disclosure and acceptance, on the one hand, and non-disclosure, but a clear finding of acceptability, on the other. Of importance to that equiparation is the separateness and distinctiveness of the risks, which the argument of the appellant below and in this Court implicitly recognised.
29If I may say so, the passage of Lord Caplan in Moyes v Lothian Health Board 1990 SLT 444 at 447 set out by Beazley JA has a degree of persuasion. Ultimately, however, I am not persuaded that liability for the consequences of multiple inherent risks should not be limited by reference to the considerations suggested by Gummow J and the American cases.
30In any given case, the facts will need to be examined in a complete enquiry under both (1)(a) and (b) in order that the relationship, if any, between the individual risks be understood. If one risk, being part of a body of risks about all of which there should have been warning, comes home it may be viewed, depending on the precise facts, in particular the medical connection between the risks or the importance of the relationship of the risks to the patient, as not merely the manifestation of that individual risk, but as part of a whole body of inter-related and inter-connected risks that should not be separately examined or analysed. Nor should the examination of the risks disclosed and what risk comes home be examined over-finely. These are medical questions, set in a context of the human and professional activity of warning of risks, the analysis of which is unlikely to be assisted by over refinement.
31Here, while the primary judge has not undertaken the enquiry expressly under s 5D(1)(b), his approach was in significant respects a substantial enunciation of its elements. I do not see from the material how the risk of neurapraxia and the 5 per cent risk of catastrophic paralysis can be seen other than as distinct matters for disclosure, albeit in the one body of disclosure. The two risks were not said to be related in any particular way. The fundamental argument put by the appellant below and in this Court implicitly recognised this distinction. The finding of the acceptability of the distinct risk that came home was clear and unequivocal in [91]-[94] of the primary judge's reasons. In these circumstances, even making the assumptions that I have, it would not be appropriate to extend to Dr Kam liability for the harm that occurred, and there is no purpose in remitting the matter to the primary judge for further hearing or consideration.
32Looking at the matter thus, the appeal should be dismissed.
33 Notwithstanding the difficult issues raised, prima facie that dismissal should be followed by an order for costs. If any application is to be made to vary that it should be in the form of a notice of motion supported by submissions and any evidence, filed within 14 days.
34The orders that I would make are that the appeal be dismissed with costs.
35BEAZLEY JA: On 22 November 2004, the appellant underwent a six-hour L4/L5 posterior lumbar interbody fusion and pedicle screw fixation (the surgery), performed by the respondent, a neurosurgeon, at Westmead Private Hospital. A further surgical procedure was performed the following morning as a result of the appellant experiencing extreme pain and paralysis in both legs upon regaining consciousness after the surgery. The appellant's difficulties persisted after the further surgical procedure and he was subsequently diagnosed as having suffered bilateral femoral neurapraxia, that is, local nerve damage to the anterior femoral or thigh region of both legs, caused by lying prone for an extended period during the surgery.
36The appellant commenced proceedings against the respondent claiming damages for breach of duty in failing to warn him of the material risks of the operation. The appellant contended there were two material risks of the operation that the respondent did not disclose to him. The first was the risk of local nerve damage to the thigh, that is, bilateral femoral neurapraxia, as the appellant lay face down on the operating table for an extended period during the surgery. That risk came home. The second risk was a 5 per cent risk of paralysis. That risk arose because the site of the operation was in the spinal cord and there was an inherent risk of injury to the spinal nerves during the course of the operation causing paralysis. This risk was described during argument as a risk of a catastrophic outcome.
37The trial judge, Harrison J, held that the respondent had breached his duty of care to the appellant in failing to warn of the risk of bilateral femoral neurapraxia. However, as his Honour was not satisfied that the appellant would have declined the surgery had he been warned of that risk, he held that the appellant had failed to establish any causal connection between the respondent's breach of duty and his injury. It followed that the appellant had not proved his cause of action and his claim failed. A verdict was entered for the respondent.
38The appellant has appealed from the verdict and seeks judgment in his favour in the sum of $350,000, being the amount of damages agreed between the parties at trial in the event the appellant was successful on his claim.
39The essential issue raised on the appeal was whether the appellant's injury of bilateral femoral neurapraxia was caused by the respondent's breach of duty. On the appellant's argument, the relevant duty was to warn of material risks associated with the surgery and that the respondent breached that duty in failing to warn of the risks of neurapraxia and paralysis. He contended that had he been warned of both risks, and in particular the risk of a catastrophic outcome of paralysis, he would not have undergone the surgery. It followed on this argument that the respondent's breach in failing to warn of the risks of the operation caused the harm that he suffered and he was entitled to succeed on his claim.