After what I have felt has been a slow start to year, in terms of important medical negligence case law, 2 important decisions in 2 days…

On Monday, as reported, the NSW Supreme Court delivered the long awaited (it seems 15 months from trial to decision) decision in Waller v James, the equally unfortunate, as it transpires, case spin-off from Harriton v Stephens, the wrongful life case in which the High Court held no damages could be recovered by the child who would not have been born (because his parents would have terminated the pregnancy), had there not been negligent in the antenatal advice. In Waller, Justice Hislop dismissed the allegations of negligence against IVF doctor Dr James. He made a number of important findings relevant to the assessment of damages in such cases, on topics which have to this point been undecided. I will post a more detailed summary of this case shortly. It will be interesting to see whether the case is appealed. The stakes seem high enough to make this likely.

Then today, the High Court delivered a unanimous decision in the appeal in Wallace v Kam, the NSW case I have written about previously, concerning an action for failure to warn of significant risks of complication. Once again, I will write a summary of such case, when the reasons of the Court are published. In the meantime, by the Court’s published case summary, their decision hinged on their conclusion that:

"Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept."

Of course the converse argument, not accepted by the Court, was that Mr Wallace suffered a serious complication from an operation he would not have agreed to undergo, had Dr Kam properly warned him of the risks of it. It will be interesting to see how the Court reached its conclusion. 

 I read with interest + sadness, the recent decision by Williams DCJ in Lane v Northern NSW Local Health District [2013] NSWDC 12.

The case concerned allegations by 2 daughters of mis-management of their elderly mother, at 2 NSW hospitals.  Tellingly, their father did not support their allegations and gave evidence expressing gratitude for the hospital care provided, in the period prior to his wife’s death.

As Williams DCJ elegantly (and compassionately) put it at the beginning of his reasons, if ever there was a case that should not have reached a courtroom this was it.  The sections quoted from the evidence given by the husband of the deceased, during cross-examination by his daughters (the plaintiffs), are painful to read and it can only be imagined what it must have been like to have been present in court listening to such evidence.

A recurrent issue: what can be done in such cases, when family are irretrievably convinced that a wrong has occurred, short of ventilating such process in the courts?  Should there not be an ADR alternative, short of committing a Judge to 10 hearing days + formulating of a 363 paragraph set of reasons (which, which respect, Williams DCJ did generously, without complaint and with compassion).

I suspect, though they would never have agreed to it, the daughters may have been more satisfied with the outcome of such process, than the trial (and Williams DCJ’s conclusions; including relating to their psychiatric health and its causes)  they were no doubt so determined to pursue.

 On 14 December 2012 the Court of Appeal upheld an appeal in the claim brought by Tahlia Burns against King Edward Memorial Hospital (formally the Minister for Health), alleging negligent obstetric care at the time of her birth in April 2004.

Tahlia’s claim had previously been dismissed by the District Court as being out of time (being commenced more than 6 years after her birth) + crucially, because she was born before changes to the time limit for claims law (the Limitation Act 2005 ("LA 2005")), not a claim in which any extension of time could be allowed.

The Court of Appeal overturned this decision concluding that although born before such change in the Law, nonetheless, she could rely upon the changes it made, permitting extensions of time for claims. This was based on the Court of Appeal’s interpretation of section 7 of the LA 2005, which they confirmed specifically gave the power for such extensions of time, even in birth cases for children born before such Act came into force (so retrospectively).

Interestingly, one member of the Court, Justice Pullin went further and appears to have supported the power to extend time in cases in which the 6 year limitation period that applied in cases against public hospitals before the LA 2005, had already expired at the time the LA 2005 came into force (November 2005). In other words, claims which the public hospitals (and their insurers) would have assumed to be forever lost + out of time. As I have commented previously, for many years it had been recognised that this 6 year time limit for childrens’ claims relating to birth injury could be very unfair indeed.

It will be interesting to see whether Justice Pullin’s ‘invitation’ is accepted and any older obstetric claims (pre Nov 99 birth dates) are now sought to be brought with a request for an extension of time.

it is important to appreciate that birth injury cases are a special category of cases + this power to seek an extension does not retrospectively apply to other cases (medical or otherwise).

A recent NSW case Dean v Phung [2012] NSWCA 223 raises interesting issues in a case of over-servicing/recommending unnecessary treatment. This seems an increasingly common suspicion/temptation with some areas of ‘elective’ medicine/dental treatment.

The facts in the case were awful!! The defendant left no stone or ‘tooth’ unturned – performing treatment on every single tooth in the plaintiff’s mouth, during 53 consults within a 12 month period.

The case is interesting because the court of appeal NSW took such a [in my view] tough position concerning the relevant dentist. The CoA found:

  • The Civil Liabilty Act ("CLA"), which on my reading is substantively the same as in WA, did not apply to the claim, because the dentist either knew or was reckless as to whether the patient needed the treatment in question (they found the patient did not, as an objective fact), therefore intentionally caused personal injury (so section 3A applied).

    This was a tough conclusion in my view…This is important, because the limits on damages for pain and suffering, wage rates etc, by the CLA were therefore to be ignored…

  • Because no ‘true’ consent could be provided to the treatment, because the patient had no advice that it was unnecessary, the dentist had in fact committed trespass, rather than ‘only’ been negligent. This seems a move back towards the pre- Rogers v Whitaker position..
  • A claim for exemplary damages should be awarded against the dentist: for the money had had charged for the treatment. Such claim could not be awarded if the CLA applied and such awards are notoriously difficult to secure. 

The NSW Court of Appeal, on 13 April 2012 handed down its decision in relation to Mr Wallace’s claim against neurosurgeon Dr Kam. The case sought to challenge the accepted position in relation to failure to warn cases. Following the High Court’s decision in Rosenberg v Percival, it has generally been accepted that to succeed in a case alleging a failure to warn on the part of their surgeon etc, it was necessary to show:

  • the risk of the type of complication the patient suffered was such (by a combination of its seriousness if it eventuated, it’s probability and the patient’s realistic options other than proceeding with the treatment) likely to be considered of significance by the patient in deciding whether or not to undergo the proposed treatment;
  • no warning of such complication was provided;
  • if the warning had been provided, the patient would not have proceeded with the treatment, at least not at the time and place they did.
  • the risk that ought to have been warned about (but was not), then occurred.

In Wallace, the 4th of these requirements was sought to be challenged.  It was claimed to be sufficient if a warning of a risk of complication had not been given, that would have convinced Mr Wallace not to proceed with the surgery, even though it was not this risk that occurred, but rather another risk, that whilst also not disclosed when it ought to have been, was not such as would have convinced Mr Wallace not to proceed with his surgery (because it was so unlikely) – yes, even I had to read this several times before understanding it…

It was argued that Mr Wallace should be compensated for serious complications caused by surgery he would not have undergone, had Dr Kam appropriately warned him of the risks (plural) it involved. When put that way, it is easy to see the appeal of Mr Wallace’s claim ( see particularly the convincing reasoning accepted in Moylen’s case [117] per Lord Caplan).

Unfortunately for him, the Court of Appeal, it has to say with some hesitancy, obviously considerable careful thought and analysis, with 1 of the 3 Judges dissenting, affirmed the conventional position and concluded Mr Wallace’s claim should fail.. Nonetheless, on my reading, the Court made clear that, in part due to the Civil Liability Act’s introduction, the position is not as clear cut as perhaps previously believed. That this is the case is obvious from the divergence of opinion among the 3 members of the Court.

An intriguing question that occurred to me is: what would have happened if the case had been run focusing not on the scientific question of the risks of the operation, but more practically, upon the warning the surgeon ought to have given?  Whether such warning would embrace the risk that eventuated. It occurs to me that in practice, it may well be that a surgeon would be likely to discharge their duty to warn of the risk of various types of nerve injuries by such a single warning, embracing both the form of injury Mr Wallace suffered and the more serious risk.  If it was the same warning that ought to have been given, that was not, which would cover both forms of nerve injury, conventional theory would suggest Mr Wallace ought to have succeeded.


This much anticipated decision was delivered by Judge Goetze on 25 May 2012. As widely expected, Judge Goetze found in neurosurgeon Michael Lee (and paediatric oncologist Dr Baker’s favour) and dismissed Daniel Jordan’s claim.

The case is interesting as it raised the question of the obligations upon a surgeon (or other medical practitioners) to advise a patient of alternatives to their preferred approach to medical care.

It was not in issue that Michael Lee acted reasonably when, following diagnosis of Daniel’s brain tumour in 1996 (when Daniel was 11 years old), he advised that in his view the risks of surgery at that time outweighed the benefits to be gained from surgery (see [37]).

The crux of the case put on Daniel’s behalf was that Mr Lee (and Dr Baker) were negligent in failing to advise that other competent neurosurgeons would have performed such surgery and that it was the first choice for curative treatment of such tumour (see [8]).

Put another way, it was argued that the doctors had an obligation to advise Daniel + parents of the fact that although they would not recommend it, other surgeons would, even if such surgeons were ‘avant garde or radical’ ([38]). This was initially premised on a claim that the doctors had been specifically asked this question and had indicated there were not. This was not accepted by Judge Goetze.

The matter was left therefore to be a question of whether absent such a specific question, a surgeon had an obligation to advise that other neurosurgeons’ acting reasonably, contra their view, would recommend surgery.

Such obligation was not accepted as arising by Judge Goetze. Primarily, this was a factual conclusion by him that there were not such surgeon’s who would have reasonably recommended earlier surgery for Daniel. This involved his rejection of the evidence to the contrary given by Charles Teo, neurosurgeon.

2 general observations about the case are:

  • The importance that the case as put in opening is supported by the course of evidence. In this case there was a divergence between what was said would be put forward by Daniel’s team + what evidence actually then followed.
  • The onus upon an expert witness. Regardless of how well qualified, an expert will be of little use (or weight) if they are not prepared or able to put the time and effort into case preparation, in terms of review of the relevant scientific literature + preparedness to fully backup their opinion’s basis, both in terms of the science + a detailed understanding of the facts of the particular case..


 Just a short note that argument has taken place before Judge Schoombee in relation to this question, in the matter of Lola Phillips v Min for Health. As expected Judge Schoombee reserved her decision..

The key facts in the case are:

1) Lola was born in March 2002, and was born with congenitally dislocated hips.

2) Lola’s case alleges negligent child health care by a community nurse, in failing to act on a finding of ‘clicky hips’ at a review 10 days after her birth.

3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.

If the 2005 changes to the law apply to Lola’s claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).

There is no question that before such changes in the Law in Nov 05, Lola’s claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law’s reform in 2005.

The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees….

 I note recent reports confirming that Nathan Braken, who played 116 1 day internationals for Australia, has made a claim against Cricket Australia, alleging a negligent failure on its employed medical and physio staff, to appreciate he required knee surgery, after an injury during a game against England in 2007.

It is alleged that an MRI scan performed after such game ought to have lead to identification of the need for him to undergo arthroscopic knee surgery.  Mr Braken claims that his cricket career has been lost, due to the failure to arrange such knee surgery at that time.

In my view, this case is part of a growing trend.  

As Australian sportsman’s potential earnings continue to increase + authorities and teams provide ever increasing management of health, diet etc, there is an increasing likelihood of litigation when injuries are suffered.  

In the AFL there has in the last couple of years been trends with patterns of particular forms of injury being suffered by particular teams, potentially tied to training or strength/conditioning practices at the particular club…  I was interested to hear of Essendon + Collingwood’s cutting edge practices to seek to assist in their prep for the Anzac Day game.

In my view, it may be only time before career ending injuries leads to litigation and a court ultimately reviewing the reasonableness + scientific justification for some of the more cutting edge/controversial practices.

In passing I came across the following very good explanation of how a Judge is to weigh up and decided who to believe when 2 witnesses (in our context usually patient v doctor) give conflicting evidence on an important topic.

As well explained, this does not necessarily involve a conclusion someone is lying. In my experience this is not often a conclusion reached. Rather the Judge will generally make a conclusion that 1 witness’ accuracy is better than the others, even though both honestly believe they are telling the truth.

The quote is from a UK case: Onassis and Calerropolous v Vergiottis [1968] 21 Lloyds LR 403 at 431. [I have reformatted it to make it easier to read (I think)]:

"Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.

Credibility covers the following problems:

  1. First, is the witness a truthful or untruthful person?
  2. Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue?
  3. Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?

    [in my view the most useful passage]

    Witnesses, especially those who are emotional, who think that they are morally in their right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.

    For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.

  4. And lastly, although the honest witness believes he heard or saw this or that, is it so improbably that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the creditability of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

Well summarised in my view (mentioned in the recent melanoma case: Coote v Kelly [2012] NSWSC 219).

As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5).

The case concerned a claimant, the aptly named (given the need to litigate her case all the way to the High Court) Mrs Strong, who suffered serious injuries when she slipped and fell at a suburban shopping centre.  It was not in dispute that the cause for her fall was her slip upon a greasy chip on the floor of the sidewalk sales area outside the store.

The initial trial judge concluded (and this was not disputed by the time the case got to the High Court), that the defendant had been negligent in failing to have in place an appropriate system for inspecting and cleaning the relevant area.  Interestingly it was suggested that reasonable care required inspection and cleaning of such area at 15-minute intervals [14].

The difficulty faced by Ms Strong (and many clients in similar cases) was proving that if the defendant had in fact had a proper inspection and cleaning, the chip would have been identified, cleaned away and the accident would have been avoided.  This is a classic ‘causation’ issue.  Once negligence is proven, in cases like Ms Strong’s (and medical negligence cases), the question becomes whether the negligent party should therefore be found liable to compensate the person making claim.  This depends on whether, as a matter of Law, it should be concluded that the negligence caused their harm.

Ms Strong had succeeded at trial on this issue.  This was then reversed on appeal in the New South Court of Appeal.  The Court of Appeal concluded that it could not be proven by Ms Strong that an appropriate system of cleaning and inspection would have removed the chip, because there was no evidence as to when it had in fact fallen to the ground. Based on (inherently) scant evidence, the Court of Appeal concluded there were pointers to suggest the chip had probably not been present for a long period of time. This included the fact the accident had occurred in the lunch period and apparently (I know, this is ground breaking!) people often like to buy hot chips at lunchtime.

Thankfully for Ms Strong, the High Court reversed the court of appeals decision upholding Ms Strong’s claim and awarding compensation.  This conclusion was based upon the view that when all the evidence was looked at, it could be safely concluded that an appropriate system would have been likely to have identified and removed the relevant chip.

The more interesting aspect of the matter from a medical lawyers perspective was the court’s discussion in relation to the approach to deciding “causation” questions in difficult cases, where evidence as to the link between negligence and the poor outcome is thin, or difficult.

The majority of the court confirmed that argument had not been put to it suggesting that determination of such causation questions under the Civil Liability Act resulted in any change of outcome compared to the approach to causation at, law (preceding the CLA).  

The Court confirmed that it had not been determined that a non-essential but factually contributing cause would not satisfy such test (I know a ‘double negative’).  It was observed that section 5D(2) made express provision that causation could be accepted where negligence could not be established as a necessary condition of the occurrence of harm, provided the policy considerations described in the conclusion of such provision were satisfied [26].  

Tantalisingly, they did not go further and provide any commentary as to the scope of this possibility, which has thus far been ignored/unused.

Also interestingly, as with Amaca Pty Limited v Booth [2011] HCA 53 the Court seemed to me to be careful to make clear that it has not to date been asked to decide whether negligent conduct causing a risk of injury in which the state of scientifical medical knowledge makes it impossible to prove whether or not such harm eventuated, is sufficient to permit recovery of compensation (see paragraphs [25] – [26]).

This is the single largest issue of uncertainly in medical law.

It is often the case, in many types of medical claim, that uncertainty arises as to how a patient’s situation would differ had more appropriate care been shown (for instance delay in diagnosis of cancer cases).  Resolution of how such claims are to be evaluated when little or no clear guidance can be given by medical science, as to how the patient’s position would have differed (and if it would), with better care, remains very contentious and unclear.

Whilst I may be optimistic, the High Court’s recent statements in Strong and Amaca do appear to appreciate the difficulties facing plaintiff’s as a consequence of “evidentiary gaps” in such cases.