Rosenberg v Percival [2001] HCA 18

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

IAN ROSENBERG APPELLANT

AND

PATRICIA PERCIVAL RESPONDENT

Rosenberg v Percival [2001] HCA 18

5 April 2001

P44/2000

ORDER

1. Appeal allowed. 2. Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 25 May 1999 and in place thereof order that the appeal to that Court be dismissed. 3. The respondent to pay the costs of the appeal to this Court and before the Full Court of the Supreme Court of Western Australia.

On appeal from the Supreme Court of Western Australia

Representation:

C J McLure QC with D J Martino for the appellant (instructed by Clayton Utz)

E M Heenan QC with P A Monaco for the respondent (instructed by Godfrey Virtue & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Rosenberg v Percival

Negligence − Breach of duty − Surgeon's duty to warn of material risk in proposed surgery − Identification of the material risk − Meaning of material risk.

Negligence − Causation − Whether failure to warn of a material risk causative of plaintiff's injury − Whether patient would not have undergone treatment if warned.

Appeal − Appeal by rehearing − Powers of appellate court − Decision dependent on credibility findings − Authority of appellate court to reach conclusions different from trial judge.

Evidence − Credibility of witnesses − Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.

Words and phrases − "material risk".

1. GLEESON CJ. The facts of the case are set out in the reasons for judgment of Callinan J. 2. Two main issues were argued in this Court. The first is whether the appellant was in breach of his duty of care to his patient, the respondent, when he failed to bring to her notice the risk of a certain kind of harm she might suffer in consequence of surgery he undertook to perform. The second is whether, if there had been such a breach of duty, it was causally related to the respondent's injuries. That in turn involved the question whether, if she had been made aware of the risk, the respondent would have decided not to undergo the surgery. The trial judge found against the respondent on both issues. The Full Court of the Supreme Court of Western Australia reversed the first finding, and ordered a re-trial on the second[1]. 3. I agree with Callinan J that the appellant is entitled to succeed on the second issue, and that the Full Court was in error in over-ruling the trial judge's findings on causation. It is therefore unnecessary to decide the first issue. However, since the two issues are related, it is convenient to make some comments about the first matter, by way of introduction to the second. 4. The case was conducted at trial, in the Full Court, and in this Court, upon the basis that the decision of this Court in Rogers v Whitaker[2] established the nature of the appellant's duty of care, as distinct from its practical content in the circumstances of the particular case. It is important to note what Rogers v Whitaker decided; and what it did not decide. 5. The case concerned a patient who undertook elective ophthalmic surgery to the right eye. When considering whether to have the surgery, she questioned her doctor closely about possible complications, including possible damage to her left eye. There was a remote risk, of which she was not told, that the operation to the right eye could affect her left eye. The risk eventuated. She was left totally blind. She brought an action for negligence on the basis of a failure to warn. She succeeded at trial, and in the Court of Appeal of New South Wales, and in this Court. None of the judges who considered the matter found in favour of the doctor. The principal issue was whether the doctor should have informed the patient of the risk. The surgery was elective. The outcome was catastrophic. The patient had questioned the doctor incessantly about risks. The doctor had not told her of the risk which eventuated. A conclusion that he should have done so was hardly a startling result. By the time the case came to this Court, the doctor's case was argued on a narrow basis. The trial judge had found that there were two responsible but different bodies of medical opinion as to whether the patient should have been warned. The doctor's argument was that, once it was found that there was a responsible body of professional opinion which supported the view that a warning was not required, that was the end of the matter[3]. It was not open to the trial judge to choose between two bodies of professional opinion. The existence of a body of professional opinion supporting the defendant was conclusive in his favour. That is the argument that was rejected. 6. Rejection of the doctor's argument involved deciding not to follow the English decisions of Bolam v Friern Hospital Management Committee[4], and Sidaway v Governors of Bethlem Royal Hospital[5]. This Court preferred the approach of Lord Scarman, who dissented in Sidaway, and who said[6]: