YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, SHELLER JA and MCLELLAND AJA 28 August 1995, 10 October 1995 [1995] NSWCA 529 NEGLIGENCE — duty of care — breach reasonable response to risk of injury — expert evidence — new trial not limited to damages — Wyong Shire Council v Shirt (1980) 146 CLR 40. On 21 September 1988, while Dr Marzbani, a final year dental student employed by the defendant, Western Sydney Area Health Service, was treating the plaintiff, Jennifer Youkhana, she spilled a small quantity of Milton solution into the plaintiff's right eye. The plaintiff appealed from Judge McLachlan's decision of 6 May 1992 that there should be a verdict for the defendant. In his judgment his Honour noted that no expert evidence was called by the plaintiff to establish what was the proper standard of care in the circumstances of the case. He accepted that for a duty of care to arise there must be evidence that the injury was such as to warrant the imposition of such duty. Later he said: "Relating that back to the defendant's proposition that there was no duty of care because there is no evidence that injury of the type, that is physical injury as opposed to mild irritant, was likely to occur, I find myself in the position that I am not able to decide on the evidence that there was a duty of care. If there was, I need guidance from experts and I do not have it." The substantial ground of appeal was founded in what appears to be confusion in his Honour's judgment about whether the defendant owed the plaintiff a duty of care and assuming it did what was required of the defendant. Held: (1) At the time of the incident, the defendant owed the plaintiff some duty of care; Wyong Shire Council v Shirt (1980) 146 CLR 40. His Honour could not find properly for the defendant on "the defendant's proposition" that, because there was no evidence that "physical injury as opposed to a mild irritant" was likely to occur, there was no duty of care. (2) per Mahoney AP Expert evidence was not necessary to determine whether a duty of care existed in the circumstances. The trial judge erred in holding that on the evidence, it was not open or proper for him to decide that the defendant owed the plaintiff a duty of care. Notwithstanding that this is an appeal by way of rehearing, this Court should not itself determine the plaintiffs claim and accordingly there must be a retrial not limited to damages. per Sheller JA Judge McLachlan may not have intended to say that the defendant owed no duty of care to the plaintiff, but rather that the plaintiff had not satisfied him that Dr Marzbani's conduct amounted to a breach of the duty owed. However, His Honour failed to address the question of what response might reasonably have been expected to the foreseeable risk of injury and whether the defendant's response was sufficient. There should be a new trial not limited to damages. per McLelland AJA (dissenting) In his judgment, his Honour was dealing not with the existence of a general duty of care, but with what was specifically required of Dr Marzbani in the circumstances, as an 2 UNREPORTED JUDGMENTS incident of such a duty. The absence of evidence translating the general duty of care into specific requirements in the circumstances precludes an affirmative finding of negligence. The appeal should be dismissed. Mahoney AP The plaintiff Mrs Jennifer Youkhana claims that on 21 September 1988 chemicals were negligently splashed onto her face and into her right eye by a person for whom Western Sydney Area Health Service (to which I shall refer for convenience as "the Clinic") is responsible. She brought proceedings for damages in the District Court. On 6 May 1992 the trial judge, McLachlan DCJ gave a verdict for the Clinic. The plaintiff has appealed to this Court against his Honour's judgment. In my opinion, (a) the trial judge held that, on the evidence, it was not open or proper for him to decide that the Clinic owed the plaintiff a duty of care and on that ground he gave judgment for the Clinic; (b) his Honour erred in so finding; and (c) notwithstanding that this an appeal by way of rehearing, this Court should not itself determine the plaintiffs claim and accordingly there must be a retrial. 1. THE JUDGE'S FINDING: The judge approached the plaintiff's claim upon the conventional basis that, in order to establish the tort of negligence, it was necessary for her to prove that the Clinic owed her a duty of care, that what it did constituted a breach of the duty of care, and that damage resulted to her from that breach: see Wyong Shire Council v Shirt (1980) 146 CLR 40; (1978) 1 NSWLR 631. It is generally accepted that to recover in negligence for physical injury to the person caused by the defendant's act, it is necessary for the plaintiff to show that the defendant was under a duty to take care to avoid so injuring the plaintiff. The concept of duty of care has not always been a constituent part of the tort of negligence. In earlier times, little if any attention was paid to the existence of a duty of care as such. It has been said that the concept grew from those cases in which physical injury to personal property occurred in circumstances where the defendant stood in a particular relationship, eg, of bailee, agent or the lie to the plaintiff: see San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340; (1983) 2 NSWLR 268 at 326 et seq; and that it developed from the attempt by the English courts to evolve a formula of words by the application of which the courts could determine whether the relationship between the plaintiff and the defendant was such that liability in negligence could andrise: see, eg, Heaven v Pender (1883) 11 QBD 503 and LeLievre v Gould (1893) 1 QB 491. The intellectual utility of the concept has from time to time been questioned: see, eg, Morrison and Fleming Duty of Care and Standard of Care 1 Syd LR 699 (1953). But it is now accepted that the existence of a duty of care is essential to the tort of negligence for personal injury. The courts have thereby been enabled to determine, in a preliminary examination of a claim for damage in negligence, whether, as was suggested by Lord Wilberforce in Anns v Merton London Borough Council (1978) AC 728 at 575 et seq, it should as a matter of policy be held that the defendant can be liable to the plaintiff. The courts have developed tests or verbal formulae for the purpose of determining whether in a particular case such a duty exists. The formula adopted in Donoghue v Stevenson (1932) AC 562 ("the neighbour test") has I think been found to be less than fully satisfactory and the High Court of Australia has developed a further test ("the proximity test") for the purpose of assisting in URJ YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE (Mahoney AP) 3 determining whether, in a particular case, a duty of care exists: see generally Jaensch v Coffee (1984) 155 CLR 549; Sutherland Shire Council v Heyman (1985) 151 CLR 424. In the present case, the application of either or both of these tests would, I think, establish that the Clinic owed a duty of care to the plaintiff. She had come to the Clinic for the purpose of having root canal treatment. This form of dental treatment apparently involved that treatment be given to the root canal area of one of at least of her teeth. For this purpose she was seated or lying in a dental chair in the Clinic's premises. An injection syringe was filled with a liquid, described as Milton solution. This was to be squirted into the tooth to irrigate it before it was filled. For reasons which do not clearly appear, liquid from the syringe splashed onto the plaintiff's face and some of it entered her right eye. The neighbour test involves that a duty of care may exist where the relevant type of damage is foreseeable as likely to happen if the defendant does what is in question: see generally Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 et seq. The proximity test involves a duty of care where the plaintiff and the defendant are in such proximity one to the other that justice requires that the defendant should take care to avoid damage to the plaintiff of the relevant kind: see the explanation of proximity by Deane J in the Sutherland Shire Council case: 157 CLR at 496-498; cf the San Sebastian case and the analysis of the concept by Brennan J: 162 CLR at 367. On the application of either of these tests, it might be thought that conduct of the kind which is here in question would foreseeably produce injury to the plaintiff. It is not necessary to foresee the exact injury which in fact occurred: Bourhill v Young (1943) AC 92; nor is it necessary that the injury be great. Mr Hughston, for the defendant, submitted, in my opinion correctly, that the likelihood of damage occurring and the seriousness of any damage which might occur are relevant in determining whether, in the particular case, there was a duty on the defendant to take care for the plaintiffs safety. He pointed out that, as appears to have been accepted, the defendant thought it proper to take precautions to protect the eyes of a patient by having them wear eye-glasses during the course of the treatment. Whether the plaintiff was wearing eye-glasses at the time was the subject of contest at the trial. But where what the defendant is doing is apt to result in even a solution such as the present being squirted into a patient's eyes, it is in my opinion proper to hold that the defendant was under a duty to take care to avoid, inter alia, that happening. There is of course a distinction between a finding that a duty of care exists and a finding that, by what it has done, the defendant has breached that duty. The conventionally accepted test of whether there has been a breach of a duty of care is that stated by Mason J in Wyong Shire Council v Shirt at 47-48. The court must "determine what a reasonable man would do by way of response to the risk". The magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action "and any other conflicting responsibilities which the defendant may have" are to be taken into account. I come now to consider the basis on which the trial judge found for the defendant. I appreciate the circumstances in which, no doubt, the judgment was formulated. His Honour had heard the evidence and, on the day following the end of the evidence, gave judgment. I agree with the observation McLelland AJA made during argument that what his Honour intended to do and to say may not be accurately expressed by the terms of his judgment. Mr Hughston has pointed 4 UNREPORTED JUDGMENTS to the fact that the judgment has been "revised". However, considering the judgment according to its terms, I am of opinion that his Honour held that the defendant was under no duty of care to the plaintiff, that he dismissed the plaintiff's claim on that ground, and that he did not make any finding upon the issue whether if there was a duty of care the defendant had acted in breach of that duty. The learned judge pointed out that "no expert evidence was called by the plaintiff to establish what is the proper standard of care in the circumstances of {his case". He appears to have accepted, in my opinion correctly, that "for the duty of care to arise" there must be evidence that the injury was such as to warrant the imposition of such duty. He concluded that the Milton solution was such that only temporary discomfort could arise from its entering the eye and that accordingly it should be held there was no duty of care. His Honour, having referred to the decision of the Privy Council in Chin Keow v Government of Malaysia (1967) 1 WLR 813, to Mahon v Osborne (1939) 2 KB 14, and to Partlett Professional Negligence, said: "T ask myself the question - should I embark upon a consideration of {he defendant's breach of duty of care or should I dismiss the claim upon the basis that there is no expert evidence to guide me? To decide that threshold question it is of assistance to go a stage further in the consideration of the evidence." His Honour concluded that there was "no sign of physical injury" and that the Milton solution was "not a dangerous substance". His Honour then said: "Relating that back to the defendant's proposition that there was no duty of care because there is no evidence that injury of the type, that is physical injury as opposed to a mild irritant, was likely to occur, I find myself in the position that Iam not able to decide on the evidence that there was a duty of care. If there was, I need guidance from experts and I do not have it." In my opinion, the learned judge dealt with the matter by reference to, as he understood them, submissions as to the significance of, and the necessity for, expert medical evidence in the determination of whether the injury which the plaintiff claimed to have received was received as the result of actionable negligence by the defendant. The significance of expert medical evidence is a topic which, in recent times, has assumed some importance and it is proper that the court indicate what is the significance of such evidence in a case such as the present. Expert medical evidence may, of course, be of significance in a number of different ways. I shall refer to what, in my opinion, are two of the main situations in which it is of relevance, namely, in the proof of facts and in determining whether what was or was not done involved a breach of a duty of care. As to the proof of facts: In some cases, medical evidence is necessary in order to prove the existence of a fact in issue. Facts may be proved by direct evidence of their occurrence, by the acceptance of the statements of those whose statements the court can and should accept, by inference from other facts, and no doubt in other ways. In Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 222 et seq, I gave consideration to this question. What is here in question is the circumstances in which a fact in issue may be inferred from the (proved) existence of other facts. In many cases, the proof that, eg, facts A, B and C existed may provide a basis for inferring that fact X existed; such an inference may be justified by, as it has been described, "general human experience": see Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 at 173; Martin v Osborne (1936) 55 CLR 367 at 375. But in some cases, inferences may not be able to be URJ YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE (Mahoney AP) 5 drawn upon the basis of "general human experience". Given that A, B and C exist, the existence of X may not be a matter of ordinary general experience but may become known only as the result of expert study, experimentation or the like. Thus, whether a person's eye will ordinary be injured by the entry by Milton solution will ordinarily depend upon experience acquired in the use of the solution in the circumstances of medical, dental or similar care; the proof of it will therefore defend an expert evidence. In such cases, it is ordinarily not open to a court of general jurisdiction to draw inferences as to the effect of such a solution upon the eye without the assistance of the evidence of medical experts. If the medical evidence upon the point is credible and unanimous, that will be relevant to - normally it will be determinative of - an issue of this kind. Special circumstances apart, the court will ordinarily follow medical evidence of that kind. Proof of breach of a duty of care: A difference position arises where what is in question is whether, by what he has done or not done, a dental or medical practitioner has acted in breach of a duty of care which she owed to the plaintiff. As I have said, whether a duty of care has been breached is to be determined according to what a reasonable person would do by way of response to the risk of injury which her conduct has posed. But where what is in question is not the act of an ordinary individual but the act of an expert in the exercise of her expertise, the issue of breach or no breach is to be determined by reference to what a reasonable person having and exercising the skill and care of such an expert would do: see Ainsworth v Levi (Court of Appeal, 30 August 1995, not yet reported). In many if not most cases of this kind, what the court will be required to determine is whether what was done by the (expert) defendant was what such an (expert) defendant would do in response to the risk with which she is confronted. Where the answer to that depends upon, not general experience, but experience gained in the acquisition and practice of the professional skill, the court will ordinarily act upon the evidence of those expert in that area. That evidence may indicate that those having and exercising the appropriate skill would or would not do what the (expert) defendant did. That will ordinarily determine the issue. In some cases, such evidence may indicate that there was not one but two or three courses of action which such a person, exercising proper skill and care, might have followed. If expert evidence of this kind is accepted, then the defendant will not be held to have acted in breach of her duty because, in the case, she followed one rather than another of those courses. Reference was made in the submissions in this case to the decision in Rogers v Whitaker (1992) 175 CLR 479. That case, on its facts, did not involve the choice by a doctor of a particular course of treatment or with the way in which the treatment was administered. It concerned, and concerned only, the question whether, where a plaintiff seeks medical advice and presses, to the degree that that plaintiff did, to know of the dangers of particular course of treatment, the doctor is in default if he failed to advise her of a very remote risk. But, in the course of deciding that case, the court indicated the extent to which medical evidence will or will not be conclusive. More accurately, the court held that, in determining an issue whether the selection or application of a medical treatment was negligent in a particular case, the court will not formally be bound by the fact that there exists a body of responsible medical opinion that the doctor's choice and/or application of treatment was appropriate. The effect of the decision was that, if a doctor chooses a particular course or treatment and there is one body of 6 UNREPORTED JUDGMENTS responsible medical opinion that holds that his choice was right and another which holds that it was not right, that fact alone does not, as a matter of law, prevent the court concluding that the choice was wrong and negligently wrong. The court held that, in the end, whether the choice or application of a treatment is in the circumstances negligent must be decided by the court. It is in my opinion important to stress that the court, in so deciding, did not indicate that it would ordinarily put aside expert medical evidence as to whether the choice or application of a treatment was in accordance with what a skilled and careful expert would do. As I have indicated, if the evidence in that regard was unanimous and credible, the court would not (extraordinary cases apart) depart from it. But, as sometimes happens in practice, expert evidence may differ as to whether the choice or application of a particular treatment was negligent or appropriate. Circumstances may be envisaged in which, notwithstanding that some experts may consider the treatment proper, others consider its choice or application quite wrong. Here it appears that a responsible body of medical opinion supports the choice or application of the treatment, the court will ordinarily accept that what was done was not negligent. In such a case the court will ordinarily not substitute its view for that of a responsible and credible body of expert opinion: at least, it will not hold the adoption of it to have been negligence. But there may be circumstances in which such a body of opinion is, for example, thought not "credible" or otherwise not acceptable. There may perhaps be other circumstances in which the court may feel justified in putting aside such a body of opinion. As was said in Rogers v Whitaker, at 487: "In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill: Cook v Cook (1986) 162 CLR 375 at 383-384; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 36; Weber v Land Agents Board (1986) 40 SASR 312 at 316; Lewis v Tressider Andrews Associates Pty Ltd [1987] 1 QdR 533 at 542. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade: see, eg, Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 593, 601. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied: see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 562-563 (case of medical treatment). See also E v Australian Red Cross (1991) 27 FCR 310 at 360. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 562-563; F v R (1983) 33 SASR 189 at 196, 200, 202, 205; Battersby v Tottman (1985) 37 SASR at 527, 534, 539-540; E v Australian Red Cross (1991) 27 FCR at 358-360; the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life': F v R (1983) 33 SASR at 193." I have to this point dealt with the significance of medical evidence in determining whether there has been a breach of a duty of care. Expert evidence may, of course, be relevant or necessary in determining whether there is a duty of care. If the foreseeability of a proximate risk of injury can be determined from ordinary general experience, expert evidence will not be necessary to the URJ YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE (Mahoney AP) 7 determination of its existence. But in some cases, a duty of care may exist only because of the existence of a fact the existence of which is not obvious but can be shown only by expert evidence. Thus, in the present case, the harm apt to be done by Milton solution may be known only as the result of expert evidence. And if the duty of care depends upon or is affected by such a matter, then expert evidence is necessary for the purpose. In the present case, I do not think that expert evidence of this kind was necessary in order to determine whether a duty of care existed in the present case. A dentist should be careful not to splash the eyes of her patient, notwithstanding that ordinarily the solution will cause only temporary discomfort. Alternatively, if it was, there was sufficient evidence to enable that issue to be determined in the plaintiffs favour. 2. WHAT ORDERS SHOULD BE MADE? It follows from what I have said that the trial judge erred in concluding that he could not or should not find that a duty of care existed. It is therefore necessary for this Court to determine what course should be followed by it. The present appeal is an appeal by way of rehearing: Supreme Court Act, s75A; and accordingly this Court can and, if properly it can do so, should determine the issues between the parties. In my opinion, the court can and should hold that a duty of care existed. The fact that, the extent of the damage apt to be caused by Milton solution entering the plaintiff's eye was comparatively small does not determine that no duty of care existed. The evidence before the court, if accepted, indicated a sufficient danger of injury of sufficient dimensions to require that the defendant take appropriate care in treating the plaintiff. The court is also, in my opinion, in a position to determine whether there was a breach of that duty. The evidence given by the ophthalmic witnesses and by the plaintiff, to the extent that her evidence was accepted, would enable the court to determine such an issue. However, there are difficulties in the way of finally determining the proceeding. There was dispute at the trial as to the extent to which the plaintiff suffered damage from what occurred. She said the damage was much more serious than, on the defendant's case, it was. The determination of the extent of the damage will depend not only upon an assessment of the evidence of the expert medical witnesses but also upon the extent to which the evidence of the plaintiff is to be accepted. The learned trial judge did not accept the plaintiff fully in this regard. His Honour said: "The plaintiff's evidence was difficult to take down due to her resistance - despite much prompting - to slow down. However, having carefully considered my notes and the evidence, I have no doubt at all that she has endeavoured to exaggerate her case and I must express some doubt as to her credibility." It is not clear from his Honour's findings to what extent he put aside her evidence. His findings must, I think, be taken to have been affected by what he saw of her in the witness box: Abalos v Australian Postal Commission (1990) 171 CLR 167. In these circumstances, I do not feel confident that I can assess the plaintiff's evidence and effectively choose between her evidence and that of other witnesses. I do not feel able to assess the extent of the damage suffered by her. It is, of course, desirable that a case such as this should be determined if it is possible to do so. As I have said, the events in question took place some seven years ago. The appeal has not been brought on for hearing for some three and a 8 UNREPORTED JUDGMENTS half years since the date of the trial. However, the parties have submitted that there should be a new trial and, in the circumstances of the case, I see no alternative. In my opinion, the appeal should be upheld, the judgment for the defendant should be set aside. There should be a new trial of the plaintiff's claim. Mr Gross QC, for the plaintiff, submitted that the new trial should be limited to damages. In my experience, ordinarily the court will, in such a case as this, grant a new trial generally; it will not ordinarily limit the issues to be determined upon the retrial. At least, it is important that a situation not arise in which the issues relevant to one aspect of the case (liability) be determined differently from those relevant to another (damages). The view taken by McLachlan DCJ on liability may not be the same as that taken on the retrial, when the plaintiff's credit and condition is determined: see generally Morgan v John Fairfax and Sons Ltd (1991) 23 NSWLR 374 and the cases referred to at 381. The trial judge did not, following his assessment of the plaintiff's credibility, determine whether and to what extent the defendant had been in breach of its duty of care or the extent of the injury caused by that breach. In the circumstances, I think it is appropriate that a new trial be a new trial generally. The defendant should pay the appellant's costs of the appeal and should, if entitled, have a certificate under the Suitors Fund Act. Sheller JA The plaintiff, Jennifer Youkhana, appeals from Judge McLachlan's decision of 6 May 1992 that there should be a verdict for the defendant, Western Sydney Area Health Service. The nature of the plaintiff's claim is described in the judgments of Mahoney AP and McLelland AJA which I have had the advantage of reading. Suffice is to say that his Honour found that while Dr Marzbani, a final year dental student employed by the defendant, was treating the plaintiff, she spilled a small quantity of Milton solution into the plaintiff's right eye. Plainly enough at the time this happened the defendant owed a duty of care to the plaintiff. The issues were whether the defendant was in breach of that duty and, if so, whether the plaintiff suffered damage as a result. The substantial ground of appeal is found in what appears to be confusion in his Honour's reasons for judgment about whether the defendant owed the plaintiff a duty of care and, assuming it did, what that required of the defendant. The trial judge, who had reserved his decision on 5 May 1992 and delivered it the next day, referred to the submissions made to him and to the plaintiffs failure to call expert evidence about "the proper standard of care in the circumstances of this case". His Honour was concerned about whether expert evidence was necessary to define the extent or standard of care required and whether there had been a breach of the duty of care. He cited Chin Keow v Government of Malaysia (1967) 1 WLR 813; Partlett, Professional Negligence, 1985, and Mahon v Osborne [1939] 2 KB 14. Rogers v Whitaker (1992) 175 CLR 479 was decided after his Honour gave his judgment. At 487 the High Court said: "Tn Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade." The trial judge considered whether the principle of res ipsa loquitur applied. He then said: URJ YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE (McLelland AJA) 9 "T ask myself the question - should I embark upon a consideration of the defendant's breach of duty of care or should I dismiss the claim upon the basis that there is no expert evidence to guide me?" To assist in answering that question, he referred to possible views about the effect on the plaintiffs eye of the Milton solution and concluded "on the evidence before me" that the substance was not a dangerous substance. Later in his judgment his Honour said: "Relating that back to the defendant's proposition that there was no duty of care because there is no evidence that injury of the type, that is physical injury as opposed to a mild irritant, was likely to occur, I find myself in the position that Iam not able to decide on the evidence that there was a duty of care. If there was, I need guidance from experts and I do not have it." In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J pointed out that a risk of injury which is quite unlikely to occur may nevertheless be plainly foreseeable. The trial judge could not properly find for the defendant on "the defendant's proposition" that, because there was no evidence that "physical injury as opposed to a mild irritant" was likely to occur, there was no duty of care. Mason J went on to say: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff." The defendant accepted that some of the solution was spilt into the plaintiff's right eye and that this would cause some discomfort. It must have foreseen that Dr Marzbarni's conduct would give rise to a risk of some injury. The task of the Court was, in the words of Mason J in Shirt's case, "to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position..... the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." I accept the force of the argument that the trial judge may not have intended to convey, as the words he used convey to me, that the defendant owed no duty of care to the plaintiff, but meant to say that the plaintiff had not satisfied him that Dr Marzbani's conduct amounted to a breach of the duty owed. However, in my opinion, the trial judge not only dressed his conclusion in the language of duty of care but failed to address the question of what response might reasonably have been expected to the foreseeable risk of injury and whether the defendant's response was sufficient. For the reasons Mahoney AP has given I agree that there should be a new trial not limited to damages. I agree with the orders his Honour has proposed. McLelland AJA At the time of the incident on which the plaintiff's claim is founded, she was a patient at the defendant's dental clinic receiving root canal therapy from Dr Marzbani (then a final year dental student). The plaintiff was in a semi-reclining position and was wearing a set of clear plastic protective glasses and a rubber mask or dam over the lower part of her face. Dr Marzbani was using 10 UNREPORTED JUDGMENTS a syringe to irrigate the plaintiff's root canal with a liquid known as Milton solution. Somehow, in a manner not appearing from the evidence, a little of the Milton solution went into the plaintiffs right eye. The plaintiff complained and efforts were made to wash out the eye, including an attempt by the plaintiff herself. The plaintiff later received medical attention. Milton solution is a mild antiseptic comprising a one per cent solution of sodium hypochlorite in water, which, if it enters the eye, can cause temporary discomfort but not serious injury. It is in normal use in endodontic treatment to irrigate the root canal in order to "sterilise" its after removal of the necrotic nerve tissue, enlargement of the root canal and removal of debris within that canal. The trial judge made findings to the effect that Milton solution is not a dangerous substance, that whatever condition the plaintiff suffered as a result of the incident was short lived and that there was no sign of physical injury (which his Honour distinguished from mild irritation). It was not open on the evidence for the trial judge to have found (nor did he purport to find) that Dr Marzbani (or the defendant) knew or should reasonably have known that a small quantity of Milton solution entering the eye might cause significant damage. During the course of his judgment, the trial judge said: "No expert evidence was called by the plaintiff to establish what is the proper standard of care in the circumstances of this case. It is submitted on behalf of the defendant that it is not enough for me to take judicial notice. All medical treatment bears some degree of risk. It is not open to me, says the defendant, to conclude that the circumstances indicated above constituted negligence.... The defendant further argues that for the duty of care to arise, there must be evidence that the injury is of the type which would normally be expected to arise from the use of the particular substance, ie Milton solution. The only evidence is that the solution may cause temporary discomfort but not serious injury. There is no evidence that the solution has a corrosive effect to the eye." After referring to some authorities and to a submission for the plaintiff based on res ipsa loquitur, his Honour said of res ipsa loquitur: "T am surely bound to conclude that it speaks for itself before I can infer negligence. As the defendant points out, there are risks in any operation, dental or medical. I reject the submission that the maxim applies." His Honour continued: "T ask myself the question - should I embark upon a consideration of the defendant's breach of duty of care or should I dismiss the claim upon the basis that there is no expert evidence to guide me? To decide that threshold question, it is of assistance to go a stage further in the consideration of the evidence." His Honour then referred to the evidence relating to the actual effect of the incident on the plaintiff's eye and expressed the conclusions already referred to in that regard. His Honour continued: "Relating that back to the defendant's proposition that there was no duty of care because there is no evidence that injury of the type, that is physical injury as opposed to a mild irritant, was likely to occur, I find myself in the position that Iam not able to decide on the evidence that there was a duty of care. If there was, I need guidance from experts and I do not have it." Some criticism of his Honour's judgment has been made on the basis that his first conclusion is expressed in terms of the existence or otherwise of a duty of care. So it is literally, and if his Honour's decision were properly to be understood as proceeding upon the basis that it had not been established that Dr Marzbani (or the defendant) owed any duty of care at all to the plaintiff, it would be obviously URJ YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE (McLelland AJA) 114 wrong, because nothing could be clearer than that Dr Marzbani (or the defendant) owed the plaintiff some duty of care, which might relevantly be expressed as a duty to take reasonable care to avoid collateral physical injury to the plaintiff. However, in the context of the judgment as a whole, what I think his Honour was intending relevantly to convey was not that he was not able to decide that there was a duty of care in the abstract, but that in the absence of appropriate expert evidence he was not able to conclude that Dr Marzbani (or the defendant) had a duty to do or refrain from doing any particular act connected with the risk of Milton solution passing into the eye of the plaintiff, with which Dr Marzbani's actual conduct might be compared in order to determine whether a breach had occurred. In other words his Honour was dealing not with the question of the bare existence of a general duty of care, but with what was specifically required of Dr Marzbani in the particular circumstances, as an incident of such a duty. Since it had not been established what was specifically required of Dr Marzbani, it was not possible to say that she was in breach of any such requirement. I am not satisfied that in all the circumstances this was an erroneous conclusion. Accidents, or untoward or unintended events, can occur during medical or dental procedures in the absence of negligence. In my opinion the fact that Dr Marzbani somehow caused a little of the Milton solution to pass into the plaintiffs eye, even though how that happened is not apparent, does not of itself lead to an inference of negligence. The evidence does not establish that the magnitude of risk to the plaintiff from such an event was, or should have been known to be, such as to require any preventive or precautionary action which was not in fact taken. Once it is accepted that the fact that the incident occurred does not itself lead to an inference of negligence, the absence of evidence translating the general duty of care into specific requirements in the circumstances precludes an affirmative finding of negligence. In my opinion the appeal should be dismissed. 1. Appeal upheld; 2. Judgment for the defendant set aside; 3. The matter remitted to the District Court for a new trial of the plaintiffs claim; 4. The defendant should pay the appellant's costs of the appeal and should, if entitled, have a certificate under the Suitors Fund Act. COUNSEL: Appellant: BJ Gross QC/LA Levy Respondent: VB Hughston SOLICITORS: Appellant: Kenalo and Rimes Respondent: Audrey Lee