AINSWORTH v LEVI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and HANDLEY JJA 24-25 November 1994, 30 August 1995 [1995] NSWCA 9 NEGLIGENCE — MEDICAL PRACTITIONER DIAGNOSIS AND TREATMENT — RELEVANCE OF ALTERNATIVE SCHOOLS OF OPINION The appellant was a professional singer. In April 1971 she consulted the respondent, a throat specialist in connection with her voice. He diagnosed "singer's nodes". On 13 August 1971 the respondent removed the singer's nodes by diathermy. The appellant's voice did not return to normal, because following the procedure she developed a web linking her vocal cords. She underwent further surgery which removed the web, but her singing voice was not restored and she was never able to resume her career. She sued the respondent for negligence. The trial judge withdrew some issues from the injury which returned a verdict for the respondent on the remaining issues. The appellant sought a new trial challenging the judge's decision to withdraw issues from the jury, and alleging misdirections in the summing up. Held: (1) The grounds of appeal challenging the judge's ruling that the doctrine of informed consent formed no part of Australian law must be rejected. Rogers v Whitaker (1992) 176 CLR 479 applied. (2). The judge was correct in ruling that there was no evidence of negligent diagnosis. (3) The judge was correct in ruling that there was no evidence that the respondent acted negligently in removing both nodes in one operation. (4) There was no evidence that the use of diathermy itself was negligent. Rogers v Whitaker, Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, F v R (1983) 33 SASR 189, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, considered. (5) The judge did not err when instructing the jury that they could only find that the appellant was negligent in failing to advise conservative treatment if they rejected the alternative school of opinion which supported his advice, "not by way of preference but by way of its existence". This was not objected to by counsel for the appellant, and in the context of the final addresses was not likely to mislead the jury. If it was a misdirection, it was not such as to cause any substantial wrong or miscarriage, so as to require a new trial. ORDERS 1. Leave to amend the appellant's notice of appeal refused. 2. Order that Robert James Charles Benjamin executor of the estate of the late Louis Levi be substituted as respondent. 3. Appeal dismissed with costs. Mahoney JA The plaintiff's claim is that her surgeon was negligent. The negligence which she claims to have occurred is claimed to have occurred in 1971. The operation which the defendant Dr Louis Levi performed on the plaintiff Ms Beverley Ainsworth was performed on 13 August 1971. In 1974 she sued him for damages, alleging that he had been negligent. It was not until September 1984 that she brought her claim before the court for hearing. On 28 September 1984, after a trial before a judge and jury, the jury found a verdict for the defendant. On 26 October 1984 the plaintiff appealed against that verdict. It was not until 24 November 1994, some ten years after the verdict, that she brought the appeal for hearing before this Court. 2 UNREPORTED JUDGMENTS No explanation has been offered for the time which elapsed between the commencement of the proceeding and the trial or between the trial and the hearing of the appeal. This Court's enquiry brought no satisfactory explanation. The delay is relevant, inter alia, because the relief sought by Ms Ainsworth is another trial of her claim. It is now more than twenty-three years since the events which, she says, gave rise to it. The lapse of time and the possible effect of this upon the availability of evidence is a reason why the Court may, in its discretion, refuse a new trial: see, eg, Burchett v Kane (1980) 2 NSWLR 266 at 279. However, the defendant did not submit that, if a new trial would otherwise be appropriate, it should be refused for reasons of this kind. Notwithstanding this, the time which has elapsed between the various stages of the proceeding must cause disquiet. In saying what I have, I am not to be taken as suggesting criticism of the present solicitors of the parties. There may be reasons which explain why, at trial level and on appeal, the proceeding has been delayed as it has been. The Court has not delayed the further progress of the proceeding by investigating what has been done or the reasons for it. I shall therefore consider the validity of the submissions which the plaintiff has made. 1. THE NATURE OF THE ISSUES RAISED BEFORE THE COURT ON APPEAL: Ms Ainsworth was a professional singer and, no doubt, hoped to progress further in her profession. However, she developed two nodes on her vocal cords. This is a condition which sometimes occurs in those who, by singing or otherwise, make special demand upon their vocal structures. It interfered with the quality of her singing. Therefore she sought advice as to what, if anything, should be done. She was referred to the defendant. He was a surgeon who had significant qualifications and experience as an ear, nose and throat surgeon. He advised that the condition be dealt with by a surgical procedure. On 13 August 1971, surgery was performed. The surgery was, in its outcome, not successful. Ms Ainsworth developed a "web" on her vocal cords and that further interfered with the quality of her voice. She claimed that the defendant had been guilty of negligence in his treatment of her and she sued him for damages. She chose to have the trial of her claim take place before a judge and jury. As the law required him to do, the judge gave directions to the jury: he told them, inter alia, the approach which the law required them to take in deciding the plaintiff's claim. It is in respect of these directions, given during the summing-up, that the plaintiff complains. She claims that the directions were wrong: in particular, that they were wrong in law; and that the errors were likely to have led the jury to a wrong decision. In order to deal with the plaintiff's submissions, it is necessary to consider: (a) what occurred at the trial; (b) what relevantly the law requires of a doctor in the position of the defendant; and (c) whether the judge erred in the directions which, in this regard, he gave to the jury. (a) What occurred at the trial: A plaintiff who alleges that a defendant has injured her by negligence may be required to specify (as I shall describe it compendiously) what he did wrong. The plaintiff did this in the present case: she gave particulars of what she claimed was the defendant's negligence. In order to make clear what the judge did and why he did it, it is necessary to refer to the course of the trial in this regard. Mr Bates, in his careful and persistent submissions, dealt at length with this part of the URJ AINSWORTH v LEVI (Mahoney JA) 3 appeal. In deference to what he has submitted, I shall refer to the particulars of the plaintiffs claim and what was done in relation to them. The particulars of negligence ultimately provided by the plaintiff were: "(1) The defendant was in breach of his duty of care and was negligent towards the plaintiff in that the defendant: (a) Failed to obtain and failed to exercise proper care, skill, competence and diligence to obtain the plaintiff's valid and informed consent to the operation which the defendant performed on the plaintiff on 13 August 1971; (b) Failed to inform, advise and warn the plaintiff and failed to exercise proper care, skill, competence and diligence to inform, advise and warn the plaintiff at all or adequately before the operation on 13 August 1971 of the risk and danger to the plaintiffs singing voice, career, vocal cords and throat entailed by the said operation; (c) Failed to exercise proper care, skill, competence and diligence in his: (i) examination, (ii) diagnosis of the condition of the throat, of the plaintiff on 6 April 1971; (iii) diagnosis of the number of vocal nodules in the throat of the plaintiff on 6 April 1971; (d) Failed to exercise proper care, skill and competence and diligence in his: (i) examination, (ii) diagnosis of the condition of the throat of the plaintiff prior to, at and/or during the operation on the plaintiff on 13 August 1971; (iii) diagnosis of the number of vocal nodules in the throat of the plaintiff prior to, at and/or during the operation on the plaintiff on 13 August 1971; (e) Operated on the throat of the plaintiff on 13 August 1971 so carelessly, unskilfully, incompetently, improperly and wrongly that he surgically: (i) interfered with the soft tissue of the throat of the plaintiff, (ii) interfered with both vocal cords of the plaintiff, (iii) interfered with both vocal cords and with the soft tissue between the vocal cords of the plaintiff, (iv) interfered with the anterior commissure of the throat of the plaintiff, (v) caused a web formation to form in the anterior commissure of the throat of the plaintiff, (vi) injured the plaintiff's singing voice, (vii) used an outmoded and inappropriate technique; (f) Failed to advise the plaintiff on 6 April 1971 to undergo a course of voice rest, speech therapy, and non-surgical care and treatment as a way of making it unnecessary for the plaintiff to undergo any subsequent operation to remove vocal nodules in the plaintiff's throat. 2. The plaintiff will further and/or in the alternative, if necessary, rely on res ipsa loquitor." These particulars set forth the things which, the plaintiff has claimed, the defendant did wrong. If the defendant is to be held negligent, it is because he did one or more of these. At the end of the evidence, it was necessary for the trial judge to decide what directions he should give to the jury. Certain of the matters particularised had been abandoned: these included paral(c)(i) and paral(c)(iii) and paral(d)(i) and paral(d)(iii). Therefore the jury had to be directed that they could not find the defendant negligent because of any of these. 4 UNREPORTED JUDGMENTS In respect of each of the matters particularised and pressed by the plaintiff, the judge had to decide whether there was any evidence to support it, that is, whether the jury was to be directed that there was evidence on which they could find that the plaintiff had done one or other of these things. If there was no sufficient evidence to support a finding for the plaintiff in respect of any one of these, that matter was not to be left to the jury. The judge concluded that he should not leave to the jury the matters particularised in paral(a), paral(c)(ii) and para(1)(d)(ii). In respect of each of the remaining maters, that is, maters pressed by the plaintiff in respect of which there was evidence to support them, the judge had to decide what the law was and the significance of it. It was these matters alone which were to be left to the jury for decision. They included paral(b), paral(e), paral(f) and para2. Before this Court, the plaintiff alleged, first, that the judge should have left to the jury matters which he withdrew from them. Since drafting my judgment I have had the advantage of reading the judgment of Handley JA. What his Honour has said enables me to shorten my judgment in this regard. I do not desire to add anything to what his Honour has said: I agree with Handley JA that his Honour did not err in this regard. The plaintiff then alleged that, in respect of some of the matters left to the jury, the judge gave wrong directions. I confess to thinking that the plaintiff's allegations in this regard have varied during the course of the submissions made to this Court. Again, subject to what appears from what I shall say, I agree with what has been said by Handley JA in relation to these matters. There is an obligation upon a party who suggests error in a summing-up to draw to the attention of the trial judge the errors which it is suggested were made. If this is done, the errors may be corrected before the verdict of the jury is taken. Tf no objection is taken, that may affect the exercise by the Court of its discretion to grant or refuse a new trial because of them: see generally Pt51 R16. However, in this appeal, the defendant does not suggest that the plaintiff did not do what in this regard was required of her. The form of the summing-up was the subject of submissions before it was delivered. The judge prepared (as it was described) a draft judgment. The parties have concurred in putting that draft judgment before this Court and inviting the Court to consider it. It was from this draft judgment that the summing-up was delivered. No objection has been taken by the defendant upon the ground that complaint was not made of the errors which the plaintiff now suggests. I come therefore to consider whether the judge made the errors which the plaintiff claims were made in the summing-up. In order to do this it is necessary to consider the nature of the duty which a surgeon owes to his patient. (b) The duty of the surgeon: A surgeon owes a duty to his patient to be careful in his care of her. In the current legal terminology, this is because it is appropriately foreseeable that, if he does not do so, injury may be caused to her and because he is, in the relevant sense, in proximity to her: see Rogers v Whitaker (1992) 175 CLR 479 at 483; see generally Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 500 at 541 et seq. What must be decided in each case is what that duty requires that he do. (The Court is concerned with both what he should do and what he should not do. For brevity, I shall take a reference to what he should do to comprehend both.) To adapt what was said by Mason J in Wyong Shire Council v Shirt (1980) URJ AINSWORTH v LEVI (Mahoney JA) 5 146 CLR 40 at 47 48, a surgeon must foresee those dangers that a reasonable person in his position would have foreseen and must take precautions to prevent damage from them. In Burnie Port Authority v General Jones Pty Ltd: at 554; the majority of the Court said: "Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur: see, eg, Thompson v Bankstown Corporation (1953) 87 CLR at 645; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains 'that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances': Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of 'reasonable care' may involve 'a degree of diligence so stringent as to amount practically to a guarantee of safety': Donoghue v Stevenson (1932) AC at 612 per Lord Macmillan; Adelaide Chemical and Fertilizer Co Ltd v Carlyle at 523 per Starke J; and, generally, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 30, 42." Accordingly, each person who has a duty of care must decide what things these principles require that he do; if he has been sued, it remains for the judge at the trial to decide what he should have done. If the defendant has erred in applying these principles to the facts of his case, that is, if he has not done what the judge decides in retrospect that he should have done, he is liable for the damage caused by his omission: see generally Rogers v Whitaker (1992) 175 CLR at 483-492. In view of the submissions made in this case, it is proper to stress two things. First, what the surgeon should do, ie, what dangers he should foresee and what precautions he should take to deal with them, is to be determined upon the basis (or assumption) that he has and has properly exercised the degree of skill and care that, as a skilled professional, he is expected to have and to take. And second, a surgeon is liable only for not doing what he should have done: he is liable only if he is, in the sense to which I have referred, in default. He is not liable merely because what he has advised or done has caused damage to the patient. Damage may occur because of risks to which inherently a surgical procedure is subject: cf the risk of sympathetic ophthalmia referred to in Rogers v Whitaker. Sometimes damage may occur because of a mere error of judgment: a surgeon is expected to exercise reasonable care in diagnosing and in advising what should be done: he is not required to be omniscient. I come now to consider the matter which has been central to ie submissions made by the plaintiff in this appeal, namely, the fact that, in doing what he did, the surgeon has acted "in accordance with the practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice": Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985) AC 871 at 881; Rogers v Whitaker (1991) 23 NSWLR 600 at 604. The position was stated by the High Court in Rogers v Whitaker (1992) 175 CLR at 487; as follows: 6 UNREPORTED JUDGMENTS "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. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. 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 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'." (Citations omitted). This does not mean that "the practice followed or supported by a responsible body of opinion" is irrelevant. Evidence as to that practice may help to decide what proper care and skill requires to be done and it may be evidence that the defendant, in doing a particular thing, acted with proper care and skill. But, in the end, "it is for the courts to adjudicate upon what is the appropriate standard of care". (c) The directions given to the jury: In respect of the matters as to which complaint was ultimately pressed, there was, in my opinion, no such error as warrants a new trial. The matters in respect of which complaint was made were initially set forth in the detailed submissions (dated 19 November 1994) which Mr Bates tendered to the Court on behalf of the plaintiff. In the course of the hearing, the submissions ultimately pressed were, I think, not precisely those set forth in the written submissions: the submission were to an extent varied when made before this Court. What Handley JA has written enables me to state, in a more summary form, the conclusions which I have formed. The trial concluded in September 1984. That was before a decision was given in Rogers v Whitaker, in this Court: Rogers v Whitaker (1991) 23 NSWLR 600; and in the High Court. Most, if not all, of the errors suggested derive from that fact. In at least a number of the instances argued, the submissions suggested that the judge's directions, even if they followed the law as then understood, were in error because, as Rogers v Whitaker has established, the law was other than as it was then understood. I do not think that the judge's directions in this regard disclosed reversible error. The judge had before him the views of this Court in Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and the High Court observed that, having regard to Albrighton's case, "the Bolam principle has not always been applied" in Australia: at 487. In respect of the matters in question in the proceeding before him, his Honour, in so far as he adapted what had been said in the Albrighton case, in my opinion formulated appropriate directions for the jury. I shall not pursue in detail all of the complaints suggested by Mr Bates' submissions in this regard. But it is proper to refer to one of them. Mr Bates pursued, in particular, the use made in the judge's directions of the fact that there was, as the defendant had put, "a respected body of medical opinion which the doctor" had followed. The judge, at one stage in the summing-up, told the jury: URJ AINSWORTH v LEVI (Handley JA) 7 "T ask you to remember that particularly when you come to the question about the issue of the advice as to undergoing, if I may call it, conservative treatment. It is not a matter of you making a preference. If there is a respected body of medical opinion which the doctor has followed that may be different to another body, he cannot be found negligent and the onus is always on the plaintiff." It was submitted for the plaintiff that this direction was quite wrong, that is was inconsistent with the principle subsequently established by Rogers v Whitaker, and that accordingly there must be a new trial. It was submitted for the defendant that the plaintiff had, in the relevant respect, adopted the draft summing-up which his Honour had prepared and that this point was not open: that it was not properly called in question by the plaintiff. It was submitted also that the summing-up was in accordance with the existing law, that it had not been submitted that the existing law was wrong, and that accordingly this objection could not be taken: see Piening v Wanless (1968) 117 CLR 498; Eggins v Broomshead Bowling and Recreational Club Ltd (1986) 5 NSWLR 521. It is not necessary for me to deal with these submissions because, in my opinion, no appealable objection can be taken to the summing-up in respect of the matter here in question. There are passages in the summing-up (of which the passage cited may be one) which, taken in isolation, might suggest that the judge had directed the jury in a manner inconsistent with the principles established in Rogers v Whitaker. But, when the summing-up be read as a whole and against the background of the factual issues as they had emerged for determination by the jury, I do not think that there was such an error. The matter may be illustrated by taking, by way of example, one of the matters urged for the plaintiff in argument. It was suggested that the doctor had erred in advising surgery rather than the more conservative treatment of rest and/or re-education, and that his error was a negligent error. At the trial it was, I infer, accepted by both sides that it is not every error in advising as to treatment that is negligent: for an error to be negligent, more must be shown. One of the ways suggested to show that the defendant's error was negligent was to show that what was advised was supported by no reputable body of medical opinion. If the plaintiff could show that, she could show the error was negligent. If the defendant could show that there was a body of reputable opinion supporting his advice and the jury accepted that there was, that would negative the plaintiffs case in that regard and the jury could not find for her upon that basis. A direction to this effect was not a direction as to the principle of law referred to in Rogers v Whitaker; it was a direction as to the effect of the evidence and as to the issues of fact as they had emerged for determination. The directions of which the plaintiff complained in this regard were, in my opinion, directed to issues of fact of this or similar kinds; they were not based upon principles of law inconsistent with the decision in that case. On these and the other matters in contest, I agree with the judgment of Handley JA and the orders he proposes. Meagher JA I agree with Handley JA. Handley JA This anneal comes before the Court in unusual circumstances.In 1971 the appellant then aged thirty three was a professional singer. She sang popular songs in clubs, nightclubs and cabarets. She had been a professional singer since she was nineteen having had some six months training at the Conservatorium in classical singing. Prior to February 1971 she had had no trouble with voice loss apart from the occasional cold or laryngitis. She was a 8 UNREPORTED JUDGMENTS mezzo-soprano with a voice range from 2 to 24 octaves. In February 1971 she noticed a husky or squeaky quality in her voice when singing. On 6 April 1971 she consulted the respondent, an ear, nose and throat specialist, on referral from her general practitioner. He diagnosed the presence of "singer's nodes" (singer's nodules) and advised that surgical removal would be necessary. Singer's nodes are small lumps on the vocal chords which are the result of constant straining of the chords during inappropriate use. The appellant agreed to undergo surgery but continued to perform professional engagements until immediately before the operation. This was carried out by the respondent on 13 August that year when the singer's nodes were removed by diathermy using a microlaryngoscope which provided binocular vision through a microscope into the larynx. This was a new procedure developed by Professor Kleinsasser in Germany and pioneered in this country by the respondent. She was advised to rest her voice completely for the next two weeks, writing notes if possible and whispering only if necessary. The appellant's voice did not return to normal but remained husky. She said that she was "croaky". Investigation revealed the existence of a web which had appeared since the operation linking her vocal cords at the end known as the anterior commissure. She underwent surgery for the removal of this web under Professor Kleinsasser, at Cologne on 6 June 1972. This restored the normal appearance of her vocal cords but not her singing voice and she was never able to resume her career. The appellant commenced proceedings for negligence against the respondent in October 1974 but for unexplained reasons her action did not come on for hearing until August 1984. Delays of this magnitude were most unusual and were not the responsibility of the Court. The trial before Finlay J and a jury lasted six weeks. At the close of the evidence the Judge, on the application of the respondent, withdrew some but not all of the issues from the jury. The jury returned a verdict for the respondent. The appellant appealed within time but for reasons only partly explained by difficulties with legal aid and deliberate deferment to await the final outcome in Rogers v Whitaker (see (1992) 176 CLR 479), the appeal did not come on for hearing until November 1994, more than ten years after the trial. Again it must be said that delays of this magnitude are most unusual and are not the responsibility of the Court. The appellant seeks a new trial which, if ordered by this Court, must take place at least twenty five years after the operation. The problems are compounded by the death of the respondent on 17 February 1995. The respondent did not apply at any stage for the appeal to be dismissed for want of prosecution and the Court cannot now dismiss it on that ground. However the long delays will be relevant to the exercise of any judicial discretion. The appellant challenged the Judge's decision to withdraw issues from the jury and alleged misdirections in his summing-up. It will be convenient to consider these matters by reference to the particulars of negligence pleaded in the statement of claim, as amended at the trial, which were as follows: "11(1) The defendant was in breach of his duty of care and was negligent towards the plaintiff in that the defendant: (a) failed to obtain and failed to exercise proper care, skill, competence and diligence to obtain the plaintiff's valid and informed consent to the operation which the defendant performed on the plaintiff on 13 August 1971; URJ AINSWORTH v LEVI (Handley JA) 9 (b) failed to inform, advise and warn the plaintiff and failed to exercise proper care, skill, competence and diligence to inform, advise and warn the plaintiff at all or adequately before the operation... of the risk and danger to the plaintiff's singing voice, career, vocal cords and throat entailed by the said operation; (c) failed to exercise proper care, skill, competence and diligence in his: (i) examination; (ii) diagnosis of the condition of the throat of the plaintiff on 6th April 1971; (iii) diagnosis of the number of vocal nodules in the throat of the plaintiff on 6 April 1971; (d) failed to exercise proper care, skill and competence and diligence in his: (i) examination: (ii) diagnosis of the condition of the throat of the plaintiff prior to, at and/or during the operation on the plaintiff on 13 August 1971; (iii) diagnosis of the number of vocal nodules in the throat of the plaintiff prior to, at and/or during the operation on the plaintiff on 13th August 1971; (e) operated on the throat of the plaintiff on 13th August 1971 80 carelessly, unskilfully, incompetently, improperly and wrongly that he surgically: (i) interfered with the soft tissue of the throat of the plaintiff; (ii) interfered with both vocal cords of the plaintiff; (iii) interfered with both vocal cords and with the soft tissue between the vocal cords of the plaintiff; (iv) interfered with the anterior commissure of the throat of the plaintiff; (v) caused a web formation to form in the anterior commissure of the throat of the plaintiff; (vi) injured the plaintiff's singing voice; (vii) used an outmoded and inappropriate technique; (f) failed to advise the plaintiff on 6th April 1971 to undergo a course of voice rest, speech therapy, and non-surgical care and treatment as a way of making it unnecessary for the plaintiff to undergo any subsequent operation to remove vocal nodules in the plaintiff's throat. (2) The plaintiff will further and/or in the alternative, if necessary, rely on res ipsa loquitor." After the evidence had closed the appellant abandoned para(1)(c)(i) and para(1)(c)(iii) and para(1)(d)(i) and para(1)(d)(iii). The Judge withdrew para(1)(a), para(1)(b), para(1)(c)(ii) and para(1)(d)(ii) from the jury but left para(1)(e) (negligence during the operation), (1)(f) (negligence in failing to advise conservative treatment) and (2) (the result of the operation was evidence of negligence). The original notice of appeal challenged the Judge's ruling on "informed consent" (Grounds 1-3), his withdrawal of negligent diagnosis from the jury (Grounds 4, 5) and his ruling that there was no evidence to go to the jury that the respondent was negligent in removing both nodes in the one operation (Grounds 6, 7, 9). Ground 8 was abandoned. There was no challenge in the original notice of appeal to the Judge's decision to withdraw para(1)(b) (failure to warn) from the jury. When the appeal came on for hearing Mr Bates, counsel for the appellant, applied for leave to amend the grounds of appeal to substitute "reformulated" Grounds 2 and 3, abandon Ground 8 and add a new Ground 10. The amendments were opposed by Mr Garling, counsel for the respondent, because in his submission the new grounds sought to take advantage of Rogers v Whitaker in support of arguments which had not been raised at the trial. The Court rejected 10 UNREPORTED JUDGMENTS the application at that stage because of the excessive length and obscurity of reformulated Grounds 2 and 3 and by a majority was also not satisfied that the new grounds had been raised at the trial. The appellant was given leave to apply again to add or substitute grounds which were brief but specific as required by SCR Pt51 R8(1)(b) covering matters raised at the trial. On the second and last day of the hearing Mr Bates submitted reformulated grounds. Leave was sought to add grounds challenging the Judge's decision to withdraw para(1)(b) of the particulars (failure to warn). The original notice of appeal did not challenge this decision and I would refuse leave to add such grounds at this late stage. The evidence at the trial closed on Wednesday 19 September. The jury were then excused while the Judge heard legal argument on the respondent's motion for a verdict by direction. The Judge gave judgment on this application on Monday 24 September. Most of the issues in the appeal arise from this judgment and can be considered by reference to the grounds in the notice of appeal. LACK OF INFORMED CONSENT - (GROUNDS 1-3) These grounds challenged the Judge's ruling that the doctrine of informed consent formed no part of Australian law. They must be rejected because in Rogers v Whitaker (1992) 175 CLR 479 the High Court also rejected that doctrine. At 490 the majority said: "... nothing is to be gained by reiterating the expressions used in American authorities, such as... the oft used and somewhat amorphous phrase 'informed consent'... the phrase... is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to a patient can only found an action in negligence and not in trespass; consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed." NEGLIGENT DIAGNOSIS (GROUNDS 4-5) Ground 4 alleged that the Judge erred in ruling that there was no evidence to put to the jury in support of para(1)(c)(ii) and para(d)(ii) which alleged negligence in the diagnosis of the condition of the appellant's throat on 6 April and 13 August 1971. Senior counsel for the appellant had submitted "that the defendant was negligent in diagnosing that the nodules had to be surgically removed without review." The Judge rejected this submission saying that he did not consider that the evidence would justify the jury coming to any such conclusion. The respondent said that on his first examination he observed that the appellant had a singer's node on each vocal chord approximately half way along, exactly opposite each other. They were white, hard, well established and of long standing. He drew what he saw on a certificate he gave the appellant which became an exhibit. He said he told her "they are well established, they will not go away" and said they could be removed by surgery. Arrangements were made for her to have this procedure later in the year. There was no direct evidence that this diagnosis was incorrect, let alone negligent, but this was hardly surprising because the appellant was unable to obtain direct evidence. The respondent was the only specialist who saw her throat prior to the operation. URJ AINSWORTH v LEVI (Handley JA) 11 The Judge left to the jury para(1)(f) (failure to advise conservative treatment) which covered the same ground as these paragraphs ("diagnosing that the nodules had to be surgically removed without review'). I have difficulty in seeing how the Judge's ruling on these paragraphs is consistent with his ruling and summing-up on para(1)(f). In my opinion these grounds are misconceived because the same issues were left to the jury under para(1)(f). I would reject these grounds of appeal. REMOVING BOTH NODES IN THE ONE OPERATION (GROUNDS 6-7) These grounds allege that the Judge erred in ruling that the evidence would not permit the jury to find in relation to para(1)(e) that the respondent acted negligently in removing both nodes in the one operation. The Judge said. without further elaboration: "T do not consider that the evidence would permit the jury to find that the removal of the bilateral singer's nodes in the one operation, when the surgeon was using the microlaryngoscope, was unacceptable practice." The experts called by the appellant, Drs Finney, Bulteau and Carroll were only familiar with the older procedure using cup forceps and had not used diathermy. However it was common ground that the advent of the binocular microscope (microlaryngoscope) used by the respondent had been an enormous advance because it allowed binocular vision, greater magnification, freed both hands of the surgeon, and allowed much greater precision (560, 354-356). It was common ground that the surgeon should not disturb the anterior commissure where the vocal chords come together because of the risk of web formation in this region. Web formation can also occur elsewhere if opposite parts of both vocal chords are improperly interfered with in surgery. This could also occur where cup forceps were used. Dr Finney said that the nodes should be removed in separate operations to reduce this risk (23). However Dr Carroll said that they could be removed at the same time and this was his practice (578). There was no evidence that there was a greater risk of mishap if both nodes were removed at the one time using a microlaryngoscope and none of the experts said that such a procedure was inappropriate. The appellant's case at its highest did no more than establish the existence of two available procedures, each with its own risks disadvantages and benefits. The mere existence of an alternative procedure which would or might have avoided the particular mishap does not furnish evidence of negligence in a case such as this. In any event, as Dr Finney pointed out (23N-R), the relevant risk in the use of the bilateral procedure was that a web would form at the point where the nodes had been removed. This did not occur. In my opinion this ruling by the Judge was correct and I would reject these grounds of appeal. MISDIRECTION AS TO BURDEN OF PROOF (GROUND 9) This ground was withdrawn during the hearing of the appeal (transcript at 59). ALLEGED MISDIRECTION IN RELATION TO NEGLIGENCE IN THE OPERATION (PROPOSED NEW GROUND 10) On the second day of the hearing Mr Bates sought to add a new ground 10 to the notice of appeal as follows: "The jury's consideration of whether or not the operation itself was carried out negligently in accordance with the directions reproduced at AB 5/1032J-1051P (pursuant to paral 1(1)(e) and paral 1(2) of the particulars) was tainted and should be set aside because of the undue and incorrect emphasis given by the primary judge in his Summing-Up (at ABS/1015A-C, AB5/1018J-M, AB5/1026F-H, 12 UNREPORTED JUDGMENTS AB5/1029W-1030F) to the notion that professional practice is determinative as to whether or not there was or were breaches of duty as alleged." The passages referred to were not directed to the issue of negligence in the operation but to whether the choice of surgery without attempting a cure by conservative treatment was negligent. The Judge's directions on negligence in the operation were straightforward and conventional. They are not affected by anything in Rogers v Whitaker and were not objected to by experienced senior counsel appearing for the appellant. In my opinion the proposed ground of appeal is misconceived and I would refuse leave to amend to include this ground. OTHER ISSUES I have not yet dealt with the questions which occupied most of the hearing. Consideration of the existing and proposed grounds of appeal has satisfied me that the bulk of the argument was directed to matters which were not formally in issue. In these circumstances the Court could simply dismiss the appeal without considering other questions. However argument on those questions was entertained and answered without objection based on the form of the notice of appeal or the proposed amendments and it would not be appropriate for this Court to reject them on purely procedural grounds. Compare Leotta v PTC (1976) 50 ALJR 666, and Balmain New Ferry Co v Robertson (1906) 4 CLR 379. The other issues debated during the hearing included: 1. The use of the diathermy procedure was itself negligent. 2. Alleged misdirections based on the relevance of accepted professional practice. It will be convenient to consider each separately. USE OF DIATHERMY PROCEDURE The Judge ruled: "T do not consider that the evidence would permit the jury to find the use of diathermy itself to be an unacceptable practice in the removal of singer's nodes." None of the appellant's experts said that the use of diathermy was inappropriate or involved undue risks (T27-29, 34). The appellant's case was that diathermy involved certain risks and therefore it was open to the jury to find that its use in preference to the older method was negligent. The only evidence as to the use of the diathermy technique was given by the respondent and the expert, Dr Bridger, called in his case. If accepted this established that proper use of the technique would not produce a web in the anterior commissure and that this was not an inherent risk of the procedure. Even if that evidence were rejected, there was no evidence to the contrary. There was also no evidence that the diathermy procedure carried higher inherent risks than the conventional procedure with cup forceps. The respondent agreed that each procedure carried its own risks but would not agree that diathermy involved higher risks (AB 791). There was no evidence to the contrary. In my opinion the following submission of Mr Garling (36-37) was correct: "The plaintiff can't prove a case of this kind by saying... there were two available (surgical) practices: one carried certain risks, the other carried certain risks; one carried certain benefits, the other carried certain benefits; and because the surgeon chose to use one or the other..., he is thereby negligent." Mr Bates however argued strenuously that such an approach was contrary to Rogers v Whitaker and to Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and F v R (1983) 33 SASR 189 referred to by the trial Judge. Rogers v Whitaker establishes that in the context of the duty to give medical URJ AINSWORTH v LEVI (Handley JA) 13 advice the fact that a body of reputable medical practitioners would have been given the same advice as the defendant does not preclude a finding of negligence. The relevance of alternative acceptable surgical procedures did not arise for decision in that case. However this was not a novel issue in Australia, having been considered by this Court in Albrighton in which the trial judge had been counsel for the plaintiff at the trial. Reynolds JA, speaking for the Court on this issue, said at 562-563 that it was: "\.. a Wrong assumption that a jury should be directed that, if what is charged as negligence is shown to have been done in accordance with the usual and customary practice... then prevailing in what was called a particular 'medical community' they cannot find negligence. This, in my opinion, is plainly wrong because it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients then none can be found guilty of negligence." The relevant UK authorities up to that time, including Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 had been referred to in argument. It would be remarkable if the trial Judge had given a ruling or summed up to the jury contrary to the principles applied in Albrighton and I have not been persuaded that he did so. His Honour said: "... the plaintiff (is entitled) to assert negligent treatment if the following two basic questions can be answered affirmatively: 1. Did the defendant by failing to (a)... (b)... (c) advise of conservative treatment alternative to surgery, depart from 'a practice rightly accepted as proper by a body of skilled and experienced men' (see Sidaway's Case... per Sir John Donaldson MR at 792) and, if so, 2. was the failure the cause of the plaintiff's injuries? Mr Rofe QC for the plaintiff has submitted that the court should not abdicate to the medical profession the determination of the relevant standard of care in any particular case... I think there is no risk of any such abdication if you accept, as I do, the addition by Sir John Donaldson MR in Sidaway's Case of the qualifying word 'rightly' to the appropriate test... Sir John Donaldson MR observing "... that, in an appropriate case a judge would be entitled to reject a unanimous medical view if he were satisfied that it was manifestly wrong... " The Judge later referred to and relied upon that part of the speech of Lord Scarman in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639 where he said: "\.. in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary." The appellant's submissions invited the Court to reject this principle because it was contrary to Rogers v Whitaker. The High Court there carefully distinguished between cases where the alleged negligence lay in the provision of professional advice on the one hand and cases where it involved diagnosis or treatment on the other. This distinction was not drawn because different principles of law applied but because diagnosis and treatment were more likely to involve technical questions which a tribunal of fact could only determine in the light of expert evidence. At 489 the majority said: 14 UNREPORTED JUDGMENTS " .. the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors... There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill... Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, OFTEN A DECISIVE, role to play." (emphasis supplied) Earlier the Court had said at 487: "\.. 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. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied." The majority cited as authority for this latter proposition the passage in Albrighton at 562-563 quoted above. Earlier at 485 they had referred to Maynard as authority for the principle accepted by the trial Judge without any hint of disapproval. This Court held in Albrighton that there was evidence which would have entitled a jury to find that the defendant doctors had been negligent. See at 553-556. Reynolds JA at 554 said: "\.. the existence of expert evidence makes it unnecessary in this case to venture into the difficult area of what the common experience of mankind may tell a tribunal of fact where unexpected and unintended harmful results follow medical treatment. This is not a case where the tribunal of fact is given only the simple facts that a patient submitted to spinal traction on advice and finished as a paraplegic, nor is it realistic to think that it would be left to a jury to approach the case on the basis that, if they rejected all else, they would be left with only those basic facts. There is far too much common ground for that position to be reached... " There had been expert evidence of the risk of subjecting patients such as that plaintiff to spinal traction, and given that her spinal cord (unusually) was attached to her spine and that the defendants should have known or suspected this, the risks involved in spinal traction were, it might be thought, obvious. In the present case there was no evidence, expert or otherwise, that diathermy involved any greater risk to the anterior commissure than the conventional procedure. Leaving this issue to the jury would have merely invited them to prefer one respectable procedure and one respectable body of professional opinion to another. The existence of an alternative procedure, without more, can provide no evidence of negligence in a case such as this. In my opinion, the Judge correctly withdrew this issue from the jury. MISDIRECTIONS ON STANDARD OF CARE URJ AINSWORTH v LEVI (Handley JA) 15 The Judge left to the jury the issue whether the respondent was negligent in failing to advise that an attempt be made to cure the singer's nodes by conservative treatment before undertaking surgery. In summing-up to the jury the Judge, following the speech of Lord Scarman in Maynard previously quoted, directed them that negligence could not be established by preferring one respectable body of professional opinion to another. No objection was taken to these directions. However the point had been raised and dealt with by the Judge in his judgment of 24 September. He summed up as foreshadowed in that judgment, and since this point had already been taken and ruled on, there was no need to formally take it again at the conclusion of the summing-up. The Judge directed the jury (1014-15): "In the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure that no doctor of ordinary skill would be guilty (of) if acting with ordinary care. In the realm of diagnosis negligence is not established by preferring one respectable body of opinion to another. Failure to exercise the ordinary skill of an ear, nose and throat surgeon is necessary. I ask you to remember that particularly when you come to the question about the issue of the advice as to undergoing, if I may call it, conservative treatment. It is not a matter of you making a preference. If there is a respected body of medical opinion which the doctor has followed that may be different to another body, he cannot be found negligent..." See also at 1013-1014, 1026 and 1029-1030. The Judge was instructing the jury on the legal principles relevant to their determination. This was his function. See Alford v Magee (1952) 85 CLR 437 at 466. He had no need to refer to other principles, qualifications or exceptions which may have been relevant in other cases but which did not arise for the jury's consideration in this case. Such references would not have assisted the jury and would have been unhelpful and confusing. He reminded the jury of the expert evidence on this issue (1018-1030). Dr Finney said that a specialist would "usually" advise conservative treatment (1018) and that it would be "exceptional" (1020) to advise surgery at the first consultation. He did not agree that conservative treatment was not beneficial with well established nodes (1020) and said that it was successful in three quarters or more of adult patients (1021). Dr Bulteau acknowledged that it was proper in some cases to recommend surgery without attempting conservative treatment (1022) depending on the clinical evidence (1023). Dr Carroll said that the criterion for surgery was the persistence of the nodes after vocal rest (1024) and that immediate surgery was only indicated if the nodes were "enormous" that is, the size of match heads (1026). The Judge referred to the respondent's evidence that voice rest before attempting surgery was not an inflexible rule (1027) because it gave no consideration to the particular patient. Dr Bridger said that in 1971 there were two schools of thought, a conservative school and a more active school. The latter considered that nodes, once formed, were very likely irreversible, that prolonged conservative treatment did not get results, and surgery was preferable. However he said that it depended on the person and the circumstances (1028). The Judge also directed the jury (1026): 16 UNREPORTED JUDGMENTS "... None of the conservative doctors that I have just referred you to expressed a view that Dr Levi was wrong in not advising a period of voice rest and speech therapy." He concluded on this issue (1029-1030): "So the defendant says that there is clear evidence of a responsible body of expert opinion who would not have advised a patient such as the plaintiff to undergo conservative treatment, so on this issue the plaintiff fails for that reason. If you decided (for) the plaintiff on the initial issue of whether such advice to undergo conservative treatment was required by accepted medical practice, which would mean rejecting the alternative school, not by way of preference, but by way of its existence, then the question is..." It was not suggested that the first passage was incorrect and no redirection was sought. The second passage left for the jury's consideration the question whether there was, as respondent's counsel had submitted, "clear evidence of a responsible body of expert opinion" in favour of the course taken. The Judge told the jury that a finding for the plaintiff on this issue would require them to reject "the alternative school" which supported the defendant's advice "not by way of preference but by way of its existence". The judgment of 24 September did not foreshadow a direction in these terms. This direction may not have been happily expressed and it appears to use a form of shorthand. No issue was raised as to the honesty of Dr Bridger so clearly an alternative school of thought did exist in fact and the Judge had reminded the jury of the relevant evidence at 1026-1029. The Judge had earlier held that there was a real question for the jury's determination on this issue. (1005I) One wonders then what the Judge meant by telling the jury that to find for the plaintiff on this issue they would have to reject "the existence" of the alternative school. Counsel addressed the jury for three days (1016) and it seems likely that the reference to rejecting "the existence" of the alternative school picked up the way this expression had been used by counsel in their final addresses. The Judge must have thought the jury would understand what he was referring to. It seems to me that the Judge must have intended to leave to the jury by this direction the question whether the alternative, more active, school of thought followed by the respondent was supported by a respected body of medical opinion (1014V, 1015C) and reflected a proper standard (10131), or was one which no doctor of ordinary skill would use if acting with ordinary care (1014T). In Rogers v Whitaker the majority (at 489) said that in cases of alleged negligence in diagnosis and treatment responsible professional opinion "will have an influential, often a decisive role to play." In her separate, concurring judgment, Gaudron J said (at 493) that in such cases expert medical evidence "is of very considerable significance", although there was no legal basis for limiting liability in terms of the Bolam test. She added: "That is not to deny that... the Bolam test may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such it may have been utility as a rule-of-thumb in some jury cases." The Judge did not withdraw the issue of negligence in failing to advise conservative treatment from the jury, as he would have done if he had fully accepted the Bolam test. He left this issue to the jury for them to consider in substance whether the school of thought followed by the respondent should be accepted as reflecting a proper standard. This allowed the expert evidence its proper role without usurping the function of the jury. URJ AINSWORTH v LEVI (Handley JA) 17 The judgment of 24 September did not foreshadow a direction in terms requiring the rejection of the "existence" of the alternative school. It therefore did not relieve the appellant's counsel from their obligation to raise objections to the summing-up to enable the trial Judge to correct any error or omission by a further direction. Senior counsel for the appellant did not seek any further direction on this matter, presumably because he was satisfied that in the context of the final addresses the Judge's reference to "the existence" of the alternative school of thought was not likely to mislead the jury as to the real question for their consideration on this issue. I am not satisfied that the passage involved any misdirection but if it did, I would hold that no substantial wrong or miscarriage was occasioned thereby and would refuse to order a new trial on this ground (SCR Pt51 R16). In my opinion therefore the following orders should be made: 1. Leave to amend the appellant's notice of appeal refused. 2. Order that Robert James Charles Benjamin executor of the estate of the late Louis Levi be substituted as respondent. 3. Appeal dismissed with costs. 1. Leave to amend the appellant's notice of appeal refused. 2. Order that Robert James Charles Benjamin executor of the estate of the late Louis Levi be substituted as respondent. 3. Appeal dismissed with costs. COUNSEL: Appellant: PW BATES Respondent: PR GARLING SC SOLICITORS: Appellant: DENNIS AND CO Respondent: BLAKE DAWSON WALDRON