CHAPPEL v HART [1996] NSWCA 99

CHAPPEL v HART

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY JA and COHEN AJA 26 November 1996, 24 December 1996

[1996] NSWCA 99

TORTS — liability — negligence — doctor's failure to warn of "material risk".

TORTS — liability — causation — "but for" test — "coincidence" test.

On 10 June 1983 the respondent underwent surgery at the hands of the appellant for removal of a pharyngeal pouch in her oesophagus. During this procedure the oesophagus was perforated and a rare complication, mediastinitis, ensued. This resulted in damage to the plaintiff's vocal chords and loss of voice strength that affected her employment as a teacher librarian. The operation was elective though at a later stage it would have become necessary. The respondent did not allege that the operation was negligently performed. Perforation of the oesophagus wall was a well recognised complication occurring without negligence once in 20 to 40

procedures. Mediastinitis will occur after perforation if certain bacteria are present in the oesophagus. Presence of the bacteria is random. The trial judge found that if the plaintiff had been warned of the risk of vocal damage she would have postponed the operation and made further enquiries to minimise the risk.

The appellant challenged the judge's findings of fact and contended that any failure to warn did not cause the condition which was an inherent risk of the operation that could not be eliminated. The respondent cross-claimed that the award of $30,000 for general damages was inadequate.

HELD, dismissing the appeal: (1) The trial judge's findings could not be disturbed; (2) A doctor should warn of a material risk where a patient is likely to attach significance to it and the doctor knows or should have known this: Rogers v Whittaker (1992) 175 CLR 479, followed; (3) An issue as to causal connection is to be resolved on the balance of probabilities as a matter of commonsense and experience: see March v E and M H Stramare Pty Ltd (1991) 171 CLR 506; Bennett v Minister for Community Welfare (1992) 176 CLR 408; Medlin v SGIC (1994) 182 CLR 1; (4) The "but for" test is an important negative criterion of causation but not decisive as policy questions and value judgments are also relevant: see March v E and M H Stramare Pty Ltd (1991) 171 CLR 506; Hogan v Bentinck Collieries Ltd (1949) 1 All ER 588; Banque Bruxells Lambert SA v Eagle Star Insurance Co Ltd [1996] 3 All ER 87; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Hart and Honore, "Causation in the Law", 2nd Ed, 1985; (5) An event causing loss is a coincidence if the risk is no greater when it materialised than it