O'BRIEN v WHEELER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, POWELL and STEIN JJA 9 May 1997, 23 May 1997 [1997] NSWCA 236 Negligence — medical practitioner — whether failure to warn of risks involved in tattoo removal operation — whether evidence of Causation The appellant, a specialist plastic surgeon, operated on the respondent to remove a tattoo in 1986. Following the operation, the wound became infected, with the result that the respondent was left with an ugly discoloured scar. The respondent brought proceedings in negligence in the District Court and obtained a verdict against the appellant on the basis of the appellant's failure to warn of the risks involved in the operation. On appeal, the appellant argued that a case of negligence had not been made out on the basis of no evidence to make a finding of causation. Held, appeal allowed: The plaintiff had failed to prove that she would not have undertaken the operation had the appropriate warning been given. Accordingly, the trial judge's finding of negligence on the part of the appellant medical practitioner could not be sustained in the absence of any evidence as to causation. Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; applied. Bustos v Hair Transplant Pty Ltd, NSWCA, unrep, 15 April 1997; referred to. Mason P In about 1962, when she was 15, the respondent had the words "TI love Ray" tattooed on her left hip. By 1985 she was concerned about the effect the tattoo might have upon her children. She was referred by a general practitioner to the appellant who was a specialist plastic surgeon practising in Newcastle. On 18 February 1986 the respondent consulted the appellant at his rooms in Newcastle. He described the technique of tattoo removal known as a flap procedure being a procedure carried out under local anaesthetic. The respondent returned on 5 March 1986 to have the procedure carried out by the doctor with the assistance of a nursing sister. The respondent returned home that day and convalesced at home for the next 9 or 10 days. She was in considerable pain and discomfort, which the trial judge held to be a normal consequence of this procedure. However, on about Friday 14 March, the wound became very sore. On Sunday 16 March the respondent went to Wallsend Hospital. The wound was found not to be healing. A swab taken the next day revealed profuse Staphylococcus Aureus. It was of a type commonly carried by staff who work in certain hospitals. The respondent was a cleaner at a hospital. The respondent was at Wallsend Hospital for 26 days. Further surgery was effected by another doctor. The wound remained raw and painful for at least 10 more weeks after discharge. By the end of May 1986 it had healed and the respondent was back at work, but the site was still very tender. By the end of June it had, in the respondent's words, "basically healed up ". Nevertheless, there are still problems if the area is bumped, and the respondent cannot lie on that side. An ugly, discoloured scar remains. 2 UNREPORTED JUDGMENTS Judge Coleman QC found a verdict for the respondent in negligence. He awarded $31,040.50, made up as follows: Past wage loss $ 1,995.00 Interest on past wage loss $ 1,795.50 General damages $25,000.00 Interest on past general damages $ 2.250.00 $31,040.50 (There was no claim for any expenses in relation to the cost of the initial treatment by the appellant. The other expenses in relation to the treatment at Wallsend Hospital and the remedial treatment and surgery by Dr Howe were paid for through the public hospital scheme, and there was no claim for reimbursements.) The case presented at trial alleged negligence on a number of bases. In all but one, the respondent failed. In particular, she failed to establish her pleaded case of negligence (a) by use of an inappropriate technique; (b) by failure to advise of dermabrasion as an alternative; (c) by failure to use adequate sterile techniques; and (d) by failure to give adequate post-operative advice and supervision. These findings turned on an adverse assessment of credibility and conclusions based on the evidence of the appellant or other medical specialists. The judge found that the infection was the result of a Staphylococcus Aureus infection emanating from the hospital environment where the respondent herself worked as a ward maid. This infection had developed rapidly in the day or two before the respondent went to hospital on 16 March. The earlier pain and discomfort were held to be the natural outcome of a procedure carried out without any fault on the part of the appellant. Nevertheless, the respondent obtained a finding of negligence, and it was on the basis of her alternative case of failure to warn as to the risks involved in the procedure. The critical findings on liability should be set out: "The defendant has no precise recollection of what he said to the plaintiff and although I am satisfied that as a matter of practice he would have given the plaintiff advice concerning infection, I am not satisfied that the advice that he gave went beyond informing the plaintiff that infection could occur in the wound. He gave no evidence in chief as to the content of his advice which was understandable considering the state of his recollection, however, after cross examination it became clear that although he warned of the possibility of infection in general terms he did not go on and explain what the consequences of infection might be and in particular I am satisfied that he did not explain to the plaintff that if infection occurred the wound might break down and that a consequence of that break down could the need for further remedial surgery with further pain and discomfort and the chance that there might be scarring which could be unsightly. There is clear and undisputed evidence that infection can occur in the best ordered procedures and that fact alone made it necessary for the defendant to go further than making a general reference to the risk of infection in the course of the consultation without elaborating on the consequences to the plaintiff if infection was established in the wound. The possibility of an unsightly scar would have been a matter of some significance to the plaintiff considering that this was elective cosmetic surgery and the tattoo was easily concealed by bandaids. URJ O'BRIEN v WHEELER (Mason P) 3 Despite my reservations about other parts of the plaintiff's evidence I am satisfied that after the consultation she viewed the procedure as a matter of routine and did not understand that there might be serious consequences arising out of an infection of the wound, those consequences being more pain and discomfort additional to the expected post operative pain and discomfort and the possibility of further remedial surgery with the attendant pain and discomfort and development of unsightly scarring more disfiguring than the tattoo. There is no issue on the medical evidence that there is an inherent risk of infection in a surgical procedure such as this. The question is whether it was a material risk and that is determined by the following test as stated by the majority in Rogers v Whitaker (1992) 175 CLR 479 at 490: "...a risk is material if, in the circumstances of the particular case, a reasonable person in the plaintiff's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.' The defendant was treating and advising a patient who was undergoing elective surgery to remove a tattoo. In my view a reasonable person in the plaintiffs position would be likely to attach significance to the risk of break down of the wound and infective complication requiring further hospitalisation and then resulting in further scarring and thus required a warning. In Rogers v Whitaker (supra) the majority said at p491: "... The respondent may not have asked the right question, yet she made clear that no injury should befall her one good eye. The trial judge was not satisfied that if the respondent had expressed no desire for information, proper practice required that the respondent be warned of the relevant risk. But it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material in the sense that a reasonable person in the plaintiff's position would be likely to attach significance to the risk and thus required a warning. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective. However, the respondent did not challenge on appeal that particular finding." The defendant gave evidence of the incidence of Staphylococcul infection in public hospitals of the type in which the plaintiff worked. As a worker in such an institution the plaintiff might be a carrier of a Staphylococcul and therefore be predisposed to wound infection in a way which would not apply to other patients generally or have a greater susceptibility to infection because of her employment. Although the risk of infection might have been small and although the fact that she was such a worker would not have required any special screening or treatment before the operation took place her occupation was a factor which should have been taken into account by the doctor and caused him to give her specific warning of the additional risks to her if infection should occur. The advice given by the Doctor was deficient and he was in breach of his duty to the plaintiff." The appellant's principal ground of appeal relates to the absence of both evidence and a finding as to causation. In every negligence case a plaintiff must prove that damage suffered was caused by the negligent act or omission of the defendant. Causation would have been obvious had the respondent succeeded in any of her alternative claims relating to negligent treatment but a "failure to warn" case presented a distinct issue as regards causation. It is well established that a plaintiff must prove, on a subjective basis, that he or she would not have 4 UNREPORTED JUDGMENTS undertaken the particular treatment or procedure had the appropriate warning been given: see Ellis v Wallsend District Hospital (1989)17 NSWLR 553 at 559, 581-582. This test was applied very recently in Bustos v Hair Transplant Pty Ltd, Court of Appeal, unreported 15 April 1997. The test requires a plaintiff who has proved that his or her doctor negligently failed to notify the patient of a particular risk of treatment to satisfy the court that the plaintiff would not have accepted the treatment had the warning been given. Such an approach reflects the autonomy of the adult patient, who is regarded as having the right (if properly informed) to decide for himself or herself whether or not to embark on the procedure. An adult patient who is in a position to make a choice has the right to elect a surgical procedure which the hypothetical "reasonable" person in his or her shoes would avoid, and to refuse a procedure which the hypothetical "reasonable" person in his or her shoes would embrace: see Secretary, Department of Health and Community Services v JWB (Marion's Case) (1992) 175 CLR 218 at 234, 310; Rogers v Whitaker (1992) 175 CLR 479 at 487. In Marion's Case five justices approved the "principle of personal inviolability" echoed in the following statement of Cardozo J in Schleondorff v Society of New York Hospital 105 NE 92 at 93 (CANY, 1914): "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault." Normally a plaintiff shoulders this burden by stating in evidence what he or she would have done. Of course, such evidence is hypothetical, but it comes from the person best placed to address the essentially subjective question. No doubt there may be cases where the court can infer this element of causation from other evidence, but the present is not such a case given the relatively low chance of the risk coming home, the positive evidence that the respondent was very anxious to have the tattoo removed, and the fact that there was a warning that infection could occur. As to the former two matters, see Bustos v Hair Transplant Pty Ltd per Gleeson CJ at p13-p14. The infection is treatable if detected promptly. Here the respondent gave no evidence as to whether or not she would have undertaken the surgical procedure had what the judge found to be the appropriate warning been given. The respondent has argued that a finding of causation is inherent in that part of the passage I have quoted which commences with the words "The possibility of an unsightly scar" and ends with the words "more disfiguring than the tattoo". I do not agree. The elective nature of the surgery was little more than the occasion which gave rise to, the issue posed by Ellis. It was for the appellant to shoulder and satisfy the burden of establishing what Ellis requires. The finding that the respondent "did not understand that there might be serious consequences" (emphasis added) stops short of addressing what the respondent would probably have done if the risk had been adequately brought home to her. I would also reject the respondent's submission that the finding that "a reasonable person in the plaintiff's position would be likely to attach significance to the risk of break down of the wound and infection complication requiring further hospitalisation and then resulting in further scarring" as representing an inference of causation. Not only is that finding made in the separate context of asking whether the risk was material (cf Rogers at 490); but, more significantly, the reference to what a reasonable person would have done is not the subjective enquiry mandated by Ellis. URJ O'BRIEN v WHEELER (Powell JA) 5 If the problem was merely one of an absent finding, it would be a matter for a new trial. However, the respondent's problem is the deeper one of absence of evidence on the critical point. The respondent was simply not asked about this matter. In those circumstances, the inference is that her evidence would not have assisted her case on this critical point: see Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419. That inference becomes overwhelming when it is shown that the point was taken in submissions and no application was made to recall the respondent. We were assured that this is what happened here. This conclusion makes it unnecessary for me to address the remaining grounds of appeal, which challenge the finding that the advice given by the appellant was deficient, and the size of the award of general damages. My inclination is that the warning actually given was sufficient in the light of the evidence as to medical practice, and the smallness of the risk. I have the impression that the trial judge was being unrealistic in drawing a distinction between advice that infection could occur (which was given) and advice that if infection occurred the wound might break down (which was not). It may be that the consequential risk of consequential scarring called for special mention, although I am inclined to doubt it as presently advised. However I do not have to decide this matter, nor the issue of the quantum of general damages. The respondent invokes a principle in the law dealing with fraudulent misrepresentation which Wilson J summarised in the following terms in Gould v Vaggelas (1985) 157 CLR 215 at 236: "Tf a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation". This approach has been extended to cases of duress (see Barton v Armstrong [1973] 2 NSWLR 598 at 611) and breach of s52 of the Trade Practices Act (see Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242). I am prepared to assume that the approach may extend to cases of innocent misrepresentation: see Meagher, Gummow and Lehane, Equity Doctrine & Remedies 3 ™ ed §§ 1306-1308; Parkinson, The Principles of Equity p172. However, all of these situations involve a positive act by the defendant which the court infers has a tendency to lead to a particular response by the plaintiff. The tendency having been demonstrated, the law allows the evidentiary onus to shift to the defendant. I have difficulty in seeing that these principles apply to a case like the present, where the ultimate issue is what the particular plaintiff is likely to have done if warned. Without saying that one could never infer a likely response from surrounding circumstances, the present is not a case where that inference can be drawn. It should certainly not be drawn where the plaintiff has not, when warned, sought to give evidence on the issue. I would make the following orders: 1. Appeal allowed. 2. Verdict for respondent set aside. 3. Enter a verdict for the appellant. 4. Respondent to pay appellant's costs of the appeal and in the court below. 5. Respondent to have a certificate under the Suitor's Fund Act if qualified. Powell JA I agree with Mason P. 6 UNREPORTED JUDGMENTS Stein JA I have had the benefit of reading the draft judgment of Mason P. I agree that the plaintiff respondent must fail in that there was no evidence, direct or otherwise, of causation. In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 the court held that the test of causation in cases of medical negligence is a subjective one. That is, that a plaintiff must establish on a subjective basis that she or he would not have undertaken the procedure had an appropriate warning been given, see Kirby P at 559 and Samuels JA at 580 and 581. Not only did the plaintiff not give any evidence of what she would have done if given the appropriate warning, but when the point was taken in submissions, it is uncontested that no application was made to recall the plaintiff. I agree with Mason P that there may well be cases where the element of causation may be inferred from evidence other than a plaintiff, see Gould v Vaggelas (1985) 157 CLR 215 and Huntsman Chemical v International Pools (1995) 36 NSWLR 242. However, for the reasons stated by the President, this was not such a case. I also agree that a finding of causation is not inherent in the passages of the judgment referred to by Mason P and relied on by counsel for the respondent. In particular, the passage: ... In my view a reasonable person in the plaintiffs position would be likely to attach significance to the risk of break down of the wound and infective complication requiring further hospitalisation and then resulting in further scarring and thus required a warning - does not raise any inference of causation. Apart from being a finding relevant to a different issue, ie the materiality of the risk, it appears to be premised on an objective, rather than a subjective, basis. Accordingly, it is unnecessary to determine the other ground of appeal which challenges the trial judge's finding that the warning was deficient. Whilst not deciding the point, my inclination is that it was open on the evidence for the trial judge to find that the advice given by the appellant was insufficient. His Honour said: The defendant gave evidence of the incidence of Staphylococcul infection in public hospitals of the type in which the plaintiff worked. As a worker in such an institution the plaintiff might be a carrier of a Staphylococcul and therefore be predisposed to wound infection in a way which would not apply to other patients generally or have a greater susceptibility to infection because of her employment. Although the risk of infection might have been small and although the fact that she was such a worker would not have required any special screening or treatment before the operation took place her occupation was a factor which should have been taken into account by the doctor and caused him to give her specific warning of the additional risks to her if infection should occur. In my opinion, the conclusion of the need to give the plaintiff a specific warning of the additional risks if infection should occur by reason of her working in a hospital environment was one which was open to the trial judge. The finding should not be disturbed by an appellate court. This is particularly so when Dr Gibson, whose report was received into evidence as expert evidence on the appropriate warning, was not told of the plaintiff's work in a hospital. Like Mason P, however, I do not decide the issue. I agree with the orders proposed by Mason P. 1. Appeal allowed. 2. Verdict for respondent set aside. 3. Enter verdict for the appellant. URJ O'BRIEN v WHEELER (Stein JA) 7 4. Respondent to pay the appellant's costs of the appeal and in the court below. 5. Respondent to have a certificate under the Suitor's Fund Acct if qualified. 5 Counsel for the appellant: A Sullivan QC Solicitors for the appellant: Blake Dawson Waldron Counsel for the respondent: C Callaway QC with P Varrby 10 Solicitors for the respondent: Rutter Morgan & Co