Johnson v Biggs [2000] NSWCA 338

New South Wales Court of Appeal

CITATION : Johnson v Biggs [2000] NSWCA 338 FILE NUMBER(S) : CA 40917/99 HEARING DATE(S) : 27 September 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Christine Heather Johnson - Appellant Michael Biggs - Respondent JUDGMENT OF : Giles JA at 1; Fitzgerald JA at 50; Santow AJA at 51

LOWER COURT JURISDICTION : District Court LOWER COURT DC 7644 of 1999 FILE NUMBER(S) : LOWER COURT P R Bell DCJ JUDICIAL OFFICER :

COUNSEL : S Harben - Appellant P Brereton SC - Respondent SOLICITORS : Koops Martin, Coffs Harbour - Appellant Blake Dawson Waldron - Respondent CATCHWORDS : NEGLIGENCE - medical negligence - failure to warn - whether failure to warn of possible consequences of procedure - whether would have had procedure even if warned. D. Chappel v Hart (1999) 195 CLR 232; CASES CITED: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Rogers v Whittaker (1992) 175 CLR 479. DECISION : (1) Appeal allowed. (2) Set aside the judgment in favour of the respondent and remit the proceedings to the District Court for a new trial limited to liability. (3) The respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified. (4) Costs of the first trial follow the event of the new trial, subject to any application by reason of an offer of compromise.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40917/99 DC 7644/98

GILES JA FITZGERALD JA SANTOW AJA

Friday 24 November 2000 JOHNSON v BIGGS JUDGMENT 1 GILES JA: In 1993 the appellant Mrs Christine Johnson began to experience pain in her left side at the back just below the last rib. The pain got worse. The appellant consulted successive general practitioners, and through them a gastroenterologist, an orthopaedic surgeon, a neurosurgeon and a pain specialist. She received treatment from a chiropractor and from physiotherapists. A radiological examination, a CT scan, an MRI and myelogram were performed. 2 The early consultations and investigations were inconclusive and the treatment brought no relief. In the end the neurosurgeon, in consultation with the pain specialist, diagnosed "focal nerve root compression in the lower thoracic region on the left side". He recommended that if medication did not give relief neurectomy should be considered. Medication did not give relief, but nerve blocks then performed by the pain specialist at the T7/8 level did. The appellant was referred to another neurosurgeon, the respondent Dr Michael Biggs, for possible surgery. 3 The respondent saw the appellant on 6 June 1995, and later in June 1995 performed a thororascopic T7/8 and T9 intercostal neurectomy on the appellant. The surgery was successful, but the appellant encountered the complication of neurectomy known as "anaesthesia dolorosa", that is, the sensation of pain from an area not in fact sensitive to pain. Pain remained and was worse than before: the trial judge described the appellant as experiencing increased pain which she would experience for the rest of her life. 4 In her claim against the respondent the appellant alleged negligence by reason of -