Green v Chenoweth[1997] QCA 407

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10998 of 1996.

Brisbane

[Green v. Chenoweth]

BETWEEN:

ROBYN PATRICIA GREEN

(Plaintiff)  Appellant

AND:

JOHN CHENOWETH

(Defendant)  Respondent

Pincus J.A.

McPherson J.A.

Shepherdson J.

Judgment delivered 11 November 1997

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

APPEAL DISMISSED WITH COSTS

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10998 of 1996.

Brisbane

Before Pincus J.A.

McPherson J.A.

Shepherdson J.

[Green v. Chenoweth]

BETWEEN:

ROBYN PATRICIA GREEN

(Plaintiff)  Appellant

AND:

JOHN CHENOWETH

(Defendant)  Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 11 November 1997

The appellant was the plaintiff in an action for damages against a surgeon, brought in the District Court, alleging medical negligence.  The primary judge held that there was a breach of the respondent’s duty to the appellant in that he failed to advise her of the risk of adhesions consequent upon a surgical operation called myomectomy;  the appellant’s case was that if she had had that advice, she would not have agreed to have the operation done.  She in fact had the operation and suffered from adhesions.  But the judge was not satisfied that advice about the risk of adhesions would have made any difference;  in his Honour’s view, if the respondent had given appropriate advice the appellant would not have refused surgery.

So the appellant’s action failed, due to inability to prove any damage consequent upon the breach found.  The appeal challenging his Honour’s conclusion is based upon a finding that there was a chance that, if differently advised, she would have decided against surgery.  It was argued by Mr Morris QC, for the appellant, that his Honour should have assessed the value of that chance in accordance with the law as laid down in Malec v. J C Hutton Pty Ltd (1990) 169 C.L.R. 638.  Mr Williams QC for the respondent argued that the Malec principle has no application in circumstances of the present kind, and also pointed to what he contended were other insuperable obstacles in the appellant’s path.  He said that the point now sought to be raised on the appellant’s behalf was expressly conceded below not to be arguable in her favour and that it is not covered by the pleading delivered.  Further, Mr Williams QC argued that the judge was mistaken with respect to the onus of proof of the proposition that no proper advice was given.

It appears to me to be unnecessary, however, to consider these other arguments (both of which have substance) for I have concluded that the appeal must fail on the Malec point.  Malec was a case in which a plaintiff contracted a disease as a result of the defendant’s negligence;  the disease ceased to affect him after a few years but he was left with a psychiatric condition which rendered him unemployable.  It was found that even if he had never had the disease he would have developed a similar psychiatric condition, for other reasons.  The High Court held that even if it was more probable than not that, disease or no disease, the psychiatric condition would have occurred, the plaintiff was entitled to damages for the psychiatric condition reduced "to take account of the chance that factors, unconnected with the defendant’s negligence, might have brought about the onset of a similar neurotic condition" (645).  It was held that in assessing damages "questions as to the future or hypothetical effect of physical injury or degeneration" are to be resolved in terms of degree of probability of those events occurring (643).

The foundation of the Malec doctrine is the distinction between proof of liability and proof of damages;  as to the former, Malec does not affect the well established position that facts must be proved on the balance of probabilities.  The passage in which the principle relating to assessment of damages is set out begins with the words "When liability has been established and a common law court has to assess damages . . . " (642);  so that, if the court thinks it possible, but unlikely, that an event occurred which, if established, would have made the defendant liable the plaintiff simply loses the case and is not entitled to an assessment of damages.  If two hunters fire shotguns simultaneously in the direction of the plaintiff, one shot putting out his eye, the plaintiff cannot succeed against either unless he can show, as to one of the hunters, that it was more probably than not his shot which did the damage:  but I have noted Summers v. Tice 199 P.2d 1 (Cal.S.C., 1948), which held the contrary.

The distinction between proof of liability and proof of loss, which is critical in the present case, may have difficulties.  In most areas of the law there is no liability without proof of loss;  the reckless car driver is guilty of no tort unless someone is injured as a result of his bad driving.  One possible approach to dividing the issues neatly between those affecting liability and those affecting damages is to consider at what stage nominal damages, without proof of actual loss, could be awarded.  Such damages are available in actions for breach of contract and in torts actionable per se.  As to actions of slander, under the general law, elaborate rules have been developed distinguishing between those instances in which proof of particular damage is required in order to establish liability and those in which it is not so required:  see for example Kerr v. Kennedy [1942] 1 K.B. 409.  It seems unlikely that what might be called the non‑Malec issues can satisfactorily be dissected out on such a basis;  in a case like the present it would be artificial to have the standard of proof, on any issue, depend on whether the doctor was working under a contract with the patient, or not.

Another possibility, as to the way in which one determines whether or not an issue is of the Malec type, is to ask whether it is a question of causation or one of damages:  Sellars v. Adelaide Petroleum NL (1994) 179 C.L.R. 332 at 353.  The difficulty about that test is that questions of causation may arise under both limbs;  they can affect both liability and damages.  It appears to me that one must endeavour to use the liability/damages distinction, in applying the Malec principle.

The Malec problem is related to the rule which has developed in another area, in relation to the time of accrual of causes of action:  Wardley Australia Ltd v. Western Australia (1992) 175 C.L.R. 514.  Wardley is authority that if in an action for negligent misrepresentation the plaintiff’s complaint is merely one of exposure to a contingent loss or liability, there is no cause of action (532).  A reconciliation between the two lines of authority has been suggested (at 544) on the basis of a distinction between the loss of a chance of benefit, and a risk of future loss;  but it is unclear why damages measured by a prospect of monetary loss are to be treated differently from damages measured by loss of a prospect of benefit - the latter being covered by the Sellars case.

While it would be desirable to attempt to deal with the appellant’s argument by accurately defining the limits of the Malec doctrine, it is my opinion that the present state of authority makes that a hazardous course.  The case may be disposed of more narrowly, on the basis that where what is complained of is bad advice, or lack of advice, the plaintiff cannot succeed without showing, on the balance of probabilities, that some relevant consequence ensued from the wrong;  that consequence would ordinarily be that the plaintiff did or refrained from doing something.  I note that in Professor Waddams’ article "The Principles of Compensation" in Essays on Damages (edited P Finn) 1992, 1 at 10-12, the author favours the view that where a patient suffers injury in the course of a medical procedure before which no adequate warning of risk was given, Malec requires that "if there is a 25 per cent chance that a fully informed patient would have refused to undergo the procedure, the plaintiff should recover 25 per cent of his damages".  But so to hold would not accord with the law in respect of the tort of deceit, where there is no liability without proof that the plaintiff acted on the lie:  Kerr on the law of Fraud and Mistake (1952) p. 489, Holmes v. Jones (1907) 4 C.L.R. 1692 at 1710, Gould v. Vaggelas (1985) 157 C.L.R. 215 at 236.

Wilson J in Gould v. Vaggelas set out as one of the principles applicable to actions of deceit that:

"Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case". (236)

That and other principles were held by the Full Court of the Federal Court in Dominelli Ford (Hurstville) Pty Ltd v. Karmot Auto Spares Pty Ltd (1992) 38 F.C.R. 471 at 483, to be equally applicable to actions on the basis of s. 52 of the Trade Practices Act 1974 (Cth) and equivalent State legislation.   It is true that in these cases no question of discriminating between Malec and non-Malec issues arose, but one could hardly doubt the truth of the proposition that there is no cause of action against a defendant for having lied if nothing is shown to have followed from the lie;  lying is not, without more, a tort.  It does not appear likely that the law could treat more harshly than the deceitful defendant one who has merely made a negligent statement, or negligently failed to make a statement - the latter being, according to the judge’s finding, the present case. 

The rule which I favour, that a negligent failure to warn cannot give rise to a cause of action unless (at least) it is proved, on the balance of probabilities, to have brought about some relevant action or inaction, is consistent with the result in Hotson v. East Berkshire Area Health Authority [1987] A.C. 750.  There the plaintiff, after negligent medical treatment, suffered a condition called avascular necrosis;  it was held that had there been no negligence, there was a 75% chance that that condition would still have developed.  An award of 25% of the amount which would have been recovered, had bad treatment been positively found to have caused the necrosis, was upheld by the Court of Appeal, but the House of Lords allowed an appeal by the defendant.  The principle applied in Hotson may be a little unclear;  Lord Mackay had some difficulty in distinguishing McGhee v. National Coal Board [1973] 1 W.L.R. 1, and declined to hold that a plaintiff in a medical negligence case could never recover for loss of a chance (786), but the outcome tends to support the conclusion of the learned primary judge in the present case.

I would dismiss the appeal with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10998 of 1996.

Brisbane

Before Pincus J.A.

McPherson J.A.

Shepherdson J.

[Green v. Chenoweth]

BETWEEN:

ROBYN PATRICIA GREEN

(Plaintiff)  Appellant

AND:

JOHN CHENOWETH

(Defendant)  Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 11 November 1997

In this matter, I have had the advantage of reading the reasons of Pincus J.A.  I agree with them generally and with his Honour’s conclusion that the appeal should be dismissed with costs.

In my respectful opinion, a plaintiff in an action for damages for negligence continues to be bound to establish that the defendant’s negligent act or omission caused the injury complained of, or at least that it materially contributed to it: Duyvelshaff v. Cathcart & Ritchie Ltd. (1973) 47 A.L.J.R. 410, 417 col. 1A; Wilsher v. Essex Area Health Authority [1988] A.C. 1074, 1088, 1090.  I do not consider that this conclusion is affected by the decision in Malec v. J.C. Hutton Pty. Ltd. (1990) 169 C.L.R. 638, which was concerned with the different, if not always wholly unrelated, question of assessing the quantum of damages for a contingency once an injury is proved to have been caused.

In the subsequent case of March v. E. &.M.H. Stramare Pty. Ltd. (1991) 171 C.L.R. 506, all the members of the High Court appear to have accepted that a plaintiff is required to prove a causal connection between the injury sustained and the negligence or breach of duty alleged to have been committed.  See March v. Stramare Pty. Ltd. (1991) 171 C.L.R. 506, 514, 516, where Duyvelshaff v. Cathcart was referred to with apparent approval by Mason C.J., with whose reasoning Toohey and Gaudron JJ. agreed.  The decision in Malec v. Hutton is not referred to in the judgment in that case; but McHugh J. said (171 C.L.R. 506, 530) that if the damage “would have occurred notwithstanding the negligent act or omission, the act or omission, is not a cause of the damage, and there is no legal liability for it”, citing Duyvelshaff v. Cathcart.

In discussing the “but for” causation test in March v. Stramare, Deane J. said (171 C.L.R. 506, 522) that it would commonly exclude causation for the purposes of the law of negligence if the answer to the question posed was that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event.  Again Duyvelshaff v. Cathcart was the authority cited; his Honour went on to add that there were “convincing reasons”, which he discussed, “precluding its adoption as a comprehensive definitive test of causation in negligence”.  He concluded by saying, at 524, that “the question whether conduct is a ‘cause’ of injury remains to be determined by a value judgment involving ordinary notions of language and common sense”.  My impression is that he continued to regard cause, whatever its meaning, as an essential element in a claim based on negligence.  See also Keeys v. State of Queensland [1998] 1 Qd.R. 000.  If (which may be doubted) the decision in Herskovits v. Group Health Co-operative of Puget Sound 664 P. 2d 474 (1983) is to be considered as arriving at a different conclusion, I would, in the light of the Australian and English authorities referred to, not be disposed to follow it.

For my part, I would prefer to reserve the question of whether decisions like Summers v. Tice 199 P. 2d 1 (1948) and Cook v. Lewis [1952] 1 D.L.R.1 should be followed in this Court.  They can perhaps best be considered as judicial attempts to solve the problem of re-allocating the onus of proof in a case of damage caused by an unidentifiable one of two or more tortfeasors acting independently of each other, rather than as illustrations of a principle that, if, contrary to the finding of the tribunal of fact, the negligent act did not cause or materially contribute to the injury sustained, the defendant may nevertheless be liable for a proportion of a loss sustained by the plaintiff.  There is a real distinction between a specific finding that an act or omission did not cause or materially contribute to the plaintiff’s loss, and a refusal or failure to find that it did.  The two North American cases appear to me to belong to the latter category, which arises when there is a deficiency or insufficiency in the evidence in proof of the plaintiff’s claim.

Here the learned trial judge made an affirmative finding, based on his impression of the plaintiff’s credibility, to the effect that, if she had been given the appropriate advice, she would nevertheless not have refused to undergo the surgery.  Her evidence was that if she had been warned of the risk associated with the surgery, she would not have proceeded with it.  His Honour said that he was unable to accept what she said, which is a finding, expressed in polite terms, that he affirmatively rejected her evidence on that issue of fact.

As I have already said, I agree that the appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10998 of 1996.

Brisbane

Before Pincus J.A.

McPherson J.A.

Shepherdson J.

[Green v. Chenoweth]

BETWEEN:

ROBYN PATRICIA GREEN

(Plaintiff)  Appellant

AND:

JOHN CHENOWETH

(Defendant)  Respondent

REASONS FOR JUDGMENT - SHEPHERDSON J

Judgment delivered 11 November 1997

I have read in draft the separate reasons for judgment prepared by Pincus JA and McPherson JA.  I agree that the appeal should be dismissed with costs.

I agree with the reasons of Pincus JA save that like McPherson JA I would prefer to reserve the question of whether decisions like Summers v. Tice 199 P.2d 1 (1948) and Cook v. Lewis [1952] 1 DLR 1 should be followed in this Court.

I agree with the reasons of McPherson JA.