Biggs v George

1. [1]

   BASTEN JA: For some years prior to 2009 the first respondent, Sandra George, had suffered from a worsening hearing impairment, with a ringing sensation, feelings of nausea and problems with her balance. At that time, she lived in Moree. Having been diagnosed with a tumour on the sheath of an acoustic nerve, she agreed to undergo a surgical procedure to remove the tumour at St Vincent’s Hospital in Sydney. In the course of the operation an adjoining facial nerve was severed, resulting in a facial palsy and further unsuccessful treatment to rectify the severing of the facial nerve.

2. [2]

   The principal operation was carried out on 30 November 2009. Three years later she commenced proceedings claiming damages in the District Court against the surgeon (Dr Nigel Biggs) and St Vincent’s Hospital Sydney Ltd. Ms George (hereafter “the claimant”) alleged negligence in two respects. First, she alleged a negligent failure to warn of the risk of damage to the facial nerve, when operating to remove the tumour from the acoustic nerve, being the risk which materialised in her case. Secondly, she alleged that the operation was carried out negligently.

3. [3]

   The proceedings took place over 16 days before Judge Levy in the District Court in Sydney. The complaint of intra-operative negligence was dismissed; the allegation of failure to warn was upheld. The claimant was awarded damages in an amount of $331,000.

4. [4]

   There was no dispute that the operation carried a significant risk of injury to the facial nerve. The only question was whether the claimant was properly advised of that risk before she underwent the operation. There were two factors relevant to the determination of that issue. The first was that, because the claimant lived in Moree, her diagnosis, together with the first two consultations at which the operation was considered, occurred at a clinic run by St Vincent’s Hospital at the Pius X Aboriginal Corporation clinic in Moree. The second factor was the plaintiff’s language: her first language was Macedonian and her English was described as “poor”.

5. [5]

   The primary case run by the claimant was that the hospital was vicariously liable for the negligence of its medical specialist staff. Dr Biggs was joined as a party, presumably because he led the team which conducted the operation and because he had had at least one significant consultation with the claimant before the operation. As a result, judgment was entered in the District Court against both Dr Biggs and the hospital and both are appellants in this Court.

6. [6]

   The issues raised on the appeal fall broadly within three areas. First, it was said that the trial judge failed to articulate correctly the duty of care imposed on a medical practitioner in warning a patient of the risks attendant upon a surgical procedure. In particular, it was submitted that the judge overstated the obligations imposed on medical practitioners in circumstances where effective communication depended upon translation from the practitioners’ first language (English in each case) into another language.

7. [7]

   Secondly, the appellants challenged the factual findings to the effect that an adequate warning as to risk had not been given.

8. [8]

   Thirdly, the appellants challenged the finding that any failure in communication materially affected the claimant’s decision to have the operation (the causation issue).

9. [9]

   It is convenient to deal with the issues raised by the appeal in the order set out above, but it is necessary first to provide the factual background out of which the dispute arose. Because the claimant failed to prove key aspects of her case, for reasons explained below, the appeal must be allowed and the judgment in her favour set aside.

10. [10]

    There was a separate matter raised by the appellants, namely the assessment of the loss suffered by a witness, Dr Havas, retained by the claimant but subpoenaed to attend for cross-examination by the appellants. The issues raised were entirely separate from the appellants’ liability in damages to the claimant and the matter will be addressed last.

Factual background

1. [11]

   The claimant first noticed an abnormal sensation in her right ear in about 2005. [1] In October 2007 audiogram testing revealed that she had a significant hearing impairment and she was referred by her general practitioner to Pius X clinic in Moree. In August 2008 she was seen by an otolaryngologist at the clinic for assessment of her hearing and balance problems. In December 2008 she underwent an MRI scan which identified the acoustic neuroma (tumour) at the base of her skull.

2. [12]

   On 6 March 2009 she saw Professor Paul Fagan at the clinic at Moree. She was accompanied by a friend, Mr Madjistorov, who was fluent in Macedonian and translated the communications between Professor Fagan and the claimant. There was an issue as to his fluency in English. Mr Madjistorov was, by the time of the trial, not available to give evidence.

3. [13]

   The thrust of Professor Fagan’s advice was that surgery was not required at that time and that he agreed with the claimant’s decision not to go ahead with surgery. Although not revealed to Professor Fagan, both of the claimant’s parents had died from cancer and she understood that the MRI scan had revealed a “brain tumour”. She decided to delay any decision as to treatment for one month. The evidence included notes made by Professor Fagan in the course of his consultation on 6 March 2009, together with a letter of the same date to her general practitioner.

4. [14]

   On 3 April 2009 she again attended the clinic with Mr Madjistorov and spoke to Dr Biggs. What was said in the course of that consultation was controversial. The judge accepted that the claimant had attended the consultation in the firm conviction that she had a brain tumour which required surgical removal. She gave an account of the general tenor of the conversation which involved no warnings as to the risks of an operation. Dr Biggs, on the other hand, had no recollection of the consultation, but gave evidence of his usual professional practice at the time, based on the information then available as to the size and position of the tumour and the claimant’s symptoms.

5. [15]

   For reasons he was unable to explain, Dr Biggs had no copy of any notes taken, although he said it was his standard practice to take notes; nor did he have any letter to the general practitioner, reporting on the consultation which, again, he said he would have dictated and sent as part of his general practice.

6. [16]

   It is clear that the second consultation resulted in a decision by the claimant to undergo surgery. On 17 September 2009 the hospital wrote to the claimant advising that surgery had been scheduled to take place on 2 November 2009. [2] Shortly thereafter, she received a telephone call from the hospital asking her to attend a pre-admission clinic in Sydney on 14 October 2009, which she did.

7. [17]

   The appellants’ case was that further advice was given to the claimant with respect to the nature of the proposed operation and the risks attendant on it in the course of her attendance at the clinic on 14 October 2009. In the ugly argot of the medical profession, the patient was “consented” on that occasion. A consent form was completed on that day and signed by Dr Biggs and by a Macedonian interpreter; it was also signed by the claimant. However, the claimant denied seeing Dr Biggs on that occasion, although she agreed that she had seen an “older male doctor in the hospital in the presence of an interpreter”. [3] The judge inferred that “she would have been seen by at least two doctors, one being an ENT resident, and another being an anaesthetist or an anaesthetics registrar.” He rejected the suggestion that the “older male doctor” was Dr Biggs. He accepted that the claimant was probably referring to Dr Spalding, who prepared pre-admission notes dated 14 October 2009.

8. [18]

   The operation planned for Monday 2 November 2009 was cancelled at the last moment, apparently because of a lack of available post-operative facilities. Nevertheless, the claimant travelled from Moree for the operation, and attended the hospital on Friday, 30 October 2009. She was seen by Dr Mukherjee, an ENT registrar. A Macedonian telephone interpreter was booked on that occasion. Dr Mukherjee’s notes and oral evidence were of some importance, providing explicit evidence of a discussion of the risk to the facial nerve. She also spoke to Dr Biggs when the operation was postponed.

9. [19]

   The operation was eventually carried out on 30 November 2009. At that stage there had been no fewer than four occasions on which, according to the evidence of three medical practitioners, the claimant had been given advice concerning risks attendant on the procedure. On the first two occasions (in Moree) a friend had translated for her; on the latter two occasions (at St Vincent’s Hospital, Sydney) an accredited interpreter had provided such services, although on the earlier occasion it was a Serbian interpreter.

Scope of duty of care

1. [20]

   In discussing duty, the trial judge commenced, in accordance with conventional statements in Australian caselaw, by referring to the “single comprehensive duty” owed by a medical practitioner to a patient. That language was accepted in Rogers v Whitaker. [4] The judgment in Rogers continued:

2. [21]

   As the judgment in Rogers explained, “except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it”, a choice which is “in reality, meaningless unless it is made on the basis of relevant information and advice.” The judgment continued:

3. [22]

   The duty to warn is identified as extending to “material risks” which may attend a proposed treatment; the risk is “material”, relevantly for present purposes, if it is a risk to which a reasonable person in the position of the patient “would be likely to attach significance in choosing whether or not to undergo a proposed treatment.” [5] In Wallace v Kam, the risk was described as one of “physical injury”, because that was the nature of the risk in that case, as it is in the present case; it is not necessarily so limited.

4. [23]

   In some cases, the identification of relevant risks will be critical; in other cases, including the present, the identification of the risk and the need for a warning was not in question. The question was rather whether the specific risk of injury to the facial nerve was communicated “in terms which are reasonably adequate” for the purpose of informing the choice to be made by the patient, “having regard to the patient’s apprehended capacity to understand that information.” [6]

5. [24]

   Dr Biggs stated, in setting out his standard professional practice, that where surgery was being considered, the patient should be informed of the important risks of the procedure, the primary concern being the risk of injury to the facial nerve. [7] The judge accepted this evidence. [8] There were, therefore, two simple issues in the case:

6. [25]

   In seeking to address those questions, the trial judge set out in 16 substantial paragraphs a form of protocol to be followed in order to comply with the duty to convey relevant information. He said that the propositions derived from Dr Biggs’ evidence as to his own practice. Whilst the judge denied that he intended “to present a rigid or constrained sequence, or a precise template for how the clinical discussion should proceed”, [9] the appellants submitted that the 16 paragraphs “bore little resemblance to the matters to which Dr Biggs had deposed” and constituted an ideal, rather than a practical statement of the content of the duty. In particular, the appellants submitted that without evidential support, the 16 paragraphs imposed an onerous obligation on a medical practitioner to be affirmatively satisfied as to the patient’s comprehension of the information being conveyed. The template was later applied in judging the reasonableness of the steps actually taken.

7. [26]

   These complaints were justified. By way of example, the second paragraph was headed “Taking some time to establish rapport with the patient”. The content read as follows: [10]

8. [27]

   After setting out the 16 stages, the trial judge then stated: [11]

9. [28]

   A correct statement of the content of the duty would have involved no more than that the medical practitioners were to take reasonable care to ensure that the material risks attending the surgical procedure were conveyed to the claimant. The need for translation may involve an additional element and as discussed later, it may be necessary for the practitioners to satisfy themselves that the substance of the information conveyed had been understood.

(a) Professor Fagan – 6 March 2009

1. [29]

   The claimant attended the clinic in Moree on 6 March 2009, where she was seen by Professor Fagan. Professor Fagan’s notes read as follows:

2. [30]

   The claimant gave evidence that she had obtained a diploma in nursing in Macedonia and had worked in a medical centre as a triage sister. She came to Australia in December 1998. She and her late husband moved to Moree in 2004.

3. [31]

   With respect to the consultation with Professor Fagan, she said she had attended with Mr Ljubomir Madjistorov, who spoke English a little better than she did. Mr Madjistorov had returned to Serbia in 2010 and was living in an aged care facility and suffered from dementia. She said that she understood from Professor Fagan that she had a brain tumour, that it was very bad and could be removed by an operation. She said: [12]

4. [32]

   She gave evidence that her mother had died from cancer of the uterus at age 55 and that her father had died from lung cancer. [13]

5. [33]

   The evidence with respect to the consultation with Professor Fagan was taken further in cross-examination; some of the answers were contradictory and it is not clear that she always understood the question. Although she commenced by saying that Professor Fagan told her she had a brain tumour, she denied that he had told her that she had “a cancerous brain tumour”. [14]

6. [34]

   She repeated her statistical understanding as to the risk of death (one in a thousand) and she said that the Professor “made me feel that I’m in the right hands.” She repeated that she asked for one month to think it over “whether I go ahead with the operation or I don’t have the operation.” [15] When asked what she understood would happen if she chose not to have the operation she replied: [16]

7. [35]

   The following cross-examination also took place: [17]

8. [36]

   Much of Professor Fagan’s oral evidence confirmed and explained his notes. [18]

9. [37]

   In the course of the examination-in-chief, the judge interrupted on numerous occasions to clarify aspects of the evidence. He obtained agreement from Professor Fagan that the consultation was an interactive process and that “you have to garner an understanding of the extent to which the patient has understood what you have said”. He was then asked:

10. [38]

    Professor Fagan also gave evidence that his usual practice in non-urgent cases, if he formed the view that information being given through an interpreter was not being understood was to “terminate the consultation with an arrangement for an interpreter, a competent interpreter [to] come back with the patient.”

11. [39]

    Professor Fagan was also asked to explain what was intended by the statement in his notes “all complications discussed”. He replied that he “clearly meant all major complications.” [19] He said that he would not go into anaesthetic complications and would give only a limited natural history of the tumour as there was no evidence that the tumour was growing. After noting that he glossed over the natural history of the tumour, he was asked if he glossed over anything else as regards complications and said: [20]

12. [40]

    When asked his usual practice with respect to a consultation where he was trying to talk people out of surgery for a small tumour, he said he would tell them “all the horrible things that can happen with surgery to their tumours of which the second worst is death, and the worst is strokes.” [21] He then referred to his note of meningitis et sequelae, which would include a vegetative state. He continued:

13. [41]

    He was asked how he would explain to the patient that facial paralysis was a complication of this surgery and stated: [23]

14. [42]

    He was also asked and answered the following questions: [24]

15. [43]

    The cross-examination of Professor Fagan was relatively brief. The judge intervened on one occasion to ask if he had any recollection as to the level of proficiency in English of the claimant’s friend who was interpreting. He replied that he had no recollection, but reading between the lines it was acceptable or he would have made a note. [25]

16. [44]

    The analysis of the trial judge in respect of the evidence as to what was said and understood during the consultation on 6 March 2009 covered 49 paragraphs of the judgment. It commenced with the proposition that there was a “communication problem”, which resulted from the fact that no Macedonian interpreter was available in Moree, although the claimant said she had requested one. The judge was careful not to ascribe that circumstance to St Vincent’s Hospital, or to Professor Fagan. However, he continued: [26]

17. [45]

    The subsequent reasoning built on this premise. The premise was however flawed: not only was there no evidence that Professor Fagan perceived a “communication difficulty”, but his evidence was to the contrary. There was evidence that the claimant thought Mr Madjistorov had limited skills in English, but that was never communicated to Professor Fagan, who would in any case have been as well placed as the claimant (if not better placed) to judge Mr Madjistorov’s proficiency in English.

18. [46]

    The judge then stated:

19. [47]

    This last passage demonstrates the manner in which the overly prescriptive and high standard articulated by the trial judge came to be applied to the facts of the case. There was no justification for rejecting the evidence of Professor Fagan as to why he believed the communication had been adequate in circumstances where there was no direct challenge to that evidence in cross-examination.

20. [48]

    The judge also noted the absence from the contemporary notes of any reference to facial nerve injury as a potential complication. The omission was said to indicate that the express statement in the notes “all complications discussed” did not include what the evidence uniformly revealed to be a major, material complication which all medical experts said should be disclosed and which Professor Fagan himself had said would have been disclosed. In rejecting that evidence, the judge referred to, but rejected, Professor Fagan’s evidence that he had “neglected to record it; it’s the very major problem and I always discuss it and usually first.” Again, the issue was not challenged in cross-examination. The closest the cross-examiner came was to question Professor Fagan about the procedure for obtaining the patient’s consent, usually within 24 or 48 hours of surgery. The cross-examiner then obtained the following evidence: [27]

21. [49]

    The fact that further steps were required provided no basis for rejecting Professor Fagan’s evidence that he had identified facial palsy (in appropriate lay terms) as a complication which he had raised with the claimant in seeking to persuade her not to go ahead with surgery.

22. [50]

    The evidence may have allowed for a conclusion that there was a misunderstanding on the part of the claimant, but the evidence failed to demonstrate affirmatively that there had been a breach of the duty of care, properly articulated.

(b) consultation – 3 April 2009 – Dr Biggs

1. [51]

   Dr Biggs had a limited recollection of his consultation with the claimant on 3 April 2009. Although he said he would have kept notes of the consultation and prepared a written report for her general practitioner, no written material was available. Nevertheless, he gave detailed evidence as to his usual professional practice at that time, which the trial judge recounted in detail and accepted, without criticism. [28] The judge also set out extensive verbatim extracts from Dr Biggs’ evidence. [29]

2. [52]

   To the extent that the claimant’s case depended upon her having affirmatively satisfied the trial judge that she was not given advice as to possible alternative treatments and was not advised as to the risk to the facial nerve, the factual findings were scattered through various sections of the judgment and were not always focused upon the issues for determination. The evidence as to the consultation with Dr Biggs on 3 April 2009 was set out at [249]-[281]; a commentary on the use of Mr Madjistorov as an interpreter, at [481]-[543]; an assessment of the consultation on 3 April at [630]-[697], followed by findings as to the “validity of consent” obtained on that date at [866]-[875]. The complexity of this structure tended to obscure the fact that there was virtually no expert evidence critical of the steps taken by each of Professor Fagan, Dr Biggs and Dr Mukherjee.

3. [53]

   A convenient point of entry for the discussion with respect to Dr Biggs is found in the following passage at [664]:

4. [54]

   The substance of the findings made in respect of these issues was that (a) the claimant gave evidence that the consultation took about 10 minutes; (b) the claimant said that she was given no explanation of alternative treatments; (c) the claimant said she was not given any warnings as to the risks associated with surgery; (d) Dr Biggs had no notes or recollection which contradicted the claimant; (e) the claimant’s account was not “inherently wrong” and should be accepted because “the aggregated effect of the plaintiff’s thought processes involved in those events meant that the diagnosis as was communicated to her, or as she was given to understand it, represented a sentinel and memorable event in her life’s experiences.” [30]

5. [55]

   A critical element in the rejection of Dr Biggs’ evidence was acceptance of the claimant’s evidence that the consultation lasted for only 10 minutes. [31] Dr Biggs gave evidence-in-chief to the followed effect: [32]

6. [56]

   The only substantial challenge to Dr Biggs’ evidence as to the content of the consultation on 3 April 2009 was the suggestion that “there was no discussion of any risks associated with this surgery by you on 3 April 2009 because you believed that Paul Fagan had already discussed the risks associated with it on a previous occasion”, to which Dr Biggs answered “No.” [33] There was no challenge to his evidence as to the length of the consultation. The trial judge, in rejecting Dr Biggs’ evidence on that point, did not refer to that fact.

7. [57]

   The claimant’s evidence as to the length of the various consultations was standard. She said that her consultation with Professor Fagan took “about 15 minutes”. [34] After being taken in cross-examination through the content of the consultation, which took some two minutes, she was asked what else was said in the 15 minutes and was unable to say. [35] With respect to the consultation with Dr Biggs, she was taken through the whole of her evidence as to the content of that conversation which, it was said, took less than 5 minutes. (Each exercise was undertaken through an interpreter.) The inference sought to be drawn was that the claimant’s recollections were incomplete.

8. [58]

   While accepting that Professor Fagan had sought to convey to the claimant that she had a “non-malignant tumour near her brain”, the judge found that the claimant “had heard and had understood … that she was being told that she had a tumour in her brain, which was ‘very bad’, and which required surgical excision”. [36] The trial judge accepted that she left the consultation with Professor Fagan with a “fundamental misunderstanding”. He continued: [37]

9. [59]

   When she saw Dr Biggs, some four weeks later, the judge accepted that “she still held the incorrect belief that she had a tumour in her brain that required removal.” [38] The judge further found: [39]

10. [60]

    The implausibility of the proposition that she had clear recollection of everything said in the consultation on 3 April might have been combined with the possibility that, given her state of mind, she dismissed from her memory anything said which was inconsistent with her firm belief that she required an operation. None of this was addressed by the trial judge in accepting her evidence as reliable and complete. To find that it was “highly probable” that she would recall the details of the consultation on 3 April “accurately” was little more than speculation, unless the contrary hypothesis was at least addressed.

11. [61]

    To rely on the claimant’s evidence as a sufficient basis for rejecting Dr Biggs’ evidence that he had complied with his usual professional practice in the course of the consultation, faced another difficulty. In what was headed “(5) Summarised findings on consent matters in controversy”, the judge stated at [696]:

12. [62]

    These findings provided a clear reason why the claimant may have denied that information was provided in the course of the consultation, without justifying the conclusion that Dr Biggs did not provide it. In short, these findings undermined the reliance placed on the claimant’s evidence as an answer to the unchallenged evidence of Dr Biggs as to his usual practice, which he believed he had followed on that occasion.

13. [63]

    The findings of breach of duty with respect to the consultation on 3 April 2009 cannot stand.

(c) consultation – 14 October 2009 – Dr Biggs

1. [64]

   On 14 October 2009, the claimant attended at St Vincent’s Hospital, Darlinghurst, as arranged by telephone. The claimant signed a consent form, which included the statement that Dr Biggs had informed the claimant as to the nature, likely results and material risks of the proposed procedure. Dr Biggs also signed the form.

2. [65]

   The evidence as to what happened at St Vincent’s Hospital on 14 October 2009 fell within a short compass. There were hospital notes (possibly recorded by a registrar) indicating that the patient was admitted under Dr Biggs, and various readings were taken and a history obtained. The claimant was also examined. There was reference to a plan which had various items recorded, including “consent”. There was also a form signed on the same day by Dr Biggs, the interpreter and the claimant indicating that Dr Biggs had informed the patient “of the matters as detailed below including the nature, likely results and material risks of the proposed procedure or treatment."

3. [66]

   Dr Biggs gave evidence that he had seen the claimant at the hospital on that day. He said: [40]

4. [67]

   Dr Biggs also gave evidence that he recalled the claimant being present with the resident and an interpreter. [41] He said that it was often the registrar or resident who made notes of a consultation. [42] He identified his signature and the date as being in his writing. He also said that he had printed his name in the section to be completed by the patient, which would support an inference that the claimant and Dr Biggs had discussed her condition and the various ways in which it might be treated and that she had been told of the risks and complications that may occur.

5. [68]

   Dr Biggs gave evidence as to what he would have said in the course of the process of obtaining consent. [43]

6. [69]

   In cross-examination, Dr Biggs was taken through the consent form and the notes. He agreed that, as the admitting medical officer, it was his responsibility to provide the requisite advice and warnings concerning the surgery. [44] He was then asked:

7. [70]

   The cross-examiner then diverted to put a set of propositions to Dr Biggs, starting with the consultation in Moree in April. Returning to the events of 14 October, it was suggested to him that he was “not in fact present with Mrs George on the occasion that the consent form was signed by her”, which he denied. He agreed that he had taken no steps “to obtain a further consent or refresh the patient’s consent within 48 hours of the procedure”, [45] which occurred almost three weeks later.

8. [71]

   The claimant’s evidence was that she had attended the clinic on 14 October 2009 and had various tests and examinations undertaken by a male doctor, who was believed to be Dr Spalding. She said that she had conversations with him through an interpreter and had no trouble understanding what the doctor was asking her. [46] The claimant was adamant that that doctor did not say anything to her about the operation, or the relevant risk of injuring the facial nerve. She denied that Dr Biggs was present when she signed the document. [47] She stated that the consultation “[i]ncluding all that measuring and all the tests, it took about 15 minutes.” [48]

9. [72]

   In cross-examination, she said that she arrived at the hospital at 8am on 14 October. [49] She confirmed that she saw only one doctor on that occasion, but was with the interpreter and the doctor for “half an hour, maybe more.” [50] She reiterated her denial that she had seen Dr Biggs at all on 14 October. [51] By contrast, when it was suggested to her that she had seen the anaesthetist, Dr O’Sullivan, on that day she replied, three times, “I don’t recall that.” [52]

10. [73]

    The trial was then broken by a week-end and her cross-examination continued the following week; the denials with respect to Dr Biggs were reiterated. [53]

11. [74]

    The trial judge found that the omission of any reference to the process of obtaining consent in the hospital notes suggested that that process had not taken place, relying upon the evidence of Dr Biggs that if a resident had accompanied him “they would take a note that a consent was taken”. [54] The judge therefore reached the conclusion: [55]

12. [75]

    There was, however, more to it than that. The only explicit proposition put to him in cross-examination was that he was not present when the claimant signed the consent form. While it may be inferred, perhaps, that she was not present when he signed the form, that was not expressly put. More importantly, it should have been put to him that he falsely certified that he had discussed the various matters identified in the form with the claimant. He may or may not have had a satisfactory answer to such a proposition, but given the seriousness of the implications of such a finding, absent that cross-examination, the finding that he had falsely certified that he had taken the important steps in obtaining informed consent from the claimant should not have been made.

13. [76]

    That finding was followed by nine further paragraphs, each of which sought to justify the finding, but in terms largely repetitive of that which had gone before. At no stage was the consequence of the finding in respect of Dr Biggs’ professional practice noted.

14. [77]

    Two further findings should be noted. In the first the trial judge stated: [56]

15. [78]

    This criticism was unwarranted. That evidence appeared in the following context, after his counsel had shown him the relevant consent form: [57]

16. [79]

    There followed the answer set out at [66] above, to which the trial judge referred in his reasons. Not only was it preceded by a description of the process, but the answer was given in relation to a question as to how the consultation came about, not as to what was said in the course of it. The evidence as to what would have been said in the course of the consultation was provided, in some little detail, two pages further on in the transcript. [58] That material was not referred to. Although that evidence was expressed in terms of usual practice rather than actual recollection, it should have been considered before drawing the inference from a single sentence extracted out of context.

17. [80]

    The second passage followed immediately upon that set out above: [59]

18. [81]

    This reasoning is fallacious in at least two respects. First, although Dr Biggs may have had a limited recollection of the occasion, he gave evidence of actual recollection of being present with the resident, the interpreter and the claimant, a recollection which was challenged only in the most formal way. Secondly, and far more importantly, this was a passage in which the serious ramifications of the rejection of Dr Biggs’ evidence should at least have been addressed: they were not.

19. [82]

    The trial judge dealt separately with the questions whether Dr Biggs saw the claimant “at all for professional purposes” on 14 October 2009 and whether she signed the consent form “before or after” Dr Biggs had signed it and, finally, “whether Dr Biggs ‘consented’” the plaintiff on 14 October 2009.

20. [83]

    Having accepted the claimant’s evidence that she did not have a consultation with Dr Biggs at all on that day, it is unsurprising that the judge concluded that, contrary to his evidence, he had not gone through the relevant steps in the process of obtaining consent. The judge then stated:

21. [84]

    This was a false issue. Where a medical practitioner conducts a consultation with a patient using an interpreter accredited in her language, it will only be in unusual circumstances that any “interpreting issues”, forming the basis for a breach of duty on the part of the practitioner, will arise. Further, there would be problems with the admissibility of evidence from the interpreter stating whether the claimant “had in fact understood what had been explained to her”. Indeed, the suggestion that the interpreter would have been able to give any relevant evidence in that regard was implausible.

(d) consultation – 30 October 2009 – Dr Mukherjee

1. [85]

   The fourth occasion on which the hospital contended that the claimant had been informed of the material risks of the procedure was a consultation with Dr Mukherjee, at what was intended to be a pre-operative clinic, three days before the planned procedure.

2. [86]

   Dr Mukherjee’s handwritten progress notes in the hospital records were clear and precise. Dr Mukherjee had been a registrar at the hospital for a matter of months, having finished four years specialised training; her particular interest was otology and neurotology. She remembered seeing the claimant at the pre-admission clinic. She also had “some recollection” of the conversation she had with her. [60] The first part of her notes described the nature of the operation.

3. [87]

   The judge invited her to put her handwritten notes into prose and expand the abbreviations, up to the heading “Phone interpreter service”. That she did in the following passage: [61]

4. [88]

   The second part of her notes read as follows:

5. [89]

   Dr Mukherjee was the first medical witness called. When she came to explain how she proceeded using the telephone interpreter service, it appeared that she was talking partly in terms of usual practice and an objection was taken, which was dealt with on a voir dire. In evidence on the voir dire (all of which was admitted in the proceedings), Dr Mukherjee said that the information was supplied to the claimant, using the telephone interpreter, by way of a handheld telephone, there being no speaker phone available. The receiver was passed from doctor to patient and back as the conversation proceeded. [62]

6. [90]

   Dr Mukherjee then gave the following evidence on the voir dire in answer to questions from counsel for the claimant : [63]

7. [91]

   Later, in cross-examination, the passage was put again to Dr Mukherjee and she was asked whether she still adhered to it, to which she said she did. [64]

8. [92]

   When Dr Mukherjee recommenced her evidence-in-chief, she was taken back to her notes and the following exchange occurred: [65]

9. [93]

   Neither counsel drew her attention to the apparent discrepancy between her bald statement in her examination-in-chief that damage to the facial nerve might be “permanent” and the somewhat confusing reference in answer to questions on the voir dire, affirmed in cross-examination, that it could be permanent in which case it would be necessary to repair the nerve.

10. [94]

    The claimant gave evidence that she had attended the hospital on 30 October 2009 and had seen one of the doctors, “an Indian doctor in appearance, a lady.” [66] There was no doubt that this was Dr Mukherjee. The claimant continued, stating that she (Dr Mukherjee) had “provided me with an interpreter, a Serbian interpreter over the phone”. She was asked how she knew the interpreter was Serbian and explained by reference to the greeting, saying that she was able to understand her. [67] The claimant also asserted that no explanation was given to her of any of the risks that could attend the surgery and nothing was said about the facial nerve. [68] In relation to the consultation with Dr Mukherjee, the claimant said that it took “between 10 and 15 minutes.”

11. [95]

    Although the claimant recalled the consultation with Dr Mukherjee, her recollection was that the conversation took place with the interpreter on a speakerphone. [69] In cross-examination she remained adamant that there had been no discussion of the risks associated with the facial nerve, as stated by Dr Mukherjee. [70] Indeed, she denied almost the whole of the conversation put to her consistently with Dr Mukherjee’s later evidence, except that she agreed she had warned that there would be compressors on her calves. [71]

12. [96]

    The trial judge dealt with what he described as “validity of consent” at the consultation on 30 October 2009 in three passages extending over almost 100 paragraphs. [72] The judge found that the information provided by Dr Mukherjee was deficient in two respects. First, he concluded that her decision “not to discuss the possibility of alternative non-surgical management by adopting a ‘wait and watch’ approach, followed by a further MRI scan to evaluate the tumour size” [73] failed to fulfil “the criteria” he had prescribed. [74] The second basis for considering Dr Mukherjee’s warnings to be inadequate was that she conveyed “the misleading impression that if a facial nerve injury occurred, it could be repaired.”

13. [97]

    Neither of these criticisms would be material if similar information had already been given to the claimant. With respect to the former, Dr Mukherjee agreed that she did not discuss alternative treatments with the claimant because she had formed the view that they were “not applicable to this patient”. [75] In cross-examination, although Dr Mukherjee said that a patient might be taken through the process of obtaining informed consent on more than one occasion, she nevertheless understood that Dr Biggs had already explored “the various treatment options and their respective advantages and disadvantages”. [76] Whether she was correct or not, there was support for that approach in the evidence of Professor Fagan who said he had advised a “wait and see” approach, which was the conservative alternative. (There was no finding that he did not.)

14. [98]

    With respect to the second issue, if her warning regarding damage to the facial nerve was thought to be inadequate, no such proposition was put to Dr Mukherjee in cross-examination, nor did the claimant call any expert evidence to that effect. Further, the impression said to have been given that an injury could be repaired was glib. Dr Mukherjee also said on each occasion that it might be permanent. Professor Fagan and Dr Biggs also said they had referred to the risk of injury to the facial nerve: given the universal medical opinion that such a warning was necessary, it is quite implausible that no-one gave it.

15. [99]

    Importantly however, the judge appears to have accepted that a warning was given, apparently in the precise terms used by Dr Mukherjee on the voir dire. If the claimant denied hearing any warning it became necessary to explain how that happened, and to address its causal significance.

16. [100]

    The trial judge identified a third breach of duty, which was a failure to convey information in a form which was “understandable to” the claimant. [77] However, the reasoning in this regard should not be accepted. Thus, the judge stated: [78]

17. [101]

    This reasoning was sought to be bolstered by the assertion that if the claimant’s evidence were capable of being contradicted, the hospital could have called the telephone interpreter, which it did not do. The claimant, it was said, had no obligation to bolster her own case by calling the interpreter. [79]

18. [102]

    First, it was based on the fallacy that if the claimant did not understand the warnings given, there was a breach of duty on the part of the practitioner giving the warnings. There were two steps in that reasoning. The first was that the warning was not expressed in language intelligible to the claimant or, in the alternative, it was not adequately translated. Dr Mukherjee gave evidence of the language she used: there was no reason to dismiss it as not reasonably appropriate for the purpose. Further, neither Dr Mukherjee nor the hospital breached their duties in using an accredited interpreter of whom the claimant had no complaints.

19. [103]

    Secondly, the failure of the hospital to call the interpreter gave, at best, only flimsy support for the claimant’s case. So far as the burden of proof was concerned, the claimant needed to call witnesses who would support her case. If there were conflicting accounts, the fact that hers was “credible” did not shift the burden to the hospital. In any event, the possibility that the interpreter would have been able to cast any useful light on the issues is simply implausible.

20. [104]

    Thirdly, here, as in other places, the trial judge accepted the claimant’s evidence because it was “credible, and not otherwise inherently improbable”. [80] That was an inadequate basis for resolving the conflict. Exactly the same could have been said of Dr Mukherjee’s evidence, only far more powerfully. The judge described Dr Mukherjee’s evidence as a “reconstructed account”; [81] but in fact it was far more than that. Dr Mukherjee said she had a recollection of the conversation: it was not, therefore, entirely reconstructed. She had contemporaneous notes from which to refresh her recollection. Further, Dr Mukherjee was speaking about things she understood and dealt with as part of her professional practice. Finally, she gave far more detailed evidence of the conversation than did the claimant. As with her earlier evidence, it was necessary to address the temporal issue and determine how long the consultation took and the likelihood that nothing was said beyond that which she recounted in her evidence. Questions of demeanour aside, the claimant’s bland denial of any discussion or relevant warnings should not have been preferred.

21. [105]

    In these circumstances, the finding that there was a breach of duty on the part of the hospital arising from the consultation with Dr Mukherjee cannot be sustained.

Causation

1. [106]

   In order to be satisfied, for the purposes of s 5D(1) of the Civil Liability Act 2002 (NSW), that negligence caused particular harm it was necessary for the Court to find that “the negligence was a necessary condition of the occurrence of the harm”. That required, in the circumstances, a finding as to what the claimant would have done if the relevant practitioners and the hospital had not been negligent.

2. [107]

   In a discursive account of the consultation with Professor Fagan at Moree on 6 March 2009, covering some 50 paragraphs of the judgment (a further 30 paragraphs having been devoted to fact finding) it was not clear that there was any finding of negligence against the hospital. That was because, although the trial judge was satisfied that Professor Fagan did not inform the claimant of the harm which might occur to the facial nerve, he also concluded that the first consultation “was not an occasion on which definitive discussions on risks as opposed to the benefits of surgery were discussed to the point where the plaintiff’s definitive consent to surgery would be obtained.” [82] (Another view might have been that that was precisely the time when the information should be conveyed, before the claimant committed herself to a particular course of treatment.) Rather, the judge concluded that his “analysis forms the baseline for the analysis of the subsequent clinical contacts.” [83] The significance of that statement lay in the finding that the claimant apparently left the consultation with Professor Fagan holding a belief that she had a “brain tumour” or a “tumour in her brain”. Although the trial judge later said that “she harboured the belief she had a cancerous tumour in her brain” [84] in fact, she had emphatically denied that proposition. [85]

3. [108]

   Without identifying any evidence which suggested that this was a distinction of importance to the claimant, the trial judge considered that her belief was categorically wrong. He variously described it: for example, “she did not have a brain tumour”, [86] “the incorrect belief that she had a tumour in her brain”, [87] a “continued but mistaken belief that she had a tumour in her brain”; [88] whereas the fact was that she had “a benign tumour near her brain, located on the sheath of the right 8th cranial nerve, but not in her brain.” [89]

4. [109]

   In the course of cross-examination, the claimant was asked about a visit to her general practitioner concerning the result of the MRI scan taken on 5 December 2008. She said she had a clear memory of that event “because it was deeply embedded in my mind until the day I die.” [90] That was because she was given the “worst possible diagnosis”, being that she had a brain tumour. She described it as the diagnosis which she had obtained “for the second time in March 2009.”

5. [110]

   The trial judge gave no weight to that evidence when concluding that it was at the consultation with Professor Fagan that she obtained, “as a result of an imperfect and flawed process of interpretation with Mr Madjistorov acting in the role of intermediary, … the mistaken but genuinely held belief that she had been diagnosed as having a tumour in her brain, which she thought was a cancer, and which she thought was the subject of a recommendation by Professor Fagan that it be surgically removed.” (Again, the reference to her believing it to be a cancer was erroneous.) The judge continued:

6. [111]

   The reason for recounting these findings is that the judge did not conclude that her view, which he considered “misguided” was the result of negligence on the part of Professor Fagan; there was not, therefore, any finding in that regard of vicarious negligence on the part of the hospital. Nor could there have been, given the origin of the belief.

7. [112]

   Before leaving the nature of the misunderstanding, it is appropriate to refer to the expert evidence of Professor Havas, which the trial judge accepted. He was asked about the effectiveness of surgical removal if the presenting problem was “disequilibrium”. [91]

8. [113]

   The critical finding with respect to causation was set out in the following terms:

9. [114]

   The reasoning which supported the conclusion at [1084] depended on a number of elements which were discussed thereafter. The first element was that set out in the succeeding paragraph: it was wrong. The question posed by s 5D required consideration of whether the claimant would have had the operation but for the breach of duty. To exclude other powerful operative causes which were not the result of a breach of duty by the hospital, was wrong as a matter of law.

10. [115]

    The next underpinning element was identified at [1095] in the following terms:

11. [116]

    As is clear from the observations at [1096], the second element was a repetition of the first and was based on the erroneous assumption already identified. That error was compounded in what was arguably the critical passage: [92]

12. [117]

    Although not described as the “third element” what followed over the subsequent 30 paragraphs was a careful analysis of the benefits and risks of the operation, based on the detailed expert evidence presented at trial. That analysis was flawed for two principal reasons. First, there was no satisfactory basis for concluding that the failure to provide such a detailed analysis constituted the element of negligence. For reasons already discussed, the highly prescriptive and detailed standard identified by the trial judge went far beyond that which would have satisfied the duty to take reasonable care in warning of the material risks of the procedure.

13. [118]

    Secondly, the analysis was based upon an assumption that the claimant would have understood the detail of what was put to her and would have addressed it in a rational and unemotional way. That, however, was quite contrary to her own evidence as to how she was approaching the problem.

14. [119]

    There were in fact several elements accepted by the claimant (and by the trial judge) as causally instrumental in relation to her decision to have her tumour removed. There was the belief that she had a brain tumour, referred to above. That was significantly augmented by her own belief that although benign at that stage, it might turn into a malignant cancer. That arose from her family background and her understanding of genetics. The trial judge stated: [93]

15. [120]

    The judge accepted that during her consultation with Professor Fagan, the claimant was “very upset, crying, trembling and scared at the time.” [94] The judge further described her state of mind in April 2009 in the following terms:

16. [121]

    Later, in identifying a “fundamental misunderstanding” which had arisen in the course of the consultation with Professor Fagan, the judge stated: [95]

17. [122]

    In accepting the claimant’s evidence as to what happened during the consultation with Dr Biggs on 3 April 2009, the judge considered her recall of those events correct “because of the upsetting impression and effect the events had upon her.” [96]

18. [123]

    Finally, in discussing the question of causation, the judge again returned to her state of mind: [97]

19. [124]

    In short, the process which the trial judge undertook in assessing the benefits and risks of the proposed operation was far removed from that which, on any realistic appraisal, would have been undertaken by the claimant.

20. [125]

    There are two further reasons why the judge’s assessment of causation cannot be accepted. That flows from the failure to take into account that which, on the findings made at trial, the claimant did know and understand. First, the consultation with Dr Mukherjee with a telephone interpreter, was said to have “contained a mixed message to the effect that if the plaintiff’s facial nerve became injured in the proposed operation, it could be repaired.” [98] The judge thus accepted Dr Mukherjee’s evidence that they would use a facial nerve monitor during the operation (which would leave marks on her face) because there was a danger of damage to the facial nerves. He emphasised the following passages:

21. [126]

    The trial judge found that this warning was inadequate, but it nevertheless constituted a substantial warning and no account was taken of it in addressing causation.

22. [127]

    Secondly, the claimant knew, as a result of an exchange with Dr Biggs when the operation was abandoned on 2 November, that the delay was not a problem because the tumour was not growing.

23. [128]

    In these circumstances, the trial judge’s finding of causation not only cannot be accepted, but demonstrated, in particular in the passage set out at [116] above, that any failure to warn was not causative in the sense required by s 5D(1).

Conclusions

1. [129]

   For the several and independent reasons set out above, the judgment in the District Court must be set aside. On the trial judge’s findings, which were otherwise entirely favourable to the claimant, her evidence having been accepted in virtually all respects, the finding of causation was not available. Accordingly, there is no substantial injustice warranting a retrial. In place of the orders made in the District Court, the claims against both the appellants should be dismissed. The claimant must pay their costs, both at trial and in this Court. In so far as the costs in this Court are concerned, the claimant is entitled to a certificate under the Suitors’ Fund Act 1951 (NSW).

(a) the order for payment

1. [130]

   Following the delivery of the principal judgment on 24 February 2015, there was a further hearing on 2 April 2015 to deal with an application for a stay by the appellants and an application by the claimant, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 33.11 for an order that the appellants pay the reasonable expenses incurred by Dr Havas, an expert retained by the claimant, for costs incurred in complying with a subpoena issued by the appellants. The judge acceded to that application, making an order that the appellant pay the witness’ expenses in an amount of $31,350. [100]

2. [131]

   The reasoning as to this payment in George (No 2) covered 110 paragraphs. The grounds of appeal (and apparently the scope of the submissions in the District Court) were restricted to discretionary considerations: little attempt was made to identify the relevant provisions of the UCPR pursuant to which the application was made. Indeed, some of the submissions relied upon rules which were simply irrelevant. Furthermore, of the authorities relied upon some pre-dated the UCPR and others were directed to the application of the rule in the Supreme Court, not the District Court. The exercise of discretion cannot usefully be addressed until the legal basis of the power is established.

(b) basis of application for payment - general

1. [132]

   The claimant, in her written submissions in this Court, stated that the appellants had procured the attendance of Dr Havas by issuing a subpoena, pursuant to UCPR Sch 11, cl 22(6). [101] That was not so. Schedule 11 had no application to these proceedings being an action for damages in the District Court; cl 22 of Sch 11 dealt with matters in the Coal Miners’ Workers Compensation List.

2. [133]

   The appellants submitted, correctly, that they had procured the attendance of Dr Havas pursuant to UCPR r 31.30(3)(a); however, they accepted that their obligation to pay “any reasonable loss or expense” incurred in complying with the subpoena issued to Dr Havas arose under UCPR, r 33.11. That is, at the least, doubtful.

3. [134]

   There is a further live issue, which did not arise in the District Court, namely whether the appellants remain liable to pay any costs incurred with respect to the evidence given by Dr Havas in circumstances where the order that they pay the claimant’s costs must be set aside. Given that the costs incurred in having the claimant’s expert attend for cross-examination were reasonably necessary for the proper conduct of the appellants’ case, the fact that they could not recover those costs (if paid) from the claimant would appear, on its face, to constitute a significant exception to the rule that costs follow the event, and would need to be justified by reference to some specific provision of the Civil Procedure Act 2005 (NSW) or the UCPR.

4. [135]

   It would be extremely helpful to those conducting civil litigation if the rules and legal principles regulating specific aspects of litigation could be coherently classified and each class dealt with in a single identifiable document. It is fair to say that that approach is generally followed, but that the generality is afflicted by many exceptions. For example, most rules of evidence are to be found in the Evidence Act 1995 (NSW); however, some are to be found in the Criminal Procedure Act 1986 (NSW) and, relevantly for present purposes, some are found in the UCPR, Pt 31 – Evidence. It is also true to say that costs in civil litigation are addressed in the Civil Procedure Act, Pt 7, Div 2 – Costs in proceedings, and in the UCPR, Pt 42 – Costs. However, other costs provisions may be found scattered through other parts of the UCPR. Broadly speaking, wherever a specific provision relating to costs is inconsistent with a general provision, the specific provision will qualify the general provision.

(c) relevant provisions

1. [136]

   Relevantly for present purposes, s 98 of the Civil Procedure Act provides that costs are in the discretion of the court and that the court “has full power to determine by whom, to whom and to what extent costs are to be paid”. [102] That proposition is subject to rules of court. [103] Part 42 of the UCPR commences with the general proposition in the following terms:

2. [137]

   There was acceptance that any amount payable to Dr Havas constituted “costs” for the purposes of the Act and the rules, “costs” being broadly defined in the Civil Procedure Act, s 3(1). However, if there were a qualification to r 42.1, relevant to the costs payable with respect to Dr Havas, it was said to derive from the general provisions of Pt 33 dealing with subpoenas. Rule 33.11 provides as follows:

3. [138]

   That rule expressly provides that “the amount of any reasonable loss or expense” identified in subr (1) does not include “conduct money” or “witness expenses”. The power to make an order is discretionary.

4. [139]

   Generally, a subpoena is issued by a party seeking to obtain the production of documents, or the attendance of a witness to give evidence. There are, however, special rules applicable to expert evidence. Part 31, Div 2 deals with expert evidence generally. Subdivisions 1 and 2 are headed “Preliminary” and “Expert witnesses generally”. Subdivision 3 is headed “Experts’ reports and expert evidence”. Rule 31.27 deals with the content of an expert’s report; r 31.28 deals with service. Rule 31.29 deals with the admissibility of a report and, although expressed in general terms, should be understood as not applying to proceedings in the District Court or the Local Court, because r 31.30 expressly states that it applies in those courts and covers the same ground as r 31.29, but in some respects inconsistently with the earlier rule. Rule 31.30(2) deals with admissibility; relevantly for present purposes, other provisions are as follows:

5. [140]

   It is clear, therefore, that a party procuring the attendance of an expert is liable to pay “conduct money or witness expenses”, pursuant to subr (4). (The term “or” is not used in the sense of alternatives, but refers to a liability which can apply to both.) These amounts are, as under r 33.11, to be distinguished from reasonable loss or expense. Although the language is not identical with that in r 33.11, given the separate provision for conduct money and witness expenses in subr (4), subr (5) should be understood to be the relevant source of the obligation to meet an expert’s reasonable expenses in complying with the requirement to attend the hearing. Importantly, this condition is imposed upon a party procuring the attendance of an expert in accordance with a rule which requires that step to be taken by the party who seeks to cross-examine. (The reference in subr (5) to the party who requires the attendance of the expert “as referred to in subrule (2)” is probably intended to be a reference to subr (3).)

6. [141]

   The term “conduct money” is defined in r 33.1 to mean “a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.” Whatever may have been the proper construction of the Supreme Court Rules which preceded the UCPR, that concept is properly understood to be limited to the sum of money necessary for the witness to travel to and from the court, as explained by Sheppard J in Bank of New South Wales v Withers. [104]

7. [142]

   At least in relation to a subpoena requiring attendance at court to give evidence, the phrase “witness expenses” should be understood to cover expenses such as those required by way of accommodation and sustenance, of which conduct money is no doubt one element.

8. [143]

   Dealing with the position under the common law, Sheppard J said in Withers, [105]

9. [144]

   As explained by Bainton J in Deposit & Investment Co Ltd (Receivers appointed) v Peat Marwick Mitchell & Co, [106] rules of court have since expanded the right of recovery by adopting language similar to that found in r 30.30(5)(b) and r 31.11.

(d) the evidence

1. [145]

   Dr Havas undertook extensive work, at the request of the solicitors for the claimant, pursuant to instructions first given on 18 December 2012. He provided reports on 24 January 2013 and some brief responses to further requests dated 1 May 2013, 21 February 2014 and 8 April 2014. For the purpose of recovering his loss and expenses, he prepared an affidavit dated 30 March 2015, which was filed for the claimant. It annexed a tax invoice for “services performed”, addressed to the claimant. The amount due was $28,500, to which, in the course of the proceedings, an amount was added for GST, which was agreed to be payable. The items identified in the invoice were:

2. [146]

   Dr Havas was the claimant’s witness. When he would be required depended primarily on how the claimant sought to run her case. The claimant’s solicitor, Mr Martin Bell, filed an affidavit dated 30 March 2015 setting out in detail conversations between his legal secretary and a person working for Dr Havas, in the course of which there were many discussions as to when he would be required at court. As early as May 2014, negotiations were underway as to when Dr Havas would be required. On 23 September 2014, his assistant was told in clear terms that he would not be needed on every day of the hearing and would probably not be required on the first day. There was also discussion as to whether joint evidence would be required.

3. [147]

   On 14 October, Dr Havas’ assistant wrote to the solicitors for the claimant, expressing concern as to the uncertainty as to when he would be required. It was not until 1.40pm on 21 October that a legal clerk employed by the claimant’s solicitors advised Dr Havas that he would not be needed on that day, seeking his advice as to whether Thursday or Friday would be more convenient for him. He was in fact called on the afternoon of Thursday, 23 October.

4. [148]

   On 29 August 2014, the solicitors for the appellants wrote to Dr Havas, enclosing by way of service the subpoena together with $50 conduct money. The letter advised that the matter had been listed on 21 October, with an estimate of four days’ duration. The letter continued:

5. [149]

   The letter confirmed that the appellants would be responsible for “reasonable witness fees incurred in relation to your obligation to attend court pursuant to the subpoena.”

6. [150]

   On 17 October, in response to the copy of Dr Havas’ letter of 14 October, the solicitors for the respondents replied, noting that they had served a subpoena on Dr Havas in accordance with the UCPR. The letter continued:

7. [151]

   The claimant’s solicitors emailed the solicitors for the appellants on 21 October at 5.43pm, “confirming” that they had arranged for Professor Havas to attend at 2pm on Thursday, 23 October.

8. [152]

   On 23 October Dr Havas emailed the solicitor for the appellants directly. He said that, on instructions from the claimant’s solicitors, he had set aside four hours on Tuesday (21 October) to attend court, but had not been required. He noted some confusion in his instructions from the claimant’s legal representatives as to whether, and if so when, he would be required.

(e) application of principles

1. [153]

   The trial judge understood that he was determining a question of costs, pursuant to s 98(1)(b) of the Civil Procedure Act. [107] In a sense, that was correct; however it was apt to distract attention from the separate standard identified in the rules, as to the amount to be paid to the witness who is required to attend. Further, it is necessary to have regard to the different questions which will arise in relation to a subpoena to produce documents (when expense is involved in searching for and identifying relevant documents is an essential part of compliance with the subpoena) and attendance at court to give evidence (which involves no such essential activities in order to comply).

2. [154]

   Just as the calculation of loss or expenses incurred as a result of the obligation to comply with a subpoena may vary depending upon whether it is a subpoena to produce documents or a subpoena to attend a court, so also the exercise involved will vary depending upon whether the party issuing the subpoena has control of the proceedings and when particular witnesses are to be called, or where that is not the case. In this matter, it was clear that all those involved, including Dr Havas, appreciated that the statement of a date in the subpoena, being the date on which the hearing was scheduled to commence, did not mean that Dr Havas had to attend on that date. If he incurred expenses with respect to a possible attendance on that date, in circumstances where the party which originally instructed him and had control over the course of the litigation did not inform him sufficiently clearly of that fact, then those expenses should not be borne by the party issuing the subpoena as part of the costs of complying with the subpoena. Whether such losses were recoverable as between the witness and the claimant’s solicitors was an entirely different question.

3. [155]

   Dr Havas did not state in his affidavit that, in full knowledge of the circumstances set out above, either party requested him to hold himself available for a full day on 21 October. He stated in his affidavit that he had “cancelled a full day of surgery” to make himself available. He did not annex his email to the appellants’ solicitors of 23 October, stating that he had set aside four hours on the 21st. In any event, those hours did not involve reasonable loss incurred in order to comply with the subpoena.

4. [156]

   It was no doubt in the interests of the claimant, on whose behalf he had been retained, that Dr Havas spend time refreshing his memory as to nature of the case and the opinions he had expressed on the basis of material provided to him. However, that was not a loss incurred in order to carry out his obligation to comply with the subpoena; it was time incurred either at the express or implied instructions of the claimant. It is not recoverable under the relevant rules.

(f) calculation of loss

1. [157]

   So far as the four hours claimed for his attendance at court on 23 October, no issue is taken as his entitlement to recover a reasonable amount for his lost professional time. The question is how that should be valued. Dr Havas placed on that a figure of $6,000, calculated at $1,500 per hour. It appears from his letter of 18 November 2014 to the solicitors for the appellants that he considered his “experience, expertise and seniority” were at the same level as that of a senior counsel and that an appropriate hourly rate for attending court was $1,500. The letter continued, noting that the amount “does not compensate me for lost income but I think is reasonable, considering the expertise and experience that I bring.”

2. [158]

   Without expressing a view as to Dr Havas’ self-assessment (which was accepted by the trial judge), that was not the test: what needed to be assessed was his actual loss (which would include appropriate remuneration for skill and experience), of which there was no direct evidence.

3. [159]

   The appellants’ indicated, both in correspondence with Dr Havas and in submissions in this Court, that they were willing to pay a sum calculated at $790 per hour, being the maximum rate specified in a joint statement issued by the Law Society of NSW and the Australian Medical Association (NSW) Ltd for court attendance by medical experts. In the absence of any direct evidence as to the number of consultations or operations which would have occurred on the Thursday afternoon, absent the obligation to attend court, and the fees which Dr Havas would have charged, a figure adopted by the professional associations should be accepted as a reasonable basis for calculation. Based on that figure, plus GST, a total amount of $3,476 would be payable. In their written submissions, the appellants noted that they had offered to pay a total of $3,950 and remained prepared to do so. That figure should be substituted for the amount determined by the trial judge.

4. [160]

   It is not necessary for present purposes to determine whether that figure is recoverable from the claimant, in the event that a costs order is made against her. In Deposit & Investment Co Ltd, Bainton J stated: [108]

5. [161]

   There remains a question as to who should pay for the costs of determining this issue. Although advised of the issue being raised on the appeal, Dr Havas was joined as a party, but did not seek to be heard. On the other hand, the claimant made submissions seeking to defend the judgment below with respect to this issue. There is, accordingly, no reason to treat the costs involved in this issue differently from those of the appeal generally.

Change in constitution of the Court

1. [162]

   Whilst judgment was reserved, following the hearing in December 2015, one member of the Court encountered circumstances which would have led him, had the events occurred before the hearing, not to participate. He therefore withdrew from further involvement. On the basis that he had become “unable to continue as a member of the Court of Appeal for the purposes of the appeal”, within the terms s 45AA(1) of the Supreme Court Act 1970 (NSW), the parties were consulted as to whether they would consent to the matter being determined by the remaining members of the Bench. There was agreement that the terms of s 45AA were engaged, but one party did not consent. There was agreement, however, that the Court should be reconstituted as a three member bench (including the two members of the Court who had participated in the hearing); that a fresh hearing was not necessary and that the third member of the Court might determine the appeal on the basis of the written materials and transcript of oral argument. The matter was left to the Court on the basis that it should determine whether any further oral argument should occur, limited to those matters on which the Court sought further assistance. That course proved unnecessary and the matter has now been resolved without a further hearing and in accordance with the agreed position of the parties.

Orders

1. [163]

   For these reasons, the appeal should be upheld and the orders made by the trial judge set aside. The appellants should have their costs in this Court.

2. [164]

   Accordingly, the Court should make the following orders:

   1. (1)

      Allow the appeal and set aside the judgment for the plaintiff with costs, given in the District Court, including orders 1 and 2 made and entered on 24 February 2015.

   2. (2)

      In lieu of those orders order that:

   3. (3)

      With respect to the judgment given and the orders made on 17 April 2015 and entered on 23 June 2015:

   4. (4)

      Order that the first respondent pay the appellants’ costs of the proceedings in this Court.

   5. (5)

      Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

3. [165]

   WARD JA: I have had the advantage of reading in draft the reasons of Basten JA with which I agree. I also agree with the orders his Honour proposes.

4. [166]

   PAYNE JA: The appeal was heard by a Court comprising Basten JA, Macfarlan JA and Ward JA on 1 and 2 December 2015. Due to unforeseen circumstances, Macfarlan JA was unable to participate in writing this judgment. I have considered the matter based on the content of the appeal books and the transcript of the appeal hearing.

5. [167]

   The principal questions on appeal were:

6. [168]

   I have had the considerable advantage of reading in draft form the judgment of Basten JA. I agree with the reasons of his Honour and wish only to add the following observations.

7. [169]

   First, as Basten JA demonstrates, the duty upon the respondents required that reasonable care be taken to impart information in “terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information”: Rogers v Whitaker [1992] HCA 58 at [14]; (1992) 175 CLR 479 at 490.

8. [170]

   The approach of the primary judge, in identifying 16 steps said to be relevant in the duty in this case, impermissibly extended the scope of the relevant duty. For example, the primary judge included the following steps to be taken by a practitioner apparently in all cases when describing material risks to a patient:

9. [171]

   The 16 steps identified by the primary judge should not be substituted for the correct approach to identification of the scope of the relevant duty in a particular case, including the present case. Those steps seem to me to extend far beyond the duty which existed in this case.

10. [172]

    Second, in my view the primary judge’s treatment of breach of duty is attended with conceptual problems. The primary judge frequently refers to whether or not the first respondent had given “consent” or “informed consent”. His Honour appears to be doing so in order to ascertain the content of the warnings about material risks provided to the first respondent. However, this elides issues of consent and the duty to warn a patient of material risks and the judgment does not contain an adequate explanation of how it was that he reasoned from one to the other.

11. [173]

    Third, a recurrent theme in the primary judge’s conclusions is that there is no clear evidence of what information was imparted to the respondent by the relevant interpreters, and a lack of proactive steps taken by the three relevant doctors to satisfy themselves that the respondent understood what they were saying, via the interpreters. I agree with Basten JA that this criticism was unwarranted on the facts before the primary judge. In particular, the relevant inquiry as identified by the primary judge into what the interpreters had understood and passed on to the respondent seems to me impermissibly to have reversed the onus of proof.

12. [174]

    I agree with the orders proposed by Basten JA.