The New South Wales Court of Appeal today dismissed the plaintiff’s appeal: Paul v Cooke [2013] NSWCA 311. From the headnote:

1. The harm suffered by Ms Paul resulted from the materialisation of a risk occurring that could not be avoided by the exercise of reasonable care and skill. The “reasonable care and skill” referred to in s 5I(2) is not necessarily limited to that of the defendant; whether it will be in any particular case depends upon the relationship between the act of negligence and exposure inherent risk, and there was so such relationship here: Basten JA at [7]-[9], Leeming JA at [70]-[78], Ward JA agreeing with both.

 Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648, applied.

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, considered.

 

2. There is no dichotomy in s 5I between the “occurrence” being unavoidable and the “risk” being unavoidable; what must be identified is the particular risk that cannot be avoided with the exercise of reasonable care and skill. The risk of intra-operative rupture was such a risk: Ward JA at [15]-[17], Leeming JA at [60]-[69].

 Cox v Fellows [2013] NSWCA 206, explained.

 

3. Where a case can conveniently be decided under s 5I, it should be: Leeming JA at [52]-[57], Ward JA agreeing.

 

4. Alternatively, the absence of any relationship between the negligent act and the harm suffered made it inappropriate to impose liability on Dr Cooke for the harm Ms Paul suffered. The appellant identified no social, moral or economic principle which favoured imposing liability in these circumstances: Basten JA at [12]-[13], Leeming JA at [89]-[117], Ward JA agreeing with both.

 

5. Policy considerations are highly fact-specific and the factual considerations establishing factual causation remain relevant in considering the proper scope of liability: Basten JA at [12], Leeming JA at [109]-[111], Ward JA agreeing with both.

 

6. The policy underlying the imposition of a duty of care in connection with diagnosis is to protect the patient from harm that could be avoided or alleviated by prompt diagnosis. The intra-operative harm that Ms Paul suffered in this case was not of that kind; fulfilment of the duty in respect of diagnosis was a precursor to treatment and its inherent risks: Leeming JA at [90]-[93], Ward JA agreeing.

 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, applied.

 

7. The duty in connection with diagnosis is not analogous to the duty to warn of material risks inherent in a proposed treatment and should not be expanded by reference to the common law right of the patient to choose whether or not to undergo a proposed treatment. The duty to warn is treated differently by the Act, as it was by the common law. Moreover, the policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning, being to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient, has no work to do here, where Ms Paul was fully informed of, and accepted, the risks of the medical procedure, including the risk that materialised: Leeming JA at [93]-[100], Ward JA agreeing.

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232; Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134,Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648, considered.

 

8. No error was demonstrated in the primary judge’s reasons regarding the appropriate level of abstraction when considering whether the harm suffered by Ms Paul was a reasonably foreseeable consequence of Dr Cooke’s negligence (for the purposes of determining whether it was appropriate that his liability should extend to that harm): Leeming JA at [101]-[102], Ward JA agreeing.

 Moyes v Lothian Health Board 1990 SLT 444, referred to.

 

9. This is an appropriate case for the application of the limiting principle that the scope of a negligent defendant’s liability normally does not extend beyond liability for the occurrence of such harm the risk of which is was the duty of that defendant to exercise reasonable care and skill to avoid; it was no part of Dr Cooke’s duty to avoid the risk of intra-operative rupture and Dr Cooke’s negligence did not create any intra-operative risk: Leeming JA at [105]-[106], Ward JA agreeing.

 March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506, considered.

Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648, applied

 

10. Observations about the definition of “negligence”, the different treatment of warnings, the different language in Part 1A of the Act, and whether s 5I is a defence: Leeming JA at [38]-[51] and [79]-[80].