Torts – Causation and Remoteness – Factual Causation
Facts: The appellant, Dr Chappel, recommended Ms Hart to undergo a surgery to remove a pouch of skin in her oesophagus, which occasionally caught food and caused Ms Hart to swallow. Ms Hart did inquire about the risks but was given no adequate answer by Dr Chappel and further, Dr Chappel failed to warn Ms Hart that if her oesophagus was perforated and if an infection does occur, there is a risk that damage could occur to the laryngeal nerve and voice. Dr Chappel went ahead and performed the surgery on Ms Hart under true skill, and a rare complication of mediastinitus arose as a result of bacteria, which by chance, was present in Ms Hart’s throat at the time. This caused a damage to Ms Hart’s vocal cords and affected her voice.
Issue: What would have Ms Hart done if she was warned about the risks prior to the procedure?
Held: Ms Hart made it very clear before the Court that if Dr Chappel warned her of risks, she would have sought a second opinion and perhaps undergo procedure in the hands of a more experienced doctor at a later date, such as Professor Benjamin.
Professor Benjamin, who was a pre-eminent specialist in throat surgeries, was called by Ms Hart, whom indicated that if Ms Hart had undergone the same procedure in other circumstances, “the cumulative risks which produced her injuries, were so unlikely to recur as to border upon the speculative” (i.e. Ms Hart would not have suffered an injury because the risk or surgery would have been materialised.
Ms Hart was awarded $172,500 in damages, even though Dr Chappel appealed the decision to the High Court, the High Court in a split decision of 3:2 dismissed Dr Chappel’s appeal and upheld the original award of damages.
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