Daniels v Burfield [1994] HCA 35; (1994) 125 ALR 33; (1994) 68 ALJR 894 (9 November 1994)

HIGH COURT OF AUSTRALIA

GRAHAM KEITH DANIELS v. GEOFFREY BURFIELD
Number of pages - 2

HIGH COURT OF AUSTRALIA
MASON CJ, TOOHEY AND McHUGH JJ

CATCHWORDS

HEARING

ADELAIDE, 26 August 1994
9:11:1994, CANBERRA

ORDER

Application for special leave to appeal refused.

DECISION

MASON CJ, TOOHEY AND McHUGH JJ This application for special leave to appeal from the decision of the Full Court of the Supreme Court of South Australia was heard in Adelaide on 26 August 1994. On hearing the arguments presented by the parties, the Court came to the conclusion that it was necessary, in giving further consideration to the application, to look at the evidence contained in the appeal books that were lodged with the Full Court of the Supreme Court. Having examined that evidence, we have concluded that special leave should be refused. Because we have taken the unusual course of looking at material in the appeal books in order to follow more closely the way in which the case was dealt with at first instance and on appeal, we shall state the ground for refusing leave in rather more detail than is customary.

2. The trial judge found:
"The loss of the (applicant's) testicle was not caused by any fault
or breach of duty on the part of the (respondent). It was a
misadventure. The 'stopping' of the flow of blood to the testicle
was a misadventure. I find that misadventure was probably brought
about by failure to rest at home, lying down. But even if that be
wrong the (applicant) has failed to prove any fault on the part of
the (respondent). Indeed, in my opinion, the evidence called for
the (respondent) proved that he was in no way at fault."

3. In so finding, the trial judge preferred the evidence of the respondent surgeon, Dr Burfield, where it conflicted with that of any other witness. The trial judge also accepted the evidence of Dr Harbison, which supported that of the respondent. That evidence led his Honour to conclude that, following the operation to reverse a vasectomy, a haematoma developed in the testicular artery after the applicant had been discharged at 9.30 am on 9 March 1985, resulting in a blockage in the supply of blood to the right testicle and atrophy of that testicle.

4. The trial judge's acceptance of the evidence of the respondent and that of Dr Harbison entailed the rejection of the applicant's case of negligence based on the evidence of Dr Owen and that of Dr Tan and Dr Sinclair in so far as their evidence supported that of Dr Owen. Dr Owen stated that the occlusion of the testicular artery could only have occurred in the course of the operation and would have resulted from the cutting or the clamping, ligature or diathermy of the artery. Cutting would have caused massive bleeding clearly visible to the surgeon. Clamping, ligature or diathermy would have resulted in a loss of colour to the testicle which would have been observable if the surface of the testicle was visible. The respondent denied that there was massive bleeding and had no recollection of loss of colour to the testicle, something which he said that he would have recalled had it occurred. Dr Tan and Dr Sinclair agreed that a primary haematoma during surgery would have produced much bleeding, which would have been apparent to the surgeon. However, both doctors supported Dr Owen's opinion that a secondary haematoma on its own would not have caused the occlusion.

5. The medical evidence led by the applicant was premised on the basis that only a complete blocking of the arterial supply of blood to the testicle could have caused its atrophy. All of the medical experts called agreed that, in that event, the applicant would have been in considerable pain. However, the trial judge rejected the evidence of the applicant, his wife, his father and his mother that he was in great pain before he was discharged from hospital. In so doing, the trial judge relied on the evidence of the nursing staff on duty at the time, the contemporaneous notes which they had made, and the hospital's drug sheets and drug book. The trial judge's finding that the applicant was not in significant pain before being discharged from the hospital was one which was open to his Honour.

6. The Full Court of the Supreme Court dismissed the applicant's appeal on the ground that the trial judge's positive findings as to the credibility of the respondent were fatal to the success of the appeal. The Full Court also concluded that the trial judge was entitled to find on the evidence that the applicant was not in significant pain before being discharged from hospital. That finding was not only inconsistent with Dr Owen's theory of negligence but it was also inconsistent with post-operative negligence on the part of the respondent.

7. Two aspects of the case caused the Full Court some concern. One was the absence of any convincing explanation for what happened, once negligence was ruled out. The other was an initial explanation advanced by the respondent for what happened which might be said to give some support to Dr Owen's theory of negligence. This explanation was later discarded by the respondent. The trial judge found that he had "a genuine change of opinion made on sound grounds".

8. In the ultimate analysis, the applicant's case of negligence failed because the trial judge accepted the respondent's evidence denying that there was massive bleeding during the operation and his evidence concerning the colour of the testicle and rejected the evidence of the applicant and his family that he was in considerable pain. In the nature of things, appellate courts are extremely reluctant to interfere with findings of fact based on a positive assessment of the credibility of a witness. In general, they will do so only where the testimony of a witness is in conflict with facts incontrovertibly established or it is glaringly improbable. That is not the case here.

9. In the result, we do not consider that there was any error of principle on the part of the Full Court. Nor do we consider that the applicant's prospects of success in the proposed appeal are sufficient to conclude that special leave should be granted in the interests of the administration of justice.