Topic: Chappel v Hart

Identify the issues in the case of Chappel v Hart (1998) 195 CLR232, and explain the reasoning that was used by the judgment of Kirby J. ONLY focus on the judgment by the mentioned judge. Go through the judgment and work out the steps in the reasoning and the techniques that the judge used to make his judgment, for example:

• Did the judge rely on other cases? How did the judge use those cases?
• Did the judge declare that an earlier case was wrongly decided?
• Did the judge distinguish an earlier case?
• Did the judge make new law or interpret the law in a new way?
• Did the judge reason by analogy?
• Did the judge appeal to principle, policy, or the underlying purpose of the tort?





Presentation: Issues and Reasoning in the Case of Chappel V Hart (1998) 195 CLR 232

The case involves Mrs. Hartman, who underwent a surgical procedure to remove a pharyngeal pouch in the esophagus under Dr. Chappel in 1983 (Zhao, 2013, p.121). During the operation, her esophagus got perforated after which she underwent a procedure to repair. During this procedure, she contracted an infection. It was later discovered that her laryngeal nerve had been damaged and consequently her vocal cords. Mrs. Hart had to retire as an education officer due to her voice problems. In 1989, Mrs. Hart began legal proceedings against Dr. Chappel that went to trial in 1994 claiming that she had not been informed of the risks of damage to her laryngeal nerve. She argued that if she been warned of the risks, she would have postponed her operation, and the most experienced ear, nose, and throat surgeon would have performed it. However, Dr. Chappel appealed the trial court ruling to compensate Mrs. Hart.

The issues in Chapel v Hart case included causation, failure to warn the patient of the risks of the operation and negligence. Moreover, the case involved the determination of whether damage was due to chance or physical and whether there was a link between the damages suffered and failure to warn of the risks. The high court judges upheld the lower court’s decision. In his judgment in Chappel v Hart (1998) 195 CLR 232, Kirby awarded compensation awards to Mrs. Hartman. The high court, just like the lower court, considered causation in determining its ruling. Dr. Chappel argued from the perspective of logical examination of the events that would have resulted if he did not warn his patient of the possible risks. The judge eventually concluded against these arguments. He held that Mrs. Hart’s claim was for physical injury, damages, and not a loss of chance. He elaborated that loss of chance alone should not be the basis for penalizing surgeons. He said the injury was a foreseeable risk that Mrs. Hart did not consent. The argument that Dr. Chapel would not have performed the operation, and it would have been postponed if the patient was warned of its risks proved causation.

Kirby J basing his judgment on ‘commonsense’ that guides the court in similar cases said that Dr. Chappel had breached his legal duty of informing a patient about potential risk of undergoing the operation. He emphasized that it was a legal obligation for all health care professionals to inform patients about possible risks, respect their rights and answer their questions with utmost honesty.

The judge relied on the case of Rogers v Whitaker (1992) 175 CLR 479, 490. He said that the standards set by the court during this case as to the onerous duty of doctors to warn their patients of potential risks during treatment had been established with good reason. He warned that failure to observe these standards should obviously have legal consequences. He declared that the judgment of this case was fairly done.

The judge appealed to making policy and setting of standards that will ensure health care professional inform their patients of the possible risks before an operation or treatment. Furthermore, the patients’ rights to choose when and where to undergo a medical procedure or seek treatment should always be upheld. Kirby J acknowledged the importance of policy that renders informing patients of potential risks a legal duty of all health care professionals.




Chappel v Hart (1998) 195 CLR 232

Zhao, X. (2013). The duty of medical practitioners and CAM/TCM practitioners to inform competent adult patients about alternatives. Heidelberg, Springer.

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