Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

Welcome to Canberra

An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).

Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”

ACT welcome
Image from here

Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy.  The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute.  That section relevantly says –

If —

(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and

(b) it appears to the first court that …

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

The defendant pointed out that –

  • The plaintiffs were residents of NSW.
  • The defendant was a creation of NSW law with no presence in the ACT.
  • The alleged negligence occurred in NSW.
  • The applicable law was that of NSW.
  • The defendant’s likely witnesses were based in NSW.
  • The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.

Despite this, the Court declined to transfer the matter.  The test was to balance the competing interests to establish what the interests of justice required.  It noted that –

  • The plaintiffs’ home in Wagga Wagga was much closer  to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
  • The lead plaintiff was aged six years, severely disabled and required constant care.
  • The estimated dutation of the trial was three weeks.
  • At least some of the plaintiffs’ witnesses were based in Canberra.
  • It was possible the matter would be heard sooner in Canberra than in Sydney.

Her Honour’s concluding observation was particularly pointed:

it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.

The Court dismissed the application to transfer the case to the Supreme Court of NSW.

Bailey-Brown v Southern New South Wales Local Health Authority [2019] ACTSC 78

Wati v Attorney-General (2007) H&FLR 2014-20

Indira Wati v Attorney-General & Ors (2007) H&FLR 2014-20

Court of Appeal of Fiji

9 March 2007

Coram: Ward P, Barker and Scott JJA

Appearing for the Appellant: S. Maharaj (of Suresh Maharaj & Associates)

Appearing for the Respondent: A. Tuilevuka* and P. Prasad (instructed by the Office of the Attorney-General)

Catchwords: Fiji – medical negligence – myocardial infarction – risk factors – misdiagnosis – loss of chance of survival

Facts: On 23 March 2002 Mr Raj Kumar Singh died at Nadi Public Hospital from an acute inferior myocardial infarction.  He had several risk factors for the infarction including being in his mid fifties, somewhat overweight, a smoker and had elevated blood pressure and a family history of heart attack and high blood pressure.  Despite this, he was initially diagnosed with a gastric complaint.  This misdiagnosis was not rectified before the hospital’s employee left treatment and monitoring of the deceased’s condition to his family.  For the last 12 hours of his life the deceased experienced severe pain and extreme distress was caused to his family.

The plaintiff (the deceased’s widow and the administratrix of his estate) brought negligence proceedings in the Lautoka High Court against the Attorney-General as representing the State, which operated the hospital.  The trial judge found that the Hospital and its employees had been negligent in providing treatment to the deceased.  However, this negligence had not lead to his death.  There was no evidence on whether the deceased was more likely than not to have died had he received proper medical care.  The Court awarded $5,000.00 to the widow for mental anguish and $15,000.00 to the estate in respect of the deceased’s suffering.

The plaintiff appealed to the Fiji Court of Appeal.

Held: Per curiam, dismissing the appeal, that for the plaintiff’s case succeed, it was necessary to show that proper treatment of the deceased would (as opposed to may) have prevented his death when it occurred.  Loss of a mere chance of survival is not a recoverable head of damage.

Gregg v Scott [2005] 2 AC 176; 2 WLR 268; 4 All ER 812; UKHL 2 (UK House of Lords), followed.

Judgment

The Court’s judgment is available here.

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* Since appointed to the bench.