Spence v Neilson

In the case of Spence v Neilson, the plaintiff sought to recover damages for injuries sustained during varicose vein surgery. The plaintiff alleged that the defendant, a surgeon, breached his duty of care by failing to provide appropriate advice regarding the benefits and risks of the surgery. The plaintiff claimed that had she been advised there were no immediate risks to her health in not proceeding with the surgery, she would not have agreed to it. The defendant argued that the plaintiff had not established a breach of duty and that the injury was not a known risk of the surgery. The case was heard in the Supreme Court of Victoria.

The legal issues the court needed to decide were whether the defendant breached his duty of care by failing to provide appropriate advice regarding the benefits and risks of varicose vein surgery and whether the plaintiff's injury was caused by that breach. The court also needed to consider whether the failure to challenge the plaintiff’s evidence on certain points meant that the defendant was taken to accept that evidence.

The court found that the defendant’s failure to challenge the plaintiff’s evidence did not require the court to accept that evidence. The court held that the evidence must be considered as a whole, including the fact that the plaintiff’s evidence was not challenged in cross-examination. The court found that the plaintiff’s evidence was limited and did not explain how the consultation moved from the circumstances of the plaintiff’s friend to the possibility of the surgery. The court held that it was more likely that the defendant had followed his usual practice of discussing the circumstances of the plaintiff’s friend, the circumstances of the plaintiff, the fact that she was asymptomatic, and the slowly progressive nature of varicose veins, illustrating the disease and the surgery by reference to a hand-drawn diagram.

The court found that the defendant did not breach his duty of care by failing to provide appropriate advice regarding the benefits and risks of varicose vein surgery. The court held that the injury was not a known risk of the surgery and that the mechanism of injury was not established. However, the court found that causation was established by reason of the temporal connection between the surgery and the injury. The court held that the plaintiff had not established that the advice given during the consultation involved a breach of duty. The court found in favour of the defendant.

The court ordered that the plaintiff’s claim be dismissed and that the defendant be awarded costs.