On appeal from the Supreme Court of New South Wales
Representation
P W Bates with P G White for the appellant (instructed by Gerard Malouf & Partners)
D J Higgs SC with E M Peden for the respondent (instructed by TressCox Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wallace v Kam
Negligence – Causation – Medical practitioner – Where medical practitioner failed to warn patient of two distinct material risks inherent in surgical procedure – Where only one risk eventuated – Where patient would have chosen not to undergo surgical procedure if warned of both risks – Where patient would have chosen to undergo surgical procedure if warned only of risk that eventuated – Whether failure to warn of both material risks was a necessary condition of injury caused by the risk that eventuated – Whether appropriate for scope of medical practitioner's liability to extend to that injury.
Words and phrases – "but for", "factual causation", "scope of liability".
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ. Mr Wallace sought medical assistance in relation to a condition of his lumbar spine. Dr Kam, a neurosurgeon, performed a surgical procedure on him. The surgical procedure had inherent risks. One risk was of temporary local damage to nerves within his thighs, described as "bilateral femoral neurapraxia", resulting from lying face down on the operating table for an extended period. Another, distinct risk was a one-in-twenty chance of permanent and catastrophic paralysis resulting from damage to his spinal nerves. The surgical procedure was unsuccessful: the condition of Mr Wallace's lumbar spine did not improve. The first risk materialised: Mr Wallace sustained neurapraxia which left him in severe pain for some time. The second risk did not.
Mr Wallace claimed damages from Dr Kam for the neurapraxia he sustained. Mr Wallace's claim in the Supreme Court of New South Wales was that Dr Kam negligently failed to warn him of risks including the risk of neurapraxia and the risk of paralysis and that, had he been warned of either risk, he would have chosen not to undergo the surgical procedure and would therefore not have sustained the neurapraxia.
The claim was dismissed at trial. Harrison J found that Dr Kam negligently failed to warn Mr Wallace of the risk of neurapraxia. But he also found that Mr Wallace would have chosen to undergo the surgical procedure even if warned of the risk of neurapraxia. He concluded, for that reason, that Dr Kam's negligent failure to warn Mr Wallace of the risk of neurapraxia was not a necessary condition of the occurrence of the neurapraxia. He declined to make any finding about whether Dr Kam negligently…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Wallace v Kam [2013] HCA 19
Case
[2013] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a claim in negligence brought by Mr Wallace against Dr Kam, a medical practitioner. Mr Wallace alleged that Dr Kam failed to adequately warn him of material risks associated with a surgical procedure, leading to his injury. The central dispute concerned whether the alleged failures to warn constituted a legally relevant cause of the injury that Mr Wallace sustained.
The High Court was required to determine two key legal issues. First, whether Dr Kam's failure to warn Mr Wallace of two distinct material risks inherent in the surgical procedure was a necessary condition of the injury caused by the risk that eventuated, applying the "but for" test of factual causation. Second, the Court had to consider whether it was appropriate for the scope of Dr Kam's liability to extend to the injury that Mr Wallace suffered, having regard to the nature of the risks and Mr Wallace's hypothetical choices.
The Court reasoned that the two risks, neurapraxia and paralysis, were distinct. Mr Wallace had indicated he would have undergone the surgery if warned only of the risk of neurapraxia, but would not have proceeded if warned of both risks. The Court held that because Mr Wallace would have accepted the risk of neurapraxia and would have undergone the surgery even if warned of that risk alone, the failure to warn of the risk of paralysis could not be the legal cause of the neurapraxia that eventuated. The Court applied principles of causation in negligence, distinguishing between factual causation and the scope of liability.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ
The distinct nature of the risks of neurapraxia and paralysis, and the willingness of Mr Wallace to accept the risk of neurapraxia, therefore combine to support the shorthand holding of Harrison J that any failure of Dr Kam to warn Mr Wallace of the risk of paralysis could not be the "legal cause" of the neurapraxia that materialised.Conclusion The appeal should be dismissed with costs.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, KIEFEL, GAGELER AND KEANE JJ