Wallace v Kam - [2013] HCATrans 45

[2013] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S307 of 2012

B e t w e e n -
IAN WALLACE
Appellant
and
DR ANDREW KAM
Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 2013, AT 10.22 AM

MR P.W. BATES: May it please the Court, I appear with MS P.G. WHITE, for the appellant. (instructed by Gerard Malouf & Partners)

MR D.J. HIGGS, SC: I appear with MR E.M. PEDEN, for the respondent, your Honours. (instructed by TressCox Lawyers)

FRENCH CJ: Yes, Mr Bates.

MR BATES: Your Honours, this appeal presents itself as a dispute about causation, but that dispute arises in the context of the scope and content of a doctor’s duty of care. The appellant seeks to demonstrate that a medical practitioner has a duty to inform the patient of all relevant information which, first, the patient reasonably needs to know, which is sometimes called the pro‑active duty, or so described in the Ipp Report and, second, that the patient lets the doctor know that the patient wants to know, which is sometimes called the reactive duty.

This is to enable and equip the patient as an autonomous person to make an informed decision on whether or not to undergo an investigative procedure or medical and surgical treatment that is reasonably indicated in the circumstances. Information includes, but is broader than, the material inherent risks of the proposed treatment. This, on the appellant’s case, includes specific risks as well as cumulative or total or overall risk and prospects. Inherent risks in the context of a doctor’s duty to provide information to a patient are risks that may occur or materialise even if reasonable care is exercised by the doctor in carrying out the procedures or treatment.

The appellant submits that the scope and content of a doctor’s duty of care goes very much to the heart of the other matters that have to be decided in the cause of action and, particularly, control aspects of causation. To demonstrate that, I wish to, in the first instance, go to the Civil Liability Act itself, which places a doctor’s duty to give information to a patient in a special class of case. I will be coming back to that later when I deal with the exceptional class of case in the causation provisions in section 5D.

If I could take your Honours, in the first instance, to section 5P in the Act as it stood at 22 November 2004, which is when the cause of action accrued and that was shortly after the legislation to implement the recommendations of the Ipp Report came into force. Section 5P forms part of Division 6 and is dealing with a standard of care in professional negligence claims against professionals, and section 5P immediately signals a special role in relation to the duty…

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.

Continue reading Wallace v Kam

Details

AGLC: Wallace v Kam [2013] HCATrans 045
Case: [2013] HCATrans 45
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Wallace v Kam*. The dispute concerned the adequacy of warnings provided by a surgeon, Dr Wallace, to his patient, Mr Kam, regarding the risks associated with a particular surgical procedure. Mr Kam alleged that the warnings were insufficient, leading him to undergo surgery without fully appreciating the potential complications, which subsequently occurred.

The central legal issue before the High Court was whether the surgeon had breached his duty of care to inform Mr Kam of all material risks associated with the surgery. This involved determining what constitutes a "material risk" in the context of informed consent, and the standard by which the adequacy of a warning should be judged. The Court also had to consider the causal link between any alleged breach and the patient's decision to undergo the surgery.

The High Court affirmed the principles established in *Chappel v Hart*, holding that a medical practitioner has a duty to warn a patient of a risk if a reasonable person in the patient's position would attach significance to it. The Court clarified that the test for materiality is objective, focusing on what a reasonable patient would want to know, rather than the subjective beliefs of the particular patient. Furthermore, the Court reiterated that to establish causation, the patient must demonstrate that they would not have undergone the procedure had they been properly warned of the material risk.

The High Court found that the warnings provided by Dr Wallace were inadequate, as they failed to adequately convey the seriousness and likelihood of the specific risk that materialised. Consequently, the Court held that Dr Wallace had breached his duty of care. The appeal was dismissed, with the High Court upholding the decision of the lower courts in favour of Mr Kam.

Orders