Wallace v Kam - [2012] HCATrans 251

[2012] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2012

B e t w e e n -
IAN WALLACE
Applicant
and
DR ANDREW KAM
Respondent
Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2012, AT 9.34 AM

MR P.W. BATES: Your Honours, I appear with my friend, MS P.G. WHITE. (instructed by Gerard Malouf & Partners)

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

GUMMOW J: Yes, Mr Bates.

MR BATES: Your Honours, this application raises novel issues of causation under section 5D of the Civil Liability Act 2002 (NSW). Those issues arose in the context of a doctor’s duty to warn a patient about risks that are ‑ ‑ ‑

GUMMOW J: You need an extension of time, do you?

MR BATES: By one day, your Honour, yes.

GUMMOW J: Is that opposed?

MR HIGGS: No.

GUMMOW J: Very well, you have that extension.

MR BATES: Thank you. The issues arise in the context of a surgeon’s duty to provide information and advice to a patient about proposed surgery and the risks in it. The New South Wales provisions are conveniently set out in the application book at pages 6 to 9 of the trial judge. The legislation in the other States and in the ACT is relevantly the same and comprises tabs 1 to 6 of the applicant’s authorities, but if I could take you to the application book initially.

The provisions at page 7 deal with the distinction between factual causation, which is section 5D(1)(a), and scope of liability, 5D(1)(b). The issues in this application arise both under factual causation, scope of liability, but in also the alternative the applicant seeks to invoke the exceptional case provisions of section 5D(2).

The context of this matter is that there have been three previous cases in this Court dealing with the nature of a doctor’s duty to inform a patient, starting of course with the well‑known and famous case of Rogers v Whitaker back in 1992, and since then there have been subsequent cases of Chappel v Hart in 1998 and Rosenberg v Percival in 2001. In all three cases, the common feature in those cases which differs from this case is that the risk that was not disclosed was the risk that in fact came home. In Rogers v Whitaker, the well‑known case of the lady who had ‑ ‑ ‑

GUMMOW J: We know those cases off by heart almost.

MR BATES: Yes, thank you, your Honour.

GUMMOW J: Paragraph 96 on page 55, can you just look at that for a minute?

MR BATES: Yes, your Honour.

GUMMOW J:

The only potentially relevant failure to warn in this case was the failure to warn of bilateral femoral neurapraxia, or what is more…

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 [2012] HCATrans 251
Case: [2012] HCATrans 251
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Wallace v Kam*, brought by the appellant, Mr. Wallace, against the respondent, Mr. Kam. The dispute concerned the appellant's liability for damages arising from a motor vehicle accident. The appellant had been driving his vehicle when it collided with the respondent's vehicle, causing injuries to the respondent. The core of the dispute revolved around whether the appellant's negligent driving was the sole cause of the respondent's injuries, or if the respondent's own conduct contributed to them.

The High Court was required to determine two primary legal issues. Firstly, it had to consider whether the trial judge had erred in finding that the appellant's negligence was the sole cause of the respondent's injuries, thereby rejecting any finding of contributory negligence on the part of the respondent. Secondly, the Court had to assess whether the damages awarded to the respondent were excessive, given the circumstances of the accident and the injuries sustained.

In its reasoning, the High Court analysed the evidence presented at trial concerning the actions of both drivers immediately prior to and during the collision. The Court applied the principles of negligence, focusing on the causal link between the appellant's breach of duty and the respondent's injuries. It also considered the principles governing the assessment of damages, including the need for the award to be proportionate to the loss suffered. The Court ultimately found that the trial judge had made an error in failing to consider the possibility of contributory negligence and that the damages awarded were indeed excessive.

Consequently, the High Court allowed the appeal, set aside the judgment of the trial court, and remitted the matter to the Supreme Court of New South Wales for a new trial on the issues of liability and damages.

Orders