Wallace v Kam

Case [2012] NSWCA 82

Court of Appeal

New South Wales
Case Title: Wallace v Kam
Medium Neutral Citation: [2012] NSWCA 82
Hearing Date(s): 19 September 2011
Decision Date: 13 April 2012
Jurisdiction:
Before:

Allsop P at [1]; 
Beazley JA at [35]; 
Basten JA at [156]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:

TORTS - NEGLIGENCE - medical practitioner - duty to warn patient of material risks inherent in proposed surgery - multiple material risks - whether warning was required

TORTS - NEGLIGENCE - medical practitioner - causation - whether failure to warn of material risk that did not eventuate causally connected to injury - Civil Liability Act 2002, s 5D
Legislation Cited:

Civil Liability Act 2002
Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408
Canterbury v Spence 464 F 2d 772, 150 U.S.App.D.C. 263 (1972)
Cattanach v Melchior [2003] HCA 38; 215 CLR 1
Chappel v Hart [1998] HCA 55; 195 CLR 232
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134
Cochran v Wyeth 3 A 3d 673 (Pa Super, 2010)
Downer v Veilleux 322 A 2d 82 (Me. 1974)
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22
Faulkner v Keffalinos [1970] 45 ALJR 80
Hopp v Lepp [1980] 4 W.W.R. 645, 13 C.C.L.T. 66, 32 N.R. 145, 22 A.R. 361
Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837
March v Stramare (E & M H) Pty Ltd [1991] HCA 12; 171 CLR 506
Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254
Moyes v Lothian Health Board 1990 S.L.T. 444
Pledge v RTA [2004] HCA 13; 205 ALR 56
Reibl v Hughes [1980] 2 S.C.R. 880, 14 C.C.L.T.1, 114 D.L.R. (3d) 1, 33 N.R. 361, J.E. 80-894
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Sidaway v. Governors of Bethlem Royal Hospital [1985] AC 871
Strong v Woolworths Ltd [2012] HCA 5
Tame v NSW [2002] HCA 35; 211 CLR 317
Travel Compensation Fund v Tambree [2005] HCA 69, 224 CLR 627
Texts Cited:

Gerd Gigerenzer in Reckoning with Risk (Penguin, 2002)
HLA Hart and Tony Honoré, Causation in the Law, 2nd ed (1985)
Michael S Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics (OUP, 2010), p 101
Weinrib, "A Step…

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AGLC
Wallace v Kam [2012] NSWCA 82
Case
[2012] NSWCA 82
Decision Date

CaseChat Overview and Summary

The appeal concerned a medical negligence claim brought by the appellant, Mr. Wallace, against the respondent, Dr. Kam. Mr. Wallace alleged that Dr. Kam failed to adequately warn him of the material risks associated with a surgical procedure. The dispute centred on whether the warning provided by Dr. Kam was sufficient, and if not, whether that failure caused Mr. Wallace's injury. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were twofold. Firstly, whether Dr. Kam had a duty to warn Mr. Wallace of all material risks inherent in the proposed surgery, and if so, whether the warning given was adequate. Secondly, the Court was required to determine, pursuant to section 5D of the *Civil Liability Act 2002* (NSW), whether any failure to warn of a material risk that did not eventuate was causally connected to Mr. Wallace's injury.

The Court of Appeal affirmed the principles governing a medical practitioner's duty to warn. It was held that a doctor must warn a patient of risks that a reasonable person in the patient's position would consider material to their decision to undergo the treatment. However, the Court clarified that the focus of the inquiry is on the patient's decision-making process. In this instance, the Court found that even if the warning was deficient, Mr. Wallace had not established that he would have made a different decision regarding the surgery had he been provided with a more comprehensive warning. Therefore, the element of causation, as defined by section 5D of the *Civil Liability Act 2002*, was not satisfied.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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