Wallace v Kam

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.