HCA: Doctors failure to warn of the risks of surgery

Wallace v Kam [2013] HCA 19


I refer you to the judgment summary


  1. A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid[18]. Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach[19]. In a similar way, “a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action” but “only for the consequences of the information being wrong”[20]. A useful example, often repeated, is that of a mountaineer who is negligently advised by a doctor that his knee is fit to make a difficult climb and who then makes the climb, which he would not have made if properly advised about his knee, only to be injured in an avalanche. His injury is a “foreseeable consequence of mountaineering but has nothing to do with his knee”[21].
  2. Accordingly, as has been pointed out more than once, a medical practitioner is not liable to a patient for physical injury that represents the materialisation of a risk about which it is beyond the duty of the medical practitioner to warn[22]:

“Thus, a medical practitioner will not be held liable for the failure to warn a patient of a material risk of damage to ‘her laryngeal nerve’, if the injury that eventuated resulted from a misapplication of anaesthetic. This is so despite the fact that the patient would not have had the treatment and therefore would not have suffered the injury from the misapplication of anaesthetic if the patient had been warned of the risk to ‘her laryngeal nerve’.” (footnote omitted)

  1. Dr Kam is not liable to Mr Wallace for impairment of Mr Wallace’s right to choose whether or not to undergo the surgical procedure and is not liable to Mr Wallace for exposing him to an unacceptable risk of catastrophic paralysis. He can be liable, if at all, for the neurapraxia Mr Wallace sustained. As both Allsop P and Basten JA pointed out[34], the position of Mr Wallace in respect of the neurapraxia when considered for the purposes of causation is in principle no different from what his position would have been had Dr Kam properly warned him of the risk of neurapraxia and had he made an express choice to proceed with the surgical procedure in light of that warning. He is not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept.
  2. 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.

David Cormack – Brisbane Barrister.

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