The NSW Court of Appeal, on 13 April 2012 handed down its decision in relation to Mr Wallace’s claim against neurosurgeon Dr Kam. The case sought to challenge the accepted position in relation to failure to warn cases. Following the High Court’s decision in Rosenberg v Percival, it has generally been accepted that to succeed in a case alleging a failure to warn on the part of their surgeon etc, it was necessary to show:

  • the risk of the type of complication the patient suffered was such (by a combination of its seriousness if it eventuated, it’s probability and the patient’s realistic options other than proceeding with the treatment) likely to be considered of significance by the patient in deciding whether or not to undergo the proposed treatment;
  • no warning of such complication was provided;
  • if the warning had been provided, the patient would not have proceeded with the treatment, at least not at the time and place they did.
  • the risk that ought to have been warned about (but was not), then occurred.

In Wallace, the 4th of these requirements was sought to be challenged.  It was claimed to be sufficient if a warning of a risk of complication had not been given, that would have convinced Mr Wallace not to proceed with the surgery, even though it was not this risk that occurred, but rather another risk, that whilst also not disclosed when it ought to have been, was not such as would have convinced Mr Wallace not to proceed with his surgery (because it was so unlikely) – yes, even I had to read this several times before understanding it…

It was argued that Mr Wallace should be compensated for serious complications caused by surgery he would not have undergone, had Dr Kam appropriately warned him of the risks (plural) it involved. When put that way, it is easy to see the appeal of Mr Wallace’s claim ( see particularly the convincing reasoning accepted in Moylen’s case [117] per Lord Caplan).

Unfortunately for him, the Court of Appeal, it has to say with some hesitancy, obviously considerable careful thought and analysis, with 1 of the 3 Judges dissenting, affirmed the conventional position and concluded Mr Wallace’s claim should fail.. Nonetheless, on my reading, the Court made clear that, in part due to the Civil Liability Act’s introduction, the position is not as clear cut as perhaps previously believed. That this is the case is obvious from the divergence of opinion among the 3 members of the Court.

An intriguing question that occurred to me is: what would have happened if the case had been run focusing not on the scientific question of the risks of the operation, but more practically, upon the warning the surgeon ought to have given?  Whether such warning would embrace the risk that eventuated. It occurs to me that in practice, it may well be that a surgeon would be likely to discharge their duty to warn of the risk of various types of nerve injuries by such a single warning, embracing both the form of injury Mr Wallace suffered and the more serious risk.  If it was the same warning that ought to have been given, that was not, which would cover both forms of nerve injury, conventional theory would suggest Mr Wallace ought to have succeeded.