Wallace v Kam [2013] HCA 19 - Medical law

The High Court has handed down its judgment in the case of Wallace v Kam [2013] HCA 19, dismissing an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Supreme Court had held that even if the respondent, Dr Kam, had failed to warn the his patient Mr Wallace (the appellant) of all the material risks inherent in his spinal surgery, the failure did not cause the injury that subsequently occured. 

Background

Mr. Wallace suffered from a condition of his lumbar spine. His surgeon, Dr. Kam, performed a surgical procedure intended to relieve him of the ill-effects of his condition. One of the inherent risks of the surgery is temporary damage to the patient's thights, or 'neurapraxia.' There was also a one-in-twenty risk of paralysis. While the paralysis did not occur, the risk of neurapraxia did eventuate, leading to Mr. Wallace claiming that Dr. Kam had been negligent in not informing him of the risk. 

Legal Proceedings

At trial, the Supreme Court of New South Wales agreed that Dr Kam had been negligent in failing to inform Mr. Wallace of the risk of neurapraxia. However, they also found that Mr. Wallace would have chosen to undergo the surgical procedure even if he had been aware of the risk, and the failure to warn of the risk of paralysis could not be the legal cause of the neurapraxia. 

Mr Wallace appealed to the Court of Appeal, arguing that the Supreme Court had erred in finding that the legal cause of the neurapraxia could not be the failure to warn of the risk of paralysis.

The Court of Appeal found that, if warned of the risk of paralysis, Mr Wallace would not have undergone the surgical procedure, and that Dr Kam was not liable for the development of Mr. Wallace's neurapraxia. Mr Wallace appealed this decision by special leave to the High Court.

High Court

The High Court found that Dr Kam's liability should not extend to the physical injury suffered by Mr Wallace, in circumstances where Mr Wallace would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the procedure even if he had been warned of the risk that eventuated. As such, Mr Wallace was not entitled to be compensated for the physical injury, as he was nevertheless willing to accept the risk.

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