Johnson v Biggs [2000] NSWCA 338

Johnson v Biggs [2000] NSWCA 338

The respondent's warning was inadequate because, on the trial judge's accepted findings, it did not warn the appellant that the proposed neurectomy might leave her with worse pain than before and did not sufficiently address material features of anaesthesia dolorosa such as the possible wider area of pain and sensitivity to touch. The trial judge's finding that the appellant would still have undergone the surgery could not safely be applied to the fuller warning that should have been given, so causation had to be re-determined. Because the issues of warning and causation were interwoven, the appropriate disposition was to set aside the judgment and order a new trial limited to liability.

Jurisdiction
Australia
Judgment Date
24 November 2000
Procedural Posture
Negligence; Medical Negligence; Failure to Warn / Appeal From the District Court Judgment in Favour of the Respondent
Outcome
Appeal allowed; District Court judgment set aside; proceedings remitted for a new trial limited to liability.
Legal Topics
["doctor's Duty to Warn" 'material Risk' 'informed Consent' 'causation' 'adequacy of Surgical Warnings' 'new Trial on Liability']
['tort Law' 'medical Negligence'] ["doctor's Duty to Warn" 'material Risk' 'informed Consent' 'causation' 'adequacy of Surgical Warnings' 'new Trial on Liability']

Case Brief

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Procedural Posture

Negligence; Medical Negligence; Failure to Warn / Appeal From the District Court Judgment in Favour of the Respondent

Legal Issues

  1. 1 ['Whether the respondent neurosurgeon gave an adequate warning of the risk of anaesthesia dolorosa or deafferentation pain associated with the proposed neurectomy.' 'Whether the warning should have included that the appellant could suffer worse pain, pain in a wider area, sensitivity to touch, and other adverse features of anaesthesia dolorosa.' "Whether the trial judge's finding that the appellant would have undergone the surgery even if warned could stand where the hypothesis did not include the fuller warnings that should have been given." 'Whether the proceedings should be remitted for a new trial and, if so, whether the new trial should be limited to liability.']

Ratio Decidendi

The respondent's warning was inadequate because, on the trial judge's accepted findings, it did not warn the appellant that the proposed neurectomy might leave her with worse pain than before and did not sufficiently address material features of anaesthesia dolorosa such as the possible wider area of pain and sensitivity to touch. The trial judge's finding that the appellant would still have undergone the surgery could not safely be applied to the fuller warning that should have been given, so causation had to be re-determined. Because the issues of warning and causation were interwoven, the appropriate disposition was to set aside the judgment and order a new trial limited to liability.

Court Disposition

Appeal allowed; District Court judgment set aside; proceedings remitted for a new trial limited to liability.

Orders

  • ['Appeal allowed.' 'Set aside the judgment in favour of the respondent and remit the proceedings to the District Court for a new trial limited to liability.' "The respondent pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if qualified." 'Costs of the first trial follow the...