Shead v Hooley [2000] NSWCA 362

Procedural Posture

Appeal / Court of Appeal Decision on Appeal and Cross Appeal

Legal Issues

1. 1 ['Whether surgeon failed to give adequate warning of possible adverse consequences of surgery' 'Whether surgeon operated without sufficient investigation' 'Whether the practice of surgeons was given sufficient weight by trial judge' 'Whether failure to warn was a cause of injuries suffered by patient' 'Whether pre-operative condition should be taken into account in assessing damages']

Ratio Decidendi

Surgeon was not negligent in performing the surgery nor in omitting further pre-operative gastroscopy, but was negligent in failing to provide adequate warnings about material risks (including gastroparesis). The failure to warn materially contributed to the injury because, if properly warned, the patient would have deferred surgery and avoided the immediate injury suffered. Damages were appropriately awarded, and there was no basis to reduce them for the possibility of the injury occurring independently, as that argument was not put properly at trial.

Court Disposition

Appeal and cross-appeal dismissed

Orders

• ['Appeal and cross-appeal dismissed' 'Appellant to pay the costs of the appeal' 'No order as to costs of the cross-appeal' 'Application to amend the notice of appeal dismissed' 'Application to file a notice of contention allowed in part as per paragraphs 2 and 3 of the proposed notice' 'Notice of contention to be...