Wallace v Kam [2013] HCA 19

Wallace v Kam [2013] HCA 19

A medical practitioner who fails to warn a patient of multiple material risks is not liable for the materialisation of a risk which the patient would have accepted had they been properly warned, even if, had all risks been disclosed, the patient would not have undergone the procedure at all. Liability does not...

Source-derived case information.

Parties
Appellant: Ian Wallace; Respondent: Dr Andrew Kam
Jurisdiction
Australia
Judgment Date
08 May 2013
Procedural Posture
Appeal / High Court Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
Causation, Duty to Warn, Scope of Liability, Medical Negligence
Negligence Medical Law Causation Duty to Warn Scope of Liability Medical Negligence

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Parties

Ian Wallace

Appellant

Dr Andrew Kam

Respondent

Procedural Posture

Appeal / High Court Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether failure to warn a patient of two distinct material risks inherent in a surgical procedure establishes liability for an injury arising from one risk, when the patient would have accepted the risk of injury actually sustained if properly warned.

Ratio Decidendi

A medical practitioner who fails to warn a patient of multiple material risks is not liable for the materialisation of a risk which the patient would have accepted had they been properly warned, even if, had all risks been disclosed, the patient would not have undergone the procedure at all. Liability does not extend to the occurrence of an injury the risk of which the patient would have accepted.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.