McKELLAR v BLAKE [1998] NSWCA 153

McKELLAR v BLAKE [1998] NSWCA 153

The trial judge failed to make a finding that, on the balance of probabilities, the respondent would not have undergone the operation if adequately warned. The finding that her decision 'might have been different' does not establish the necessary causal link. Therefore, the verdict for the respondent cannot stand.

Parties
Appellant: McKellar; Respondent: Blake
Jurisdiction
Australia
Judgment Date
30 October 1998
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed; verdict and judgment for respondent set aside; judgment entered for the appellant.
Legal Topics
Failure to Warn, Informed Consent, Causation in Medical Negligence
Negligence Medical Law Failure to Warn Informed Consent Causation in Medical Negligence

Case Brief

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Parties

McKellar

Appellant

Blake

Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the trial judge made a sufficient finding to establish causation between the failure to adequately warn the patient and the resultant condition
  2. 2 Whether the respondent would have undergone the operation if fully informed of the risks

Ratio Decidendi

The trial judge failed to make a finding that, on the balance of probabilities, the respondent would not have undergone the operation if adequately warned. The finding that her decision 'might have been different' does not establish the necessary causal link. Therefore, the verdict for the respondent cannot stand.

Court Disposition

Appeal allowed; verdict and judgment for respondent set aside; judgment entered for the appellant.

Orders

  • The appeal is allowed.
  • The verdict and judgment of the District Court are set aside and judgment entered for the appellant.