What happened
The patient underwent lumbar fusion in 2004 for severe and persistent back pain and developed bilateral femoral neurapraxia associated with prolonged prone positioning. The surgeon had not warned of that risk, but the trial judge found the patient’s pre-operative condition was so serious that he would still have proceeded if warned. The operation also carried a distinct risk of catastrophic paralysis, which did not materialise.
The issues
The central question was whether causation under s 5D of the Civil Liability Act 2002 (NSW) could be established where the patient would have accepted the risk that materialised but might have refused surgery if warned of a different risk that did not materialise. A further issue was whether the appeal could be resolved despite the trial judge not deciding whether the paralysis warning was given or what the patient would have done if fully warned.
The court's decision
By majority, Allsop P and Basten JA dismissed the appeal with costs. They treated the two risks as distinct and concluded that liability should not extend to neurapraxia where the patient would have accepted that risk, even assuming he would have declined surgery if warned of the separate paralysis risk. Beazley JA dissented and would have remitted the matter for rehearing because the combined warning could have affected the decision to undergo surgery.
Understanding the figures
No damages were awarded. AUD 350,000 was an agreed contingent assessment payable only if liability were established; the claim was dismissed.
What this case shows
The case illustrates that a simple “but for the missing warning, the operation would not have occurred” argument may be insufficient in medical warning cases; the injury must also fall appropriately within the liability protected by the warning duty. The High Court later unanimously dismissed the further appeal in Wallace v Kam [2013] HCA 19, confirming that the patient was not entitled to compensation for the materialisation of a risk he was willing to accept.
Why another case may differ
This was not a negligent-performance case; it concerned warnings about distinct risks and causation under s 5D. The result does not mean that every multiple-risk case will be decided the same way, because the medical relationship between risks, the warning actually given and evidence of the patient’s likely choice may differ. The AUD 350,000 figure agreed at trial was contingent quantum if the patient succeeded, not an award.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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