Medical Negligence: Duty to Warn of Risk in Spinal Surgery

Wallace v Kam (2013) 250 CLR 375¹

COURT: High Court of Australia (French CJ, Crennan, Kiefel, Gageler, Keane JJ).

PARTIES: Wallace (Appellant), Dr Kam (Respondent).

PROCEDURAL HISTORY: On appeal from the NSW Court of Appeal.

In the Supreme Court of NSW, Wallace sued Dr Kam for negligence, seeking damages for neurapraxia sustained after spinal surgery.² At trial, Wallace claimed Dr Kam failed to warn of all material risks.³ The claim was dismissed by Harrison J, finding Dr Kam negligently failed to warn Wallace of the risk of neurapraxia, but also, that Wallace would have chosen to undergo the surgery even if warned of the risk of neurapraxia.⁴
Wallace’s appeal to the NSW Court of Appeal was dismissed by a majority (Allsop P, Beazley JA, Basten JA diss).⁵ Wallace argued that the Supreme Court erred in holding that the legal cause of neurapraxia could not be the failure to warn of the risk of paralysis.⁶ The Court of Appeal found Dr Kam was not liable for Wallace’s neurapraxia.⁷ Wallace appealed (special leave) to the High Court.⁸

FACTS:

Neurosurgeon Dr Kam performed a surgical procedure on Wallace to treat a lumbar spine condition.⁹
One surgical risk was temporary nerve damage in Wallace’s thighs (‘bilateral femoral neurapraxia’), from lying face down on the operating table for an extended time.¹⁰ The second risk was a 5% chance of permanent paralysis.¹¹
The surgery did not improve the condition of Wallace’s lumbar spine.¹² The first risk materialised with Wallace sustaining neurapraxia which left him in severe pain for some time.¹³ The second risk, paralysis, did not.¹⁴

ISSUES:

Whether the failure to warn of the risk of paralysis could be deemed the legal cause of the neurapraxia suffered by the appellant, given that the appellant would have chosen to undergo the surgical procedure had he been warned only of the risk of neurapraxia — is it therefore appropriate to extend the scope of Dr Kam’s liability to extend to Wallace’s physical injury in fact sustained?

COMMON LAW: DUTY TO WARN OF MATERIAL RISKS

The High Court applied Rogers v Whitaker (1992) 175 CLR 479,¹⁵ where the duty of a medical practitioner is to inform the patient of “material risks” of physical injury inherent of the proposed procedure, and the common law right of the patient to choose whether or not they then proceed with that procedure:¹⁶

The common law duty of a medical practitioner to a patient is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment.¹⁷ A component of that single comprehensive duty is ordinarily to warn the patient of “material risks” of physical injury inherent in a proposed treatment.¹⁸ A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment.¹⁹

The component of the duty of a medical practitioner that ordinarily requires the medical practitioner to inform the patient of material risks of physical injury inherent in a proposed treatment is founded on the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. In imposing that component of the duty, the common law recognises not only the right of the patient to choose but the need for the patient to be adequately informed in order to be able to make that choice rationally. The policy underlying the imposition of that component of the duty is to equip the patient with information relevant to the choice that is the patient’s to make.²⁰

The Court, at [36], the underlying policy of the law is to protect the patient from the occurrence of injury the risk of which is unacceptable to the patient:²¹

The duty of a medical practitioner to warn the patient of material risks inherent in a proposed treatment is imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. However, the policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning is neither to protect that right to choose nor to protect the patient from exposure to all unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. It is appropriate that the scope of liability for breach of the duty reflect that underlying policy.²²

DECISION:

The High Court unanimously dismissed the appeal from the NSW Court of Appeal, holding that even if Dr Kam failed to warn his patient, Wallace, of all the material risks inherent in the surgical procedure, that failure was not the “legal cause” of the physical injury suffered by Wallace.²³ The Court at [40]:

The distinct nature of the risks of neurapraxia and paralysis, and the willingness of Mr Wallace to accept the risk of neurapraxia, therefore combine to support the shorthand holding of Harrison J that any failure of Dr Kam to warn Mr Wallace of the risk of paralysis could not be the “legal cause” of the neurapraxia that materialised. ²⁴

It was not appropriate for Dr Kam’s liability to extend to Wallace’s physical injury, in the circumstances he would have chosen to proceed with the procedure, even if warned of the risk of neurpraxia.²⁵ At [39]:

Dr Kam is not liable to Mr Wallace for impairment of Mr Wallace’s right to choose whether or not to undergo the surgical procedure and is not liable to Mr Wallace for exposing him to an unacceptable risk of catastrophic paralysis. He can be liable, if at all, for the neurapraxia Mr Wallace sustained. As both Allsop P and Basten JA pointed out,²⁶ the position of Mr Wallace in respect of the neurapraxia when considered for the purposes of causation is in principle no different from what his position would have been had Dr Kam properly warned him of the risk of neurapraxia and had he made an express choice to proceed with the surgical procedure in light of that warning.²⁷

The High Court also held that Wallace was not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept: at [40].²⁸

ORDER:

Appeal dismissed with costs.²⁹

FOOTNOTES:

Wallace v Kam (2013) 250 CLR 375 (‘Wallace’). ↩︎
Wallace v Ramsay Health Care Ltd [2010] NSWSC 518 (Harrison J). ↩︎
Ibid. ↩︎
Wallace (n 1) [3]. ↩︎
Wallace v Kam [2012] NSWCA 82; Aust Torts Reports ¶82–101. ↩︎
Wallace (n 1) [4]. ↩︎
See ibid (n 5). ↩︎
High Court of Australia, Wallace v Kam [2013] HCA 19, ‘Judgement Summaries’ (Web Page, 6 June 2025) <www.hcourt.gov.au>. ↩︎
Wallace (n 1) [1]. Wallace suffered bilateral femoral neurapraxia following posterior lumbar interbody fusion. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Rogers v Whitaker (1992) 175 CLR 479, 489 (‘Rogers‘). ↩︎
Wallace (n 1) [8]. ↩︎
Rogers (n 15). ↩︎
Ibid 490; Rosenberg v Percival (2001) 205 CLR 434, 453 [61]. ↩︎
Rogers (n 15) 490. ↩︎
Ibid (n 15) 486, 488–490. ↩︎
Wallace (n 1) [36]. ↩︎
Ibid. ↩︎
High Court of Australia (n 8). ↩︎
Wallace (n 1) [40]. ↩︎
Ibid [39]–[40]. ↩︎
High Court of Australia (n 5) 66, 049 [26], 66, 071 [174]. ↩︎
Wallace (n 1) [40]. ↩︎
Ibid. ↩︎
Ibid. ↩︎