Wallace v Kam: Normative causation issues

Today the High Court in Wallace v Kam [2013] HCA 19 unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that even if the respondent, Dr Kam, had failed to warn the appellant, his patient Mr Wallace, of all the material risks inherent in a surgical procedure, that failure did not cause the injury suffered by Mr Wallace as a result of one of those risks eventuating.

As explained in the case summary, the High Court held that it was not appropriate for Dr Kam’s liability to extend to the physical injury in fact sustained by Mr Wallace, in circumstances where Mr Wallace would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk that in fact materialised. The policy underlying the requirement that a medical practitioner exercise reasonable care and skill in warning a patient of material risks inherent in proposed treatment is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. The High Court held that Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.

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