A recent High Court decision of Wallace v Kam [2013] HCA 19 considered whether the negligent failure to warn of the risks of a medical procedure gave rise to a compensable injury.


The plaintiff sought treatment from the defendant neurosurgeon, and subsequently underwent a surgical procedure on his lumbar spine. The surgery had inherent risks, being damage to nerves within the thighs, and a one in twenty chance of permanent catastrophic paralysis, but the defendant failed to warn the Plaintiff of either risk. The plaintiff suffered damage to the nerves within his thighs as a result of the surgery and issued proceedings claiming damages in the Supreme Court of New South Wales alleging he would not have undergone the surgery had he been warned of either risk. At first instance the claim was dismissed as it was found the defendant negligently failed to warn the plaintiff of the risks, but the plaintiff would have chosen to undergo the surgery even if he had been warned of the risk. The finding was upheld on appeal and the plaintiff appealed to the High Court.


The High Court dismissed the appeal and found:

  • Factual causation is established where the plaintiff proves, on the balance of probabilities, he or she has sustained a physical injury as a result of medical treatment which they would not have sustained had they been warned of the material risks.
  • The defendant breached the common law duty imposed on medical practitioners by failing to exercise reasonable care and skill in warning the plaintiff of the material risks associated with the surgery.
  • Liability can be attributed to a medical practitioner where they fail to warn a patient of one of several contributing factors, the combination of which increase the risk of physical injury occurring, but in this case each risk was a distinct physical injury and the plaintiff cannot be compensated for the occurrence of a risk which he was prepared to accept.


Even in circumstances where a medical practitioner clearly breaches their duty to warn a patient of material risks, the medical practitioner will not be liable for a physical injury occurring where that injury is a distinct injury which the patient would have been prepared to accept in the event the patient had been properly warned.