Moving on from Rogers v Whitaker : A time to re-define the harm?

Dr Bernadette Richards, Law School

University of Adelaide 2

Wallace v Kam [2013] HCA 19Dr Kam is not liable to Mr Wallace for impairment of Mr Wallace’s right to choose whether or not to undergo the surgical procedure…He is not to be compensated for the occurrence of physical injury the risk of which he was prepared to accept. [39] (French CJ, Crennan, Kiefel, Gageler and Keane JJ)

University of Adelaide 3

Some comments from Rogers v Whitaker

• Nothing is to be gained by reiterating such expressions as “the patient’s right to self-determination”

• Oft-used and somewhat amorphous phrase “informed consent”

• Term informed consent is apt to mislead• This is not a question of consent

University of Adelaide 4

Two concepts combined

• Information (standard)

• Consent (causation)

• “A patient has a right to determine what shall be done with his own body“(Kirby J in Rosenberg v Percival (2001) 205 CLR 434, [142] referring to Schloendorff v Society of New York Hospital 105 NE 92 at 93 (1914))

University of Adelaide 5

Wallace v Kam [2013] HCA 19• Sought treatment for condition of his lumbar

spine• Dr Kam performed surgery with two inherent

risks:1. bilateral femoral neurapraxia, and2. 1/20 chance of permanent and catastrophic paralysis.

• The first risk materialised• Surgery was unsuccessful• Claimed negligence on basis of no warning of

either risk

University of Adelaide 6

Wallace v Kam [2013] HCA 19• Harrison J:

– The legal cause of neurapraxia could not be the failure to warn of the risk of paralysis

• Court of Appeal ( Allsop P, Beazley and Basten JJA)– Divided in answering that question

• HCA (French CJ, Crennan, Kiefel, Gageler and Keane JJ): Preferred the majority approach that accorded with the original decision.

University of Adelaide 7

Wallace v Kam [2013] HCA 19• Referred us back to Rogers v Whitaker and the

test for materiality.• Rationale: ‘Making choice and empowering the

patient to avoid a particular injury, the risk of which [the] patient is not prepared to accept’ [8] (reference to Chester v Ashfar)

• Emphasised the significance of causation• Inevitably involves two questions:

– Referring to historical fact– Normative enquiry (s5D of NSW CLA, s34 of SA CLA)

University of Adelaide 8

Wallace v Kam [2013] HCA 19• Factual enquiry, 3 possible outcomes:

1. Would have undergone the surgery even if warned (factual causation fails)

2. Would not have undergone treatment at all if warned (factual causation is not problematic)

3. Would have undergone the surgery at a later date (Chappel v Hart situation) ([18] – [20])

• Legislation explicitly calls for policy consideration: ‘whether or not and why’ liability should be attached

• (s5d(4) CLA (NSW), s34(3) CLA (SA)

University of Adelaide 9

Wallace v Kam [2013] HCA 19• The critical question, as the Court of Appeal

recognised and on which it divided, is the scope of liability question posed by s 5D(1)(b). Is it appropriate for the scope of 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 had he been warned only of the risk that in fact materialised? [30]

University of Adelaide 10

Wallace v Kam [2013] HCA 19• 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. [36]

University of Adelaide 11

Wallace v Kam [2013] HCA 19Liability should not extend to harm from risks that the patient was willing to undergo

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• 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 a patient to choose whether or not to undergo a proposed treatment [36]

• 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 [36]

University of Adelaide 13

Wallace v Kam [2012] NSWCA 82• Belief that there were no negative aspects to the

surgery• Lack of understanding of the risky nature of the

procedure

• Of significance: the interrelationship between the nature and scope of the duty and causation

• Broad view of the nature of the duty to warn

University of Adelaide 14

• Was this a meaningful choice???