Plaintiff consent limiting the scope of negligence?
1. Wallace sued Kam for compensation after Wallace had an operation to relieve the pain caused by his protruding disc. Kam failed to warn Wallace of two risks associated with this surgery: firstly, that Wallace might suffer neurapraxia, a temporary nerve damagethat arises from lying face down on the operating table for an extended period; and, secondly,that Wallace might suffer permanent paralysis. After having the surgery, Wallace sufferedtemporary neurapraxia.
2. The High Court decided that Kam’s actions satisfied factual causation because Kam, as Wallace’s doctor, owed a duty of care to Wallace to warn him of the risks of the surgery. Kam breached this duty of care by not warning him about the two risks.
3. The High Court decided that even though Kam had breached his duty of care to warn Wallace of the risk of neurapraxia, the scope of Kam’s liability did not extend to compensating Wallace for the development of a condition that Wallace was prepared to risk anyway. The High Court held that Kam was not liable to compensate Wallace for his neurapraxia, because it was not reasonable or appropriate for the scope of Kam’s liability to extend to harm that likely would have occurred anyway, even if he had not been negligent. Wallace would not have chosen to undergo the operation if he had been warned of the risk of paralysis, but this is not the harm that he ultimately suffered; the High Court decided that it was not reasonable to hold Kam liable for one type of harm on the basis of an entirely unconnected type of harm – the risks of paralysis and neurapraxia were not connected, and there was no compound risk where one increased the risk of the other.
4. Responses will vary. In relation to deciding scope of liability, the precedent of this case was thescope of the defendant’s liability does not extend to compensating a plaintiff for a risk that the plaintiff would be prepared to accept anyway