What is tort law?

Tort law is concerned with the civil responsibilities that people owe to one another, and provides remedies in the case of breach of those responsibilities. In order for tort law to provide a remedy in the case of such a breach, a plaintiff must establish that the breach caused some injury. These are, respectively, the elements of breach and causation.

Failure to warn

Establishing these elements is particularly complex in the context of cases concerning a failure to warn. Such failures are not limited to failures by medical practitioners, but include failures on the part of government authorities, emergency services or private companies (such as electricity providers) to warn of impending danger or disaster, such as a fire. Liability for that failure to warn will generally arise where, had a warning been given, a person would have taken action to protect themselves or their property against injury or damage, and in taking that action would indeed have avoided such injury or damage.

Doctor’s duty to warn

In the medical context, a failure to warn case arises in the context of a failure to warn of a ‘material risk’. A plaintiff is entitled to recover compensation in this context if they can establish the following elements:

  1. That they were not warned of a material risk;
  2. That the material risk of which they were not warned eventuated; and,
  3. That if they had been warned of the material risk, they would not have pursued the particular course of treatment which gave rise to the risk.

A famous case

In the now famous case of Rogers v Whitaker (1992) 175 CLR 479, the High Court of Australia found that a material risk is one where:

A reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

The case of Jambrovic v Day [2017] NSWSC 1468 is a recent decision of particular interest in the context of a medical practitioner’s duty to warn. In this case, the plaintiff, Mr Jambrovic, elected to undergo surgery at the hands of the defendant, a neurosurgeon, which the defendant had never previously performed. The surgical procedure failed and the plaintiff suffered catastrophic complications.

Failure to disclose

The Court found that it was unreasonable for the defendant to have failed to disclose to the plaintiff that he had not previously performed the procedure that the plaintiff elected to undergo. At [86] of the Court’s judgment, it found that:

The experts’ view was that Dr Day should have told Mr and Mrs Jambrovic about his lack of experience in the procedure which he recommended. What Dr Day should also undoubtedly have disclosed was that he had neither the available training nor observed the difficult procedure he recommended.

Breach of duty of care

As a result of this failure it was determined that the defendant had breached his duty of care to the plaintiff. At [131] of the Court’s judgment, the Court found that the defendant:

[B]reached his duty to Mr Jambrovic … in failing to inform Mr Jambrovic of his lack of experience and training in that procedure.

In respect of the element of causation, the Court found that it was ‘improbable’ that the plaintiff would have proceeded to undergo surgery at the hands of the defendant, or at all, if he had been properly advised of the comparable risks of the surgery and the available options for conservative treatment. In finding that the element of causation was established, the Court found as follows:

[C]hoosing surgery rather than the conservative option, which involved treating the oedema and headaches, while continuing to observe the tumour, would have been entirely irrational. On the evidence Mr Jambrovic was not an irrational man.

As a result of the Court’s findings, the plaintiff was entitled to recover compensation for the defendant’s negligence.

Get in touch with us

This case, notwithstanding the plaintiff’s success, demonstrates the complexity of cases involving a failure to warn. At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law. If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered an adverse result as a result of a medical practitioner’s failure to warn you of a material risk, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.