O'BRIEN v WHEELER [1997] NSWCA 236

O'BRIEN v WHEELER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and STEIN JJA 9 May 1997, 23 May 1997

[1997] NSWCA 236

Negligence — medical practitioner — whether failure to warn of risks involved in tattoo removal operation — whether evidence of Causation

The appellant, a specialist plastic surgeon, operated on the respondent to remove a tattoo in 1986. Following the operation, the wound became infected, with the result that the respondent was left with an ugly discoloured scar. The respondent brought proceedings in negligence in the District Court and obtained a verdict against the appellant on the basis of the appellant's failure to warn of the risks involved in the operation.

On appeal, the appellant argued that a case of negligence had not been made out on the basis of no evidence to make a finding of causation.

Held, appeal allowed:

The plaintiff had failed to prove that she would not have undertaken the operation had the appropriate warning been given. Accordingly, the trial judge's finding of negligence on the part of the appellant medical practitioner could not be sustained in the absence of any evidence as to causation.

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; applied. Bustos v Hair Transplant Pty Ltd, NSWCA, unrep, 15 April 1997; referred to.

Mason P In about 1962, when she was 15, the respondent had the words "TI love Ray" tattooed on her left hip. By 1985 she was concerned about the effect the tattoo might have upon her children. She was referred by a general practitioner to the appellant who was a specialist plastic surgeon practising in Newcastle.

On 18 February 1986 the respondent consulted the appellant at his rooms in Newcastle. He described the technique of tattoo removal known as a flap procedure being a procedure carried out under local anaesthetic. The respondent returned on 5 March 1986 to have the procedure carried out by the doctor with the assistance of a nursing sister. The respondent returned home that day and convalesced at home for the next 9 or 10 days. She was in considerable pain and discomfort, which the trial judge held to be a normal consequence of this procedure.