McKELLAR v BLAKE [1998] NSWCA 153

McKELLAR v BLAKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY JJA and SHEPPARD AJA 7 October 1998, 30 October 1998

[1998] NSWCA 153

NEGLIGENCE — Failure by medical practitioner sufficiently to explain nature of procedure and possible consequences — Procedure for removal of patient's wisdom teeth — Risk of permanent anaesthesia of lower left side of jaw not explained or sufficiently explained — Evidence by plaintiff that she would not have had operation if the possibility of anaesthesia of her mouth had been explained to her — Trial judge's failure to accept that evidence — Trial judge's conclusion that "it is more probable than not that, if she had been fully informed of the facts, her decisionmight have been different" — Whether this a sufficient finding to establish necessary causal link between failure sufficiently to inform and plaintiff's resultant condition.

Chappel v Hart (1998) 156 ALR 517 discussed. Meagher JA I agree with Sheppard AJA. Handley JA I agree with Sheppard AJA.

Sheppard AJA This is an appeal from a judgment of the District Court (Goldring ADCJ) entered as a consequence of a verdict found for the respondent (the plaintiff below) in an action in which he sued the appellant (the defendant) for damages for negligence. The appellant practises as an oral surgeon. The action was based on the alleged failure of the appellant to warn the respondent of the possible consequences of an operation to remove the respondent's wisdom teeth. The operation was performed in October 1991 when the respondent was 19 years old. As a result of the operation, she suffered damage to a nerve or nerves causing the anaesthesia of her lower left lip and jaw. The condition is apparently permanent.

Prior to the operation the respondent had consulted her usual dentist who referred her to an orthodontist. She was advised that her teeth were "rather crowded and were crooked". She believed that the treatment she was undergoing was to do with the straightening of her teeth. The respondent's evidence, so his Honour said, was to the effect that her main concern was with the cosmetic rather than the therapeutic elements of the treatment. Nevertheless, the evidence given by the appellant suggests that, in the appellant's view, there was sound medical or therapeutic reasons why the operation was necessary. His Honour made no express findings about this but the tenor of his judgment suggests that he accepted that this was the case.