Australia: Health Alert - 7 May 2012

Last Updated: 9 May 2012
Article by Anthony Willis


New South Wales

Wallace v Kam [2012] NSWCA 82

Mr Wallace (the appellant) suffered bilateral femoral neurapraxia after undergoing fusion in his lumbar spine by neurosurgeon Mr Kam (the respondent). The appellant sought damages for the respondent's failure to warn of the material risks of the operation, namely, the risk of neurapraxia and a 5% risk of paralysis.

The trial judge held that the appellant did not establish that he would have declined the treatment if warned of the neurapraxia risk. The risk of paralysis did not materialise and was therefore irrelevant.

The appellant appealed to the Court of Appeal, arguing that he would not have agreed to the treatment had he known of the risk of paralysis.

The Civil Liability Act 2002 (NSW) required proof of factual causation and scope of liability (section 5D(1)).

Allsop P held that the trial judge did not undertake a full factual analysis. The appellant was entitled to consider all risks in his decision. Basten JA disagreed and cited Rosenberg v Percival that "the risk must be related in a physical sense to the injury". Therefore there was no factual causation. However, both judges agreed that the scope of liability did not extend in this case because the risks were distinct to each other.

Beazley JA (dissenting) held that an undisclosed risk, which is one of a "cluster of risks", does not need to materialise to establish causation. If the plaintiff would have refused treatment if warned of the risk, the scope of liability could extend.

The appeal was dismissed.



Therapeutic Goods (Listing) Notice 2012 (No. 2) - F2012L00991 " as made

Private Health Insurance (Prostheses) Amendment Rules 2012 (No. 2) - F2012L00989 " as made

Therapeutic Goods (Listing) Notice 2012 (No. 1) - F2012L00990 " as made

Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service) Amendment Determination 2012 (No. 1) - F2012L00959 " as made

Health Insurance (Patient Episode Initiation) Revocation Determination 2012 -F2012L00958 " as made

Health Insurance (Poly Implant Prosthese) Amendment Determination 2012 (No. 2) - F2012L00957 " as made

National Health (Highly specialised drugs program for hospitals) Special Arrangement Amendment Instrument 2012 (No. 3) (No. PB 31 of 2012) - F2012L00952 " PB 31 of 2012 as made

National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2012 (No. 3) (No. PB 32 of 2012) - F2012L00951 " PB 32 of 2012 as made

Northern Territory

Hospital Networks Governing Councils Act 2012 - Assent: 27 April 2012

Medicines, Poisons and Therapeutic Goods Act 2012 - Assent: 27 April 2012


Australia. Department of Health & Ageing

Media releases

Private Health Insurance Circulars

Australian Competition & Consumer Commission

3 May 2012 - ACCC tackles Homeopathy Plus! Whooping Cough claims - Homeopathy Plus! Pty Ltd has removed representations from its website that the Australian Competi...- Release # NR 086/12

Australia. Therapeutic Goods Administration

Orphan drugs - Added ivacaftor to the list of designated orphan drugs.

Proposed advisory statements for medicines - fexofenadine and loperamide - The TGA is seeking comments from interested parties on the proposed advisory statements for fexofenadine and loperamide. Closing date: 4 June 2012.

Prominent Scientist and Regulator appointed new Head of TGA - Dr John Skerritt has been appointed the new national manager of the TGA.

Prescription medicine BPR update newsletter, April 2012 - April 2012 issue of the Prescription Medicines Business Process Review newsletter.

Labelling and packaging review - Update regarding the labelling and packaging review.

Australian Institute of Health & Welfare

1 May 2012 - Cervical screening in Australia 2009-2010 ( media release)

30 April 2012 - Australian hospital statistics 2010-11 - Australia's hospitals 2010-11 at a glance | online - media release

Australian Capital Territory. Department of Health

Media releases

2 May 2012 - Support for energy plant at Canberra Hospital - Chief Minister and Minister for Health, Katy Gallagher MLA today announced the first stage of consultation on planning for Canberra Hospital's future energy requirements has found broad support for power generation on site. - Read More

Canberra Hospital Energy Sustainability - You are invited to attend a follow up consultation session in the Canberra Hospital Auditorium at 6pm Wednesday 2 May that will provide feedback on the information that has been received from the community and resulting outcomes from the public consultation period. Canberra Hospital Energy Sustainability

New South Wales. Ministry of Health

Media release

Policy directives

Information bulletins

New South Wales. Health Statistics NSW

23 April 2012 - Intentional self-harm hospitalisations by sex

23 April 2012 - Fall-related injury hospitalisations by LHD and sex

Northern Territory. Budget 2012

Health Fact Sheet - and full budget papers

Queensland. Department of Health

South Australia. Department of Health

Media releases

Tasmania. Department of Health & Human Services

2 May 2012 - Campaign debunks gambling myths

Victoria. Budget

The Treasurer handed down the 2011-12 State Budget on 3 May 2012, allocating new funding to a range of policy initiatives. For an outline of Health initiatives, along with details of their costs, download the State Budget Media Releases below.

For further information visit the Victorian State Budget website.

Department of Health Budget Media Releases 2012-13

Minister Davis

Minister Wooldridge

Budget to increase access to mental health services

Western Australia. Department of Health

Media releases

New Zealand. Ministry of Health

3 May 2012 - 2012/13 purchasing intentions - MPDS 2012/13 Purchasing Intentions informs Maori health and disability providers and national Maori organisations what the priorities are. Read more

1 May 2012 - Mortality and Demographic Data 2009 - Annual statistical publication that collates and analyses information on the underlying causes of all deaths registered in New Zealand. Read more

United Kingdom. Department of Health

Have your say on long term conditions strategy - The Department of Health is asking people to comment on what should be covered by the cross-government long term conditions strategy. Read more --> - Have your say on long term conditions strategy

Don Redding blogs on importance of patient voices for long-term conditions strategy - Don Redding, Director of Policy at National Voices has written a blog for the Department of Health's new long term conditions strategy site. Read more --> – Don Redding blogs on importance of patient voices for long term conditions strategy

Couple talk about living and caring with long term conditions - Di Hopkins and Jeff Hopkins have both written blogs for the Department of Health's new long term conditions strategy site. Read more --> – Couple talk about living and caring with long term conditions

PM's challenge on dementia – driving improvements in health and care - In this video blog Professor Alistair Burns, National Clinical Director for Dementia talks about the five areas thought to be particularly important in driving improvements in health and care. Read more --> – PM's challenge on dementia – driving improvements in health and care

Non-commercial partners needed to support healthy pregnancy marketing campaign - The Department of Health is developing the next phase of the Start4Life social marketing programme with a view to launching a new campaign later this year. Read more --> – Non-commercial partners needed to support healthy pregnancy marketing campaign

300 former child migrants reunited with their families - Almost 300 former child migrants have been reunited with their families in the UK thanks to the Ł6m Family Restoration Fund. Read more --> – 300 former child migrants reunited with their families

More stakeholders meet to discuss long term conditions strategy - On 26 April the Department of Health met with another group of stakeholders to gather views on the long term conditions strategy it is drafting. Read more --> – More stakeholders meet to discuss long term conditions strategy

Canada. Health Canada

3 May 2012 - Harper Government Announces Funding to Support Brain Research

Australian Medical Association

AMA Annual Report 2011 - This publication reports on the operations of the Australian Medical Association for the year ended 31 December 2011.

Submission: Elective surgery urgency categories - national definitions - The AMA submission to the Australian Institute of Health and Welfare and the Royal Australasian College of Surgeons highlights that: urgency categories should facilitate patients being prioritised for surgery fairly and equitably; category definitions should take account of all the factors relevant to a patient's requirement for surgery; the primary driver for surgeons to categorise elective surgery will always be clinical urgency; and elective surgery waiting time should be counted from the time the patient is referred by a general practitioner to a surgeon for assessment until the time surgery is performed. Read more

AMA welcomes further steps towards a National Disability Insurance Scheme - The AMA welcomes the Prime Minister's announcement that the first stage of the National Disability Insurance Scheme will commence from July next year. AMA President, Dr Steve Hambleton said today that the AMA has been pushing for a national long-term care scheme for the severely disabled since 2003. Read more

Canadian Medical Association

3 May 2012 - Major expansion of CMA's online clinical tools in works

30 April 2012 - Interest in MD leadership growing as conference attracts another sold-out crowd

26 April 2012 - New credential certifying MDs' leadership skills proving popular

23 April 2012 - Nunavut an "eye-opener" as CMA tackles health care's social issues

19 April 2012 - New institute will move MD health issues to centre stage

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