The then 58-year-old patient attended upon the vascular surgeon in April 2014 on referral from her GP regarding her varicose veins. The patient’s friend had suffered a blood clot caused by varicose veins which had broken apart and resulted in a serious condition requiring hospitalisation.

In July 2014, the patient underwent varicose vein stripping surgery and later developed right hip and buttock pain requiring ongoing therapy and pain management. Expert evidence established that the gluteal injury which materialised was not a known risk of this kind of vascular surgery.  Instead, the patient claimed that she would not have had surgery if she had been advised that there were no immediate risks to her health if she did not proceed.

The surgeon had no actual recollection of the pre-operative consultation, but relied on his usual practice and his letter to the referring GP. His usual practice included finding out why the patient attended, obtaining a history, identifying symptoms, explaining the condition with a diagram, examining the patient and then discussing surgery (if appropriate) and providing the necessary information. The letter sent to the GP set out that (a) the patient was prompted to consult due to her friend’s complication (b) she was currently asymptomatic (c) she was overweight (d) the surgeon had explained the aetiology of varicose veins and the associated problems using a diagram as well as the complications of surgery including bruising, infection, haematoma and nerve damage.

The trial judge noted that, had the patient been inquiring about whether she faced a similar risk to her friend, then a failure to address those issues may establish a breach of duty. However, His Honour accepted on all the evidence that it was a “mere trigger” to seek advice rather than a strict “inquiry”. The trial judge was satisfied the patient understood it was a very slow pathological disease and that any surgery was purely elective (given the lack of symptoms or immediate risk), and rejected any claim that the patient was under some misconception of the degree of risk if she did not proceed.

Despite no findings of breach being made, His Honour went on to consider causation in the circumstance where there was no probable mechanism by which the patient’s right hip and buttock pain was caused. Expert evidence indicated that the close temporal connection between the operation and the onset of pain made it more likely a consequence of the operation or post-operative care. However, His Honour accepted that, in the absence of any identifiable physical event causing the issue, it was more likely than not to have manifested itself by reason of events in the patient’s ordinary life in any event. The injury was sufficient for factual causation, but would require a substantial discount in damages.

The plaintiff's claim was therefore dismissed.

To read the full decision of Spence v Neilson [2018] ACTSC 273, click here.