The High Court has dismissed a medical negligence case against a surgeon, in a decision that provides certainty to the insurance industry.

The case concerned a patient who underwent surgery without being warned of two risks associated with the procedure.

Ian Wallace argued that if neurosurgeon Andrew Kam had told him about the risks he would not have had the surgery.

But although he suffered the effects of one risk, he would still have undergone the surgery if he had known about it, the court says.

Because the second risk did not eventuate, there could be no failure to warn of an injury that did not happen.

Insurers will take comfort from the ruling, which confirms a long-held position in the US that recovery in “failure to warn” cases is limited to undisclosed risks that lead to an injury, according to DLA Piper partner Mark Williams.

“Clear, unanimous decisions like this always provide certainty to the insurance industry,” he told insuranceNEWS.com.au.

“Medical indemnity premiums remain stable and affordable. Doctors remain prepared to practise in what might otherwise be viewed as high-legal-risk specialties.”

Mr Wallace sued Dr Kam after an unsuccessful operation for a lumbar spine condition.

There were two risks associated with the surgery: severe pain from temporary nerve damage and a 5% risk of permanent paralysis.

Mr Wallace suffered the severe pain for a time, but not paralysis.

He appealed to the High Court after the NSW Court of Appeal dismissed his claim, finding that although Dr Kam negligently failed to warn of the nerve damage, Mr Wallace would still have undergone the procedure had he known.

The five High Court judges have upheld that decision, ruling Mr Wallace’s right to choose whether to have the operation was not impaired.

Mr Wallace should not be compensated for the pain from nerve damage because that was a risk he was prepared to accept, the court says.