On 27 November 2020 D extracted the lower right wisdom tooth of C… he damaged her lingual nerve with the result that she suffers constant pain and discomfort in her tongue and mouth. It is not suggested that the extraction was carried out negligently; it is accepted by C that damage to the lingual nerve was a risk of the procedure. However, it is alleged that the risks were not properly explained to her, and she was not told about a coronectomy (removal of the crown) which would have been a suitable and lower risk alternative. It is alleged therefore that she did not give informed consent to the extraction. She alleges that if the risks and alternative treatment had been properly explained, she would have undergone a coronectomy, and the damage to the nerve would have been avoided. In the alternative it is alleged that she would not have undergone the extraction on that day. [1]
D denies negligence and argues in the alternative that, even presented with additional information as to the risks and coronectomy, C would have undergone the same procedure on the same day and suffered the injury in any event. [2]
D was in breach of duty in that he failed to (a) provide the Guidance Note; (b) provide a meaningful opportunity to ask questions and discuss the procedure; (c) explain the material risks, specifically (i) that there was an increased risk of injury to the lingual nerve, (ii) that there was a high risk of injury to the IAN, and (iii) and that (whether or not there was a high risk to the IAN) this would be a high risk extraction within the meaning of the consent form. He further failed (d) to explain that a coronectomy would be a reasonable alternative procedure with a lower risk of nerve injury. [154]
but for D’s breaches, C would not have undergone an extraction at all and would have requested a coronectomy… she would have avoided all nerve injury. [155]
In the alternative, if C had been properly advised about the material risk of nerve damage (which risk eventuated), she would at the very least have deferred her surgery. On that basis, Chester applies and causation is established. [156]
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