FACTS Wanda has been deaf in her left ear since she suffered an injury as a 5-year-old child. Despite her deafness in one ear, Wanda has led a normal life until the age of 20 apart from often hearing an annoying, high-pitched ringing in her left ear. Wanda consults Dr Tony Stark, an otolaryngologist who specialises in surgery for conditions of the ear, nose and throat. Dr Stark advises Wanda that an operation on her left ear may reduce the ringing sounds and could restore some hearing in her left ear. Wanda asked lots of questions about complications from the operation but does not specifically ask whether the operation to her left ear could affect her hearing in her right ear. Dr Stark did not warn Wanda of any special risks associated with the left ear operation for her right ear. Wanda decides to go ahead with the surgery.

Dr Stark operates on Wanda's left ear. The operation was carried out with all due care and skill by Dr Stark. Dr Stark operated in a manner that was accepted in Australia by a significant number of respected practitioners in the field as competent professional practice in the circumstances.

The operation does not reduce the ringing sound or improve Wanda's hearing in her left ear. The operation caused Wanda to develop a rare condition called sympathetic hearing loss. The risk of sympathetic hearing loss is low, around one in 15,000 and many cases do not lead to complete deafness. The sympathetic hearing loss eventually led to Wanda also becoming deaf in her right ear. Wanda is now completely deaf in both ears.

Wanda believes that Dr Stark was negligent not to warn her of the risk of sympathetic hearing loss in her right ear. Wanda states that if she had known about the possibility of sympathetic hearing loss and becoming permanently deaf in both ears, she would not have gone ahead with the operation on her left ear at all.

QUESTION Wanda now wants to sue Dr Stark for negligence. Is Dr Stark liable in negligence to Wanda? Consider each element and any defences.

(Do not discuss the ACL or breach of contract or other causes of action. You must focus only on Wanda's possible claim in negligence.)