5. Negligence
Learning objectives
• describing the elements necessary for a plaintiff to succeed in an action in negligence against a medical practitioner
• identifying and understanding the standard of practice required of a medical practitioner
• explaining the legal requirements in disclosing risk, or warning a patient of risks prior to obtaining a consent
• understanding the issues of causation
• identifying and recognising the types of damages
• identifying the possible defence to a negligence action
• discussing the effect of the doctrine of vicarious liability
• identifying and understanding alternative actions to negligence in a healthcare context.
Introduction
Medical negligence litigation is considered as one of the means by which the quality of healthcare services is improved and maintained. That is, the threat of litigation effectively deters poor behaviour by healthcare professionals, including medical practitioners, and, through the publicity of cases, educates the public and professionals about what is an appropriate standard of care. 1
In the 1960s, law suits brought against health professionals were exceptionally rare and considered by the medical and legal professions as aberrations. Patients who attempted to initiate actions were thought of as ungrateful and would find it almost impossible to engage expert witnesses to support their case. 2 As a consequence, not only were medical defence insurance contributions minimal, but the effect of such litigation was considered trivial and was virtually ignored in relation to public and private healthcare costs and general standards of patient care.
Since the 1970s, however, there have been assertions of a worldwide ‘crisis’ in medical malpractice litigation. Commentators speak of medical malpractice litigation and the financial and social costs associated with it as in the grips of ‘crisis’. 3 A combination of the community perception of a medical malpractice ‘crisis’, the perceived lack of clarity and predictability in personal injury litigation, the amounts in damages awarded to successful litigants and the public liability insurance collapse necessitated intervention and response by the federal government. In 2002, the ministers from the Commonwealth, state and territory governments negotiated to undertake a national review of the law of negligence in Australia: Review of the Law of Negligence (the Ipp Report). As a result of the recommendations arising out of this review, civil liability legislation was introduced in all Australian jurisdictions. 4 As the civil liability legislation is not uniform across the individual Australian states and territories, medical practitioners must familiarise themselves with the legislative provisions in the individual states or territories in which they go to work.
Notwithstanding that within the Australian context negligence law is now an amalgam of case law and legislation, medical negligence litigation has been, and continues to be, credited with bringing about safer practices in the provision of healthcare services. All health professionals involved in the provision of healthcare services are becoming increasingly aware of their legal obligations to their patients and clients. This chapter examines the elements necessary to establish an action in negligence against a medical practitioner.
Negligence
Negligence is the civil action initiated under the law of torts in which medical practitioners and healthcare institutions may become liable if a patient, or client, sustains an injury while in their care. A claim in negligence alleges conduct that may include not only an act, but also an omission to act, which is causally linked to the injury. In relation to civil liability, negligence has been defined in legislation as the ‘failure to exercise reasonable care and skill’,5which may include ‘a breach of a tortious, contractual or statutory duty of care’. 6 For example, in a healthcare context, a patient who is injured or suffers a loss as a result of the acts or omissions of a medical practitioner may bring an action in negligence against the professional and/or their employer, seeking compensation. The basis of the claim is that the conduct of the medical practitioner fell below the standard of care appropriate to the particular circumstances and that this action resulted in damage, which the patient now seeks to have compensated in money. Unlike criminal proceedings, the action seeks to place the injured person (the plaintiff) in the position they would have been in had they not sustained the damage. The consequences of a finding of liability against a medical practitioner and/or the healthcare institution (the defendant) is therefore not considered as a punishment but rather as compensation to the injured party or their relatives. The principle underpinning this form of legal redress is to shift the loss, as far as money is able to do so, from the individual who has sustained the injury or damage to the individual or institution who is held to have caused the loss.
Proof
The person, usually a patient (the plaintiff), bringing the action in negligence must prove every element of the action according to the civil standard of proof, which is on the balance of probabilities to succeed in their claim. To do this, the plaintiff must adduce evidence in the form of documents, testimony from witnesses, or other relevant materials sufficient to satisfy this standard. If the plaintiff is not able to prove any one of the elements necessary to succeed in the negligence action on the balance of probabilities, the action will fail completely. That is, the court must be satisfied that every element of the action has been proven on the balance of probabilities for the plaintiff to succeed in their claim.
Though applied in only exceptional circumstances, the fact that an accident has occurred at all may raise the inference of negligence on the part of the defendant. This is the doctrine of res ipsa loquitur, ‘the thing speaks for itself’, which will only apply when:
• there is no evidence as to how or why the accident occurred;
• the accident is such that it would not occur without negligence; and
• the defendant is proved to have been in control of, or linked to, the situation either personally or vicariously. 7
In Cassidy v Ministry of Health, 8 Lord Denning stated:
If the plaintiff had to prove that some particular doctor or nurse was negligent, he would not be able to do it. But he was not put to that impossible task: he says, ‘I went into the hospital to be cured of two stiff fingers. I have come out with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it, if you can’. I am quite clearly of the opinion that that raises a prima facie case against the hospital authorities … They have nowhere explained how it could happen without negligence. They have busied themselves in saying this or that member of their staff was not negligent. But they have called not a single person to say that the injuries were consistent with due care on the part of all members of their staff. They called some of the people who actually treated the man, namely Dr Fahrni, Dr Ronaldson, and Sister Hall, each of whom protested that he was careful in his part; but they did not call any expert at all, to say that this might happen despite all care. They have not therefore displaced the prima facie case against them and are liable in damages to the plaintiff.
Kennedy and Grubb propose that there are two reasons as to why the res ipsa loquitur doctrine will not usually be available to a plaintiff in a medical case. The first is that there are no certainties in medical treatment. The second is based on significant changes in both medical and legal practices. These changes include an improvement in the way health professionals, including medical practitioners, document patient information and changes to rules of evidence and court rules which facilitate the nature and amount of evidence available to parties involved in litigation. The cumulative effect of both of these factors is that it is more likely that the plaintiff will know, or be able to find out, what happened during his or her period of care or treatment. 9
Elements of a Negligence Action
Negligence has been defined by the courts as:
[T]he omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 10
However, not every injury that occurs while a patient is under the care of a medical practitioner will result from negligence, and not all acts or omissions that result in an injury will be held to be negligent. The courts have acknowledged that where a medical practitioner makes a ‘mere’ error in clinical judgment11 or embarks on procedures which, with hindsight, are recognised as a ‘misadventure’, 12 it will not, in all circumstances, constitute negligence. In such circumstances, the law confronts the practical reality of healthcare delivery in accepting that some injuries are the result of unforeseen circumstances that do not involve fault on the part of the medical practitioner or the institution.
To succeed in a claim in negligence against a medical practitioner therefore, the patient (plaintiff) must be able to establish, on the balance of probabilities all the elements:
• the patient was owed a duty of care by the medical practitioner (defendant)
• that there was a breach of that duty in that the medical practitioner’s conduct fell below the required standard of care
• this conduct caused the damages suffered by the patient
• the loss or damage suffered was reasonably foreseeable. 13
Duty of care
The first element that the plaintiff must prove is that the defendant owed the plaintiff a duty of care. In all but the most unusual circumstances where there is a medical practitioner–patient relationship, there will also be the legally recognised relationship upon which the courts impose a duty of care. 14 This is so, based on the ‘neighbour principle’ enunciated by Lord Atkin in what is now considered the landmark case of Donoghue v Stevenson. 15 In this case, the plaintiff sought compensation for the consequences flowing from drinking the contents of a bottle of ginger beer that contained a decomposing snail. Lord Atkin stated:
You must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 16
Though the facts of this case were specifically concerned with consumer law, it can be seen that the medical practitioner–patient relationship is one which gives rise to a duty of care. The patient is clearly a person whom the medical practitioner can reasonably foresee as likely to be injured if reasonable care is not exercised. In the case involving a medical practitioner, the majority judgment of the High Court of Australia in Rogers v Whitaker held:
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment, it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. 17
The obligation to take ‘reasonable care’ against the risk of harm that is ‘reasonably foreseeable’ has long been considered by the courts. In Swain v Waverley Municipal Council, Gleeson CJ held that:
People do not expect, and are not entitled to expect, to live in a risk free environment. The measure of careful behaviour is reasonableness, not elimination of risk. 18
Reasonable foreseeability
As stated above, there is a requirement that the plaintiff is reasonably foreseeable to the defendant and that there is a reasonable foreseeability of harm. These are questions of fact and remain the basis for a determination of duty of care. The test is objective: was the plaintiff foreseeable as an individual, or member of a class to whom the duty was owed? In the particular circumstances, was the risk that eventuated to the particular plaintiff, or a class of people to which the plaintiff is a member, foreseeable?19 The question for consideration is: ‘What, in all the circumstances and having given the matter close attention, would the reasonable person have foreseen?’ In a case where a patient sues their medical practitioner, to succeed in establishing the existence of the duty of care the patient (plaintiff) must prove that the medical practitioner (defendant) ought to have foreseen that negligence on the part of the medical practitioner could lead to the patient being injured. It is not necessary that the patient establish that the medical practitioner foresaw the damage to the patient as an individual. The element will be satisfied if the patient was a ‘member of a class’ to whom the damage was foreseeable. 20 That is, the medical practitioner–patient relationship is such that the medical practitioner would know the patient was likely to be affected by their actions.
The people to whom medical practitioners, and all health professionals may owe a duty of care as part of their work can often be quite extensive. Not only is there a duty owed by medical practitioners, nurses and allied health professionals to their patients and clients but the New South Wales Court of Appeal, in the case of Alexander v Heise, 21 held that a medical practitioner’s receptionist had a duty of care to make an assessment of a patient’s condition, determine the urgency of the condition based on that assessment and schedule an appointment with the medical practitioner accordingly. A duty is owed not only to the patients and clients but also to third parties. The third parties could include the relatives of patients or people whom the patient may injure while under the care of the health professional. 22 The following are some specific examples of circumstances in which a health professional, particularly medical practitioners, may owe a duty of care.
Duty to Third Parties
As stated above, a medical practitioner may owe a duty of care not only to their patients but also to others (third parties) who may be injured through the failure of the medical practitioner to take reasonable care of the patient. That is, in failing to give a reasonable, appropriate, competent standard of care to a patient another person sustains an injury. In the case of BT (as Administratix of the Estate of the Late AT) v Oei, 23 the court held that the medical practitioner Dr Oei, owed the plaintiff, BT, a duty of care which he had breached in failing to advise the patient AT (who was the partner of BT) that he should undergo a HIV test. The patient, AT, had consulted Dr Oei over a number of years and had been diagnosed as suffering from hepatitis, cirrhosis of the liver, kidney stones and recurrent infections, which included a urinary tract infection. AT also informed Dr Oei that he had been participating in sexual activity with a prostitute. The patient AT and his partner BT (who was not a patient of Dr Oei) both tested positive for HIV and shortly thereafter AT died of renal failure. As BT had contracted HIV from AT, she sued Dr Oei in negligence, alleging that if Dr Oei exercised ordinary skill and care, he would have identified that AT was at risk of having contracted HIV (in light of his symptoms) and therefore Dr Oei had a duty to advise AT to undergo testing for HIV. A duty which he had breached. The case is of interest as it is indicative of the duty owed by medical practitioners to third parties such as BT. Of particular significance are the circumstances of the case. Not only was there no pre-existing medical practitioner–patient relationship between BT and the defendant Dr Oei, but also there was no evidence to suggest that he knew of the sexual relationship between his patient AT and BT. The court held that the medical practitioner ought to have known the patient had exposed himself to the risk of contracting HIV. As AT’s condition was latent, neither he nor his partner were able to protect themselves from the risk of BT contracting HIV. Therefore, the medical practitioner owed a duty of care to advise AT to undergo HIV testing. It is important to note that, even though a duty of care has been established and breached, these elements alone will not sustain an action in negligence. It is also necessary for the plaintiff to prove that, once AT was armed with the knowledge that a test for HIV was advisable, he would have undergone that test (refer to the section in this chapter entitled ‘Causation’).
In the case of McDonald v Sydney South West Area Health Service,24 the New South Wales Supreme Court was to determine whether the father of a child born, after the mother had a sterilisation procedure performed, was entitled to recover the costs of raising the healthy child. The statement of claim alleged negligence first in the failure of the medical practitioner to advise and warn in relation to the sterilisation procedure, and secondly that the tubal ligation procedure was not properly performed in that the Filshie clip on the left fallopian tube was not applied so as to completely occlude the tube. The court held that the medical practitioner knew, or ought to have known, that if he did not properly occluded the fallopian tube the mother and her partner (the plaintiff) would suffer a financial detriment from having to incur the cost of raising the child. The relationship between the mother and the plaintiff (her husband) was determined by the court to be so close as to give rise to a duty of care between the medical practitioner and the husband.
In PD v Dr Harvey and Dr Chen, 25 the Supreme Court of New South Wales also found the medical practitioner owed a duty of care to the patient’s sexual partner who was herself a patient. In this case, the plaintiff and her then boyfriend together attended a medical practice, seeking to be tested for HIV and other sexually transmitted diseases. Though the couple attended the consultation together, the medical practitioner did not discuss with them whether they wished to be informed of the test results together or what should happen if one of their results returned positive. Some days later, the medical practitioner received the plaintiff’s results, which were negative for HIV. The results for her boyfriend, however, were positive for both HIV and hepatitis B. The plaintiff, though given her own results, was told she could not access her boyfriend’s results, as the information contained therein was confidential. The boyfriend was informed of his results and given a referral to a specialist. He neither attended the appointment nor disclosed the results to the plaintiff, but rather told her he was negative and produced a forged pathology report confirming that to be the case. Although the plaintiff attended the same medical practice twice over the next 6 months, neither of the medical practitioners (who had had access to the results of the boyfriend) sought to confirm whether the boyfriend had disclosed his HIV status to her. Neither was there any entry in her medical records identifying that she was in a sexual relationship with a person who had been identified as being HIV positive. The couple married and the plaintiff became pregnant. Shortly thereafter the plaintiff was diagnosed as being HIV positive. The plaintiff successfully sued in negligence with Cripps J finding that the defendants (the medical practitioners) owed the plaintiff a duty of care and had, through their conduct, breached that duty. The defendants were held to be in breach of their duty in that, in the circumstances:
• they had failed to identify the potential conflict of interest should the plaintiff or her boyfriend (who were both patients of the medical practice) return a positive test result
• had failed to obtain instructions from either the plaintiff or her boyfriend as to how the information should be communicated were this to be the case
• had failed to ensure that the test results were provided personally
• failed to make provision for the cross-referencing of the medical records
• failed to provide adequate and appropriate advice, treatment and follow-up to the plaintiff’s boyfriend in relation to counselling and post-diagnosis specialist treatment.
The existence of a duty of care owed by the medical centre to the plaintiff is evident in the decision. His Honour stated:
[T]he obligation to look after [the plaintiff’s] interests, insofar that could lawfully be done, continued while she was a patient of the practice … It may be argued that it has not been established that the doctor who vaccinated her for the trip to Ghana or the doctor who prescribed contraceptive pills were aware of the [boyfriend’s] positive result and that he was the person that she was proposing to marry. But the … medical centre had that information and I do not think that the duty owed to the patient can be avoided by what appears to be an inadequate cross-referencing of patients’ cards. 26
Duty to the unborn
A person may owe a duty of care to a child who has sustained injury prior to birth. In the case of Watt v Rama27 the negligent driver of a motor vehicle was held to owe a duty of care to other road users including any unborn child they may be carrying. The right to claim in negligence does not arise until the child is born alive and ‘has a separate existence from its mother’. 28The medical practitioner who is caring for a pregnant woman therefore owes a duty of care not only to the mother (the patient), but also to her unborn foetus. It may also be the case that a duty is owed for medical intervention and treatment before an infant is conceived. In the case of Kosky v Trustees of the Sisters of Charity29 the female patient was negligently given incorrect blood. Though she did not suffer any adverse effects from the transfusion at the time, some 8 years later she gave birth to a child who suffered complications from Rh iso-immunisation and a premature induction made necessary by the transfusion of the incorrect blood. The court held that the healthcare institution in which she received a transfusion of the incorrect blood group owed a duty of care to the child who suffered damage as a result of the negligent conduct that occurred some 8 years prior to the birth. In addition to an action in negligence as described in this paragraph, are claims in negligence bought by children and/or their parents and/or the legal representatives of the children for ‘wrongful life’ or ‘wrongful birth’ (which includes claims for ‘wrongful conception’).
Claims by a child for damages from a medical practitioner for ‘wrongful life’ are very complex and raise significant ethical and legal issues. Essentially the claim is based on the argument that, had the mother been properly advised about the option of terminating the pregnancy, the child would now not be alive and suffering. The issue to be determined by the court as stated by Kirby J in Harriton v Stephens30 is:
whether a child, born with profound disabilities, whose mother would have elected to terminate her pregnancy had she been aware that there was a real risk of the child being born with such disabilities, is entitled to damages where a medical practitioner negligently fails to warn the mother of the risk.
The appeal in the case of Harriton from the New South Wales Court of Appeal was heard by the High Court together with Waller v James and Waller v Hoolahan. 31 By a 6–1 majority the High Court dismissed each of the appeals making a determination that the alleged damage did not constitute a cognisable injury. Crennan J in the case of Waller (with whom Gleeson CJ, Gummow and Heydon JJ concurred), stated:
The appellant’s claimed damage in each of his appeals is his life with disabilities. This inevitably involves an assertion by the appellant that it would be preferable if he had not been born, irrespective of whether the conduct about which he complains occurred prior to, or during, his mother’s pregnancy with him … the appellant’s life with disabilities is not legally cognisable damage in the sense required to found a duty of care towards him. This is so whether or not the proposed duty of care is formulated as a duty upon Dr James and the Sydney IVF to him as a ‘prospective child’ of the parents, or a ‘potential child’, or a ‘potential person’, or as a duty of care upon Dr Hoolahan to him as a foetus. For these reasons, and the reasons set out in Harriton v Stephens, the appellant’s damage in each of the appeals is not actionable.
A claim for ‘wrongful birth’ (as distinct from a claim for ‘wrongful life’) is initiated by the parent or parents of a child who has been born with a disability claiming in damages for the extra costs of raising their disabled child. The parents allege that had the medical practitioners diagnosed the abnormality or condition earlier, or at all, the mother would have had the opportunity to terminate the pregnancy.
In an action for ‘wrongful conception’ the parents claim that the medical practitioner’s negligence, in failing to properly perform a sterilisation or termination, or prescribing or supplying faulty contraception, led to the birth of a child they did not intend to have. In Cattanach v Melchior32 the plaintiffs (the parents of the child) sued Dr Catternach, an obstetrician and gynaecologist who had performed a tubal ligation on Mrs Melchoir. Only one of Mrs Melchoir’s fallopian tubes was clipped due to incorrect information given to Dr Cattanach by Mrs Melchoir and the inability of Dr Cattanach to have a clear view of the fallopian tubes during the procedure. Mrs Melchoir became pregnant and delivered a healthy baby some 5 years after the surgery. The High Court found Dr Cattanach negligent for accepting the information given by Mrs Melchoir without any further investigation. The majority held that, where a child was born as a result of a medical practitioner’s negligence, the medical practitioner could be required to bear the cost of raising and maintaining a healthy child until they reached the age of 18 years. In Queensland, New South Wales and South Australia, legislation has been enacted to overcome the decision in Cattanach v Melchoir. As an example, ss 49A and 49B of the Civil Liability Act 2003 (Qld) state:
49A Failed sterilisation procedures
(1) This section applies if, following a procedure to effect the sterilisation of an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing, the procedure.
Examples of sterilisation procedures –
Tubal ligation and vasectomy
(2) A court cannot award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child.
49B Failed contraceptive procedure or contraceptive advice
(1) This section applies if, following a contraceptive procedure on an individual or the giving of contraceptive advice to an individual, the individual gives birth to, or fathers, a child because of the breach of duty of a person in advising about, or performing a procedure or giving the advice.
Duty to rescue
The term ‘good Samaritan’ is often used to refer to a person who, in good faith and without the expectation of a fee, provides assistance or rescues another who has been injured, is at risk of being injured or requires emergency assistance. Though medical practitioners may feel ethically compelled to render aid in such circumstances, as a general proposition there is no common law obligation on any individual to render emergency aid, regardless of whether they are or are not a medical practitioner. 33 As stated by Windeyer J in Hargrave v Goldman: 34
The dictates of charity and of compassion do not constitute a duty of care. The law casts no duty upon a man to go to the aid of another who is in peril or distress, not caused by him. The call of common humanity may lead him to rescue. This the law recognises, for it gives the rescuer its protection when he answers the call. But it does not require that he do so. There is no general duty to help a neighbour whose house is on fire.
The decision in the New South Wales Court of Appeal case of Lowns v Woods35 was a significant departure from the traditionally held assumption that in Australia there was, at common law, no duty to rescue or assist in an emergency. Further exceptions to the general principle that there is no duty to rescue would include those discussed below.
• Where there is legislation specifically directed to the imposition of a legal duty to render assistance
As an example, under s 155 of the Northern Territory Criminal Code:
any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously fails to do so is guilty of a crime and is liable to imprisonment for 7 years.
Though the Northern Territory is the only Australian jurisdiction to impose such a general duty on ‘any person’, where the person is the ‘driver’ of a motor vehicle involved in an accident, the relevant legislation in each of the states or territories may impose an obligation to stop and provide reasonable assistance. Section 92(1) of the Transport Operations (Road Use Management) Act 1995 (Qld), for instance, requires that:
[T]he driver of any vehicle … involved on any road, or of any motor vehicle involved elsewhere than on the road in a accident resulting in injury to or death of any person or damage to property … shall … immediately stop the vehicle … remain at or near the scene of the accident and immediately render such assistance as the driver can to the injured person … (making) reasonable endeavours to obtain such medical and other aid as may reasonably be required for the injured person.
It is noteworthy that the legislative obligation imposes the duty to stop and render assistance only on the ‘driver’ of the vehicle involved in the accident and not on the drivers of other vehicles who come upon the accident. In addition, legislation may also impose an obligation on specific health professionals to provide assistance. The New South Wales Medical Practice Act 1992 imposed the obligation on medical practitioners to render assistance. Section 36(1) included, as the grounds for ‘professional misconduct’, that the medical practitioner has refused or failed:
… without reasonable cause, to attend (within a reasonable time after being requested to do so), on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time.
• Where the person has assumed responsibility for the supervision or care of another.
In a healthcare context, this situation would most frequently arise in circumstances where a medical practitioner or nurse accompanies a patient away from the hospital or institutional environment.
• Where the person requiring assistance is in an existing and special relationship with the rescuer.
In circumstances, for example, where a parent is able to save their child’s life, the law would anticipate that the parent would make all reasonable attempts to do so. In the case of Horsley v McLaren (The Ogopogo), 36 Laskin J referred to the relationships of parent and child, employer and employee, doctor and patient, and passenger and carrier as giving rise to a duty to rescue.
• Where the employer has, as part of the policy of the institution, a stated expectation that employees, in particular circumstances, will stop and render assistance.
For example, it is not uncommon that the respective state and territory departments of health require employees who drive department vehicles to stop and provide assistance should they come upon an accident while on department business.
When a medical practitioner does stop at the scene of an accident for the purpose of rendering assistance, a duty of care arises. The standard of care, however, will be reflective of the circumstances in which the emergency care is provided. As an example, the standard of care would be that of ‘any reasonable rescuer’ in the environment in which the accident or injury has occurred. There is no expectation that the medical practitioner, at an accident site, could deliver the same standard of care that would be anticipated in the hospital setting. Where the rescuer is confronted with an unfamiliar emergency situation that requires life and death decisions to be made urgently, the courts have been reluctant to find the rescuer liable in negligence. In Leishman v Thomas, 37 it was held:
… a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called ‘agony of the moment’, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.
Historically, the courts have taken a lenient attitude to rescuers, provided that they have acted in good faith and not in a manner that is reckless, negligent or demonstrates a lack of reasonable care and skill, thereby causing damage to the person being assisted. This seems to be the case even where the care has resulted in harm. The courts have held that the rescue itself is the ‘natural and probable consequence of the original accident and therefore does not operate to break the chain of causation’. 38
Both Queensland and New South Wales have legislation protecting specified health professionals from legal action in the rescuer role. In Queensland s 16 of the Law Reform Act 1995 protects medical practitioners, nurses or other people prescribed under a regulation who render medical care, aid or other assistance to an injured person in circumstances of a emergency and which is reasonable, given in good faith and without gross negligence or the expectation of a fee. In New South Wales the Health Services Act 1997 protects only members of staff of the New South Wales Ambulance Service and honorary ambulance officers. 39
The following is an overview of the legislation and provisions relevant to potential claims against rescuers, good Samaritans and not-for-profit organisations. 40Table 5.1 sets out the legislation addressing rescuers in each of the Australian jurisdictions.
| ACT | Civil Law (Wrongs) Act 2002 s 5 |
| NSW | Civil Liability Act 2002 ss 56 and 57 |
| NT | Personal Injuries (Liabilities and Damages) Act 2005 s 8 |
| Qld | Law Reform Act 1995 s 16 and Civil Liability Act 2003 s 26 |
| SA | Civil Liability Act 1936 s 74 |
| Vic | Wrongs Act 1958 s 31B |
| WA | Civil Liability Act 2002 Part 1D |
Good Samaritans
• In the ACT a good Samaritan or medical practitioner who acts honestly and without recklessness will be exempt from liability while rendering assistance or giving advice in an emergency. Similar protection is afforded volunteers in these circumstances, but the community organisations themselves may be held liable for the actions of their volunteers. 41
• In New South Wales rescuers and good Samaritans will not incur personal civil liability in giving emergency aid except where their conduct evidences a degree of impairment or a failure to exercise reasonable care and skill. A person undertaking a rescue as a volunteer will similarly not be held personally liable where they act in good faith in carrying out community work or as an office-holder of a community organisation. 42
• In the Northern Territory volunteers, good Samaritans and medically qualified people acting in good faith and without recklessness in an emergency situation are exempt from civil liability. 43
• In Queensland the Civil Liability Act 2003 states there will be no personal liability for first aiders who are performing duties in an emergency acting in good faith and without reckless disregard for safety. In addition, a person providing first aid or other aid or assistance while performing duties to enhance public safety or for an entity prescribed under a regulation that prescribes services to enhance public safety will not be held liable for acts done or omitted to be done in the course of rendering that aid or assistance. 44
• In South Australia the legislation refers to both the good Samaritan and the medically qualified person who, in assisting in an emergency, do so in good faith and without the expectation of being paid a fee. 45
• In Tasmania there are no legislative provisions, which specifically address the legal obligations or protection offered to a rescuer in Tasmania. The law is therefore to be found in the case law which requires a standard that is generally consistent with that legislatively prescribed in the other states and territories.
• In Victoria a person acting as a good Samaritan is not personally liable in any civil proceedings where they have acted in good faith to provide assistance, advice or care in an emergency or accident where the recipient is actually or apparently at risk of death or injury. 46 A volunteer is also not personally liable where they are undertaking a service that has been organised by the community organisation or is part of the services provided by that organisation. 47
• In Western Australia volunteers are exempt from liability in civil actions arising out of their service for community organisations. It is noteworthy that the Western Australian legislation imposes on the government the obligation of insuring essential not-for-profit organisations. 48
There are no cases in Australia in which a medical practitioner has been held liable for the outcome of a voluntary rescue attempt.
Breach of the duty of care
Once it is established that a person (the defendant) owed a duty of care to another person (the plaintiff) it must then be proven, to the civil standard, that their action or omission amounted to a breach of a standard considered appropriate. The benchmark to determine a general breach of the duty of care, that is, whether the conduct fell below the requisite standard, is the ‘reasonable man’ test. As an example, the question is: ‘What would the reasonable man or, as has been described, the “man on the Bondi bus” consider as reasonable in the circumstances?’ This is an objective test. Provisions under the civil liability Acts49 in a number of Australian jurisdictions have provided a legislative basis for the determination of the reasonable standard of care in personal injury claims. In the wider context, the legislation provides that a person will not be negligent where they fail to take precautions against a foreseeable risk; that is, unless the risk itself would be considered as ‘not insignificant’ and a reasonable person in the same position as the defendant would have taken the precautions. This notionally incorporates an assessment of the probability or likely seriousness of the harm, the burden of taking the precautions and the social utility of the activity associated with that risk. The principle for breach of the general duty has been legislated in all jurisdictions other than the Northern Territory. The Queensland Civil Liability Act 2003 provides at s 9:
(1) A person does not breach a duty to take precautions against a risk of harm unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) –
(a) the probability the harm would occur if the care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
When the issue involves the standard of care required of skilled professionals, and more particularly medical practitioners, the case law and civil liability legislation provide the benchmark against which the alleged conduct will be considered. Questions such as ‘What is the standard?’, ‘Is the standard the same for all professions?’, and ‘Does it apply to all aspects of the medical practitioner’s duty of care’? are fundamental and require further investigation. These questions are also integral to the decision-making practices of medical practitioners when they determine which diagnostic tests are appropriate, which procedures are to be undertaken, what treatment regimes should be ordered and carried out, and how much information is to be provided to a patient in relation to the risks inherent in medical treatment and care.
Determination of a Standard of Care for Professionals
Allegations made against medical practitioners involving a breach of the duty of care will most frequently arise in the context of technical practice issues (that is, about assessment, diagnosis or treatment decisions and/or action) or, in the context of providing, or failing to provide, information as to the risks associated with a particular procedure or treatment. The case law and the legislation distinguish between these two contexts (technical practice and failure to warn of risks) therefore each context will be considered separately.
Technical practice issues
The test to determine whether a medical practitioner has been negligent was advanced in the United Kingdom in the case of Bolam v Friern Hospital Management Committee, 50 McNair J stating:
Where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not … is the standard of the ordinary skilled man exercising and professing to have that special skill … in the case of a medical man, negligence means failure in accordance with the standards of reasonable competent medical men at the time. 51
And:
A doctor is not in breach of his duty in the matter of diagnosis and treatment if he acts in accordance with a practice accepted at the time as proper by a reasonable body of medical opinion even though other doctors may adopt a different practice. 52
The test identifies the standard for professionals, and was adopted by the High Court of Australia in the case of Rogers v Whitaker53 which involved a claim made by a patient against her ophthalmologist. The test does not require that the medical practitioner ‘possess the highest expert skill’. 54 The appropriate standard is determined by what a reasonable body of medical opinion accepts, at the time, as proper, reasonable, competent practice. The standard applies to the provision of all patient care and will, in each case, be determined by the level of expertise of the individual and the particular circumstances surrounding the alleged event. As an example, where a medical practitioner has worked in a particular clinical area for a prolonged period of time and undertaken specialist postgraduate qualifications, the standard will be commensurate with that level of skill and experience. In circumstances in which a medical practitioner has only recently graduated, the standards would be that of any other qualified medical practitioner. In the case of Wilsher v Essex Area Health Authority55 a neonate sustained injuries resulting in almost total blindness from excessive amounts of oxygen administered while being treated in an intensive care unit. The premature neonate had, in addition to other illnesses, an oxygen deficiency. A junior doctor attempting to check the neonate’s oxygen levels mistakenly inserted a catheter into the vein rather than the artery. The registrar who was asked to check not only failed to identify the error but also made the same mistake himself at a later time. One of the issues before the court was the standard of care owed to the child. On appeal to the House of Lords the standard of care accepted was that of the position or post occupied. That is, the standard of the ordinary person exercising or professing to have that special skill, in this case the skill of a medical practitioner. As stated by Lord Glidewell:
The law requires the trainee or learner to be judged by the same standards as his experienced colleague. If it did not, inexperience would frequently be urged as a defence to an action in professional negligence.
In the case of a medical student it is imperative therefore that the student does not undertake any clinical activities for which they have not attained the requisite level of competency. The level of supervision for medical students must ensure that all tasks are carried out at an appropriate standard and a medical student must not undertake any task for which they are not clinically qualified without adequate and appropriate supervision.
Indicators as to the standard of care accepted at the time as proper, reasonable and competent may include relevant research data, affidavits and testimony of peers and experts in the particular clinical area, policy and procedure documents of the particular clinical unit and employing institution, policy documents of the respective departments of health and regulatory authorities in the particular state or territory, and standards set by specialist organisations and colleges. As an example, in the Queensland Court of Appeal case of Langley v Glandore Pty Ltd (in liq), 56
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