The plaintiff bears the responsibility for proving all of the elements of negligence listed, except for the last. Defences must be proved by the tortfeasor: see [3.6.1]–[3.6.3].

Case example

The test of reasonable foreseeability was formulated in the case of Donoghue v Stevenson [1932] AC 562. A woman was given a ginger beer by her friend in an ice creamery. The ginger beer was contaminated with a decomposing snail, which was not visible through the opaque glass of the bottle. After drinking the ginger beer the woman had an extremely bad case of gastroenteritis. The manufacturer was found liable for the woman’s illness by the House of Lords, even though she had no contractual relationship with the manufacturer.

Lord Atkin formulated the test as follows:

Case example

In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, a patient with kyphoscoliosis and spina bifida was said to have been owed a duty of care by a neurologist, even though the neurologist had not yet physically seen the patient at the time of her injury.

The patient had a large hairy naevus on her lower back. She was admitted to hospital for corrective surgery of her spine and for traction. The naevus raised the chance that the spinal tissue had connected with surrounding tissue, increasing the chance that traction would cause paraplegia. A neurologist had been asked to see the patient regarding the traction, but had not done so; instead he wrote that he would see her after traction. After the traction was applied the patient became paralysed. A duty was said to be owed by the neurologist as he had been asked to examine the patient, and although he had not actually done so, he had nevertheless indicated that he would treat her.

Case example

In BT v Oei [1999] NSWSC 1082, a doctor was found to have owed a duty of care to the sexual partner of his patient. The doctor had negligently failed to diagnose that the patient had HIV. The evidence suggested that had the HIV been diagnosed the patient would have taken precautions against infecting his sexual partner.

The court found that it was reasonably foreseeable that the patient, if HIV positive, would transmit the virus to a sexual partner, and that this imposed a duty of care on the doctor. The duty – to offer an HIV test to the patient – was an indirect one. Because such a test had not been offered the patient was left undiagnosed, and infected his partner.

Case example

In Lowns v Woods [1996] Aust Torts Reps 81-376, the court considered the case of Patrick Woods, who was an epileptic. When Patrick had a fit, his mother sent his brother to a nearby ambulance station and his sister to the local GP, Dr Lowns. The sister said that she told Dr Lowns about the emergency but that he refused to come. Dr Lowns disputed this account and said that he had not been contacted. He admitted that, if the sister’s account was correct, he would have owed a duty to attend the emergency, and said he would have actually attended. The trial judge accepted the sister’s testimony over Dr Lowns’.

The trial judge found that Dr Lowns owed a duty to attend and treat Patrick, and that his failure to do so increased the duration of the fit and the brain damage that resulted. The New South Wales Court of Appeal upheld the decision by a majority of two to one.

The two majority judges used the now outmoded proximity test to find a duty of care. They found that there was physical, circumstantial and causal proximity that justified imposing a duty of care on Dr Lowns. Importantly, Dr Lowns’ own admission of the duty was a major factor in the finding. Justice Kirby also relied on s 27 of the Medical Practitioners Act 1938 (NSW) (which has since been repealed), which stated that it may be professional misconduct for a medical practitioner not to attend an emergency.

It is significant that the doctor was in his surgery, yet apparently unoccupied with other patients. Attending to Patrick would not have caused undue interruption to his other duties.

Another important aspect of this case is that it only carries definitive weight in New South Wales, where it occurred, although given similar circumstances, the decision could possibly be followed in other jurisdictions.

In all jurisdictions except Tasmania, health professionals cannot be sued for negligence when they attend an emergency as a ‘good Samaritan’. Health professionals who attend an emergency in good faith and without expectation of payment or other reward have complete immunity from civil liability. The only exceptions are when the health professional attends under the influence of drugs or alcohol, and where the emergency was caused by the health professional.

In Tasmania the common law prevails, but holds rescuers to a very low standard of care. The policy is to encourage rescuers because of the social desirability of their actions. There are no recorded cases of health professionals being sued in Australia for voluntarily attending an emergency and providing substandard care.

A person’s professional qualifications will be taken into account when assessing their conduct against the appropriate standard of care. In that sense the test for health professionals will be a reasonable doctor test, a reasonable nurse test, a reasonable physiotherapist test and so on, depending on the tortfeasor’s professional and educational attainments.

Case example

In what situations could a court find the opinions of a body of medical practitioners to be irrational or unreasonable? In Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, a child suffered brain damage and died after a severe respiratory arrest. The treating doctor had failed to attend, and the child was not intubated. While the doctor admitted that her failure to attend was a breach of standards, she argued that she would not have intubated anyway and that this decision would have been supported by a responsible body of medical opinion.

The trial judge examined the evidence of both sides and found that both expert witnesses represented a responsible body of professional opinion. The action was dismissed because the doctor could show that, had she attended, she would not have intubated, and that this approach was supported by a responsible body of medical opinion.

On appeal to the House of Lords, it was said that the court would not find a practice acceptable merely because some other doctors had given evidence that it was. The key was finding that the opinion was responsible or reasonable, and this was a matter for the court, not the profession. In most cases, expert evidence supporting a doctor’s actions will be enough to demonstrate the required reasonableness. However, in rare cases, a professional opinion may not be capable of withstanding logical analysis. In such sitations it will be open to the judge to find that the opinion is not reasonable or responsible.

In the present case the trial judge had accepted the views of the defendant’s expert as being reasonable. The House of Lords refused to overturn that finding, and the appeal was dismissed. It is this reasonableness exception that has essentially been adopted by the Australian jurisdictions in their modified Bolam rules.