CHAPTER 4 Negligence and standards of care

4.1 Negligence

[4.1.1] What is negligence?

A claim in negligence is a civil claim that is successfully brought when one person, the tortfeasor or defendant, breaches a duty of care owed to another person (usually referred to as the plaintiff), and that breach causes harm to the plaintiff. In Australian common law a successful claim of negligence can only be brought when:

• the tortfeasor owed a duty of care to the plaintiff

• the duty was breached because the tortfeasor’s behaviour fell below the standards required to satisfy the duty

• the breach caused the harm complained of

• the harm that resulted was not too remote from the breach, and

• there were no legal excuses (defences) available to excuse the tortfeasor’s behaviour.

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].

This chapter deals primarily with negligence in situations concerning diagnosis and treatment. Issues concerning negligent advice are discussed in chapter 6.

[4.1.2] Haven’t the laws of negligence changed?

Yes. In the early 2000s there were growing concerns in some circles that liability in negligence had increased to unsustainable levels. It was said by some prominent groups, including groups of health professionals, that negligence was being found unfairly and that payouts for claims were too high. The situation has been referred to as a ‘litigation crisis’. Concerns were inflamed by the provisional liquidation of a prominent Australian medical insurance provider.

In fact, there was little evidence that there had been a substantial increase in the number of claims made, or in the payouts awarded, when the situation was assessed in the light of the increasing number of medical interventions and the level of injuries caused by preventable adverse events (Wright, 2006). While the cause of the insurance crisis is still debated, it is arguable that the insurance industry was experiencing pressure from other quarters. It was certainly the case that for some medical specialty areas, such as obstetrics, neurosurgery and orthopaedic surgery, indemnity premiums had reached very high levels.

Nevertheless, in response to the calls for ‘reform’ the federal government commissioned Justice David Ipp to inquire into and report on how negligence claims could be discouraged. The Ipp Report recommended a number of changes that have been implemented, to varying degrees, in each state and territory. These changes are discussed later in the chapter.

4.2 The duty of care

[4.2.1] When is a duty of care imposed?

At common law a person owes a duty of care when they can reasonably foresee that their behaviour may harm another person. This is referred to as the test of reasonable foreseeability or the neighbour principle.

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:

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can 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 act 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 into question.

The problem with the reasonable foreseeability test is that it is very broad. Many attempts have been made to refine the test, the most notable of which was the concept of proximity championed by Deane J of the High Court of Australia. He identified three types of proximity that would give rise to a duty of care:

• physical proximity, where there is closeness in space and time

• circumstantial proximity, where circumstances give rise to the closeness

• causal proximity, where there is a closeness between an act and its consequences.

The High Court subsequently discarded proximity as the major test for establishing a duty of care and returned to the reasonable foreseeability test as part of an incremental approach that allows the court to recognise new categories of duty, where these are analogous to already recognised duties and where the public interest lies in favour of recognising the new category.

[4.2.2] Do doctors owe a duty of care to their patients?

Yes. The doctor–patient relationship is a classic example of a relationship involving a duty of care. Other health professionals also owe a duty of care to their patients or clients.

[4.2.3] When do health professionals owe patients a duty of care?

Health professionals ordinarily owe a duty of care when the therapeutic relationship commences. This may be with the first consultation (in the case of GPs, for example), or it may be when a specialist has been asked to become involved as part of a treatment team.

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.

[4.2.4] Can health professionals owe duties to people who are not their patients?

Yes. Health professionals owe a duty of care to those they can reasonably foresee will be injured by their actions or omissions. There may be circumstances where the duty expands to third parties who are not their patients. For example, courts have recognised that health professionals may owe a duty of care to sexual partners of their patients, even though the sexual partners are not patients themselves.

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.

[4.2.5] Can health professionals owe duties of care to the unborn?

Yes. This is discussed in more detail in chapter 15.

[4.2.6] Do health professionals have a duty to attend emergencies?

Generally speaking, there is no common law duty to rescue. It has been said by English courts that health professionals who are asked to attend a sick person are not compelled to do so by law. However, one New South Wales decision accepted that in the particular circumstances of the case there was a duty of care to attend an emergency, at least when the health professional was at work and on duty.

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.

State and territory legislation dealing with rescuers is listed in table 4.2.6.

Table 4.2.6 Legislation relating to rescuers

ACT	Civil Law (Wrongs) Act 2002 s 5
NSW	Civil Liability Act 2002 ss 56, 57
NT	Personal Injuries (Liabilities & Damages) Act 2005 s 8
Qld	Law Reform Act 1995 s 16; Civil Liability Act 2003 s 26
SA	Civil Liability Act 1936 s 74
Vic	Wrongs Act 1958 s 31B
WA	Civil Liability Act 2002 Pt 1D

4.3 Standards of care

[4.3.1] What is the standard of care required of health professionals?

Standards of care are determined by the courts after taking into account what a reasonable person would do in the circumstances of the particular duty of care being examined (the reasonable person test). In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J stated that the court must formulate the standard of care after considering:

• the magnitude of the risk of harm

• the degree of the probability of its occurrence

• the expense, difficulty and inconvenience of taking action to avoid the risk, and

• any other conflicting responsibilities that the defendant has.

This approach has been adopted in most jurisdictions as part of their reforms following the Ipp Report.

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.

In England and Wales it has often been argued that doctors should be given special protection in the formulation of the standard of care, on the basis that, unlike other professionals, they need to engage in new and experimental treatments without the fear of falling below a court-devised standard of care. This argument led the courts in England and Wales to adopt the Bolam standard of medical negligence.

The Bolam standard was developed by McNair J in the case of Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582. According to this standard a doctor will not be negligent who acts in accordance with a practice accepted at the time as proper by a responsible (or reasonable) body of medical opinion. It does not matter that other doctors may have adopted a different standard. As long as there is some support for the actions of the doctor coming from a responsible body of other doctors, the court will not be permitted to find that the doctor’s conduct has fallen below an acceptable standard of care.

The Bolam standard was never popular in Australian courts, because it was felt that in following it the court was abandoning its role as the arbiter of professional standards. It was rejected by the High Court in Rogers v Whitaker (1992) 175 CLR 479: see [6.3.2]. Medical opinion was still obviously of great weight in determining standards. It was just not determinative of those standards.

Recent changes brought about by the Ipp reforms have now introduced a modified Bolam standard into most Australian jurisdictions. In these jurisdictions a health professional will not incur liability if it can be established that they acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. The fact that there are different peer professional opinions concerning a practice does not prevent any of those opinions being relied on. Nor does the peer professional opinion have to be universally accepted. The only exception is where the peer professional opinion being relied on is irrational (in New South Wales, Queensland, South Australia, Tasmania), unreasonable (in Victoria) or is so unreasonable that no reasonable health professional would have adopted it (in Western Australia).

State legislation setting out standards of care for health professionals is listed in table 4.3.1.

Table 4.3.1 Legislation dealing with standards of care

NSW	Civil Liability Act 2002 s 5O
Qld	Civil Liability Act 2003 s 22
SA	Civil Liability Act 1936 s 41
Tas	Civil Liability Act 2002 s 22
Vic	Wrongs Act 1958 s 59
WA	Civil Liability Act 2002 s 5PB