Limitation of actions - medical negligence

In Christensen v Salter [2002] QDC 082 the District Court of Queensland considered some issues on the limitation period applying to claims arising out of a failed sterilisation procedure

Once more into the mire, dear friends : determining the existence of a duty of care in negligence

There were signs in the 1997 High Court decision in Hill v Van Erp that the different members of the bench were beginning to move in the same direction when it came to the tort equivalent of the search for the Holy Grail, a common approach to the determination of the existence of a duty of care in negligence. However, the court's subsequent decision in Perre v Apand signaled a slide back to uncertainty with the seven judges favouring five different approaches. This Note examines those five approaches in the search for guidance for those at the "coalface" - litigants, their legal advisers and trial judges.

Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Medical negligence, causation and 'exceptional cases' under the civil liability legislation

Under the civil liability legislation enacted in most Australian jurisdictions, factual causation will be established if, on the balance of probabilities, the claimant can prove that the defendant's negligence was 'a necessary condition of the occurrence of the [claimant's] harm'. Causation will then be satisfied by showing that the harm would not have occurred 'but for' the defendant's breach of their duty of care. However, in an exceptional or appropriate case, sub-section 2 of the legislation provides that if the 'but for' test is not met, factual causation may instead be determined in accordance with other 'established principles'. In such a case, 'the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed' on the negligent party.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

Beyond Bryan: Builders' liability and pure economic loss

In Bryan v Maloney, the High Court extended a builder’s duty of care to encompass a liability in negligence for the pure economic loss sustained by a subsequent purchaser of a residential dwelling as a result of latent defects in the building’s construction. Recently, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd, the Court refused to extend this liability to defects in commercial premises. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing builders’ liability for pure economic loss. In doing so, this article considers the principles relevant to the determination of a duty of care generally and whether the differences between purchasers of residential and commercial properties are as great as the case law suggests

The criminalisation of medical mistakes in Canada : a review

The issue of health professionals facing criminal charges of manslaughter or criminal negligence causing death or grievous bodily harm as a result of alleged negligence in their professional practice was thrown into stark relief by the recent acquittal of four physicians accused of mismanaging Canada’s blood system in the early 1980s. Stories like these, as well as international reports detailing an increase in the numbers of physicians being charged with (and in some cases convicted of) serious criminal offences as the result of alleged negligence in their professional practice, have resulted in some anxiety about the apparent increase in the incidence of such charges and their appropriateness in the healthcare context. Whilst research has focused on the incidence, nature and appropriateness of criminal charges against health professionals, particularly physicians, for alleged negligence in their professional practice in the United Kingdom, the United States, Japan, and New Zealand, the Canadian context has yet to be examined. This article examines the Canadian context and how the criminal law is used to regulate the negligent acts or omissions of a health care professional in the course of their professional practice. It also assesses the appropriateness of such use. It is important at this point to state that the analysis in this article does not focus on those, fortunately few, cases where a health professional has intentionally killed his or her patients but rather when patients’ deaths or grievous injuries were allegedly as a result of that health professional’s negligent acts or omissions when providing health services to that patient.

Behaviour disorders and the negligent teacher

The purpose of this paper is to examine the legal implications of the continuing rise in the number of school children diagnosed with behaviour disorders. Not only are teachers now subject to a dense grid of legal regulation, they are also increasingly vulnerable to actions in tort. It will be argued here that as more and more children are labelled ‘disordered’, then the concomitant duty of care requirements for teachers becomes more onerous. As a consequence, teachers are less likely to be able to defend themselves against claims of negligence. It is concluded that while the schooling system needs to retain a healthy scepticism about each new pathologising disorder that seeks special status for its sufferers, it also needs to provide greater training and resources for teachers regarding disorder management. It is also concluded that recent changes to negligence law regarding the issue of ‘reasonable foreseeability’ within breach of duty of care, may not be as significant as might have been hoped by the teaching community. Indeed, the elevated standard of care, as required by increasing numbers of disordered pupils, place teachers in an ever more difficult legal position.

Liability of principal contractor for independent subcontractor considered by the High Court

Case note of Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673 ----- In Leighton Contractors Pty Ltd v Fox (2009) 83 ALJR 1086 ; 258 ALR 673 the High Court considered the liability of a principal contractor for the negligence of independent subcontractors on a building site. In its decision, the court considered the nature and the scope of the duty owed by principals to independent contractors.

Recent cases on intoxication

Intoxication of a plaintiff raises many issues in a negligence action – duty of care, breach of duty, causation and the defence of contributory negligence. Recently intoxication has been examined by the Full Court of Tasmania in relation to duty and breach and by the New South Wales Court of Appeal in respect of causation and contributory negligence.

Foreseeability of pure economic loss and causation

In Bonny Glen Pty Ltd v Country Energy [2009] NSWCA 26 (24 February 2009) the New South Wales Court of Appeal held that the pure economic loss suffered by the appellant was recoverable. However, rather than arguments as to whether the appellant was vulnerable and a member of an ascertainable class, whether the respondent had knowledge of the risk to the appellant and was in a position of control and considerations as to indeterminate liability as in Perre v Apand Pty Ltd (1999) 198 CLR 180, the arguments raised related to the foreseeability of the loss and causation.

Golf can be dangerous : be forewarned!

In Pollard v Trude [2008] QSC 119 (20 May 2008) the plaintiff claimed for personal injuries suffered when he was struck by a golf ball during the course of a tournament. The plaintiff was a member of a group of four, playing in a two-day tournament at Indooroopilly Golf Club. All four players had teed off at the second hole of the course and when the defendant took his second shot; his ball struck one of the trees bordering the fairway and deflected, hitting the plaintiff who was waiting to take his third stroke. As the ball was in flight, the defendant had called out "Watch out Errol", or words to that effect, to the plaintiff. The plaintiff suffered injury to his eye, leaving his vision impaired. The plaintiff sued in negligence, alleging that by failing to shout "fore" as is traditionally done in golf, the defendant had failed to warn the appellant and this was a breach of their duty. The claim in negligence was dismissed by the Queensland Supreme Court, holding that there had been no breach of the duty.