Breach of Duty of Care

Breach - Female Doctor Head in Hands

Introduction

Once it is established that a duty of care is owed by the defendant to the plaintiff, a cause of action in negligence requires determination of whether there has been a breach of that duty of care.

Again, certain legal propositions must be satisfied in order to establish this part of the claim.

The determination of whether a duty of care has been breached requires consideration of both statute and common law principles.

Generally that the determination of ‘breach of duty’ is when ‘negligence’ (in terms of falling below a reasonable standard of care) is established. Thus we often discuss whether the defendant has been ‘negligent’ at this stage of the enquiry.

Identifying the Breach(es): What did the Defendant allegedly do wrong?

As a starting point, one should identify the alleged breach or breaches of duty of care.

In other words, what is it that the patient alleges the practitioner did wrong?

As identified on the opening page, in a medical context this might include (but is not limited to) such things as:

  • failure to examine;
  • failure to treat (adequately or at all);
  • failure to diagnose;
  • failure to advise or warn a patient of material risks associated with treatment;
  • failure to give information to a patient about their condition.

The above broad ‘wrongs’ might include more specific failures such as:

  • failure to follow up (after consultation or discharge);
  • failure to adopt recognised precautions;
  • failure to communicate with other professionals;
  • failure to refer to a specialist where appropriate;
  • not keeping up to date with the current state of knowledge;
  • failure to supervise junior health practitioners/students;
  • poor delegation;
  • failure to check understanding;
  • failure to explain information at a level the person can understand. 1

Determining this is important, as once the alleged breach(es) have been established the examination of whether or not there has in fact been a breach of duty of care in law may take place in context.

Time to Assess the Risk

The time at which the risk of harm is assessed is the time of the alleged negligence. That is, what the defendant knew or ought to have known is not to be judged with hindsight. 2

The Applicable Law

In all states and territories except the Northern Territory (which still follows the common law) legislation provides that a person is not negligent in failing 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 to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (This s known as the ‘standard of care’ evaluation). 3

These are each further discussed below.

Reasonable Foreseeability

Reasonable foreseeability - Breach of Duty - People looking out window
Pursuant to the statute, a plaintiff must establish that the risk of harm was reasonably foreseeable to the defendant. Reasonable foreseeability in the context of breach was described at common law by Justice Mason in Wyong Shire Council v Shirt. He said:

A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable … When we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. 4

NOTE: The statutory provisions in each jurisdiction, did not adopt the wording ‘not far-fetched or fanciful’. A risk of harm will be deemed foreseeable if the defendant had actual knowledge, or constructive knowledge (ought to have known), of the risk of harm.

Not Insignificant

Statutory provisions in all jurisdictions, except the Northern Territory, also now require assessment of whether the alleged risk of harm was ‘not insignificant’. This requirement did not exist at common law, and clarity over what the test actually entails is yet to be found.

Generally the phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is indicated by the phrase used to define “not far-fetched and fanciful”, but not so high as might be indicated by a phrase such as “a substantial risk”. The choice of double negative is deliberate as the phrase does not mean “significant” which would be too high a threshold. 5

In Shaw v Thomas Macfarlan JA said:

In Wyong … Mason J referred to a risk “which is not far-fetched or fanciful” as “being real and therefore foreseeable”. The requirement … that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much. 6

In Benic v State of NSW, Garling J attempted to draw together considerations to proffer what, in his opinion, is the appropriate approach to interpreting the phrase ‘not insignificant’. He states:

The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;

The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;

The phrase “not insignificant” is intended to refer to the probability of the occurrence of the risk;

In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;

Whether a risk is “not insignificant” must be judged from the defendant’s perspective and must be judged on a broader base than a mere reductionist mathematical formula. 7

Such an approach was recognized (and applied) by Dixon J in the Victorian case of Gunnersen v Henwood. 8

Like reasonable foreseeability however, determining that the risk of harm was ‘not insignificant’ is a threshold test. It does not resolve the question of whether the defendant breached his or her duty of care. It is also necessary to determine how a reasonable person in the position of the defendant would have behaved in the circumstances of the case, and whether the defendant has fallen short of such reasonable conduct.

Standard of Care

group of doctors - standard of care
The above two factors (reasonable foreseeability and whether the risk was not insignificant) are threshold tests, which are often (although not always) easily satisfied. Most often the inquiry at breach will focus upon whether the Defendant met a reasonable standard of care.

This requires the Plaintiff to demonstrate how a reasonable person in the position of the defendant would have behaved in the circumstances of the case, and in particular whether they would have taken precautions against the risk of harm. 9 That is the question becomes — what would a reasonable person have done?

If the Defendant’s conduct falls short of that, they will not have met the standard of care.

It makes no difference to the defendant’s liability whether the conduct falls far short or just short of the standard expected of a reasonable person.

In making a determination in relation to standard of care, the court is to consider the following (amongst other relevant things):

    1. the probability that the harm would occur if care were not taken;
    2. the likely seriousness of the harm;
    3. the burden of taking precautions to avoid the risk of harm;
    4. the social utility of the activity that creates the risk of harm. 10

Probability and seriousness of harm are weighed against the other factors in a way that may help to determine what a reasonable person would have done in the circumstances. This has sometimes been referred to as the ‘calculus of negligence’.

Standard expected of a Professional

At common law, the reasonable standard of care to be met by professionals is that of the ordinary skilled person exercising and professing to have the special skill. 11 The standard is not determined by whether the conduct accorded with the practice of other professionals in his or her position, or some professional body, but by the standard of care demanded by the law. The consideration will weigh the calculus and other relevant factors in light of the defendant being a professional.

Recent judgments in the NSW Court of Appeal, 12 and the Victorian Supreme Court, 13 have confirmed that the common law standard of care remains the starting position for a plaintiff seeking to establish that a medical practitioner breach their duty of care, by falling below such a standard.

What other practitioners would have done in the circumstances may then be raised as a defence in some states/territories with statutory provisions.

Holding out as possessing certain skills

It is important to note that in evaluating whether the standard of care has been met, in some instances it may be relevant to determine what skills and qualifications the Defendant held him or herself out to possess. If one holds themselves out to possess certain skills then a person will be assessed at the standard of people actually having those skills. (For example, if a person holds themselves out to possess the skills of a medical doctor, they will be assessed at the standard of a reasonable doctor).

Standard of Care Regarding Warnings and the Provision of Information

In Rogers v Whitaker (1992) the High Court emphasised the duty of medical practitioners to warn their patient’s of risks and provide advice and information. Information should be given about procedures, treatment and risks that all people would require in the position of the patient, but should also take into account anything that may be of particular relevance (‘material’) to the patient. The Court said:

”…the law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.” 14

For example, a piano player might require specific information regarding an operation on a finger that would be material to him/her. It is therefore important that if a patient makes known special needs or concerns that a health practitioner should provide information necessary to those circumstances.

The duty is subject to ‘therapeutic privilege’, which means that the doctor would not be required to disclose information that he or she reasonably believed would prove damaging to a patient. 15

Read more about Rogers v Whitaker here:

Legislation in all states now also contains specific provisions concerning failure to warn of risk. 16

Obvious and Inherent Risks

Note: In the law of negligence, there is generally no proactive duty to warn of obvious risks. An ‘obvious risk’ is defined by statute as:

  •  a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person;
  • including risks that are patent or a matter of common knowledge;
  • a risk of something occurring that can be an obvious risk even though it has a low probability of occurring;
  • a risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 17

However, New South Wales, South Australia Western Australia, Queensland and Tasmania,  make an exception when the defendant is a professional and the risk is a risk of death or personal injury to the plaintiff from the provision of a professional service. In other words, professionals (including health professionals) must still provide information, advice and warnings about ‘obvious risks’ when there is a risk of death or personal injury.

There is also a duty to warn of inherent risks (i.e. risks of something occurring that cannot be avoided by the exercise of reasonable care and skill. (Like in Rogers v Whitaker). 18


The Defence Provisions (Reference to other Professional Practice)

Defence provisions - Lady with law books
Statutory provisions in all jurisdictions except the Australian Capital Territory and the Northern Territory provide that a Defendant may plead that he or she met the standard of care expected of a professional.

The Defendant professional (eg. a doctor) will not be considered to have breached a duty of care in the provision of a professional service if it is established that he or she acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion as competent professional service. 19

The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more of the opinions being relied on.

Peer professional opinion also does not have to be universally accepted to be considered widely accepted.

The Court does not however have to accept peer professional opinion if it is ‘irrational’ (for example, NSW and SA) or ‘unreasonable’ (for example, Victoria).

Note, as stated above that the provisions regarding peer professional opinion do not apply in regard to a duty to warn or provide information.

NOTE: Establishing that there was a breach of duty of care is another step in a negligence claim. However, the other elements of negligence must also be satisfied for a claim to succeed…

Find out more

Notes:

  1. Sonia Allan and Meredith Blake, The Patient and Practitioner: Health Law and Ethics in Australia (2014) p200.
  2. Roe v Minister of Health [1954] 2 All ER 131.
  3. Civil Liability Act 2002 (NSW), s 5B(1); Wrongs Act 1958 (Vic), s 48(1)Civil Liability Act 1936 (SA), s 32(1); Civil Liability Act 2002 (WA), s 5B(1); Civil Liability Act 2003 (Qld), s 9(1), Civil Law (Wrongs) Act 2002 (ACT), s 43(1); Civil Liability Act 2002 (TAS), s 11(1).
  4. Wyong Shire Council v Shirt (1980) 146 CLR 40 at 221.
  5. Commonwealth of Australia, Ipp Committee, Review of the Law of Negligence: Final Report, September 2002, p 105 and [7.15].
  6. Shaw v Thomas [2010] NSWCA 169 at [44], per MacFarlan JA.
  7. Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 at [101], per Garling J.
  8. Gunnersen v Henwood [2011] VSC 440.
  9. Civil Liability Act 2002 (NSW), s 5B(1)(c); Wrongs Act 1958 (Vic), s 48(1)(c); Civil Liability Act 1936 (SA), s 32(1)(c); Civil Liability Act 2002 (WA), s 5B(1)(c); Civil Liability Act 2003 (Qld), s 9(1)(c), Civil Law (Wrongs) Act 2002 (ACT), s 43(1)(c); Civil Liability Act 2002 (TAS), s 11(1)(c).
  10. Civil Liability Act 2002 (NSW), s 5B(2); Wrongs Act 1958 (Vic), s 48(2); Civil Liability Act 1936 (SA), s 32(2); Civil Liability Act 2002 (WA), s 5B(2); Civil Liability Act 2003 (Qld), s 9(2); Civil Law (Wrongs) Act 2002 (ACT), s 43(2); Civil Liability Act 2002 (TAS), s 11(2).
  11. Rogers v Whitaker (1992) 175 CLR 479 at 483.
  12. Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335.
  13. Brakoulias v Karunaharan (Ruling) [2012] VSC 272 (20 June 2012).
  14. Rogers v Whitaker (1992) 175 CLR 479.
  15. Rogers v Whitaker (1992) 175 CLR 479, Guadron J dissenting on this point.
  16. See Civil Liability Act 2002 (NSW), s 5P; Wrongs Act 1958 (VIC), s 60; Civil Liability Act 2002 (WA), s 5PB(2); Civil Liability Act 2003 (Qld), ss 21(1), 22(5); Civil Liability Act 2002 (TAS), ss 21(1), 22(5); Civil Liability Act 1936 (SA), s 41(5); Civil Liability Act 2002 (WA) s 5PB(2). Note there are slight variations in each statute, and reference should be had to the particular state or territory in which a person lives, as well as to the common law when a statute does not address a particular issue.
  17. Civil Liability Act 2002 (NSW) s 5F; Wrongs Act 1958 (VIC) s 53; Civil Liability Act 1936 (SA) s 36; Civil Liability Act 2002 (WA) s 5F; Civil Liability Act 2003 (Qld) s 13, Civil Liability Act 2002 (TAS) s 15.
  18. Civil Liability Act 2002 (NSW) s 51(3); Wrongs Act 1958 (VIC) s 55(3); Civil Liability Act 1936 (SA) s 36(3); Civil Liability Act 2002 (WA) s 5P(2); Civil Liability Act 2003 (Qld), s 16(3).
  19. Civil Liability Act 2002 (NSW), ss 5O(1) and 5P; Civil Liability Act 1936 (SA), s 41(1) (in South Australia the statute is worded as ‘member of the same profession’ rather than ‘peer’; Civil Liability Act 2002 (WA), s 5PB(1); Civil Liability Act 2002 (TAS), s 22(1). In Queensland and Victoria, the phrase by a significant number of respected practitioners in the field is added after peer professional opinion). Civil Liability Act 2003 (Qld), s 22(1); Wrongs Act 1958 (Vic), s 59(1).