EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSH v S
PART 7
THE SCOPE OF THE DUTY OF CARE
THE STANDARD OF CAREScope of the duty of care.
The scope of the duty of care is not the same as the standard of care. Further, since The Wagon Mound (No.2), standing alone "foreseeability" is not sufficient to determine the scope of a duty of care.
The test for the scope of the duty of care is the test set out by Mason J. in Wyong SC v Shirt:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (1951) AC 850 , may nevertheless be plainly foreseeable. Consequently, 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. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable...
"The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. "
Wyong SC v Shirt, Mason J.The standard of care
Where there is a duty of care in existence as a result of the presence of the four common features and the four nexes between them, it becomes necessary to determine whether there has been breach of the duty of care. It is at this point that the standard of care becomes the critical determinant of liability.
In Wyong v Shirt, Justice Mason pointed out that where there was a foreseeable risk, which was not farfetched or fanciful, it was the reasonable man's response to the risk which determined whether or not there was breach of the duty of care:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."It was this test of the standard of care that ultimately resulted in the findings that the defendants were liable in Lowns v Woods and in Nagle v Rottnest Island Authority. The expense, difficulty and inconvenience of taking alleviating action was minimal in each case, the risks were foreseeable, the risks were not fanciful, and the magnitude of the risk was such that the plaintiffs suffered crippling injuries which left them permanently and severely disabled. In both cases, probability of the occurrence of such an injury was not high.
In the context of the standard of care expected when medical services are provided, it was said in Rogers v Whitaker:
"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" (Sidaway v. Governors of Bethlem Royal Hospital (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v. South Australia (1985) 39 SASR 543, at p 551.) It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill (Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582. The principal issue in this case relates to the scope and content of the appellant's duty of care: did the appellant's failure to advise and warn the respondent of the risks inherent in the operation constitute a breach of this duty?
In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill...But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied ( See Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542, at pp 562-563 (case of medical treatment). See also E v. Australian Red Cross (1991) 99 ALR 601, at p 650)...
While evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life" ( F v. R. (1983) 33 SASR, at p193).
The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors (F v. R. (1983) 33 SASR, at p 191). "One feature of F v R and Rogers v Whitaker is that the danger that communication of information may harm a patient is relevant to the standard of care. In Rogers, the court said of the standard in relation to disclosure of information:
"Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment (See Fleming, The Law of Torts, 7th ed. (1987), p 110). Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information."
This was the principle applied in Tottenham v Battersby, where the patient was unusually disturbed, so disturbed that the risk of suicide if the condition remained untreated outweighed the risk that huge doses of medication would damage her eyesight. Had she known of the possible side effects she would not have taken the medication, but this would not have been a rational decision.
However, the converse must also apply: where the patient is unusually nervous, reasonable care must be taken to ensure that the patient is not harmed by lack of information. "Reassurance" is a very important part of the treatment of anxious patients suffering the symptoms of a chronic respiratory condition.
It is the duty of the provider of medical services to ensure that the specific medical services delivered are delivered at the standard of the competent practitioner exercising reasonable skill and care.
The level of care and skill the professional decision maker will be able to exercise will not always be within the control of the professional decision maker. The decision maker may exercise the care and skill of a reasonable person in the same profession who is in the same circumstances, but the circumstances may be such that the decision is made on the basis of inadequate facts, inaccurate facts, extraneous considerations, or without regard to material considerations.
If the error is one which would not be made by a reasonable person in the same profession who is exercising reasonable skill and care, then it becomes necessary to look closely at the circumstances, bearing in mind Abalos v Australian Postal Commission. Professional decisions made within the context of an organisation may be flawed not because of a flaw in the decision maker but because of the circumstances in which the decision maker is required to make the decision.
If the provider of medical services creates a situation whereby the people it employs to deliver specific medical services exercise reasonable skill and care but deliver a service below the requisite standard, due to the circumstances they are required to work in when they make their professional decisions and deliver professional services, then there is a breach of duty by the service provider.
But for vicarious liability, a service provider could, with impugnity, create circumstances whereby patients received treatment of a lower standard than the standard expected of a competent practitioner exercising reasonable skill and care.
If circumstances
a) within the control of the service provider, and
b) outside the control of medical staff delivering services,result in competent practitioners (employed to deliver services) having to exercise extraordinary skill and care- far above the level of a competent practitioner exercising reasonable care and skill in the same circumstances- in order to achieve the standard expected of a competent practitioner exercising reasonable skill and care, then it is the provider of the medical service who breaches the duty of care.
The practitioner delivering the service can act with reasonable skill and care in the circumstances, but be prevented, by the circumstances, from achieving the standard expected of a competent practitioner acting with reasonable skill and care.
There is a limit to the amount that any person can do; their time is a finite resource and the more patients they have to attend to, the less time they have for each patient. But each and every patient is entitled to receive the standard of care which is expected of a competent medical practitioner exercising reasonable skill and care. If the person delivering medical services has too little time for each patient to be able to provide care of the requisite standard for each patient, the duty of care is breached by the service provider who has made inadequate provision for service delivery.
There is nothing novel about requiring the same standard of care be exercised by people whose circumstances are very different; for example:
a) Night and day, the same standard of care is expected of drivers on the road, whether they have been driving for two years or for twenty two years; and
b)The same standard is expected of a junior solicitor as is expected of a self employed legal practitioner with many years of experience; both are expected to meet the standard of a competent practitioner exercising reasonable skill and care.If a junior salaried solicitor is given too many files for him/her to able to exercise the reasonable skill and care of a competent practitioner in relation to each, then it is his/her employer who is ultimately held responsible to the client.
Hospitals are in the same position. If medical staff cannot meet the standard of the competent practitioner exercising reasonable skill and care because the hospital requires the medical staff to attend to too many patients, ultimately it is the hospital who is liable to the patient if the hospital has undertaken to provide medical services as well as patient accomodation.
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