Torts: Cases and Commentary - LexisNexis

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The court’s reasons were consistent with the principle of patient autonomy orself-determination as to whether or not the patient will continue to receivemedical treatment. See also Australian Captial Territory v JT [2009] ACTSC105 which addressed consent to medical treatment in the context of thepatient’s wishes based on a delusional set of assumptions.2.6 The court as the ultimate arbiter• The discussion in the text regarding Rogers v Whitaker notes that the standardof care is not to be determined solely, or even primarily, by reference to thepractice followed or supported by a responsible body of opinion in theprofession. Marko v Falk [2008] NSWCA 293 at [76] – [79] briefly addressedthe circumstances in which a court may substitute its own opinion in thefollowing terms: ‘Mr Neil submitted that Rogers v Whitaker supported theproposition that if all members of a particular profession were doingsomething that was not in accordance with what the Court considered to becareful practice, then the Court should say so. That submission was pitched atsuch a high level of generality as to be meaningless. It fails to recognise thecareful distinction all members of the High Court drew in Rogers v Whitakerbetween diagnosis and treatment, and warning of risks. Mr Neil did notsuggest any sensible route by which the Court could impose a view as tocareful practice contrary to the medical opinions called on both parties’behalves. Mr Neil could not refer the Court to any case since (or before)Rogers v Whitaker in which the court had taken the course he propounded in acase which involved clinical judgment in an operational context……In myview this was a case where the plurality view in Rogers v Whitaker as to theoften decisive role professional opinion may play has strong resonance.’Chapter 33.9 Duty under statute• In the context of possible claims against medical practitioners under the TradePractices Act 1974 (Cth), see Kowalczuk v Accom Finance [2008] NSWCA343. The court followed Shahid v Australian College of Dermatologists [2008]FCAFC 72; (2008) 168 FCR 46.3.24 Qualifications and experience• Imbree v McNeilly [2008] HCA 4. Consideration of aspects of Cook v Cook;Duty of care in the context of special relationship between plaintiff anddefendant.
Chapter 44.1 Duties to third parties• Glennie v Glennie [2009] NSWSC 154. As noted in the text, in Sullivan vMoody [2001] HCA 59; (2001) 207 CLR 562 the High Court consideredwhether medical practitioners, social workers and departmental officersinvolved in investigating and reporting upon allegations of child sexual abuseowed a duty of care to suspects. The court concluded that no such dutyexisted. Glennie v Glennie is an interlocutory decision addressing only alimitation period extension, but it foreshadows a claim against a medicalpractitioner by a sexual assault victim. It is alleged that the medicalpractitioner failed in his statutory duty to report sexual abuse of which he wasaware, thereby allowing it to continue such that the victim suffered furtherdamage.• Chahoud v Koleda [2008] NSWSC 1060; (2007-2008) 72 NSWLR 740. Amedical practitioner has no duty to a beneficiary of the will of a deceasedpatient in relation to advice to a court regarding the deceased’s capacity andhas the benefit of witness immunity for the contents of letters provided to acourt or legal practitioner on the capacity of a deceased patient to execute awill.4.2 Claims by a child arising from earlier breach of duty to mother• Paxton v. Ramji 2008 ONCA 697. Consideration of whether duty owed tofuture child, in circumstances where a doctor prescribed anti acne medicationAccutane (which carries the risk of causing fetal malformation) to a youngwoman, knowing that her partner had undergone vasectomy. (Of doubtfulapplication in Australia and in any event see Liebig v. Guelph GeneralHospital 2009 CanLII 56297.)4.8 Psychiatric patients causing loss or injury to others• Gray v Thames Trains & Ors [2009] UKHL 33. Man, suffering post traumaticstress disorder from earlier incident, not able to recover compensation forconsequences of his later knife killing of a drunken pedestrian. Illegalitydefence.• Simon and Anor v Hunter and New England Area Health Service [2009]NSWSC 758 is an interlocutory decision only (regarding the availability of ajury trial) but arises from a claim in that a psychiatric patient was releasedfrom hospital into care of friend for road journey from Taree to Victoria andthe patient killed the friend during the journey. The claim will be one byrelatives of the deceased for damages against Area Health Service.• The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA173. A decision considering the duty of an institution to warn staff of the riskof injury from a patient with a history of violence. The claim failed oncausation grounds.
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