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Civil liability legislation: The correct sequence in medical litigation – Personal Injury


This article was first published in LexisNexis by Bill Madden,
“Civil liability legislation: The correct sequence in medical
litigation” (2022) 30(5&6) HLB 107

Introduction

Tapp v Australian Bushmen’s Campdraft & Rodeo
Association Limited
1 is not a medical litigation
decision. 2This article focuses on only one aspect of
it, being a discussion by the majority 3 introduced with
the following remark:

First, and contrary to some views that have been expressed in
the New South Wales Court of Appeal, the “risk” with
which s 5L 4 is concerned will usually need to
be assessed after a determination that there is prima facie
liability for negligence. 5

The words identify what might be called the correct sequence for
consideration of s 5L, such that it should be judicially addressed
are “after a determination that there is prima facie liability
for negligence” [emphasis added]. 6

As a reminder, the relevant text of s 5L(1) provides:

(1) A person (“the defendant”) is not liable in
negligence for harm suffered by another person (“the
plaintiff”) as a result of the materialisation of an obvious
risk of a dangerous recreational activity engaged in by the
plaintiff.

The majority expanded on their introductory remark regarding the
correct sequence of judicial approach as follows:

First, as to the usual need for s 5L to be assessed after a
determination of the existence of prima facie liability in
negligence, this can be seen from the structured approach taken by
the Civil Liability Act and from the terms of s 5L itself. Division
2 of Pt 1A, entitled “Duty of care”, is concerned with
when a person will be negligent for “failing to take
precautions against a risk of harm”. Division 3 of Pt 1A,
entitled “Causation”, is concerned with whether
negligence “caused particular harm”. And Divs 4 and 5 of
Pt 1A are concerned with matters including the exclusion of
liability for “obvious risks”. In particular, Div 5
applies only in respect of “liability in negligence for harm
to [the plaintiff] resulting from a recreational activity engaged
in by the plaintiff”. In other words, Div 5 presupposes that
there would otherwise be liability for negligence arising from a
failure to take precautions against a risk of harm where that
negligent failure caused the harm. This conclusion is reinforced by
the terms of s 5L, as a defence that excludes liability in
negligence that would otherwise arise. In other words, s 5L is a
“liability-defeating rule”, of the same nature as those
defences that were formerly described as “confession and
avoidance”. 7

The question raised in this short article is the potential
application of that correct sequence approach to provisions in
respect of medical treatment liability, given a different approach
which had been promoted by the NSW Court of Appeal in earlier
decisions dealing with civil liability provisions regarding
materialisation of inherent risks 8 and regarding the
standard of care for professionals. 9

Materialisation of inherent risks (NSW)

Section 5I (“the inherent risk provision”) provides as
follows:

(1) A person is not liable in negligence for harm suffered by
another person as a result of the materialisation of an inherent
risk.(2) An “inherent risk” is a risk of something
occurring that cannot be avoided by the exercise of reasonable care
and skill.(3) This section does not operate to exclude liability in
connection with a duty to warn of a risk. 10

Returning to the majority’s comments in Tapp at
[111], it appears fair to say that the inherent risk provision also
comes after consideration of and a finding in relation to duty of
care and causation, in the structured approach taken in the Civil
Liability Act 2002 (NSW) (“the Act”). Like s 5L, it
creates circumstances in which a defendant is not liable in
negligence for harm. It is a liability defeating rule.

It is perhaps not as clear that the inherent risk provision
presupposes that there would otherwise be liability for negligence
arising from a failure to take precautions against a risk of harm
where that negligent failure caused the harm, given that subsection
(2) notes that an inherent risk is a risk of something occurring
that cannot be avoided by the exercise of reasonable care and
skill. Nevertheless, the correct sequence comment in Tapp (if
applied to s 5I) appears to conflict with the sequence promoted by
the NSW Court of Appeal in Paul v Cooke. 11 Ms
Paul underwent a scan to determine whether she had an intracranial
aneurysm. Her radiologist Dr Cooke negligently failed to diagnose
the aneurysm. Some three years later following a further scan, the
aneurysm was diagnosed. On the advice of her treating practitioners
and informed of the risks involved, Ms Paul underwent an operation
to remove it. During the course of that operation, and without any
lack of skill or care on the part of the surgeons, the aneurysm
ruptured, causing her to have a stroke and suffer serious
injuries.

If Dr Cooke had diagnosed the aneurysm in 2003, Ms Paul would
have undergone surgery then. The procedure Ms Paul underwent in
2006 (endovascular surgery) was different to the procedure she
would have undergone in 2003 (open neurosurgery). Based on
statistical evidence that the overall risk of stroke following
rupture during either procedure was less than 1%, it was highly
likely that Ms Paul would have suffered no harm had a procedure
been performed in 2003; that is, “but for” Dr Cooke’s
failure to diagnose the aneurysm in 2003, Ms Paul would have had
the aneurysm safely removed in 2003 and therefore would not have
had the surgery and suffered the harm in 2006. The delayed
diagnosis did not of itself increase the risks associated with
surgery, in that the aneurysm did not change in size, shape or
propensity to rupture during those three years.

In that matter Leeming JA, with Ward JA agreeing, said:

If a case can conveniently be decided under s 5I, it should be.
The language of s 5I reflects the elements of liability which the
plaintiff needs to establish. That is why it is framed in terms of
the broader causal language of “as a result of”,
reflecting the language of s 5A(1) rather than of s 5D(1), and why
its opening words are “A person is not liable in
negligence”. That is reinforced by s 5I(3), which carves out
from the operation of the section “to exclude liability”
a class of liability connected with a duty to warn. Section 5I does
not deny s 5D causation; rather it answers the implicit question
posed by the “claim” contemplated by s 5A(1) negatively:
the defendant is not liable for that claim for damages for harm
resulting from negligence. The reasons for my view that s 5I should
be applied if it is available are as follows. First, once s 5I is
engaged, there is no liability for a failure to exercise reasonable
care and skill. The entire inquiry under Part 1A comes to an end.
12

Standard of care for professionals (NSW)

Section 5O (“the peer professional opinion provision”)
relevantly provides as follows, in subs 1:

A person practising a profession (“a professional”)
does not incur a liability in negligence arising from the provision
of a professional service if it is established that the
professional acted in a manner that (at the time the service was
provided) was widely accepted in Australia by peer professional
opinion as competent professional practice. 13

Again, returning to the majority’s comments in Tapp
at [111], the peer professional opinion provision also comes after
duty of care and causation, in the structured approach taken in the
Act. Like s 5L, it appears that s 5O presupposes that there would
otherwise be liability for negligence arising from a failure to
take precautions against a risk of harm where that negligent
failure caused the harm. Adopting the words of the majority it
Tapp, it seems that this conclusion is reinforced by the
terms of s 5O, as a defence that excludes liability in negligence
that would otherwise arise. 14 It is a liability
defeating rule.

Again, the correct sequence comment in Tapp (if applied
to s 5O) appears to conflict with the sequence promoted by the NSW
Court of Appeal in South Western Sydney Local Health District v
Gould.
15 The respondent suffered a fracture to his
left thumb. He presented to Campbelltown Hospital and was
transferred to Liverpool Hospital. Apenicillin-derived antibiotic
(flucloxacillin) was administered to the plaintiff at Campbelltown
Hospital, and a cephalosporin (namely, cephazolin), was
administered at Liverpool Hospital later that evening. The critical
element of the finding of the primary judge was the failure to
administer an additional antibiotic drug, gentamicin, that evening.
That failure was found to have been a breach of duty and to have
caused the infection which led to the loss of the plaintiff’s
left thumb.

Addressing the appellant’s reliance on section 5O in that
matter Leeming JA, 16 with Basten & Meagher JJA in
agreement, had said:

. . . there is no sound reason first to find whether a
professional who has been alleged to have been negligent breached
his or her duty of care by reference to what has been held in
Rogers v Whitaker and Naxakis v Western General Hospital
(1999) 197 CLR 269; [1999] HCA 22, only then to determine, in
accordance with s 5O, that the erstwhile breach of duty does not
incur any tortious liability. 17

Conclusion.

In Tapp, the majority explained the importance of
attention to the correct sequence since s 5L (the provision under
consideration in that matter) operates upon established liability
based on duty, breach, and causation of harm. Accordingly, the risk
to which s 5L refers must be the same risk that has materialised as
a result of the harm for which liability in negligence would arise.
That is the risk to which s 5B refers, in the context of the
requirement to establish a breach of a duty of care, upon which, in
turn, the requirement of causation depends. 18 As a
reminder, s 5B(1)(a) requires a foreseeable risk (being a risk of
which the person knew or ought to have known) and s5B(1)(b)
requires that risk to be not insignificant. 19

Section 5I requires a defendant to establish that an inherent
risk has materialised. It is accordingly difficult to see why a
different approach should be taken in matters which require
consideration of s 5I, than in matters which require consideration
of s 5L.

Section 5O requires a defendant to establish that the
professional acted in a manner that (at the time the service was
provided) was widely accepted in Australia by peer professional
opinion as competent professional practice. It does not expressly
refer to risk, but it does require attention to a liability in
negligence arising from the provision of a professional service. To
avoid that liability the professional must have acted in a manner
that (at the time the service was provided) was widely accepted in
Australia by peer professional opinion as competent professional
practice. In doing so, the relevant practice appears to be that
said to have been followed in the context the same risk that has
materialised as a result of the harm for which liability in
negligence would arise.

Accordingly, it appears safe to conclude, that consistent with
the approach taken by the majority in Tapp in respect of s 5L, when
addressing both the 5I and the s 5O defences, s 5B should be
addressed first so as to identify the risk that was foreseeable and
not insignificant.

Footnotes

1. Tapp v Australian Bushmen’s
Campdraft & Rodeo Association Ltd
(2022) 399 ALR 535;
[2022] HCA 11; BC202202538 (referred to in this article as
“Tapp”).

2. The appellant, Ms Tapp, was an experienced
horse rider and campdraft contestant. During a multi-day
campdrafting event organised by the respondent, in a time period of
around45 minutes, four other contestants had falls while competing.
After the first three falls, an experienced campdrafter, Mr Stanton
approached one of the event organisers and said that the
competition should be stopped because the ground was becoming
slippery. After discussing the ground condition and speaking with
two of the contestants who fell, the organisers continued the
competition. After the fourth fall, Mr Stanton again approached an
organiser and said that he thought the ground was
“unsafe”. The organisers delayed the competition to
discuss the conditions but decided to continue. Shortly thereafter,
Ms Tapp competed and fell when her horse slipped on the ground of
the arena. She suffered a serious spinal injury.

3. Gordon, Edelman & Gleeson
JJ.

4. Section 5L of the Civil Liability Act 2002
(NSW) is headed “No liability for harm suffered from obvious
risks of dangerous recreational activities”. See also Civil
Liability Act 2003 (Qld)s 19; Civil Liability Act 2002 (Tas) s 20;
Civil Liability Act 2002 (WA) s 5H.

5. Tapp, [110].

6. Above. With thanks to Dominic Villa SC and
to Associate Professor Neil Foster for noting this aspect of the
reasons for judgment.

7. Tapp, [111]. Footnotes omitted.

8. Section 5I, Civil Liability Act 2002
(NSW).

9. Section 5O, Civil Liability Act 2002
(NSW).

10. See also Civil Liability Act 2003 (Qld) s
16; Civil Liability Act 1936 (SA) s 39; Wrongs Act 1958 (Vic) s 55;
Civil Liability Act 2002 (WA) s 5P; noting however the reference to
harm, rather than risk in Western Australia.

11. Paul v Cooke (2013) 85 NSWLR 167;
[2013] NSWCA 311;BC201313041.

12. Above, [53]-[4].

13. See also Civil Liability Act 2003 (Qld) s
22; Civil LiabilityAct 1936 (SA) s 41; Civil Liability Act 2002
(Tas) s 22;Wrongs Act 1958 (Vic) s 59; Civil Liability Act 2002
(WA)s 5PB; with some variations in wording.

14. Sparks v Hobson; Gray v Hobson
(2018) 361 ALR 115; [2018]NSWCA 29; BC201801378; [126] per Simpson
JA.

15. South Western Sydney Local Health
District v Gould
(2018) 97NSWLR 513; [2018] NSWCA 69;
BC201802707.

16. Notwithstanding that opinion, Leeming JA
later sitting as a trial judge in Zhang v Hardas (No 2)
[2018]NSWSC432;BC201802771made separate findings, firstly in
respect of s 5O and secondly in respect of s 5B. That was said to
be necessary because of the contest on the application of s 5O to
chiropractors and the absence of any authority on that
point.

17. South Western Sydney Local Health
District v Gould
(2018) 97NSWLR 513; [2018] NSWCA 69;
BC201802707; [127].

18. Tapp, [112].

19. See also Civil Liability Act 2002 (ACT) s
43; Civil Liability Act 2003 (Qld) s 9; Civil Liability Act 1936
(SA) s 32; Civil Liability Act 2002 (Tas) s 11; Wrongs Act 1958
(Vic) s 48; Civil Liability Act 2002 (WA) s 5B.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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