Torts: Cases and Commentary

The assignment provided is based on the topic 'Torts: Cases and Commentary' by Luntz et al. (2017). It requires students to analyze various torts cases, including Donoghue v Stevenson (1932), F v R (1984), Slater v Baker (1767), Sparks v Hobson; Gray v Hobson (2018), and Hall v Semple (1862). The assignment also touches on the concept of duty of care in negligence law. Students are expected to demonstrate a clear understanding of torts principles and their application in different scenarios.

The Standard of care in
Australian Negligence law:
Role in limiting the behaviour
of doctors

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
Basic requirement of law of negligence in Australian...........................................................1
Role of standard of care to assess the liability for negligent actions......................................3
Australian law to understand the standard of care owed by doctors while treating their patients
................................................................................................................................................3
The potential of being liable for compensation payout and its impact on the behaviour of
doctors....................................................................................................................................5
CONCLUSION................................................................................................................................6
REFERENCE...................................................................................................................................7

INTRODUCTION
Negligence is a part of the tort law which is defined as the failure to exercise reasonable
care and skill towards a person or a group of people. There is a significant amount of standard of
care imposed on a person under professional or business conduct which that must take care of
while exercising their roles and duties. The most crucial duty of all the profession in the world is
the is of a doctor. In the present report a discussion related with the standard of care is under the
negligence law is done. The role of duty of care in the medical profession is outlines as how it
limits the behaviours of the doctors while working in their profession.
MAIN BODY
Basic requirement of law of negligence in Australian
The tort of negligence is Australia is governed by both common and statute law. The
negligence is defined as a failure to exercise resonance care and skill. A person can be negligent
in the way they do something or fails to do an act 1. For the instances where such act or omission
have resulted in harm and have incurred injury to the other person to whom the negligent
individual owed a care f duty, it becomes a legal matter. To establish the tort of negligent
towards a person, business or a professional, the following elements must be proved on the
balance of probability:
Duty of care:
The standard of care on a person depends on the existence of particulars kind of relation
ship between the parties. Under the law there are defined relation where the proximity of
establishing tort of negligence is intact. But there list is not closed one, the court before imposing
a duty of care and its negligence on a party first determined the proximity of relationship
between the parties. But there are predetermined relations where there exist a care of duty and
courts will not look in the matter of duty or care rather it will see through the matter of
negligence of the standard of care. These relations include, land owner and tenant, occupier and
visitor of the land, teacher and their student, doctors and patients, manufacture and costumers,
employer and employee and road user and another road user.
1 Luntz, H and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
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A standard/ duty of care exist when there is a reasonable foreseeable risk of harm or
injury occurrence to anther person. When the harm is foreseeable a reasonable care must be
taken by the party owning duty of care to avoid the occurrence of such harm.
The standard of care:
The form of relationship between the parties dictate the standard of care. To determine
the standard, reference is taken as what a reasonable person should have done if he/she had been
in the same place2. For instance a standard of care of a doctor towards their patients is high when
they perform a medical procedure than the standard of care an owner has towards its tenant.
Breach of the duty:
The breach of duty is when the standard of care is not met. A person who owes a care of
duty if fails to abide with such duty to abide a foreseeable risk of harm to another there is a
breach of the duty of care. To establishes this factors certain conditions must be fulfilled. These
are the harm or damage which have occurred was foreseeable, the risk was not far fetched or
fanciful and a person with reasonableness would have taken a significant steps to avoid the risk,
under the same circumstances.
Causation:
To establish the liability of the negligent act or omission one of the essential requirement
is to proved that the injury caused is not only by the negligence but also there is a significant
legal relationship between the act and the negligence.
Damages in form of harm or injury:
The last element under the tort of negligence is related with demonstration of harm
caused due a person to the negligence of another individual3. The harm occurred include, a
physical and psychological injury to a person, an economic loss or damages to the personal
property. The harm must be caused due to the breach of the duty of care.
2 He, Q., Feng, J. L. and Huang, W. Y., 2016, August. Law of Negligence: Duty of Care,
Standard of Care, and the Notion of Personal Responsibility. In 2016 International
Conference on Management Science and Management Innovation. Atlantis Press.
3 Rock, E. and Weeks, G., 2018. Monetary awards for public law wrongs: Australia's
resistant legal landscape. UNSWLJ, 41, p.1159.
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Role of standard of care to assess the liability for negligent actions
To impose duty of care upon a person the first element is to identify the existence of duty
and standard of care owed to the person under harm or injury. First of all the present of
proximity relation is seen to determined whether a liability of duty of care is present or not. IF
there is a close relation between the negligent party and injured party, it is seen that there is a
care of duty owed or not. Where, care of duty is owed then next comes the breach of duty due to
negligence of party owing care of duty. So it is clear that assess and impose the liability of
negligence tort on a party one of the essential element to be proved is the owing a duty of care to
the person who has suffered injury by the negligent individual.
Australian law to understand the standard of care owed by doctors while treating their patients
As per the directions of the courts there are certain specifies relations under which there
is an automatic presence of care of duty4. One of this relationship is of a doctor and patients. In
this relation the doctors owes a care duty towards their patient under the medical treatment. They
are responsible to inform the patients about all the possibilities of a treatment which he/she is
going under5. The doctors have a clear responsibility to tell their patient about any of the risk
associated with the medial treatment related with success, failure and death changes under the
treatment. This is required so that a patient can make an informed decision. The standard of care
is a fiduciary duty which is imposed on doctors under their profession as they are the one who
have control over the life and death of their patients.
Liability of doctors:
Specific duties of the health care practitioners:
The standard of care and skill requirement of the doctors and other professionals in the
health care sectors are, this was established in the case of Rogers v Whitaker 6, as:
 Duty of notify patients about the treatment and risk related with it
 Duty to render assistance to the patient under their treatment
4 Owen, J., 2018. TEARING UP THE PATCHWORK QUILT: AN EXAMINATION OF
HOW, WHY AND WHEN LIABILITY FOR PSYCHIATRIC INJURY IN THE TORT
OF NEGLIGENCE IS IMPOSED. Plymouth Law & Criminal Justice Review. 10.
5 Foster, N. J., 2019. High Court of Australia decision on WHS law.
6 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992)
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 Duty to keep up to date informations and record about the patients over their treatment Duty towards family members and partners to keep them in loop about the treatment and
provide in sufficient information so that they can make informed decision.
Hall v Semple and actions of negligence
This was the case where the negligence action of the medical professional was
established7. As the doctors gave a certificate on non competency to a person in a time span of
just 10 minutes, who was released form the asylum. After this case the actions of negligence
under the health care professions was established as:
 The defendant owed a duty of care towards the plaintiff.
 There was a breach of standard of care attached to the duty by defendant.
 The breached caused harm to the plaintiff,
 The harm was foreseeable.
Civil Liability act
Standard of care attached to the health care professionals:
In the medical practices the health care professionals are imposed with a duty of care
through the Lord Atkins neighbouring rule which was first set out in the case of Donoghue v
Stevenson, 1932. This required a proximate relation between the parties which exists among the
health care professionals and their patients under their care8. The standard of care also depends
on the circumstances and the involved individuals. The standard of care is related to the ordinary
carefulness and competent practitioners which was established in case of F v R (1983)9. The
medical professional is required to have a special skill a while exercising and professing a
treatment on patient and it was established in the case of Rogers v Whitaker (1992) 175 CLR
479, 483.
Breach of duty of care:
It is stated in the provision of this act that an action or omission of a health professional is
not a negligent act or omission when is in accordance with the practice and it is widely
acceptable by the health care professionals peers as a competent practice. Such an action or
7 Hall v Semple (1862) 3 F & F 337.
8 Donoghue_v_Stevenson__1932__UKHL_100__26_May_1932
9 F v R (1984) 33 SASR 189
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omission is considered as negligent when it is unreasonable and no health care professional
would have acted in this direction under the practice.
Sparks v Hobson [2018] , forseeability of the risk and compensation
In this case the foreseeability of risk was imposed and held that a person can only be
liable for negligence when there is failure to take reasonable care for prevention of certain kind
of the foreseeable harm for the patients by a doctor10. Even it was stated in this case that a
compensation can be imposed on the defendant when the harm suffered was foreseeable and
there were possible consequences of the same.
Salter v baker and action of negligence:
For case of Salter v baker (1767) 2 Wils KB 359 the key issues outlined by court were
related to the knowledge and level of expertise owed by the surgeon and apothecary11. the
treatment given for broken legs and taking consent form patient to make an informed decision.
The decision of this case was that the surgeon and the apothecary was jointly held liable for the
treating the broken leg of the patient by fitting an iron rod in the leg of patient which was stated
as a technical experiment on part of the doctors. Also, the consent was gained to use the law of
the surgeon.
This can be stated that the doctor directly owes a duty of care and under the standard of
care for towards and for acts and omission constituting a breach of care, a negligence on part of
health care professionals is established. This make the doctors liable to pay the compensation
when determined by the court under the law.
The potential of being liable for compensation payout and its impact on the behaviour of doctors
The compensation liabilities are imposed on the doctors in health care professional who
owed a duty of care towards their patients and breached the same. In this context when the
potential of compensation payouts is compulsory and with requirement of admission of the
liability there is a direct impact on the actions taken by the doctors12. The doctors while carrying
out their claim treatment to the patients become more diligent and careful to abides by their
standard of care, duty of care for their patients. The compensation imposed can by huge so to
avoid this the doctors and other health care practitioners duty carry out their treatment and
10 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
11 Slater v Baker (1767) 2 Wils KB 359, 95 ER 860
12 Tensions and Traumas in Health Law, 2018
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medical procedure on the patients without a lag so the negligence actions can not be brought
against them.
CONCLUSION
To conclude this report it can be stated that in the Australian law there are provisions
related with the tort of negligence where a person owes a duty of care towards anthers in general
and also under specifies relations. The care of duty when breach is set on the basis of negligent
action of the person who owed the care of duty. Moreover, it can be articulated that the relation
of doctors and patients have a proximity and there is a standard of care which a doctor have
towards its patients. Different cases have been discussed in the report where the negligent actions
of doctors were established and held liable towards the patients. The impact of compensation
payout imposed on the doctors have a direct impact on this action as become more diligent while
carrying the treatment and strictly abide with the care of duty to avoid payment of the
compensation to their patients for negligent actions of omissions.
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REFERENCE
Books and Journals
Luntz, H and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
He, Q., Feng, J. L. and Huang, W. Y., 2016, August. Law of Negligence: Duty of Care, Standard
of Care, and the Notion of Personal Responsibility. In 2016 International Conference on
Management Science and Management Innovation. Atlantis Press.
Foster, N. J., 2019. High Court of Australia decision on WHS law.
Owen, J., 2018. TEARING UP THE PATCHWORK QUILT: AN EXAMINATION OF HOW,
WHY AND WHEN LIABILITY FOR PSYCHIATRIC INJURY IN THE TORT OF
NEGLIGENCE IS IMPOSED. Plymouth Law & Criminal Justice Review, 10.
Rock, E. and Weeks, G., 2018. Monetary awards for public law wrongs: Australia's resistant
legal landscape. UNSWLJ, 41, p.1159.
Online
Tensions and Traumas in Health Law. 2018. [Online]. Available through
:<http://www.federationpress.com.au/bookstore/book.asp?isbn=9781760021498>.
The Patient and the practitioner. 2018. [Online]. Available through
:<https://researchers.mq.edu.au/en/publications/the-patient-and-the-practitioner-health-law-and-
ethics-in-austral>.
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992 . 2018. [Online].
Available through
:<http://www.paci.com.au/downloads_public/court/12_Rogers_v_Whitaker.pdf>.
Hall v Semple (1862) 3 F & F 337. 2018. [Online]. Available through
:<https://journals.sagepub.com/doi/abs/10.3109/00048678609158876>.
Donoghue_v_Stevenson__1932__UKHL_100__26_May_1932_. 2018. [Online]. Available
through :<https://www.uni-trier.de/fileadmin/fb5/FFA/KURSUNTERLAGEN/Anglo-
Amerikanisches_Recht/Law_of_Torts/Siry-SS-2012/
Donoghue_v_Stevenson__1932__UKHL_100__26_May_1932_.pdf>.
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
. 2018. [Online]. Available through :<https://www.meridianlawyers.com.au/insights/sparks-v-
hobson-gray-v-hobson-2018-nswca-29-prelude-expansion-peer-professional-opinion-defence-
nsw/>.
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Slater v Baker (1767) 2 Wils KB 359, 95 ER 860
. 2018. [Online]. Available through :<https://auckland.rl.talis.com/items/7A54FFFD-F2C5-
4F4B-4163-F35AD1EFE5CB.html>.
F v R (1984) 33 SASR 189. 2018. [Online]. Available through
:<https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/
F_v_R.html>.
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