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Week 4 Cases Rogers v Whitaker Summary 1: Facts: Focus on “informed consent” but usefully states a range of fundamental tort principles. Mrs Whitaker had approached an ophthalmic surgeon (eye). Dr Rogers advised her that an operation on the eye would not only improve its appearance but would probably restore significant sight to it. Mrs Whitaker agreed to the surgery. One of her eye that she had a surgery on had a condition that predisposed her other eye to develop a condition as a result of the surgery on her affected eye – causing her to lose sight on her good eye. She sued Rogers in the Supreme Court of NSW for damages for negligence. Campbell J found Rogers liable in that he failed to warn Whitaker that, as a result of the surgery, she might develop a condition known as sympathetic ophthalmia in her left eye. He awarded damages of $808,564.38. An appeal by Rogers to the Court of Appeal was dismissed. He then appealed to the High Court. Issue: Rogers argued that the issue should be resolved on by application of the Bolam Principle: “The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.” Held: In their majority judgement Mason CJ, Brennan, Dawson, Toohey and McHugh JJ rejected this principle, noting that in relation to standard of care: “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” Summary 2 Facts: Patient was not warned about the consequences of having the eye surgery. She operated on her right eye and was told by the Dr that her sight may improve but did not warn her that her left eye would be subsequently affected (where she developed inflammation and lost sight as well). Issue: Duty to warn? Held: Mason CJ, Brennan Dawson, Toohey & McHugh JJ: 1. 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" 2. It extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case it is of course necessary to give content to the duty in the given case. What is consent? Rogers v Whitaker (1992) 175 CLR 479 “The patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure”. Medical Board of Australia, Good Medical Practice, 3.5.2 Obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency).

Australian Medical Association Code of Ethics, 1.1(k) Respect your patient's right to … make their own decisions about treatment or procedures. Morocz v Marshman 2015 Form of warning Morocz v Marshman [2015] NSWSC 325 at [109] No obligation to refer in scientific terms to possible medical or physiological changes to a patient following a particular procedure.  “Duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp”  Obligation is to refer in an easily comprehensible way to what the patient might be exposing herself in terms of risks or what she might possibly experience in the nature of side effects. Track record: Alleged need to disclose surgical history. Ms Morocz did not ask Dr Marshman for his surgical track record performing bilateral endoscopic thoracic sympathectomies; rates of success; rates of occurrence of particular post-operative complications. It would have been surprising had she done so. [192] - Not his obligation to volunteer information - entitled to refuse to provide it if asked. Therapeutic veto Morocz v Marshman at [166] – [167]:  Never the law that a cosmetic surgeon had duty to refuse elective surgery to a patient if their personal view or reasonable medical view was or ought to have been that the surgery was unnecessary or unwarranted  If it were so availability of purely narcissistic cosmetic procedures would be entirely foreclosed  Such surgeries necessarily carry with them a range of serious and potentially life-threatening risks which might seem disproportionate to the perceived benefits.  May be an ethical dilemma for surgeons offering these procedures in cases where according to their own assessment the risks outweigh the benefits - refusing to perform the surgery is an available option

Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21: Facts: Wright attended a course for call operators held by Optus. Wright was employed by a labour hire company who supplied services to Optus. On the 3rd day of the course, George, was found in an unauthorised place on the roof balcony of the premises. He kept calling for Wright. Hedges (course leader employed by Optus) found George on the roof balcony and immediately notified the incident to her superior, Willams, who attended the roof along with Dee, another employee of Optus. Wright was requested to go to George who kept calling his name by the employees of Optus. Wright reluctantly went to George. George attempted to lift Wright off his feet and throw him from the balcony, while also punching and hitting him. Dee then intervened and restrained George, allowing Wright to escape. The physical injuries Wright suffered were minor however he subsequently

developed a serious form of post-traumatic stress disorder. Wright commenced proceedings against Optus, seeking damages for psychological injury. Issue: Wright asserted the Optus owed him a duty of care analogous to that owed by an employed to an employee. Optus argued the only duty it owed was that owed by an occupier to a lawful entrant and as such it was not liable for any injury caused by the criminal acts of George. Trial: Campbell J found in favour of Wright, awarding him over $3.9 million in damages. (Appeal) Held: The decision was overturned in a 2:1 decision on Appeal in favour of Optus, with Basten and Hoeben JJA concluding that Optus did not owe Wright a duty to take care not to cause mental harm. Gleeson JA was in dissent. It was held that Optus did not owe a duty of care to Wright beyond the duty owed by an occupier to a lawful entrant. Also, it was held that had Optus owed a duty to protect Wright from the criminal actions of George, then Wright could not satisfy the requirements of s 32 CLA where the prospect of a person of normal fortitude suffering pure mental harm must be reasonably foreseeable. At [36] Basten JA noted that one effect of s 32 CLA is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that “a person of normal fortitude” might (b) “in the circumstances of the case” suffer (c) “a recognised psychiatric illness”, if reasonable care were not taken...