Australian Medical Liability Third edition Australian Medical Liability Third edition Bill Madden BA LLB (Hons) (Macquarie); FAAL Accredited Specialist (Personal Injury Law) Janine McIlwraith B Med Rad Sci (R/T) (Newcastle), LLB (Hons) (Wollongong), GDLP, LLM (Sydney) Benjamin Madden B Sc (Sydney) J D (University of Technology Sydney) LexisNexis Butterworths Australia 2017 LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Madden, Bill. Title: Australian medical liability. Edition: 3rd edition. ISBN: 9780409345926 (pbk). 9780409345933 (ebk). Notes: Includes index. Subjects: Medical care — Law and legislation — Australia. Medical laws and legislation — Australia. Medical personnel — Malpractice — Australia. Liability (Law) — Australia. Other McIlwraith, Janine F. (Janine Flora). Madden, Authors/Contributors: Benjamin. © 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2008. Second edition, 2013 (Reprinted 2014). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Adobe Garamond Pro and Syntax. Printed by Griffin Press, Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au Foreword It is a great pleasure to welcome this third edition of Australian Medical Liability. It arrives in a timely progression: five years separated the first and second editions; four years now separates the second and third editions, thus reflecting the steadily increasing flow of medical liability cases. Fortunately for the readership, in this edition the authors have uncompromisingly continued to build upon the very high standard of scholarship evident in the two earlier editions, with logical expansions and organisation of the component parts to facilitate ease of authoritative research. The cited case law is cross-jurisdictional. It is up to date on the application of common law principles in the context of the continually evolving understanding of how statutory reforms are interpreted and applied both at first instance and on appeal, when it becomes necessary to define the scope and content of the duty of care owed, to determine breach of duty, and to establish the several components of causation. This work will continue to provide conveniently reliable guidance and relevant information to the judiciary as well as to teachers, practitioners and students in the fields of law, medicine and related disciplines. We congratulate the authors on their achievement in producing this enhanced and timely edition of their work. Julia Lonergan Judges’ Chambers Supreme Court of New South Wales Leonard Levy Judges’ Chambers District Court of New South Wales 20 June 2017 Preface Justice Julia Lonergan and Judge Leonard Levy have written a generous Foreword for this third edition of Australian Medical Liability, for which we are very grateful. Following almost 10 years after the first edition, the rewriting process has highlighted the ongoing development of the law and reminded us of the many challenges raised for the courts by the progress of medicine and medical practice. Some legal issues have been clarified since the first and second editions, but many remain for careful consideration by the courts. In the ‘failure to warn’ area, is the skill of the practitioner a material risk that should be conveyed to the patient in some circumstances? When might a medical practitioner be liable for failure to facilitate communication of risk to a non-patient, such as in relation to a patient’s disclosure of intention to harm, or a patient’s refusal to allow genetic test outcomes to be conveyed? In medical treatments facilitating reproduction, what compensation should be awarded where an error is made in selecting donor gametes, or where donor characteristics are misrepresented? The law is only beginning to grapple with those topics. We wish to thank Associate Professor Tina Cockburn of the Australian Health Law Research Centre at the Queensland University of Technology, whose publications have formed the basis for a number of discussions in this book. Behind the scenes and so not cited in the text are many colleagues practising in the medical litigation area who have helped us with their insights and support, including David Higgs SC, Richard O’Keefe, Richard Royle and Hilbert Chiu. The support and assistance of Georgina Gordon of LexisNexis is gratefully acknowledged, along with that of Georgia O’Neill who has for the third time patiently edited the text. As always, our families have been patient during the re-writing process which inevitably takes longer than we first promise. Their support is invaluable. We offer our apologies for any accidental infringement of copyright. Any errors are, of course, our own. This book is dedicated to John Madden and Tim James. Bill Madden Janine McIlwraith Benjamin Madden 21 June 2017 Table of Cases References are to paragraph numbers A A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 …. 19.4 — v Schulberg (No 2) [2014] VSC 258 …. 10.87, 23.39 A & B by C (Their Mother & Next Friend) v A – Health & Social Services Trust [2011] NICA 28 …. 19.4 AAA v BBB [2005] WASC 139 …. 5.15 AB v CD [2016] IEHC 541 …. 2.5 — v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 …. 6.4 — v McKimm & Central Gippsland Health Service [2015] VCC 987 …. 21.17 ABC v St Georges Healthcare NHS Trust [2015] EWHC 1394 …. 5.19, 19.4 ACB v Thomson Medical Pte Ltd [2017] SGCA 20 …. 19.4 Ackland v Commonwealth of Australia [2007] NSWCA 250 …. 15.9 Adams v Laboratory Corporation of America 760 F 3d 1322 (11th Cir, 2014) …. 22.17 Adams by her next friend O’Grady v State of New South Wales [2008] NSWSC 1257 …. 15.18 Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; 260 ALR 628; [2009] HCA 48 …. 1.1, 4.56, 5.25, 9.2, 17.11, 17.14 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 1.19, 3.4, 3.20, 7.9, 7.17, 10.83 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 4.10 Alexander v Heise [2001] NSWCA 422 …. 4.37, 10.2