Summary of Court Cases


Negligence & Bolam

Rogers v Whitaker (1993) 67 ALJR 47: The Bolam Test [below] does not determine negligence – the court does. In this specific case the consent procedures for an ophthalmological procedure were not appropriately patient centered. Specifically:


[A] risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient if warned of the risk, would be likely to attach significance to it.


Bolam v Friern Hospital Management Committee [UK – PRE 1993]: The ‘Bolam’ test, whereby a medical practitioner who subscribes to a reputable school of clinical thought or practice cannot be found to be negligent. Not strictly used in Australia post Rogers v Whittaker, however has moved back towards this approach post tort law reform.


Civil Liability Act 2003: Restores much of the Bolam defense:

“a person practising a profession… 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.”


This Act has no impact on Roger v Whittaker as it relates to the provision of consent.


Other Issues of Consent (treatment of Battery – Assault; Minors)

Rosoneberg v Percival (post Rogers v Whitaker) The High Court dismissed a claim for damages against an oral surgeon on the grounds that even if the risk inherent in the operation had been disclosed to the patient at the time of obtaining her consent, it would not have influenced her decision to undergo the procedure.


Battery & Assault in Informed Consent

Chatterton v Gerson and another [1981] QB 432: Discusses the reasoning against including claims for trespass to the person (such as battery or assault) in cases founded in informed consent.



Gillick v West Norfolk Are Health Authority [UK]: Covers the obligation of a GP who gave a 16 y.o. the pill, without involving her parents. The Gillick verdict, which is central to how a minor’s ability to give consent is defined, articulated three strands of argument (with a fourth implied):

  1. Whether a girl under the age of sixteen had the legal capacity to give valid consent to contraceptive advice and treatment, including medical examination.
  2. Whether the giving of such advice and treatment to a girl under the age of sixteen, without her parent’s consent, infringed the rights of her parents.
  3. Whether a doctor who gave such advice or treatment to a girl under the age of sixteen without her parents consent incurred criminal liability.
  4. Whether a girl under the age of sixteen should have an expectation that such a consultation be kept confidential by the practitioner. (less formally stated)


Secretary, Department of Health v JWB (Marion’s case) (1992) 175 CLR 218: The High Court, in Marion’s case held that in appropriate circumstances authorisation to undergo certain procedures is a matter for the Family Court of Australia to decide and not for the parents.


Duty of Care

Woods v Lownes & Anor (1995): A child sustained severe brain damage and became a quadriplegic as a result of prolonged fitting. Dr Lownes, a general practitioner was held liable for damages because of a failure to attend the child (who was outside his surgery), even though the child was not his patient.


NSW Medical Practice Act 1992, Section 36 (1)

“refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another registered medical practitioner attends instead within a reasonable time”.


Duty of Care to Partners

BT v OEI (1999): Dr Oei, a GP failed to diagnose BT with HIV. Consequently BT's partner contracted HIV. The Court held that a general practitioner owed a duty of care to a sexual partner of the practitioner’s patient in certain circumstances.


Risk to sexual partners versus patient privacy

Harvey v PD [2004] NSWCA 97: Two partners (PD and FH) were consented and initially treated simultaneously by Dr Harvey. PD was HIV negative; FH was HIV positive. The couple engaged in unprotected sexual intercourse and PD subsequently contracted HIV. Dr Harvey claimed that he was unable to disclose FH’s HIV status to PD because to do so would breach the privacy provisions within law. The Court found that it was proper for a medical practitioner to counsel a patient diagnosed with HIV and attempt to persuade them to inform other persons who are at risk of infection.

Moral: if two people are being seen simultaneously, they should specifically consent for information to be available to each other after the fact.


Damages re: Wrongful Life and Wrongful Death

- Cattanach v Melchior: Wrongful life after a failed sterilization. This was followed by the section 71 changes to the Civil Liability Act (NSW) which removes the cost of raising a child from damages.

- Presland v Hunter Area Health Service and Anor: Wrongful death after a mentally ill patient was discharged then killed someone. Damages $310K plus costs to the plaintiff [the previously mentally ill person].

-----> Both remedied in NSW with Amendments to the Civil Liability Act 2003.


Access to Medical Records

- Breen v Williams NSW Supreme Court 1994 then High Court 1995: While doctors are obliged to provide ‘information’ to patients, they are not obliged to give them unfettered access to records. The records are the property of and belong to the doctors.

- Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 (20 April 2006)  Impact of concern for the health of the patient and need for public transparency of decision making.