High Court Determines Failure to Warn Principle - Rogers v Whitaker  HCA 58
Published 28 Apr 2016
Maree Whitaker, who had for many years been almost completely blind in her right eye, consulted Dr Christopher Rogers, an ophthalmic surgeon, who advised her that an operation on the eye would not only improve its appearance but would probably restore significant sight to it. Whitaker agreed to the surgery. After the operation there was no improvement to the right eye and Whitaker developed inflammation in the left eye that led to loss of sight in that 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 opthalmia 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.
Rogers argued that the issue should be resolved on by application of the Bolam Principle as applied in the UK (Bolam v Friern Hospital Management Committee (1957) 1 WLR 582), described by Lord Scarman in Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871 as:
“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.”
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 soley or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.
In regards to peer professional opinion:
“…particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded, and, instead, the courts have adopted… the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make decisions about his own life’ (F v R (1983) 33 SASR 189”
In regards to the duty to warn:
“The law should recognise that a doctor has a duty to warn a patient of the material risk inherent in the proposed treatment; 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 be reasonable aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”
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