Plaintiff v Defendant

Supreme Court of Victoria|2012-06-12|Before: MACAULAY J

TORTS - Negligence - Medical practitioners - Common law standard of care for professionals - Rogers v Whitaker - Statutory prescribed standard of peer professional opinion - Construction of statute - Wrongs Act 1958 (Vic), s 59 - Whether s 59 supersedes common law standard - Whether s 59 creates a statutory defence to common law negligence - Whether s 59 imposes evidentiary burden or legal burden on defendant - Civil Liability Act 2002 (NSW),

**1 Mrs Toula Brakoulias, the plaintiff, suffered a cardiac arrest on 11 December 2004 when 50 years of age. She stopped breathing. Before being resuscitated by paramedics she was substantially deprived of oxygen for 26 minutes. As a result she has suffered serious, long-term injuries, including loss of motor and cognitive function, speech impairment, loss of memory, and other consequential injuries.

2 About four months before her cardiac arrest she had been prescribed a weight loss drug called Reductil by her local general practitioner, Dr Karunaharan, the defendant. Mrs Brakoulias took the drug up until (and including on) the day of her cardiac arrest.

3 In this case Mrs Brakoulias alleged that Dr Karunaharan was negligent in prescribing her Reductil, and that the taking of Reductil caused her cardiac arrest and her injuries. Damages were agreed. Only liability was in issue. The trial was by jury.[1]

4 Prior to charging the jury I heard argument from counsel on the proper construction of s 59 of the Wrongs Act 1958 (Vic). Specifically, the question was whether that section: (1) sets out a defence, (2) simply defines the content of the standard of care applicable to a professional against whom a claim in negligence is brought, or (3) does something in between.

5 In 2004, as now, s 59 stated as follows:**

(1) A professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

(3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

(5) If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reasons for that determination.

(6) Sub-section (5) does not apply if a jury determines the matter.

6 This question does not appear to have been considered by the Supreme Court of Victoria, although there are two relevant NSW Court of Appeal decisions on the equivalent provision in that state to which I will refer in due course.

**7 Mr Casey QC, who, with Mr Richardson, appeared for the plaintiff, argued that the section expresses a defence available to a defendant. He argued that the legal burden of establishing the facts which give rise to that defence is cast upon the defendant.

8 He argued that, in the current case, Mrs Brakoulias must discharge a legal burden of proving negligence upon the standard of care under the common law of Australia, as currently formulated in the High Court's decision in Rogers v Whitaker. The majority of the court in that case said that 'the standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that specialised skill.'[2] If Mrs Brakoulias does so, he contends that she must succeed unless Dr Karunaharan is able to establish the defence stipulated in s 59. To make out that defence Dr Karunaharan must discharge the legal burden upon her to establish the conditions set out in the section.

9 Mr Gorton SC, who, with Ms Knoester, appeared for the defendant, submitted otherwise. However, he did not argue that s 59 supersedes the common law. Rather, he argued that s 59 is a mechanism to accommodate the prospect that there may be more than one reasonable practice for a professional to adopt in a given circumstance: one with which the defendant may have failed to comply but one or more others with which the defendant did comply. He argued that s 59 is designed to cater for that circumstance to ensure the defendant is not held liable for negligence if he or she acted according to a reasonable professional practice. So much was not so different from Mr Casey's position.

10 But, Mr Gorton contended that s 59 operated in a different way than that advocated by Mr Casey. He argued that if the plaintiff makes out a prima facie case of negligence on the standard of care expressed in Rogers v Whitaker then an evidentiary burden is cast upon the defendant to adduce evidence of a practice, with which the defendant's practice complied, which accords with peer professional opinion as described in s 59.

11 Furthermore, so the argument goes, if the defendant does adduce such evidence then, (1) the defendant is to be judged according to that standard; and (2) the legal burden of proof remains upon the plaintiff to prove negligence in accordance with that standard[3]. That is, the plaintiff must either negate the asserted peer professional opinion or prove that the defendant's conduct did not accord with it.

12 Hence, there seem to be three possible approaches to s 59:**

(a) first, that it entirely supersedes Rogers v Whitaker and exclusively expresses, albeit in a negative form, the standard of care which the plaintiff must now prove that the defendant professional failed to meet (the exclusive standard approach);

(b) second, that the common law test described in Rogers v Whitaker still applies unless the defendant adduces evidence of a peer professional opinion, in which case the standard set out in s 59 is the standard which the plaintiff must prove the defendant failed to meet (the evidentiary burden approach); or

(c) third, that the common law test described in Rogers v Whitaker still applies insofar as the plaintiff's legal burden is concerned but, if a prima facie case is made out on that standard, the defendant professional may defend himself or herself by proving that their practice complied with a peer professional opinion in accordance with s 59 (the defence approach).

13 Before charging the jury I announced to the parties that I had decided to adopt the third ('defence') approach - the position advocated on behalf of the plaintiff, giving only a short summary of my reasons for doing so. I said I would publish more extensive reasons in due course. These are those reasons.

Does s 59 exclusively state the standard of care for professionals?

**14 The first of the three alternatives set out above, which neither party advocated, had some initial attraction.

15 That attraction emerged from a combination of considerations, the first being the apparent reason for the introduction of s 59.

16 Section 59 was introduced in 2003 by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic). That Act inserted a new Part X into the Wrongs Act. Part X, headed 'Negligence', has Divisions dealing with duty of care, causation, awareness of risk, negligence of professionals and persons professing particular skills (division 5), non-delegable duties and vicarious liability, and contributory negligence. Significantly, and somewhat elliptically, s 47 provides:**

Except as provided by this Part, this Part is not intended to affect the common law.

**17 When introducing the bill in 2003 the then Treasurer, Mr Brumby, made it clear that the bill represented the government's delivery on the implementation of the Ipp Report. The Ipp Report was the report of a panel headed by Justice Ipp, commissioned by Commonwealth, State and Territory governments, titled 'Review of the Law of Negligence: Final Report (September 2002)'[4].

18 When dealing with professional negligence, specifically medical negligence, the panel identified the issue to be addressed in this way:[5]**

The issue that principally causes controversy in regard to the standard of care applicable to the treatment of patients is whether the court should be the ultimate arbiter of the standard of care or whether it should defer to some designated body of opinion within the medical profession. Until Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, it was thought by many that the law on this question in Australia was embodied in the socalled 'Bolam rule', although courts had expressed reservations about its application in Australia. The rule derives from a famous statement by McNair J in the English case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582:

a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... merely because there is a body of opinion that would take a contrary view.

**19 Several things might be noticed straight away. First, the issue was cast in terms of who should primarily determine the standard of care: the court, or the profession?

20 Secondly, as appears from the original formulation of what is known as the Bolam test, the test for the applicable standard of care was expressed in the negative, viz 'a doctor is not guilty of negligence if ...'. As far as I am aware, despite being so expressed, the Bolam test was never perceived to be a defence. Rather, it was thought to express, albeit in a negative form, the standard of care applicable to a doctor. When invited to submit otherwise, neither counsel in the case before me submitted that Bolam had been understood to operate as a defence.

21 The panel recommended what it termed a 'modified version' of the Bolam rule as the test to determine the standard of care in cases of alleged medical negligence:**

In the Proposed Act, the test for determining the standard of care in cases in which a medical practitioner is alleged to have been negligent in providing treatment to a patient should be:

A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational.

**22 The 'modifications' were embodied in the words which ultimately came to be enacted, that is 'widely accepted' by a 'significant number' of 'respected practitioners': words designed to guard against the perceived risk that small pockets of the medical profession could become the arbiters of the requisite standard of medical practice even though a substantial majority of medical opinion would take a different view.

23 An additional modification was to reserve to the court the ability to discard the test if it considered the medical profession's practice to be 'irrational'.[6]

24 Otherwise, the features of the recommended test were that it was expressed in the negative (as was the Bolam test); it was said to be the test to determine the standard of care; and (subject to rationality) it was to be determined by reference to what the medical profession thought rather than a standard set by the court. Additionally, the panel recommended that the test be extended to cases involving an allegation of negligence against all 'professionals', not just medical practitioners.

25 The panel considered that the recommended rule, as formulated, relieved a doctor of negligence even if there was more than one opinion widely held by a significant number of respected practitioners.[7] But in so saying the panel made the only comment that was pertinent to whether the recommended test might operate as a defence. It said: [8]**

It provides a defence for any medical practitioner whose treatment is supported by any such an opinion, provided the court does not consider it irrational. It would not be for the court to adjudicate between the opinions.

**26 Except for that statement, there was no discussion concerning who was to bear the onus of establishing the peer professional opinion. Nor was there any discussion about the retention of the Rogers v Whitaker standard, or (assuming they were to do so) the way in which the two standards might operate together.

27 Returning to the second reading speech, Mr Brumby reiterated that the bill did not purport to establish in statute all principles relating to common law claims. Rather, he said that the bill had no impact on common law "except to the extent that the provisions in the bill specifically restate or modify the common law".

The bill also introduces the concept of 'peer professional conduct' as a presumptive test, to be applied by the courts to determine the standard of care owed in a claim that involves an allegation of negligence in relation to the conduct of a professional. This is known as the 'modified Bolam test'. [After stating its terms, he continued]... This provision draws upon recommendation 3 for the Ipp Report, but allows the court to reject peer professional opinion where it is satisfied that this opinion is 'unreasonable' rather than 'irrational'.

**29 There was no express mention of the bill modifying the common law by creating a defence, or in any way casting an onus upon the defendant to establish anything.

30 As already stated, when enacted s 59 was headed 'Standard of care for professionals'. In relation to Acts passed after 1 January 2001, headings to sections form part of the Act and are to be used in aid of interpretation of the provision.[9]

31 All these matters might incline one to the view that s 59 was intended to replace the Rogers v Whitaker standard of care in claims against professionals. That is, the Ipp Report recommended a modified Bolam test; Bolam was not a defence, but the formulation of the standard of care; neither Ipp nor the minister introducing the bill in the Victorian Parliament appeared to suggest that a two-step standard was being contemplated; nor was there any clear indication that the reform was intended to impose an onus upon a defendant to prove anything when previously a defendant had never had to do so; and, the parts of s 59 which are in the negative mirror those so expressed in the Bolam test.

32 Notwithstanding these considerations, I have ultimately decided (albeit with some hesitation) that the exclusive standard approach is not to be preferred.

33 It is not without some significance that the panel described the recommended provision as a 'defence' in the passage I extracted above[10], even though it appeared to be something of a throw-away line in the context of the whole report.

34 More significant, however, is the textual analysis of s 59. It is very difficult to construe the proposition that 'a professional is not negligent ... if it is established' that the professional acted in accordance with peer professional opinion, consistently with an onus of proof being cast upon the plaintiff. The only person with an interest in 'establishing' the existence of and compliance with a peer professional opinion, is the defendant. And the only reason the defendant has an interest in doing so is to gain the benefit of the exculpation the section provides. That bespeaks a defence.

35 Additionally, sub-ss (2) and (3) speak to circumstances in which peer professional opinion may or may not be 'relied on'. It seems to me that the only person likely to be wanting to rely upon peer professional opinion, in the contexts in which those words appear, is the defendant professional.

36 Mr Casey placed reliance upon the Victorian Court of Appeal's statements in Cavenett v Commonwealth of Australia.[11] There the court was dealing with the construction of s5(1A) of the Limitations of Actions Act 1958 (Vic). A difference between that section and the section currently in focus, was that the Limitations of Actions Act both created the limitation and qualified its operation - the question being whether the plaintiff had to bring himself within the qualification or the defendant had to exclude its operation. Here, if Mr Casey's argument is correct, the common law creates the liability and the statute only qualifies it. Notwithstanding that difference, I think that the principle for which the case stands still applies.

37 Chernov JA, with whom Maxwell P agreed, said:[12]**

It seems to me that the authorities recognise that where, as a matter of substance, a legislative provision enables a right or liability created by the statute to be defeated, the onus of establishing that the provision applies rests on the party seeking to invoke its operation. Put another way, where on its proper characterisation a provision can be said to be a qualification, exception or proviso to a general rule created by the statute, the burden of proof lies with the party seeking to fall within the qualification. This is particularly so where such a provision requires certain matters to be established before it can operate. The question whether the section has this effect is one of statutory interpretation and the necessary inquiry is whether it is to be characterised as a precondition or element of the right or liability created by the statute on the one hand, or, on the other, an exception to the right or liability which will otherwise operate. Thus, as the court said in Vines[13] :

... where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.

**38 The passage above assumes a right or a liability already in existence to which the subject provision is a qualification. In the present case, by assuming the existence of 'negligence' even before coming to s 59 one does, in a way, imply an answer to the issue by making that very assumption. That is, if negligence is already to be assumed, then that negligence must have been prima facie established upon some standard. And if so, upon what standard?

39 Mr Casey's argument is that before arriving at s 59, negligence must first have been prima facie established on the existing common law standard of Rogers v Whitaker which, he contends, remains unaffected by s 59. In many respects, whether that is so is the very question to be answered, so the argument is a little circular.

40 But, I accept that the language of the section, namely, 'a professional is not negligent if...', does assume the existence of general or primary grounds from which the liability arises. And the assumption of those primary grounds of liability can only sensibly be understood as the assumption of a failure to meet an applicable standard of care.

41 If s 59 assumes a primary failure to meet an applicable standard of care, but provides a qualification to liability if the conditions set out in the section are met, then it most likely assumes the continuing existence of the common law standard in Rogers v Whitaker.

42 In this regard it is helpful to be reminded that the amendments to the Wrongs Act introduced in 2003 were not intended to exhaustively state or codify the common law of negligence but, rather, to clarify or modify specific aspects of it.

43 Consistently with that view, s 59 modified the law of negligence with respect to claims against professionals by grafting a qualification onto the existing common law standard of care. That qualification enables professionals to escape a liability which the common law would otherwise impose. It only does so if the professional can bring himself or herself within the conditions it lays down.

44 In Dobler v Halverson[14] the New South Wales Court of Appeal was asked to decide whether s 5O of the Civil Liability Act 2002 (NSW) (the New South Wales equivalent of s 59) provided a defence or simply defined the content of the standard of care which the plaintiff had to prove the defendant failed to meet. Giles JA decided that it provided a defence. The two other members of the court agreed, one of whom, interestingly, was Ipp JA and the other was Basten JA.

Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 (the Review). It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly, as in the present case, there will be expert evidence called by the plaintiff to the effect that the defendant's conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O, the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care.

In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.

**46 The issue came up again in New South Wales in Sydney South West Area Health Service v MD[16]. The case raised the matter squarely. A doctor (the appellant) had appealed a decision of a judge who found, in an interlocutory judgment, that s 5O had to be specifically pleaded to be relied upon. It had not been pleaded. His Honour had refused leave to amend, found against the doctor and awarded damages in favour of the plaintiff.

47 The Court of Appeal was again asked to decide whether s 5O provided a defence not available at common law. Again it held that it was a defence, holding that the onus of proof lay upon the doctor-appellant, and that the relevant procedure rules required the material facts contemplated by s 5O to be pleaded.[17] Allsop P added these comments: [18]**

It is not just a matter of evidence. It [s 5O] transfers, to a degree, the onus of proof. It transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal. It also may raise, in other cases, although it did not here, issues as to schools of medical practice, the geographical or other areas in which those schools might obtain and other matters requiring specificity and particularisation.

48 There has been some academic comment about the differences between the expressions in s 59 of the Victorian Wrongs Act and s 5O of the New South Wales Civil Liability Act.[19] The latter is in these terms:

(1) A person practising a profession (a professional) 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.

**49 Attention has been drawn to the difference between stating that a defendant is 'not negligent' compared with 'does not incur a liability in negligence'. Whilst it might be arguable that the latter implies more clearly that negligence has otherwise been established, I think that the difference is only semantic. They are not so different as to denote different legislative intention.

50 Although the civil liability legislation around the country cannot truly be described as national uniform legislation, nevertheless, in view of the two New South Wales Court of Appeal decisions, the principles of judicial comity strongly support my acceptance of s 59 as constituting a defence.

51 That is, although the principle in Australian Securities Commission v Marlborough Gold Mines Limited[20] may not strictly apply, the rationale behind the decision remains persuasive. The two pieces of legislation share the same genesis, address the same issue and are expressed in very similar terms. I do not think I ought to adopt a construction of s 59 different to the one placed upon a cognate provision by two New South Wales Courts of Appeal unless convinced that their interpretation is plainly wrong. I am not so convinced.**

Defence or imposition of evidentiary burden only?

**52 For these reasons I am persuaded that s 59 of the Wrongs Act does not exclusively express the content of the standard of care applicable to claims of negligence against professionals.

53 The only remaining question is whether it truly operates as a defence, as has been found in New South Wales, or merely provides the defendant an opportunity to meet an evidentiary burden by adducing evidence of peer professional opinion, with the legal burden remaining on the plaintiff to negative it.

54 In my view, there is no support for the evidentiary burden approach either in the text of the legislation or in any of the extrinsic materials. Indeed, such an interpretation runs into real difficulties.

55 The difficulty is with the word "established" in s 59(1). Mr Gorton submitted that the defendant merely has to introduce or adduce evidence that the professional acted in a manner that was widely accepted by a significant number of respected practitioners whereupon it becomes the plaintiff's burden to prove (or establish) that the professional did not act in such a manner. To so read the section is to re-write it.

56 Mr Gorton's argument was that the construction for which he contended was necessary to accommodate the problem if there is evidence of more than one reasonable way for a doctor to act. But, even accepting that s 59 is addressing that issue, one is not necessarily driven to the conclusion that s 59 only alters an evidentiary burden. One can accept Mr Gorton's proposition but still accept that s 59 imposes a legal burden upon the defendant, not merely to bring forward evidence of a peer professional opinion with which the defendant's practice complied, but also to establish it on the balance of probabilities. In my view that is the proper construction.

57 He also argued that s 58 of the Wrongs Act embodies the Rogers v Whitaker rule. That may or may not be so; but it is not necessary to decide. Whether it be the case or not does not affect my conclusion.**

**58 As stated earlier, I concluded that s 59 of the Wrongs Act constituted a statutory defence to common law negligence. Defendant professionals can avail themselves of the defence by meeting the legal burden of establishing the facts required to make it out.

59 I therefore instructed the jury that, to prove negligence against a professional, a plaintiff must discharge the legal burden to prove negligence according to the common law standard of care, currently expressed in Rogers v Whitaker. If that burden is discharged, a defendant is to be found negligent unless the defendant establishes that he or she acted in a manner that accorded with peer professional opinion as set out in s 59 (provided it is not unreasonable). If that is established, the defendant must not be found negligent.**

[1] On 13 June 2012 the jury returned a verdict in favour of the defendant.

[3] See Purkess v Crittenden [1965] 114 CLR 165, 167-8 for the distinction between the two burdens of proof. In the current case, Dr Karunaharan had pleaded facts giving rise to the s 59 issue in her defence. But, as Mr Gorton correctly pointed out, r 13.07 of the Supreme Court (General Civil Procedure) Rules 2005 probably required it to be pleaded whichever burden applied.

[4] Panel for the Review of the Law of Negligence, Review of the Law of Negligence: Final Report (2002) (hereafter Ipp Report).

[6] The Victorian Parliament ultimately preferred the term 'unreasonable': see s 59(2).

[7] The ultimate form of the legislation in Victoria specifically reiterated this point in s 59(3).

[9] Section 36(2A)(a), Interpretation of Legislation Act 1984 (Vic).

[11] [2007] VSCA 88 (10 May 2007).

[13] Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ at 519 - 520.

[17] Per Hodgson JA [19]-[25], Allsop P [50]-[51] and Sackville AJA [58].

[19] Carolyn Sappideen, 'Bolam in Australia - More bark than bite'[2010] UNSWLawJl 17; , (2010) 33(2) UNSW Law Journal 386, 400; M Williams, 'Proving medical negligence across Australia', DLA Phillips Fox Health Law Bulletin May 2009.

Wrongs and Other Acts (Law of Negligence) Act 2003(Vic)