Dr Charles Douglas1
1University of Newcastle, Callaghan, Australia
The tort of negligence requires the complainant ‘to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury.’ But of course, a professional has special knowledge and skills, so in professional negligence the standard of ‘reasonable care’ is hard for the layperson to judge. By the time of the landmark judgment in Bolam v Friern Hospital Management Committee in 1957, it seems to have been uncontroversial that ‘in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time’. That assertion seems to be common sense, and the law with regard to standard of care in medical negligence cases still relies largely on peer opinion. But the original common law ‘Bolam Principle’ – where a doctor could not be found negligent if acting ‘in accordance with a practice accepted as proper by a responsible body of medical men’ – did not survive in Australia. A modified version of the principle was incorporated into statutory reforms throughout Australia in 2002-2003, following the recommendations of the Ipp Report. However, judges in the NSW Court of Appeal in Dobler v Halverson (2007) , McKenna v Hunter & New England Local Health District  and most recently Sparks v Hobson; Gray v Hobson  have shown widely disparate opinions about the interpretation of the modified (statutory) version of the Bolam rule in NSW, section 5O of the Civil Liability Act 2002. In this presentation the legal controversies are discussed. It is argued that the ‘wrong’ interpretation of 5O will allow courts to choose between plaintiff and dependent expert’s opinions, and decide medico-legal standards without adequate reference to the original science.
Charles Douglas is senior lecturer in Clinical Ethics and Health Law at the University of Newcastle. He has a PhD in end of life decision-making, is a practising cancer surgeon, and is currently studying for a Juris Doctor.