Medical Negligence Law in Australia

Legal Helpline: ☎ 1800 529 835

Below is an overview of medical negligence law in Australia. To investigate whether medical negligence has occurred, you should seek the advice of an expert medical negligence lawyer. We can put you in touch with the right legal experts. For obligation-free advice, simply call our helpline or complete the contact form.

Common Law Principles

The law of medical negligence in Australia can be found in written case law (court judgments/decisions of judges) and in legislation (Acts and regulations by parliament).

General common law principles are as follows.

To establish medical negligence, the patient must prove that:

1. The doctor owed the patient a duty of care;

2. The doctor breached that duty of care by some act or omission;

3. This act or omission has caused the patient physical and/or financial harm.

Duty of Care

Because of the dependence upon the doctor for physical and mental care and wellbeing of the patient, the law has established that he/she owes the patient a "duty of care". This is based on the principle that a person must take reasonable care to avoid acts or omissions which would be likely to harm any person they ought reasonably foresee as being so harmed. If they fail to do this, a doctor may be liable in a civil action for negligence.

If the doctor’s act has been so grossly negligent as to have been deliberately reckless of life and limb, it may be prosecuted by the criminal courts as criminal negligence or manslaughter.

Breach of Duty of Care

In considering whether one has breached a duty of care, the courts look at the standard of care which would be reasonably expected from a person acting in the defendant's circumstances, in the capacity in which the defendant was acting (eg as a doctor, nurse, dentist etc).

Doctors do not have to be perfect, but have only to exercise the skill that a reasonable practitioner professing the skills in question would be expected to exercise in the circumstances. To help the court make an assessment in this regard, expert witnesses (other doctors experienced in the field) are called to give their opinion as to whether the actions in question were in fact reasonable under the circumstances.

It is impossible to set out a comprehensive explanation of what is a reasonable standard of care that covers every possible health care situation in one statement. Each case must be considered on its own merits.

When considering breach of duty, the common law has been modified in some States by the statutory "peer professional opinion defence." The wording of the defence varies State by State. In NSW the defence is "did the professional act in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice?" There is also a statutory exception to the defence- is the treatment irrational (or unreasonable, that no reasonable health professional would have done so?)."

Damages

A plaintiff must show that he/she suffered from harm, and that the harm was caused by the defendant's act or omission. Just as one can cause harm to another, but will not be liable at law if he or she was not negligent, a person can be negligent, but not be liable at law if no damage has been caused.

In law, the amount of compensation granted as a result of a successful negligence action is referred to as "damages".

Damages may be awarded for:

• medical expenses
• cost of appliances or housing alterations for someone with a physical disability
• cost of care and domestic assistance
• loss of income
• general damages for pain and suffering.

Medical Negligence Legal Advice

The information above provides a basic overview of the law of medical negligence in Australia, from the perspective of the common law. Over the last decade, substantial legislative changes have taken place in each State which effectively modified the common law.

Do not rely on this information as legal advice. This information is intended to help you understand your rights. However, it is important that if you think you may have a case for compensation that you seek professional legal advice. Negligence laws can be very difficult to understand, and it may be that you have a case, even if you do not think you have one. The only way to be sure is to obtain legal advice from a suitably qualified solicitor.

We are offering an obligation-free legal referral service which provides victims of medical negligence access to Australian solicitors specialising in this area of law. Contact our service today to find out how we can help you.

Terms of Use and Privacy Policy