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University of Sydney Faculty of Law LEGAL WRITING ANSWERING PROBLEM QUESTIONS

Introduction - What is a problem? Problem questions are frequently used in teaching law and generally follow the format of asking students to discuss the legal consequences of a particular fact situation - often in the style of advising one or more of the parties. Problem questions exercise, and test, students understanding of the legal principles in an area of the law, their ability to apply principles to new facts and to present an answer logically. They are often designed to highlight difficult or unresolved areas in the case law, and so require students to assess the different sides of a particular issue. In many ways, problems help develop the sorts of skills required by lawyers who must give advice to clients based on their description of an event or dispute, or, in the case of judges, who must make decisions on the factual issues. However, hypothetical problem situations differ from the real situation of advising clients because in the real world there are a range of other factors which may be equally as important as the abstract application of legal principles for instance, the cost and inconvenience of litigation may mean that the best advice is not to pursue the matter, or to seek an out of court settlement; or, because in real life the facts have to be proved, weak evidence or witnesses may be detrimental to the case despite the strength of the legal argument. While it is important to remember the full context of real legal problems, students are not generally asked to take these things into account in answering problem questions. We will now outline some of the basic steps that are helpful to follow in arriving at a thorough and logically presented problem answer. Breaking the process into steps helps avoid the feeling of being overwhelmed by detail and complexity. You may feel that sometimes the process of separation issues from principles, principles from discussion or conclusion -- is a little artificial: you are right, but just bear in mind that it is merely a method or tool to help you think things through thoroughly. Before you attempt a problem- based assignment, we would strongly advise you to do a general survey of the legal principles which relate to the problem. This would be best done by consulting one of the leading textbooks in the field and reading some of the leading cases, or reading through applicable legislation. By doing a general survey first,

you will get an idea of all the potential issues that may arise and will be thus be better equipped to identify them as issues in the particular problem. The general survey is also useful for your overall knowledge. Remember of course that textbooks get out of date and that there may be important decisions bearing on the issues which have been handed down since the book was published or which may have been referred to in classes. Depending on the task, you may need to use your legal research skills to check recent developments, such as whether the relevant cases or legislation have been applied or considered in recent cases. If the problem question is set in examination conditions, you will only have very limited time to analyse and answer the question. The general survey of the law on which your answer will be based will be what you have learnt in classes- lectures and tutorials- and in your private study, reading and revision. Examinations aim to assess you on what was taught and set as reading for the course, so in preparing for an exam you need to pay close attention to the syllabus for that course, plus what was emphasized by the lecturer in classes. The problem question will require you to demonstrate that you understand the structure of the law and fundamental issues in a particular legal field, and will probably also include a number of difficult issues where the law is complex or unsettled. You should spend at least the reading time working on the structure of your answer before putting pen to paper and use headings generously to indicate to the examiner what parties you are referring to, and what aspects of their claim or defence, In brief, the steps involved in analysing a legal problem are: identify the material facts and the legal issues they raise, set out the relevant legal principles, give the authority for those principles (i.e. give the reference or source- case law or a statute or in the absence of such a primary authority, the views of a secondary authority such as a textbook), and apply the legal principles to the facts. This is what judges do when they have to decide a case- and when you are reading cases you will see that some judges do this more clearly than others! Of course judges have to come to a decision, whereas, as a lawyer or adviser, your task is to anticipate and analyse the legal arguments from all parties and give advice on the likely success of those arguments. Ideally, writing up the answer is the last step, (although you may have to condense these steps in an exam). In full, this is how we suggest you go about the task. 1. Read the question! Read the question slowly and with attention. You pick up most of the nuances of the question when you read it the first time and you should note these as you are reading. Try not to be too critical when you read the question read for information rather than trying to work out what all the issues are. Do you completely understand the facts? Do any facts appear to be missing or assumed by the question? Do the facts resemble a decided case?

Then read the question again! Pay attention to what it is, specifically, you are asked to do . You may be asked to advise a particular party or to advise generally. Or you may be asked particular questions. Do not adopt the role of advocate to party A if you have been asked to advise generally and vice versa. If something is given as a fact, you do not need to question its validity eg if you are told there is a contract, you do not need to consider the rules of contract formation. If you are asked to advise the parties, remember that you are not being asked to write the courts judgment. Rather, you are advising them on certain and uncertain aspects of the law, about relevant principles of law, about how the court would determine issues of law and fact, and about how the principles or statutory provisions might apply to your partys situation. 2. Who are the parties? Ascertain the possible permutations of parties who has a claim against whom? Some of these may be irrelevant if you are only asked to advise one party. Who will be the plaintiff and defendant in your answer? 3. What are the possible causes of action? Ascertain the law relevant to each claim. A legal remedy will only be available if the plaintiffs claim can fit a particular cause of action, such as trespass to land (torts) or promissory estoppel (contracts). At this stage, brainstorming is better than trying to narrow down the answer - list all causes of action which you think might even vaguely be relevant. Even if its unlikely that a claim or defence will successful in the end, marks are often awarded for recognising the possibility of a particular argument. Think how you would feel if you were a client- you might wish to know why a particular cause of action or defence would not be successful, as much as why one would be. For example, contributory negligence cannot generally be raised as a defence to an intentional tort. That does not mean you have list every possible tort action or defence just to dismiss it: you should concentrate on the arguments that might be raised on the facts. 4. What are the requirements for each action? Summarise the elements of each cause of action and note the relevant case authorities. If the choice of principle depends on how the facts are interpreted, or the principles are unresolved in the case law, list them all ie dont get ahead of yourself by guessing which principles will or wont be relevant before you try applying the law to the facts. Are there any defences available, or any special issues relating to remedies? 5. Are the elements satisfied?

Apply the law, element by element, to each set of facts and assess whether each is satisfied (yes, no or maybe). Even if there is an obvious yes or no answer to one element (eg. the entry of Zula into the house of Yorrick clearly satisfies the land element of trespass to land, as houses are fixtures), include it anyway. If the answer is less obvious, but there are no ambiguous issues, cite the case which supports your application of the law. If the answer to one element is yes, continue working down the list. If one element of a cause of action is not satisfied, then it will fail and you should move onto the next cause of action. But be careful in reaching this conclusion, particularly where the limits of elements such as duty of care in negligence (torts) or unconscionability (contracts) are notoriously uncertain and well worth arguing about. If there is a maybe, an issue arises which will require interpretation of the law and/or the facts. Issues are thrown up where the law is ambiguous or unclear: the facts of the problem are usually chosen to highlight that ambiguity or uncertainty. It may be appropriate to speculate about facts which are not given or which are unclear as this may change the application of the law and the nature of your advice.

6. What are the issues? Where it is unclear whether a particular element will be satisfied on the facts, formulate the issue as a question which identifies which facts need to satisfy the element. Try to express the question at the most detailed level possible. Eg Instead of Is Michael trespassing in Janets room? put Does Janet, as a child in her foster parents house, have sufficient possession of her room to support an action of trespass against Michael? In identifying the issues, consider the range of possible meanings for the statutory provision or common law principles and how they relate to the possible interpretations of the facts. You may also consider the generic usage or dictionary definitions of particular words in order to set up arguments for and against each meaning of the ambiguous element. Use common sense with regard to the amount of time/space you spend on the various issues obviously you will get more credit for how you discuss more difficult or controversial issues. Your knowledge of the course will help you recognise these. Where marks are assigned to each part of a question, use these as a guide for how much emphasis you give to the issues. If a section is only worth 2 marks, even a Nobel winning account of the issues will not get you more.

7. What is the law relevant to the issues?

Set out the principles of law that are relevant to the issues you have identified, including the cases from which they are drawn. Again, for your own benefit, write down as many as you think may be relevant without jumping to the conclusion about which principle will be applicable. You may wish to identify those principles which are settled and those which are uncertain. For example, you could write: It is settled law that or It is well accepted that or you could write: The law relating toissueremains unsettled/uncertain or There are conflicting authorities as to whether .issues Professor William Morison, a most eminent Torts scholar from this law school, used to advise students that it is as wrong to say that a rule is grey if in fact it is black and white as it is to say that it is black and white when it is in fact grey! 8. Apply the law to the facts. Fact scenarios in problem questions often resemble decided cases, but are deliberately different in key aspects. Consequently it is usually not possible to directly apply the principles from 7. to provide a conclusive resolution of issues. Instead, you will need to make your own argument about which precedent, if any, should be followed, and why. Akin to judicial reasoning, your arguments will be based on an analysis of precedent, and/or an appeal to policy (in fact, looking at the way judges write their decisions will be helpful in learning this skill). Ask yourself is this fact situation more like the one in case X or case Y? How do they differ? Do they differ in relevant or irrelevant ways? What is the important underlying principle which should be applied (or not)? Dont forget the basic rules of precedent, such as being aware of which jurisdiction the cases come from, or whether they are Supreme/High Court decisions. Do not launch into an undirected discussion of principles, cases, social policy, etc; rather, refer only to these sources to set the scene before discussion of an issue or in the process of assessing the various arguments. 9. What is your conclusion? Although it is not always necessary or possible to give a confident answer on the legal position of parties, you should express an opinion as to the likely result if the matter was before a court, or, if you are advising a client, her strongest argument for success, or, if appropriate, the weakest parts of her case. Because you are not being asked to be the judge, you cannot decide issues of fact which depend on a judgment about the evidence, e.g. as to whether the defendant behaved reasonably. Remember not to be too certain about your conclusion express it in terms of likelihood or probability. It may be appropriate to refer to academic commentary and policy discussions in supporting your answer.

If there is more than one issue for a particular cause of action, state a conclusion for the cause of action as a whole.

10. Setting out the answer. Since most of the steps above are to help you work out the answer thoroughly, you do not need to write out the entire process in the answer. Organisation is important use headings and sub-headings for different parties, causes of action and issues. This will save a lot of words of explanation and assist the reader to follow your arguments.
ZIG v ALGERNON Trespass to Land Possession: Does Zigs temporary presence on the land as a camper amount to possession?

As with essay writing, use signposts in your language to help the reader eg The central issue is; The only way that the contract will be enforceable is if. If asked to give advice, write in third person eg. B will have an action for trespass/breach of contract if... As a guide to how much detail or explanation to include, assume that the reader is a lawyer, but one without detailed knowledge of the area of law under consideration. In discussing the facts, it is sufficient to refer to the facts as stated in the question. Do not waste words simply transcribing the facts! Do not invent additional facts! (This is distinct from considering possible facts and their different outcomes where there are insufficient facts given in the question to enable you to come to a conclusion.)

Structurebe comprehensive and coherent: 1. Give a brief introduction to forecast the issues eg to indicate that the main focus of the problem will be on assault/restitution, with uncertainty as to how particular facts may be interpreted etc. 2. For each party or cause of action that you are dealing with, state briefly the elements of the cause of action, citing relevant case or statute. 3. Briefly state which elements are clearly satisfied or not satisfied. This indicates that these points need no further discussion. (State possible defences at this stage, and if issues arise with these, use the same techniques following to discuss.)

4. Indicate that the remaining elements give rise to issues and briefly identify the issues. Then, under separate headings, discuss each issue in turn: (i) Start with a statement of the issue in terms of law and the facts at issue; (ii) State the range of possible meanings or interpretations of the ambiguous provision or common law principle; (iii) State arguments for and against each meaning, including a discussion of the relevant authorities; (iv) Evaluate these arguments 5. The process of stating issues and facts may be repeated as you refine the issues, and reinterpret facts in light of the cases, etc. Dont forget to give the most space in your answer to the most controversial issues. 6. State an opinion or conclusion for each issue and then one for each cause of action overall, if required, in the form of advice to the party.

In written problem assignments, you should give references for your sources in accordance with the Australian Guide to Legal Citation which can be seen at

http://mulr.law.unimelb.edu.au/go/aglc
In a handwritten exam, you should simply underline case names and other sources for clarity, but full references are not required.

Quick Tips Plan your answer Use headings Note what the question asks you Raise all the issues, even if they seem unimportant Dont repeat the facts unnecessarily Cite case authorities for propositions of law or refer to relevant statutory provisions Dont go into all the legal principles or cases in detail unless crucial to resolving the issue

Contributors: This guide has developed over many years with contributions from many academic staff at Sydney Law School at different times.

Torts Problem with Solution Technique and Sample Answer


Note: this question was set some years ago when Ellis v Wallsend District Hospital was extracted in the prescribed casebook for the Torts course, and the issues were topical. The answer has been updated to include references to the Civil Liability Act 2002 (NSW) to illustrate how you should refer to statutes in your answers. It does not however include references to all the more recent High Court decisions on vicarious liability and the concept of the non-delegable duty. These topics are studied in detail in Torts and Contracts II rather than Torts, but the question also raises issues studied in Torts. The references in the footnote include some general references and some pinpoint references (eg references which pinpoint the page at which a point is made in a judgment. Footnote 1 is an example.) See Australian Guide
to Legal Citation which can be seen at

http://mulr.law.unimelb.edu.au/go/aglc . You are advised to use pinpoint references wherever possible. The prescribed casebook e.g. Cases on Torts, usually gives you the page numbers of the law report of the extracted judgments in square brackets in bold so that you can provide pinpoint references to the judgment you are citing or quoting.

You may find it most helpful to read the sample answer (step 10) first and then work through the solution technique to see how we arrived at the answer. We have also included some problems and sample answers from texts on legal problem solving for further reading.

1. Read the Question


Camilla is a specialist surgeon employed by a public hospital ('the Hospital'). She examined one of the Hospital's patients, Rubin, and recommended a diagnostic operation to ascertain whether Rubin had a malignant growth affecting his prostate gland. Camilla did not inform Rubin before the operation that there was a small statistical possibility (about 5 per cent) that the operation, although skilfully performed, would cause permanent sterility. In failing to give this information Camilla overlooked a written instruction by the Hospital to its specialist surgeons prohibiting operations of this kind unless full information about associated risks had been given to patients.

The diagnostic operation was performed skillfully by Camilla at the Hospital, after Rubin had given his consent, and it was ascertained that Rubin did not have a malignant growth. However, as a result of the operation Rubin became permanently sterile. Advise Rubin of the principles of tort law relevant to any claim he may wish to bring against the Hospital.

Solution Technique Step by Step


2. Parties Rubin v Hospital Rubin v Camilla (but note this question only considers claims against the hospital so claims directly against Camilla will not be discussed. Nor does the question ask you to consider contribution or indemnity claims between the Hospital and Camilla so this issue will not be discussed. If, on the other hand, the question asked you to discuss all claims between the parties, you would need to consider these other issues.) 3. Claims Rubin v Hospital Vicarious liability of hospital depends on 1. The existence of an employment relationship between C and the hospital 2. Cs tortious acts or omissions (see below) in the course of employment Direct liability of hospital in negligence

Torts committed by Camilla (if 1. above is established) Negligence Battery

4. Elements

Note: if a question asks you to consider claims your answer should also consider any available or arguable defences. The question will generally indicate whether you should discuss the assessment of damages in detail but if it does not say so specifically, much will depend on whether the facts given raise issues relevant to damages. Vicarious Liability This raises principles of the common law. 1. 2. Employee and not independent contractor Acts/omissions done in the course of employment ( Bugge v Brown, Deatons v Flew and later cases)

Negligence Requirements 1. 2. 3. Existence of duty of care (here under an established duty category) Breach of duty (by breaching standard of care required) Damage or loss that is caused by the negligence and not too remote

Battery 1. 2. 3. 5. Elements satisfied? Direct interference with the person Intentional or negligent interference Lack of consent Result

Rubin v Hospital Vicarious Liability 1. 2. Employee rather than an independent contractor? Probably, but use of term employed not necessarily determinative. In course of employment? Probably, but issue of whether failure to observe instruction may take C outside the sphere of employment.

ISSUE 1 ISSUE 2

Camillas Negligence 1. Duty of Care? As medical practitioner, there is a duty to take reasonable care and skill in the provision of professional advice or treatment ( Rogers v Whitaker) 2. Breach of Standard of Care? Apply common law principles set out in Wyong Shire Council v Shirt, which are now reflected in section 5B of the Civil Liability Act 2002 ( NSW). Note also section 5 C. Principle: For C, the standard of care required is that of an ordinary skilled specialist surgeon exercising and professing that special skill ( Rogers v Whittaker). Facts: (a) C performed the operation itself skillfully, so no breach of duty in relation to the operation; however: (b) possible breach by failing to disclose the risk to R. Note and analyse the impact of sections 5O and 5 P of the Civil Liability At 2000 (NSW) on the issue of breach of duty by a professional person. Section 5O introduces a modified Bolam test for medical treatment but section 5P effectively preserves the decision of Rogers v Whitaker in medical failure to warn cases. 3. Damage? Physical damage by being made permanently sterile; emotional damage by not being able to have children, exacerbated if R a young man and likely to start a family (missing facts). Causation? Established if Rs loss would not have occurred but for Cs negligence (March v Stramare) and as a matter of common sense. Not certain that this is the case. Now consider causation principles in section 5D and 5 E of the Civil Liability Act 2002 ( NSW)

Yes

Yes

No

ISSUE 3

ISSUE 4

Battery 1. Direct interference clearly satisfied as was an invasive surgical

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procedure 2. Intentional obviously satisfied on the facts 3. Consent yes, but was it fully informed consent if R not warned of risk? Hospitals Negligence 1. Duty of Care? A duty exists for hospitals to provide treatment/advice with reasonable care. Is this duty non-delegable and if so what effect does that have on its liability? 2. Breach? As above, possible breach by failing to ensure the risk to R disclosed. 3. Damage and Causation as above. 6, 7, 8. Discussion of Issues AND Individual Conclusions ISSUE 1 Is Cs relationship with the hospital one of employer/ employee? Principle: The totality of the relationship between the parties must be examined (Ellis v Wallsend District Hospital (1989)). The question whether a person is the employee of another is a question of fact (Zuijs v Wirth Bros (1955)). The control test is a relevant factor ( Stevens v Brodribb Sawmilling Co (1986) whether the hospital is in a position to tell C how to work and to dismiss her for failing to comply with instructions ( Zuijs v Wirth Bros). Facts: On overall facts, she is probably an employee. No additional facts provided to clarify whether C conducting her own business as a surgeon, so Ellis may be distinguished. On control test, the written instructions probably provide evidence that hospital did exercise control over its surgeons. Conclusion: On the facts, C likely to be considered an employee. ISSUE 2 Did Cs failure to follow instructions take her outside the sphere of employment? Principle: To have this effect, violation of instructions must make the employees conduct so remote and disconnected from his or her employment as to put him or her virtually in the position of a stranger ( Bugge v Brown). Facts: C merely overlooked the instructions, so unlikely to fulfill this extreme requirement. Conclusion: Cs omission was in the course of employment. Conclusion 1 & 2 taken together mean the hospital would be held liable for Cs tortious acts/omissions. ISSUE 3 - Did Cs failure to disclose possible risk breach her duty to exercise reasonable care and skill in the provision of medical advice? Principle: Doctors have a duty to warn patients of material risk. Material = if, in these circumstances, a reasonable person in the patients position would, if warned of the risk, be likely to attach significance to it; or if the medical practitioner is, or should reasonably be, aware that the particular patient would, if warned of the risk, be likely to attach significance to it ( Rogers v Whittaker). Note section 5P of Civil Liability Act 2002 ( NSW) Facts: There were serious consequences in this case, so a reasonable person

Yes Yes ISSUE 5

ISSUE 6 Yes Yes Yes

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would be likely to attach significance to them; argument is even stronger if R young and likely to start a family (missing facts). Conclusion: C has probably breached a duty to warn R of the risks of the operation. ISSUE 4 Causation Would Rs loss not have occurred but for Cs omission to warn of risk? Principle: The test to determine whether R would not have suffered loss but for Cs omission is subjective and a question of fact (Ellis v Wallsend District Hospital, Rosenberg v Percival) See now Civil Liability Act 2002 (NSW) section 5 D and 5 E Facts: Insufficient evidence to decide. Conclusion: This issue is inconclusive, as more evidence is required. Given that it might be possible to prove that R would not have gone ahead had he known of the risk, and considering conclusion 4, a claim in negligence might be possible. ISSUE 5 Does the fact that R was not full informed of risk affect his consent to physical interference as a defence to battery? Principle: There will be no battery if a medical procedure is outlined in broad terms and consented to (Rogers v Whittaker). Facts: Despite the omission of full details about the risks, the procedure was outlined to R in its broad terms and consented to. Conclusion: As it would be the physical procedure itself which would constitute the battery, and not its possible consequences, the description of the procedure is sufficient to give rise to informed consent. ISSUE 6 Is the hospital liable in negligence under a non-delegatable duty by not ensuring that the risk was disclosed? Principle: Where a patient comes directly to the hospital for medical treatment, the hospital owes an independent, non-delegable duty of care to ensure that the treatment it undertakes to provide is performed with reasonable care (Ellis v Wallsend District Hospital). It will be liable if its delegate (even an independent contractor or an employee acting outside the cour se of employment) was in fact negligent. Facts: As above in relation to Cs negligence, the hospital failed to ensure that R was fully informed of the material risks of the procedure. Conclusion: The hospital is independently liable to R for the breach of this duty of care, if, as above the element of causation can be established. 9. Overall Conclusions for each Cause of Action Negligence R has a good claim in negligence against the hospital, both in relation to their vicarious responsibility for the negligence of C (given that she is taken to be an employee and not acting out of the scope of her employment) under common law, AND in relation to their independent duty to their patients,

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provided that the element of causation can be proved. Battery A claim of battery would be unlikely to be successful as the failure to warn of the risk of consequences of the procedure would not mean that R was unaware of the nature of the physical interference, and so he would be considered to have given effective, fully informed consent to the procedure.

10. The Sample Answer


Rubin v Hospital Introduction ( Note: you may not always need an introduction, or a long introduction, depending on the structure of the question asked, and on the word limit you have been given. There is no point including detail in an introduction which will be repeated in the text. A short sentence outlining the issues to be raised may be enough. Or you may wish to go directly to the first issue.)

Rubin has suffered loss and damage by being rendered permanently sterile as a result of the operation by Camilla. An action may lie in negligence or in battery against the Hospital, however before the Hospital can be held liable for his loss it must first be established whether Camilla has committed any torts in treating Rubin or failing to inform him of the risks of the procedure. If so, then the Hospital may be vicariously liable for Camillas tortious acts or omissions. There may be a further basis on which the Hospital may be held liable, namely if it is itself in breach of a non-delegable duty of care to ensure that care is taken with respect to advice and treatment given to its patients.

Vicarious Liability of the Hospital

As a general rule an employer will be vicariously liable for torts committed by employees during the course of employment1, but not for torts committed by an independent contractor. 2

1 2

Bugge v Brown (1919) 26 CLR 110 at 116 (Isaacs J.), (Higgins J concurred) Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 36; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

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Employer/Employee or Principal/Independent Contractor? The facts provided state that Camilla is employed by the Hospital. The use of the term employee is not necessarily determinative. However it may be relevant along with other factors to establish that Camilla is an employee and not an independent contractor. The totality of the relationship between the parties must be examined.3 The question whether a person is the employee of another is a question of fact.4 One relevant factor is whether the Hospital exercised control over Camilla.5 The control test will be satisfied if the Hospital is in a position to tell Camilla how to work. Although Camilla is a specialist surgeon and therefore in possession of specialised skills not necessarily held also by Hospital management, the control test will be met if the Hospital is entitled to tell Camilla how to perform her duties and is able to dismiss her for failing to comply with instructions.6 The written instruction prohibiting the diagnosis operation in fact performed in the absence of full advice of the risks is evidence that the Hospital did in fact exercise control over all of its specialist surgeons. No additional facts are provided to clarify whether Camilla was conducting her own business as a specialist surgeon and using the facilities of the Hospital, as was the case in Ellis v Wallsend District Hospital7. However, it would appear that on the basis of the facts provided, Ellis v Wallsend District Hospital may be distinguished and the Hospital will be liable for the acts of Camilla during the course of her employment.

In the Course of Employment?

Although the relationship between the Hospital and Camilla is one of employer and employee, the Hospital will only be vicariously liable for the acts done, or omissions made, by an employee such as Camilla during the course of her employment8 Camillas negligent omission would

appear clearly to fall within the scope of her employment. The only fact that may suggest that Camilla was not acting in the course of employment is her failure to observe the written instruction by the hospital. An instruction or prohibition may limit the sphere of employment, but to have that effect it must be such that its violation makes the employees conduct so remote

3 4

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Zuijs v Wirth Bros (1955) 93 CLR 561 5 Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16 6 Zuijs v Wirth Bros (1955) 93 CLR 561 7 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

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and disconnected from his or her employment as to put him virtually in the position of a stranger.9 It is also of relevance that Camilla did not deliberately disobey the instruction, but rather overlooked it. Consequently, if Camilla can be found to have been negligent or to have

committed a battery, the Hospital can be held liable for her acts or omissions

Camillas Negligence

The elements of negligence require that Camilla have breached a duty of care that she owed to Rubin, where that breach caused his damage or loss.

Duty of Care

Camilla, as a medical practitioner, owed a duty to Rubin to take reasonable care and skill in the provision of professional advice and treatment. 10

Standard of Care and Breach

The standard of care required is set by the common law and is that of the ordinary skilled specialist surgeon exercising and professing to have that special skill.11 While the Civil Liability Act 2002 (NSW) now provides that a professional person does not incur a liability in

negligence in the course of providing a professional service if it is established that the person had 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 12, although this provision does not apply to liability arising in connection with the giving of (or
the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service13. The

facts tell us that Camilla performed the operation skillfully and therefore discharged the duty so
8 9

Bugge v Brown (1919) 26 CLR 110, Deatons v Flew (1949) 79 CLR 370 Bugge v Brown (1919) 26 CLR 110 10 Rogers v Whitaker (1992) 175 CLR 179 11 Rogers v Whitaker (1992) 175 CLR 179. 12 Civil Liability Act 2002 ( NSW) s 5O. 13 Civil Liability Act 2002 ( NSW) s 5P.

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far as it required her to take reasonable care and skill in the provision of medical treatment. However it is arguable that Camilla breached her duty of care to Rubin by failing to disclose to Rubin the possible risk, though small, of the properly performed procedure resulting in permanent sterility.

A doctor has a duty to warn a patient of a material risk inherent in the proposed treatment. In the leading Australian case of Rogers v Whitaker, a majority of the High Court stated: A risk is material if, in the circumstances of the particular case, a reasonable person in the patients 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, of warned of the risk, would be likely to attach significance to it. 14 Given the serious consequences that would flow if the risk eventuated, it is highly likely that a reasonable person would be likely to attach significance to the risk, or alternatively that Camilla should have been aware that Rubin would be likely to attach significance to it. The case will be even stronger if Rubin were a young man and likely to start a family.

Causation

Once it is established that a duty of care was owed and that it was breached it must be demonstrated that the negligent failure to advise of the risks caused the loss and damage Rubin suffered. Although the but for test is not the definitive test of causation, and at common law causation is ultimately a matter for a common sense judgment15, the general rule is that Camillas omission will be the cause of Rubins loss if it would not have occurred but for Camillas negligence.16 The Civil Liability Act 2002 (NSW) now requires the plaintiff to prove that the negligence was a necessary condition for the occurrence of the loss and that it is appropriate for the scope of the negligent partys liability to extend to the loss so caused17. If Rubin would have gone ahead with the operation regardless then Camillas negligent omission did not cause the loss Rubin suffered. In determining whether Rubin would have undergone the operation had

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Rogers v Whitaker (1992) 175 CLR 179, 490 (Mason CJ, Brennan, Dawson, Toohey, McHugh JJ). The effect of the Civil Liability Act 2002 (NSW) s 5 P is that Rogers v Whitaker continues to set out the law with respect to the giving of advice , information or warnings.
15 16

March v E and MH Stramare (1991) 171 CLR 605. March v E and MH Stramare (1991) 171 CLR 605. 17 Civil Liability Act 2002 ( NSW) s 5 D.

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he been informed of its risks the test is subjective. 18. This means that it must be determined, as a matter of fact, what Rubin would have decided to do after being provided with the required information, not what a reasonable person would have done. There are, however, insufficient facts to determine what Rubins response would have been to the risk, if disclosed. Since the introduction of the Civil Liability Act 2002 ( NSW), post-operative statements by Rubin on what he would have done if warned of the risk are no longer admissible except to the extent that they are against his interests. Recently a judge of the New South Wales Court of Appeal noted in obiter dicta that by virtue of this provision, a Court will be deprived of indisputably relevant evidence.19

Battery

The definition of battery is when there is direct interference with the person of the plaintiff, via an intentional or negligent act of the defendant, to which the plaintiff did not consent. The operation clearly constituted an intentional interference with Rubins body. Rubin consented to the operation. Although the consent was not fully informed in that Rubin was not told of the risks inherent in the operation, he was advised in broad terms of the nature of the procedure to be performed, and it can be argued that it was the procedure itself which constituted the physical interference with his person, not the potential consequences. As the procedure was recommended by Camilla, described to him in broad terms and consented to, Camilla will have a good defence to any claim in battery brought by Rubin. 20

The remaining issue is whether the Hospital is independently liable to Rubin.

Non-Delegable Duty

Regardless of the status of Camilla as an employee or independent contractor, there is another possible basis of liability which arises out of the relationship between the Hospital and Rubin. A
18

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, Rosenberg v Percival [2000] 205 CLR 434. See now Civil Liability Act 2002 (NSW) s 5 D (3). 19 Elbourne v Gibbs [2006] NSWCA 127, [67] (Basten JA) 20 Rogers v Whitaker (1992) 175 CLR 179

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hospital owes an independent non-delegable duty to ensure that the treatment it undertakes to provide is performed with reasonable care.21 Unlike in Ellis22, it was at the Hospitals door that Rubin knocked. The facts provided state that Rubin was one of the Hospitals patients rather than one of Camillas own patients, and therefore Ellis may be distinguished. The elements of the relationship between the Hospital and Rubin, such as the undertaking by the Hospital to care, supervise and control its own patients, makes it appropriate to impose a personal, non-delegable duty to ensure that reasonable care and skill is taken for the safety of Rubin23. For substantially the same reasons given above in relation to Camilla, by failing to ensure that Rubin was fully informed of the risks of the procedure the Hospital is in breach of this duty of care owed directly to Rubin.

Conclusion ( Note: depending on the structure of the question asked and on the structure of your answer, you may not need a general conclusion. Each section may have its own conclusion rendering a general one superfluous.)

The overall conclusion is that Rubin may have a claim against the Hospital in negligence if the element of causation, namely that he would not have gone ahead with the operation had he been informed of the risks, can be shown. This is a matter to be proved as a subjective fact but Rubins case will be hampered by the new statutory rules on the admissibility of his evidence set out in the Civil Liability Act 2002 (NSW). The action in negligence arises as a result of the Hospitals vicarious liability for the negligence of Camilla at common law and their direct duty to ensure that reasonable care is taken of their patients.

The claim of battery is unlikely to be successful because in explaining to Rubin the general nature of the operation, Camilla informed him of the nature of the physical interference to which he consented. Information about the possible, but unlikely consequences, of the procedure would probably not be considered relevant to his consent to the act of interference.

Last updated July 2012.

21 22

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 605 ( Samuels JA, with whom Meagher JA agreed) 23 Kondis v State Transport Authority (1984) 154 CLR 672

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