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.

10. The Sample Answer

Page 1

Rubin v Hospital

Introduction

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 (a) by employees (b) during the course
of employment, (1) but not for torts committed by an independent contractor.(2)

(a) 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 diagnostic 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 Hospital. (7) 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.

(b) 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 employment. (8) 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
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 vicariously
liable for her acts or omissions.

1) Bugge v Brown (1919) 26 CLR 110, 116 (Isaacs J, Higgins J concurring).

2) Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 36; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

3) Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

4) 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.

8) Bugge v Brown (1919) 26 CLR 110; Deatons v Flew (1949) 79 CLR 370.

9) Bugge v Brown (1919) 26 CLR 110.

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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.

(a) 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)

(b) 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) 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 service.(13) The facts tell us that Camilla performed the operation skillfully and therefore
discharged the duty so 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 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 was young and likely to start a family.

(c) 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
judgment,(15) 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 caused.(17) 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 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)

10)Rogers v Whitaker(1992) 175 CLR 179.

11)Ibid.

12)Civil Liability Act 2002 ( NSW) s 5O.

13) Civil Liability Act 2002 ( NSW) s 5P.

14) 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 5P is that |Rogers v Whitaker continues to set out the law with respect to
the giving of advice, information or warnings.

15)March v E and MH Stramare (1991) 171 CLR 605.

16)Ibid.

17)Civil Liability Act 2002 ( NSW) s 5D.

18)Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Rosenberg v Percival [2000] 205 CLR 434. See Civil
Liability Act 2002 (NSW) s 5D(3).

19) Elbourne v Gibbs [2006] NSWCA 127 [67] (Basten JA).

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Camillas Battery

The definition of battery 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.

20) Rogers v Whitaker (1992) 175 CLR 179.

Page 4

Hopsitals liability for breach of Non-Delegable Duty

Regardless of the status of Camilla as an employee or independent contractor, there is another possible basis of
liability that arises out of the relationship between the Hospital and Rubin. A hospital owes an independent non-
delegable duty to ensure that the treatment it undertakes to provide is performed with reasonable care.(21)
Unlike in Ellis,(22) 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 Rubin.(23) 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 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.

21)Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

22)Ibid 605 ( Samuels JA, with whom Meagher JA agreed).

23) Kondis v State Transport Authority (1984) 154 CLR 672.