Dear Colleagues;

The High Court decision today in Queensland v Masson [2020] HCA 28 (13 August 2020) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/28.html is fairly straightforward but worth noting. A negligence claim was brought against the Queensland government as vicariously liable for what was alleged to be a careless medical treatment decision made by an ambulance officer called to an emergency situation. Ms Masson was having a serious asthma attack, the officer, Mr Peters, administered salbutamol in accordance with his reading of a procedure manual issued to ambulance officers. By the time Ms Masson got to the hospital she had suffered serious harm from oxygen deprivation, which it was claimed would have been avoided by administration of adrenaline.

The trial judge ruled that Mr Peters had behaved in accordance with the standard of care to be expected from a reasonably skilful paramedic, and hence that there had been no breach of the acknowledged duty of care. See para [10]: “The standard of care expected of Mr Peters was that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency” Rogers v Whitaker (1992) 175 CLR 479 at 487 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.

What led to the appeal was that the Queensland Court of Appeal overturned this finding of the trial judge, preferring the evidence of one group of witnesses over another.

The High Court (KIEFEL CJ, BELL and KEANE JJ in one judgement, NETTLE and GORDON JJ in a concurring judgment) held that the Court of Appeal had been wrong to overturn the trial judge’s decision and restored the verdict in favour of the government. The tenor of both judgments was that (even before the provisions in the Civil Liability Acts that now say so) the common law standard of care expected of medical professionals does not have to be a “majority” view in the profession, simply a “responsible medical opinion” open to reasonable practitioners. See Nettle and Gordon JJ [134] “Ex hypothesi, a body of professional opinion does not need to align to majority opinion in order to be regarded a responsible body of professional opinion”. Their Honours were also critical of the way that the Court of Appeal had interfered with the trial judge’s decision, on a matter where observing the testimony of Mr Peters and what he meant proved to be crucial to the decision. See eg [119].

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Acting Program Convener, LLB(Hons)

 

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

 

CRICOS Provider 00109J