TORTS B CLASS TEST QUESTION: SEM 2 2012 Stig decides that he would like to have surgery that attaches

an ear to his left arm. The ear is grown in a laboratory. Stigs surgeon, Jane, who has recently passed her surgery exams, tells him that even though she would normally disapprove of unnecessary surgery, she approves of Stigs proposed surgery as an aesthetically important act that challenges our conception of the human body. Stig tells Jane that he has chosen his left arm as the one to be operated upon because he suffers severe arthritis in his right arm and adds that he is lucky that he is left handed. Otherwise, he would be unable to continue to indulge his hobby of ten-pin bowling. When asked if he wants more information about the operation, Stig flippantly responds No. I just want my extra ear I may even get it pierced. At that point Jane is called away to deal with a medical emergency. There is a 1 in 14000 chance that even if the operation is successfully performed, Stig will lose some mobility in his arm as a result of having an ear attached to it. Jane does not warn Stig of this risk, the existence of which is well-known to surgeons in Australia. The operation is performed properly but the risk nonetheless eventuates. Advise Stig: a) Whether Jane owes him a duty of care in negligence AND b) whether Jane has breached that duty of care. J may owe S a duty of care in their relationship as a Doctor to Patient in which there is settled law that such duty will exist. [Rogers v Whitaker] However, the law is only settled in this relationship with regards to the provision of medical treatment and the warning of material risk in treatment. While J may argue that she is merely a recent surgery graduate and therefore did not have much experience in providing advice, it is no excuse - she is required to exercise reasonable professional care and skill to the standard of ordinary skilled surgeons and S is entitled to expect the standard of care of a reasonable surgeon. [Phillips v Williams] [s58] Inexperience is not accounted for and will not reduce the standard Whether or not J breached her duty will also depend on whether or not that risk was reasonably foreseeable s48(1)(a) and that the risk of S losing mobility in his arm was not insignificant. It is arguable that the risk was reasonably foreseeable the risk of damage to his arm must either be likely to occur or not unlikely to occur [Caterson v Commissioner for Railways per Barwick CJ] and the widespread knowledge of the 1/14000 chance of the risk occurring is therefore scientific proof. [Wyong Shire Council v Shirt per Mason J] The risk was not insignificant either it was not far fetched or fanciful[Wyong Shire Council v Shirt] [s48(1)]. With insignificance, Courts are referring to the nature of the risk and not the likelihood of the risk occurring (which is seemingly insiginificant).

Although the risk of injury was both reasonably foreseeable and the nature of the risk was not insignificant, whether J breached her duty of care as a doctor to a patient will depend on the factors set out in s48(2)(a-d) to determine the objective standard of care of what a reasonable person would have done to take precautions against that risk, namely:Probability that the harm would occur if care were not taken s48(2)(a) o The probability of the harm occurring was love which favours S. Seriousness of the harm o The fact scenario is very similar to Paris v Stepney in where it was held that the fact that there was only one limb out of the two limbs remaining, that the damage would be more serious if an accident were to occur this favours S. The Burden of Taking Precautions o In order to meet her duty, all J would have needed to do was to simply warn him of the risk that his arm may be immobile this is not much of a burden on Jane and a reasonable person would have most likely taken such precautions. Social utility of the activity o It is unlikely that taking time out to tell S of the information would be imposing a precaution J that would undermine the broader social utility of her medical practice and services. Further, unlike [Watt v Herfordshire], in this case, there was no emergency to the procedure it was unnecessary and was only for aesthetic purposes. The Court may also take into account the common practice of Surgeons which is taken into account as per s59. However, s60 excludes the consideration of common practice of surgeons with regards to advising of risk. However, s50 provides that J may have satisfied the duty of care if she took reasonable care in giving that warning or other information. Whether or not she should have disclosed the risk will depend on the nature of the matter, nature of treatment, patients desire for information, temperament and health of patient and general surrounding circumstances. Although S expressed tht he did not want any more information, there are greater factors weighing on Js side to have disclosed the risk despite his. Further, the risk to be disclosed must have been material namely the that there is a chance that S will lose some mobility in his arm, if a reasonable person in S position, if warned, would attach significance to it. It could certainly be argued that S would have attached significance to the possibility of losing mobility in his only mobile arm left as he has a hobby of bowling and has made this clear to J.