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Section 5O restores a modified version of the Bolam test to medical negligence law in Australia. The Bolam test 36 held that the standard of care to be applied to medical practitioners was to be determined by a reasonable body within the medical profession. However, in Rogers v Whitaker, 37 the court is to determine the appropriate standard of care for the medical profession. The Court also stressed that a doctor has a duty to warn his or her patient of a material risk of the proposed treatment.38 The Civil Liability Act does not completely restore the Bolam principle as section 5P precludes the application of the standard of care in section 5O to the duty to warn of risk. Accordingly, the standard of care to be applied when warning of risk is to be determined by the courts rather than peer professional opinion, thus preserving the rule in Rogers v Whitaker.39 But section 5O applies the standard of care to all professionals, not just those in the medical field. 40
In short, 5O and 5P of the Civil Liability Act 2002 made antinomy with Case Law of The High Court.41 In a way, it brings suggestibility that doctor can escape duty of a care.
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Footnotes:
1. Roger v Whitaker (1992) CLR 479 at 480
2.Ibid, at 480
3.Ibitd at 481
4.Rogers v Whitaker (1991), 23 NSWLR 600.
5.Sidaway v. Governors of Bethlem Royal Hospital. Lord Scarman, (6) (1985) AC, at 881,
6.Stephen Irwin, Medical negligence litigation.(1995),at 23
7. Roger v Whitaker (1992) CLR 479 at 491
8. Frances, AustralianTorts law,(1998) at 206
9. Roger v Whitaker (1992) CLR 479 at 493
10. Sidawayv. Governors of Bethlem Royal Hospital (1985) AC 871, per Lord Diplock at p893
11. Gover v. South Australia (1985) 39 SASR 543, at p 551
12.Sidaway v.Governors of Bethlem Royal Hospital (1985) AC 871, per Lord Diplock at p 893
13.Roger v Whitaker (1992) CLR 479 at 482
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