Volume 1 - 1 November 2012


Pulse 12.5

Welcome to the first edition of Pulse, a publication by Lander & Rogers’ Health Law & Litigation team , which will provide commentary on topical legal issues and developments affecting Australian medical and health liability. Pulse aims to keep you up to date with the most pertinent decisions affecting health law.

Ten years, ago the Ipp report made a number of recommendations, one of which was to limit the compensation that could be awarded to individuals injured through negligence. The statutory reforms that followed these recommendations have been further defined in the recent decisions of Cugmeister v Maymac Foods Pty Ltd and Tuohey v Freemasons Hospital, both of which are welcome to insurers and remind us of the original legislative intention behind tort reform.

The establishment of the Medical Panel also arose out of tort reform. In recent months, the courts have provided further guidance on the process to be undertaken when referring cases to the Medical Panel, and the considerations to be addressed by the Panel during its assessment.

Judges’ interpretations of the law continue to shape the duties of health care providers to their patients. In this edition, we also look at recent cases impacting the scope of a doctor’s liability, and a doctor’s duty to follow up a patient.

We also consider a recent decision where the Supreme Court refused a plaintiff’s application to extend time in a claim against a hospital. The decision considers the prejudicial effect of the death of a witness, and provides further guidance concerning the relevance of solicitors’ negligence in these matters.

We hope that you enjoy reading this edition of Pulse and we welcome your feedback. If you have comments, queries or suggestions for topics that you would like us to cover in future editions, please contact us at pulse@landers.com.au or speak with your usual Lander & Rogers contact. 

pdf24 Download a PDF of Pulse - Volume 1, November 2012 (1 MB)


Legislative intention behind tort reform recognised


Economic loss damages caps

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In May this year, the Court of Appeal considered the meaning of section 28F(2) of the Wrongs Act 1958 (Vic) in the decision of Tuohey v Freemasons Hospital

That section requires a court, when assessing damages for loss of earnings, to
“…disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the death or injury) have exceeded an amount which is three times the average weekly earnings”...

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Wrongs Act thresholds and 'assault claims'


In August this year, a judge of the County Court considered the correct interpretation of section 28LC(2)(a) of the Wrongs Act 1958 (Vic). 

The decision provides guidance on how the section may be interpreted by the courts, with particular relevance to cases where the defendant is not the perpetrator of the intentional act, for example, where an occupier is sued for an assault committed on its premises by a third party. In the health context, the occupier could be a hospital or an aged care facility. It benefits insurers by limiting the category of persons entitled to the benefit of the section...

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Medical Panel developments


The devil in the detail: Medical Panel must identify a plaintiff's physical injuries


In Summers v Director of Housing, the Supreme Court of Victoria held that the Medical Panel made an error of law in failing to consider all of Mr Summers' physical injuries, even though the injuries said not to have been considered were not particularised in the statement of claim.

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What information needs to accompany a certificate of assessment of impairment?


In order for a person to recover damages for non-economic loss in a personal injuries claim under the Wrongs Act 1958 (Vic) (Act), they must establish that they have suffered a 'significant injury'.

There are several methods prescribed by the Act to do this, one of which involves the provision to the defendant of a certificate of assessment of impairment and "prescribed information" pursuant to s 28LT of the Act. 

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Recent developments in health law and litigation


Supreme Court says failure to follow up was reasonable


The Victorian Supreme Court recently considered the extent of a doctor's duty to follow up a patient who fails to re-attend a clinic for further testing or review .

Although cases like these are always considered on their own individual merits, this decision demonstrates some of the factors a court may take into account in defining the scope of the duty to follow up.

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From patient to plaintiff: statutory causation in negligence cases


The High Court will again consider the law in relation to statutory causation in negligence claims following a grant of special leave in the New South Wales Court of Appeal case of Wallace v Kam. The appeal will focus on the second limb of the test for causation, scope of liability.

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Prejudice & solicitors' negligence in applications to extend time


In the recent decision of Damman,  the Supreme Court declined to extend the limitations period on the basis of prejudice to the defendant, as well an available action against the plaintiff's former solicitors.

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Meet our Health Law & Litigation team

Our team has an in-depth understanding of the health industry and we have significant experience acting on behalf of hospitals, aged care facilities, doctors and other health care professionals.

We are involved in litigated and non-litigated claims, complaints to professional boards and the Health Services Commissioner, Coronial inquests, and are adept at managing complex claims. 

We understand that medical indemnity portfolios are highly specialised and require careful management. We know that protecting client reputations in often media sensitive cases and managing claims effectively are key challenges in this area, which we manage carefully and confidently.

We value the strong relationships that we have in place with, and have received compelling endorsements from, our clients and plaintiff lawyers for the speed, commerciality, integrity and intelligent way in which we manage files.  

Please click here for a printable version of our Health Law & Litigation team and their contact details.

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.