The High Court of Australia and professional negligence law

This is probably the most important professional negligence decision in Australian legal history. Maree Whitaker sought ophthalmic surgery from Dr Christopher Rogers on her almost-blind right eye. During the procedure a rare condition called sympathetic ophthalmia developed, causing her to lose sight in her previously healthy left eye. She became almost completely blind.

The question was not whether the surgery was performed competently — it was whether Dr Rogers should have warned her of that risk before she consented. He had not mentioned it, arguing it was not standard practice to raise risks of that magnitude of rarity.

The High Court rejected that reasoning entirely. It held that a medical practitioner must warn a patient of any material risk — one that a reasonable person in the patient’s position would want to know about, or one the practitioner knows this particular patient would consider significant. Critically, the court rejected the English Bolam test. In Australia, the court decides what the standard of care requires — not the profession itself. This principle extends beyond medicine to every professional relationship where one party relies on the other for advice or services carrying risk.

Technically a House of Lords decision from the United Kingdom, Donoghue v Stevenson is the foundation on which modern negligence law — including Australian negligence law — was built.

Mrs Donoghue consumed ginger beer from a bottle her friend had purchased. A decomposed snail was inside. She became ill and sued the manufacturer, despite having no direct contract with them. The question was whether a duty of care could exist between parties with no contractual relationship.

Lord Atkin’s answer established the neighbour principle: you must take reasonable care to avoid acts or omissions that you can reasonably foresee would injure your neighbour — anyone so closely and directly affected by your acts that you ought to have them in contemplation. Australian courts adopted and developed this principle throughout the twentieth century. The High Court has since refined it significantly, but the neighbour principle remains the conceptual starting point for every negligence analysis.

This case addressed one of the harder questions in medical negligence: what happens when a professional’s negligence reduced a patient’s chance of recovery, but it cannot be proved that the negligence actually caused the harm?

Reema Tabet was a young child who presented with headaches and vomiting. A CT scan that should have been ordered earlier was delayed. By the time the brain tumour was diagnosed, it had progressed and she suffered permanent neurological damage.

The question was whether she could claim for the loss of chance of a better outcome independently of proving causation. The High Court said no. A claimant must prove, on the balance of probabilities, that the negligence caused the damage suffered. Loss of chance as a standalone head of damage is not available in Australia. This is a significant limitation on some medical negligence claims, though cases involving delayed diagnosis can and do succeed where causation can be properly established.

Before a court can find a breach of duty, it must assess whether a reasonable person in the defendant’s position would have taken precautions against the risk of harm. Wyong Shire Council v Shirt established the framework Australian courts use for that assessment.

Mason J identified four factors: the probability that harm would occur if care were not taken; the likely seriousness of that harm; the burden of taking precautions to avoid the risk; and the social utility of the activity giving rise to the risk.

This balancing exercise appears in virtually every professional negligence case. When a court asks whether your accountant should have warned you of a tax risk, or whether your engineer should have flagged a structural issue, it is running through this framework. The more foreseeable and serious the potential harm, and the lower the burden of the precaution, the more likely a court will find that a reasonable professional would have acted differently.

Pure economic loss — financial harm caused by a professional’s negligence where there is no accompanying physical injury or property damage — is a contested area of negligence law. Courts have historically been cautious about imposing liability for it.

Apand supplied potato seed infected with bacterial wilt to a neighbouring farm. Under Western Australian quarantine regulations, the Perre family could not export their own potatoes from the affected area — even though their crops were unaffected. They suffered significant financial loss with no physical damage to their property.

The High Court held that a duty of care existed. The Perre family’s vulnerability to financial harm was known to Apand, who had the capacity to prevent it. For financial advisers, accountants, solicitors, and other professionals whose negligence causes financial rather than physical harm, the principles in Perre v Apand are directly relevant.