We are all well aware of the fact that the pandemic has impacted the nation in an unprecedented fashion; however, what most may not be aware of is the direct impact that the constraints of lockdown and financial stress associated with these times has had upon instances of domestic violence. According to Legal Aid NSW, in the past four months the domestic violence unit have taken in more calls for assistance than they would usually throughout the duration of an entire year (1600 phone calls v 1000 annual average). In the last nine weeks alone, six individuals have lost their life due to domestic violence incidents in NSW.
Upon being made aware of this alarming statistic, the government has allocated $15.6 million by way of a Commonwealth funding package to enable Legal Aid NSW, the Aboriginal Legal Service, and community-based legal centres to better handle the influx in calls for help. This funding will be used to allow eligible legal practices to hire more staff to respond to enquiries, as well as improving their ability to assist from a technological perspective.
Regardless of what your time of need calls for, Brydens Lawyers are here for you. If you require assistance with any legal matter- we ensure to take an approach that puts your needs first and provides you with the peace of mind and justice that you deserve.

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How do I know if I have access to Total and Permanent Disablement Insurance?
 
Often we are asked whether a claim can be made by workers who have had to cease employment by reason of an injury or illness that may not in fact be work related. As we are all aware, if we are unable to work by reason of an injury at work, we are entitled to recover workers compensation benefits. But there are many instances where a worker has had to cease work by reason of a non—work related injury or illness
Those who have to cease work by reason of an injury or illness that is not work-related may still have available to them an entitlement to claim benefits. These benefits may be found in a total and permanent disablement insurance policy attached to an active superannuation account.
To confirm whether or not you are the beneficiary of a total and permanent disablement insurance policy all active superannuation accounts must be identified. If you are uncertain as to what superannuation accounts you hold, we can assist by lodging a Super Search with the Australian Taxation Office on your behalf.
Once the relevant superannuation accounts have been identified, enquiries are made of the superannuation fund for the purpose of identifying any insurance policies attached to the superannuation account that were in place as at the date you last worked. It is important to obtain a copy of that policy and to review same to see what, if any, benefits may be available to you if in fact you are unable to work by reason of any injury or illness. It is imperative that proper legal advice and representation be retained in this regard. In some cases, these policies can be up to 100 pages in length and legal advice is required to review the document carefully so as to ensure that all and any benefits that may be available to you are claimed. The policy will set out in detail the specific criteria that will need to be satisfied if you intend to make a claim for total and permanent disablement benefits.
Remember, as with all insurance policies, the insurance company is not your friend. They will endeavour to take all and any forensic or tactical decisions to try and avoid payment of any benefits that you may be entitled to.
Brydens Lawyers are experts in the prosecution of total and permanent disablement claims for the purpose of recovering all benefits to entitled claimants. If you have been unable to work by reason of any injury or illness you may be entitled to substantial benefits under a total and permanent disablement policy. If that is you, contact Brydens Lawyers today for expert legal advice and representation in relation to all superannuation and total and permanent disablement claims. Brydens Lawyers #WE DO superannuation and total and permanent disablement claims.

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Motor Accident Claims
 
Further to my recent article concerning the new motor accidents scheme I would like to draw your attention to a LinkedIn post by the NSW Minister for Customer Service at NSW Government, Victor Dominello MP of 30 June 2020.
The post can be found at: https://bit.ly/3eP5Cse
I must say that I found the most chilling feature of the Minister’s post to be his comment that:
“For me, the most important part of the 2017 CTP reforms is the data architecture, the digital design and the customer lens.”
Let us allow that to sink in for a moment.
For the Minister, the most important part of the 2017 CTP reforms is not the level of benefits available to innocently injured motorists so as to ensure that they are properly compensated and cared for but rather it is data architecture, digital design and the customer lens. 
I for one have no idea what these terms actually mean.
I assume data architecture references the shape or design of graphs utilised, such as the one held by the Minister in his post, showing a downward trend in CTP green slip premiums.
Why can’t we just say that there is a downward trend in green slip premiums?
Digital design, I suspect, pertains to the graphics, layout and presentation of the websites utilised by the State Insurance Regulatory Authority and CTP insurers?
Could not we just say that very pretty pictures and colours are used to induce people to utilise the website and/or purchase a particular insurers CTP policy?
As to the customer lens, the Minister is obviously referring to the manner in which “customers” view or see the “experience” of reviewing and/or purchasing a CTP policy of insurance?
Would it be safe for me to assume that for the overwhelming majority of motorists in NSW, particularly those who have been the innocent victims of a motor vehicle accident, would care less about data architecture, digital design and the customer lens? Can I also assume that the overwhelming majority of motorists in New South Wales have little interest in the “customer experience” as long as the CTP policy comes at a fair price and provides adequate cover?
The Motor Accident Injuries Act 2017 was designed, or at least that is what we were told, for the purpose of ensuring that injured motorists received proper compensation coupled with the economic sustainability and viability of the scheme for all stakeholders.
We are now told, in the Minister’s own words, or in particular lack thereof, that the level of compensation available to injured motorists is not the most important part of the scheme.  In fact, it does not even appear to be an important part of the scheme at all.
A careful perusal of the Minister’s post under reference does not disclose one word about injured motorists or the level of compensation available to them.  In fact, the post itself presents as a victory lap of sorts by the Minister in which he embraces a reduction in greenslip premiums which has come at the cost of proper compensation to thousands upon thousands of innocently injured motorists.
If there was ever any doubt as to where this Minister’s priorities lay, his own post has resolved those doubts beyond question.
The much lauded reduction in greenslip premiums would be a consequence of the super-profits that the insurers have and continue to make out of the motor accident scheme.  Need I remind the Minister of his media release of 29 October 2009 wherein we were all told that ground-breaking new rules would give the Government power to claw back excessive insurer profits and return the money to motorists through cheaper greenslips.
What profits have been clawed back?  Any at all?
Or can we expect the Minister to suggest that the fact greenslip premiums have reduced in price is evidence of self-regulation by insurers to ensure that part of the profits earned are returned to the “customer”?
Self-regulation by insurers? Please.
Of course to answer such enquiries the Minister and/or the insurers would have to disclose the extent of the profits which they have made from the scheme to date.  For reasons which are abundantly clear and previously discussed, that is most unlikely to occur.
Regrettably, and most unfortunately, we are left with the inevitable conclusion that the Minister and this Government’s concerns rest entirely with the cost of CTP greenslip insurance, technological wizardry and the customer experience but have absolutely no regard whatsoever to the human cost that this scheme has imposed.
When next paying your CTP insurance premium you may be thankful for the reduction that has been brought about or recorded by Minister Dominello’s data architecture and digital design. However do not forget for one moment that the $300 saving on your CTP insurance policy may have to be offset against the tens of thousands or indeed hundreds of thousands of dollars in compensation that would otherwise have been available to you or any of your family if you were to be the innocent victims of a motor vehicle accident.
From my perspective, and that of most reasonable people I suspect, I would have been far happier paying the additional $300.

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According to an article published by The Sydney Morning Herald on April 25th, urgent applications to the Family Court have seen an increase of almost forty percent since the introduction of COVID-19. There are a multitude of contributing factors as a result of these trying times- whether it be financial stress, the strain of isolation, or spending far more time at home than one would usually. Ultimately, the statistics are all indicating that these unprecedented pressures are having a severe impact on families- together or apart- right across the nation.
The Family Court of Australia issued a media statement outlining their response to this surge in enquiry, describing the development of a COVID-19 priority listing system to deal “exclusively with urgent parenting-related disputes that have arisen due to the COVID-19 pandemic”. The Family Court of Australia have offered four key circumstances under which an application to this triaging system may be made: an increased risk of family violence, being unable to attend a supervision centre, border restrictions impacting upon parenting arrangements, or medical issues in regard to the contracting of COVID-19.
If you require assistance with a Family Law matter- please do not hesitate to get in touch with our expert team today on 1800 848 848. Alternatively, book a FREE* phone, Skype, or Zoom consultation here.
*Conditions apply.

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What does “no-fault divorce” mean in Australia?
 
Since the introduction of the Family Law Act, 1975 the parties to a marriage are entitled to a divorce if they can establish that they have lived separate and apart for a period of 12 months and that the relationship has irretrievably broken down.
It is the Family Law Act, 1975 which has established the principle of “no-fault divorce” in Australian law. That is, the court need not consider any factors that may have led to the breakdown of the marriage. This is very different to what the position was prior to 1975 where grounds to establish an entitlement to a divorce needed to be proven. Such grounds would include adultery, desertion, refusal to consummate the marriage, drunkenness, imprisonment and the like. Fortunately, we no longer require private investigators to spy through people’s bedroom windows to recover the evidence necessary to establish the grounds for divorce.
Once the court is satisfied that the marriage has irretrievably broken down and that the parties have lived separately and apart for a period of 12 months, the court will grant the application for divorce.
In the event that the parties are living separate and apart under the one roof, affidavit evidence would be required to establish the irretrievable breakdown of the relationship and that the parties continuing to reside together was based on some financial or parenting reason.
Brydens Lawyers are experts in all Family Law matters. For the purpose of any divorce, custody or property dispute contact Brydens Lawyers today to see one of our expert Family Law Solicitors. At Brydens Lawyers #WE DO Family Law.
 

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SECURE YOUR FUTURE WITH OUR WILLS + ESTATES PACKAGE!
 
Here at Brydens Lawyers, our aim is to protect what matters most to you- which is why we are proud to announce that we have developed an all-inclusive package to ensure that all of your affairs are in order.
Through the drafting of a Will, Power of Attorney, and Guardianship documents; you will be able to take solace in the fact that your wishes will be abided by well into the future.
If this is something that is of interest to you, or potentially to someone you know- learn more about this package offer by booking a FREE* phone, Skype, or Zoom consultation with our expert Wills + Estates team today!
In this obligation-free session, our team will take the time to listen to your particular circumstance, leading to a tailored Wills and Estates Package perfectly suiting your needs.

BOOK NOW

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First Home Buyers/Builders
 
Regrettably, COVID-19 has had a substantial impact across a multitude of industries, and the construction trade is no exception. In order to control the effect on the industry- on 3 June 2020, the Federal Government announced the highly-anticipated HomeBuilder initiative; providing that individuals will have the ability to access a grant of $25,000 toward the construction or renovation of their homes, so long as they meet the guiding criteria (which can be found HERE).
It is important to note that that this is not the only scheme or grant on offer to first home buyers. Since its introduction on 1 July 2000, the First Home Owner Grant (FHOG) has been enabling an unprecedented number of Australians to enter the property market, by contributing $10,000 toward the purchase price of their first home. In conjunction with this- as of 1 July 2017, the First Home Buyers Assistance Scheme has allowed individuals purchasing homes valued up to $650,000 to receive total exemption from stamp duty; and houses valued between $650,000 to $800,000 to receive a reduction in this cost.
It has been confirmed by the Federal Government that ALL schemes are able to be used in combination with one another- providing that First Home Buyers/Builders could potentially be saving in excess of $35,000 if they are to sign a building contract before 31 December 2020.
If you have been considering buying, building or renovating your home- NOW IS THE TIME! Let our expert Conveyancing team help you to achieve your property dreams; ensuring that you maximise your potential for schemes, grants, and all things in between.

Book your FREE* phone, Skype or Zoom consultation today!

BOOK NOW!

*Conditions apply.

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Is “Finders Keepers” a crime?
 
“Finders keepers” is a concept often sought to be relied upon when an item, whether that be property or an amount of money, is found which you can keep without being guilty of the crime of stealing.
However, the application of the concept of finders keepers in NSW is more nuanced than its name suggests.
Stealing is an offence under the Crimes Act which provides for a maximum of five years imprisonment. However, if you find something on the street and keep it, are you guilty of stealing?
Like most things under the law, there is no “one size fits all” answer.
If at the time that you find the property you believe that the true owner could be identified and do not take any reasonable steps to locate the owner you could be found guilty of stealing.
For example, if you find a wallet on the street which contains cash and cards, the identity of the owner of the wallet would be readily found and in those circumstances it would be expected that you would either locate the person or provide the wallet to the police.
This can be contrasted to the position where you find a $20 note on the street. There is no one else around. In that situation it could be reasonably believed that the owner of the note could not be identified and you would be entitled to keep the cash.
Whilst a $20 note may not be unique enough to engender a belief that the true owner cannot be identified, this may not hold true for larger sums of money. There have been cases where persons have been found guilty of stealing when they have retained large sums of cash which does not belong to them. Generally, it would be expected that this money would be handed in to the police. The same would apply to other valuable items such as jewellery. Whilst, it may be argued, on the face of it there is no way to identify the owner, it would be reasonable to assume that the true owner of the cash or valuable item would be making attempts to locate them.
Finders keepers does apply to property that has been abandoned. Any property that is discarded or disowned such as furniture or other goods left on the street for rubbish collection, may be collected and retained. Likewise, you can assume that an item has been abandoned if it is no longer fit for its intended purpose.
For all and any criminal law representation or advice contact Brydens Lawyers and one of our expert criminal lawyers will assist. At Brydens Lawyers #WE DO criminal law.

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With the imposition of the COVID-19 pandemic a significant proportion of the workforce was compelled to work from home. Questions arose as to what, if any, cover was available for a worker whilst working from home if injured in circumstances which would otherwise be compensable under the Workers Compensation Act, 1987.
A recent decision of the NSW Supreme Court is on point. In the case of Workers Compensation Nominal Insurer v Hill the court held that an employer is liable for an injury to a worker that occurred whilst working at home where the employment was a substantial contributing factor.
The facts of this case are tragic. It involved the death of a woman who was in a de facto relationship. Her death was caused by her de facto partner. Both were employed by a family company as financial advisers working from home. The partner suffered paranoid delusions. He believed that the deceased was conspiring with government authorities to ruin the business and him professionally. He also accused her of being unfaithful and at one time, required her to take a lie detector test. The test, significantly, was paid for by the family business in its capacity as employer.
The claim that fell to be decided was a death benefits claim brought on behalf of the two dependent children. Initially, in the Workers Compensation Commission, an arbitrator found in favour of the children being satisfied that their mother’s employment was a substantial contributing factor to the injuries resulting in her death.
The insurer appealed within the Commission. That appeal was dismissed. Ultimately the insurer brought the matter before the NSW Court of Appeal.
The Court of Appeal dismissed the appeal. The decision in favour of the two dependent children was affirmed. In doing so the Court of Appeal:

Confirmed that workers, working from home, were covered by the Workers Compensation Act, 1987 if they were able to establish that the employment was a substantial contributing factor to the injury or death.
The test of whether the employment was a substantial contributing factor is a factual, not a legal, one. That is, each matter is to be determined on its merits and on a case by case basis. The court affirmed that there needed to be a “palpable and direct connection” between the employment and the injury suffered.

His Honour Basten J provided the following helpful analysis:
“There may, of course, be domestic violence between couples who work from home in the same business which would not attract liability on the part of the employer to pay compensation, because the violence had no connection with the work conditions of either party. However, on the findings of fact, that was not this case. The findings of fact demonstrated a palpable and direct connection between (the husband’s) delusions, (the wife’s) employment and the harm suffered by her…”
Workers who suffer an injury at home during the course of their employment may be able to access workers compensation benefits in a claim as against their employer if they can establish the necessary connection between the employment undertaken and the injury suffered. The mere fact that an injury occurred at home would not in itself be sufficient. There would need to be the “palpable and direct” connection between the employment and the injury for a claim to be available.
Brydens Lawyers are experts in the prosecution of workers compensation claims. If you have been injured during the course of your employment then contact Brydens Lawyers today for a free, no obligation assessment as to your entitlements to claim compensation.
Brydens Lawyers – #WE DO workers compensation claims.

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Weekend Write-Up Article 8 – If you have been injured in a motor vehicle accident, it is important to lodge a claim with the insurer immediately
The Motor Accident Injuries Act 2017 (NSW) which became effective on 1 December 2017 introduced significant changes to the scheme available to persons who have been injured in a motor vehicle accident for the purpose of claiming compensation.  Regrettably the changes brought about by the legislation have further reduced the levels of compensation that were otherwise available to injured motorists.  Regrettably we are not availed of actual figures from the various insurers and/or the Government as to how the scheme is progressing with respect to premiums received and payment of compensation made but there is anecdotal evidence available to confirm that the insurers have received billions and billions of dollars in greenslip premiums and have only paid out a minor fraction of that sum to injured persons by way of compensation.  Many of you would know that greenslip premiums have not reduced significantly yet the level of compensation and cover provided by the greenslip has.  The one common denominator that seems to drive all reforms by this Government in the area of motor accident or workers compensation claims has been to reduce the level of benefits for the injured and to enhance the profitability of insurers.
The Current Scheme
If you have been injured in a motor vehicle accident regardless of whose fault it was, you are entitled to make a claim as against a CTP insurer.  For the first 6 months following the accident you are entitled to payment of all reasonable and necessary medical treatment as well as reimbursement (in part) of any wage loss suffered during this period.  It is imperative however that for full benefits to be recovered the claim form is lodged as soon as possible following the accident and within 28 days at the latest. 
If you are not at fault for the accident and have suffered more than just a “minor injury” there may be additional benefits available.  For example, if the injury sustained results in a whole person impairment in excess of 10%, you are entitled to recover damages for non-economic loss (pain and suffering).
You would also be entitled to recover the actual loss of wages suffered as opposed to the statutory benefits paid for the first 6 months.  There may also be a claim for future economic loss.
What is a minor injury?
The “minor injury” threshold represents the most radical change introduced by the Government in this legislation to the previous scheme.  The legislation provides for a very complicated and complex definition of minor injury.  Deliberate I would suggest so as to create uncertainty on the part of claimants when deciding to pursue their claim or otherwise.  The “minor injury” threshold applies to both physical and psychological injuries.  It has proven to be a bar to the prosecution of the overwhelming majority of claims on behalf of motor accident victims.
It is the insurers who are driving the enforcement of the “minor injury” threshold.  The insurer makes the initial determination as to whether a claimant has suffered a minor injury or otherwise and if so, will cease payment of any benefits beyond the initial 6-month period.  This then leaves the injured person in the invidious position of having to prosecute the claim further by way of review.  There is of course time and expense involved in same.
Summary 
The introduction of the Motor Accident Injuries Act 2017 (NSW) does not represent the highwater mark of legislative reform in NSW.  In fact, it is an embarrassment and represents the zenith of a Government’s contempt for the rights of injured persons. 
Regrettably, at least for the time being, this is the only scheme that we have to recover any semblance of compensation for persons injured in a motor vehicle accident.  If you have been so injured then you need to seek legal advice as soon as possible following the accident given the strict time limits that in place, again designed to limit the entitlements of the injured. 
Most importantly, please stay safe on our roads.

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Due to the ever-changing nature of the pandemic, as well as the States operating on different timelines, it can be somewhat confusing to understand what you can and cannot do here in New South Wales. To assist in understanding the latest easing of restrictions, introduced June 1, we have compiled a comprehensive list below:

Up to 50 patrons allowed at restaurants (with the 4 m2 rule in place)
Outdoor gatherings/groups of up to 10
Beauty salons, museums, galleries, and libraries are NOW OPEN
5 people can visit your home at any one time
Regional travel is both allowed and encouraged
Other gatherings: up to 20 people at weddings, up to 50 people at funerals and places of worship
Indoor gyms/Yoga studios/Indoor pools to be open as of 13 June.
Community sport is allowed to resume from 1 July.

It is important to remember that even though restrictions are easing, maintaining established hygiene practices, be it hand washing, maintaining a 1.5m physical distance, being tested if experiencing mild symptoms, are all still of the utmost importance. As we draw closer to the light at the end of the tunnel, now is not the time for complacency, but rather the time to work together as we endeavour to eliminate the spread of this insidious virus entirely. 

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Occasionally in the administration of justice there are rulings of the court with which we may not necessarily agree. However, due to legal precedents and the particular facts and circumstances of the individual case, the result in a matter may not be particularly popular or palatable but correct in a legal sense.
An example of this can be found in the recent decision of the NSW Supreme Court which determined that the crowd-funded $51.3 million in bushfire relief spearheaded by Australian comedian Celeste Barber, cannot be distributed amongst interstate charities and must remain solely for the benefit of the NSW Rural Fire Service.
The reasoning behind this decision is clear. Ms Barber had listed the NSW Rural Fire Service and Brigades Donations Fund as the sole beneficiary in the initial phase of the crowd-funding campaign. Although an extraordinary sum was raised, far in excess of all expectations, the RFS Trust Deed provided that the donations received were only available to be contributed towards operational costs, training and fire equipment.
Notwithstanding this, the Supreme Court did rule that portions of the sums raised can be utilised to assist injured firefighters or the family of those who tragically lost their lives which will provide, no doubt, a sense of peace of mind to many donors.
We look forward to the positive impact that the injection of these funds will have for the NSW Rural Fire Service and those who are entitled to also benefit. If there is nothing else that we can take from this, let the sheer magnitude of the $51.3 million crowd-sourced campaign affirm our faith in humanity.

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What are the requirements for making a medical negligence claim?
 
If you have suffered injury, loss or damage as a result of treatment provided by a healthcare professional there may be a medical negligence claim available to you.
Medical negligence claims are often complicated and complex. However, they need not be. The elements of a medical negligence claim are easily identifiable. The question arises however as to whether there is evidence available to establish the elements of the claim to the satisfaction of the court thus entitling you to claim damages for the injury, loss or damage which you have suffered.
The elements of a medical negligence claim are as follows:

It is necessary to establish a duty of care. Of this there is no doubt. All healthcare professionals owe a duty of care to their patients.
It would then be necessary to establish a breach of that duty of care. For same evidence is required of “peer professional opinion” to prove that the conduct of the healthcare professional in question was not widely accepted in Australia as competent professional practise. Invariably this takes the form of an expert’s report from a “peer professional”, that is someone of the same or similar qualifications as the healthcare professional complained of or acting in a similar capacity. Once the evidence is available to the satisfaction of the court that the conduct of the healthcare professional did not constitute “competent professional practise” in accordance with accepted peer professional opinion, then the breach of the duty of care has been established.
It then is necessary to show, again to the satisfaction of the court, that the breach of duty caused or materially contributed to the injury, loss or damage suffered by the patient. If this causal connection can also be proven then, with the breach of duty of care, the elements of a negligence claim against the healthcare professional have been sufficiently established. Of course, this presumes that injury, loss or damage has occurred. It is important to note that even if breach of duty of care is established but no injury, loss or damage results from same, then there is no claim.
It should be noted that the mere dissatisfaction with the outcome of medical treatment or a procedure is not in itself sufficient to establish the entitlements to a claim. As set out above, the patient must prove that the duty of care owed by the healthcare professional was breached and that the injury, loss or damage resulted from same. There can be instances where a less than optimum outcome results from medical treatment or a procedure and that this did not arise as a result of any breach of duty of care.

Once the breach of duty of care and the question of causation have been satisfied the court will turn its attention to the injury, loss or damage suffered by the patient for the purpose of determining the appropriate level of compensation. Compensation can be awarded for non- economic loss (pain and suffering), past and future medical treatment expenses, the value or cost of care that is required by the patient, past and future economic or wage loss as well as a contribution towards the patient’s legal costs.
Brydens Lawyers are experts in the successful prosecution of medical negligence claims. If you have any concerns with respect to treatment provided by a healthcare professional which may have resulted in injury, loss or damage then the matter is worthy of investigation. For a free consultation and initial assessment of any claim that may be available to you, call the experts at Brydens Lawyers. Strict time limits apply so do not delay. Brydens Lawyers #WE DO medical negligence claims.

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MEDICAL NEGLIGENCE AND COVID-19
The advent of Covid 19 has brought into focus the past achievements of the medical profession in achieving almost miraculous advances in public health in the eradication of diseases through vaccination and other programmes.  It has also raised awareness of the limits of medical science in times of crisis at both a public and personal level.  The search for a vaccine to deliver us continues.   In the meantime, we can only place our hope in medical science in its present state of evolution to save us from an epidemic that does not appear to be well understood by our medical profession and defies our very existence by taking so many lives.
At what point should our medical profession, or those in charge of our public heath institutions, be brought to account for any limits or failings in their intervention.  The almost sacred position held by the medical profession in our society has partly come about through prior advances in medical science that have achieved so much for public health.  It also has its origins in Western European philosophy that has also informed the law of medical negligence. 
Medical negligence is a branch of the law of professional negligence.  At traditional English common law, only three callings were recognised as “professions” – clergy, doctors and lawyers.   As other vocations, such as engineering and banking, have adopted some “professional” characteristics, professional negligence principles at common law have also been applied to some extent to those fields as well.
The fiduciary obligations of “utmost trust and confidence” are the defining feature of the professional relationship.  The rationale is that a patient or client (as in the case of a lawyer) must have absolute confidence in making full disclosure of all matters relevant to the retainer of the professional.   The personal information provided is held in the strictest confidence, as is the advice provided by the professional, with disclosure permitted only in limited circumstances.
The defining feature of the fiduciary relationship between professionals and their clients was explained by the High Court of Australia in Hospital Products Ltd v U.S. Surgical Corporation (1984) 8 ALJR 58, as requiring the elevation by professionals of their client’s interests above their own personal interests.
Apart from an overriding fiduciary obligation of trust and confidence, a duty of care owed by medical practitioner is determined to some extent by the structure and ethos of the medical profession.  The Hippocratic Oath to do no harm as well as the principles of medical science and practice have a role to play in defining the scope of the duty of care owed to patients.  It is not possible to find that a medical professional has been in breach of a duty of care owed to a patient unless the standard of that duty has been defined.
Medical practitioners receive a bachelor of medicine and bachelor of surgery (“MBBS”), undergo an induction as resident medical officer (“RMO” or “intern”) in a teaching hospital for 12 months before completing training as a registrar over a period of 4 years.  A medical practitioner may embark on general practice after completing some of the years of training as a registrar.  After completing all years of training as a registrar, a medical practitioner may continue training as a specialist over a period of 6 years through various colleges.  Those in specialist training may progress through the ranks as a fellow or staff specialist in a particular teaching hospital before seeking specialist consulting roles as a visiting medical officer (“VMO”) at a number of teaching hospitals.  The standard of care required of a medical practitioner may vary depending upon the extent of his or her training and experience.
Registrars carry out their duties as employees of statutory corporations that operate hospitals in various “local health districts” in New South Wales.  Those statutory corporations are usually sued for the negligence of employed registrars on the basis of vicarious liability.
A patient may be admitted as a public patient to a teaching hospital under a particular consultant.  Any medical or surgical treatment will usually be carried out by the registrars allocated to that consultant for training.  A consultant may actively participate in any medical or surgical treatment with the registrar or may merely be “on call” for assistance.  It is important to know whether the consultant played an active role in any surgical procedure at a public hospital in analysing a potential medical negligence claim.  It may be necessary to join the consultant as a defendant in addition to the public hospital.
A statutory corporation operating a public hospital will owe a non-delegable duty of care to a public patient who has not paid for medical services.  There will be no contractual relationship between the hospital and the patient to confirm the existence and define the scope of the duty of care.  The statutory corporation operating the public hospital will usually be liable for the negligence of an admitting or attending consultant who is not an employee of the hospital pursuant to principles of non-delegability.  These principles operate along the same lines as vicarious liability.
A consultant who admits his own private patient to a public hospital or private hospital will perform the surgical or other treatment himself pursuant to a contract with his private patient.   Any alleged breach of duty of care on the part of the consultant must be considered in accordance with the scope and nature of the contractual relationship with his or her private patient.
A physician in the medical profession carries out a primary diagnosing and treating role in managing a patient.   The physician will be responsible for the prescription of medication and may refer the patient to other specialities such as radiologists and pathologists or surgeons.   It is important to identify who is managing the patient and making treatment decisions.  These decisions may be based upon separate advice received from consulting radiologists and pathologists.  It may be necessary to join a consulting radiologist or pathologist for mis-interpreting or mis-reporting a radiograph or pathology sample.  A general practitioner may operate in the role of physician by arranging radiology and pathology or by referring the patient to a surgeon.   The roles and functions may overlap.
The standard of care required is measured according to the state of medical knowledge and practice prevailing at the time of the alleged negligent treatment.   At traditional English common law, the standard of care required was described in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 as:
“Ordinary care and skill on the part of a competent medical practitioner in the position of the defendant.” (the “Bolam Test”)
It was necessary under the Bolam Test to lead evidence from an expert witness, who was another doctor in the same field, on behalf of a plaintiff bringing a medical negligence claim as to the applicable standard of medical care required as well as whether the care actually provided fell short of that standard.  The defendant doctor would escape liability under the Bolam Test if he or she were able to establish through expert evidence from another doctor also in the same field that he or she acted:
“In accordance with a practice accepted at the time as proper and by a responsible body of medical opinion even though other doctors adopt a different practice (Sidaway v Board of Bethlehem Royal Hospital and Maudsley Hospital [1985] AC 871)
It can be seen from these principles for finding liability in negligence at common law against medical professionals that the standard of care applied allows for differences of opinion as to what may be “proper” so long as the relevant “difference of opinion” is held by a “responsible body” of their colleagues.  This “peer review” test has been adopted into the law of New South Wales, subject to some modification, by the following legislative provision in the Civil Liability Act 2002 that somewhat misleadingly refers to a “standard of care:”
5 O – Standard of Care for Professionals

A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
However, peer professional opinion cannot be relied upon for the purposes of this section if the court considers that the opinion is irrational.
The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent one or more (or all) of those opinions being relied upon for the purposes of that section.
Peer professional opinion does not have to be universally accepted to be widely accepted.

Section 5 O (1) creates a defence to an action in medical negligence similar to that allowed under the Bolam Test at common law that allowed a medical professional to rely upon a difference of opinion as to the standard of care required that may exculpate him or her so long as it was widely although not necessarily universally held by his or her colleagues.  The main modification introduced by the legislation allows the Court to reject any such difference of opinion relied upon in defence should it be “irrational.” (5O (2)) 
It will be interesting to see how those who are aggrieved by public health interventions to Covid 19 will fare in seeking redress through the legal system against those managing the response to an epidemic that is not well understood by medical science and where there have been significant differences in opinion by public health officers as to how the response is to be managed.  The approach to management of the response appears to be a “trade off” between preservation of human life on the one hand and the maintenance of public finances and health infrastructure on the other.  At what point does the “trade off” fall foul of “widely held peer professional opinion” as to “competent medical practice.”  A comparison between the disastrous public health response in the United States of America to the relatively more successful response in Australia demonstrates the extremes of the “trade off.”  It is only the legal system that can bring public health officers and medical professionals to account for failing the public and it is the lawyer’s professional duty to do so.

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