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Lowns v Woods (1996) Aust Torts Reports 81-376 (NSWCA) - Duty of Care case

Court decision

Cole JA stated that the initial judge had been correct in his decision because:

"In general the common law does not impose a duty to assist a person in peril even where it is foreseeable that the consequence of a failure to assist will be the injury or death of the person imperiled. Something other than the foreseeability of harm is required before the law imposes a duty to intervene. It has been held in other common law jurisdictions that a doctor is under no duty to attend upon a person who is sick, even in an emergency, if that person is one with whom the doctor is not and has never been in a professional relationship of doctor and patient...However a question arises regarding whether the implicit request to Dr Lowns made by Joanna Woods for him to go with her to treat her brother gives rise to such a relationship of proximity as to give rise to a duty of care, and if so what was the content of that duty...

Dr Lowns accepted that injury ("damage") to a fitting child was foreseeable if he, once requested, did not attend to treat the child. There was an obvious physical proximity, for Joanna had come on foot. There also existed an adequate "circumstantial proximity" in the sense that DR Lowns was a medical practitioner to whom a direct request for assistance was made in circumstances where, on the evidence presented, there was no reasonable impediment or circumstances diminishing his capacity or indicating significant or material inconvenience or difficulty in him responding to the request, in circumstances where he knew, as he must be deemed to have admitted once it is found the conversation occurred, that serious harm could occur to Patrick Woods, if he did not respond to the request and provide treatment. Once it is found, as here, that administering valium at the time determined by the trial judge would have brought an end to the status epilepticus before the onset of brain damage causing quadraplegia, causal proximity is also established...In my opinion the trial judge was correct to find negligence, in this instance, against Dr Lowns."

Therefore, by a majority decision, the CA upheld the decision of the trial judge. The damage to the fitting child was foreseeable. Proximity has been established. Dr Lowns had no reason to refuse the request to attend and so his actions were unreasonable in the circumstances. Therefore, doctors have a professional obligation to assist when there is an implicit request to do so.

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