In Hamlyn v Stanton (No 3) [2020] NSWDC 632 (on JADE) a urologist performed surgery on patient with prostate cancer, having explained advantages and disadvantages of surgery and also alternative treatment of radiotherapy. However the urologist did not inform the patient of possibility of receiving assessment by a radiation oncologist.
As noted at [3], “Mr Hamlyn says that if he had been meaningfully informed about and offered an alternative form of treatment, involving radiation therapy, he would have elected to have undertaken the radiation therapy and, in so doing, he would avoided the complications associated with the surgery which he says he suffered. He alleges that Dr Stanton should have referred him, or offered to refer him, to a radiation oncologist to receive information and advice about that form of treatment so he could make a fully informed decision about what form of treatment he should receive.”
In relation to the potential application of section 5O of the Civil Liability Act 2002 (NSW) to that information provision issue, the Court held at [115] – [116]:
In my opinion, that argument can simply be rejected on the basis that, by s 5P, the s 5O standard is excluded in cases where it is said that liability arises from the provision of information. It is true that the plaintiff did not plead s 5P in his Reply, but in my view, he should not be prevented from doing so. When I raised this provision during addresses, Counsel for the defendant did not suggest the plaintiff could be shut out from relying upon it. By its terms, the provision is prohibitive in nature and it is an essentially legal answer to the application of s 5O. Properly construed, s 5P carves out an exception to the applicability of s 5O where the negligence arises from the provision of information or advice relating to personal injury associated with the provision of a professional service. This view is plainly centred on the text.
I therefore find that s 5O would not have been applicable to the part of the case concerning the provision of negligent information. To the extent that the decision remains consistent with the requirements of Part 1A Division 3 of the Civil Liability Act 2002 (NSW), it is the common law and, especially, the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479 will continue to govern the standard of care for liability for negligent advice or information cases [6] . That is to say, the views of a respectable body of professional information as to what information, advice or warnings should be supplied to a patient will be relevant, but not conclusive, of whether the standard of care has been complied with.
The Court went on to hold that reasonable precautions did not require Dr Stanton to even inform Mr Hamlyn of the possibility of radiation oncologist assessment. At [168] the Court was not persuaded that Dr Stanton breached his duty of care or did not comply with the statutory consumer guarantee (section 60, Australian Consumer Law).
The Court made obiter comments on causation and on assessment of damages.