By Dr Michelle Sharpe -
Key decisions
- State of Queensland v The Estate of Jennifer Masson [2020] HCA 28
- Mondelez Australia Pty Ltd v Automotive, Food Metals, Engineering, Printing and Kindred Industries Union (AMWU) & Ors [2020] HCA 29
NEGLIGENCE
Common law standard of care
In State of Queensland v The Estate of Jennifer Masson [2020] HCA 28 (13 August 2020) (‘Masson’) the High Court restated the common law standard of care to be applied in determining negligence.
The facts in Masson are tragic. In July 2002, the then 25-year-old Ms Masson had a severe asthma attack. The ambulance was called. At the scene of her attack Ms Masson was treated by ambulance officers including Mr Peters, an intensive care paramedic.
Paramedics were provided with a Queensland Ambulance Service Clinical Practice Manual (‘CPM’). The CPM listed the pre-hospital treatment options for asthmatics depending on the severity of the attack. For asthmatics experiencing ‘severe asthma’ the CPA stated that salbutamol should be considered. For asthmatics experiencing an even more acute attack and at risk of an ‘imminent arrest’, the CPA stated that adrenaline should be considered.
Mr Peters initially decided to administer salbutamol and Ms Masson’s condition appeared to improve. But, during transport to hospital, Ms Masson’s condition deteriorated, and Mr Peters assessed a cardiac arrest as being imminent. Mr Peter then administered adrenaline. Ms Masson survived but suffered sustained, severe, irreversible brain damage due to oxygen deprivation. She lived in a vegetative state until her death in 2016.
Their Honours considered that the oral evidence … and the trial judge’s impression of it, was of ‘paramount importance’. Their Honours noted that basing decisions on lay witness statements was ‘highly problematic’ since the ‘unspoken reality (is) that lay witness statements are liable to be workshopped, amended and settled by lawyers’.
