Medical Negligence (AU) glossary
Medical negligence in Australia is governed by the common law of negligence as modified by state Civil Liability Acts. Following the Ipp Review in 2002, each state enacted reforms that raised thresholds, limited damages, and codified the standard of care. This glossary explains the terms practitioners need to advise on medical negligence claims.
This glossary covers 40 terms that medical negligence and personal injury lawyers encounter when advising on claims against health practitioners in Australia. Each definition references the relevant Civil Liability Act provision or case authority.
Definitions
AHPRA
The Australian Health Practitioner Regulation Agency — the national body responsible for registering and regulating health practitioners across 16 professions.
Apology legislation
State legislation providing that an apology by a health practitioner is not admissible as evidence of liability — encouraging open disclosure without legal risk.
Bolam test
The English standard that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion — modified in Australia by Rogers v Whitaker.
Breach of duty
The failure of a health practitioner to exercise reasonable care — assessed by whether a reasonable practitioner in the same position would have taken precautions against the risk.
But-for test
The primary test for factual causation — the plaintiff must prove that but for the defendant's negligence, the injury would not have occurred.
Caps on damages
Statutory limits on heads of damages in medical negligence claims — including caps on general damages and economic loss under Civil Liability Acts.
Causation
The requirement to prove that the defendant's negligence was a necessary condition of the harm (factual causation) and that it is appropriate to extend liability (scope of liability).
Civil Liability Act
The state legislation reforming negligence law following the Ipp Review — codifying the standard of care, causation, and damages rules.
Comparative negligence
The allocation of fault between the plaintiff and defendant where the plaintiff's own negligence contributed to the injury — reducing damages proportionally.
Complaint (AHPRA)
A notification to the Australian Health Practitioner Regulation Agency about a health practitioner's conduct — which may result in investigation, conditions, or deregistration.
Contributory negligence
The plaintiff's failure to take reasonable care for their own health — for example, failing to follow medical advice — reducing damages by the proportion of fault.
Damages
The monetary compensation awarded to the plaintiff for injury caused by medical negligence — comprising general damages, economic loss, past and future care, and out-of-pocket expenses.
Delay in diagnosis
A common form of medical negligence where the practitioner does not diagnose a condition in a timely manner — the claim is for the additional harm caused by the delay, not the underlying condition.
Discoverability
The date on which the plaintiff first knew or ought to have known of the injury and its connection to the defendant's negligence — starting the limitation period.
Duty of care
The obligation of a health practitioner to exercise reasonable care toward their patient — arising from the practitioner-patient relationship.
Economic loss
Damages for past and future loss of earning capacity resulting from the injury — subject to statutory caps under Civil Liability Acts.
Expert evidence
Opinion evidence from a medical expert on the standard of care, causation, or prognosis — essential in medical negligence proceedings and subject to court expert rules.
Failure to warn
A claim based on the practitioner's failure to warn of a material risk of treatment — assessed under Rogers v Whitaker rather than the Bolam test.
General damages
Non-economic loss damages for pain, suffering, and loss of amenities — subject to a statutory threshold (typically 15% of most extreme case) and cap.
Informed consent
The patient's voluntary agreement to treatment after being informed of material risks, alternatives, and consequences — the practitioner must disclose what a reasonable person in the patient's position would want to know.
Ipp Review
The 2002 review of the law of negligence chaired by Justice Ipp — recommending reforms that led to the Civil Liability Acts in each state.
Joint expert
A single expert appointed by the court to give evidence on a medical issue — used to reduce costs and conflicting opinions in medical negligence proceedings.
Limitation period
The time within which a medical negligence claim must be commenced — typically three years from the date of discoverability, subject to longstop periods.
Longstop period
The absolute outer limit for commencing a claim — typically 12 years from the act or omission giving rise to the claim, regardless of when the injury was discoverable.
Material contribution
An alternative causation test applied where the but-for test is insufficient — the court may find causation where the negligence materially contributed to the harm.
Material risk
A risk that a reasonable person in the patient's position would attach significance to — the standard for disclosure under Rogers v Whitaker.
Most extreme case
The statutory maximum for general damages — representing the most severe injury imaginable, with lesser injuries assessed as a percentage.
Obvious risk
A risk that would have been obvious to a reasonable person in the plaintiff's position — the defendant has no duty to warn of obvious risks under Civil Liability Acts.
Open disclosure
The practice of informing patients about adverse events during their care — supported by the Australian Open Disclosure Framework and protected by apology legislation.
Professional misconduct
Conduct by a health practitioner that is significantly below the standard reasonably expected — grounds for disciplinary action by AHPRA or a tribunal.
Proportionate liability
The regime under Civil Liability Acts apportioning liability among concurrent wrongdoers according to their respective responsibility — replacing joint and several liability for economic loss claims.
Rogers v Whitaker
The 1992 High Court authority establishing that a doctor must warn of material risks that a reasonable person in the patient's position would want to know — rejecting the Bolam test for disclosure.
Scope of liability
The second limb of the statutory causation test — whether it is appropriate for the scope of the defendant's liability to extend to the harm suffered.
Standard of care
The level of care a reasonably competent practitioner in the same field would have exercised — the benchmark against which breach is assessed.
Structured settlement
A settlement providing periodic payments rather than a lump sum — used in severe injury cases to fund ongoing care and living expenses.
Vicarious liability
The liability of a hospital or medical practice for the negligent acts of its employees (doctors, nurses) committed in the course of their employment.
Wrongful birth
A claim by parents for damages arising from the birth of a child following negligent advice or treatment — including failed sterilisation or failure to diagnose a foetal abnormality.
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These definitions are general explanations for educational purposes — not legal advice. Medical negligence law varies between states and is subject to ongoing reform. Always verify against the current Civil Liability Act, case law, and limitation periods.
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