Australian Professional Practice Bodies and the Tort of Negligent Investigation

Abstract

The New South Wales Supreme Court has examined the statutory and common law duties of the New South Wales Health Care Complaints Commission and the New South Wales Medical Board in the recent case of Attorney General (NSW) v Bar-Mordecai [2008] NSWSC 774. The judgment establishes that a professional practice body investigating the alleged misconduct of a doctor will rarely be liable under Australian statutory or common law duties to compensate that doctor for harm arising as a result of negligent investigatory practices. In particular, it establishes that such a body owes no duty to take reasonable care to avoid psychiatric injury to a medical practitioner against whom a complaint has been lodged and whom it is investigating. It is argued that the differing approaches to the tort of negligent investigation in Canada and Australia stem from differences not only in policy values but in the legal frameworks used in each jurisdiction to determine the existence of duties of care at common law. Show more