On the Minister’s approach, despite the wrongful act having occurred in Australia, the 408 standard of medical care in the country where a plaintiff happens to be taken for medical treatment, would determine the applicable standard. That would be so irrespective of the options available to the defendant for procuring the medical assistance. To illustrate by reference to facts not relevantly dissimilar to those at hand: if an employee of the Commonwealth was very seriously burnt on Nauru and, by reason of a procurement of medical assistance done in Canberra, was taken to Papua New Guinea for treatment, rather than to the highly-specialised burns unit at the Royal Brisbane Hospital, on the Minister’s contention, the standard of care would be to the Papua New Guinean standards “attenuated” of medical care. The result would be that the procurement of medical assistance in Papua New Guinea rather than Brisbane would not provide a foundation for the employee to recover for injuries sustained by reason of the absence of a sophisticated burns unit in Papua New Guinea. That could not be the law. It would result in the wrongful act (the careless act of procuring) escaping an assessment as to its reasonableness. The applicant’s circumstances are not relevantly different. It was not suggested by the Minister that they were different because of the applicant’s status. If it matters (which I doubt), and in so far as the Minister relied on the applicant’s consent to travel to Papua New Guinea, I have found that her informed consent was not given. RELIEF Section 474 of the Act The Minister raised, in answer to the applicant’s prayer for injunctive relief, s 474 of the Act. 409 That section, and also the headings of its Part and Division, are as follows: Part 8—Judicial review Division 1—Privative clause 474 Decisions Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any on any account. (2) In this section: means a decision of an administrative character privative clause decision
408 On the Minister’s approach, despite the wrongful act having occurred in Australia, the standard of medical care in the country where a plaintiff happens to be taken for medical treatment, would determine the applicable standard. That would be so irrespective of the options available to the defendant for procuring the medical assistance. To illustrate by reference to facts not relevantly dissimilar to those at hand: if an employee of the Commonwealth was very seriously burnt on Nauru and, by reason of a procurement of medical assistance done in Canberra, was taken to Papua New Guinea for treatment, rather than to the highly-specialised burns unit at the Royal Brisbane Hospital, on the Minister’s contention, the standard of care would be “attenuated” to the Papua New Guinean standards of medical care. The result would be that the procurement of medical assistance in Papua New Guinea rather than Brisbane would not provide a foundation for the employee to recover for injuries sustained by reason of the absence of a sophisticated burns unit in Papua New Guinea. That could not be the law. It would result in the wrongful act (the careless act of procuring) escaping an assessment as to its reasonableness. The applicant’s circumstances are not relevantly different. It was not suggested by the Minister that they were different because of the applicant’s status. If it matters (which I doubt), and in so far as the Minister relied on the applicant’s consent to travel to Papua New Guinea, I have found that her informed consent was not given. RELIEF Section 474 of the Act 409 The Minister raised, in answer to the applicant’s prayer for injunctive relief, s 474 of the Act. That section, and also the headings of its Part and Division, are as follows: Part 8—Judicial review Division 1—Privative clause 474 Decisions Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any on any account. (2) In this section: privative clause decision means a decision of an administrative character
2016FCA0483.docx