Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

The hospital also argued that the trial judge incorrectly interpreted section 5PB as requiring evidence of a specific practice, technique or regular course of conduct that existed and was widely accepted by health professional peers at the time. The Court of Appeal held that the trial judge had interpreted the section correctly and that the Western Australian provision was distinct from the equivalent provisions in other states. The Court held that section 5PB does not create a defence and that a defendant seeking to contest liability on this basis must identify and specifically plead ‘a practice’ that existed at the time of the events in question. As well, there must be at least some evidence that the practice was widely accepted by peers as competent professional practice. Where section 5PB is engaged, the onus of proof then lies on the plaintiff to establish that the relevant act or omission of the health professional was not in accordance with the relevant practice. The Court agreed with the trial judge that the plaintiff had discharged her onus of proof under section 5PB as: ‘[N]one of the medical witnesses who gave evidence suggested that it was widely accepted by peers of doctors working in a paediatric burns unit as competent professional practice to fail to recognise that a patient is, or might be, suffering from sepsis and in those circumstances to fail to test for sepsis and to fail to administer antibiotics.’ 256 In Hope v Hunter and New England Area Health Service, 257 the New South Wales District Court said the term ‘ irrational ’ did not mean ‘ without reason ’. Instead, it refers to ‘ reasons that are illogical, unreasonable or based on irrelevant considerations ’. 258 However, the courts have more recently criticised the approach taken in Hope. The New South Wales Court of Appeal found that the ‘irrationality’ exception should only rarely be available and that it is a: ‘seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is “irrational”, and even more exceptional if the opinion be widely held’. 259 On that basis, the fact that there might be mutually exclusive views or practices of care that are widely accepted by peer professional opinion as competent professional practice does not, of itself, mean there is no rational basis for the practice. Also, in Dobler v Kenneth Halverson; Dobler v Kurt Halverson (by his tutor), 260 the Court confirmed that the New South Wales provision does not define the content of the duty of care owed by the professional. Rather, it is intended to operate as a defence where the professional, if found to have failed to exercise reasonable care and skill, could avoid liability if they established that they had acted according to widely accepted peer professional opinion. This was again raised in Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq), 261 where a financial services adviser in New South Wales asserted that their advice was consistent with peer professional practice. Their evidence, being documents and fragments of evidence of the interactions that the plaintiff councils had with third parties, did not satisfy the Court that the advice was consistent with peer professional practice. Justice Rares noted that ordinarily, professional practice evidence is established by calling evidence from a professional who can speak to what competent members of the profession would do in a particular context or situation. 262

256 (2019) 55 WAR 208 [395]. 257 (2009) 10 DCLR (NSW) 63. 258 Ibid 80. 259 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 [96]. 260 (2007) 70 NSWLR 151 [167]. 261 (2012) 301 ALR 1. 262 Ibid 290.

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