By Louise Cantrill, Partner and Jack Robson, Law Graduate

Background

Section 5O of the Civil Liability Act 2002 (NSW) (‘CLA’) provides that, where a practitioner is conducting themselves in their profession in a way that ‘was widely accepted in Australia’ at the time, they do not incur liability in negligence.[1] What exactly constitutes ‘widely accepted’ practice has been a point of contention in New South Wales and the New South Wales Court of Appeal has been divided on the exact ambit of ‘widely accepted’ practice.[2] It has been held that ‘widely accepted practice in Australia’ does not necessarily mean in the whole of Australia, but can be a practice that exists only in parts of Australia.[3] Most importantly, for this case, the NSW Court of Appeal has established that ‘where the defendant has established the preconditions to s 5O, then there is a single standard against which the defendant is assessed’.[4]

Facts

The appellant was a morbidly obese woman who sought to surgical intervention to treat her obesity. The appellant engaged the respondent to perform a sleeve gastrectomy procedure on 22 July 2013. The Appellant developed a post-operative intra-abdominal haematoma which ultimately resolved in the coming days. On 25 July 2013, the respondent determined that bleeding had ceased and discharged the appellant accordingly. On 31 July 2013, the appellant presented to Wagga Wagga Base Hospital with an infected intra-abdominal haematoma. Treatment of this infection was complicated, and the appellant suffered a variety of further complications associated with the sleeve gastrectomy. It should be noted, however, that the appellant provided a materially incorrect history to the respondent.

Proceedings were commenced by the appellant on 6 July 2016, however, the trial was conducted on the second further amended statement of claim filed on 16 September 2021.[5] Lonergan J dismissed the proceedings with costs on 6 July 2023. A notice of appeal was filed on 5 October 2023, which was confined to Lonergan J’s findings regarding the respondent’s conduct in discharging the appellant on 25 July 2013 being widely accepted practice.

Ruling

The Court noted that there was no requirement to conduct  ‘an analysis of the relative merits of the competing approaches advocated by the expert witnesses’, and that trial judges were merely tasked with determining whether the expert evidence satisfied the s 5O criteria.[6] Accordingly, the court found that where successfully invoked, the burden lies with the plaintiff to show that the respondent’s evidence relied upon to invoke s 5O has erred in establishing what is ‘widely accepted conduct’.[7]

Implications

On its face, this decision appears to merely ratify the departure from the conventional and long-accepted approach of considering s 5O of the CLA as a ‘defence’.[8] Instead, the correct interpretation of s 5O is to replace the general duty of care found in s 5B of the CLA, and operate as a total response to the claim.[9]

Polsen v Harrison extends upon this, by identifying that it is not the duty of the Court to preference evidence in assessing whether s 5O applies.[10] The Court is only required to assess whether the evidence produced by respondent invokes s 5O.[11] In assessing whether the expert evidence adduced asserts s 5O sufficiently, consideration may be given to the ‘seniority, the practices, knowledge and experience’ in the profession.[12] No preference needs to be given between the expert evidence – in fact, the Court has previously ruled that disagreement between expert witnesses can give cadence to the idea that the ‘practice’ which is the subject of proceedings is widely accepted but not universally so.[13]

This development improves the prospects for professionals seeking to assert s 5O of the CLA. Where s5O has been successfully invoked, the Claimant will need to adduce evidence rebutting the expert on one of the following fronts:

1. There was a material factual error in the matter presented to the expert, and that the discrepancy in the way in which the facts were presented would make professionals in the circumstances act in a different manner; or
2. That the seniority, practices, knowledge, and experience of the expert differs significantly from that of the impugned practitioner and, as a result, they are not sufficiently ‘similar’ or ‘proximal’ to the impugned practitioner to provide expert opinion about what would be widely accepted practice in the concerned practice area; or
3. That the expert erred in their judgment of what would be considered competent professional practice in the circumstances and provide comprehensive reasoning behind the expert’s deviation from widely accepted practice.
4. That the evidence is irrational.

Nevertheless, the ruling advantages professionals (and their insurers) greatly, by providing professionals with greater insulation from tortious liability and creating a more onerous process for Plaintiffs to rebut section 5O.

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[1] Civil Liability Act 2002 (NSW) s 5O(1) (‘CLA’).

[2] South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 (CA), [114].

[3] Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343, [553]-[555].

[4] South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 (CA), [124].

[5] Polsen v Harrison [2024] NSWCA 224, [4].

[6] Polsen v Harrison [2024] NSWCA 224, [59].

[7] Ibid [60].

[8] Dobler v Halverson (2007) 70 NSWLR 151, [60].

[9] South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513.

[10] Polsen v Harrison [2024] NSWCA 224, [62].

[11] Ibid [60].

[12] Ibid.

[13] CLA s 5O(4).