Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 concerned a slip and fall in a hospital, rather than medical treatment.

It is of interest however as the primary Judge failed to refer to the Civil Liability Act in the first instance judgment. Ultimately that did not matter here, however the Court of Appeal emphasised the importance of that legislation. For example, “This Court said repeatedly since the enactment of the CLA that it is incumbent upon the legal profession to address the trial judge in terms of the issues the CLA poses for consideration” (per McColl JA at [9]);

The Court also noted that the Civil Liability Act 2002 (NSW) does not determine the circumstances in which a duty of care is owed. Identifying the duty of care the defendant owed the plaintiff is, in most cases, the beginning of the negligence inquiry (per McColl JA at [10];

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