Peer opinion & irrationality

Gould v South Western Sydney Local Health District [2017] NSWDC 67 (per Levy DCJ SC) saw the court called upon to consider a claim which arose following emergency medical and surgical treatment of severe thumb injury in an 8 year old child. Infection and gangrene developed, resulting in surgical amputation of the tip of the thumb. The plaintiff alleged a breach of duty of care arising from delayed surgical irrigation, exploration and repair of the wound and a breach of duty arising from the choice of a particular antibiotic therapy and postoperative care.

The decision is of particular interest for its consideration of three aspects of section 5O of the Civil Liability Act 2002 (NSW):

  • The meaning of the term ‘peer‘, as used in section 5O(1) when referring to peer professional opinion (at [617]):
  • The interpretation of the term ‘a person practising a profession’ in that same sub-section, as extending to a body corporate (at [614];
  • The basis for application of section 5O(2) of the Act, which provides that peer professional opinion cannot be relied on for the purposes of the section if the court considers that the opinion is irrational (at [619] ff).

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