Mabior bhnf Kelei v Child and Adolescent Health Service  WADC 12 saw the court consider liability issues only in a claim for for injuries alleged to have been caused by the negligence of the team of doctors engaged by the defendant to care for and treat the plaintiff while she was a patient in the burns ward at Princess Margaret Hospital.
In particular the plaintiff alleged a delay in diagnosis and treatment of sepsis. The defendant accepted that the plaintiff suffered an inflammatory response to her burns but denied that the plaintiff ever had sepsis.
On the breach of duty issue (including in respect of section 5PB of the Civil Liability Act 2002 (WA) the court found in favour of the plaintiff:
799 I am satisfied on the evidence before me that a practice in treating paediatric burns patients, that was at the relevant time widely accepted by peers of doctors working in a paediatric burns ward as competent professional practice, is as contended for by the defendant. However, this is not really to the point. The question that must be considered under s 5PB(1) in the present case is whether the alleged negligent conduct (that is, the failure to recognise that the plaintiff might be suffering from sepsis, the failure to test for sepsis and the failure to commence her on antibiotics) was conduct that was in accordance with a practice that was widely accepted by peers of the doctors responsible for the care and treatment of the plaintiff in the burns ward as competent professional practice.
800 In my opinion the answer to the question posed is self-evidently ‘no’. Unsurprisingly, none 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.
801 In summary, in my opinion, the plaintiff has discharged her burden of proving that the alleged negligent conduct of the doctors who were responsible for her care and treatment while she was a patient in PMH’s burns ward was not conduct that was in accordance with a practice that was, in December 2005, widely accepted by their peers as competent professional practice.
802 The question which therefore remains is whether the conduct of the burns ward doctors in failing to recognise by 10 December 2005 or at any time thereafter that the plaintiff was, or might be, suffering from sepsis and from that time in failing to test for sepsis and commence administering antibiotics to the plaintiff, fell below the standard of care required of them and thereby constituted a breach by the defendant of the duty of care that it owed to the plaintiff.
And at :
….I am satisfied that the failure by the doctors engaged by the defendant who were responsible for the plaintiff’s care and treatment in the burns ward to recognise by around 2.00 am on 11 December 2005 that she was suffering from, or might be suffering from, sepsis, to test for signs of sepsis by taking a blood sample for culturing, and to commence antibiotic treatment as quickly as was reasonably possible, that is, by around 3.00 am, without waiting for the results of the blood culture, amounted to a breach by the defendant of the duty of care that it owed to the plaintiff.
Normative causation was not in issue (at ). On the issue of factual causation the court found in favour of the plaintiff at :
844 It is clear from the evidence to which I have just referred that none of the expert witnesses were able to say with certainty that if the plaintiff had been commenced on antibiotics earlier than she was she would not, as a result of her sepsis, have proceeded to develop ARDS and the injuries. However, it is, in my view, equally clear from the evidence to which I have just referred that given that the plaintiff’s condition began to markedly deteriorate on the morning of 11 December 2005, it is more probable than not that if the plaintiff had been commenced on antibiotics by around 3.00 am on 11 December 2005 she would not have proceeded, as a result of her sepsis, to develop ARDS to the extent that she did and consequently would also not have suffered the injuries. Accordingly, I am satisfied on the balance of probabilities that but for the negligent conduct of the team of doctors who were responsible for the care and treatment of the plaintiff in the burns ward, the plaintiff would not have developed ARDS to the extent that she did and consequently would not have suffered the injuries: CLA, s 5C(1). More specifically, I am satisfied that if the doctors responsible for the care and treatment of the plaintiff in the burns ward had commenced to administer antibiotics to the plaintiff by around 3.00 am on 11 December 2005, the cascading effects of her sepsis would have been avoided or reduced with the result that she would not have developed ARDS to the extent that she did and consequently would not have suffered the injuries.