The peer opinion provision + irrationality

South Western Sydney Local Health District v Gould [2018] NSWCA 69 is a decision of the NSW Court of Appeal published today, dealing with the standard of care for professionals and the irrational exception under section 5O of the Civil Liability Act 2002 (NSW). The primary judgment was that of Leeming JA, with Basten and Meagher JJA agreeing.

As noted at [13] , it was uncontroversial that a penicillin-derived antibiotic (flucloxacillin) was administered to the plaintiff at Campbelltown Hospital, and a cephalosporin (namely, cephazolin), was administered at Liverpool Hospital at around 23:55 later that evening. The critical element of the trial judge’s finding at [600], therefore, was the failure to administer an additional antibiotic drug, gentamicin, that evening. That failure was found to have been a breach of duty and to have caused the infection which led to the loss of the plaintiff’s left thumb.

Basten JA noted at [1] that there was evidence that those for whom the appellant was responsible acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That being so, unless the opinion could be rejected as “irrational”, the appellant did not incur liability, pursuant to s 5O of the Civil Liability Act 2002 (NSW).

The peer opinion provision: section 5O(1)

In discussing the proper approach to application of the peer opinion provision (section 5O(1)), Leeming JA stated at [101] – [103]:

It is sufficient to conclude that the defendant had established that there was a practice which was widely accepted in Australia by peer professional opinion as competent. That practice was to administer the antibiotics which were in fact administered, and no more, unless there were significant exposure to water. Further, the evidence of Professor Gatus and Dr Haertsch supported the conclusion that the practice stated in the Therapeutic Guidelines – Antibiotic was widely held across Australia.

It is true that in many respects Dr Haertsch did not articulate the reasoning process leading to the conclusions tersely expressed in his two page letter and supplementary report. But it does not follow that those conclusions were irrational; it merely follows that it would have been open to the plaintiff to object to its tender. It was wrong for the primary judge to have rejected unobjected to opinion evidence, applying the principles governing admissibility, in the guise of applying s 5O(2).

Further, to the extent that Dr Haertsch’s opinion was based on the presence of dry, as opposed to wet, gangrene, that opinion fell away if wet gangrene were found (as the primary judge in fact found, albeit the finding is challenged on appeal). But once again, that is not because of s 5O(2) irrationality. It is because the assumption on which the opinion is based has not been made out. It is trite law that for an expert medical opinion (or any other expert opinion) to be of any value, the facts upon which it is based must be proved by admissible evidence: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at 846.

In discussing the requirement for a ‘practice’, Leeming JA went on to say at [114]:

Different views have been expressed in this Court as to whether it is necessary to identify a particular “practice” in order to engage s 5O. The distinction was captured by Simpson JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 at [335], as to whether the reference to “practice” is a reference to the practice of the relevant profession, or more narrowly to a particular specific practice or method of providing the services. The latter was favoured in McKenna v Hunter & New England Local Health District [2013] NSWCA 476; [2013] Aust Torts Rep 82-156, however, an appeal was allowed by the High Court on the anterior question of duty: Hunter & New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44. In Sparks v Hobson; Gray v Hobson, Basten JA and Simpson JA favoured the former, while Macfarlan JA favoured the latter, with Basten and Simpson JJA expressing different views as to the precedential weight to be given to this Court’s earlier decision. That divisive issue may be put entirely to one side for the purposes of this appeal. On any view, the practice of administering antibiotic prophylactic following an open fracture which was confined to flucloxacillin and cephazolin and did not extend to gentamicin – a practice which is set out in the fairly mechanical decision-tree in the Therapeutic Guidelines Antibiotic is a “practice” capable of engaging s 5O.

Leeming JA also revisited the method by which the peer opinion provision has been said to operate as a defence, at [123] -[126]:

Read in proper context, it may be seen that Dobler was a very precise statement of the operation of s 5O. Only if the preconditions of the section – namely, that the defendant was “practising a profession” and was doing so “in a manner that … was widely accepted in Australia by peer professional opinion as competent professional practice” – are established does the section apply. The defendant bears the onus of establishing those preconditions, and if they are not established, then ss 5B and 5C are to be applied. However, if the preconditions are established, then the standard of care against which the defendant’s conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational.

In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what Giles JA said at [59]: “then subject to rationality that professional practice sets the standard of care”. That is also what his Honour said at [61]: “Section 5O may end up operating so as to determine the defendant’s standard of care”.

That is what Basten JA and Simpson JA separately suggested in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29. After reviewing the background to s 5O, Basten JA concluded at [24]:

“It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case.”

To similar effect, Simpson JA said at [329]:

“[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.”

See also the discussion at [127], to the effect that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B.

The irrationality exception: section 5O(2)

Leeming JA raised issues of procedural fairness, given that section 5O(2) had not been pleaded by the patient in answer to section 5O(1) aspect of the defence: [70]. Having discussed the subsection at [84] – [95], his honour concluded at [96] – [97]:

Text, context and purpose all support the conclusion 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. To consider a body of opinion to be “irrational” is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.

The primary judge said at [407] that he preferred the evidence of Professor Raftos over that of Professor Gatus “on grounds of rationality”. That is quite different from finding that the latter’s evidence was irrational for the purpose of s 5O(2). It appears to give no weight to the force of “irrational”. To the extent it amounted merely to the preferring the views of one witness over another, it is inconsistent with s 5O(3) and (4).

Basten JA commented at [6] – [7]:

In s 5O, “irrational” is being used in the strong sense. If the conduct is judged by reference to a standard widely accepted by the person’s peers, it will often not be possible to know why particular individuals accepted it, and it does not matter. It will only be if the court can, on the evidence, be satisfied that there is no rational basis for it that it can properly be rejected.

To achieve rejection, there may be an evidential burden on the plaintiff, if only because in the area of professional expertise the court will usually be unable to dismiss what appears to be widely accepted by trained professionals without relevant evidence. That burden will not be satisfied by evidence merely justifying an alternative approach. Yet the evidence in the present case went no further than that. Accordingly it was not open to the trial judge to dismiss the evidence that the conduct of the appellant was in accordance with widely accepted peer opinion. The claim had to be dismissed. ….

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