Standard of care: Operation of s 59(1) Wrongs Act 1958 (Vic)

Boxell & Ors v Peninsula Health [2019] VSC 830 (17 December 2019) saw a claim alleging that the defendant was negligent because it failed to consider and exclude aortic dissection as a cause of Mr Boxell’s presentation to hospital, and failed to perform a CT aortogram.

Of interest in the decision was the court’s focus on the question of was Peninsula Health not negligent because it acted in a manner widely accepted by a significant number of respected practitioners in the field of emergency medicine as competent professional practice in the circumstances.

Revisiting the presently unresolved issue in New South Wales, Peninsula Health relied on the judgment of Basten JA in Sparks v Hobson and submitted ‘competent professional practice’ contemplates not just a specific method of performing an activity but is broad enough to capture the response of a professional to a situation which calls for their expertise (see [26]).

Contrary to the present state of authority in New South Wales under section 5O, the court said at [34]:

The text of s 59(1) does not speak of ‘a practice’. A standard of competent professional practice in the circumstances is not limited to a specific practice, and may cover professional practice in a more general sense. However, it remains necessary for a defendant to establish a standard of care which was widely accepted in Australia at the time as competent professional practice responding to the particular circumstances in which the service was provided. In Grinham, J Forrest J referred to the problems of proof inherent in the application of s 59(1). Where a defendant has responded to circumstances which involve a variety of factual considerations, or call for a series of subjective judgments, it may be difficult to prove a standard of response which was widely accepted at the time as competent professional practice by a significant number of respected professionals across Australia who do not themselves give evidence.

In relation to the ‘unreasonable exception’, the court said at [39]:

To rely on s 59(2) a plaintiff must establish that the peer professional opinion which determines a standard of competent professional practice cannot withstand logical analysis. It will be a rare case in which it is demonstrated that an opinion held by a significant number of respected practitioners in the field is unreasonable, in the sense that those practitioners have not directed their minds to the comparative risks and benefits of a particular response to the circumstances under consideration, or because the opinion has no logical basis.

Having regard to the expert evidence, Peninsula Health did not satisfy the preconditions of s 59(1), and cannot rely on the provision to establish that it was not negligent in providing the service to Mr Boxell. Therefore ss 49, 49 and 58 of the Act were to be applied, and it was necessary to consider the conduct of Peninsula Health against the standard of reasonable care (at [299]).

In that regard the court held that it was not reasonable emergency practice to discharge Mr Boxell without diagnosis before performing a CTA to confirm or exclude AD (at [313]).

The defendant was held to have been negligent, with damages to be agreed or assessed at a later date.