Part 1A - Negligence

Mr Dean was a patient of a former neurosurgeon, Dr Pope. Mr Dean had presented to Mr Pope with abnormal sensory symptoms in his right lower limb. Dr Pope diagnosed a lumbar cause and performed lumbar surgery on Mr Dean. The surgery did not resolve Mr Dean’s symptoms and Mr Dean began experiencing additional symptoms. Subsequently, a second neurosurgeon diagnosed Mr Dean with cord compression at a thoracic level and performed surgery which rectified the additional symptoms, but not the abnormal sensory symptoms. At first instance, the District Court found that Mr Dean had not established liability or causation. Mr Dean appealed that decision. The Court of Appeal dismissed the appeal.

On s 5B: The appellant did not satisfy the pre-requisites in s 5B(1) for a finding that Dr Pope’s decision to operate on the appellant’s lumbar spine was negligent. Although operating carried not insignificant foreseeable risks, the reasons given by the respondent for operating indicated that the respondent had acted reasonably in proceeding to lumbar surgery, which he carried out with due skill and care: [97].

Nor did the appellant satisfy s 5B(1)’s pre- requisites for a finding that Dr Pope’s alleged failure to investigate the possibility of a thoracic lesion was negligent. Because the appellant did not non-disclose symptoms suggesting a thoracic cause, Dr Pope acted reasonably when he dismissed a thoracic cause as insignificant: [99].

On s 5O: Section 5O poses the question of whether “the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer

professional opinion as competent professional practice.” “Professional practice” refers to the manner in which professionals practise their profession, not to a particular protocol, procedure or process. “Competent professional practice” refers to what a significant body of competent professionals would have done. These assessments are to be made as at the time the conduct in question occurred: [233]-[236], [266]- [267], [314]. Section 5O thus provides the applicable standard of care and should be considered prior to breach and causation: [260], [273]-[274].

In dissent, Macfarlan JA stated that s 5O cannot be satisfied by a defendant simply calling an expert to say that, in the unique circumstances with which the defendant was confronted, the expert would have acted in a similar fashion to the defendant and that other practitioners, or a substantial number of them, would have acted similarly. This approach would improperly enliven the provision whenever an expert gave an opinion that the defendant’s actions would or would not have been accepted, regardless of whether there was, in fact, wide acceptance at the time at which the activity occurred: [256].

NSWCCA decisions referred to in discussion:

Dobler v Halverson (2007) 70 NSWLR 151;

[2007] NSWCA 335

Gett v Tabet (2009) 254 ALR 504; [2009]

NSWCA 76

Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018]

NSWCA 69

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115

High Court decisions referred to in discussion:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19

Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at

410; [1981] HCA 4

Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48

Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44

McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Mr Paltos was a solicitor in partnership with Peter Milevski in a practice styled “Paltos Milevski Family Lawyers”. In 2015, Mr Paltos suffered two strokes and was hospitalised and suffered disablement. The Court ordered that the Partnership be dissolved following this event. Mr Paltos retained Bartier Perry Pty Ltd to provide advice in relation to the Partnership.

Mr Paltos brought proceedings against Bartier Perry for professional negligence, alleging that the defendant had not applied due care and responsibility in advising

Mr Paltos as to his rights under the partnership agreement and otherwise, following his stroke.

On s 5O: The burden of proof for successfully raising the defence of s 50 is on the party relying upon it. There was no evidence in the proceedings in relation to whether a peer professional would advise on the right to claim for total and permanent disability, if there were such a right, or whether such advice was required under the terms of the Retainer. As there was no evidence, the Judge inferred that any such evidence would not have assisted that party’s case: [34], [404].

Mr Johnson brought proceedings against Mr Firth and Firths The Compensation Lawyers (together, ‘the Respondents’) alleging negligence in relation to the settlement of his motor vehicle accident insurance claim. His claim, that the Respondents settled his claim prematurely and at an undervalue, was rejected in the District Court on the basis that the Respondents had acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Mr Johnson appealed and the Court of appeal dismissed the appeal.

On s 5O: It was not conclusive in favour of the Respondents that Mr Johnson failed to plead or even suggest that the evidence relied on to establish peer professional opinion was irrational. The defence under s 5O is not sustained merely by having a professional witness endorse a defendant’s conduct as “widely accepted by peer professional opinion as competent professional practice”. Irrationality of a professional practice, to which s 5O(2) is directed, should not be conflated with irrationality of the evidence adduced for the purposes of s 5O(1). An expert opinion may be rejected on many grounds other than irrationality, including that the assumptions underlying it are not established: [53]-[55].

Ms Makaroff suffered a dislocated right shoulder and a bite wound on her right. She was taken to a hospital in the respondent local health district, underwent plastic surgery on the bite wound and was discharged into the care of her general practitioner. Ms Makaroff did not have orthopaedic review or radiological examination of her shoulder for a number of months. By the tie she did it was too late for her shoulder to be repaired surgically. Ms Makaroff alleged negligence on the part of the hospital in failing to inform her of the need for further investigation of her shoulder injury. The primary judge rejected that calim on the basis that the Respondents had acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice. Ms Makaroff contended that the defence did not apply by reason of s 5P. Her Honour would also have rejected Ms Makaroff’s claim for failure to establish causation. The Court of Appeal held, by majority, that breach and causation had been established.

On s 5P: (per Brereton JA) There is much to be said for the view that s 5P was intended to preserve the distinction between the role of medical practitioners in providing diagnosis and treatment and in providing advice or information, as recognised by the High Court in Rogers v Whitaker: [133].

(Per Simpson AJA) The distinction in Rogers v Whitaker lies in the different contributions to be made by the patient with respect to diagnosis and treatment on the one hand and advice and information on the other. In the latter case the decision to accept or decline a proposed treatment lies with the patient, who therefore requires all relevant information. That requirement does not depend on medical standards or practices: [240].

Application of s 5P depends on the existence of a risk of death or injury associated with the professional service in question. Here, the relevant professional service was the provision of advice with respect to Ms Makaroff’s shoulder injury, and there was no evidence that further injury (as distinct from deterioration of the injury already suffered) might be suffered in the absence of appropriate advice or intervention. On a literal interpretation, s 5P would not appear to apply to the present circumstances as the warning that Ms Makaroff contended ought to have been given was not in respect of a risk of death or injury associated with the provision of the relevant professional services: [232]-[236].