Section 5O of the Civil Liability Act 2002 (NSW) operates as a defence: the defendant bears the practical onus of establishing that his or her conduct was widely accepted by peer professional opinion as competent professional practice, and the plaintiff is not required to prove the negative. In medical negligence cases involving competing expert opinions, a trial judge's preference for one body of expert evidence over another, particularly where the experts gave concurrent evidence, will not be disturbed on appeal unless error is positively demonstrated. Legal causation may be established on the balance of probabilities even where scientific certainty is unattainable, and common sense reasoning from expert evidence remains appropriate.
The full text is available to signed-in members, including the 35 later cases that cite this judgment.
11 of the 35 citing cases carry a classified treatment. How each court treated it is available to signed-in members.