South Western Sydney Local Health District v Gould

(2018) 97 NSWLR 513; [2018] NSWCA 69

NSW Court of Appeal

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Catchwords

1. Negligence
2. › Medical negligence
3. › Standard of care for professionals
4. › Peer professional opinion as competent professional practice
5. › Whether opinion 'irrational' within meaning of s 5O(2)
6. › Civil Liability Act 2002 (NSW), s 5O
1. Negligence
2. › Medical negligence
3. › Standard of care for professionals
4. › Relationship between s 5B and s 5O
5. › Whether s 5O sets the standard of care when preconditions established
6. › Civil Liability Act 2002 (NSW), ss 5B, 5O
1. Practice and Procedure
2. › Procedural fairness
3. › Rejection of expert evidence on basis not raised in pleadings or at trial
4. › Whether procedurally unfair to find expert evidence irrational without notice to parties
1. Statutes
2. › Construction
3. › Meaning of 'irrational' in s 5O(2) of Civil Liability Act 2002 (NSW)
4. › Whether dictionaries appropriate aid to construction
5. › Text, context and purpose

Quick Take

The test of 'irrational' in s 5O(2) of the Civil Liability Act 2002 (NSW) requires a seriously pejorative and exceptional finding that cannot be satisfied merely by preferring one body of peer professional opinion over another; where s 5O(1) preconditions are established, s 5O sets the standard of care and there is no occasion for a separate breach analysis under s 5B.