In medical negligence cases involving treatment decisions, a trial judge must conduct his or her own assessment of whether the standard of care was breached under ss 42-44 of the Civil Law (Wrongs) Act 2002 (ACT), and cannot treat expert evidence of accepted competent professional practice as determinative of that question. The rarity of a risk does not correlate to the likely seriousness of harm being low; where the burden of taking a precaution is de minimis and the likely seriousness of harm is significant, the failure to take that precaution may constitute a breach even where the risk is rare. The scope of liability for a failed spinal anaesthetic procedure may include radiculopathy where the medical evidence supports that diagnosis, notwithstanding the absence of immediate paraesthesia at the time of the procedure.
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