Hospital fails the test

In Gould v South Western Sydney Local Health District [2017] NSWDC 67, the District Court of NSW considered the duty of care owed by Liverpool Hospital to an 8 year old boy who presented on 22 August 2011 with a severe crush injury to his left thumb and an injury to his middle finger. At issue was the emergency medical and surgical treatment of the thumb injury which subsequently developed an infection and gangrene, ultimately resulting in a partial amputation on 15 September 2011.

It was argued that the Hospital breached its duty of care on three main bases:

  1. The delay in in surgical irrigation (wash out), exploration and repair of the wound
  2. The antibiotic therapy administered and
  3. Post-operative care.

Surgical Delay

After presentation at Campbelltown Hospital on 22 August 2011, the plaintiff was transferred by ambulance to Liverpool Hospital (Hospital) where surgical wash out, exploration and repair was scheduled for the same evening. Two other unrelated trauma patients also presented to the Hospital that evening resulting in the plaintiff’s surgery being delayed to the following morning. During the intervening period the plaintiff’s wound was not washed out with local anaesthetic or with an appropriate antiseptic solution such as iodine. His Honour Judge Levy SC held the Hospital breached its duty of care in that the delay involved was unreasonable. Interestingly, the Hospital did not seek to establish a defence pursuant to Part 5 of the Civil Liability Act 2002 (NSW) (CLA) concerning limited or unavailable resources at a public hospital. This resulted in his Honour accepting the plaintiff’s expert evidence that an operating theatre should have been available and the plaintiff’s operation should have occurred within 6 hours of presentation at the Hospital. A finding of breach of duty of care was made.

Antibiotic Therapy

Dispute also arose as to the appropriate administration of and risk involved in the use of several types of antibiotics. This topic was subject to much conjecture between the experts called by the plaintiff and the Hospital. Notably, both the plaintiff and the Hospital served expert evidence from two experts with only one expert from each side giving oral evidence at the final hearing and participating in the expert conclave. This appeared to trouble his Honour and made the task of assessing the evidence more onerous that it would otherwise have been. Ultimately, his Honour preferred the plaintiff’s evidence and found that the antibiotic therapy had been inappropriate and contributed to the subsequent infection resulting in partial amputation. A further finding of breach of duty of care was made.

Post-Operative Care

The final substantive liability issue related to the post-operative care provided to the plaintiff at the Hospital’s Hand Clinic and the assessment of the onset of infection (dry/wet gangrene) or of tissue death as a result of the crush injury sustained to the thumb independent of any infection. Reference was made to a series of graphic photographs included in his Honour’s reasons and a detailed analysis of the medical records – which included an important incorrectly dated entry. It was held that a consultation that took place on 6 September 2011 amounted to a breach of duty of care as it was evident at that stage that infection had taken hold and by the next attendance at the Clinic on 9 September 2011 it was apparent that amputation of the thumb was inevitable.

The Defence Case

Although it did not appear in the Hospital notes, the evidence of plaintiff’s grandmother and father recorded the plaintiff’s attendance at the Hospital several days after the initial operation reporting a further injury to the plaintiff’s thumb when he fell off a swing. The Hospital pleaded a novus actus intervenus defence seeking to establish a break in the chain of causation. This was dismissed with his Honour finding causation had clearly been established.

His Honour undertook a detailed assessment of the expert evidence and considered at length the statutory defence pleaded by the Hospital pursuant to section 5O of the CLA (NSW) – the defence of peer professional opinion. In particular, his Honour considered the term ‘peer’ and interpretation of the term ‘person practising a profession’ and held that definition is to extend to a body corporate such as the Hospital by virtue of the persons (doctors and nurses) said to provide treatment to the plaintiff. However, the ultimate conclusion formed by his Honour was that the defence could not succeed as the Hospital’s expert evidence was considered irrational in that the underlying assumptions and factual basis of the opinions held by the Hospital’s experts had not been established, the reasoning process undertaken by the experts had not been expressed in the reports or the evidence was oracle in nature. It was held that this undermined and caused doubt as the reliability of their opinions more generally. His Honour preferred the evidence of the plaintiff and found the evidence did not afford the hospital exculpatory shelter from liability.


In summary, the relevant considerations of section 5B CLA were established with the risk of harm not being insignificant and a corresponding duty of care with subsequent breach being found.

A total damages award of $240,930.10 was awarded to the plaintiff.

This lengthy judgment serves as a reminder of the importance in adequately briefing experts for the purposes of providing expert opinion evidence and to critically analyse expert reports including factual assumptions. It is also necessary to ensure that expert reports provide sufficient detail of the reasoning process so as to satisfy the admissibility test in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

Gould v South Western Sydney Local Health District [2017] NSWDC 67


Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

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