Hospital passes the test on second attempt

The Court of Appeal has considered the proper application of Section 5O of the Civil Liability Act 2002 (NSW) (CLA) in South Western Sydney Local Health District v Gould [2018] NSWCA 69. Our review of the primary judgment can be found here.

The trial was largely focused on the treatment of the plaintiff upon his presentation at Campbelltown Hospital with an open fracture to his thumb. Large parts of the expert evidence addressed the antibiotic regime administered to the plaintiff in Campbelltown Hospital and upon transfer to Liverpool Hospital and post-operative treatment which ultimately resulted in the amputation of part of the plaintiff’s thumb. The Court of Appeal was critical of the trial judge’s analysis of section 5O and his decision to reject the defendant’s expert medical evidence as irrational which led to a finding of negligence at first instance against the defendant (appellant).

Assessing the evidence

In assessing the expert evidence the Court of Appeal held that the trial judge’s application of section 5O could not be sustained as it was procedurally unfair and that the wrong legal test had been applied. The Court of Appeal noted:

  1. There was significant common ground between the plaintiff’s and defendant’s expert witnesses in respect of antibiotic treatment.
  2. The application of section 5O was not a significant issue at the trial, the plaintiff did not address the section in closing submissions.
  3. An expert witness for the defendant was not required to attend for cross examination and did not participate in an expert conclave, with the expert reports of that doctor admitted into evidence without objection. That doctor’s evidence was rejected by the trial judge as irrational on the basis that his expert opinion had not been properly reasoned.
  4. The defendant’s second medical expert opinion had been rejected on the basis that the adherence to Therapeutic Guidelines – Antibiotic rather than making an assessment on a case by case basis for each patient was irrational, notwithstanding that the expert report was also admitted into evidence without objection.
  5. The interaction between sections 5B and 5O of the CLA – whereby section 5O operates to define the standard of care in undertaking an assessment of a professional’s negligence.
  6. The trial judge conflated the ordinary process of resolving conflict between expert opinions with a consideration of section 5O(2), namely whether opinions by the defendant’s medical experts were irrational.

Significantly, the plaintiff did not put to each of the defendant’s expert witnesses that their opinions were irrational and it was clear that the argument did not form part of the plaintiff’s case. Further, the trial judge had not addressed section 5O(2) with the parties or heard submissions on its application. It was simply not an issue at trial. The defendant was given no warning that its evidence may be rejected on the basis of irrationality.

The proper application of section 5O

The Court of Appeal was critical of the trial judge’s interpretation of section 5O, his application of it and his use of the dictionary to define the meaning of words rather than legislative text, context and purpose. The Court noted that the test imposed by section 5O(2) is quite distinct from the considerations of admissibility and the application of section 5O cannot be considered until relevant peer professional opinion evidence has been admitted into evidence. Section 5O does not provide an avenue for evidence, which has been tendered without objection, to be rejected on the basis that the reasoning process of an expert opinion has not been fully disclosed (as required by section 79 of the Evidence Act – exception to the opinion rule).

An analysis of the Ipp Report was undertaken which revealed the legislative intention of section 5O. The wording of the section contemplated that minds may legitimately differ on issues surrounding professional conduct. Further, it was anticipated that the application of section 5O(2) would be narrow.

Of particular note, at [99] Justice Leeming stated:

If the issue for the Court was merely to determine which of those two views was preferable, then, as the respondent submitted, it would be one for the acceptance by the primary judge of the evidence which seemed most persuasive and cogent. But that is not the issue. I do not consider that either opinion can be said to be “irrational”. The reasoning of the primary judge at [643], which is reproduced above, regarded “the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship”, which did not consider “the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed”, as irrational. When the true force of “irrational” in s 5O(2) is borne in mind, that reasoning cannot stand.

In finding in favour of the defendant, the Court accepted that the expert medical evidence adduced by the defendant at trial satisfied section 5O. There was also other evidence available to the trial judge (from the treating surgeon) to support the conclusion that the antibiotic treatment of the plaintiff was in accordance with widely accepted medical practice.


This is an important decision on the proper construction and application of section 5O of the CLA. It is a positive development for medical practitioners and professionals more generally. A significant consideration is if (at the material time) the professional conduct was widely accepted by a professional’s peers. The available application of section 5O(2), to dismiss evidence of widely accepted professional conduct on the basis of irrationality, is limited.


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