1. Section 5O of the Civil Liability Act 2002 (NSW) (the Act) provides:
5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
2. This paper attempts four tasks, viz to:
- briefly trace the events that led to the enactment of s.5O, insofar as that history might bear upon its proper construction;
- examine its construction by recent appellate authority;
- consider how the section might be called in aid by property valuers whose professional work is impugned in legal proceedings; and
- provide some suggestions for litigators about the proper way to plead the defence and the form that evidence directed to making out the section should take.