07 Mar 2019

Section 5O CLA And Competent Professional Practice Following Gould

Richard Cheney SC

“One matter of longstanding concern, particularly in cases involving medical negligence, has been the preparedness of some judges and juries to find negligence in defiance of the balance of professional opinion, by favouring minority opinions and even ‘junk science’.”

The Hon JJ Spigelman AC, Chief Justice of NSW, Spencer Mason Trust Lecture, Auckland 27 May 2003


1. Section 5O of the Civil Liability Act 2002 (NSW) (the Act) may be seen as the legislature’s attempt to address the “longstanding concern” identified by Spigelman CJ in his Auckland lecture delivered 16 years ago.

2. The section provides:

5O Standard of care for professionals2

(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

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