Section 22 – The standard for assessing professional negligence

The standard of care required of a professional is identified in s 22 of the Civil Liability Act 2002 (Tas) (CLA). Section 22(1) says that a person practising a profession (a professional) does not breach a duty 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.

The terms of s 22 are largely similar to provisions in each of the Civil Liability Act 2002 (NSW) s 5O (NSW Act), the Civil Liability Act 2003 (Qld) s 22, the Civil Liability Act 1936 (SA) s 41, and the Wrongs Act 1958 (Vic) s 79.

If the above standard is met, then the defendant professional’s conduct is not negligent.

To succeed, a plaintiff needs to establish that the conduct of the defendant failed to comply with the relevant standard of care.

As formulated by Brereton JA speaking for the majority in Dean v Pope:

• This requires identifying the manner in which the professional acted;
• Asking whether it was, at the time, widely accepted as competent professional practice;
• The “manner” refers to what the doctor did;
• If what the doctor did accorded with what a significant body of peer professionals would have done, then the requirement of the section is satisfied and the doctor was not negligent.

Historically, there has been question around whether s 22 set out the standard or provided a defence once a plaintiff met the general negligence thresholds in s 11 of the CLA. In this regard, in South Western Sydney Local Health District v Gould, the NSW Court of Appeal decided that:

• The effect of s 5O (and its equivalents) is to replace the standard of care against which breach is assessed.
• There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out.

This has recently been affirmed in the case of Polsen v Harrison.

In that case, the Plaintiff/Appellant, Katrina Polsen, underwent a laparoscopic sleeve gastrectomy performed by the Defendant/Respondent, Dr Richard Harrison. Ms Polsen subsequently developed an intra-abdominal haematoma and, three days post operation satisfied that the bleeding had ceased, Dr Harrison discharged Ms Polsen from hospital. The Plaintiff was later readmitted to hospital with an infected intra-abdominal haematoma. Ms Polsen then had a complex post-operative course, involving many admissions to hospital and multiple surgical procedures.

Ms Polsen commenced proceedings against Dr Harrison seeking damages for negligence and breach of contract. The trial judge dismissed the proceedings.

Ms Polsen then filed a notice of appeal confined to the trial judge’s finding that Dr Harrison’s conduct in discharging her from hospital was widely accepted by peer professional opinion as competent professional practice, for the purposes of s 5O of the NSW Act.

The Court dismissed the appeal.

At [54], Basten AJA said:

• As explained in South Western Sydney Local Health District v Gould, characterising s 5O as providing a “defence”, with the implication that a legal burden of proof is placed on the defendant, misunderstands the operation of the statute.
• Rather, the section provides the standard against which a claim of breach of duty of care must be assessed, and in that respect qualifies the general principles stated in s 5B for establishing a breach of a duty of care.

Clearly the provision carries an onus for a plaintiff to discharge. It is not a defence for the defendant to establish.

Given the similarity in the terms of s 22 of the CLA and s 5O of the NSW Act, what can be taken from this is that in Tasmania, once invoked, the standard set by s 22 provides the applicable standard and any reference or analysis under ss 11 and 12 is not required and can in fact lead to error.