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An Overview of South Western Sydney Local Health District v Gould [2018] NSWCA 69 and What it Means for Your Medical Negligence Claim

Medical negligence claims are becoming more prominent due to a number of reported factors which include:

  • Increasing pressure on public hospitals and doctors due to rising patient numbers.
  • Education of the public of their right to make a claim for injuries arising from medical negligence.
  • Increased advertising from compensation law firms representing claimants on a "no win no fee" basis - giving access to representation to those who would not otherwise be able to afford it.

While most claims usually settle before a Court judgment is handed down, those that don't settle provide the legal industry with important insight on Court reasoning concerning the relevant legislation so that we can draw from these findings and rely on them when representing our current and future clients.

A recent medical negligence case that was handed down from the NSW Court of Appeal was South Western Sydney Local Health District v Gould [2018] NSWCA 69.


In Gould, The Court of Appeal overturned the decision of the Court below due to its reasoning in relation to section 5O of the Civil Liability Act 2002 (NSW).

Section 5O is the legislation which sets out the test to be applied to determine whether a professional (in the case of Gould, two hospitals) has been negligent. It is titled "Standard of Care for Professionals". The standard of care test is determined by the professional's peers ("Peer Professional Opinion").

Section 5O(1) states: "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.

Section 5O(2) states: "However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational."

The Court below had originally found for the claimant as it made a determination that the hospital's peer opinion was "irrational" on the basis that the opinion had not been properly reasoned. If found to be "irrational", the opinion cannot be relied upon and the Court could therefore find favour of the claimant and subsequently awarded the claimant compensation.

On appeal by the hospitals, the Court of Appeal considered section 5O(2) and whether the section was correctly applied to the hospitals' peer opinions. The Court of Appeal found that the Court below had not correctly applied the law. Irrationality had not been claimed by the Plaintiff and it was not discussed or argued during the Hearing. The evidence of the hospitals' peer opinion had not, at anytime, been objected to by the Plaintiff on the basis of irrationality.

The Court of Appeal ultimately overturned the decision as they found that the hospitals' peer opinion was not "irrational" and therefore the opinion as valid and a finding of negligence could not have been made out.

What does this decision mean for my claim?

Gould has provided a detailed analysis of the correct use and application of section 5O which concerns peer professional opinion and irrationality of a peer professional opinion.

It is important that your lawyer analyses and understands the Gould decision and whether your claim can be a vessel in which an irrationality argument can be put forward and whether a defendant's peer professional opinion evidence should be objected to on that basis.

Ardent Lawyers are experienced compensation lawyers and can assist you to determine whether you might have a medical negligence claim.

Ardent Lawyers are personal injury / compensation law experts. Contact our law firm on (02) 4444 6808 or for an obligation free discussion about your circumstances and to see whether we can act on your behalf on a "no win no fee" basis. Conditions apply.