In South Western Sydney Local Health District v Gould [2018] NSWCA 69, the NSW Court of Appeal overturned the District Court decision in which the appellant had been found liable in negligence for the treatment of an 8 year old boy’s open fracture to his left thumb – specifically, for failing to administer an additional antibiotic drug (gentamicin). Ultimately, the boy developed osteomyelitis and gangrene in his thumb, which consequently required amputation.

At trial, there had been evidence that those for whom the appellant was responsible acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. However, the primary judge had dismissed that evidence as being “irrational”.

The Court of Appeal decision is of interest for its consideration of the competent professional practice defence (section 5O Civil Liability Act 2002 (NSW)), particularly:

  • on the test of irrationality in s5O(2), at [3] to [7] and [84] to [97];
  • whether it is necessary to identify a particular ‘practice’ in order to engage s5O, at [114]; and
  • the effect of s5O on the standard of care against which breach is to be assessed, at [123] to [129].

To read the decision in South Western Sydney Local Health District v Gould [2018] NSWCA 69, click here.