The respondent suffered further injury as a consequence of having developed Acute Respiratory Distress Syndrome (ARDS). The ARDS in turn caused the respondent to suffer cardiac arrest, multi-organ failure and other injuries.

Whilst the appeal challenged a number of factual findings made in the District Court decision, it also challenged the trial judge’s construction of s.5PB of the Civil Liability Act. In addressing this issue, the Court of Appeal set out their views on the proper construction of the section and has held:

  • Section 5PB does not create a defence. Rather, once there is evidence that there is a widely accepted practice supporting the Defendant’s conduct, that practice will generally be the standard against which the conduct of the Defendant is to be judged;
  • A Defendant seeking to contest liability on the basis that they acted in accordance with a practice that was widely accepted by the health professional’s peers is required to plead the material facts concerning the applicability of s.5PB;
  • For s.5PB to operate, it is necessary to identify ‘a practice’ that existed at the time of the events in question;
  • Before the section is potentially engaged, there must be at least some evidence as to the practice widely accepted by peers as competent professional practice;
  • The language contemplates a specific practice or an established course of conduct adopted in particular circumstances. This does not require any particular formality, in the form of a code of practice or prescribed method. It does not require some “pre-existing library of practices that are dipped into from time to time”.

CHILD AND ADOLESCENT HEALTH SERVICE -v- SUNDAY JOHN MABIOR by next friend MARY KELEI [2019] WASCA 151