The Plaintiff alleged that the Defendant breached his duty of care in failing to diagnose Mia-Angel earlier, and that an earlier diagnosis would have led to earlier treatment. If the Plaintiff had received earlier treatment, she would have avoided significant brain damage which led to an intellectual disability.
The Defendant accepted that he owed Mia Angel a duty of care but denied that he breached that duty. In doing so, he principally relied on the defence in section 5O of the Civil Liability Act 2002 (NSW) (the CLA).
In considering the Defendant’s liability, the Trial Judge noted at [127]:
“…Once a defence under section 5O of the CLA is pleaded and placed in issue… the Court must determine a defendant’s liability in negligence by first addressing that provision…. if the matters in section 5O are made out, that supplants the analysis which might otherwise be required by section 5B of the CLA. In other words, section 5O supplants the common law, and the general principles of negligence set out in other provisions of the CLA that would, but for the application of section 5O, apply to the determination of the defendants’ liability in negligence. A defendant who seeks to rely on the provisions of section 5O bears the onus of establishing the elements of that defence”.
The Trial Judge accepted the expert evidence that the Defendant acted in a manner that was widely accepted as competent professional practice in 2013, that Mia-Angel’s earlier presentations had a simple explanation such that there was no reason to refer her for a blood test; and there was no reason to refer Mia-Angel to a specialist given the symptoms that she displayed in earlier presentations. The expert evidence included a joint report by three expert witnesses which expressed a consensus that the Defendant’s treatment of Mia-Angel was in accordance with accepted practice, and otherwise entirely appropriate.
The Trial Judge found there was no basis on which to conclude that any of the expert opinions were irrational and, in the circumstances, the Defendant’s defence under section 5O was made out.
To read the full decision in Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges v Dr Zaffar Hussain; Chantelle Sheree Bridges v Dr Zaffar Hussain [2023] NSWSC 18, click here.
