On 11 February 2001 Kurt Halverson (the plaintiff) suffered cardiac arrest and hypoxic brain damage, leaving him with catastrophic injuries. On 2 occasions prior to February 2001 the plaintiff suffered syncopal events. Syncope is a brief loss of consciousness. The plaintiff suffered a further syncopal event on 4 February 2001. It was ascertained after the plaintiff's cardiac arrest that the cause of the syncopal events was arrhythmia of his heart.
Dr Dobler treated the plaintiff for approximately 2 weeks prior to 11 February 2001. On 1 February 2001, when consulted concerning a migraine, Dr Dobler identified a heart murmur.
The plaintiff and his father, mother and sister (the plaintiffs) brought proceedings against Dr Dobler alleging that Dr Dobler should have considered a possible cardiac problem, carried out an ECG and referred the plaintiff to a cardiologist prior to 11 February 2001. The plaintiffs alleged that in failing to do so Dr Dobler breached his duty of care and that if those steps had been taken the plaintiff's arrhythmia would probably have been identified and appropriate measures taken which would have avoided the cardiac arrest and its consequences.
The Decision at Trial
The trial judge found that Dr Dobler breached his duty to the plaintiff and failed to establish the defence provided under section 5O of the Civil Liability Act 2002 (NSW). Section 5O provides that a professional will not be negligent for providing a professional service if the professional acted in a manner that was widely accepted in Australia by their peers as being competent professional practice.
The trial judge also found that, on the balance of probabilities, an ECG administered after 4 February 2001 would have revealed the plaintiff's arrhythmia, that this condition would have been effectively managed and a cardiac arrest and consequent brain damage would have been avoided. On that basis, the plaintiffs had established causation and were entitled to damages that had been agreed.
Dr Dobler appealed.
The Decision on Appeal
Dr Dobler submitted on appeal that the trial judge was in error in holding that section 5O operated as a defence. He also contended that the plaintiff had the onus of proving that the provision of the professional services by him was not widely accepted in Australia by peer professional opinion as competent professional practice. He contended, in effect, that section 5O defined the content of the duty of care owed by Dr Dobler.
The Court of Appeal agreed with the trial judge that apart from section 5O, a court would continue tod etermine the standard of care, guided by evidence of acceptable professional practice. However, section 5O has the effect that if a defendant professional's conduct accords with professional practice widely accepted by peer professional opinion as competent professional practice, then subject to that opinion being rational, the professional practice in effect, sets the standard of care.
The plaintiff may call expert evidence to the effect that a defendant professional's conduct fell short of acceptable professional practice. The plaintiff, however, is not required by section 5O to present evidence negating a different professional practice favourable to the defendant. The defendant professional may call expert evidence to establish the defence provided under section 5O which, if accepted, will provide a defence.
According to the Court of Appeal section 5O may, in effect, determine the defendant's standard of care, but the standard of care will otherwise be that determined by the court with guidance from evidence of acceptable professional practice. To require the plaintiff to establish the negative would distort the language of section 5O.
The Court of Appeal considered that the trial judge had approached the issue of breach of duty in the correct manner. First, the trial judge considered whether Dr Dobler satisfied the requisite standard of care which the trial judge had determined. Once the trial judge had concluded that Dr Dobler fell short of that standard, he then considered whether Dr Dobler nevertheless was not liable because he acted in a manner widely accepted by peer professional opinion as competent professional practice. The trial judge found that this defence was not established and that Dr Dobler was therefore liable.
Having upheld the trial judge's general approach to liability, the Court of Appeal then considered challenges to the trial judge's conclusions regarding breach of duty and causation.
The Court of Appeal noted that the expert opinions accepted by the trial judge were to the effect that the history of syncopal events, where a neurological cause had been excluded, plus the unexplained heart murmur, required Dr Dobler to investigate a cardiac cause. Such a cause was at least a possibility and carried a serious risk. The Court of Appeal was not satisfied that error had been shown in the trial judge's preference for the expert evidence led by the plaintiffs.
As for the defence under section 5O, it was contended by Dr Dobler that even if the trial judge's preference for the plaintiffs' expert evidence was accepted, the expert evidence led on behalf of Dr Dobler was nevertheless evidence that Dr Dobler's conduct was considered competent professional practice by peer professional opinion. The Court of Appeal noted that the trial judge had not accepted that this defence was established because of various inadequacies in the approaches of Dr Dobler's experts. There had been inappropriate assumptions about facts, significant events in the plaintiff's medical history had been considered in isolation and the experts had failed to recognise that when Dr Dobler saw the plaintiff on 4 occasions in February 2001, it was in a hospital where an ECG could have been easily obtained.
The Court of Appeal reviewed the evidence and upheld the trial judge's decision. The Court of Appeal concluded that the trial judge considered that the evidence of the experts called by Dr Dobler should not be accepted as establishing that Dr Dobler's conduct constituted widely accepted professional practice. According to the Court of Appeal, it was open to the trial judge to come to that view.
As for issues of causation, Dr Dobler challenged the trial judge's approach, which was generally that causation in a legal context was established by the application of common sense to the evidence as a whole. The Court of Appeal considered that the authorities established that proof sufficient for legal responsibility is on the balance of probabilities and may be established by circumstantial evidence or inference short of scientific certainty. The fact that the issue of causation could not be answered with scientific certainty did not prevent the trial judge determining that issue as a matter of legal proof.
On the issue of causation, the Court of Appeal again considered that the trial judge was entitled to come to the conclusion that he did, and that Dr Dobler's submission was essentially a contention that of the differing expert opinions in evidence, the trial judge should have preferred the opinion favourable to Dr Dobler. The Court of Appeal considered that no error had been demonstrated in the trial judge's preference for the expert evidence of the plaintiffs.
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