Australia: Professional Indemnity: The burden of peer professional opinion

Insurance Update

Brakoulias v Karunaharan [2012] VSC 272

In June 2012, The Supreme Court of Victoria considered the statutory and common law standard of care for professionals.

Mrs Brakoulias attended her general practitioner in the latter months of 2004, seeking help with weight loss. Dr Karunaharan prescribed a weight loss drug (Reductil) and monitored Mrs Brakoulias' progress thereafter. In December 2004, Mrs Brakoulias suffered a ventricular fibrillation arrest and stopped breathing. She was resuscitated but having been deprived of oxygen for 26 minutes, she suffered a serious hypoxic brain injury.

Mrs Brakoulias alleged that Dr Karunaharan was negligent in prescribing her Reductil and that the Reductil caused her cardiac arrest. The jury determined that Dr Karunaharan had not been negligent in her management and treatment of Mrs Brakoulias and the proceeding was dismissed with costs.

Prior to charging the jury, the presiding judge, Macauley J, asked the parties to address him on the proper construction of s.59 of the Wrongs Act 1958 (Vic).

Section 59(1) states that "A professional is not negligent in providing 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 a significant number of respected practitioners in the field as competent professional practice in the circumstances" (peer professional opinion).

His Honour questioned whether s.59:

  1. replaced the common law standard of care in relation to professionals such that s.59 operated as the exclusive standard of care, the breach of which, the plaintiff must prove (the exclusive standard approach);
  2. operated as an adjunct to the common law in that once the plaintiff established a prima facie case of negligence, the plaintiff would also have to establish that the defendant's action failed to accord with peer professional opinion;
  3. operated as a defence, that is, once the plaintiff established prima facie negligence, it was for the defendant to raise the defence and defeat the claim by establishing that her actions complied with peer professional opinion (the defence approach).

His Honour was initially attracted to the exclusive standard approach when he considered that s.59 was introduced to implement the Ipp Report recommendation that there be a modified version of the Bolam principle. The Bolam principle was determined in a medical negligence case and was to the effect that the law imposed the duty of care but the standard of care was a matter of medical judgment. Put another way, a doctor was not negligent if he acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice.).

In support of the exclusive standard approach Macauley J noted:

  1. the Bolam principle was never a defence but a formation of the standard of care;
  2. neither the Ipp Report nor the Bill introducing s.59 indicated that a two-step approach was being contemplated;
  3. there was no clear indication that the section was intended to impose an onus on a defendant to prove anything; and
  4. the parts of s.59 which are in the negative mirror those expressed in the Bolam principle.

Notwithstanding the above, His Honour rejected the exclusive standard approach and found that the defence approach was correct.

His Honour accepted that the language of the section, namely, "a professional is not negligent if...", assumes the existence of general or primary grounds from which the liability arises. And the assumption of those primary grounds of liability can only sensibly be understood as the assumption of a failure to meet an applicable standard of care (which is the common law standard as set out in Rogers v Whitaker).

Further, His Honour considered it very difficult to construe the wording as placing the onus of proof on the plaintiff as the only person with an interest in establishing compliance with a peer professional opinion, is the defendant (and that interest is to gain the benefit of the defence the section provides).

His Honour also considered two NSW cases where the same question had arisen in respect of s. 5O of the Civil Liability Act 2002 (NSW ). In both instances the NSW Court of Appeal found the relevant section to be a defence1. The relevant sections of the Victorian and NSW Acts are similar, but not identical. The NSW legislation states that a professional "does not incur a liability in negligence" whereas in Victoria the relevant phrase is "a professional is not negligent". However Macauley J considered that the difference was semantic and not indicative of a different legislative intent; he considered the NSW cases strongly supported the view that s.59 is a defence.

His Honour then considered the issue of the burden of proof in relation to the s.59 defence. He found that s.59 imposed a legal burden on the defendant to both:

  1. bring forward evidence of peer professional opinion with which the defendant's actions complied; and
  2. to establish it on the balance of probabilities.

Accordingly, His Honour instructed the jury that, to prove negligence against a professional, a plaintiff must discharge the legal burden to prove negligence according to the common law standard of care, currently expressed in Rogers v Whitaker. If that burden is discharged, a defendant is to be found negligent unless the defendant establishes that he or she acted in a manner that accorded with peer professional opinion as set out in s.59 (provided that opinion was not unreasonable). If that is established, the defendant must not be found negligent.


1Dobler v Halverson (2007) 70 NSWLR 151 and Sydney South West Area Health Service v MB (2009) 260 ALR 702.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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