Australia: In defence of professionals: Navigating the peer professional opinion defence

Last Updated: 8 October 2013
Article by Jennifer Crowther
Focus: The peer professional opinion defence
Services: Insurance
Industry Focus: Insurance

The 'peer professional opinion defence' was introduced by tort law reforms in each of the Australian states a decade ago. Surprisingly, there have been few reported cases concerning the defence since then. While it is most commonly raised in medico-legal claims, the 'peer professional opinion defence' has wider application when defending pure economic loss claims against all professional people.

The defence

Professionals who are sued in negligence may have a defence to claims if it is established that their actions are widely endorsed as competent by a body of their peers, and the peer opinion is not unreasonable or irrational. The 'peer professional opinion defence', which is contained in the following statutes, sets out "the yardstick of proper practice, by which a professional's conduct is to be judged":1

  • S 22 Civil Liability Act 2003 (Qld)
  • S 5O Civil Liability Act 2002 (NSW)
  • S 59 Wrongs Act 1958 (Vic)
  • S 41 Civil Liability Act 1936 (SA)
  • S 22 Civil Liability Act 2002 (Tas)
  • S 5PB Civil Liability Act 2002 (WA).

There are two challenges to understanding the nature and extent of the 'peer professional opinion defence' in Australia. Firstly, the statutory provisions are not identical in each state's jurisdiction and there is a danger in assuming that they share an identical meaning and effect. As an example, the defence applies to all professions except in Western Australia, where the defence is restricted to health professionals. Secondly, despite the fact that the legislation has been operative for a decade, there have been few reported cases where any of the statutory provisions have been interpreted.

Key principles

Nevertheless, there are a number of principles which may be distilled from the cases and which may have general application across Australia:

  1. The 'peer professional opinion defence' will operate to guide the courts about the standard of care expected in areas of particular professional expertise. A professional who is able to prove that he or she acted in accordance with widely-regarded acceptable practice in the view of his or her peers will have a prima facie defence to a claim of negligence.2
  2. The 'peer professional opinion defence' cannot be made out unless there is independent expert opinion available to the court. If the defence is pleaded, expert evidence should be produced to support it.3 This could take the form of independent expert reports, or possibly, professional standards directions from a professional association.
  3. The expert opinion must establish that there is an accepted practice among competent professionals, and that the professional in question acted in accordance with this practice.4 This may be established by producing one expert opinion, or several, depending on the circumstances of the case.
  4. Peer professional opinion does not need to be unanimous, but it must be widely-held and compelling. While the wording of the 'peer professional opinion defence' varies between States – the New South Wales and Victorian statutes refer to what is "widely accepted in Australia by peer professional opinion", whereas in Queensland, the comparable provision refers to what is "widely accepted by peer professional opinion by a significant number of respected practitioners in the field" – there is a common requirement that the peer opinion should reflect the current approach of a significant part of the profession.
  5. An incomplete or selective expert opinion will not meet the requirements for the 'peer professional opinion defence'. When tendering an expert opinion, it is incumbent upon the defendant to ensure that the opinion is not selective or unduly restricted. In Weller v Phipps,5 an expert's opinion as to whether a solicitor should have advised a client that a case was hopeless was not accepted, because the opinion did not describe the accepted legal practice on the issue, nor did it make any assessment of whether the order and timing of the steps in the accepted practice had been followed.
  6. The defence may apply in cases where a professional has taken positive action on behalf of a client, but it may not apply where the professional is alleged to have failed to properly warn a client about risks. In the Queensland case of Mazza v Webb,6 the Supreme Court accepted the defendant's expert opinion that it was competent for an endoscopist to perform an "open access" endoscopy stopping short of exploring the third and fourth parts of the duodenum. The Court did not, however, allow the 'peer professional opinion defence' because it concluded that the endoscopist should have warned that the medical investigation had been inconclusive, and recommended a more invasive endoscopic investigation. In most Australian jurisdictions, the civil liability statutes expressly state that the defence is not an answer to a claim that a professional failed to warn of the risk of serious harm. It is important to consider the idiosyncrasies of each statute, since in some cases, this is restricted to risks of personal injury, and in other cases it may extend to financial loss as well.
  7. An expert opinion which is illogical or based on irrelevant considerations will not meet the requisite standard for the 'peer professional opinion defence'.7 If a peer professional opinion is presented which the court finds to be "irrational" or "unreasonable"8 it will not be accepted as meeting community expectations, regardless of how widely the opinion might be held. In Queensland, there is an extra statutory requirement that the peer opinion may not be contrary to written law.

The 'peer professional opinion defence' is a useful tool in defending professional negligence cases. To date, most of the reported cases concerning the defence have concerned health practitioners. However, the legislation in all Australian states except Western Australia is more far-reaching, and any professionals who are sued in negligence may avail themselves of the defence.


1Dewheath Pty Ltd v Edmunds [2013] NSWSC 553 at para 57.
2Dobler v Halverson and Ros [2007] 70 NSWLR 151
3Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505.
4Fischer v Howe [2013] NSWSC 462 at para 105.
5[2010] NSWCA 323.
6[2011] QSC 163.
7Hope v Hunter and New England Area Health Service [2009] NSWDC 307.
8The terms are variously used in the statutes across the Australian jurisdictions.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.