Originally Published 13th February 2009
MD v Sydney Southwest Area Health Service  NSWDC 22
- In an interlocutory application brought by the defendant seeking leave to file an amended defence, the Court considered whether a defendant needs to expressly plead s 5O of the Civil Liability Act 2002 in its defence. This case provides a timely warning to defendants that if they seek to rely on a defence under s 5O then it must be expressly pleaded in their defence.
- The plaintiff, MD, sued the South Western Sydney Area Health Service as the first defendant and Dr Ian Fulcher as the second defendant for negligence by reason of Dr Fulcher's omission to require her to have a pregnancy test before he carried out a repair of her prolapsed uterus and tubal ligation. She alleged psychiatric injuries, and an unsightly scar by reason of having to have her fifth child by caesarean section.
- The defendant's application arose because the defendant sought to tender reports of Dr Reid and Dr Boshell. The tender of those reports was objected to by the plaintiff on the basis that those reports largely focussed on a defence raised under s 5O of the Civil Liability Act and that defence had not been pleaded.
- Section 5O provides for the following:-
- A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of 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 peer professional opinion as competent professional practice.
- However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
- The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
- Peer professional opinion does not have to be universally accepted to be considered widely accepted.
- In Dobler v Halverson  NSWCA 335 the Court of Appeal confirmed that s 5O does not replace the standard of care set out in Rogers v Whittaker  HCA 58, but rather operates as a defence. Accordingly, where a defendant fails to satisfy a Court that he/she has exercised reasonable care, he/she can avoid liability by showing that he/she acted in a manner which was widely accepted by peer professional opinion as competent practice.
- Goldring DCJ held that Rule 14.14 of the Uniform Civil Procedure Rules requires a defence under s 5O to be specifically pleaded and particulars given. Rule 14.14 provides for the following:-
- In the statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.
- In a defence or subsequent pleading, a party must plead specifically any matter:
- that, if not pleaded specifically, may take the opposite party by surprise, or
- that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or
- that raises matters of fact not arising out of the preceding pleading.
- Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.
- In this case there was no suggestion that the plaintiff was taken by surprise by the matters contained in the reports of Dr Reid and Dr Boshell as they had been served well in advance. However, his Honour held that the matters of professional practice referred to in the reports of Dr Reid and Dr Bosell would make the plaintiff's claim not maintainable.
- After initially indicating that leave would be granted to the defendant to file an amended defence so that s 5O could be pleaded, leave was refused on the basis that the plaintiff's expert report did not address the s 5O issue and therefore the plaintiff would be significantly disadvantaged by virtue of the course that the proceedings had taken, including the plaintiff's decision not to require Dr Reid and Dr Boshell for cross-examination.
- In addition to refusing the defendant's application for leave to file an amended defence, his Honour further ruled that the reports of Dr Reid and Dr Boshell sought to be relied upon by the defendant were irrelevant and inadmissible insofar as they related to matters concerning s 5O.
- The defendant brought a further application to stay the proceedings whilst an appeal on the interlocutory judgment was heard. This application was also unsuccessful.
- In the substantive proceedings the court found a verdict for the first defendant and a verdict for the plaintiff against the second defendant. Goldring DCJ found that Dr Fulcher breached his duty of care that he owed to the plaintiff. As a result of His Honour's ruling in relation to the admissibility of the reports of Dr Reid and Dr Boshell, Dr Barrowclough's evidence was the only evidence before His Honour relating to the duty of care owed by the defendant.
- If a defendant seeks to rely on a defence under s 5O then it must be expressly pleaded in their defence and particulars given. Where s 5O is not pleaded and a defendant seeks to tender a liability report addressing s 5O they run the risk of having such evidence excluded.
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.