This article was first published in LexisNexis by Bill Madden, "Civil liability legislation: The correct sequence in medical litigation" (2022) 30(5&6) HLB 107
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited 1 is not a medical litigation decision. 2This article focuses on only one aspect of it, being a discussion by the majority 3 introduced with the following remark:
First, and contrary to some views that have been expressed in the New South Wales Court of Appeal, the "risk" with which s 5L 4 is concerned will usually need to be assessed after a determination that there is prima facie liability for negligence. 5
The words identify what might be called the correct sequence for consideration of s 5L, such that it should be judicially addressed are "after a determination that there is prima facie liability for negligence" [emphasis added]. 6
As a reminder, the relevant text of s 5L(1) provides:
(1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
The majority expanded on their introductory remark regarding the correct sequence of judicial approach as follows:
First, as to the usual need for s 5L to be assessed after a determination of the existence of prima facie liability in negligence, this can be seen from the structured approach taken by the Civil Liability Act and from the terms of s 5L itself. Division 2 of Pt 1A, entitled "Duty of care", is concerned with when a person will be negligent for "failing to take precautions against a risk of harm". Division 3 of Pt 1A, entitled "Causation", is concerned with whether negligence "caused particular harm". And Divs 4 and 5 of Pt 1A are concerned with matters including the exclusion of liability for "obvious risks". In particular, Div 5 applies only in respect of "liability in negligence for harm to [the plaintiff] resulting from a recreational activity engaged in by the plaintiff". In other words, Div 5 presupposes that there would otherwise be liability for negligence arising from a failure to take precautions against a risk of harm where that negligent failure caused the harm. This conclusion is reinforced by the terms of s 5L, as a defence that excludes liability in negligence that would otherwise arise. In other words, s 5L is a "liability-defeating rule", of the same nature as those defences that were formerly described as "confession and avoidance". 7
The question raised in this short article is the potential application of that correct sequence approach to provisions in respect of medical treatment liability, given a different approach which had been promoted by the NSW Court of Appeal in earlier decisions dealing with civil liability provisions regarding materialisation of inherent risks 8 and regarding the standard of care for professionals. 9
Materialisation of inherent risks (NSW)
Section 5I ("the inherent risk provision") provides as follows:
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.(2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.(3) This section does not operate to exclude liability in connection with a duty to warn of a risk. 10
Returning to the majority's comments in Tapp at , it appears fair to say that the inherent risk provision also comes after consideration of and a finding in relation to duty of care and causation, in the structured approach taken in the Civil Liability Act 2002 (NSW) ("the Act"). Like s 5L, it creates circumstances in which a defendant is not liable in negligence for harm. It is a liability defeating rule.
It is perhaps not as clear that the inherent risk provision presupposes that there would otherwise be liability for negligence arising from a failure to take precautions against a risk of harm where that negligent failure caused the harm, given that subsection (2) notes that an inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Nevertheless, the correct sequence comment in Tapp (if applied to s 5I) appears to conflict with the sequence promoted by the NSW Court of Appeal in Paul v Cooke. 11 Ms Paul underwent a scan to determine whether she had an intracranial aneurysm. Her radiologist Dr Cooke negligently failed to diagnose the aneurysm. Some three years later following a further scan, the aneurysm was diagnosed. On the advice of her treating practitioners and informed of the risks involved, Ms Paul underwent an operation to remove it. During the course of that operation, and without any lack of skill or care on the part of the surgeons, the aneurysm ruptured, causing her to have a stroke and suffer serious injuries.
If Dr Cooke had diagnosed the aneurysm in 2003, Ms Paul would have undergone surgery then. The procedure Ms Paul underwent in 2006 (endovascular surgery) was different to the procedure she would have undergone in 2003 (open neurosurgery). Based on statistical evidence that the overall risk of stroke following rupture during either procedure was less than 1%, it was highly likely that Ms Paul would have suffered no harm had a procedure been performed in 2003; that is, "but for" Dr Cooke's failure to diagnose the aneurysm in 2003, Ms Paul would have had the aneurysm safely removed in 2003 and therefore would not have had the surgery and suffered the harm in 2006. The delayed diagnosis did not of itself increase the risks associated with surgery, in that the aneurysm did not change in size, shape or propensity to rupture during those three years.
In that matter Leeming JA, with Ward JA agreeing, said:
If a case can conveniently be decided under s 5I, it should be. The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That is why it is framed in terms of the broader causal language of "as a result of", reflecting the language of s 5A(1) rather than of s 5D(1), and why its opening words are "A person is not liable in negligence". That is reinforced by s 5I(3), which carves out from the operation of the section "to exclude liability" a class of liability connected with a duty to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed by the "claim" contemplated by s 5A(1) negatively: the defendant is not liable for that claim for damages for harm resulting from negligence. The reasons for my view that s 5I should be applied if it is available are as follows. First, once s 5I is engaged, there is no liability for a failure to exercise reasonable care and skill. The entire inquiry under Part 1A comes to an end. 12
Standard of care for professionals (NSW)
Section 5O ("the peer professional opinion provision") relevantly provides as follows, in subs 1:
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. 13
Again, returning to the majority's comments in Tapp at , the peer professional opinion provision also comes after duty of care and causation, in the structured approach taken in the Act. Like s 5L, it appears that s 5O presupposes that there would otherwise be liability for negligence arising from a failure to take precautions against a risk of harm where that negligent failure caused the harm. Adopting the words of the majority it Tapp, it seems that this conclusion is reinforced by the terms of s 5O, as a defence that excludes liability in negligence that would otherwise arise. 14 It is a liability defeating rule.
Again, the correct sequence comment in Tapp (if applied to s 5O) appears to conflict with the sequence promoted by the NSW Court of Appeal in South Western Sydney Local Health District v Gould. 15 The respondent suffered a fracture to his left thumb. He presented to Campbelltown Hospital and was transferred to Liverpool Hospital. Apenicillin-derived antibiotic (flucloxacillin) was administered to the plaintiff at Campbelltown Hospital, and a cephalosporin (namely, cephazolin), was administered at Liverpool Hospital later that evening. The critical element of the finding of the primary judge was the failure to administer an additional antibiotic drug, gentamicin, that evening. That failure was found to have been a breach of duty and to have caused the infection which led to the loss of the plaintiff's left thumb.
Addressing the appellant's reliance on section 5O in that matter Leeming JA, 16 with Basten & Meagher JJA in agreement, had said:
. . . there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269;  HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. 17
In Tapp, the majority explained the importance of attention to the correct sequence since s 5L (the provision under consideration in that matter) operates upon established liability based on duty, breach, and causation of harm. Accordingly, the risk to which s 5L refers must be the same risk that has materialised as a result of the harm for which liability in negligence would arise. That is the risk to which s 5B refers, in the context of the requirement to establish a breach of a duty of care, upon which, in turn, the requirement of causation depends. 18 As a reminder, s 5B(1)(a) requires a foreseeable risk (being a risk of which the person knew or ought to have known) and s5B(1)(b) requires that risk to be not insignificant. 19
Section 5I requires a defendant to establish that an inherent risk has materialised. It is accordingly difficult to see why a different approach should be taken in matters which require consideration of s 5I, than in matters which require consideration of s 5L.
Section 5O requires a defendant to establish 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. It does not expressly refer to risk, but it does require attention to a liability in negligence arising from the provision of a professional service. To avoid that liability the professional must have 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. In doing so, the relevant practice appears to be that said to have been followed in the context the same risk that has materialised as a result of the harm for which liability in negligence would arise.
Accordingly, it appears safe to conclude, that consistent with the approach taken by the majority in Tapp in respect of s 5L, when addressing both the 5I and the s 5O defences, s 5B should be addressed first so as to identify the risk that was foreseeable and not insignificant.
1. Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd (2022) 399 ALR 535;  HCA 11; BC202202538 (referred to in this article as "Tapp").
2. The appellant, Ms Tapp, was an experienced horse rider and campdraft contestant. During a multi-day campdrafting event organised by the respondent, in a time period of around45 minutes, four other contestants had falls while competing. After the first three falls, an experienced campdrafter, Mr Stanton approached one of the event organisers and said that the competition should be stopped because the ground was becoming slippery. After discussing the ground condition and speaking with two of the contestants who fell, the organisers continued the competition. After the fourth fall, Mr Stanton again approached an organiser and said that he thought the ground was "unsafe". The organisers delayed the competition to discuss the conditions but decided to continue. Shortly thereafter, Ms Tapp competed and fell when her horse slipped on the ground of the arena. She suffered a serious spinal injury.
3. Gordon, Edelman & Gleeson JJ.
4. Section 5L of the Civil Liability Act 2002 (NSW) is headed "No liability for harm suffered from obvious risks of dangerous recreational activities". See also Civil Liability Act 2003 (Qld)s 19; Civil Liability Act 2002 (Tas) s 20; Civil Liability Act 2002 (WA) s 5H.
5. Tapp, .
6. Above. With thanks to Dominic Villa SC and to Associate Professor Neil Foster for noting this aspect of the reasons for judgment.
7. Tapp, . Footnotes omitted.
8. Section 5I, Civil Liability Act 2002 (NSW).
9. Section 5O, Civil Liability Act 2002 (NSW).
10. See also Civil Liability Act 2003 (Qld) s 16; Civil Liability Act 1936 (SA) s 39; Wrongs Act 1958 (Vic) s 55; Civil Liability Act 2002 (WA) s 5P; noting however the reference to harm, rather than risk in Western Australia.
11. Paul v Cooke (2013) 85 NSWLR 167;  NSWCA 311;BC201313041.
12. Above, -.
13. See also Civil Liability Act 2003 (Qld) s 22; Civil LiabilityAct 1936 (SA) s 41; Civil Liability Act 2002 (Tas) s 22;Wrongs Act 1958 (Vic) s 59; Civil Liability Act 2002 (WA)s 5PB; with some variations in wording.
14. Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; NSWCA 29; BC201801378;  per Simpson JA.
15. South Western Sydney Local Health District v Gould (2018) 97NSWLR 513;  NSWCA 69; BC201802707.
16. Notwithstanding that opinion, Leeming JA later sitting as a trial judge in Zhang v Hardas (No 2) NSWSC432;BC201802771made separate findings, firstly in respect of s 5O and secondly in respect of s 5B. That was said to be necessary because of the contest on the application of s 5O to chiropractors and the absence of any authority on that point.
17. South Western Sydney Local Health District v Gould (2018) 97NSWLR 513;  NSWCA 69; BC201802707; .
18. Tapp, .
19. See also Civil Liability Act 2002 (ACT) s 43; Civil Liability Act 2003 (Qld) s 9; Civil Liability Act 1936 (SA) s 32; Civil Liability Act 2002 (Tas) s 11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002 (WA) s 5B.
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