What happened

A child presented with an open thumb fracture in 2011, received antibiotics and surgery, and later required amputation. The trial judge found that failure to administer the additional antibiotic gentamicin was a causative breach of duty. The appeal focused on the history available to the hospitals and the evidence about accepted antibiotic practice at the time.

The issues

The central question was whether s 5O of the Civil Liability Act 2002 protected treatment consistent with widely accepted Australian peer professional opinion. The court also considered the meaning of irrationality and the fairness of rejecting expert evidence on that basis when the issue had not been raised during the trial.

The court's decision

The evidence established that the antibiotics actually administered conformed to a widely accepted practice in 2011, and that opinion was not irrational. Section 5O therefore defeated liability, the plaintiff's judgment was set aside and the proceedings were dismissed. The plaintiff was ordered to pay trial and appeal costs, with a certificate under the Suitors' Fund Act 1951.

Understanding the figures

The historical trial award of AUD 240,930.10 was set aside. It is not an award surviving this appeal, and the court did not establish whether money had actually been paid. The costs orders and Suitors' Fund certificate are separate matters.

What this case shows

The irrationality exception is distinct from choosing the more persuasive of two expert views. Once the statutory preconditions are established, the accepted professional practice sets the standard of care, and a proposed rejection of that practice must be addressed through a fair process.

Why another case may differ

The result depended on evidence of practice in 2011 and the history communicated to the hospitals. It does not give automatic protection whenever a clinician follows a guideline: the defendant must establish the conditions for s 5O. Some causation questions were not determinative, and the court expressly declined to reach a concluded view on one disputed finding.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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