Special Provisions for Medical Negligence in the Civil Liability Act 2002 (WA) – Much Ado About Nothing?

Activity: Industry and government engagement/consultancyProviding continuing professional development to industry/government/community


The Civil Liability Act 2002 (WA) (‘CLA’) is unique in its provision of a special standard of care for health professionals under s 5PB. Other civil liability statutes include special provisions for the liability of ‘professionals’ in general, and these provisions normally take the form of the so-called ‘peer professional opinion’ defence. The decision in Child and Adolescent Health Service v Mabior [2019] WASCA 151 clarifies the nature of s 5PB as a special standard of care (as opposed to a defence). The Court also made some important points regarding the method of identification of relevant experts for the purpose of establishing complex scientific facts, which is a different exercise from the identification of the health professional’s peers for the purpose of establishing standard of care and breach of duty. This interpretation arguably systematises the CLA at the expense of its intended scope of application. Indeed, the current restrictive approach potentially deprives s 5PB of any practical relevance. This is not an insignificant development. Indeed, the COVID-19 pandemic is putting healthcare systems under increasing amounts of pressure, and patients are bound to be cared for in accordance to practices that, by the very nature of the rapidly evolving circumstances, cannot be well-established.
Period21 Oct 2020
Work forWA Legal Profession, Australia, Western Australia
Degree of RecognitionRegional