In defence of professionals: Navigating the peer professional opinion defence

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.

Footnotes

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.