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Sirko Harder (2023) 29 Tort Law Review 119-133.pdf (5.29 MB)

The misunderstanding of bolam and its impact on the Australian civil liability reform

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posted on 2023-10-25, 14:13 authored by Sirko HarderSirko Harder

The civil liability statutes of New South Wales, Queensland, South Australia, Tasmania and Victoria generally preclude a finding of professional negligence where the defendant acted in a manner that was widely accepted by peer professional opinion “as competent professional practice”. In Dean v Pope, a bench of five judges in the New South Wales Court of Appeal unanimously rejected the view, previously adopted by the Court, that the provision in New South Wales requires the defendant to follow an established practice. While one judge still required a previous application of the defendant’s approach in practice, four judges regarded it as sufficient that expert witnesses characterise the defendant’s conduct as competent. The interpretation rejected in Dean v Pope and the interpretation adopted by the majority in that case correspond to two principles in English law, emanating, respectively, from Bolam v Friern Hospital Management Committee and Maynard v West Midlands Regional Health Authority. This article traces the development of those principles and demonstrates their conflation in England and Australia. Against this background, this article reviews the language and legislative intention of the statutory provisions mentioned and suggests an interpretation that lies between the two principles.

History

Publication status

  • Published

File Version

  • Published version

Journal

Tort Law Review

ISSN

1039-3285

Publisher

Thomas Reuters

Issue

2 (Special Issue: Tort Law Reform in Asia and Beyond)

Volume

29

Department affiliated with

  • Law Publications

Institution

University of Sussex

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2023-02-23

First Compliant Deposit (FCD) Date

2023-02-22

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