In Australia, the Peer Professional Opinion defence allows a professional to defend a negligence claim if the professional’s conduct is endorsed by a body of peers. The defence was embodied in legislation in each of the states of Australia[i] as part of liability law reform following the Ipp Report.

Although the precise terms of the defence vary in each jurisdiction,[ii] there is a common requirement that the evidence must establish that a body of peer practitioners accepts the professional’s conduct to be competent and accepted practice.

There is a surprising dearth of reported cases where the Peer Professional Opinion defence has been raised successfully. This is no doubt in part because the defence applies to positive acts or omissions by a professional, and may not be relied upon where it is alleged that the professional failed to warn a client of a risk.   Another factor may be the courts’ unwillingness to accept a peer opinion unless it accurately and exhaustively comments upon the professional’s conduct, or if the peer practitioner is concluded not to have appropriate qualifications and experience to offer the opinion.

Anecdotal examples from reported cases highlight some of the pitfalls which may be encountered when seeking to rely upon the Peer Professional Opinion defence:

  • When requesting a peer opinion, the peer practitioner should be briefed comprehensively to ensure that the opinion describes accepted practice completely, and accurately identifies the conduct which would be acceptable.

In Weller v Phipps[iii] the court declined to accept a peer opinion which did not canvass the totality of the circumstances in dispute. While the peer opinion concluded that the steps undertaken by a solicitor in advising the plaintiff on their prospects in a family law dispute were widely accepted as competent professional practice, the court concluded that the peer opinion was insufficient because it did not address the question of whether undertaking those steps in the order in which they were done or at the time at which they were done was acting in a competent manner. Critically, the peer opinion failed to address the question of whether a competent professional would have identified and resolved the problems earlier.

In Gould v South Western Sydney Local Health District[iv] the peer opinions proffered by the defendants were undermined by factually incorrect assumptions about the timing of antibiotics, surgical washouts and the trauma category of a patient. The court determined that these factual inaccuracies and assumptions meant the opinion could not be relied upon.

  • A peer practitioner must have appropriate qualifications and expertise which match the background of the defendant professional, and the peer opinion should provide objective comments without any demonstrable bias towards the professional.

In Cam & Bear Pty Ltd v McGoldrick[v] the court expressed the view that the peer practitioner acted, both in his peer opinion and when giving evidence at trial, as an advocate for the professional rather than acting with obvious independence. Noting that the peer practitioner seemed to avoid direct questions and tended to give explanations to questions he considered assisted the defendant professional, the court declined to accept the peer opinion as a basis for making out the defence.

  • A peer opinion should acknowledge the context in which the professional worked, including any contractual obligations with a client.

In Thiess Pty Ltd v Parsons Brinckerhoff[vi] the court observed that the Peer Professional Opinion defence must be considered with reference to the specific obligations that the professional undertook under a retainer. The court rejected the defence where a peer opinion did not take into account the specific contractual obligations that the professional was subject to.

  • The courts will distinguish between conduct which is universally considered to be competent professional practice and conduct which depends upon the exercising of professional judgment on a case by case basis.

In Tinnock v Murrumbidgee Local Health District (No 6)[vii] the Peer Professional Opinion defence was abandoned during a trial when the peer practitioner’s evidence did not establish that a surgical technique was widely accepted as competent professional practice. Rather, the peer opinion was expressed that there was no established practice or school of thought for the use of surgical drains – much depended on the circumstances and the surgeon’s professional judgment at that time.

  • Some cases will necessarily be governed by the exercise of a professional judgment in the moment rather than the application of accepted peer practice, and the Peer Professional Opinion defence will never be made out.

In McKenna v Hunter New England Local Health District[viii] the court held that no accepted practice could be described in the mental health sphere where decisions are made on a case by case basis. This matter concerned the discharge of a mentally ill patient into the care of his friend, who he subsequently killed on the way home from the hospital. The hospital asserted the decision to discharge the patient was endorsed by peer opinion. The hospital’s defence failed because the peer opinions relied upon did not suggest that there was a commonly accepted practice but rather commented on the reasonableness of the decision to discharge the patient in the particular circumstances of the case. In the absence of a commonly accepted professional practice, the court concluded that the Peer Professional Opinion defence was not available to the hospital.

So when commissioning a peer opinion, it is important to ask the right questions:

  • Is the peer practitioner suitably qualified and experienced in the same profession and the same specialization?
  • Is there evidence that the peer practitioner is well regarded by others in the profession? Has the peer practitioner’s opinion been accepted by the courts in other cases?
  • Has the peer practitioner been briefed with all relevant documents and information?
  • Does the peer practitioner’s opinion accurately describe the context of the conduct complained of?
  • Does the peer practitioner’s opinion set out an exhaustive commentary on the conduct complained of? Does the opinion include a description of what would be acceptable professional conduct?

 

[i] See s 22 Civil Liability Act 2003 (Qld), s 50 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) and s 5PB Civil Liability Act 2002 (WA)

[ii] In Western Australia the defence only applies to medical practitioners.

[iii] [2010] NSWCA 323

[iv] [2017] NSWDC 67

[v] [2016] NSWSC 1894

[vi] [2016] NSWSC 173

[vii] [2017] NSWSC 1003

[viii] [2013] NSWSCA 476