Published Articles

These articles were drafted by Health Legal solicitors and were first published in the Australian Health Law Bulletin.

2013 Australian Health Law Bulletin Vol.21 No.10

Assessment of damages on uncontested evidence: Patterson v Khalsa (No 3)

In these proceedings, the plaintiff brought an action in negligence against a midwife, claiming that the midwife was negligent in recommending a home birth and also negligent in the performance of her duties during the birth. The NSW Supreme Court had found for the plaintiff in earlier proceedings and Patterson v Khalsa (No 3) fell to the assessment of the plaintiff’s damages in circumstances where the defendant elected not to participate in the proceedings and was unrepresented.

Alon Januszewicz
December 2013

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2012 Australian Health Law Bulletin Vol.20 No.7

The defence of peer professional opinion revisited

Brakoulias v Dr Karunaharan (Ruling) (Brakoulias) is the first case to be heard in Victoria regarding the proper construction of s 59 of the Wrongs Act 1958 (Vic) (the Wrongs Act). The court was required to determine whether s 59 displaced the common law standard of care with respect to “professionals” as defined in the Wrongs Act.

The Victorian Supreme Court held that the plaintiff will need to discharge the burden of proving negligence of a professional in accordance with the common law standard stated in Rogers v Whitaker (Rogers), but the defendant has a defence under s 59 of the Wrongs Act if she proves that her practice was consistent with peer professional opinion, and the opinion is not unreasonable. In other words, s 59 provides a statutory defence for health practitioners in a common law negligence claim, but does not supersede the common law standard of care required by professionals, as described in Rogers.

Alon Januszewicz and Giovanni Marino
August 2012

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