Shortly before his appointment to the NSW Supreme Court, Nicholas Chen SC write an article which has now been published in the Torts Law Journal. The abstract explains:
Section 5O of the Civil Liability Act 2002 (NSW) sets the standard of care for claims in negligence against ‘a professional’ by enacting a modified form of the Bolam principle. Section 5P excludes the operation of s 5O in connection with the giving of (or failure to give) a warning, advice, or information. This article collects the principles that identify the meaning and scope of s 5O, as well as addressing a significant issue that remains unresolved: whether the section is to be construed widely, and thus cover conduct assessed against generally acceptable professional practice; or whether it is to be construed narrowly, and only apply to conduct that conforms to a specific and demonstrated ‘practice’. For s 5P, which has largely escaped judicial attention, the article explains its likely reach, and an issue of construction that arises from the text of the provision: whether its engagement is confined to cases where the failure to warn or advise gives rise to new and distinct injury, as opposed to the continuation of an existing injury.