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Medical: “Exploring the bounadaries of professional practice” – Torts Law Journal article.


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.

[BillMaddensWordpress #2062]



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