In New South Wales, the standard of care required of professional service providers is legislated: s5O Civil Liability Act 2002 (NSW) (CLA).
As a professional service provider, you are required to act in a manner that is widely accepted in Australia by peer professional opinion as competent professional practice at the time the service is provided: s50(1) CLA.
In the event of a dispute, to demonstrate that you acted in accordance with this standard, it will be necessary to tender evidence in the form of an expert opinion from a professional peer. The opinion of your peer will need to be one which is widely accepted by your professional peers in Australia.
The opinion does not have to be “universally accepted” to be “widely accepted”, as required by the legislative standard: s50(4) CLA. Your peers may have differing opinions, all rational, as to what is “competent professional practice”. NSW law recognises this: s50(3) CLA. Where the opinions of expert differ, it will be for the court to determine which expert opinion is to be preferred. Courts are regularly called upon to decide in the presence of differing opinions, which expert opinion is more persuasive.
However, in order for an expert’s opinion to be persuasive, it is important that the expert’s training, knowledge and experience are relevant to the issues in dispute. This is particularly so when the issues in dispute concern a specialty or sub-specialty. In our experience, absent the opinion being irrational, the prospects of an opinion being persuasive are enhanced when the opinion is expressed by an expert practicing in the relevant specialty or sub-specialty as distinct from that of a competent generalist.
In order to be accepted, the court must not find the opinion irrational: s50(2) CLA. The CLA does not define or provide any guidance as to what an ‘irrational’ opinion might be. Therefore, it will be a matter for the court to determine based on the evidence placed before it and its understanding garnered from the evidence of what constitutes competent professional practice. In Hope v Hunter and New England Area Health Service  NSWDC 307 (27 November 2009) the NSW District Court said in the context of that case that it did not consider an ‘irrational opinion’ to be one without reasons, but rather one that is “illogical, unreasonable and based on irrelevant considerations”.
This standard of care applies to all professional service providers, irrespective of the industry in which the professional practices. For example, whether you are a teacher, architect, medical practitioner, broker or lawyer, the standard of care required is the same.
Ultimately, you will not incur liability in negligence if it is established that you acted in accordance with this standard. That is, you: … acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice: CLA s5O(1).
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