This decision demonstrates the successful application of the defence of peer professional opinion as set out in section 41 of the Civil Liability Act 1936 (SA) in defending allegations of negligence relating to an emergency surgical procedure performed to the applicant’s left arm following diagnosis of compartment syndrome.

In issue

The Court was required to consider (amongst other things) whether Queen Elizabeth Hospital (QEH) had breached their professional standard of care in the treatment of the applicant in performing the first surgery, namely:

• whether there had been inappropriate delay in performing the first surgery,
• the scope of the first surgery and whether it was successful being whether it released pressure in the arm as it was intended to do, and
• whether the use of a tourniquet in the first surgery was appropriate.

The Court was required to apply the standard owed by a professional as set out in the CLA and was consequently required to consider the defence of peer professional opinion as set out at section 41 of the CLA.

The background

On 19 April 2017 the applicant woke with numbness and significant pain sensation in his left arm (the arm) and was unable to move the arm. The applicant attended QEH by way of ambulance and presented to the emergency department.

Upon presentation to QEH, the applicant was diagnosed with (amongst other things) compartment syndrome in the arm. An emergency surgical procedure was performed to relieve swelling in the arm with a view of reducing the risk of damage to the nerves and blood vessels in the arm (the first surgery).

Several further surgeries were performed on the arm between 20 April 2017 and May 2017. The applicant experienced a long and complicated recovery process, requiring several further surgeries in the following years.

The applicant brought a claim in negligence against the Central Adelaide Local Health Network (as employer of the surgeon that performed the first surgery and the operator of QEH) alleging in relation to the first surgery that:

• it was not performed in a timely manner,
• it did not involve extensive skin incisions as required by his symptoms and presentation, and that
• the use of a tourniquet in the procedure contributed to the poor outcome of the first surgery.

The applicant alleged that as a result of the negligent conduct of the first surgery (which was not able to be remedied by subsequent surgeries) he suffered permanent damage to the arm and complete loss of use of his left hand.

The respondent denied the allegations and sought to rely on the defence of peer professional opinion as set out in section 41 of the Civil Liability Act 1936 (SA) (the CLA).

The decision at trial

The Court dismissed the applicant’s claim as, in applying the standard as set out in section 40 of the CLA, it found that QEH had not breached its professional duty.

The Court held that the treatment in question met the professional standard set out in section 40 of the CLA, and it also accepted the defence of peer professional opinion, finding that the treatment of the arm (including the timing of the same and the use of a tourniquet) was consistent with widely accepted practice. Critically, the Court accepted that whilst other medical professionals may have approached the applicant’s treatment differently, this of itself did not mean that treatment fell below the standard of care required by a medical professional in the circumstances.

Further, the Court found that by the time of presentation to QEH, the arm had already incurred irreversible damage and accepted evidence that even immediate and more invasive surgical measures would not have prevented permanent impairment to the arm. Consequently, even if the applicant established a breach of professional duty, he would not have successfully established causation.

Implications for you

This decision highlights the protective scope of the defence of peer professional opinion as set out at section 41 of the CLA and consequently the importance of obtaining relevant, credible, and independent expert evidence in disputes of this nature.

This decision is an example of the importance of good record keeping particularly as the applicant’s recollection was deemed unreliable by the Court. On this basis, the Court was content to accept the records of QEH which informed the defence of peer professional opinion. Often 'the devil is in the detail' and claims of this nature are ultimately determined (or resolved) based on what can be substantiated from the records at the time.

TOON v CENTRAL ADELAIDE LOCAL HEALTH NETWORK [2025] SADC 98