In 2018 the Child and Adolescent Health Service of Western Australia (Health Service) was found liable for injuries suffered by Sunday Mabior (an infant) while a patient at the burns ward at Princess Margaret Hospital (PMH). The Health Service appealed this decision on 15 grounds, but was ultimately unsuccessful on each, with the Court of Appeal providing guidance on the standard of care for health professionals.
In Issue
- Whether Ms Mabior was septic during her treatment at Princess Margaret Hospital and whether the doctors responsible for her care failed to recognise the possibility that she was septic.
- The construction of section 5PB of the Civil Liability Act 2002 (WA) and whether the treating doctors breached their duties of care.
The Background
Ms Mabior was 16 months of age when she suffered burns to approximately 18% of her total body surface. She was admitted to the burns ward at Princess Margaret Hospital, but developed Systemic Inflammatory Response Syndrome (SIRS), Acute Respiratory Distress Syndrome (ARDS), and later, cardiac arrest, multi-organ failure, brain damage and cerebral palsy.
The Decision at Trial
At trial in the District Court of Western Australia, Derrick DCJ found that, but for the negligence of the treating doctors at PMH, Ms Mabior would not have developed ARDS to the extent that she did, and would not have suffered the consequential injuries.
The Issues on Appeal
- 11 grounds of appeal directed at challenging the finding made by Derrick DCJ that Ms Mabior was septic, and that sepsis continued to evolve until she was transferred to the Intensive Care Unit.
- 4 grounds of appeal challenging Derrick DCJ’s finding of breach of duty of care.
The Decision on Appeal
The Court of Appeal found no errors in Derrick DCJ’s assessment of the expert evidence and findings of fact, and ultimately dismissed the appeal on all grounds. Significantly, the Court of Appeal provided further observations regarding the construction of section 5PB of the Civil Liability Act (WA), finding that:
- Section 5PB sets the standard against which a defendant’s conduct is judged – it does not create a defence.
- A defendant seeking to rely on section 5PB to contest liability must plead the material facts concerning the applicability of section 5PB and identify ‘a practice’ that existed during the relevant time period.
- For section 5PB to be triggered, there must be evidence as to what the widely accepted practice is.
- For a practice to be “widely accepted” it is not necessary that is codified or otherwise formalised.
Implications for you
For a defendant seeking to rely on the benefit of section 5PB to contest liability, it is important to identify evidence as to what the relevant “widely accepted” practice is and then clearly set out the material facts that trigger section 5PB as part of the defence.
Child and Adolescent Health Service v Sunday John Mabior by next friend Mary Kelei [2019] WASCA 151
