Chapter 2 - LexisNexis

egarding breach of duty. An application for special leave to appeal to theHigh Court was refused: Gilchrist & Anor v Down [2010] HCATrans 24Return to table of contentsChapter 88.10 The ‘widely accepted’ defence• Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153.The evidence of an expert is not inadmissible merely because he or she ismaterially interested in the proceedings. Such matters go to weight and notadmissibility.• Hawes v Holley [2008] NSWDC 147. Consideration of alleged failure to treatpatient by pharmacological means to avoid need for abdominal surgery, incircumstances where complications of the abdominal surgery later occurred.• Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505. Consideration ofregional variations in widely accepted practice: see [550] ff.• Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC1282. Negligence at common law not found, but in any event ‘widelyaccepted’ defence capable of application: see [142] ff.• MD v Sydney South West Area Health Service [2009] NSWDC 22 held thatthe ‘widely accepted’ defence must be pleaded (in NSW) for a defendant torely on the defence at trial. Confirmed on appeal in Sydney South West AreaHealth Service v MD [2009] NSWCA 343.• Kocev v Toh [2009] NSWDC 169. Chiropractic treatment. Negligence atcommon law not found , but in any event ‘widely accepted’ defence capable ofapplication: see [80].Note: Mark Williams, DLA Phillips Fox, suggests that whilst South Australia’sprovision is similar to that of New South Wales, the other jurisdictions have asubtle but significant wording difference which may give rise to a differentapproach to that taken in New South Wales. See M Williams, Proving medicalnegligence across Australia, DLA Phillips Fox Health Law Bulletin May 2009.8.10 The irrational and other exceptions• In the absence of a decision thus far in which a defendant has been foundnegligent and then has successfully called upon the widely accepted defence, itfollows that the irrational exception has of course yet to be applied so as tooverturn that defence.