South Western Sydney Local Health District v Gould

Makita (Australia) v Sproules (2001) 52 NSWLR 705; [2001] NSWCA 305 McKenna v Hunter & New England Local Health District [2013] NSWCA 476; [2013] Aust Torts Rep 82-156 Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 Ministry of Justice v Carter [2010] EWCA Civ 694 Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 Piwonski v Knight (2002) 83 SASR 400; [2002] SASC 310 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 Sydney South West Area Health Services v MD [2009] NSWCA 343 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: C Mah, "A critical evaluation of the Professional Practice Defence in the Civil Liability Acts" (2014) 37(2) University of Western Australia Law Review 74 D Villa, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Lawbook Co, 2018) Category: Principal judgment Parties: South Western Sydney Local Health District (Appellant) Robert Gould by his tutor Peter Gould (Respondent) Representation: Counsel: R Cheney SC and R Sergi (Appellant) A Stone SC and J Masur (Respondent)

Solicitors: Curwoods Lawyers (Appellant) Schreuder Partners (Respondent) File Number(s): 2017/00125757 Publication restriction: NiI Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWDC 67 Date of Decision: 30 March 2017 Before: Judge Levy SC File Number(s): 2014/91004

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Table of contents Basten JA 1 Meagher JA 8 Leeming JA 9 Uncontroversial factual evidence concerning antibiotic prophylaxis 16 The Therapeutic Guidelines - Antibiotic book 22 The rejection of the defence under s 5O 27 Sections 5B and 5O of the Civil Liability Act 28 Could s 5O be invoked by a corporate defendant? 31 The extent to which s 5O was raised in the litigation 35 The evidence of Dr Haertsch 40 The rejection of Dr Haertsch's evidence as irrational 43 The evidence of Professor Gatus 47 The rejection of Professor Gatus' evidence as irrational 62 The reasoning of the primary judge on s 5O should be rejected 68 The rejection of Dr Haertsch's and Professor Gatus' evidence was procedurally unfair 69 The test of irrationality applied by the primary judge 76 The text, context and purpose of "irrational" in s 5O(2) 84 Section 5O(1) is made out 98 The evidence of Dr Scott 106 Four miscellaneous points 113 The two-stage test applied by the primary judge 117 Conclusions on s 5O 130 Balance of the appeal: causation 131 Was the plaintiff exposed to contaminated water? 132 Was there osteomyelitis? 136 Would administration of gentamicin have made a difference? 137 Wet or dry gangrene? 139 Orders 148

1. BASTEN JA: The appellant was found liable in negligence to the respondent for the treatment of the respondent's injured thumb. There was evidence that those for whom the appellant was responsible acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That being so, unless the opinion could be rejected as "irrational", the appellant did not incur liability, pursuant to s 5O of the Civil Liability Act 2002 (NSW).
2. I agree with Leeming JA that the respondent's claim should have been dismissed under s 5O. I also agree with his reasons, but would add the following observations, none of which is by way of qualification.
3. The trial judge, as explained by Leeming JA, treated the terms "unreasonable" and "irrational" as synonyms. At least in some circumstances they are not synonyms. The description of a decision as unreasonable will involve the application of an extrinsic standard to an outcome, regardless of the thought processes of the decision-maker; "irrationality" usually describes the process of reasoning of the decision-maker. Thus, a decision might be described as irrational even if there were a logical basis for it, if the decision-making process were arbitrary.
4. Arguably, "irrational" has more than one meaning in relation to a decision under consideration by a court. In a strong sense, it may mean that the court can see no process of logical reasoning by which the decision could be reached. In this sense, it may not be dissimilar to extreme unreasonableness, because an objective standard of logicality has been applied to the outcome. However, "irrational" may be used in a weak sense to refer to the particular process of reasoning adopted by the maker of the impugned decision.
5. The distinction between unreasonableness and irrationality in the weak sense can be important where the court cannot stand in the shoes of the decision-maker. An unreasonable decision cannot usefully be reconsidered by the decision-maker; an irrational decision can be, if the decision had in fact been made by tossing a coin, but could be justified on rational grounds. "Could" does not mean "must"; the decision-maker may properly decline to adopt the same outcome when applying correct reasoning.
6. In s 5O, "irrational" is being used in the strong sense. If the conduct is judged by reference to a standard widely accepted by the person's peers, it will often not be possible to know why particular individuals accepted it, and it does not matter. It will only be if the court can, on the evidence, be satisfied that there is no rational basis for it that it can properly be rejected.

Uncontroversial evidence concerning antibiotic prophylaxis

1. There was a deal of common ground as to the appropriate antibiotic response to an open wound such as that suffered by the plaintiff on 22 August 2011.
2. First, it was common ground that antibiotics should be administered to prevent bacterial infection. Associate Professor John Raftos (called by the plaintiff) said that open fractures are prone to infection because bacteria from the skin and from the environment have direct access to the bone. Bone infection, known as osteomyelitis, significantly increases the likelihood of permanent disability or amputation. The immediate medical management of open fractures is aimed at minimising the risk of infection.
3. Secondly, in the case of clean wounds, such as a cut with a knife, the most likely source of bacterial infection is bacteria living on the skin, especially, staphylococcus aureus. Flucloxacillin is a penicillin-derived, narrow spectrum antibiotic which is specifically active against staphylococcus aureus. Flucloxacilin was administered intravenously to the plaintiff at Campbelltown hospital.
4. Thirdly, there is a class of antibiotic drugs known as cephalosporins. The parties provided joint responses to inquiries from the primary judge in relation to the "second generation cephalosporins" referred to in the pleading. They confirmed that cephazolin was a first generation cephalosporin. (It is not clear to me that the evidence established what second generation cephalosporins were; nothing turns on this for the purposes of this appeal.)
5. Fourthly, cephazolin was administered intravenously to the plaintiff from the late evening at Liverpool Hospital. The two experts called by the parties who gave concurrent evidence, Associate Professors Raftos and Gatus, agreed with the appropriateness of administering cephazolin to an open fracture such as that suffered by the plaintiff.
6. Fifthly, gentamicin is an antibiotic which is effective against "gram-negative" organisms such as those found in faecal matter. There was debate between the experts about the circumstances in which gentamicin should be administered, to which it will be necessary to refer in more detail.

The Therapeutic Guidelines - Antibiotic book

1. In 2011 the book called "Therapeutic Guidelines - Antibiotic" was in its 14th edition. It contained advice concerning the administration of antibiotics in particular categories, including open compound fractures. It recommended a range of antibiotics, depending on (a) whether the patient was hypersensitive to penicillin, (b) whether the soiling or tissue damage was severe, (c) whether devitalised tissue was present, and (d) whether there had been "significant fresh or salt water exposure". The antibiotic gentamicin was not recommended in that book.
2. The entirety of the section dealing with antibiotic prophylaxis of open fractures is reproduced in Annexure "A". The most salient portion was as follows: "COMPOUND (OPEN) FRACTURES Management of compound (open) fractures requires urgent orthopaedic consultation. Irrigation is a key component in preventing infection after an open fracture, as it serves to decrease bacterial load and remove foreign bodies. There is insufficient evidence to support the use of local antibiotic therapies such as beads. The patient with a compound fracture should have their immune status to tetanus assessed (see Table 19, p.294). Prophylaxis or early treatment directed particularly against Staphylococcus aureus should be given: di/flucloxacillin 2 g (child: 50 mg/kg up to 2 g) IV, 6-hourly. … If wound soiling or tissue damage is severe and/or devitalised tissue is present, use: … For patients with immediate penicillin hypersensitivity (see Table 2, p.40), or if there has been significant fresh or salt water exposure, use: Ciprofloxacin 400 mg (child: 10 mg/kg up to 400 mg) IV, 12-hourly or ciprofloxacin 750 mg (child: 20 mg/kg up to 750 mg) orally, 12-hourly PLUS EITHER Clindamycin 450 mg (child: 10 mg/kg up to 450 mg) IV or orally, 8-hourly OR Lincomycin 600 mg (child: 15 mg/kg up to 600 mg) IV, 8-hourly then clindamycin 450 mg (Child: 10 mg/kg up to 450 mg) orally, 8-hourly. Duration of treatment should be for 5 to 7 days, or longer if bone infection is established (see Table 3, p.44)."
3. The following matters follow from that section of the book: 1. The book does not in any circumstances recommend the administration of gentamicin. 2. The antibiotics administered to the plaintiff - initially flucloxacillin followed by cephazolin - were consistent with the advice in the book. 3. The final section extracted above required consideration of whether there had been "significant fresh or saltwater exposure", in which case a combination of antibiotics was to be administered.

The rejection of the defence under s 5O

1. The statement of claim is a sparse document which does not mention the Civil Liability Act. The defence relied, in terms, upon ss 5B and 5D (which govern breach and causation), and, by way of positive defence, asserted that, by its servants or agents, the local health district 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" so as to engage s 5O. There was no reply, and accordingly, there was an implied joinder of issue on the defence: UCPR r 14.27(2).

Sections 5B and 5O of the Civil Liability Act

1. Section 5B(1) of the Civil Liability Act provides that "A person is not negligent in failing to take precautions against a risk of harm unless" (a) the risk was foreseeable, (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. The provision is obviously informed by the formulation in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47; [1980] HCA 12, although the test of real (as opposed to far-fetched or fanciful) risk of harm has been replaced by a risk of harm that is "not insignificant" in s 5B(1)(b). It will be seen that s 5B does not in terms prescribe when there has been a breach of duty. Rather, it states a necessary condition absent which a defendant cannot be found to be negligent. "Negligence" is defined to mean, throughout Part 1A of the Act, "failure to exercise reasonable care and skill"
2. Section 5O provides as follows "5O Standard of care for professionals (1) A person practising a profession ('a professional') does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional 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. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
3. I shall return below to the construction of s 5O and how that section interacts with s 5B. For present, it suffices to note the following propositions, which I regard as uncontroversial: 1. it is settled that the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a "professional" and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice): Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]-[61] and Sydney South West Area Health Services v MD [2009] NSWCA 343 at [20]-[21], [51] and [58]; 2. it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted; 3. it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted; 4. subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence; 5. if the court considers that the opinion is irrational, then the section does not to that extent apply; 6. the test of "irrational" in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion.

Could s 5O be invoked by a corporate defendant?

1. The primary judge held that a body corporate such as the appellant could seek to rely upon s 5O: at [614]. Although there was no argument on the point in this Court, there appears to be a more straightforward way, which avoids the awkwardness of a body corporate practising a profession, by which s 5O was available.
2. The statement of claim failed to articulate the existence of a duty of care, its content, by whom it was owed, or the risk of harm against which reasonable precautions should have been taken. Unsurprisingly, no attempt was made at trial to articulate the basis on which the local health district was said to be liable, ie directly through breach of a non-delegable duty, or vicariously, or otherwise.
3. The defence invoked s 5O by reference to the service provided "by its servants or agents", namely, the medical practitioners at Liverpool Hospital. That was an appropriate course, because the references in that section to a "person practising a profession" and to "peer professional opinion" are most naturally read as references to the conduct of medical practitioners, not to public health organisations such as the appellant. Although there was no allegation of vicarious liability, it would appear that the approach adopted at trial amounted to an implicit acknowledgement that the appellant was vicariously liable for any negligence by the practitioners at the hospitals it operated. Certainly, that was what was recorded by the primary judge at [483] and [612].
4. Section 3C of the Civil Liability Act provides that "Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort." That would appear to be a straightforward way by which the conclusion (which was common ground on appeal) is reached that the appellant obtained the benefit of s 5O.

The extent to which s 5O was raised in the litigation

1. At the conclusion of the trial, the plaintiff made no oral or written submissions in relation to the availability of s 5O. The question was raised by the judge, and leave was granted for the defendant to supply supplementary submissions on s 5O, which occurred on 17 March 2016. No submissions appear to have been made at any time on s 5O(2).
2. The primary judge considered that the four medical doctors who had given opinion evidence should each be considered as "peers" in Australia for the purposes of the section: at [618]. The four doctors were Associate Professor Raftos and Dr Mansour (called by the plaintiff) and Associate Professor Gatus and Dr Haertsch (called by the defendant).
3. The primary judge made no express finding that it was widely accepted in Australia in 2011 by peer professional opinion that it was competent professional practice to administer only a cephalosporin to a compound fracture such as that presented by the plaintiff on 22 August 2011. The appellant submitted that such a finding was implicit, because the primary judge could only reach s 5O(2) if his Honour had formed that view. I doubt whether that is so, although it is not necessary to express a concluded view.
4. However, at [623]-[635], the primary judge regarded the entirety of Dr Haertsch's opinions as being "irrational" within the meaning of s 5O(2). Further, at [636]-[672], the primary judge regarded the relevant opinions of Professor Gatus as likewise being irrational and not available to ground a defence under s 5O. It followed that the s 5O defence was not made out.
5. For the reasons given below, the reasoning of the primary judge that the opinions of the defendant's experts were irrational cannot be sustained, both because it was procedurally unfair, and because his Honour applied the wrong legal test. This Court can and should, in accordance with s 75A(10) of the Supreme Court Act 1970 (NSW), find that s 5O was a complete answer to the allegation that the failure to administer gentamicin was a breach of duty. That is dispositive of this appeal.

The evidence of Dr Haertsch

1. Dr Haertsch's evidence was admitted without objection. He was not required to attend for cross-examination. The plaintiff made no submission that his opinions were irrational within the meaning of s 5O(2). Indeed, s 5O(2) was not in issue at trial. Nor does it appear to have been raised by the primary judge in any of his Honour's communications with the parties towards the end of 2016, when judgment had been reserved for many months (there seem to have been at least four such communications, although this Court was told that some could not be located). It would therefore have come as a complete surprise to the parties that the entirety of Dr Haertsch's evidence was found to be irrational. It would also have come as a complete surprise to Dr Haertsch himself.
2. Dr Haertsch concluded that: "at no time have I found that the hospital and nursing staff of Liverpool Hospital in particular, that [at] the time the service was provided, they acted in a manner other than that which is accepted as competent professional medical practice."
3. Parts of Dr Haertsch's evidence may be passed over, because they went to a matter which was at issue at trial, but not on appeal (namely, whether the plaintiff should have undergone surgery on the evening of 22 August, rather than the morning of 23 August), although this evidence was also held to be "irrational". However, in relation to the antibiotics administered to the plaintiff, and in support of his general conclusion reproduced above, Dr Haertsch gave the following evidence: "d) I do not see any evidence that there was a failure to heed the manner in which he was injured. Given the nature of the injury I suspect that it was more blunt trauma, rather than a fall, however irrespective, he was given appropriate antibiotic therapy, given that he had a compound injury. e) There is no evidence to suggest that he was given other than an appropriate antibiotic regime, in fact at one stage he was also given Flagyl. I do not believe that Gentamycin was indicated, particularly in such a young child. f) There is no evidence that he was unnecessarily exposed to the risk of developing an osteomyelitis as a result of an untreated bacterial contamination of the wound. Whilst it is evident that he developed necrosis (gangrene) of the overlying skin, it was dry, suggesting an ischaemic event as opposed to an infective cause as an infective cause would have caused a wet gangrene."

The rejection of Dr Haertsch's evidence as irrational

1. The primary judge rejected Dr Haertsch's opinions because they were proffered "without soundly-based supporting reasoning" and were therefore irrational: at [626]. In one respect his opinion was said to be factually inaccurate, which the primary judge said "raises doubt about the logic, the completeness and the applicability of Dr Haertsch's analysis", in which sense the opinion was said to be "not reasonable, or soundly based, and it should therefore be seen as being an irrational view": at [627]. The primary judge considered that Dr Haertsch's reasons did not identify the mechanism of the plaintiff's injury and did not appear to have considered the various factual descriptions of the circumstances in which the injury occurred. The primary judge continued: "In the sense that Dr Haertsch's cited opinion involved an incomplete consideration of those relevant factual matters, it was not adequately reasoned, and it was therefore an unsound and irrational view": at [629].
2. Subsequently, at [630]-[631], his Honour further relied upon inadequate reasoning as to the basis of an opinion, invoking Makita (Australia) v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and Dasreef v Hawchar (2011) 243 CLR 588; [2011] HCA 21 in terms. This strand of the reasoning concluded: "Dr Haertsch's view did not deal with the relative risk of harm the plaintiff faced in the clinical setting, in juxtaposition with the relative incidence of side effects from antibiotics, irrespective of stratification of risk on account of the plaintiff's young age. Dr Haertsch's cited view was therefore irrational because it was not logically explained": at [630].
3. These matters were drawn together by the primary judge in his rejection as irrational of Dr Haertsch's analysis of causation. The primary judge said at [632] that Dr Haertsch: "… did not sufficiently expose his reasoning process, and it did not rationally deal with other relevant aspects of the evidence, such as the cited reasoned opinion of Dr Raftos to the contrary, which was supported by the observations of Mrs Gould cited at paragraphs [10] to [11] above, the matters contemporaneously recorded in the Campbelltown Hospital notes (Exhibit '1', Tab 2, pp 319; 341; 361), the contemporaneous nursing notes made at Liverpool Hospital on 6 September 2011; Exhibit '1', Tab 1, p 36, and Dr Raftos' interpretation of the photograph comprising Exhibit 'F'. The irrationality of Dr Haertsch's opinion arises from the absence of a reasoned analysis of these matters. Therefore, Dr Haertsch's views should be seen as being unreasonable and irrational on this point."

The evidence of Professor Gatus

1. Professor Gatus provided two reports, participated in a conclave with Professor Raftos and was cross-examined. Insofar as is relevant to appropriate antibiotic treatment, his evidence was as follows.
2. In his first report, he referred to the publication Therapeutic Guidelines - Antibiotic (2010). He said that the guidelines were "referred to widely by medical practitioners in this country" and to some extent were a "de facto standard".
3. Professor Gatus squarely addressed the particular of negligence that involved failing to use gentamicin. He said: "In 2011, Gentamicin did not appear in the recommendations found in Therapeutic Guidelines - Antibiotic (2010) for the prophylaxis of compound (open) fractures and therefore, the assertion this antibiotic should have been added to the antibiotic regimen was unsupported. The administration of flucloxacillin followed by cephazolin was in keeping with the recommendations found in Therapeutic Guidelines - Antibiotic (2010) and was commensurate with the nature of the injury and the clinical findings. The allegation (e) 'failed to use an appropriate antibiotic regimen including a second generation cephalosporin plus gentamicin' was not in keeping with the recommendations in 2011."
4. Professor Gatus's second report responded to the plaintiff's reports of Professor Raftos and Dr Mansour. Professor Gatus said that there were two important features of the history provided on 22 August 2011, namely, that the history did not indicate that a crush injury to the thumb had occurred and there was no immersion of the hand in water. Professor Gatus was conscious that the history given on 22 August was different from that obtained subsequently.
5. Much of the report was directed to the issue of causation, namely, whether the necrosis of the plaintiff's thumb was due to infection (associated with wet gangrene) or ischaemia (associated with dry gangrene). On the appropriate antibiotic prophylaxis, Professor Gatus referred to the paragraph from Therapeutic Guidelines - Antibiotic (2010) referred to above and its reference to "significant fresh or salt water" exposure. Professor Gatus explained: "The reason why ciprofloxacin is recommended as alternative prophylaxis for open fractures - if there has been significant fresh or salt water exposure - is that aeromonas species and vibrio species of bacteria might be found in fresh or salt water and therefore, might be a risk of infection occurring with these organisms. My interpretation of the comment in Therapeutic Guidelines - Antibiotic (2010) 'significant fresh or saltwater exposure' is that the word 'significant' implies immersion in water. The history given by Robert's grandmother is that he slipped and fell over on wet cement and this [is] not the same as being immersed in water. … The history of the accident as given by Robert's grandmother on 22/8/11 did not indicate significant fresh or saltwater exposure and my opinion is that ciprofloxacin was not required as anti-microbial prophylaxis." (original emphasis)

The rejection of Professor Gatus' evidence as irrational

1. The evidence of Professor Gatus was also admitted without objection. Unlike Dr Haertsch, Professor Gatus participated in an expert conclave and gave concurrent evidence with Professor Raftos. Unlike Dr Haertsch, Professor Gatus' opinions were accompanied by fully articulated reasons. However, no differently from Dr Haertsch, it was not put to Professor Gatus that his evidence was irrational.
2. Once again, the primary judge rejected all salient aspects of Professor Gatus's evidence as irrational within the meaning of s 5O(2): at [636]-[672]. The primary judge's main criticism insofar as was relevant to the appropriate antibiotic prophylaxis was grounded in his acceptance of Professor Raftos's evidence that treatment should be administered on a case-by-case basis rather than on an epidemiological basis. Thus, at [643], the primary judge said: "On the issue of antibiotic prophylaxis the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship, without considering the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed, must be seen to be an irrational approach."
3. In doing so, his Honour referred back to what he had said on this topic hundreds of paragraphs earlier in his judgment. The fullest statement of the primary judge's views is found at [407]-[409]: "In articulating his view about the inappropriate use of antibiotics, Professor Gatus disagreed with Professor Raftos' view that the guidelines were to be applied clinically according to the experience of the clinician. In rejecting that proposition, Professor Gatus did not accept that the use of guidelines for determining which antibiotic to use should be considered on a case by case basis, referring to such an approach as being [practice] according to whims: T130.13 - T130.39. I consider that his answer to that effect to be unduly dismissive of the clinical decision-making process. It fails to adequately explain how the relative risk to the patient, and the patient's specific antibiotic needs, is balanced against the principles of antibiotic stewardship in cases where a clinician gives consideration to the pros and cons of administering an antibiotic to which stewardship considerations might ordinarily apply. Accordingly, I consider Professor Raftos' views on this issue should be preferred on grounds of rationality. I considered Professor Gatus' commentary in that regard to be misdirected, and overstated in the context of determining the reasonable treatment needs of the plaintiff according to the requirements of the need to appropriately discharge the duty of care owed. In that regard, I consider that an analytical process achieved by a reasoned clinical judgment, as explained by Professor Raftos, should prevail over an approach that involves adherence to general guidelines simply because they exist. This is so especially where there is a risk that if such guidelines are applied according to considerations that place the interest of promoting adherence to guidelines of general application ahead of the best interests of the individual patient. It must be recognised that it is the patient who carries the risk of an adverse outcome if inadequate consideration is applied to the reasonable treatment needs of that patient."

The reasoning of the primary judge on s 5O should be rejected

1. There are two difficulties with the reasoning process of the primary judge: it was procedurally unfair and it misapplied the test in s 5O(2).

The rejection of Dr Haertsch's and Professor Gatus' evidence was procedurally unfair

1. Mason CJ and Gaudron J said in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7; [1990] HCA 11: "[P]leadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities." See also Krnjulac v Lincu [2015] NSWCA 367 at [15]-[18].
2. If the defendant's peer professional opinion evidence in support of its defence under s 5O(1) were to be disregarded because it was irrational within the meaning of s 5O(2), then one of three things needed to have occurred. Ideally, s 5O(2) would have been pleaded, and thus whether the evidence was irrational would have been raised as an issue on the pleadings (in most cases, including the present, that would have required a reply). Alternatively, the parties might have chosen to depart from the issues raised in the pleadings to fight the case on that basis. A further alternative is suggested by the way in which s 5O(2) is directed to courts. It is possible that both parties might accept that the peer professional opinion evidence which had been adduced was not irrational, but that the court might consider that it was. This might be thought to be unlikely, having regard to the nature of litigation, but it is possible. In that case, it would be necessary for the court to raise with the parties the prospect that the evidence might be considered irrational, so as to give them an opportunity to be heard (and, if appropriate, adduce evidence directed to that prospect).
3. Section 5O(2) was not pleaded, nor mentioned throughout the trial. Nor was it suggested at any stage that the defendant's peer professional opinion evidence was irrational. After hearing final submissions, the primary judge invited the parties to provide further submissions directed to whether s 5O was available to a corporate defendant. The defendant supplied further submissions; if the plaintiff did, they were not provided to this Court. Once again, neither in the invitation from the primary judge or in the submissions supplied was there any mention of irrationality.

The test of irrationality applied by the primary judge

1. Moreover, even if a procedurally fair course had been adopted, the test of irrationality required by s 5O(2) is not that applied by the primary judge. There were three elements in his Honour's reasons. 1. First, the primary judge followed an approach he had previously taken in Hope v Hunter and New England Area Health Service [2009] NSWDC 307 at [174]. In the earlier decision, his Honour said that "irrational" did not mean "without reasons", but rather referred to "reasons that are illogical, unreasonable or based on irrelevant considerations". His Honour gave no explanation for that construction. Likewise, his Honour gave no explanation in the present judgment for applying the same test. 2. Secondly, his Honour added, at [620], that he regarded the term as being used "in the non-pejorative sense". What his Honour intended to convey by that is not clear, although this may explain the readiness with which the primary judge was able to be satisfied of irrationality sufficient to engage s 5O(2). 3. Thirdly, his Honour then proceeded to give dictionary definitions of "unreasonableness", namely, as meaning "without sound or logical reasons, or not endowed or guided by reason": at [621].
2. This is a relatively extreme example of reliance on dictionaries as a substitute for applying the principles of statutory construction. It led to error. Because variants of it recur, it may be worth seeking to explain the error in some detail.
3. The legal meaning of a statutory term is but rarely assisted by resort to a dictionary definition. On at least three occasions, joint judgments of a majority of the High Court have approved Learned Hand J's statement in Cabell v Markham 148 F 2d 737 at 739 (1945) to the effect that a mature and developed jurisprudence does not "make a fortress out of the dictionary". In Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49], French CJ, Heydon, Crennan and Bell JJ said that there was a well-recognised danger in making a fortress out of the dictionary when interpreting a statute. See also Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [27] and Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23]. The fact that one of the meanings in a dictionary may support the legal meaning of a statutory term chosen by a court does little to provide a basis for a conclusion as to legal meaning. It often does no more than to provide the illusory comfort that the court's construction is supported by common usage. Mason P, with whom Stein and Giles JJA agreed, endorsed the remark of Randolph J of the United States Court of Appeals for the District of Columbia Circuit, writing extra-judicially: "[C]iting ... dictionaries creates a sort of optical illusion, conveying the existence of certainty - or 'plainness' - when appearance may be all there is": House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].

The text, context and purpose of "irrational" in s 5O(2)

1. "Irrational" is a strong word as a matter of ordinary English. It is unquestionably pejorative in this context. One may disagree with the correctness of the evidence of a witness without regarding it as irrational, a point noted by Basten JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 at [89]. In hundreds of trials each day in Australia, courts reject the evidence of witnesses for reasons which fall short of considering their evidence to be irrational.
2. Further, the section must be read as a whole. Subsection 5O(2) is to be read with subsections (3) and (4). It will be seen that s 5O proceeds on the basis that there may be more than one widely held body of peer professional opinion, each inconsistent with the other, but none of which is necessarily irrational. Adherence to any of those bodies of peer professional opinion - so long as it is widely accepted in Australia - would render a professional defendant not liable. Perry J made the point in Piwonski v Knight (2002) 83 SASR 400; [2002] SASC 310 at [74] that it was impossible for a surgeon to adopt every procedure which some but not all competent surgeons recommended, because some were mutually inconsistent alternatives. That does not mean that any of the mutually inconsistent views was irrational. To the contrary, it emphasises the strength of a conclusion that peer professional opinion is irrational.
3. The test of irrationality imposed by s 5O(2) is quite distinct from the test of admissibility. Indeed, peer professional opinion evidence does not fall to be considered for the purposes of s 5O until it has been admitted.
4. The test posed by s 5O(2) is not a substitute for rejecting evidence admitted without objection on the basis that it fails to comply with the exception to the opinion rule now found in s 79 of the Evidence Act 1995 (NSW). Nor is it applicable when an expert opinion is dependent upon making good particular assumptions, which are not established on the evidence.
5. Nor is the test for irrationality under s 5O(2) satisfied when the basis for a practice is unexplained, or, as the primary judge put it, "oracular". Competent professional practice to administer lime juice to treat and to ward off scurvy amongst sailors preceded by many decades any understanding of the role of vitamins in human health. The fact that the reasons given in the late 18th and 19th centuries for the practice were wrong, or non-existent, did not make the practice irrational. (It was known to work.)

Section 5O(1) is made out

1. On the principal disputed issue of competent professional practice, namely the administration of appropriate antibiotics, the primary judge summarised the essence of the dispute between Professors Raftos and Gatos as one which distinguished between the specific antibiotic needs of an individual with epidemiological principles of antibiotic stewardship. It is plain that there may be a divergence of professional opinion on a subject of that nature. Should relatively scarce and expensive antibiotic drugs be administered frequently, to the advantage of those patients, but to the possible disadvantage of future patients who are infected with resistant organisms, or cautiously, and in the light of evidence-based guidelines, so as to preserve the efficacy of existing antibiotics for a longer term? Such choices, between the immediate interests of the individual and the broader interests of the community, recur throughout the field of medicine.
2. If the issue for the Court was merely to determine which of those two views was preferable, then, as the respondent submitted, it would be one for the acceptance by the primary judge of the evidence which seemed most persuasive and cogent. But that is not the issue. I do not consider that either opinion can be said to be "irrational". The reasoning of the primary judge at [643], which is reproduced above, regarded "the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship", which did not consider "the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed", as irrational. When the true force of "irrational" in s 5O(2) is borne in mind, that reasoning cannot stand.
3. Ultimately, the dispute was refined. It was whether, as Professor Raftos maintained, it was appropriate to consider the administration of gentamicin, or else, as Professor Gatus maintained, in light of the Therapeutic Guidelines - Antibiotic, it was not necessary even to do that.
4. That more refined dispute need not be resolved, even assuming it were possible to do so. It is sufficient to conclude that the defendant had established that there was a practice which was widely accepted in Australia by peer professional opinion as competent. That practice was to administer the antibiotics which were in fact administered, and no more, unless there were significant exposure to water. Further, the evidence of Professor Gatus and Dr Haertsch supported the conclusion that the practice stated in the Therapeutic Guidelines - Antibiotic was widely held across Australia.

The evidence of Dr Scott

1. There was further evidence to support the conclusions of a widely accepted practice which was not irrational, namely, the evidence of Dr Christopher Scott. He was the surgeon who operated on the plaintiff's hand on 23 August 2011. He, together with Dr Geraghty, participated in a decision to administer cephazolin intravenously commencing shortly before midnight on 22 August. Dr Scott was asked why he had agreed to that prescription, and said "that's standard in my coverage for any traumatic wound in the hand, apart from, essentially, dog bites". He confirmed that that was the standard treatment as at August 2011, and was then asked the following questions by the primary judge: "HIS HONOUR: When you say standard treatment, do you mean at that hospital? A: At every hospital I've worked at, apart from one in New Zealand. They had a different antibiotic that they were able to give. Q: So do they follow the Westmead protocols? A: No. They would follow the 'Therapeutic Guidelines - Antibiotics', which I assume Westmead would also cover, but different hospitals might have different guidelines."
2. He was then asked to what hospitals did his experience relate, and confirmed that his experience did not merely relate to Liverpool and Fairfield Hospitals, but also to further hospitals: "Throughout my training as a registrar. So, when I worked at Westmead we were giving Cephazolin. Royal Prince Alfred, Royal North Shore, St Vincent's Hospital, Nepean Hospital."
3. Dr Scott (like all the lay witnesses) had not served a witness statement and his evidence in chief was led. Immediately before he was called, there was debate between Mr Sergi and the primary judge as to the content of his evidence. Mr Sergi confirmed that Dr Scott's evidence was to be restricted to factual matters, and the primary judge indicated that, to the extent he might be asked to give opinion evidence, "the rules must be complied with". That is to be read as a reference to UCPR r 31.28, which renders inadmissible oral expert evidence which has not been the subject of a report served 28 days previously (unless leave is granted in exceptional circumstances). The primary judge confirmed that "there'll be no difficulty over his giving evidence over his treatment plan and why he selected that plan", and there was a debate about s 5O: "HIS HONOUR: There's one other aspect of Dr Scott's opinion I need to be informed about. Will you be seeking to elicit from him evidence as to peer professional opinion in Australia? SERGI: No. HIS HONOUR: But for the s 5O defence? SERGI: No."

Four miscellaneous points

1. The Court was taken to the printed form from Campbelltown Hospital's emergency department. The form stated in bold capitals "NO VANCOMYCIN, GENTAMICIN OR THROMBOLYTIC DRUGS". The Court was told that no reliance was placed on this form at the trial, and it may be that it reflected some qualification not obvious on its face (perhaps it was confined to patients who were children). I have therefore placed no reliance upon it in reaching the conclusions expressed above. Nevertheless, it does not detract from the testimonial evidence that there was a widespread practice that gentamicin was not administered as a matter of course.
2. Different views have been expressed in this Court as to whether it is necessary to identify a particular "practice" in order to engage s 5O. The distinction was captured by Simpson JA in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 at [332], as to whether the reference to "practice" is a reference to the practice of the relevant profession, or more narrowly to a particular specific practice or method of providing the services. The latter was favoured in McKenna v Hunter & New England Local Health District [2013] NSWCA 476; [2013] Aust Torts Rep 82-158, however, an appeal was allowed by the High Court on the anterior question of duty: Hunter & New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44. In Sparks v Hobson; Gray v Hobson, Basten JA and Simpson JA favoured the former, while Macfarlan JA favoured the latter, with Basten and Simpson JJA expressing different views as to the precedential weight to be given to this Court's earlier decision. That divisive issue may be put entirely to one side for the purposes of this appeal. On any view, the practice of administering antibiotic prophylactic following an open fracture which was confined to flucloxacillin and cephazolin and did not extend to gentamicin - a practice which is set out in the fairly mechanical decision-tree in the Therapeutic Guidelines - Antibiotic - is a "practice" capable of engaging s 5O.
3. It may also be noted that the plaintiff's case was not that gentamicin should have been considered, but that it should have been administered. As refined in the expert witness process, Professor Raftos' opinion did not rise to what was required to make out the plaintiff's pleaded case. Thus, based on the history given to the hospitals, the plaintiff failed to show that it was appropriate to administer gentamicin.

The two-stage test applied by the primary judge

1. Ground 2(a) of the appeal was that the primary judge erred in failing to determine the standard of care by reference to the evidence of what was regarded by peer professional opinion as competent professional practice.
2. Instead, the primary judge expressly applied a two stage test. First, under the heading "Issue 3 - Breach of duty of care", his Honour applied ss 5B and 5C at [489]-[579] finding a series of breaches, including at [543]-[555] a finding that the "failure to provide the plaintiff with gentamicin for antibiotic prophylaxis whilst in hospital constituted a breach of the duty of care" which continued until the plaintiff was discharged. His Honour's reasoning and conclusions as to causation (at [580]-[607]) turn upon the breaches so found. Then, under the heading "Issue 6 - Defence based on s 5O of the Civil Liability Act 2002", his Honour addressed s 5O (at [608]-[693]).
3. The appellant submitted that s 5O altered the standard of care against which breach of duty was assessed. The respondent did not submit to the contrary. That submission should be accepted.
4. The issue arose in Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 as to whether, in a case where a defendant invoked s 5O, the plaintiff bore the onus of proving that the professional services provided by the defendant were not widely accepted in Australia by peer professional opinion as competent professional practice, or whether the defendant bore the onus of making out the converse. The parties appear to have framed that issue as whether s 5O operated "as a defence". That can be an ambiguous way of formulating an issue: see White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 at [103]-[105]. What matters is which party bears the evidentiary and legal onus of establishing a particular element of a cause of action or a defence. Further, the term "defence" may not capture the subtlety of a complex provision such as s 5O, whose availability turns on establishing the preconditions in s 5O(1), but which is also subject to disapplication by s 5O(2),
5. Giles JA, with whom Ipp and Basten JJA agreed, rejected the bald submission that the plaintiff bore the onus of proof. His Honour traced the history of the "Bolam principle", its rejection by the High Court in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 and its partial reinstatement in s 5O. His Honour said that apart from s 5O, the Court would have regard to evidence as to acceptable professional practice, but would not be obliged to accept that evidence. In particular, his Honour said that a court "would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others": at [59]. Giles JA then stated that, in contrast: "Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care." [Emphasis added.]

Conclusions on s 5O

1. For the foregoing reasons, the opinions of Professor Gatus and Dr Haertsch that gentamicin need not, or even should not, have been administered accorded with competent professional practice which was, in 2011, widely accepted in Australia by peer professional opinion, and which was not irrational. The administration of antibiotics to the respondent conformed with that practice. It follows that s 5O applied and there was no liability in negligence. On that basis, the appeal should be allowed.

Balance of the appeal: causation

1. In its other grounds of appeal, the local health district raised a series of challenges to the factual findings made by the primary judge. In light of the foregoing, these challenges have no impact upon the outcome of the appeal. It will be seen that most are capable of being resolved concisely, although some are more problematic.

Was the plaintiff exposed to contaminated water?

1. The local health district submitted that the evidence did not permit the primary judge's finding that the respondent was exposed to contaminated water. The primary judge found that the history of slipping on a wet cement floor was incorrect and said at [109] that the unchallenged mechanism of the injury was as follows: "On 22nd August 2011, when he was 8 years of age he was playing with his friends in a canal drain. He was throwing huge boulders into the water when he slipped on the slime on the rocks and fell backwards. The boulder he had been holding in his hand came down and crushed his left thumb."
2. That description leaves unresolved the quality of water in the drain. It also leaves unresolved whether the plaintiff's hand came into contact with the water, or with a wet surface on the drain, or with a surface which had been splashed by boulders previously thrown into the drain, or with the slime on the rocks, or else failed to come into contact with any wet surface at all.
3. The local health district pointed to the somewhat different finding at [599]: "I therefore conclude that at the time of his injury, the plaintiff's left thumb most probably became infected by environmental exposure to the Aeromonas hydrophila organism, probably in affected water on the concrete or the cement surface with which the plaintiff's thumb had made contact at the time of injury. I infer that surface was not clean by reason of the fact that it had become wet from water that was most probably not clean by the time such injurious contact occurred."
4. The appellant supplied a statement in purported compliance with r 51.36(2), identifying this finding as one which it challenged. However, it failed to identify all of the evidentiary references bearing on this issue (it pointed to two paragraphs in its written submissions, but those paragraphs merely referred to the passages from the judgment at first instance referred to above). There was a deal of evidence bearing upon what had in fact occurred than is summarised above, but on the approach taken by the appellant, it is not necessary to summarise it, and an attempt to do so might well be incomplete. It is not for this Court, in order to resolve a factual challenge advanced by an appellant, to trawl through the entirety of the record in order to collect and then evaluate the relevant evidence. It is open to conclude that the stormwater canal which was wet and had slime growing on it would, more likely than not, have been "contaminated" in the presently relevant sense, which is simply to say that it contained the bacteria ultimately found to have been present on the plaintiff's thumb. I do not consider the differences between [109] and [599] disclose appellable error; the latter is consistent with the former. Based on the limited submissions advanced on appeal, I would not conclude that the finding of the primary judge is one which should be disturbed on appeal.

Was there osteomyelitis?

1. The local health district challenged the finding of osteomyelitis. There was evidence that the only way of definitively testing for osteomyelitis was microscopic examination of the bone. That did not occur. However, there was also contemporaneous evidence from a record made by Dr Scott, immediately after the amputation, of "probable osteomyelitis", in connection with advice that the plaintiff would need further antibiotics. Osteomyelitis was not seen on x-rays at the time, but Dr Sathasivam said, uncontroversially, that "osteomyelitis only appears on X-ray [when] well advanced". That was more than sufficient to ground a finding of osteomyelitis.

Would administration of gentamicin have made a difference?

1. The local health district submitted that if the thumb had been crushed, such that there was no blood supply, then no administration of any intravenous antibiotic would be effective, because it would not be conveyed to the site of the injury. It was said that the plaintiff bore the onus of proving, on the balance of probabilities, every fact relevant to the issue of causation and had not adduced evidence to say that the crush injury, although serious, would still have left his capillaries sufficiently intact to transport the drug to the plaintiff's thumb.
2. I would reject this submission. It is inconsistent with the contemporaneous notes, and inconsistent with competent practice. The plaintiff's injury was assessed, in difficult circumstances, when two "category 2" patients were occupying the operation theatres. A decision was made for him to be operated on the following morning. That decision was made after Dr Scott tested the thumb for blood supply and made a note to the effect that "capillary return present in digit". I would not set aside the judge's finding that there was blood supply to the thumb in the evening of 22 August 2011.

Wet or dry gangrene?

1. The causal mechanism found by the judge was that the failure to administer gentamicin more likely than not led to infection of the bone and consequent gangrene in the left thumb leading to its amputation. The parties treated aspects of the challenge to causation as binary: was there "wet gangrene" or "dry gangrene"? The local health district submitted that the plaintiff's thumb was lost because it was necrotic as a result of irreparable damage to the vascular system, rather than an infection. It is not clear to me that these issues are as clearcut as the parties regarded them, but I proceed on the basis adopted by the parties and the primary judge.
2. A symptom of a gangrenous digit is that it appears black. There is no doubt that the plaintiff's thumb appeared black some days after the surgery. There was conflicting contemporaneous evidence as to whether the death of tissue at the tip of the thumb was caused by infection or lack of blood. There was one contemporaneous note which went directly to the issue. On 6 September 2011 Dr Sathasivam inspected the thumb and recorded: "Post crush injury l thumb Necrotic dorsal distal aspect of thumb Dry gangrene P will discuss [Dr Scott] → repeat x-ray"
3. Dr Sathasivam was called in the defendant's case and gave evidence that by recording "dry gangrene" he was recording that there was no evidence of any wet gangrene, which he identified by certain signs. He had no independent recollection of attendance upon the plaintiff and was merely interpreting his notes from that occasion. He stated that his "P" indicated a plan to discuss with Dr Scott, following which discussion both agreed on a plan to repeat an x-ray. It was not put to Dr Sathasivam that his record of "dry gangrene" could have been erroneous.
4. The primary judge was conscious that the factual correctness or otherwise of Dr Sathasivam's note was not challenged by cross-examination: at [19]. Nevertheless, his Honour rejected it at [569] as not being reliable. His Honour favoured various competing pieces of evidence, including other contemporaneous records of symptoms consistent with wet gangrene.
5. Mr Stone submitted that the failure to confront Dr Sathasivam with the evidence supporting a diagnosis of wet gangrene did "not matter very much", because the doctor had made it plain that he had no distinct recollection of what had occurred some five years earlier when he had examined the plaintiff's thumb.

Orders

1. For those reasons, the appeal must be allowed, the judgment in favour of the respondent set aside, and instead the proceedings must be dismissed.
2. Section 77 of the Civil Procedure Act 2005 (NSW) required any money paid pursuant to the judgment to be paid into court or to the NSW Trustee and Guardian. Order 5 made on 30 May 2017 reflected that obligation. It is not clear from the materials whether any money has in fact been paid, or whether there has been a stay of execution. But whether or not that is so, it seems unlikely that orders need to be made for restitution. In any event, no such orders were sought in the notice of appeal.
3. There seems to be no reason to displace the ordinary rule in UCPR r 42.1 that costs follow the event at first instance and on appeal. However, the respondent should have a certificate under the Suitors' Fund Act 1951 (NSW). The orders made at first instance suggest that one or more offers of compromise or Calderbank offers were made, the details of which this Court is unaware. If there be a basis for altering the orders as to costs, that may be made by notice of motion filed within 14 days' of judgment, in accordance with UCPR r 36.16.
4. I propose these orders:
5. Appeal allowed.
6. Set aside the judgment and orders 1, 2 and 5 made on 30 March 2017, and in lieu thereof, order that the proceedings be dismissed.
7. The respondent to pay the appellant's costs at first instance and on appeal, but to have a certificate under the Suitors' Fund Act 1951 (NSW).

annexure "A" "COMPOUND (OPEN) FRACTURES Management of compound (open) fractures requires urgent orthopaedic consultation. Irrigation is a key component in preventing infection after an open fracture, as it serves to decrease bacterial load and remove foreign bodies. There is insufficient evidence to support the use of local antibiotic therapies such as beads. The patient with a compound fracture should have their immune status to tetanus assessed (see Table 19, p.294). Prophylaxis or early treatment directed particularly against Staphylococcus aureus should be given: di/flucloxacillin 2 g (child: 50 mg/kg up to 2 g) IV, 6-hourly. For patients hypersensitive to penicillin (excluding immediate hypersensitivity, see Table 2, p.40), use: cephazolin 2 g (child: 50 mg/kg up to 2 g) IV, 8-hourly. For patients with immediate penicillin hypersensitivity (see Table 2, p.40), use: Clindamycin 450 mg (child: 50 mg/kg up to 450mg) IV or orally, 8-hourly OR Lincomycin 600 mg (child: 15mg/kg up to 600 mg) IV, 8-hourly. Prophylaxis should be continued for up to 72 hours following injury, and discontinued 24 hours after wound closure. If presentation is delayed (8 hours or more), presumptive early treatment should be given for 5 to 7 days, but continued for longer if bone infection is established (see Table 3, p.44). If wound soiling or tissue damage is severe and/or devitalised tissue is present, use: piperacillin+tazobactam 4+0.5 g (child: 100+12.5 mg/kg up to 4+0.5g) IV, 8-hourly OR ticarcillin+clavidanate 3+0.1 g (child: 50+1.7 mg/kg up to 3+0.1 g) IV, 6-hourly FOLLOWED BY amoxycillin+clavulanate 875+125 mg (child: 22.5+3.2 mg/kg up to 875+125 mg) orally, 12-hourly. For patients with penicillin hypersensitivity (excluding immediate hypersensitivity, see Table 2, p.40), use: cephazolin 2 g (child: 50 mg/kg up to 2 g) IV, 8-hourly PLUS metronidazole 500 mg (child: 12.5 mg/kg up to 500 mg) IV, 12-hourly FOLLOWED BY cephalexin 500 mg (child: 12.5 mg/kg up to 500 mg) orally, PLUS Metronidazole 400 mg (child: 10mg/kg up to 400 mg) orally, 12-hourly." For patients with immediate penicillin hypersensitivity (see Table 2, p.40), or if there has been significant fresh or salt water exposure, use: Ciprofloxacin 400 mg (child: 10 mg/kg up to 400 mg) IV, 12-hourly or ciprofloxacin 750 mg (child: 20 mg/kg up to 750 mg) orally, 12-hourly PLUS EITHER Clindamycin 450 mg (child: 10 mg/kg up to 450 mg) IV or orally, 8-hourly OR Lincomycin 600 mg (child: 15 mg/kg up to 600 mg) IV, 8-hourly then clindamycin 450 mg (Child: 10 mg/kg up to 450 mg) orally, 8-hourly. Duration of treatment should be for 5 to 7 days, or longer if bone infection is established (see Table 3, p.44)."

Amendments 16 April 2018 - [77] - change "reliance of dictionaries" to "reliance on dictionaries"

[84] - change "evidence of witness" to "evidence of a witness"

[137] - change "adduced adduce evidence" to "adduce evidence"

[137] - change "in sufficient tact" to "sufficiently intact"

[144] - change "to be have been" to "to have been" 26 April 2018 - [145] - fourth line - "not open to accept" corrected to "not open not to accept";

[145] - seventh line - quotation marks added after the words "Third Supplementary Submission" 26 April 2018 - 19 February 2019 - [11] - "regime" changed to "regimen" [14] - "and" added before "(c)" [27] - UCPR "14.7(2)" changed to "14.27(2)" [41] - "that the time" changed to "that [at] the time" [43] - "primary opinion" changed to "cited opinion" [44] - Sproules" changed to "Sprowles" [60], [62] - "Dr Raftos" changed to "Professor Raftos" [65] - "the" deleted before "Professor Raftos" [79] - "perfomed" changed to "performed" [80] - "House of Peace at [25]" changed to "House of Peace at [28]" [93] - quotation marks removed around words "it is not … reasonable and responsible" [111] - "Sparks v Hobson at [345]" changed to "Sparks v Hobson at [342]" [114] - "Sparks v Hobson at [335]" changed to "Sparks v Hobson at [332]" [114] - "[2013] Aus Torts Rep 82-156" changed to "[2013] Aus Torts Rep 82-158" [142] - "at [15]" changed to "at [19]" [145] - "No explanation given" changed to "No explanation was given" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2019