CLA Professional Liability Exemption

In this article Richard Douglas QC addresses the operation of s 22 of the Civil Liability Act 2003 (Qld) which affords a defence to professional liability claims, founded on the touchstone of peer practice compliance.

Introduction

Prior to the enactment of the Ipp legislation in the Australian states and territories, the common law jurisprudence of Australia and the United Kingdom respectively, concerning proof of breach by a professional of contractual or tortious  obligation, was divergent.

In the United Kingdom, the Bolam¹ principle was operative.  That provided that a professional, in dealing with a client, ought adhere to practices adopted by competent members of the relevant profession.  Upon doing so the professional would be acquitted of any civil liability for damages for alleged negligence, that disposition caveated only by a case in which the court found the body of professional opinion adduced as to the adopted practice “cannot be logically supported”.²

In contrast, in Australia, the Rogers³ principle was operative.  That provided that, in procedural and (a fortiori) advisory negligence causes, “professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court might reasonably act”.⁴  The standard of care, however, was one for the court to adjudicate, being deferential, not slavish, to peer evidence as to competent professional practice.⁵ 

In 2002 the Ipp Committee⁶ recommended statutory variation to the calculus of adjudication of professional liability.  The committee resisted pressure from the medical profession to adopt a statutory Bolam rule for adjudication of primary liability.  Rather, they recommended  retention of the Rogers principle “modified” by a redrawn Bolam test, expressed so as to filter fringe practices having their genesis in isolation from the mainstream of professional activity.⁷

Such recommendation, with variation, was adopted by the Queensland legislature. 

In doing so, Queensland adopted, with little linguistic variation, the earlier Ipp legislation template enacted in New South Wales.  Thus the authorities decided in that state inform the construction of the Queensland enactment.

Section 22 of the Civil Liability Act 2003 (Qld) (“CLA”) was enacted, and remains, in these terms:

22 Standard of care for professionals
(1) A professional does not breach a duty arising from the
provision of a professional service if it is established that the
professional acted in a way that (at the time the service was
provided) was widely accepted by peer professional opinion
by a significant number of respected practitioners in the field
as competent professional practice.
(2) However, peer professional opinion can not be relied on for
the purposes of this section if the court considers that the
opinion is irrational or contrary to a written law.
(3) The fact that there are differing peer professional opinions
widely accepted by a significant number of respected
practitioners in the field concerning a matter does not prevent
any 1 or more (or all) of the 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.
(5) This section does not apply to liability arising in connection
with the giving of (or the failure to give) a warning, advice or
other information, in relation to the risk of harm to a person,
that is associated with the provision by a professional of a
professional service.

The purpose of this article is to address the character and operation of s 22.

Application

Section 22(1) identifies the circumstance of invocation as being “breach of duty arising from the provision of a professional service”.  The term “duty” is defined by the CLA Schedule 2 dictionary as including “a duty of care in tort” and “a duty of care under contract that is concurrent and co-extensive with a duty of care in tort”.

In the result that entails operation of s 22 only in respect of a cause of action for breach of a duty to exercise reasonable care whether owed in contract or tort.

Contrast with this a cause of action founded:

• in contract, for breach of an express term prescriptive in character, the same transcending the exercise of reasonable care.⁸
• pursuant to statute, for contravention of a guarantee under s 61 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), such guarantee providing for services to be “reasonably fit for … purpose”.⁹  That, too, transcends the exercise of reasonable care.

Section 22 has no application to a cause of action of either type. 

Note also that s 22 is expressed without regard to the genus of damages claimed.  In consequence, it applies to a claim for damages whether  the damage in question is personal injury, property damage or economic. 

In this regard, by its enactment, s 22 operates as an adjunct to the provisions of CLA  pertaining to proportionate liability (ss 28ff) which also were enacted primarily for the benefit of professionals and their insurers.  Proportionate liability, however, applies only to claims for property damage and economic loss.

“Professional”

But who is a “professional”?

Section 20, albeit in economic expression, provides a definition:

20 Definition for div 5
In this division—
a professional means a person practising a profession.

Resort need be had to the common law to flesh out this meaning.

In Bradfield v Federal Commissioner of Taxation,¹⁰ Isaacs J observed that the term “professional”:¹¹

… is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community.

In Prestia v Aknar,¹² Santow J¹³ considered a raft of authorities from the United Kingdom and Australia in the context of what constitutes a “professional activity” in state legislation where that term was used bereft of any definition:¹⁴

One might essay a working definition of these terms. This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

The term “professional activity” refers at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional. It may be that it thus excludes someone who carries out that characteristic activity pretending to be a professional but which is not.

His Honour noted¹⁵ that taxation consultants, brokers, teachers or mediators may be professionals, depending on how they organised and conducted themselves. 

Modern mores, arguably, extend the reach of the term “professional” beyond the  “learned professions”, eg, medical practitioners, lawyers, accountants, architects, engineers, or, more recently, valuers, investment advisors, building professionals, quantity surveyors, naval architects, patent attorneys, pharmacists, surveyors, veterinarians, physiotherapists and speech and occupational therapists.

Charlesworth and Percy¹⁶, by reference to authority centuries old, note that the same principle applies to any person engaged in a skilled trade or business:¹⁷

If a smith prick my horse with a nail, etc, I shall have my action upon the case against him, without any warranty by the smith to do it well … for it is the duty of every artificer to exercise his art rightly and truly as he ought.

Most “trades” are now hallmarked by compulsory statutory registration, with the ubiquitous “fit and proper person” touchstone for maintenance of registered status. It is difficult to accept that skilled licensed tradespersons ought not fall within the concept of a “professional” under the general law, eg builders, electricians, plumbers, mechanics, ship pilots, marine masters, insurance brokers, teachers, pilots, optometrists, chiropractors, podiatrists and nurses.

Proficiency in one sphere, however, does not render a trade “professional” the master of all aspects of the subject discipline or related activities. Spooner-Hart Prosthetics v Jones¹⁸ is an example of an unsuccessful attempt to characterise a defendant as a professional advisor in circumstances where the apt character was no more than a “specialised technician”.

Character of provision and persuasive onus

The import of s 22(1) is that it acts as a defence to otherwise proven liability.

The statutory language “does not breach a duty … if it is established”, and that which follows it, connotes:

• first, the plaintiff client (or, occasionally, non-client third party), bearing the persuasive onus of proof of liability, must prove, against the defendant professional, a breach of duty causative of damage, on common  principles as adjusted  by  the relevant Ipp  legislation (principally CLA ss 9 to 16).
• second, the defendant professional then bears the persuasive onus of invoking the statutory liability exemption in sub (1) so as to, prima facie, exempt the defendant professional from the above proven liability.  Such exemption is  not open if the evidentiary foundation thereof is contrary to other statutory law — subs (2).
• third, the plaintiff client, arguably, then bears the persuasive onus of invoking the  statutory  proviso of “irrationality” in sub (2), so as to displace the above prima facie operation of the exemption.  Such imposition of onus is open to question and awaits resolution by authority. It may be that, as is the case in UK common law enunciated in Bolitho v City & Hackney Health Authority,¹⁹  the court, on the touchstone of absence of “logical support”, may reject the peer evidentiary fabric founding the otherwise proven  exemption.

The leading case is that of the New South Wales Court of Appeal in Dobler v Halverson.²⁰ The case is worth extracting from at some length because it addresses, instructively, in a medical context, what ensues in a conventional case covering this statutory provision. Giles JA, Ipp and Basten JJA agreeing, wrote (NSW Act s 5O being the analogue of CLA s 22):

[61] … I do not accept the appellant’s [the defendant’s] submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents [the plaintiffs] to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section — the plaintiff does not rely on it in order to negate a liability in negligence.
…
[103] For s 5O, the question is not necessarily one of preferring A’s evidence of acceptable professional practice to the evidence of B. If B’s evidence supports the manner in which the defendant acted, the question is whether there is established a professional practice widely accepted by (rational) peer professional opinion. If A and B both gave their evidence as evidence of whether the manner in which the defendant acted accorded with professional practice widely accepted by (rational) peer professional opinion, the question will be one of preferring A’s evidence to that of B, but otherwise it will be one of acceptance of B’s evidence, its weight and what it establishes. The conceptual distinction must be made, although in the acceptance of B’s evidence and its weight regard to the evidence of A is likely to remain relevant.
[104] If Dr A states that in the doctor’s view the defendant’s conduct demonstrated lack of reasonable care, skill or judgment, it may be inferred (if not expressly stated, as it should be) that the doctor is applying a standard which the doctor believes to be widely if not generally accepted by professional peers. If that view is supported by the relevant medical literature, wide acceptance may be established, although it may be necessary to allow some degree of latitude for errors of judgment not amounting to breach of the standard of care. If, as in the present case, the standard required that for the purposes of differential diagnosis an available and appropriate test be undertaken, the reasonableness of the standard and the likelihood of wide acceptance may readily be found. On the other hand, if Dr B states that the defendant acted in a manner the doctor regards as within competent professional practice the doctor may need to go further in order to establish that the lower standard is widely accepted in Australia. It may not be self-evident that many doctors would not think it reasonably necessary to undertake, for the purposes of an established procedure of differential diagnosis, a reasonably available and otherwise appropriate test. In these circumstances, for the court to “prefer” the evidence of Dr A to that of Dr B may mean no more than that the former has established an appropriate standard and that the latter, while demonstrating the doctor’s own belief that the departure from the proposed standard is acceptable, has not satisfied the court that the approach is widely accepted.  [emphasis added]

Pleading obligation

The character of s 22(1) as a defence, by way of exemption from otherwise proven liability, behoves the defendant professional to plead material facts sufficient to signal and invoke such defence.

In Sydney South West Area Health Service v MD,²¹ Hodgson JA (Allsop P and Sackville AJA agreeing) wrote:

[23] In my opinion, s 5O does contemplate proof of material facts which, if established, would negative a finding of negligence which otherwise might be available; so in my opinion the material facts contemplated by s 5O should be pleaded in a defence, even if specific reference to s 5O is not mandatory. However I would say that specific reference to s 5O would be desirable.

Allsop P added:

[51] … s 5O does need to be pleaded. It is not just a matter of evidence. It transfers, to a degree, the onus of proof. It transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal. It also may raise, in other cases, although it did not here, issues as to schools of medical practice, the geographical or other areas in which those schools might obtain and other matters requiring specificity and particularisation. In my view, for the reasons Hodgson JA has given and for the reasons in Dobler v Halverson…  As well, it is a matter that needs to be pleaded. There is also the question of the surprise rule and precise terms of the relevant rule, Uniform Civil Procedure Rules 2005 (NSW) r 14.14.

Undoubtedly, the defendant professional’s defence pleading need transcend a mere rehearsal of the language of the provision.  Invariably the material facts pleaded ought comprise:

• the specific accepted “way” of practice being in existence at the time
• the fact and degree of its “wide acceptance” by “peer professionals” as “competent” practice.
• the adoption of that practice by the defendant on the relevant occasion.
• that the practice is apt on a particular presentation of, or instruction by the client, or in the adoption peculiar circumstances (e.g. in an emergency, or in the absence of availability of certain information, equipment or testing result).

Need the defendant professional plead by way of material facts, or be obliged to particularise, the identities of the “peer professionals” who “accept” the contentious  “manner” of practice?

The better view, it is submitted, is in the negative.  The reasons for that are:

• such pleading or particularisation, procedurally, thereby would entail the pleading of evidence, not material facts.  That is anathema under the procedural law regime in each jurisdiction.  
• the core statutory language lies in the linguistics “way”, “peer professional opinion” and “widely accepted” respectively.  As a matter of proof at trial, it ought suffice that credible evidence is adduced from one or more professionals in the field who can testify as to their relevant manner of practice at the time, and those of others they observe frequently in daily practice, together with what was accepted at the national professional conferences and in published literature in their field of professional expertise.
• alternatively, trial proof of acceptance of the practice, in some cases, will be adduced in evidence from the defendant professional, and, or additionally, in cross-examination of the expert professional witness called in the plaintiff’s case.
• neither of the above alternatives mandates the plaintiff or defendant calling, as witnesses, a large number of field professionals, so as to give their opinion on the acceptance issue.  See Dobler, above, at [104].  So too does the history of jurisprudence on application of the Bolam principle.  The defendant professional’s pleading obligation ought reflect that.  This is so despite the Bolam jurisprudence being transmuted by statute into potential exemption rather than being an integer of breach.
• pleading the statutory exemption in its terms, augmented by material facts as to the particular professional setting (see Sydney South West, above, at [57]), ordinarily would serve to identify the issue to the plaintiff, as a matter of fairness, so as to permit such plaintiff to address such issue, with professional experts pre-trial, and then at trial.
• imposing a higher pleading obligation upon the defendant professional would be procedurally inconvenient and burdensome, being a “names and numbers game”. It would entail pleading a number of identified practitioners, by reference to and as a proportion of a total of the practitioners registered as practising in that field.  Professional “straw polls” would be necessary. No doubt that would be  professionally burdensome.   It would also entail a need for amendment of the defence, or particulars thereof, on every occasion that a further “accepting” professional was identified.  
• finally, the matter may be tested by reference to the pleading obligations of the plaintiff.  Ordinarily there is no obligation upon a plaintiff to plead, as material facts or particulars, the identity of the practitioners from whom evidence will (or can) be adduced underscoring the individual allegations of breach of professional duty made against the defendant professional.   The position ought be no different for a defendant in pleading the statutory exemption.

Matters to be proved

A raft of discrete matters fall to be proved by the defendant professional in order to establish the exemption.

First, the conduct must accord with a discrete, identifiable, professional “way” — the linguistic used in s 22(1) – of practice existing at the time of the breach of duty.

In McKenna v Hunter & New England Local Health District²², the claims were for damages for psychiatric injury resulting from nervous shock caused by alleged negligence by the defendant Health Service, arising from the defendant arising from the death of Mr Rose at the hands of a Mr Pettigrove.  The latter, a person harbouring a mental health ailment, following medical assessment, was discharged by a medical practitioner employed by the defendant.  He was so discharged into the custody of his friend Mr Rose, so he could be driven back to Victoria for treatment.  Mr Pettigrove’s fatal assault upon Mr Rose, induced by his ailment, occurred within 12 hours.

At trial, the defendant adduced evidence from a number of medical practitioners to the effect that discharge was reasonable in the circumstances, albeit without identifying any particular professional manner of practice in existence in 2004 when Mr Pettigrove was so discharged.  In those premises, it was found by the New South Wales Court of Appeal that s 5O was not invoked for want of proof of a relevant practice, let alone proof of one as “accepted”.

Macfarlan JA (Beazley P agreeing) wrote:

[165] In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner.

Second, such practice, at the time, must be one which was “accepted” by “peer professional opinion” as “competent professional practice”.

This would be proved, ordinarily, by adducing evidence as to whether it accorded with daily professional practice, coloured perhaps by what was canvassed at learned conferences and in published literature in that field of professional endeavour.

It is difficult to believe the element of being “competent professional practice” will prove troublesome in many cases.  Invariably expert evidence will be adduced from competent peers, not incompetent or maverick practitioners.

Third, the practice need be one which is “widely accepted”.

This means that the conduct was not only accepted by one particular (eg regional) group of practitioners, but by a broad cross-section of the profession.  This may mean that the practice need be accepted nationally depending upon the profession and the practice concerned, but not necessarily so.

In Vella v Permanent Mortgages Pty Ltd²³, Young CJ in Eq (later Young JA) wrote, dealing with a particular New South Wales mortgage practice by solicitors:

[553]… I consider it is too restrictive a way of approaching s 5 O to say that unless there is a peer professional practice throughout the whole of Australia the section cannot apply.

[554] For instance, if one was working out the duty of care of a tender of a boab tree which as far as I know only grows in the north west of Australia, it surely could not have been the legislature’s intention that s 5 O would be completely inapplicable. Rather, it would accord with the intention of the legislature if one said that where one had an industry which was only practised in part of Australia that that part was the Australian peer professional practice for the purpose of s 5 O.

[555] Likewise, if one has different though similar professions in different parts of Australia, it would seem to me that one does not dismissively say there is no Australian professional practice but one looks to see the professional practice that exists in the particular locality where the negligent act or omission took place. There may also be other problems where, for instance, things would be done differently on King Island in Tasmania from Thursday Island in Queensland because one is in the cold wet south and the other is in the monsoonal north.

Acceptance “universally” — subs (4) – is not required because the provision allows for “differing peer professional opinions” — subs (3). 

The enquiry entails that, having regard to the total number of practitioners in the professional field, a significant number accept the practice as “competent” (See McKenna, above, at [160]).

This does not mean that a majority (that is 51%) or any particular portion (eg not less than 35%) need accept such practice.  A number of respected schools of thought may exist in relation to apt practice within the profession.

In Mazza v Webb²⁴, the clinical procedure adopted was found to accord with a “widely accepted” professional manner, or practice, despite some professional opinion adduced that good practice in the particular case also entailed embarking upon an additional clinical procedure.

Fourth, the specific practice must have been adopted by the defendant professional on the occasion in question.  This requires focus on the precise professional task being undertaken.  It does not suffice that the defendant professional has adopted the relevant practice as a matter of routine, without consideration of the peculiar facts.  In Vella, above, Young CJ in Eq wrote:

[557]…I also do not consider that the evidence that has been presented both of [Experts] Mr Carkagis and Mr Martin necessarily lead to the view that Hunt & Hunt complied with peer professional practice in the instant case.

[558] It may well be that the most common form of mortgage used in Australia or NSW is the all monies form.  However, that, of itself, does not excuse a solicitor from addressing the question in each transaction as whether that is the best form in the transaction with which he or she has to document.

[559] The principal plank of the case of failure to act with due care and skill is the failure to realise that there were risks in employing the standard form of all monies mortgage in every case, and that the client would be better protected in a “one- off” deal with what has been described in submissions as the ”old fashioned form”.

[560] The problem in the instant case is that the only inference that I can draw from [Hunt and Hunt Lawyers] Mr Gabelich’s evidence is that he did not turn his mind to the possible problems and he just used the form as a matter of rote.

[Material in brackets added]

Fifth, the practice adopted was neither irrational nor contrary to written law. See subs (2).

Advisory negligence exclusion

Section 22(5) excludes operation of the exemption in s 22(1):

… to liability arising in connection with the giving (or failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.

In broad terms, the exclusion is directed to advisory negligence causes — as to which, in medical cases, see also CLA s 21.

Such exclusion has the potential for wider operation than first meets the eye.

The linguistic “harm” is defined in the CLA as extending to personal injury, property damage and economic.  Thus the carve out is comprehensive.

Further, ascertaining  scope of the sub (5) exclusion from the operation of sub (1) is aided by a descent to the character of professional service afforded.  In this regard, the response to a request for provision of a professional service will entail conduct by the professional of three potential types:

• first, giving, or failure to give “a warning, advice or other information” as to a risk arising from some aspect the professional services to be, or which could be, embarked upon.
• second, giving, or failure to give a “warning, advice or other information” about or arising from the subject matter of the professional retainer and its proper discharge (cf “a risk associated with” the professional service to be embarked upon).
• third, otherwise embarking upon undertaking a professional task, eg, by design, inspection, prescription, operative procedure, litigious procedure, testing procedure.

The first response, by necessary invocation of the proviso, is certainly beyond the embrace of the s 22(1) defence.  In contrast, conduct in the nature of the third response, is within the embrace of such defence.

As to the second response, the outcome is more difficult:

• such professional response would not, or not necessarily, fall for characterisation as being “in relation to a risk… of harm…associated with the provision by a professional of a professional service”  [emphasis added].
• rather, such response may be the proper and reasonable course undertaken, or which ought be undertaken, in primary response to a professional service requested.
• there being a distinction between, on the one hand, a risk pertaining to the professional service requested or proposed, and, on the other hand, a risk entailed in the discharge of (or failure to properly discharge) the professional retainer.

Such construction is exemplified by Mules v Ferguson²⁵.

There the plaintiff patient contended the defendant general practitioner was negligent in failing to refer her for specialist medical assessment. The court found, on causation, such notional referral, if given, would have been taken up by the plaintiff, and in turn led to early detection and remediation of a rare and insidious meningitis from which the plaintiff was then suffering.

In Mules there was a finding that the duty of care had not been breached but there was addressed, in obiter dictum, the proper construction of s 22(5). Henry J wrote:

[32] The plaintiff submits s 22(5) has the effect of excluding a s 22 defence where the alleged breach involves a failure to refer a patient for more expert examination or treatment. However that sub-section relates to giving or failing to give a warning, advice or information “in relation to the risk of harm to a person, that is, associated with the provision by a professional of a professional service.” Section 22(5) is apt to those cases where the breach otherwise arising flows from a failure to properly provide a patient with sufficient information to allow the patient to make an informed decision about the risk of harm in undergoing a particular medical service. It is not apt to a case like the present where the gravamen of the breach lies in failing to identify and warn the patient of the need for the patient to be provided with a medical service by another.

[33] The evidence of expert opinion adduced at trial is thus relevant not only to the assessment of whether there has been a breach of duty but also to whether or not the defendant has a s 22 defence.

Mules is pending decision on appeal.

Conclusion

For defendant professionals and their insurers, a return to the halcyon days of the operation of the Bolam principle, had the Ipp committee recommended same, would have been propitious.  That was not to be.  The Rogers principle remains operative.

In response to causative liability proved by a plaintiff, however, the CLA affords the  defendant professional an opportunity to vindicate he or she adopting a particular identifiable “way” of practice which, at the time, was “widely accepted” as “competent” by a significant body of the “peer” practising profession.

The professional shoulders the persuasive and pleading onus, and as a corollary an obligation to adduce expert evidence, in order to ground such defence.

In some cases, no doubt, professionals and their insurers will think that the Ipp legislation has only complicated the issue, and amplified the cost of successful defence of a professional negligence claim.  Time will tell.

R J Douglas QC
Barrister
Callinan Chambers

Footnotes

1. Bolam v Frieran Barnett Hospital Management Committee  [1957] 1 WLR 582; see also Eckersley v Binnie (1988) Con L R 1 at 79.
2. Bolitho v City & Hackney Health Authority [1998] AC 232 at 243;  see also Hucks v Cole (1993) 4 Med LR 393 at 397.
3. Rogers v Whitaker (1992) 175 CLR 479.
4. Rosenberg v Percival (2001) 205 CLR 434  at [7].
5. Rogers at 487.
6. DA Ipp (Chairman), Review of the Law of Negligence Report, 2 October 2002.
7. Ipp Report at [3.5]ff.
8. BHP Coal Pty Ltd v O & K Orenstein & Kopple AG (No 2) [2008] QSC 141 at [477]-[479];  see also Platform Funding Ltd v Bank of Scotland Pty Ltd [2009] QB 426 (CA).
9. Section 61 is the current enactment of what, prior to 1 January 2011, was a contractual term implied by s 74(2) of the Trade Practices Act 1974 (Cth).
10. Bradfield v Federal Commissioner of Taxation  (1924) 34 CLR 1.
11. Bradfield, CLR at  7.
12. Prestia v Aknar (1996) 40 NSWLR 165;  see also Barclay v English [2009] QSC 258 at [79] concerning a naval architect.
13. Subsequently Santow JA of the New South Wales Court of Appeal.
14. Prestia  at 186.
15. Prestia at 186;  see also Durant v Greiner (1990) 21 NSWLR 119 at 186 concerning a politician.
16. Charlesworth and Percy on Negligence, 12th ed, 2010, Sweet & Maxwell, at [9.02].
17. FNB 94D is the citation referred to by Charlesworth and Percy. That refers to ‘Fitzherbert’s Natura Brevium, Writ de Trespass sur le Case’,  published in 1794.
18. Spooner-Hart Prosthetics v Jones [2005] NSWCA 2.
19. Bolitho  at 243.
20. Dobler v Halverson (2007) 70 NSWLR 151.
21. Sydney South West Area Health Service v MD (2009) 260 ALR 702 (NSWCA).
22. McKenna v Hunter & New England Local Health District [2013] NSWCA 476;  this case went on appeal to the High Court but was decided there on another basis, namely that no duty of care was owed by the defendant to the plaintiffs, with the issues the subject of canvass herein not being necessary for disposition on appeal;  cf Grinham v Tabro Meats Pty Ltd [2012] VSC 491 at [181].
23. Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; the case went on appeal, ultimately to the High Court, but not on the issue in question here.
24. Mazza v Webb [2011] QSC 163 at [29].
25. Mules v Ferguson [2014] QSC 51.