Alex Katsikalis

• The defence in s 22 of the Civil Liability Act 2003 (Qld) is for the defendant to prove. It requires identifying the particular conduct, and a body of peer opinion that accepts that conduct as widely accepted practice ([191]).
• The conduct is judged against the facts as the court finds them. In Mules, the GP experts had assumed the defendant's account of the consultations. Once the trial judge found the facts differently, their opinions could not discharge the onus ([193]–[201]).
• Section 22(5) did not exclude the defence for a failure to examine and refer. The Court read it as confined to failures to warn or advise ([202]–[205]).
• Where there is more than one breach, their causal effect is assessed together, not one at a time ([188]).

In practice: Test each expert report against the factual findings the court might make, not only your client's version.

• The standard is that of the ordinary skilled intensive care paramedic operating in the field in circumstances of urgency, which is less exacting than the standard expected of specialists in emergency medicine ([10]).
• A clinical practice manual does not of itself fix the range of reasonable responses. An instruction to "consider" a drug calls for a clinical judgment weighing its benefits and adverse effects ([11], [34], [73]). Manuals are not to be construed like a statute ([79], [95]).
• A decision supported by a responsible body of opinion is not negligent merely because most specialists would have chosen differently ([133]–[134], [137]).
• Findings based on a trial judge's assessment of oral evidence should not be overturned unless they are contrary to compelling inferences or glaringly improbable. Witness statements prepared by lawyers are a doubtful basis for displacing that evidence ([74]–[78], [112], [119]).

In practice: In guideline cases, build the case on what the clinician actually considered at the time, tested in oral evidence, rather than on the wording of the guideline alone.

• An expert's changed opinion that a defendant was negligent can be a material fact of a decisive character under s 31 of the Limitation of Actions Act 1974 (Qld), where the applicant had earlier been given a contrary opinion ([43]–[44], [69]).
• Whether a report would satisfy the Personal Injuries Proceedings Act 2002 (Qld) is a different question, and not the test under s 31 ([71]).
• Prejudice to a defendant who had been told he would not be sued, and who then gave a statement, was not enough in that case to prevent a fair trial ([95]–[100]).

In practice: When an expert is re-briefed with new material, keep a clear record of when the client first learned of any change in opinion.

• Whether a risk is obvious under s 13 of the Civil Liability Act 2003 (Qld) depends on how the risk is defined. The risk that sand would give way and turn a feet-first run into a head-first entry into shallow water was not obvious but "a trap for the unwary" ([64]–[65], [67], [69]).
• Because the risk was not obvious, neither s 15 (no duty to warn of an obvious risk) nor s 19 (dangerous recreational activity) applied ([72]).
• Breach was found in the failure to adapt a compulsory visitor video to warn about running down the dunes, and in the wording of the signs. Fencing, prohibition and a ranger were not reasonably practicable ([109]–[122], [144]–[145]).
• Causation was established for the video, which the plaintiff watched and would have heeded, but not for the signs. The State's case for 100% contributory negligence was rejected and 15% assessed ([149]–[159], [165]–[175]).

In practice: Frame the risk precisely, and tie each alleged warning failure to evidence that the plaintiff would have seen and acted on a better warning.

• Capacity is assessed for a particular matter, which must be defined with some precision, rather than as general "legal or financial capacity" ([6]–[9]).
• A person does not have impaired capacity if they can make the decision with adequate and appropriate support ([30]).
• An expected future decline is not a reason to find present incapacity in order to protect the person later ([70]).
• If no sanction is required, the power to appoint an administrator on sanction is not engaged ([19]).

In practice: Before seeking sanction and administration, consider whether supports can be put in place that allow the client to manage the settlement.

• A guarantee permitting release on "paying ANZ the amount guaranteed" meant payment by the guarantor, not a temporary credit balance created by the borrower ([29]).
• Under the facility conditions, a customer's written notice together with repayment cancelled the overdraft immediately. The bank had no discretion to keep it open ([36]–[37]).
• The trial judge's advantage in seeing the witnesses was limited where one gave evidence through an interpreter and another with difficulty in English. The documents and payments gave compelling proof of what was agreed ([65]–[69]).
• There was no election where, between the guarantor and the bank, there was "but one true position". Not joining the bank in earlier District Court proceedings did not give rise to an Anshun estoppel ([77], [79]–[84]).

In practice: In guarantee disputes, the contemporaneous instructions and payment records can outweigh a bank officer's recollection on appeal.