Dean v Pope

In *Dean v Pope*, the appellant, who had undergone lumbar surgery performed by the respondent neurosurgeon, appealed to the New South Wales Court of Appeal against a decision that had dismissed her claim for professional negligence. The appellant alleged that the respondent's preoperative diagnostic assessment was inadequate and that the lumbar surgery was unnecessary, leading to her suffering from an undiagnosed lesion in her thoracic spine.

The central legal issues before the Court of Appeal were whether the respondent neurosurgeon had breached the duty of care owed to the appellant and, in particular, whether the respondent's actions in performing the lumbar surgery were consistent with competent professional practice, as contemplated by section 5O of the *Civil Liability Act 2002* (NSW). The Court was also asked to consider whether its previous interpretation of section 5O in *McKenna v Hunter and New England Local Health District* [2013] NSWCA 476 should be overturned.

The Court of Appeal, applying the principles established in *McKenna*, found that the respondent's conduct was widely supported by peer professional opinion as competent professional practice. The Court held that the diagnostic assessment undertaken by the respondent was adequate in the circumstances and that the lumbar surgery was a reasonable course of action based on the information available at the time. Consequently, the Court concluded that the respondent had not breached the standard of care owed to the appellant.

The Court of Appeal ordered that time for filing the Notice of Appeal be extended, but ultimately dismissed both the appeal and the cross-appeal. The appellant was ordered to pay the respondent's costs of the appeal and cross-appeal.