The New South Wales Supreme Court has delivered an important decision in Campbell bht Mammoliti v Ritchie [2026] NSWSC 754, considering several key issues that frequently arise in medical negligence litigation, including limitation periods, peer professional opinion, inherent risk and informed consent. The Court ultimately dismissed the plaintiff’s claim after finding that negligence had not been established.
Background
The proceedings arose from bariatric surgery performed by the defendant surgeon in 1999. The plaintiff alleged that the surgery had been performed negligently and that adequate warnings were not provided about the risks associated with the procedure. The claim was commenced many years after the operation, requiring the Court to carefully examine whether the limitation period should be extended before considering the substantive allegations of negligence.
Limitation Period
Given the significant delay between the surgery and the commencement of proceedings, the Court was required to determine whether the plaintiff’s claim could proceed notwithstanding the expiry of the ordinary limitation period.
The decision serves as a reminder that although the law allows extensions in certain circumstances, plaintiffs must still satisfy the statutory requirements before an historical medical negligence claim can be heard. Delay may also significantly affect the availability of evidence and the Court’s assessment of whether it is just to permit the proceedings to continue.
Peer Professional Opinion Defence
The Court also considered the operation of the peer professional opinion defence under section 5O of the Civil Liability Act 2002 (NSW).
After reviewing the expert medical evidence, the Court examined whether the treatment provided was widely accepted in Australia by peer professional opinion as competent professional practice. This statutory defence remains one of the most significant protections available to medical practitioners defending negligence claims where differing professional opinions exist.
Inherent Risk and Failure to Warn
The plaintiff further alleged that insufficient warnings had been given regarding the risks of the surgery.
The Court carefully considered the principles governing informed consent and the duty to warn patients of material risks before treatment. It also examined whether the alleged complications represented inherent risks of the procedure and whether any failure to warn was causative of the plaintiff’s injuries.
Ultimately, the Court was not satisfied that the plaintiff had established liability on the evidence.
Key Takeaways
This decision highlights several important principles relevant to medical negligence claims:
- historical claims remain subject to limitation period requirements and delay may create significant forensic difficulties;
- the peer professional opinion defence under section 5O continues to provide an important statutory protection for medical practitioners where accepted professional practice is established;
- plaintiffs alleging a failure to warn must prove not only that an adequate warning was not given, but also that the failure caused the loss they ultimately suffered; and
- medical negligence claims require careful expert evidence on breach of duty, causation and the applicable standard of professional practice.
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