Cox v Fellows

Case [2013] NSWCA 206

Court of Appeal

New South Wales
Case Title: Cox v Fellows
Medium Neutral Citation: [2013] NSWCA 206
Hearing Date(s): 6 May 2013
Decision Date: 09 July 2013
Before: Basten JA at [1];
Ward JA at [2];
Gleeson JA at [3]
Decision:

(1) Appeal be dismissed.

(2) Appellant to pay the respondent's costs.

[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.]
Catchwords: TORTS - negligence - breach of duty - medical practitioner - laparoscopic cholecystectomy - whether surgeon departed from the usual standard of care

TORTS - negligence - causation - medical practitioner - s 5D Civil Liability Act 2002 - equally likely causes - whether the trial judge erred as to the cause of the stricture

TORTS - negligence - s 5I Civil Liability Act 2002 - whether injury was a result of the materialisation of an inherent risk
Legislation Cited: Civil Liability Act 2002
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Mobbs v Kain [2009] NSWCA 301; 54 MVR 179
Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486
Paul v Cooke [2012] NSWSC 840
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Sibraa v Brown [2012] NSWCA 328
Shaw v Thomas [2010] NSWCA 169
Whitehouse v Jordan [1981] 1 All ER 267
Wyong Shire Council v Vairy [2004] NSWCA 247; Aust Torts Reports 81-754
Texts Cited: Gray's Anatomy, 40th ed (2008)
Category: Principal judgment
Parties: Michael Cox (Appellant)
Reyna Fellows (Respondent)
Representation
- Counsel: Counsel:
D Higgs SC with Ms V Thomas (Appellant)
B M J Toomey QC with G R Graham (Respondent)
- Solicitors: Solicitors:
Tresscox Lawyers (Appellant)
Michael E Bradstreet (Respondent)
File Number(s): CA 2012/157521
Decision Under Appeal
- Court / Tribunal: District Court
- Before: McLoughlin DCJ
- Date of Decision:  19 April 2012
- Citation: Fellows v Cox
- Court File Number(s): 2010/263575

JUDGMENT

  1. BASTEN JA: The appeal in this matter must be dismissed with costs, for the reasons given by Gleeson JA.

  2. WARD JA: I agree with the reasons of Gleeson JA and the orders his Honour proposes.

  3. GLEESON JA: This is an appeal from a decision of McLoughlin DCJ in which his Honour found the appellant, Professor Cox, a general surgeon, breached his duty of care to the respondent. This breach occurred in the course of a surgical procedure involving the removal of the respondent's gallbladder on 16 October 2008. His Honour found that the appellant was liable in damages to the respondent.

  4. The appeal is limited to the issue of liability. There…

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Cox v Fellows [2013] NSWCA 206
Case
[2013] NSWCA 206
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the appellant, Cox, against the respondent, Fellows, a surgeon. Cox alleged that Fellows had been negligent during a laparoscopic cholecystectomy, resulting in a stricture of the common bile duct. The primary issue was whether the surgeon had departed from the usual standard of care expected of a medical practitioner in performing the procedure.

The court was required to determine whether the trial judge had erred in finding that the respondent had breached his duty of care. Furthermore, the court had to consider the issue of causation, specifically whether the appellant had established that the respondent's alleged negligence caused the stricture, having regard to section 5D of the *Civil Liability Act 2002* (NSW), which addresses factual causation and the "but for" test, and the principle that a plaintiff must prove their case on the balance of probabilities, even where there are multiple equally likely causes. The court also considered whether the injury was a result of the materialisation of an inherent risk, pursuant to section 5I of the *Civil Liability Act 2002* (NSW).

The appellate court found no error in the trial judge's findings. The court reasoned that the evidence supported the conclusion that the surgeon's actions fell below the standard of care expected of a reasonably competent surgeon in the circumstances. Regarding causation, the court affirmed the trial judge's assessment that, on the balance of probabilities, the respondent's conduct was the cause of the appellant's injury, notwithstanding the possibility of other contributing factors. The court also determined that the injury did not arise from the materialisation of an inherent risk.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal be dismissed.

(2) Appellant to pay the respondent's costs.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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