Cox v Fellows

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.