Elliott v Bickerstaff

[1999] NSWCA 453

Reported Decision: 48 NSWLR 214

New South Wales

Court of Appeal

CITATION:	Elliott v Bickerstaff [1999] NSWCA 453
FILE NUMBER(S):	CA 40205/98
HEARING DATE(S):	30 March 1999 and 5 November 1999
JUDGMENT DATE:	16 December 1999
PARTIES :	Appellant - Peter Elliott Respondent - Maree Elizabeth Bickerstaff
JUDGMENT OF:	Handley JA at 1; Stein JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 70095/94
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

COUNSEL:	Appellant - D J Higgs SC Respondent - A R W Fennell
SOLICITORS:	Appellant - Minter Ellison, Sydney Respondent - Brennan Blair & Tipple, Gosford
CATCHWORDS:	NEGLIGENCE - medical practitioner - swab left in patient - theatre staff keeping count - surgeon not personally negligent - res ipsa loquitur inapplicable - whether surgeon responsible for default of theatre staff because owed non-delegable duty of care - no, because extent of surgeon's duty of care entitled him to rely on theatre staff.
DECISION:	(1) Appeal allowed and cross-appeal dismissed; (2) Verdict and judgment for the plaintiff and order that defendant pay the plaintiff's costs set aside, and in lieu thereof verdict for the defendant and order that the plaintiff pay the defendant's costs; (3) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40205/98
DC 70095/94
HANDLEY JA
STEIN JA
GILES JA

Thursday 16 December 1999

ELLIOTT v BICKERSTAFF

JUDGMENT

1    HANDLEY JA: I agree with Giles JA.

2    STEIN JA: I have had the privilege of reading the draft judgment of Giles JA. I agree with it and with the orders his Honour proposes.

3    GILES JA: The appellant was a specialist obstetrician and gynaecologist. The respondent had been his patient for many years. In 1991 the respondent consulted the appellant in relation to abnormal menstruation and symptoms diagnosed as stress incontinence. Following advice by the appellant, the respondent decided to undergo a hysterectomy and colposuspension. The appellant arranged for the respondent’s admission to a hospital, where the surgery was carried out by the appellant on 13 June 1991. A surgical sponge was left in the respondent’s abdominal cavity during the surgery. Physical problems afflicting the respondent led to discovery of the sponge, and it was necessary for the respondent to undergo further surgery for removal of the sponge about six weeks later. She was left with a disfiguring scar from the second operation and ongoing physical and psychiatric problems.

4    The respondent brought proceedings claiming damages from the appellant. Patten DCJ held the appellant liable to the respondent and assessed damages at $167,108.15. His Honour found that no negligence had been established against the appellant personally, but that he should be held liable for the negligent act of leaving the sponge in the respondent’s abdominal cavity during the course of the surgery because the relationship with the respondent was such as to create a particular…