Elliott v Bickerstaff

The plaintiff, Elliott, brought proceedings against the defendant, Dr. Bickerstaff, a surgeon, alleging negligence after a swab was left inside her body following surgery. The dispute centred on whether the surgeon was personally negligent or vicariously liable for the actions of the theatre staff responsible for counting the swabs. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the surgeon owed a non-delegable duty of care to the plaintiff in relation to the actions of the theatre staff, and whether the doctrine of *res ipsa loquitur* applied to establish the surgeon's negligence. The court also considered the extent of a surgeon's duty of care in the context of a surgical team.

The Court of Appeal held that the surgeon's duty of care did not extend to personally ensuring the accuracy of the swab count, as he was entitled to rely on the established procedures and the competence of the theatre staff. The court found that the doctrine of *res ipsa loquitur* was not applicable because the circumstances did not inherently point to the surgeon's negligence. The court reasoned that the surgeon's responsibility was to conduct the surgery with reasonable care and skill, which included delegating certain tasks to appropriately qualified personnel.

Consequently, the appeal was allowed, and the cross-appeal was dismissed. The original verdict and judgment in favour of the plaintiff were set aside, and a verdict was entered for the defendant. The plaintiff was ordered to pay the defendant's costs, and the respondent (plaintiff) was ordered to pay the appellant's (defendant's) costs of the appeal, subject to a potential certificate under the Suitors Fund Act.