South Eastern Sydney Area Health Service v King

In *South Eastern Sydney Area Health Service v King*, the Court of Appeal of New South Wales considered an appeal and cross-appeal arising from a medical negligence claim. The plaintiff, a 13-year-old, suffered quadriplegia as a result of cancer treatment. The plaintiff sued the South Eastern Sydney Area Health Service (the hospital) and the treating specialist, alleging negligence in the administration of a radical and experimental treatment protocol. The trial judge found a doctor within the hospital's oncological team negligent for failing to disseminate crucial updated information about the protocol, rendering the hospital vicariously liable. However, the trial judge found the treating specialist not negligent.

The central legal issues before the Court of Appeal were whether the treating specialist owed a duty to inform himself of up-to-date information regarding the proposed treatment, whether he breached that duty, and consequently, whether the hospital was vicariously liable for his actions. Additionally, the court considered the plaintiff's cross-appeal regarding the trial judge's refusal to award indemnity costs, despite the defendants' rejection of evidence that was later proven to be critical to the plaintiff's case, following a Calderbank offer.

The Court of Appeal reasoned that the treating specialist had a duty to ensure he was aware of current information pertaining to the experimental treatment, especially given that the protocol had been amended due to identified risks of neurological damage. The court found that the specialist's failure to obtain this updated information constituted negligence. Consequently, the hospital was held vicariously liable for the specialist's negligence. Regarding costs, the court allowed the plaintiff's cross-appeal, finding that the defendants' rejection of the plaintiff's evidence was unreasonable in light of their knowledge at the time of the Calderbank offer, thus justifying an order for indemnity costs from that point forward.

The Court of Appeal dismissed the defendants' appeal against the judgment in favour of the plaintiff, confirmed the judgment of $7,000,000 against the hospital, and allowed the plaintiff's cross-appeal. The defendants were ordered to pay the plaintiff's costs of the litigation on a party and party basis up to 31 January 2005, and on an indemnity basis thereafter, as well as the costs of the appeal and cross-appeal.