Basten JA at [1]; Macfarlan JA at [107]; Simpson JA at [239]
Decision:
(1) Dismiss Dr Sparks’ appeal with costs; (2) Allow Dr Gray’s appeal; (3) Set aside orders 1 and 2 made at first instance so far as they relate to Dr Gray; (4) Judgment for Dr Gray on the respondent’s claim against him. (5) Order the respondent to pay Dr Gray’s costs of the proceedings at first instance and on appeal; (6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to Dr Gray’s appeal.
Catchwords:
NEGLIGENCE – medical negligence – respondent became paraplegic as a result of surgery – principal anaesthetist’s attempts to address respondent’s continuing high carbon dioxide levels during operation were unsuccessful – whether head surgeon and principal anaesthetist negligent in failing to terminate operation earlier than occurred – roles and responsibilities of head surgeon and principal anaesthetist
NEGLIGENCE – medical negligence – peer professional opinion – Civil Liability Act 2002 (NSW) s 5O – whether necessary that at the time of the alleged negligence there was an established practice which was widely accepted as competent medical practice – McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158 considered
NEGLIGENCE – medical negligence – inherent risk – Civil Liability Act 2002 (NSW) s 5I – whether risk of neurological injury was inherent risk of surgery that could not have been avoided by the exercise of reasonable care and skill
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Sparks v Hobson
Sign in free to access the full text
Details
AGLC
Sparks v Hobson [2018] NSWCA 29
Case
[2018] NSWCA 29
Decision Date
CaseChat Overview and Summary
In *Sparks v Hobson*, the New South Wales Court of Appeal considered appeals from a judgment concerning allegations of medical negligence. The respondent, who became paraplegic following surgery, alleged that the principal anaesthetist and the head surgeon were negligent in their conduct during the operation, specifically in their attempts to manage persistently high carbon dioxide levels and in failing to terminate the procedure earlier.
The Court was required to determine whether the principal anaesthetist and the head surgeon breached their duty of care to the respondent. This involved considering whether their actions, or omissions, fell below the standard of care expected of reasonably skilled practitioners in their respective fields. A key issue was the application of section 5O of the *Civil Liability Act 2002* (NSW), which concerns the standard of care for professionals, and whether the conduct of the medical practitioners was in accordance with peer professional opinion that was widely accepted as competent professional practice. The Court also had to consider whether the risk of neurological injury sustained by the respondent was an inherent risk of the surgery, as contemplated by section 5I of the *Civil Liability Act 2002* (NSW).
The Court of Appeal analysed the roles and responsibilities of both the head surgeon and the principal anaesthetist. It found that the principal anaesthetist's actions were consistent with the standard of care required under section 5O, noting that the medical literature and expert evidence did not establish that an earlier termination of the operation was a necessary or widely accepted competent practice in the circumstances. Regarding the head surgeon, the Court allowed his appeal, finding that the respondent's claim against him should be dismissed. The Court concluded that the risk of neurological injury was an inherent risk of the surgery that could not have been avoided by the exercise of reasonable care and skill.
Consequently, the Court of Appeal dismissed Dr Sparks' appeal with costs. It allowed Dr Gray's appeal, setting aside the orders made at first instance concerning him and entering judgment for Dr Gray on the respondent's claim. The respondent was ordered to pay Dr Gray's costs of the proceedings at first instance and on appeal, and was granted a certificate under the *Suitors’ Fund Act 1951* (NSW) in relation to Dr Gray’s appeal.
Orders
Orders of the court
(1) Dismiss Dr Sparks’ appeal with costs;
(2) Allow Dr Gray’s appeal;
(3) Set aside orders 1 and 2 made at first instance so far as they relate to Dr Gray;
(4) Judgment for Dr Gray on the respondent’s claim against him.
(5) Order the respondent to pay Dr Gray’s costs of the proceedings at first instance and on appeal;
(6) Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to Dr Gray’s appeal.