Sparks v Hobson

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.