On 14 September 2018, the High Court of Australia (HCA) refused an application for special leave.

Background Facts

The patient, Mr Hobson, suffered from Noonan Syndrome, a genetic disorder that prevented normal development of various parts of the body. As a result of that disorder, Mr Hobson's ability to fill his lungs with air, and hence to breathe, was restricted. Without surgical intervention, his prognosis was grave. The surgery took place in two stages. The first operation was successful.

During the second operation, complications arose. The operation commenced at about 7.00pm and was expected to take many hours. Mr Hobson was in respiratory difficulty from the commencement of the surgery and the surgical team had trouble ventilating him throughout. His metabolic state was also poor from the start and continually deteriorated during the surgery. Blood gasses demonstrated a clear deterioration in Mr Hobson's metabolic state and samples demonstrated a very high carbon dioxide level despite various attempts at pulmonary ventilation. This was causing significant respiratory acidosis. The operation had to be terminated early, at approximately 9.25pm. Mr Hobson was returned to a supine position and his condition improved. By this time, there had been a severe ischaemic collapse in his spinal column resulting in paraplegia.

Mr Hobson commenced a claim for damages against the principal surgeon, Dr Gray and the principal anaesthetist, Dr Sparks. The allegation was that in light of adverse blood gas readings for carbon dioxide they should have caused the operation to be terminated earlier than occurred.

The primary judge found that both Doctors Gray and Sparks had breached their respective duties of care that they owed to Mr Hobson and were liable in negligence for damages in the amount of $3,828,075. It was accepted by the primary judge that if the operation had been terminated earlier then Mr Hobson would not have become a paraplegic.

Both Doctors Gray and Sparks appealed the primary judge's decision on liability. They contended that the primary judge erred in finding that either doctor acted negligently and relied on sections 5I and 5O of the Civil Liability Act 2002 (NSW) (CLA).

Relevant Legislation

The doctors both relied on sections 5I and 5O of the CLA.

Section 5I provides that there is no liability for harm suffered by another person where that harm was a result of the materialisation of an inherent risk.

Section 5O sets out the standard of care for professionals and provides the following:

  1. A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
  2. However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
  3. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
  4. Peer professional opinion does not have to be universally accepted to be considered widely accepted.

NSW Court of Appeal

The NSW Court of Appeal dismissed the appeal of Dr Sparks with costs and allowed Dr Gray's appeal.

Justices Basten and Macfarlan, concluded that Dr Sparks should have terminated the operation earlier and that the trial judge was correct to find a breach of duty of care. They concluded that neither section 5I or 5O provided a defence to Dr Sparks. Justice Simpson, in dissent, found the primary judge had erred in finding a breach of duty on the part of Dr Sparks.

The Court provided discussion in relation to the correct interpretation of s 5O.

In considering section 5O, Macfarlane JA stated: "the opinion about the manner in which the defendant acted must have existed, and been widely accepted, at the time the conduct occurred. It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct."

Justice Basten concluded that section 5O is relevant to establishing the standard of care relevant to assessing the breach of the duty, instead of providing a defence.

In relation to Dr Sparks, Macfarlan JA found that to establish that a practitioner has acted in accordance with a professional standard, they must demonstrate that they conformed with "a practice". The expert evidence, while it supported Dr Sparks, did not address whether the failure to terminate the operation at an earlier time satisfied the test of whether Dr Sparks acted in a manner widely accepted in Australia as competent professional practice.

The Court found that it had not been established that Dr Gray was negligent. In so finding, the Court stated that there was no evidence that Dr Sparks had alerted Dr Gary to his concerns in relation to Mr Hobson's carbon dioxide readings. As a result, the negligence finding against Dr Gray could not stand.

High Court of Australia

Dr Sparks applied to the HCA for special leave in relation to the interpretation of sections 5I and 5O of the CLA.

Dr Sparks' case was that sections 5I and 5O of the CLA raise an issue suitable for the grant of special leave Counsel for Dr Sparks submitted that the decision by the Court of Appeal meant that the state of the law in relation to these sections was uncertain and this necessitated a decision by the HCA to bring that uncertainty to an end.

Mr Hobson's case was that a grant of special leave is not a suitable vehicle and does not arise on the facts.

The HCA concluded in accordance with Mr Hobson, stating that the application was not a suitable vehicle in which to consider the issues of construction that were raised and special leave was refused with costs.