Sparks v Hobson; Gray v Hobson

1. [1]

   BASTEN JA: The respondent, Brendan Hobson, was born with Noonan Syndrome, one feature of which was a serious curvature of the spine resulting in a reduced chest cavity, particularly on the left side. In the course of 2009, Mr Hobson suffered increasing breathlessness and a pattern of restrictive airways disease. Corrective surgery was undertaken which involved a two-stage operation intended to relieve the pressure on the chest cavity by straightening the spine.

2. [2]

   The first stage of the operation took place on 13 November 2009, which was completed uneventfully in a surgical sense. The second stage was planned for 10 days later. However, whilst Mr Hobson was in the intensive care unit his respiratory condition deteriorated as a result of the left main airway (bronchus) becoming obstructed, with the result that pneumonia developed in the left lung. The second stage of the operation was brought forward to the evening of 17 November 2009.

3. [3]

   The procedure was expected to take some four hours, commencing shortly after 7pm. However, the senior anaesthetist, Dr Christopher Sparks, requested the surgeons to terminate the procedure at about 9.25pm, when the patient’s blood pressure and oxygen levels had dropped dramatically. Once the wound had been closed the patient, who had been in a prone position on the operating table, was returned to a supine position, whereupon his condition improved. Nevertheless, there had been a severe ischaemic collapse in his spinal column resulting in paraplegia.

4. [4]

   The operation was later completed successfully, but Mr Hobson did not recover the use of his lower limbs.

5. [5]

   Mr Hobson commenced proceedings against the hospital and various members of the team who operated on him, alleging negligence in various respects. In November 2016 a trial was conducted before Harrison J in the Common Law Division. On 17 May 2017 judgment was delivered for the plaintiff against the principal surgeon, Dr Gray, and the principal anaesthetist, Dr Sparks. Mr Hobson was awarded damages. [1] The particular of negligence which was upheld with respect to both practitioners was the failure to terminate the operation no later than 9.15pm that evening.

6. [6]

   Both the medical background and the procedural background have been fully explained in other judgments. For the reasons given by Macfarlan JA, it is clear that, with respect to the single particular of negligence which was upheld, the primary responsibility lay with the anaesthetist, Dr Sparks. I agree that the finding of negligence on the part of Dr Gray was not justified and Dr Gray’s appeal should be allowed.

7. [7]

   The situation with respect to Dr Sparks has led to differing conclusions. The following reasons address the case against Dr Sparks and the basis on which he has challenged the decision below.

8. [8]

   Much of the relevant material was set out clearly and comprehensively by the trial judge in reasons the bulk of which are not the subject of challenge on this appeal. Despite the complexity of the medical evidence, the number of experts called and the somewhat variable course taken on behalf of the plaintiff during the trial, the issues raised on the appeal are circumscribed; the trial judge rejected some 13 particulars of negligence in respect of which there is no notice of contention. [2] It is convenient to commence by identifying the relevant grounds of appeal.

Dr Sparks: grounds of appeal

1. [9]

   Dr Sparks pleaded seven grounds of appeal, six of which related to liability and the seventh to aspects of the assessment of damages.

2. [10]

   Grounds 1 and 2 alleged error in the application of s 5O of the Civil Liability Act 2002 (NSW), set out in the next part of these reasons. It is convenient to set the grounds out in full.

3. [11]

   The syntax of ground 3 was obscure, but it appeared to be directed to s 5I of the Civil Liability Act. In short, it alleged that the respondent suffered harm as a result of the materialisation of an inherent risk which could not be avoided by the exercise of reasonable care. The risk was identified as “risk of suffering spinal cord ischemia”.

4. [12]

   Ground 4 alleged that the judge failed to identify “the risk of harm” against which the appellant ought to have taken precautions. Ground 5 alleged that the judge had wrongly held there was a breach of duty merely because the risk of harm could have been avoided by doing something in a different way. Ground 6 asserted in broad terms that the time for terminating the procedure was a matter of clinical judgment for the anaesthetist and that allowing the operation to proceed for some 15 minutes after the last moment at which it should reasonably have been terminated (as identified by the trial judge) did not constitute a breach of duty.

5. [13]

   Grounds 1 and 2 are central to the appeal and it is convenient to turn to the operation of s 5O of the Civil Liability Act.

Civil Liability Act, s 5O

1. [14]

   Both appellants appealed from the rejection by the trial judge of their respective defences based on s 5O of the Civil Liability Act. There are a number of reasons for addressing the defence separately in each case. First, Dr Gray originally pleaded the section with five particulars, three of which appeared to be directed to s 5I. Neither of the other two potentially relevant particulars addressed the termination of the operation. [3] Dr Sparks, by contrast, originally pleaded the section, but without any particulars at all. [4] Secondly, although both appellants addressed the issue in written submissions at trial, they did so in somewhat disparate terms. [5] Thirdly, the nature of each defence case turned primarily upon the evidence of the expert witnesses practising in the field of the particular specialist.

2. [15]

   Before addressing these separate circumstances it is convenient to consider the scope and operation of s 5O. The section is located in Pt 1A of the Civil Liability Act dealing with “Negligence”. The Part does not constitute a comprehensive statement of the principles governing the tort of negligence, but identifies in separate divisions a number of specific principles. Section 5O appears in Div 6, entitled “Professional negligence”. The primary principle is stated in subs (1), but it is convenient to set out the whole of the section, including the subsidiary provisions:

3. [16]

   The section envisages a conflict in the evidence as to whether the defendant’s conduct was accepted by his or her peers as “competent professional practice.” In order to establish negligence, there will usually need to be expert evidence called by the plaintiff to the effect that the defendant failed to exercise reasonable care and skill in providing a relevant service. Under the general law, the defendant would seek to challenge that evidence by calling expert opinion to a contrary effect. For the plaintiff to succeed, the court would need to be satisfied on the probabilities that the appropriate standard was that for which the plaintiff’s experts contended. That position has been varied by s 5O(1); although expressed in the passive voice (“if it is established that …”), it has been broadly accepted that the section provides a defence. [6]

4. [17]

   Despite the common acceptance of the provision as a “defence”, that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to “competent professional practice” in the terms of s 5O(1). The heading of the section (“Standard of care for professionals”) indicates its purpose. Although the heading is not part of the Act, [7] it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.

5. [18]

   Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. This approach is consistent with Dobler and is not to say that a plaintiff must seek out and negative opinions inconsistent with those of the experts on whom he or she relies. [8] Beyond that proposition, Dobler did not turn upon the onus of proof. [9]

6. [19]

   This approach obtains support from an understanding of s 5O in its historical context. Prior to the enactment of s 5O, Australian courts identified the standard of care in medical negligence cases according to the principles set out in Rogers v Whitaker: [10]

7. [20]

   This statement rejected the approach then applied in the UK [11] by reference to a direction given to a jury by McNair J in Bolam v Friern Hospital Management Committee. [12] As Lord Scarman explained in Sidaway v Board of Governors of Bethlem Royal Hospital: [13]

8. [21]

   Lord Scarman himself preferred a different approach: [14]

9. [22]

   Australian authority, as explained by Gleeson CJ in Rosenberg v Percival, [15] adopted the dissenting view of Lord Scarman by which “the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness.” The Australian approach was not confined to cases of warnings and medical advice; it extended to diagnosis and treatment. [16]

10. [23]

    However, the language of s 5O differs from Bolam, which referred to a practice accepted as “proper” by a “responsible body of medical men”. Lord Scarman also referred to “responsible and competent professional opinion”. The differences may not have practical significance.

11. [24]

    In Dobler, Giles JA stated : [17]

12. [25]

    There remains a question as to the extent to which the trial judge has a discretion to reject evidence of a widely accepted professional practice. The judge may dismiss “peer professional opinion” as “irrational”, in accordance with subs 5O(2). By contrast, the older cases, while tending to use transferred epithets, refer to opinions of responsible and competent practitioners in the field. It may be that the reference in s 5O to “peer professional opinion” is to be so understood. But then it is difficult to understand how an irrational opinion could qualify as a relevant peer opinion.

13. [26]

    More importantly, the provision raises the possibility of a negative inference, namely that the court may not reject an opinion even though satisfied that it is unreasonable (though not irrational), or otherwise not one the court would itself adopt. Such a general negative inference should not be inferred; there will be other questions which will arise.

14. [27]

    First, there will be a question as to whether the evidence of one or two experts can satisfactorily establish opinions which are “widely accepted” in circumstances where such a view is contradicted by other evidence. No doubt evidence of “general professional opinion”, in addition to the personal opinion of the expert, is admissible in such circumstances. [18]

15. [28]

    Secondly, it will be a matter for the court to assess the significance of particular evidence. Evidence may be at a greater or lesser level of generality. At a high level of generality it may readily be accepted that an opinion is widely held amongst peers of the practitioner. However, the standard so identified may not assist greatly in resolving the particular case. On the other hand, the more particular the opinion, based on the specific circumstances of the case, the more difficult it may be to establish an opinion which can be described as “widely accepted” among fellow practitioners. Accordingly, whether or not evidence of medical opinion is properly described as conclusive in a particular case will depend upon a range of factors and not merely the fact that it can properly be described as not irrational.

16. [29]

    Subsections (3) and (4) do little more than explain what might otherwise readily have been inferred, namely that for an opinion to be “widely accepted” it need not be “universally accepted” and, if not universally accepted, there must be more than one opinion and may be more than one which is widely accepted. If the court is satisfied that the defendant’s conduct is considered competent according to widely accepted peer professional opinion, that opinion provides a standard against which to assess the claim.

17. [30]

    At trial, both practitioners raised s 5O as a defence. Counsel for the plaintiff treated the reasoning of this Court in McKenna v Hunter & New England Local Health District [19] as an effective answer to the defence. In McKenna Macfarlan JA stated that: [20]

18. [31]

    Although it is uncertain how this reasoning in McKenna will operate in particular cases, there is a risk in reformulating the statutory language. To speak of “a practice” adopted by a group of professional persons suggests a regular course of conduct adopted in particular circumstances. By contrast, the phrase “competent professional practice” is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often to result in an established practice. For example, although opinions may differ as to the conclusion to be drawn, there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice. The same judgment may be offered about the failure of counsel to call a defendant in a criminal trial, where no settled practice exists. Where an acquittal depends on establishing an affirmative defence and there is no other evidence to support the defence, it may be described as incompetent professional practice not to call the defendant who could have given such evidence. Where an opinion is given and challenged, it will be supported (or attacked) not by reference to some established practice, but by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner.

19. [32]

    There are other reasons for thinking that the reference to “competent professional practice” does not require evidence of “a practice”. First, it is the “manner” in which the defendant acted which must be the focus of the opinion. Secondly, if it were necessary to establish a practice, one might expect subs (3) to refer to “opinions … concerning that practice”, rather than “opinions … concerning a matter”.

20. [33]

    To take an example closer to the present case (but still hypothetical) an anaesthetist might allow an operation to proceed on the basis that two indicators remained within acceptable limits but a third indicator did not. An expert might express an opinion that such conduct was not competent practice, not because he or she had experienced the same circumstance in the past, or had read about it in a textbook, but because basic principles of human physiology led to that conclusion.

21. [34]

    Accordingly, although the language used in McKenna may well sufficiently describe many circumstances in which s 5O is invoked, I would not understand it as a general proposition as to the constraints imposed by s 5O(1).

22. [35]

    If that understanding is too restrictive and it is necessary to go further, I would not follow McKenna. The decision in McKenna having been overturned in the High Court, [21] the reasoning of the majority in this Court is no longer binding. As Kirby J noted in Garcia v National Australia Bank: [22]

23. [36]

    When the decision of an intermediate court of appeal is overturned by the High Court, the reasoning of the majority is no longer dispositive, even if the High Court does not directly reject it, as it did not with respect to the interpretation of s 5O in McKenna, having determined the appeal on a different point.

24. [37]

    There is some irony in the fact that the primary support for this conclusion is often sourced to a brief statement by Aickin J in dissent in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [23] stating:

25. [38]

    Given that the reasons of the intermediate court in a case where the decision has been reversed are no longer dispositive, they are analogous to the reasoning of a dissenting judge. Allsop P explained in Holmes a Court v Papaconstuntinos [24] that dissenting judgments “may contain valuable discussions of legal principle”, but that is “a different thing to being taken as an exposition of the common law to be applied.” The same proposition applies with respect to discussion of statutes.

26. [39]

    The position would, of course, be quite different if the High Court, despite reversing the decision in this Court in McKenna, had approved the reasoning with respect to s 5O. The reasoning would not then form part of the ratio, but it would clearly obtain the authority of dicta of the High Court. However, that did not happen in the present case. The High Court held that the plaintiff must fail on the basis that there was no duty of care owed to relatives of the deceased. The Court continued: [25]

27. [40]

    While the reasoning of this Court in McKenna as to the scope and operation of s 5O is not to be disregarded, there is no obligation on this Court, as a matter of precedent, to follow it. For the reasons set out above, in my view it is too restrictive. [26]

Civil Liability Act, s 5I

1. [41]

   Dr Sparks also called in aid the exclusion from liability for the materialisation of an inherent risk, as set out in s 5I of the Civil Liability Act. The section provides:

2. [42]

   The scope and operation of the provision has been the subject of careful consideration in earlier decisions, including Paul v Cooke. [27] The apparently simple language of the provision is fraught with difficulties.

3. [43]

   On one reading of subs (2), that which “cannot be avoided” by the exercise of reasonable care is the “risk”; the alternative reading is that it is the materialisation of the risk which cannot be avoided by exercise of reasonable care. To speak of “avoiding” a risk is meaningful in some circumstances, but not in others. Ordinary usage would suggest that it is the occurrence (the materialisation of the risk) which may or may not be “avoided”. Context suggests that that is the intended meaning because the provision only operates where a person has suffered harm as a result of the “materialisation of an inherent risk.”

4. [44]

   The next problem stems from the use of the words “cannot be” avoided. A risk is less than a certainty; it may be quantified in a particular case at, say, 25%. In three out of four cases the harm will not materialise and in one sense “can” be avoided. However, the section should be understood as referring to the exercise of skill having no causal consequence in terms of the outcome. Thus, in a sense, the provision may be read as operating where the skill of the surgeon does not affect the risk of an adverse outcome.

5. [45]

   Of course, the application of s 5I will only arise in circumstances where (staying with the medical example) the patient has had an adverse outcome, in which case liability will depend upon establishing negligence and causation. Assuming negligence, the plaintiff will fail if she cannot demonstrate a causal connection between the negligence and the harm. In that case, s 5I is not required by the defendant; if causation is established, s 5I is not engaged.

6. [46]

   Rogers v Whitaker is often cited as a paradigm of an inherent risk. The patient had an operation on her right eye, which resulted in her losing her sight in her left eye as a result of a condition known as sympathetic ophthalmia. Evidence suggested that the risk materialised in fewer than one in 10,000 cases. The operation had been carried out with the required skill and care. Rogers itself involved a failure to warn and thus s 5I would not have applied. [28]

7. [47]

   There may be cases, of which Paul v Cooke was one, where negligence may be conceded and the case will turn on causation. However, as Leeming JA explained, where s 5I is raised, “it unquestionably remains for the plaintiff to establish s 5D legal causation, and the logical consequence of so doing may (and often will be) to negate s 5I.” [29]

8. [48]

   This is not a case where the risk of harm was less than 50%, so that, had the negligence not occurred, the operation would have been conducted on a different occasion when, on the probabilities, the harm that in fact occurred would not have occurred.

9. [49]

   Section 5I has no application in the present case. The risk which accompanied the surgery was the neurological collapse of the spinal column which in fact occurred. There is no doubt that if the operation had ceased at a point in time before the collapse occurred (which was probably shortly before the operation in fact ceased) the risk would not have materialised; the harm would not have occurred. That result would have been achieved in the exercise of reasonable care and skill. The question for the determination of the Court was whether the continuation of the operation involved a failure to exercise reasonable care and skill. Because the definition of “inherent risk” in s 5I assumes that the exercise of reasonable care and skill would not affect the outcome, it is not clear how the section was said to be engaged in the present case.

Evidence and findings at trial

1. [50]

   There were five methods adopted for the monitoring of the patient’s condition during surgery. These were (a) blood pressure, (b) oxygen levels in blood, (c) CO2 levels in blood, (d) exhaled CO2 levels and (e) spinal cord monitoring. The last (spinal cord monitoring) was abandoned, but that proved to be only indirectly relevant to breach of duty; it may conveniently be addressed first. Dr Sparks based his decision-making on the first two parameters; a critical question was whether he should have paid greater attention to the CO2 levels.

(a) spinal cord monitoring

1. [51]

   It is convenient to consider first the significance of the spinal cord monitoring. The importance of such monitoring arose from the fact that part of the arterial blood supply to the spinal cord had been diminished through the first procedure. An episode of low blood pressure (hypotension) was liable to place the spinal cord at risk through loss of blood supply. A number of criticisms were made of the monitoring procedure. First, it was important to obtain a baseline reading. The neurophysiologist responsible for the monitoring, Associate Professor Jim Lagopoulos gave evidence that he arrived at the theatre after the procedure was already underway. He said that a normal baseline reading was not able to be established. It was common ground that at or about 8.35pm Dr Sparks administered vecuronium to improve the patient’s ventilation. The drug, a muscle relaxant, led to the discontinuation of the spinal cord monitoring as it had become ineffective.

2. [52]

   There was inconsistent evidence given at the trial as to whether the readings from the monitoring were ever normal and as to whether Dr Gray or Dr Sparks was advised of the fact that they were abnormal, to the extent that they were. However, the expert evidence did not support the proposition that the surgery should have been terminated in light of the results of the monitoring. Rather, the concern focused on the fact that the monitoring ceased at about 8.35pm, when vecuronium was administered. At that stage, Dr Sparks believed that there was a problem with ventilation, and hoped that administration of vecuronium would correct the problem. The trial judge accepted that this was a reasonable step to take. He continued: [30]

3. [53]

   The judge then considered what warnings might have been available had the spinal cord monitoring continued after 8.30pm. Dr Westbrook had given evidence that “had spinal-cord monitoring been properly established in a timely manner that there would have been advanced warning to the clinicians that spinal cord perfusion was threatened particularly during the transient, earlier episodes of hypoxaemia.” [31] Dr Michael Johnson, an orthopaedic surgeon, gave evidence that he would have “insisted that spinal cord monitoring was available.” [32] Dr Peter Heath also gave evidence of the importance of effective monitoring. In effect there was a wealth of evidence from the plaintiff’s experts that spinal cord monitoring was an important safety mechanism in circumstances where blood supply to the spinal cord was reduced by the earlier surgery, and where even transient elements of hypotension suggested cardiovascular instability which needed to be monitored. On the other hand Dr Geoffrey Askin, who was called by Dr Gray, stated: [33]

4. [54]

   The trial judge had extracted, at [66] and [67], lengthy extracts from the evidence of Dr Peter Silbert, a neurologist and expert in spinal cord monitoring. Dr Silbert’s conclusion was that, had spinal cord monitoring continued, it would not have detected abnormalities prior to 9.25pm, which was the time at which the collapse in other indicators led Dr Sparks to request that the surgery end. The trial judge placed weight on that evidence, and the evidence of other experts to similar effect. The consequence was that although the absence of spinal cord monitoring should have led to caution on the part of the anaesthetist and the surgeon, its presence would not have altered the outcome. This conclusion was expressed in two parts. First, at [223], the judge concluded that continuing the operation beyond 8.30pm was perfectly reasonable. Allowing that use of vecuronium was also a reasonable step, “there was … at the time no useful place for spinal cord monitoring.” [34]

5. [55]

   The second stage in the argument was addressed at [243] in the following terms:

(b) measuring other conditions

1. [56]

   Putting monitoring to one side, there were four other measurable parameters taken into account. Dr Sparks relied primarily on arterial blood pressure and oxygen saturation in the blood, as supporting continuation of the surgery. Until those fell below acceptable limits, he allowed the surgery to continue.

2. [57]

   The challenge to his decision-making was based upon his failure to act upon the concerns raised by the other parameters demonstrating that carbon dioxide was not being removed from the blood stream. There is no doubt that the readings caused him serious concern and led to him telephoning from the operating theatre a senior colleague, Dr Stephen Barratt with whom Dr Sparks had performed a bronchoscopy at the intensive care unit during the day before the operation. It was agreed that the telephone call was at approximately 8.50pm. Dr Barratt gave the following evidence in an affidavit: [35]

3. [58]

   The trial judge summarised the plaintiff’s case at trial in the following terms:

4. [59]

   The findings of the trial judge in relation to this aspect of the case appeared as the fifth element in a series: [36]

5. [60]

   On the appeal, Dr Sparks challenged the sentence italicised above. However, that sentence could be omitted without interfering with the process of reasoning.

6. [61]

   The judge then set out in some detail Dr Westbrook’s evidence, together with the responses of Dr Forrest and Dr Manasiev. He referred to Dr Sparks’ own evidence and to the expert evidence of two orthopaedic surgeons in the following terms: [37]

7. [62]

   Before turning to the evidence of Dr Barratt, on whom the trial judge placed some weight, it is convenient to return to the evidence given by Drs Westbrook and Forrest addressing their joint report. Dr Westbrook had set out in his affidavit and a chart annexed to the affidavit the evidence of steadily deteriorating metabolic conditions and their consequence. In responding to questioning from the plaintiff’s counsel he stated: [38]

8. [63]

   Dr Forrest agreed that with “a benefit of hindsight I think you couldn’t argue that [it] would have been preferable to abandon the surgery earlier than … the time that it was abandoned.” [39] He was challenged as to whether that conclusion could only be advanced with hindsight. He referred to the steps which were taken, the difficult choice the doctors were required to make given the possible effects of abandoning the surgery, and the attempts made to correct the underlying cases of metabolic acidosis. He continued: [40]

9. [64]

   It is then necessary to return to the oral evidence of Dr Barratt, upon which the trial judge placed significant weight.

10. [65]

    Dr Barratt was cross-examined about the conversation he had with Dr Sparks over the telephone. His evidence was that the conversation took place at about 9.30pm, but it was accepted that the phone call occurred just prior to 9pm. He agreed that the discussion had included the possibility of cardiac compression generating the potential for hypotension with the consequence that critical organs might not be adequately perfused. The discussion had included Dr Sparks’ concern about high arterial carbon dioxide and the fact that he had checked that the patient was properly ventilated “but he still could not explain the problem.” The cross-examination continued: [41]

11. [66]

    The trial judge’s conclusion, based on that evidence was expressed in the following terms: [42]

12. [67]

    Finally, the judge considered that the absence of spinal cord monitoring “heightened the need to act conservatively and to proceed expeditiously. It told against the appropriateness of taking an expectant approach when the solution to Mr Hobson’s difficulties had not emerged or was not understood.”

13. [68]

    So far as Dr Sparks is concerned, and without reference to s 5O of the Civil Liability Act, in my view that conclusion was sound.

(a) approach adopted at trial

1. [69]

   For reasons set out above, the proper course in a case where s 5O has been pleaded and has been the subject of evidence is to determine first the standard of care to be applied, before assessing the alleged negligence against that standard. The trial judge did not take that approach but rather, in accordance with what was understood to be the appropriate course at the time, considered s 5O as a defence to be addressed after findings had been made on the plaintiff’s case. That indeed was the manner in which counsel for Dr Sparks dealt with the matter in written submissions at trial.

2. [70]

   Counsel for Dr Sparks asserted that where there is evidence to demonstrate that the defendant acted in a manner which was widely accepted by peer professional opinion as competent professional practice, that opinion determined the standard of care and the expert evidence was conclusive. [43] Counsel further asserted that the approach adopted by this Court in McKenna should not be followed as it was inconsistent with the reasoning in Dobler. However, if McKenna were to be followed, it was submitted that the conduct of the defendant in exercising judgment as to the time for cessation of the operation constituted a “practice”. The submissions simply relied upon the evidence of Dr Forrest as establishing the defence. In oral submissions, there was reference to the reasoning in McKenna, but no further attempt to grapple with the evidential requirements of s 5O.

3. [71]

   In these circumstances, it is unsurprising that the trial judge dealt with the matter by way of a defence, noting the paucity of evidence in support of it. Having already rejected the views of the defendants’ doctors as to whether the conduct of the practitioners was negligent, the judge considered that the defence under s 5O had also effectively been rejected. [44]

4. [72]

   It is correct to say that the reasoning of the trial judge did not address the submission that Dr Forrest’s evidence could not be rejected unless it was shown to be irrational. Nor did it expressly address the proposition that Dr Forrest’s opinion was “conclusive” as to the relevant standard of care. Grounds 1 and 2 in Dr Sparks’ notice of appeal rely on these matters as demonstrating error.

5. [73]

   On the appeal, Dr Sparks’ written submissions identified the evidence relied on in support of the s 5O test as that of Dr Forrest (called in Dr Sparks’ case) and the evidence of Dr Manasiev, called for Dr Gray but who expressed opinions as to the conduct of both Dr Gray and Dr Sparks. It was submitted that the opinions were unchallenged.

6. [74]

   As Simpson JA explains, the trial did not proceed smoothly. The pleadings left much to be desired as to detail; parties were joined and then removed; the plaintiff’s case was recast on more than one occasion, and the evidence of the experts was, inevitably in these circumstances, not always clearly directed to the issues as they finally emerged. The task of the trial judge in these circumstances was fraught with difficulties. Nevertheless, it is apparent that s 5O was relied upon by Dr Sparks and was not correctly disposed of at trial. It is therefore necessary for this Court to address the evidence.

7. [75]

   Despite the conclusion reached above that the proper approach where s 5O is relied upon is to consider all the evidence in order to reach satisfaction as to the relevant standard of competent professional practice, to adopt such a course on this appeal would be impractical for two reasons, both of which operated at the trial. First, one cannot seek to identify a standard of competent professional practice in the abstract; the standard must relate to the specific ways in which negligence is alleged. Because the pleadings of the plaintiff bore limited resemblance to the case ultimately presented for determination, the plaintiff’s case provided a moving target for the defendant. (Although there were grumbles in Dr Sparks’ written submissions at trial, no issue of procedural unfairness was raised on appeal.) Secondly, the reasoning of the trial judge followed the structure presented by the parties. It would not be possible to recast that reasoning on appeal to comply with a structure not presented at trial.

(b) expert opinion evidence – anaesthetists

1. [76]

   The primary evidence relied upon by Dr Sparks was that of Dr Forrest, an expert anaesthetist called by Dr Sparks. In his principal report (the only report which addressed this issue) the final question and answer were as follows: [45]

2. [77]

   In its terms, this answer constituted an opinion that the relevant steps taken by Dr Sparks involved competent professional practice. However, it did not squarely address what became the critical issue, namely whether the failure to terminate the operation at an earlier point satisfied that test.

3. [78]

   Of course, the answer to question 5 should not be read in isolation. Question 2 invited Dr Forrest to “review the blood gas readings, the blood pressure results and the tidal flow measurements” and express an opinion as to the most likely cause of the collapse at 9.35pm. Dr Forrest answered that question in the following manner: [46]

4. [79]

   The next question asked whether it was appropriate and reasonable for Dr Sparks to direct that the surgery cease at about 9.30pm. He said that it was and continued: [47]

5. [80]

   Finally, Dr Forrest was asked to express his own opinion as to the standard of anaesthetic management during surgery. In concluding that the standard was reasonable, he stated:

6. [81]

   As with the answer to question 5, in relation to widely accepted peer professional opinion, Dr Forrest’s statement as to his own view deals with the question of earlier termination only indirectly. The final conclusion “it was reasonable to continue the anaesthetic at that time” is not precise as to the time in question. Secondly, unlike Dr Sparks, Dr Forrest, in explaining Mr Hobson’s situation, placed weight upon the raised carbon dioxide levels and their effect in causing constriction of the pulmonary arteries and therefore pulmonary vascular resistance, leading to decreased cardiac output and ultimately right ventricular failure. It was clear at some point that the only answer to those problems was to cease surgery and return the patient to a supine position, as eventually happened.

7. [82]

   The submission that Dr Forrest’s views were not challenged was only partly true. In the course of his joint evidence with Dr Westbrook, senior counsel for the plaintiff obtained Dr Forrest’s agreement that there was continuous deterioration of the plaintiff’s metabolic state, and that acidosis was a harbinger of ongoing problems which could, unresolved, have proved fatal. The cross-examination ended with the following exchange: [48]

8. [83]

   Neither the questions nor the answers given by the witness were entirely clear. The question to be answered by the Court is whether the evidence of Dr Forrest, taken as a whole, established the proposition that it was widely accepted peer professional opinion that it would be competent professional practice to continue the administration of anaesthetic for the purpose of surgery in all the circumstances. That required taking into account the need for the corrective surgery, and the deterioration in the patient’s condition as at about 9pm, given the expectation that it would be relieved by ceasing the operation and returning the patient to the supine position. To the extent that the evidence did address that proposition, it is by no means clear that Dr Forrest expressed a clear view about it.

9. [84]

   Dr Sparks sought to obtain further assistance as to the relevant standard of competent professional practice in the evidence of Dr Manasiev. Dr Manasiev is a consultant anaesthetist and was called on behalf of Dr Gray. The doctor was asked a number of questions; question 2 was whether Dr Gray should have halted or advised “the halting of the surgery following the earlier episodes of hypoxia and hypotension … and related complications reported in the anaesthetic record between approximately 19:10 and 21:20.” [49] After dealing with two earlier events which are no longer significant, Dr Manasiev dealt with “a transient period of desaturation and relative hypotension” at 20.35. The event occurred at the time of placement of a pedicle screw in the patient’s spine. He identified three reasons for not halting the operation at that time. First, the cause was transient and, secondly, the blood pressure and saturation returned to normal values once the pressure was relieved. He continued: [50]

10. [85]

    After dealing with the appropriateness of halting the surgery at 21.20, Dr Manasiev noted that “the management of the ventilatory and cardiovascular parameters are primarily the responsibility of the anaesthetist.” [51] He then repeated, in relation to Dr Sparks, his opinion as to competent medical practice as at the times identified in question 2.

11. [86]

    Dr Manasiev did not participate in the joint conclave of anaesthetists with Drs Westbrook and Forrest. However, he gave oral evidence at the trial. In the course of cross-examination he gave the following evidence: [52]

12. [87]

    In his original report, Dr Manasiev did not squarely address the effect on his opinion of the evidence accepted by Dr Westbrook and Dr Forrest of the plaintiff’s continuously deteriorating metabolic state which was likely to lead to a cardiovascular collapse, if not remedied. Further, the evidence in the course of the trial progressed beyond the parameters put to Dr Manasiev for the purposes of his report. The question was not whether the events around 8.30pm should have led to the termination of the operation but whether the events around 9pm should have led to termination. No evidence was led from Dr Manasiev in relation to these further considerations.

13. [88]

    In summary, the evidence relied upon by Dr Sparks fell short of establishing a standard, widely accepted in Australia, of competent professional practice. A bald statement by a practitioner, however well qualified, without reference to the specific factors giving rise to a claim of negligence may well not persuade the court that there is a relevant standard identified in the evidence. Further, a bald claim that the practice is “widely accepted” as falling within the scope of competent professional practice may not be accepted by the court as evidence of that fact. To persuade the court that the terms of the section have been satisfied one would generally expect evidence which stated the basis of the standard. Further, the evidence is more likely to be persuasive if it seeks to grapple with possible conflicting views in a reasoned manner.

14. [89]

    That is not to say that any of the evidence was “irrational”. Rather, the test of irrationality applies to the opinion as to competent professional practice. The Court must always be satisfied as to two antecedent questions, namely that the opinion addresses the conduct as found at the trial and that the evidence supports the view that the expressed opinion was, at the time of the conduct, “widely accepted in Australia”.

15. [90]

    In the result, the erroneous approach to the terms of s 5O was not material to the outcome. It follows that Dr Sparks’ appeal should be rejected.

Inherent risk – s 5I

1. [91]

   Adopting the reasoning of Leeming JA in Paul v Cooke, the trial judge rejected the submission that Mr Hobson’s injury was the result of an inherent risk which could not have been avoided by the exercise of reasonable care and skill. He accepted that “Mr Hobson was always going to be vulnerable to ischemia during the second stage of the surgery due to the first stage surgery ligation of the segmental spinal arteries that necessarily reduced blood supply to the spinal cord.” [53] He repeated that aspect of his medical condition, amongst others, which exposed him to a “pre-surgical anatomical vulnerability to spinal cord stroke and the effects of hypotension.” [54] He reasoned that, because the risk could have been avoided by the exercise of reasonable care and skill, it was not an “inherent risk” within the meaning of s 5I(2).

2. [92]

   On the appeal, counsel for Dr Sparks repeated the submissions which had not found favour at the trial. The submissions ran into one of two difficulties; either they adopted a colloquial meaning of “inherent risk” which does not conform to the specific statutory definition, or they assumed a favourable answer with respect to negligence and causation, which would, of course, render reliance on s 5I otiose. As noted above, the circumstances in which s 5I will provide a valuable defence are likely to be few and far between. This case is not one of them. It is clear that the harm might not have occurred if the operation had terminated at an earlier point in time. It certainly cannot be said that the harm “could not” have materialised through exercise of reasonable care and skill. Furthermore, the issue in the case was whether the harm eventuated as a result of the failure to exercise reasonable care and skill. That question cannot be avoided by relying on s 5I.

Conclusion

1. [93]

   As the trial judge fairly recognised, Dr Sparks was faced with a difficult intraoperative choice. However, it was not one which required an instantaneous decision, nor one which required further information or advice. The patient’s metabolic decline was continuing despite Dr Sparks having taken every available step to alleviate the condition whilst the operation proceeded. Whilst the operation continued, the patient was heading for cardiovascular failure. The operation was expected to last for some four hours; at 9pm the operation was only half completed, on that timescale. (The orthopaedic experts stated that it had 2-4 hours to go. [55] ) The decision to allow it to continue for 30 minutes after Dr Sparks had sought help from two experienced anaesthetists, without success, involved more than an erroneous clinical judgment; the trial judge was correct to find a breach of duty of care.

Dr Gray

1. [94]

   The responsibility of Dr Gray as the principal surgeon is to be determined on the expert evidence regarding medical practice in Australia. Although the Court was referred to authorities dealing with the role of the surgeon, the defence under s 5O is not established according to a legal standard as such, but rather by widely accepted peer professional opinion. Case-law will not assist in identifying the role of each of the medical practitioners in the operating theatre; that needed to be determined on the facts of the case as they appeared in the evidence; no question of legal principle was raised.

2. [95]

   In passages which have already been considered, the trial judge treated the liability of Dr Gray and Dr Sparks as necessarily to be assessed on the same basis. There were certainly reasons why that might have been thought appropriate. First, because Dr Gray was in charge of the operation, and would be the person primarily responsible for monitoring its progress, one might expect that he would be kept informed of any difficulties with anaesthesia including ventilation of the lungs and levels of blood gases. Secondly, he accepted in his evidence (and particularly his affidavit of 7 November 2016) that he was being informed by Dr Lagopoulos of the findings based on the spinal cord monitoring, up until the monitoring was terminated. His evidence treated the decision-making as jointly undertaken: [56]

3. [96]

   In this evidence, and in his oral evidence, Dr Gray spoke in terms of a consultative team working together.

4. [97]

   There were countervailing considerations. First, as Macfarlan JA explains, the evidence did not demonstrate knowledge on Dr Gray’s part which would suggest that he had full understanding of the difficulties which Dr Sparks was facing. Secondly, Dr Sparks was cross-examined by counsel for Dr Lagopoulos (whilst he was still a defendant): [57]

5. [98]

   It was not suggested to Dr Sparks that he had at particular times conveyed to Dr Gray his specific concerns, or entered into a consultation as to how long the operation was likely to take.

6. [99]

   Thirdly, there was the evidence of Dr Manasiev to which reference has been made in a different context: [58]

7. [100]

   That passage was raised with Dr Manasiev by counsel for the plaintiff in cross-examination: [59]

8. [101]

   According to Dr Gray, Dr Cree’s inquiry as to whether the surgery should stop, with the response from Dr Sparks saying they could proceed, came only minutes before Dr Sparks told them to stop. Dr Cree’s question, as Dr Gray recalled it, was in response to a remark by Dr Sparks, “I’m having problems with ventilating …”. It can reasonably be inferred that no other information suggesting significant difficulties had been conveyed by Dr Sparks after the spinal cord monitoring terminated. Dr Gray also gave evidence that he was not aware of Dr Sparks leaving the operating table to make telephone calls.

9. [102]

   Based on this evidence, I agree with Macfarlan JA that the case in negligence against Dr Gray should have been dismissed.

10. [103]

    Given this conclusion, it is not necessary to address the other grounds of appeal raised by Dr Gray.

Damages

1. [104]

   Dr Gray raised three specific challenges to the assessment of damages undertaken by the trial judge. The same challenges were raised in Dr Sparks’ appeal, but Dr Sparks made no specific submissions in relation to these issues, merely adopting the submissions made on behalf of Dr Gray. Although Dr Gray’s appeal has been upheld and the issues do not arise in his case, it is necessary to deal with the challenges thus adopted by Dr Sparks.

2. [105]

   I agree that each of the challenges should be rejected, for the reasons given by Macfarlan JA.

Conclusion

1. [106]

   For these reasons I agree with the orders proposed by Macfarlan JA.

2. [107]

   MACFARLAN JA: Mr Brendan Hobson, the respondent, was born in 1985. He suffers from Noonan Syndrome, a genetic disorder that prevents normal development in various parts of the body. As a result of the disorder, Mr Hobson’s breast bone was too close to his spine. This restricted his ability to fill his lungs with air, and hence to breathe. Without surgical intervention to create more space in his chest cavity by straightening his spine, his prognosis was grave.

3. [108]

   Surgery to correct this problem was designed to take place in two stages. The first operation was successfully undertaken on 13 November 2009. The second, which occurred on 17 November 2009, had to be terminated before its intended conclusion. As a result of that operation, Mr Hobson became a paraplegic.

4. [109]

   In the proceedings now under appeal, Mr Hobson initially claimed damages from the hospital where the operation took place and from a number of members of the surgical team. Ultimately, his claim proceeded only against the principal surgeon, Dr Randolph Gray, and the principal anaesthetist, Dr Christopher Sparks. Dr Gray is an experienced specialist orthopaedic/spine surgeon and Dr Sparks is an experienced specialist anaesthesiologist.

5. [110]

   After an 11 day hearing before Harrison J in the Common Law Division of the Supreme Court, his Honour found that Drs Gray and Sparks had breached the duties of care that they owed to Mr Hobson and were liable in negligence for damages in the amount of $3,828,075.

6. [111]

   The basis of the decision against both doctors was that, in light of adverse blood gas readings for carbon dioxide obtained in the course of the operation, they should have caused the operation to be terminated earlier than occurred. If the operation had been so terminated, Mr Hobson would not have had a significant cardio-vascular collapse at about 21:30 on 17 November, his spine would not have been damaged and he would not have become a paraplegic.

7. [112]

   His Honour rejected a number of other particulars of negligence, including that the operation should not have proceeded at all on 17 November.

8. [113]

   Drs Gray and Sparks each appeal against the primary judge’s decision on liability and, in three limited respects, against his Honour’s assessment of damages. As to the latter, they contend that his Honour erred in the allowances that he made for past and future domestic care, and for motor vehicle expenses. Mr Hobson has not filed a cross appeal or notice of contention.

9. [114]

   As well as contending that the primary judge erred in finding that they acted negligently, the appellants rely, as they did at first instance, on sections 5 I and 5 O of the Civil Liability Act 2002 (NSW). These sections are in the following terms:

10. [115]

    Before turning to the evidence adduced at first instance which is relevant to the issues on appeal, it is convenient to give a brief description of the doctors involved in the events in question and of the medical experts, and to summarise the issues that arose in relation to the second operation.

11. [116]

    Dr Gray was the principal surgeon. He was assisted by Dr Cree and Dr Lyons. Dr Sparks was the principal anaesthetist. He was assisted by Dr Wang. Dr Lagopoulos, a specialist neurophysiologist, was a part of the surgical team but was not present between 20:30 and 21:30 when the events of concern on the appeal occurred. Dr Stephen Barratt, a specialist anaesthetist, was not present at the operation but spoke to Dr Sparks at about 20:50 when Dr Sparks called him for advice. At about the same time, Dr Sparks also called Dr Marshman, a cardiothoracic surgeon. Dr Marshman did not give evidence.

12. [117]

    At the trial, Mr Hobson tendered expert reports by Dr John Westbrook (a specialist anaesthetist), Dr James Wilson-Macdonald and Dr Michael Johnson (the latter two being specialist orthopaedic surgeons). The appellants called expert anaesthetic evidence from Dr Paul Forrest and Dr Bojidar Manasiev, and expert orthopaedic evidence from Dr Geoff Askin.

13. [118]

    In their written submissions, Dr Sparks’ counsel described the physiological issues that arose in relation to the second operation as follows:

14. [119]

    To this should be added that the cardiac compression indicated by high carbon dioxide readings can result in inadequate supply of oxygenated blood to the body’s organs including, as occurred in Mr Hobson’s case, to the spinal cord.

Dr Christopher Sparks

1. [120]

   In his affidavit of 11 November 2015, Dr Sparks said that he understood that the close proximity of Mr Hobson’s vertebral column to his sternum was displacing his heart into his left thorax. Dr Sparks’ understanding was that without surgery this condition could be fatal, and that it followed that surgical intervention was required to save Mr Hobson’s life. Dr Sparks understood that prior to the operation on 17 November 2009 the intensive care unit (“ICU”) was having difficulty ventilating Mr Hobson because of compression of his left main bronchus, and that Mr Hobson was developing pneumonia.

2. [121]

   When Mr Hobson was turned to the prone (that is, face down) position at the commencement of the operation on 17 November, Dr Sparks asked the surgeons if they could “minimise downward force on Mr Hobson’s spine during the operation as it could cause cardiovascular compression”. Dr Sparks recognised the possibility of increased compression on Mr Hobson’s pulmonary artery whilst in the prone position.

3. [122]

   Dr Sparks continued:

4. [123]

   In relation to the administration of vecuronium (a muscle relaxant) at 20:30, Dr Sparks gave the following answer to an interrogatory:

5. [124]

   In relation to the termination of the operation, Dr Sparks stated:

6. [125]

   Dr Sparks gave the following further evidence in the course of his cross-examination.

7. [126]

   Dr Sparks said that at around 20:30, in response to Mr Hobson’s raised carbon dioxide levels, he decided that vecuronium would be administered. He gave evidence that there were two ways in which the vecuronium might have reduced Mr Hobson's carbon dioxide reading to a more acceptable level. First, “it decreases the oxygen consumption and carbon dioxide production on muscles, and secondly, [it was administered] in the hope that it would improve his ventilation which is the normal cause of a raised carbon dioxide impaired ventilation, total volume minute volume”.

8. [127]

   Dr Sparks said that during the operation Mr Hobson was being effectively ventilated, and therefore his carbon dioxide level should have been normal. Instead it was high, indicating that something was wrong. Dr Sparks gave evidence that there are three causes of an elevated carbon dioxide level. One is a problem in ventilation, another is increased carbon dioxide production (in this case, possibly as a result of a slight fever which Mr Hobson had), and the third is a cardiac problem. By a cardiac problem, Dr Sparks was referring to “dead space” in one of Mr Hobson's lungs. This meant that “part of the lungs was being effectively ventilated but there was no blood being delivered to that part of the lungs. Therefore, the carbon dioxide from that blood was not being removed from the circulation and delivered to the breathing tube and exhaled outside the patient. It was going around for another lap”.

9. [128]

   Dr Sparks agreed that the blood gas samples taken at 20:08 and 21:00 indicated a very high carbon dioxide level and significant respiratory acidosis (that is, low bicarbonate concentration), and that “there was early evidence of an increasing lactate level suggesting inadequate organ perfusion”. He agreed that he had no clear means of reversing what he described as “a definite metabolic and respiratory acidosis” (see [24(e)] quoted in [118] above), and that there was a deteriorating trend in Mr Hobson’s condition. He gave evidence that at the time he called Dr Barratt he was concerned about Mr Hobson's high arterial carbon dioxide level, which was “one and a half times normal”.

10. [129]

    Dr Sparks agreed that the respiratory difficulty caused by compression was certain to be worse in the prone position. He said that he became conscious of the problem about which he called Drs Barratt and Marshman at least 40 minutes before he made the calls, that is from the moment that Mr Hobson was turned into the prone position. He also stated that Mr Hobson “had a squashed heart” from when he was turned prone.

11. [130]

    Dr Sparks said that he understood that Mr Hobson “needed life-saving surgery within 24 hours of when we were together discussing the patient at 2.00pm” (on 17 November), and that he believed that “the cardiac compression would always be there, unless we corrected it, and that therefore to make him better, we had to make him worse in the short [term]”. He said that he “felt compelled to go on while the oxygen and the blood pressure were normal to high”, and made a decision that he would continue with the operation while Mr Hobson’s systolic blood pressure and oxygen levels were within this range. He said that with the “other factors you can survive and get through and still have a normal outcome,” but that “those are the two things that you can’t - if they become abnormal, the oxygen or the low blood pressure, the patient will definitely suffer permanent damage. … They were the two I decided would be my criteria for stopping the operation”. He said that until Mr Hobson’s blood pressure and oxygen dropped (at around 21:25) the “risk of not going ahead exceeded the risk of going ahead”.

12. [131]

    Dr Sparks agreed that after the operation, Mr Hobson continued to be treated in the ICU and that, as a result of that treatment, a few weeks later Mr Hobson was in a position “where his respiratory condition was such that surgery proceeded without any of the difficulties so far as the administration of anaesthesia was concerned, which existed at the time of the second surgery [on 17 November 2009]”. Dr Sparks then answered the following question in the affirmative:

Dr Randolph Gray

1. [132]

   Dr Gray described Mr Hobson’s respiratory difficulties and the circumstances in which the 17 November operation was terminated as follows:

2. [133]

   Dr Gray gave the following presently relevant answers to interrogatories:

3. [134]

   In cross-examination, Dr Gray explained the circumstances of the administration of vecuronium at 20:30 as follows:

4. [135]

   Dr Gray then agreed to the proposition that whilst the operation was continuing there could have been conversations between those present that he “may not necessarily be listening to or hearing”. He said that he was not aware that during the operation, Dr Sparks left his position at the head of the patient and went to make a telephone call.

5. [136]

   Dr Gray agreed that the first surgery (on 13 November) had had the effect of reducing the blood supply to the spinal column and that it would be necessary for him “to be even more vigilant [in the 17 November operation] than he would otherwise be in [the] circumstance[s] because the blood supply had been compromised”.

6. [137]

   Dr Gray described the information he received during the 17 November surgery as follows:

7. [138]

   He agreed that the spinal cord can be damaged as a consequence of low cardiac output.

8. [139]

   Dr Gray gave the following evidence concerning his role and that of the anaesthetist:

9. [140]

   Dr Gray said that he could not recollect being aware during the operation that Mr Hobson had a carbon dioxide level of 65 and that he could not recollect being told at about 20:50 that the breastplate of the Jackson table (a specially designed table for operating on patients in the prone position) was pressing on or compressing Mr Hobson’s heart. Nor could he recollect being told that the pulmonary artery was being compressed, preventing proper perfusion of Mr Hobson’s lungs with blood.

Dr Stephen Barratt

1. [141]

   Dr Barratt indicated in his affidavit of 12 November 2015 that he had worked as a specialist anaesthetist for 22 years.

2. [142]

   Dr Barratt said that on the evening of 17 November he received a call from Dr Sparks whilst Dr Sparks was in the operating theatre with Mr Hobson. Dr Barratt continued:

3. [143]

   Dr Barratt’s evidence in cross-examination included the following:

Dr John Westbrook

1. [144]

   Dr Westbrook gave evidence as an expert anaesthetist. His report of 6 November 2016 included the following:

Dr Paul Forrest

1. [145]

   Dr Forrest also gave evidence as an expert anaesthetist.

2. [146]

   In his report of 26 October 2013 Dr Forrest gave the following answer in response to a question as to the likely cause of the cardiac collapse which resulted in Mr Hobson’s paraplegia:

3. [147]

   Dr Forrest gave the following answer to a question as to whether Dr Sparks provided a reasonable standard of anaesthetic management to Mr Hobson the operation:

4. [148]

   In answer to a question as to whether Dr Sparks, in his anaesthetic management of Mr Hobson, acted “in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, at the time the service was provided”, Dr Forrest opined that Mr Hobson “was appropriately monitored intra-operatively, and the anaesthetic drugs, dosages and fluid administration were also appropriate”. He continued:

The joint report of Drs Westbrook and Forrest

1. [149]

   Dr Forrest was not specifically asked for the purposes of his individual report whether it would have been appropriate for Dr Sparks to have given the direction to terminate the operation at an earlier time than that at which it was given. However Question 14 recorded in the joint report asked Drs Westbrook and Forrest what steps, if any, should the anaesthetist have taken (particularly including recommending cessation of the surgery) in light of the indications available from Mr Hobson’s blood pressure and decreased oxygen saturation at 18:50, 19:10, 20:35 and 21:20 hours. Their answers were as follows:

2. [150]

   Question 21 enquired when (prior to achievement of its objective) should the surgery have ceased, if at all. The doctors’ answers were as follows:

3. [151]

   The following evidence was given by the doctors in the course of their joint oral evidence:

4. [152]

   The following evidence was given after counsel suggested to Dr Westbrook that he was using hindsight in expressing his views:

Dr Bojidar Manasiev

1. [153]

   Dr Manasiev was asked whether Dr Gray should have advised that the surgery be halted at four particular times, namely 18:50, 19:10, 20.35 and 21:20. Dr Manasiev said the following in relation to the last two of these times:

2. [154]

   Dr Manasiev was asked whether Dr Gray was negligent in continuing the operation between 19:10 and 21:20. He responded as follows:

3. [155]

   In cross-examination the following exchange occurred:

The joint orthopaedic / neurosurgery / neurological expert evidence of Drs Johnson, Askin and Wilson-Macdonald

1. [156]

   In the joint report, Drs Johnson, Askin and Wilson-Macdonald gave the following answers which are presently relevant:

2. [157]

   In the course of their joint oral evidence, Dr Askin was asked whether, in the answer to Question 4 quoted above, the experts used the abbreviation “ie” in the sense of “that is” or to mean “eg”, that is “for example”. He responded as follows:

THE PRIMARY JUDGMENT

1. [158]

   The primary judge held that the decision to operate on Mr Hobson on the evening of 17 November was justified. His Honour found that both Dr Gray and Dr Sparks “considered that there was a considerable risk that Mr Hobson might die if the surgery were not immediately performed”, and that “Mr Hobson’s condition before the operation was at worst associated with the strong possibility of his death if the operation was not brought forward”.

2. [159]

   His Honour also held that “the administration of vecuronium at 20.30 was reasonable in order to improve Mr Hobson’s ventilation” and noted that it was “not in issue that Mr Hobson had not sustained the neurological injury of which he now complains by 20.30”. His Honour further held that the decision to continue the surgery “at and from 20.30 was reasonable”.

3. [160]

   His Honour stated however that he was not satisfied that either Dr Gray or Dr Sparks “conformed to the relevant standard of care in failing to halt surgery before 21.25”. He referred in this context to the opinion, expressed by Drs Johnson, Askin and Wilson-Macdonald in their joint report, that the operation should have ceased “when the anaesthetists reached the stage that they were unable to maintain satisfactory cardio respiratory parameters” (see [156] above). His Honour noted that these experts made no precise reference to a time when the surgery should have ceased, but he also noted that satisfactory cardio respiratory parameters “were not being maintained by 20.30”.

4. [161]

   His Honour then stated that Dr Barratt’s evidence was “critical”, and described the passage from his cross-examination quoted in [143] above as “extremely instructive”. It seems that his Honour was particularly referring to Dr Barratt’s evidence that Dr Sparks told him that “the various metabolic indicators were critical”, and to his evidence that it was not appropriate to look at “the blood pressure and blood oxygen levels alone when making a decision whether to persist or abandon surgery”.

5. [162]

   His Honour continued:

6. [163]

   His Honour stated his conclusions as follows:

7. [164]

   His Honour said the following in relation to the appellants’ reliance on s 5 I of the Civil Liability Act, which is concerned with the materialisation of an inherent risk:

8. [165]

   The primary judge also rejected the respondent’s defence under s 5 O of the Civil Liability Act, stating:

9. [166]

   The primary judge treated as uncontroversial that Mr Hobson’s paraplegia occurred after 21:15 and before 21:30. Accordingly, his Honour found that causation was established because if the operation had been abandoned by 21:15 at the latest (as, on his Honour’s findings, it should have been), Mr Hobson would not have become a paraplegic.

Dr Sparks’ appeal on the negligence findings against him

1. [167]

   The circumstances of the operation were as follows.

2. [168]

   The curvature of Mr Hobson’s spine, associated with his Noonan Syndrome, caused compression of his heart, and of major blood vessels. This rendered it difficult for his lungs to ventilate and for him to breathe. The November 2009 surgical operations were designed to correct the curvature, so as to alleviate the compression.

3. [169]

   Mr Hobson’s condition whilst in the ICU after the first operation, and before the second, indicated that the latter operation had to be undertaken urgently.

4. [170]

   As the second operation (like the first) had to be performed whilst Mr Hobson was in the prone position, the compression was likely to be exacerbated during the operation. Dr Sparks described the compression as “certain to be worse in the prone position” and said that Mr Hobson “had a squashed heart since we turned him prone”. It was therefore clear that at any time during the operation the compression could be relieved, at least to some extent, by terminating the operation and returning Mr Hobson to the supine position.

5. [171]

   Mr Hobson’s high blood carbon dioxide level at 20:30 to 20:35 was, as Dr Sparks described it in his answers to interrogatories, “very serious”. It was serious because it indicated that there was significant pressure on a pulmonary artery, thereby impeding cardiac output and organ perfusion. Such low cardiac output could lead to organ damage, including to the spine (per Dr Barratt at [143] above). As recognised by Dr Forrest, the low pulmonary blood flow (which he said was the same as a low cardiac output) did in fact lead to “the cardio-vascular collapse that occurred around 21:30”. That collapse caused Mr Hobson’s paraplegia.

6. [172]

   Dr Sparks made a decision at about 20:30 to administer vecuronium to attempt to correct Mr Hobson’s carbon dioxide level, notwithstanding that the vecuronium would (and did) prevent spinal cord monitoring from being undertaken for the remainder of the operation. (Spinal cord monitoring is used to assist in identifying possible neurological compromise). The vecuronium was unsuccessful in correcting the carbon dioxide level. I note in passing that there was a conflict in the evidence, which the primary judge did not resolve, as to whether the monitoring had already failed by the time the vecuronium was administered (Judgment [184]-[186]).

7. [173]

   Dr Sparks then tried, unsuccessfully, to identify and correct the carbon dioxide problem by a variety of other means. However by 20:50, when he called Dr Barratt and Dr Marshman, he had exhausted all possibilities. Those doctors were unable to suggest any other intra-operative steps to correct the problem.

8. [174]

   At least by 20:50, Dr Sparks formed the view, consistent with that expressed to him at about that time by Dr Barratt, that the cause of Mr Hobson’s high carbon dioxide was “cardiac and not the ventilation” (see [122] above), that is, that Mr Hobson’s lung was not being fully perfused by blood. There was therefore “dead space” in it. As noted earlier, this was a serious problem, indicating the potential for lack of proper blood supply to cause damage to his organs, including his spinal cord. Dr Westbrook considered that a blood gas sample taken at 21:01 indicated that the problem had worsened and that “further and eventual cardiovascular collapse was now inevitable in the absence of any corrective measures”. There was no evidence directly contradicting this opinion. What Dr Westbrook saw as the inevitable occurred at about 21:25 when Mr Hobson suffered a cardio-vascular collapse.

9. [175]

   There was no evidence that between his two brief phone calls (commencing at about 20:50) and the sudden blood pressure drop (at about 21:25) Dr Sparks took any steps to correct the cardiac problem he had identified. Nor was there any evidence that he could have taken any steps that would have corrected the problem, short of directing termination of the operation and having Mr Hobson returned to the supine position.

10. [176]

    Dr Sparks took the view that, notwithstanding the existence of the carbon dioxide, and therefore cardiac problem, he should not direct termination of the operation whilst Mr Hobson's oxygen and blood pressure were in the normal to high range. He stated that this was “an urgent operation to save life” and the “risk of not going ahead exceeded the risk of going ahead” with the procedure (see [130] above). He also referred to his assumption that “… the cardiac compression would always be there, unless we corrected it”, and that, in order to “make [Mr Hobson] better, we had to make him worse in the short term”. Dr Sparks accepted that the problem of cardiac compression could be relieved by halting the surgery and turning Mr Hobson into the supine position. He said however that this would only have deferred Mr Hobson’s cardiac compression problem, not solved it.

11. [177]

    From about 20:50 onwards, Dr Sparks thus elected to be guided only by the oxygen and blood pressure readings as his criteria for stopping the operation, thereby, effectively, ignoring the carbon dioxide, and therefore cardiac, problem. He took this view notwithstanding that (1) the carbon dioxide readings indicated that Mr Hobson might suffer catastrophic injury if they continued, (2) he believed that it would be several hours before the operation would be finished, and (3) Mr Hobson’s carbon dioxide level (and therefore blood circulation) was capable of being substantially improved by terminating the operation and returning Mr Hobson to the supine position. Further, from about 20:50 Dr Sparks treated the oxygen and blood pressure readings as the only relevant indicators, as Dr Forrest acknowledged, these are the main, but not the only, relevant indicators.

12. [178]

    In assessing the reasonableness of Dr Sparks’ conduct, the tense and difficult situation he was in must be fully recognised. Nevertheless, like the primary judge, I consider that by not directing or advising termination of the operation prior to at least 21:20, Dr Sparks failed to provide the standard of reasonable care expected of a specialist anaesthetist (see Rogers v Whitaker (1992) 175 CLR 479 at 483; [1992] HCA 58). I have taken this view for the following reasons.

13. [179]

    First, Dr Sparks’ failure to direct or advise termination of the operation was not limited to a short period of time. Dr Sparks’ call to Dr Barratt took place at about 20:50, and his call to Dr Marshman took place at about 20:55. Although the evidence does not indicate the precise duration of these calls, it appears that they were brief. Even allowing 10 minutes in total for the calls, Dr Sparks still had at least 20 minutes (until 21:20) between the time at which he had exhausted all possibilities for correcting Mr Hobson’s carbon dioxide level, and the time at which Mr Hobson’s blood pressure and oxygen level dropped (21:25), causing Dr Sparks to advise that the surgery be halted. More likely, the calls were briefer and that period was therefore longer.

14. [180]

    Secondly, although the operation was urgent and Mr Hobson’s pre-operative condition might ultimately have caused his death or serious injury, there was no suggestion that such outcomes would eventuate if the operation were not completed within a matter of a few hours. For example, it was apparent from Dr Gray’s evidence that it would have been acceptable for the operation to proceed the following morning, the reason for it being performed on the evening of 17 November being related to the unavailability of personnel the next day. Similarly, Dr Sparks gave evidence that he thought the operation was urgent in the sense that it should be done within 24 hours of the discussion that occurred at 2pm on 17 November.

15. [181]

    In essence, I consider that Dr Sparks made an unreasonable decision to ignore a serious and imminent intra-operative danger to Mr Hobson’s well-being when Dr Sparks knew that the other risk with which he was concerned (namely the risk to Mr Hobson if the operation were not completed) did not have the same immediacy. As the primary judge found, it was “not appropriate to take the risk that something that could not be explained [and had been unable to be rectified] would or might somehow spontaneously resolve or improve” (Judgment [242]). This was particularly inappropriate given that there were several hours remaining before the operation would be completed, and that Dr Sparks knew that serious consequences could (and, as it transpired, did) result from the continuation of the cardiac compression which caused Mr Hobson’s high carbon dioxide readings.

16. [182]

    Thirdly, Dr Sparks had to assess and respond to the immediate danger to Mr Hobson (rather than the more remote risks that could eventuate if the operation was not completed) because Dr Sparks’ duty as principal anaesthetist was to protect the patient’s well-being whilst the operation was in progress. His role was thus essentially to manage and respond to the ventilatory and cardio-vascular indicators of Mr Hobson’s condition. It was not for Dr Sparks to assess the urgency of the operation and decide that it justified a serious and immediate intra-operative risk to Mr Hobson being ignored, at least not without consulting Dr Gray who, as principal surgeon, was head of the surgical team. There was no evidence to indicate that such consultation occurred between 20:30 and before 21:25, if at all. Instead, Dr Sparks’ evidence was that “[b]ecause it was emergency surgery I had resolved in my mind that while the oxygenation and blood pressure were normal to high it was appropriate for the surgery to continue” (emphasis added).

17. [183]

    My conclusion is consistent with the expert evidence of Dr Westbrook, who considered that the blood gas samples taken at 20:37 and 20:51 demonstrated that by then Mr Hobson “had profound respiratory and metabolic acidosis” and that, there being “no clear means of reversing this trend surgery should have been abandoned at this point” (presumably a reference to 20:51). Dr Wilson-MacDonald considered that the operation should have been abandoned even earlier, at 20:37, in light of the blood gas analysis results obtained at that time (see the joint report quoted in [156] above).

18. [184]

    I do not consider that Dr Forrest’s evidence requires a different conclusion to that which I have reached. In the joint expert anaesthetists’ report, Dr Forrest opined that, in the circumstances that existed at 20:35, it was “reasonable to attempt to continue to improve the plaintiff’s ventilation and haemodynamic state”. Similarly, in his oral evidence, he said that “it was reasonable to continue and to make further efforts to alleviate both [Mr Hobson’s] “respiratory and metabolic acidosis” (ie the consequences of Mr Hobson’s high carbon dioxide level). However neither in the joint report, nor in his own report and oral evidence, did Dr Forrest focus on the circumstances that existed after Dr Sparks’ calls to Drs Barratt and Marshman at about 20:50; namely that all possibilities for improving Mr Hobson’s condition (short of terminating the operation) had been exhausted, and that Mr Hobson’s condition was deteriorating and could not be described as transient. The existence of those circumstances was evident from Dr Sparks’ agreement in cross-examination that when blood gas samples were taken at 20:37 and 20:51 Mr Hobson had “a definite metabolic and respiratory acidosis,” that Dr Sparks had “no clear means of reversing this”, and that there was “a deteriorating trend” in Mr Hobson’s condition.

19. [185]

    The existence of these circumstances contradicts an assumption upon which Dr Forrest founded his opinion, expressed in the joint report and oral evidence, that it was reasonable for the operation to continue after 20:30 ([147] and [150] above). This assumption was that there were still steps that could be, but had not yet been, taken to improve Mr Hobson’s carbon dioxide level, and thereby correct the underlying cardiac problem that it reflected.

20. [186]

    Moreover, a reason Dr Forrest gave for his opinion was that the surgery “was considered to be potentially life-saving at that time”. Dr Forrest did not however address the question of whether the anaesthetist should assess and take account of such a factor without consulting the principal surgeon.

21. [187]

    Like the primary judge, I therefore do not consider that Dr Forrest’s evidence provided a compelling guide to the proper outcome of the negligence claim against Dr Sparks.

22. [188]

    Dr Manasiev’s evidence suffered from similar deficiencies. Moreover, he was asked to provide an opinion as to whether the surgery should have been halted at four specific points of time (18:50, 19:10, 20:35 and 21:20) (see [153] above). He did not, at least in terms, express a view as to the continuation of the operation in the specific period 20:50 to 21:20, when all possibilities for rectifying Mr Hobson’s carbon dioxide level problem had been exhausted.

23. [189]

    For these reasons, I consider that Dr Sparks breached the duty of care he owed to Mr Hobson.

Dr Gray’s appeal on the negligence finding against him

1. [190]

   In determining Dr Gray’s appeal, it is particularly important to recognise his role as the principal surgeon leading a team of specialist medical staff. Although as head of that team he had ultimate authority to make significant decisions regarding the operation, he was entitled to rely on the other team members to perform their duties.

2. [191]

   The surgeon’s role as a member of a team was described in Ingram v Fitzgerald [1936] NZLR 905 at 913-4 as follows:

3. [192]

   This passage was referred to with approval by this Court in Elliott v Bickerstaff (1999) 48 NSWLR 214; [1999] NSWCA 453. At issue in that case was whether a surgeon had failed to exercise due care and skill in relation to sponges which were left in a patient’s abdominal cavity after an operation concluded. The Court held that the surgeon, although “the master of ceremonies”, was entitled to rely on theatre staff to ensure that the sponges were removed (at [103]).

4. [193]

   Whether such reliance is justified in any particular case must of course depend upon the circumstances. In the present case, the problem that arose fell within the responsibilities of Dr Sparks as principal anaesthetist. The primary judge did not find that Dr Gray had an obligation to apprise himself either of the problem, or of information that might have alerted him to its existence, in the absence of Dr Sparks putting him on notice of it. On appeal, Mr Hobson does not contend that any such finding should have been made.

5. [194]

   Instead, critical to the primary judge’s conclusion that Dr Gray was negligent were his Honour’s findings that during the operation Dr Gray “was being alerted to the problems encountered by Dr Sparks” and “was aware of Mr Hobson’s metabolic deterioration” (Judgment [265]).

6. [195]

   It does seem unlikely that, in the period between approximately 20:30 (when vecuronium was administered) and 21:20 (approximately the latest time at which Mr Hobson’s injury could have been avoided by termination of the operation) Dr Sparks would not have said anything to Dr Gray regarding Dr Sparks’ serious concerns about Mr Hobson’s carbon dioxide readings. Nevertheless, there was no evidence that Dr Sparks did so, and therefore no evidentiary basis for the primary judge’s findings. As a result, the negligence finding against Dr Gray cannot stand.

7. [196]

   In his written submissions, Mr Hobson contended that:

8. [197]

   In those submissions however Mr Hobson did not refer to any evidence of that awareness, except for the following question and answer in Dr Gray’s cross-examination:

9. [198]

   Moreover, none of the three references given by Mr Hobson’s senior counsel in oral argument constituted such evidence. The first related to a discussion at about 20:30 concerning the administration of vecuronium (transcript 139.42), the second indicated that during the operation Dr Gray was getting “feedback” concerning Mr Hobson’s blood pressure and oxygenation (transcript 149.32), and the third concerned additional information (including information about Mr Hobson’s carbon dioxide levels) conveyed to Dr Gray at about 21:25, shortly before the operation was terminated (Dr Gray’s answer to interrogatory 31(d); see also above at [133]).

10. [199]

    Thus Dr Gray’s evidence regarding information he received during the operation about Mr Hobson’s vital signs did not extend to his carbon dioxide readings. The information covered only what were undoubtedly the main indicators, being blood oxygenation and blood pressure (see [137] above).

11. [200]

    Certainly, Dr Gray was involved in the discussion at about 20:30 which led to the administration of vecuronium to attempt to reduce Mr Hobson’s carbon dioxide level. However, in the absence of any suggestion to him to the contrary, Dr Gray was entitled to assume that this parameter had become satisfactory. Neither the primary judge nor any expert witness suggested otherwise.

12. [201]

    In summary, the surgery that took place on 17 November was complex, protracted and difficult. It was Dr Sparks’ role to monitor indicators of Mr Hobson’s condition during the surgery, the two main ones being Mr Hobson’s blood oxygenation and blood pressure, although other indicators were relevant. At least in respect of the other relevant indicators, Dr Gray was entitled to rely on Dr Sparks to inform him of any matter of concern without Dr Gray making any inquiry. There is no evidence that Dr Sparks did so in the period 20:50 to 21:20, and the evidence did not indicate that any matter came to Dr Gray’s notice during that time that should have caused him to make an inquiry as to Mr Hobson’s carbon dioxide level. Without such information, Dr Gray was not negligent in failing to direct termination of the operation during that period. When Dr Sparks did advise termination of the operation at around 21:25, Dr Gray promptly did so. Dr Gray’s appeal on liability therefore succeeds.

Section 5 I of the Civil Liability Act – inherent risk

1. [202]

   The terms of s 5 I are quoted in [114] above. As this Court pointed out in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311, the terms of the section raise a number of issues as to their meaning.

2. [203]

   For present purposes, it is sufficient to refer to Leeming JA’s description (with which Ward JA agreed) of the question that s 5 I required to be answered in that case, namely whether “the ‘risk of something occurring’, that is the ‘risk of intra-operative rupture followed by stroke’, could have been avoided by the exercise of reasonable care and skill” (at [67]). To the same effect was Payne JA’s formulation of the relevant question in The Nominal Defendant v Buck Cooper [2017] NSWCA 280 at [112]: “did the respondent face the same inevitable risk even if Mr Lament [in whose stead the Nominal Defendant stood] exercised reasonable care and skill?”.

3. [204]

   The facts in Paul v Cooke, a rare case in which s 5 I operated to exempt a defendant from liability, were as follows. In 2003 the defendant radiologist negligently failed to diagnose the plaintiff as having an intercranial aneurysm. In 2006 the aneurysm was diagnosed and the subject of an operation during which the plaintiff suffered a cranial rupture. That rupture did not result from any lack of reasonable care in performance of the operation, rather it involved the materialisation of a risk associated with the operation. The plaintiff alleged that, had she been diagnosed in 2003, the operation that would have been performed at that time would more likely than not have resolved the aneurysm without complication. Therefore she argued that she was exposed to risks in 2006 that she would not have been exposed to but for the radiologist’s negligence in 2003. The Court held that there was no material increase in the risks associated with the type of operation that was performed in 2006 as compared to that which would have been performed in 2003. Further, the Court held that the intra-operative risk of cranial rupture was a risk associated with the type of operation that the plaintiff underwent in 2006, whenever such operation may have been performed. The risk that materialised was therefore not created by the defendant radiologist’s negligence and constituted an inherent risk of the type of operation performed in 2006. The Court accordingly found that s 5 I applied to exempt the radiologist from liability.

4. [205]

   In the present case, the appellants contended that there existed an unavoidable risk of neurological injury (including paralysis), that this risk was an inherent risk of the surgery and that the risk materialised. They argued that, in these circumstances, s 5 I exempts them from liability.

5. [206]

   There is undoubtedly a risk that neurological injury may occur in the course of complex surgery such as that performed in the present case. It may be assumed that some such injuries may occur despite all reasonable care being taken and are therefore unavoidable. Other such injuries may occur, or the risk of such injuries may be increased, due to the failure of one or more members of the surgical team to conduct the operation with reasonable skill and care, as I have held to be the case here. It would be inconsistent with the express words of s 5 I(2) for the section to apply in respect of the latter injuries. In Paul v Cooke at [9] and [77], the Court expressly refrained from opining on such a situation, as it did not arise in that case. There, the operation was conducted with reasonable care.

6. [207]

   The question then arises as to what scope exists for the operation of s 5 I. In my view, there is very little. If there is a finding of negligence by the defendant, the section will usually be inapplicable. Paul v Cooke is however an example, albeit likely to be rare, of a case in which the section does apply.

7. [208]

   For these reasons I conclude, as did the primary judge, that s 5 I did not provide the appellants with a defence to Mr Hobson’s claim.

Section 5 O of the Civil Liability Act – peer professional opinion

1. [209]

   The terms of s 5 O are quoted in [114] above. The section provides a defence, with the onus of proof lying on the defendant (Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702 at [21]). It is unnecessary to consider the application of s 5 O to the claim against Dr Gray as I have concluded that the evidence does not establish that Dr Gray was negligent. The position so far as Dr Sparks is concerned is as follows.

2. [210]

   In McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Reports 82-158, with the concurrence of Beazley P, I concluded that s 5 O was inapplicable to exempt the defendant in that case from liability. The decision was reversed by the High Court on other grounds (Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44), and the High Court did not consider s 5 O. The appellants submitted that this Court’s decision in McKenna was wrong insofar as it dealt with s 5 O, and that s 5 O does not depend on the existence of a “practice” at the time the conduct occurred. This is incorrect for the following reasons.

3. [211]

   Section 5 O uses the past tense (“at the relevant time … was widely accepted”) to refer to the relevant peer professional opinion. Thus, 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.

4. [212]

   In McKenna, I described the background to the enactment of s 5 O, referring in particular to Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118, Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493, Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 and Rogers v Whitaker. I concluded as follows:

5. [213]

   I then referred to the wide variety of circumstances that were relevant to the reasonableness of the defendant’s conduct in that case, and continued:

6. [214]

   These observations are applicable to the present case, which does not relate (at least so far as the issues of negligence on appeal are concerned) to any particular point of medical practice, such as the use of a particular drug, surgical technique or item of surgical equipment. Rather, as in McKenna, determination of the issue of negligence requires reference to a variety of factual considerations including:

7. [215]

   Evidence from a number of witnesses highlighted the unusual nature of the operation. For example, Dr Barratt had never seen this type of surgery performed on a patient with Noonan Syndrome and Dr Forrest described the operation as involving “a very unusual and difficult anaesthetic challenge”. It can be assumed that the particular events that occurred in the course of the operation rendered the situation even more unusual.

8. [216]

   The appellants submitted that the following evidence given by Drs Forrest and Manasiev demonstrated that s 5 O was applicable.

9. [217]

   In his report, Dr Forrest stated:

10. [218]

    It is apparent from the manner in which this evidence was expressed that Dr Forrest was saying, in effect, that in his view the appellants acted reasonably and that he considered that a wide range of his professional peers would be likely to take the same view. He did not point to an established practice, and opine that it was followed in the present case. Indeed, it is probable that he could not have expressed such an opinion because, as in McKenna (see [165] quoted above at [213]), it is unlikely that “there would have occurred … a number of situations in which there were sufficient features in common with the present case to enable it to be said that there was a practice concerning how such a situation was to be dealt with by a competent medical practitioner”.

11. [219]

    Dr Manasiev stated in his report that Dr Sparks’ management of Mr Hobson in the operation “would be considered widely accepted in Australia by peer professional opinion as competent medical practice”. He elaborated on this in cross-examination in the following exchange:

12. [220]

    My comments concerning Dr Forrest’s evidence on this topic are equally applicable to that of Dr Manasiev. Whilst Dr Manasiev gave reasons as to why he thought that the conduct was reasonable, he did not point to any particular practice. Expert evidence that says no more than that the expert considers the defendant to have acted reasonably, and in a way that would be widely regarded as acceptable, is insufficient to establish the existence of a “practice” for the purpose of s 5 O. Accordingly, as the primary judge held, s 5 O does not exempt Dr Sparks from liability for his negligence.

Past domestic assistance

1. [221]

   Mr Hobson claimed at first instance that, from the time he commenced rehabilitation at Ryde Rehabilitation Hospital in 2010 to the date of the judgment at first instance, he required 40 hours per week gratuitous domestic assistance and personal care. The appellants submitted that the evidence only established a need of 20 hours per week. The primary judge found that the need was 30 hours per week.

2. [222]

   On appeal, the appellants submitted that the primary judge’s allowance was excessive because it exceeded the care needs estimated by Mr Hobson’s sister, Ms Siobhan Hobson, who is Mr Hobson’s principal carer. The appellants rely on the following exchange in Ms Hobson’s oral evidence:

3. [223]

   In relation to this evidence, the primary judge referred to the inherent difficulty of estimating the amount of time taken to provide care where the carer’s principal concern is, understandably, providing the care rather than noting the time involved. His Honour continued:

4. [224]

   In my view it was open to his Honour to adopt this approach. In addition to the part of Ms Hobson’s oral evidence relied upon by the appellants, his Honour had before him affidavits of Mr and Ms Hobson describing what was involved in Mr Hobson’s care. Moreover, his Honour was able to observe both witnesses give evidence.

5. [225]

   His Honour’s decision was an evaluative one, necessarily requiring an impressionistic assessment of the whole of the evidence (Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [67], [76]). This Court will not interfere with such a decision unless it involves a misunderstanding of the evidence, an error of principle, or is outside the range of decisions that might reasonably be arrived at. None of these criteria for intervention have been satisfied.

6. [226]

   I add that the appellants’ additional submission, which focused on the composition of Ms Hobson’s estimate of the time required for Mr Hobson’s care, should likewise be rejected. It was for the primary judge to assess the detail of the relevant evidence and, in the absence of any error of principle or clear unreasonableness, this Court should not intervene.

Future domestic assistance

1. [227]

   The appellants made three submissions in relation to the primary judge’s assessment of Mr Hobson’s needs for future domestic assistance.

2. [228]

   First, they submitted that his Honour’s estimate of the hours of assistance needed was erroneous because his Honour relied on an analogy between the time taken for care of an infant and that required for care of a disabled and paraplegic adult, when there was no evidence of the amount of time the care of an infant required.

3. [229]

   I reject this submission. The primary judge was entitled to rely on his experience of life to make a practical assessment of the evidence before him, which included evidence-in-chief of Dr Yeo, a rehabilitation expert. Dr Yeo’s assessment of the hours of care needed was ultimately adopted by his Honour. His Honour’s analogy did no more than indicate that he thought that Dr Yeo’s assessment was realistic.

4. [230]

   Secondly, the appellants complained that the primary judge did not take into account concessions made by Dr Yeo in cross-examination, particularly as to the time required for house cleaning. However, as his Honour had referred to those concessions earlier in his judgment, it cannot be concluded that he overlooked them. His Honour’s task was to make a practical assessment of the whole of the evidence. In doing so, he was not bound to accept or reject any particular part of it. It was open to his Honour to find, as he clearly did, that Dr Yeo’s evidence-in-chief was more realistic than parts of his evidence in cross-examination. Accordingly, this submission should be rejected.

5. [231]

   Thirdly, the appellants submitted that the primary judge erred in not basing his calculations on the hourly fee for domestic assistance charged by a firm named Absolute Domestics, which was referred to in the expert report of Ms Tchan (who was called by the respondent). Instead, his Honour based his calculations on the higher rate used by Ms Hardy (who was called by the appellants). This rate was slightly less than that given by Ms Alach (who was also called by the respondent). It was open to his Honour to take this course because the report which identified the rate charged by Absolute Domestics was dated almost four years prior to the hearing before his Honour, whereas the reports of Ms Hardy and Ms Alach were provided in October 2015.

6. [232]

   By means of Dr Gray’s written submissions in reply on the appeal, the appellants submitted, for the first time, that the primary judge failed to take into account evidence of Mr Hobson’s ability to undertake domestic tasks prior to his paraplegia. The appellants conceded however that in the Court below they did not seek to take advantage of the proposition that Mr Hobson had such abilities (Dr Gray’s reply submissions [25]). In these circumstances, this Court should not conclude from the absence of express reference to this evidence that the primary judge did not take it into account as part of the evidence from which he formed a (necessarily impressionistic) conclusion as to Mr Hobson’s future needs resulting from his injury. The submission should therefore be rejected.

Motor vehicle expenses

1. [233]

   After taking into account a variety of circumstances, the primary judge concluded that a buffer of $240,000 for motor vehicle expenses was appropriate. His Honour had to consider matters such as when Mr Hobson would require use of a vehicle and the type of vehicle that he would need, bearing in mind the extent of his disabilities.

2. [234]

   His Honour took the view that the amount of $291,730 claimed by Mr Hobson was excessive because it involved some double-counting. He also concluded that the figure of $125,000 that the appellants accepted as justified was insufficient. His Honour concluded that a buffer of $240,000 was appropriate.

3. [235]

   The appellants submitted on appeal that there was no evidence to found the primary judge’s assumption that Mr Hobson desired to drive a vehicle modified to account for his disabilities. However, in his affidavit Mr Hobson stated that he was “very motivated” to drive a modified vehicle, but that “financially I am unable to do so at the moment” ([51]).

4. [236]

   The appellants’ challenge to the buffer his Honour adopted for motor vehicle expenses did not otherwise raise any point of principle. Nor did the appellants demonstrate that the buffer was outside the range of those reasonably available to be adopted. Their challenge must accordingly be rejected.

CONCLUSIONS AND ORDERS

1. [237]

   For the reasons I have given Dr Sparks, but not Dr Gray, is liable to Mr Hobson for damages and the appellants’ challenges to the primary judge’s assessment of those damages fail.

2. [238]

   I propose the following orders:

   1. (1)

      Dismiss Dr Sparks’ appeal with costs;

   2. (2)

      Allow Dr Gray’s appeal;

   3. (3)

      Set aside orders 1 and 2 made at first instance so far as they relate to Dr Gray;

   4. (4)

      Judgment for Dr Gray on the respondent’s claim against him.

   5. (5)

      Order the respondent to pay Dr Gray’s costs of the proceedings at first instance and on appeal;

   6. (6)

      Grant the respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in relation to Dr Gray’s appeal.

3. [239]

   SIMPSON JA: In November 2009 the respondent, Brendan Hobson, underwent spinal surgery at the Royal North Shore Hospital (“RNSH”), designed to be performed in two stages. The first stage was performed uneventfully on 13 November. The second stage commenced in the evening of 17 November but was not completed. During the course of this surgery a complication occurred which led to the premature termination of the surgery. As a result of the complication the respondent is now permanently paraplegic.

4. [240]

   In 2013 the respondent commenced proceedings in the Supreme Court of NSW. He claimed that his paraplegia was caused by negligence and/or breach of contract in the treatment afforded to him by RNSH, by the principal orthopaedic surgeon who performed the surgery (Dr Randolph Gray), by a neurophysiologist who was engaged to provide spinal cord monitoring during the course of the surgery (Dr Jim Lagopoulos), and by the principal anaesthetist (Dr Christopher Sparks) engaged to provide anaesthetic services for the purposes of the surgery. Each was named as a defendant in the proceedings. It will be necessary to say more in due course about the nature of the respondent’s allegations against the various defendants.

5. [241]

   A trial commenced on 7 November 2016. On the tenth day of hearing, 21 November, the proceedings against RNSH and Dr Lagopoulos were resolved and consent orders filed. The case proceeded against Dr Gray and Dr Sparks only. I mention this because it casts some light on evidence to which it will be necessary to refer.

6. [242]

   On 17 May 2017 the primary judge delivered judgment. Although the respondent had framed his case against each doctor on multiple bases, he rejected all but one. He found that both Dr Gray as orthopaedic surgeon, and Dr Sparks as anaesthetist, had breached the duty of care they undoubtedly owed to the respondent by failing to terminate the surgery earlier than they did. He awarded damages quantified at $3,828,075.

7. [243]

   Dr Gray and Dr Sparks now appeal against the judgment. As there is no Notice of Contention filed on behalf of the respondent, the issues on the appeal are narrow, confined to whether the evidence in the trial permitted the conclusion that either appellant was (or both were) negligent in the treatment afforded to the respondent, by failing to cease the surgery at an earlier time than it was in fact terminated.

8. [244]

   I have had the advantage of reading in draft the judgment of Macfarlan JA. I agree, for the reasons given by his Honour, that the appeal by Dr Gray should be upheld. Essentially that is because Dr Gray as principal orthopaedic surgeon was entitled to rely on Dr Sparks as principal anaesthetist for advice as to the anaesthetic condition of the respondent, and it was the respondent’s anaesthetic condition that dictated the cessation of the surgery.

9. [245]

   With respect to the appeal by Dr Sparks, I take a different view from that of Macfarlan JA. In my opinion his appeal also should be upheld.

10. [246]

    In order to explain my conclusions, it is necessary to state, in some detail, the relevant facts. Although I am conscious that this involves some repetition of facts already stated in the judgment of Macfarlan JA, for the convenience of the reader, I will restate those facts and circumstances that have led me to my conclusion. The following account of the relevant facts should be read in conjunction with the account given by Macfarlan JA.

Background facts

1. [247]

   There is relatively little dispute about the material facts. The following account is drawn from medical records, reports based on medical records, and affidavits and oral evidence of the principal participants and authors of the reports.

2. [248]

   The respondent, who was born in 1985, suffered a significant genetic disorder (Noonan Syndrome) that caused thoracic lordoscoliosis (which resort to a medical dictionary tells me means forward and lateral curvature of the spine). As a child he underwent a number of surgical procedures.

3. [249]

   The scoliosis, in turn, caused respiratory lung disease. From about September 2008 the symptoms of the lung disease became progressively worse. In September 2009 the respondent was reviewed by Dr Gray, who held an appointment as a Visiting Medical Officer at RNSH. After investigation and consultation with other medical practitioners, Dr Gray recommended spinal surgery, to be undertaken in two stages. As indicated above, the first stage was performed without mishap on 13 November 2009. It was then anticipated that the second stage would be performed about 10 days later. It was clear that the surgery itself carried risks. Dr Gray explained these to the respondent as early as 18 September; he specifically mentioned “neurological injury including paralysis” as one of the risks of proceeding with the surgery. It was also accepted that the first surgery would have the effect of compromising the blood supply to the respondent’s spine and increasing the risk of damage to the spine in the second stage surgery. The second stage of surgery as proposed involved (inter alia) insertion of screws (called “pedicle screws”) into the left and right side of the respondent’s spine. It was recognised that further risk to the respondent’s spine arose by reason of the fact that the second surgery was necessarily conducted with the respondent in the face-down position. These were inevitable features of the surgery proposed and undertaken. Dr Sparks therefore asked Dr Gray to avoid downward pressure on the respondent during the insertion of the pedicle screws.

4. [250]

   Following the first stage surgery, the respondent was taken to the Intensive Care Unit (“ICU”) of RNSH. There his lung condition deteriorated significantly, giving rise to concerns in ICU staff about his prospects of survival. Compression of the left bronchus meant that the left lung could not be oxygenated. On 15 November ICU staff asked that the second stage surgery be expedited, to be performed within 48 hours. It was considered to be clear that further delay would put the respondent’s life at risk.

5. [251]

   Dr Gray agreed to bring the surgery forward and began making plans for that to happen. Those plans included the assembly of a medical and surgical team of experienced practitioners, one of whom was Dr Lagopoulos, a consultant neurophysiologist. Dr Lagopoulos’ role was spinal cord monitoring.

6. [252]

   The purpose of spinal cord monitoring during surgery is to facilitate evaluation of the integrity of the spinal cord and related nervous system, to identify changes in spinal cord function, and thus to allow remedial action to be taken where required. Due to the combination of the perceived urgency of the surgery, and the unavailability of Dr Lagopoulos on 18 November, it was decided that the surgery would be performed on the evening of 17 November. All relevant staff were available on that evening but not the following day.

7. [253]

   Dr Sparks, who was by reason of his position as Duty Director in charge of theatres for that day, appreciated that the procedure would be challenging and would require an experienced anaesthetist. He volunteered to undertake the task. He agreed to anaesthetise the respondent only because of the perceived urgency of the surgery. He gave oral evidence, that was not challenged, that “in normal circumstances” he would not have agreed to participate, because of the respondent’s lung condition. Prior to agreeing to participate, he examined the respondent in order to satisfy himself that the surgery was as urgent and lifesaving as had been represented to him.

8. [254]

   He enlisted Dr Stephen Barratt, a senior anaesthetist with experience in spinal and thoracic anaesthesia, to assist in performing a bronchoscopy earlier in the day. Dr Sparks discussed the procedure with Dr Barratt, who was therefore familiar with the respondent’s case. After that discussion, Dr Sparks decided to use a device called a “double lumen tube”, in order to provide oxygen to the respondent’s left lung.

9. [255]

   The respondent was taken to theatre between 6:00pm and 6:10pm on 17 November. (In conformity with the evidence, and with the judgment of Macfarlan JA, I will hereafter use the 24 hour clock.)

10. [256]

    Notwithstanding the arrangements for Dr Lagopoulos to be present, he was not present when the respondent was taken to the operating theatre. He arrived some time later; the precise time of his arrival is not clear in the evidence. There was a conflict in the evidence as to the position of the respondent when Dr Lagopoulos arrived. It was Dr Lagopoulos’ evidence that the respondent was already on the operating table when he arrived. It was Dr Gray’s evidence that, when Dr Lagopoulos arrived, the respondent was in a supine (face up) position on the ICU bed, and had not been transferred to the operating table. This issue was not pursued in cross-examination.

11. [257]

    In any event, on his arrival, Dr Lagopoulos immediately attended to the spinal cord monitoring equipment. From the beginning, the readings given by the monitor were abnormal, and eventually (at about 20:30) disappeared. In the words of Dr Lagopoulos this signified that “there was no conduction down the spinal cord”.

12. [258]

    For the surgery, Dr Sparks was assisted by Dr Andy Wang. Various anaesthetic procedures it is not necessary to detail were undertaken. The operation itself commenced at about 19:30 or 19:40. The respondent was placed in a face down (prone) position. The surgery was expected to be lengthy. From the beginning, the indications that caused Dr Sparks concern continued. He considered that “the emergency nature of the situation” was such that it was necessary to accommodate the adverse indicators. He said in oral evidence that:

13. [259]

    The surgery proceeded, but Dr Sparks’ concerns did not abate. There were three discrete occasions on which the respondent’s blood pressure fell to an abnormally low level (hypotension), and he was showing signs of hypoxia (oxygen deficiency). These occurred at 19:10, 20:35 and 21:25. On the first and second occasions the respondent’s condition recovered. The last has been referred to as a “period of circulatory collapse” or a “crash”. There had been an earlier (18:50) episode of reduction in oxygen saturation, but this appears to have been transient, caused by the insertion by Dr Sparks of the double lumen tube.

14. [260]

    In consultation with Dr Wang, Dr Sparks decided:

15. [261]

    At 20:30 Dr Sparks found it necessary to administer vecuronium, a muscle relaxant. Vecuronium compromises the effectiveness of spinal cord monitoring. Thereafter, any spinal cord monitoring was ineffective. Dr Sparks said:

16. [262]

    Dr Sparks continued to experience concerns and attempted to identify the cause of the respondent’s respiratory problems. He formed the view that the cause was cardiac. At about 20:50, by telephone, he consulted two colleagues. One was Dr Barratt, the anaesthetist who was familiar with the respondent’s case by reason of his consultation earlier in the day. Dr Barratt was unable to suggest any measures that Dr Sparks had not already taken. There is no evidence that he suggested terminating the surgery.

17. [263]

    The other colleague Dr Sparks telephoned was Dr David Marshman, a cardiothoracic surgeon, who had assisted Dr Gray in the performance of the first surgery, and was, therefore, also familiar with the respondent’s case.

18. [264]

    The third episode, at 21:25, caused Dr Sparks sufficient concern about the respondent’s deteriorating condition that he asked the surgeons to “hurry up”. However, within a few minutes, his concerns were such that he feared that the respondent might suffer cardiac arrest. At 21:28 he directed Dr Gray to stop the procedure immediately, a direction with which Dr Gray complied. The surgery ceased at 21:30 and the wound was closed. The respondent was turned to a supine position, where he showed signs of recovery. He was returned to the ICU where his recovery continued. Unfortunately, damage had been done to the spinal cord, causing the respondent’s paraplegia.

19. [265]

    Notwithstanding the injury to the spinal cord, the second stage surgery was completed successfully on 11 December.

20. [266]

    A neurologist, Dr Guy Sawle, identified the cause of the respondent’s paraplegia as “a spinal cord stroke” caused by damage to the spinal cord, which, in turn, was caused by oxygen deficiency that resulted in obstruction of circulation. This view was also expressed by others of the experts. A contributing factor to the oxygen deficiency was the first operation, which had had the effect of reducing the number of arteries supplying blood to the spinal cord. (There is no suggestion of negligence in the performance of the first operation. As mentioned above, reduction of the number of arteries was a necessary consequence of the first part of the surgery.) A second factor was “the period of circulatory collapse” during the second operation. Dr Sawle considered that the spinal cord stroke occurred “shortly before” the decision to terminate the operation, at about 21:30, and not during the earlier episodes of low blood pressure and hypoxia. This was said by the primary judge to be uncontroversial.

The case at trial

1. [267]

   The respondent’s claim in negligence was governed by the Civil Liability Act 2002 (NSW) (“the CLA”). The case in contract was particularised in the same way as the case in negligence, and depended upon the same allegations of breach of duty.

2. [268]

   Although, as set out in the judgment of Macfarlan JA, the primary judge found negligence against Dr Sparks in only one respect (failure to direct the cessation of the surgery at a point earlier than he did), to approach the appeal on that basis only is to mask the way the case was conducted.

3. [269]

   As finally pleaded against all defendants, multiple particulars of negligence were identified. Notwithstanding the multiplicity of particulars, the case pleaded depended essentially on two allegations:

4. [270]

   Both Dr Gray and Dr Sparks denied all allegations of negligence. Dr Gray denied any causal connection between any breach of duty proved against him (relying on s 5D of the CLA), and asserted that he had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice (CLA, s 5 O). Dr Sparks also relied on s 5 O of the CLA, and on s 5 I, which provides that a person is not liable in negligence for harm resulting from the materialisation of an inherent risk.

5. [271]

   The case presented at trial fluctuated from time to time. At the commencement of the hearing, senior counsel opened with something of a flourish. He said:

6. [272]

   In response to a question from the primary judge, he explained “convenient” as:

7. [273]

   By the time senior counsel came to cross-examine Dr Sparks (on the first day of hearing), the position had changed somewhat. Senior counsel commenced his cross-examination by saying:

8. [274]

   During the course of cross-examination he said:

9. [275]

   At the commencement of proceedings the following day, the position changed yet again. Echoing his affidavit evidence, Dr Sparks had given evidence in cross-examination to the effect that if the surgery were elective, he would not have “accepted to take [the respondent] to theatre”. Senior counsel said:

10. [276]

    Written submissions were produced at the conclusion of the proceedings. In the opening paragraph of the respondent’s written submissions, the attack on the decision to bring the surgery forward was again abandoned; it was expressly accepted that the decision to do so was reasonable. The principal submission made in relation to Dr Sparks was:

Medical evidence

1. [277]

   Apart from Dr Sparks, reports or affidavits were provided by six anaesthetists, five of whom gave oral evidence.

2. [278]

   As indicated above, until the tenth day of the trial, four defendants were involved. The parties adopted the sensible course of providing the primary judge at the outset with agreed bundles of documents, which included affidavits and expert reports prepared on behalf of the respondent and the defendants (including those defendants who were subsequently released from the proceedings, RNSH and Dr Lagopoulos). That material remained part of the proceedings even after the departure of those two defendants.

3. [279]

   It is relevant to observe that, as is obvious, the interests of the defendants were divergent, and it was inevitable that, at times, it would suit one defendant to defend his position by shifting the responsibility for certain decisions to another of the defendants. This can most plainly be seen where Dr Gray asserted (correctly in my opinion) that, since the complications that eventually called for cessation of the surgery were related to anaesthetic issues, the principal liability for that decision lay with Dr Sparks. The practical effect of this aspect of the proceedings was that some of the evidence given in Dr Gray’s defence bore upon the case against Dr Sparks.

4. [280]

   The parties also adopted the course of having the medical practitioners retained for the purpose of providing expert opinion meet in conclave and furnish joint reports prior to the hearing. Thus, an anaesthetist who had provided opinion evidence for the respondent (Dr Jon Westbrook) met with an anaesthetist (Dr Paul Forrest) retained by Dr Sparks’ solicitors for the purpose of providing opinion evidence. A similar course was taken with respect to orthopaedic experts retained, respectively, by solicitors for the respondent and Dr Gray. The experts then gave their oral evidence concurrently (Dr Westbrook from the United Kingdom).

5. [281]

   Dr Westbrook is a consultant anaesthetist at the John Radcliffe Hospital in Oxford, UK. He provided a number of reports to the respondent’s solicitors, the first dated 10 January 2012.

6. [282]

   In his reports Dr Westbrook addressed a number of questions. At times, he appeared to question the techniques and instrumentation selected by Dr Sparks. For example, initially Dr Westbrook appeared to query the appropriateness of Dr Sparks’ decision to use a double lumen tube, although he later retreated from this position.

7. [283]

   Relevantly to the present question, whether it was negligent of Dr Sparks not to abandon the surgery earlier, Dr Westbrook said:

8. [284]

   Dr Westbrook provided a further report and supplementary report, both dated 21 October 2012. In the earlier of these reports, he said:

9. [285]

   In the supplementary report of the same date, Dr Westbrook said:

10. [286]

    In his last report, dated 24 August 2016, Dr Westbrook again addressed the decision to bring the surgery forward, and expressed the view that the assessment of the surgery as “lifesaving” was “erroneous”, and that that, in turn, explained the decision to persist despite the adverse signs. He again questioned the decision to expedite the surgery and concluded:

11. [287]

    In a series of reports, Dr Westbrook gradually modified his position with respect to the validity (or otherwise) of the decision to perform the surgery on the evening of 17 November. By the time he gave oral evidence, he considered that, because of the compression of the respondent’s bronchus, it was reasonable to commence the surgery when it was commenced.

12. [288]

    Dr Barratt, the anaesthetist who had assisted Dr Sparks in the bronchoscopy performed on the afternoon of 17 November, and had been consulted by Dr Sparks during the course of the surgery, filed an affidavit on behalf of RNSH. His affidavit was factual, essentially giving an account of the earlier bronchoscopy, and of his conversation with Dr Sparks during the surgery. He did not then express any opinion relevant to the issues raised in the proceedings. He gave the following oral evidence:

13. [289]

    Dr Wang also provided an affidavit on behalf of RNSH. Dr Wang had assisted the primary anaesthetist (not Dr Sparks) during the first stage surgery. He also assisted Dr Sparks during the second stage procedure. In his affidavit, he gave a factual account of what had occurred during the surgery. He, too, withheld expressing any opinion about the issues in the case.

14. [290]

    The transcript records the following exchange in cross-examination:

15. [291]

    Dr Mike Lambros is a consultant anaesthetist who provided a report to the solicitors acting for Dr Gray. Dr Lambros did not express any opinion about the appropriateness of continuing the surgery to 21:28.

16. [292]

    Dr Bojidar Manasiev is a specialist anaesthetist who also provided a report to Dr Gray’s solicitors, specifically responding to a series of questions put to him by the solicitors representing Dr Gray. In a question numbered 2, Dr Manasiev was asked whether Dr Gray should have advised the halting of the surgery (at any of the times nominated in the particulars outlined above), and if not, to explain his reasons. He gave a lengthy written answer, which included:

17. [293]

    Dr Paul Forrest is the head of Cardiothoracic Anaesthesia and Perfusion at the Royal Prince Alfred Hospital Sydney and a Clinical Associate Professor at Sydney University. He provided a report to Dr Sparks’ solicitors dated 26 October 2013. In answer to a specific question, he said that it was “appropriate and reasonable” for Dr Sparks to direct Dr Gray to cease performing surgery at the time he did. In answer to a specific question:

18. [294]

    He was also asked:

19. [295]

    Drs Westbrook and Forrest conferred on 7 September 2016, and provided a joint report in which they addressed a number of specific questions.

20. [296]

    Dr Westbrook somewhat modified his position concerning the timing of the surgery by saying that it was reasonable, in the light of certain findings, to bring forward the second stage surgery, but added that it did not need to take place on the evening of 17 November, and 24-48 hours would have been a reasonable timeframe. (Dr Forrest was of a different opinion, considering it reasonable to proceed with the surgery that night, given the respondent’s respiratory condition.)

21. [297]

    Dr Westbrook also modified his earlier stated opinion concerning the use of the double lumen tube, which he now considered “not an unreasonable decision”.

22. [298]

    The critical question for present purposes was a question numbered 14. The two anaesthetists had answered the previous question concerning the respondent’s blood pressure and decreased oxygen saturation at various times during the surgery and said:

23. [299]

    Question 14 was:

24. [300]

    The anaesthetists were asked, once the surgery had commenced, when it should have ceased (if at all). The following responses were given:

25. [301]

    Both experts agreed that the most probable cause of the ultimate spinal injury suffered by the respondent was inadequate supply of oxygenated blood to his spinal cord, and that this most likely occurred at around 21:30.

26. [302]

    At trial, Drs Westbrook and Forrest gave oral evidence in conclave, Dr Westbrook by video link from London. Dr Westbrook again expressed the view that surgery should have been abandoned “certainly at 20:37”. Dr Forrest was more nuanced. He said:

27. [303]

    Three orthopaedic surgeons provided reports. They were Dr Richard Johnson and Dr James Wilson-McDonald, both retained by the respondent’s solicitors, and Dr Geoffrey Askin, retained on behalf of Dr Gray. Dr Wilson-McDonald is a consulting orthopaedic surgeon in Oxford, UK. They also conferred and provided a joint report.

28. [304]

    For the purpose of their report, they were asked:

29. [305]

    They were then asked:

30. [306]

    These answers reflect an observation in the report of Dr Johnson to the respondent’s solicitors, in which he said:

The primary judgment

1. [307]

   The primary judge found that the decision to advance the second stage of the surgery was “perfectly reasonable” and that the decision to continue the operation “at and beyond 20:30” was also “perfectly reasonable”. These conclusions are not challenged.

2. [308]

   He then found that the absence of any (or any effective) spinal cord monitoring after 20:30 was of no significance, as the administration of the vecuronium to the respondent (which neutralised the effectiveness of the monitoring) was critical and took precedence. He held that, until about 20:35, Drs Gray and Sparks were:

3. [309]

   He held, however, that that position changed very shortly thereafter. Specifically, he found that both Dr Gray and Dr Sparks were negligent in not taking steps to have the surgery terminated “no later than approximately 21.00”.

4. [310]

   His ultimate conclusions were expressed in six paragraphs. He said:

5. [311]

   The primary judge went on to restate his conclusions that the absence of effective spinal cord monitoring after 20:30 did not support a finding of negligence against either of the appellants; he considered that to be “a fact of life in the operating theatre”. However, he went on to describe the absence of effective spinal cord monitoring as:

6. [312]

   He restated his conclusion that the absence of spinal cord monitoring was irrelevant, but nevertheless held:

7. [313]

   The primary judge then turned to the statutory provisions on which the defendants relied. In his consideration of the defence under s 5 I (the full text of which is set out below, and which provides that a person is not liable in negligence for harm that results from the materialisation of an inherent risk) he acknowledged the judgment of Leeming JA in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 in which his Honour had expressed the view that “if a case can conveniently be decided under s 5 I, it should be”, but said that this case could not conveniently be decided under that provision. The primary judge said:

8. [314]

   With respect to s 5 O (the full text of which is also set out below, and which, as mentioned above, provides protection from liability in negligence to a professional who provides professional services in a manner widely accepted in Australia by peer professional opinion as competent professional practice) the primary judge referred to the evidence of Drs Manasiev and Forrest, both of whom had expressed their written opinions in the language of s 5 O. He observed that the respondent had adduced no evidence from any suitably qualified expert contradicting the opinions of those experts, and that no submission on behalf of the respondent had been made with respect to s 5 O.

9. [315]

   Notwithstanding the absence of any evidence to the contrary of that of Drs Manasiev and Forrest, his Honour rejected their opinions. His reasons for doing so were the same as the reasons for which he had found that Dr Gray and Dr Sparks were in breach of their duty of care to the respondent by failing to halt the surgery earlier than they in fact had.

The grounds of appeal

1. [316]

   Given my earlier stated concurrence with the view of Macfarlan JA that the appeal by Dr Gray should be upheld, it is only necessary now to address those grounds advanced by Dr Sparks.

2. [317]

   By Grounds 1 and 2 Dr Sparks complains of the manner in which the primary judge dealt with s 5 O of the CLA. By Ground 3 he complains of the treatment of s 5 I of the CLA. By Grounds 4, 5 and 6 he asserts error in the conclusion that Dr Sparks was negligent in failing to call a halt to the surgery earlier than he did. By Ground 7 he asserts error in some respects in the quantification of the damages awarded.

3. [318]

   Although the respondent’s claims in the appeal are governed by the CLA, I proceed on the basis that the common law, as it had been declared prior to the 2002 enactment of the CLA, continues to apply other than as modified by the CLA: Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335. Relevantly for present purposes, the common law principle is that “the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment” (Rogers v Whitaker (1992) 175 CLR 479 at 483; [1992] HCA 58). The standard imposed is “that of the ordinary skilled person exercising and professing to have that special skill”. Whether, in any particular case, there has been departure from that standard such as to render the medical practitioner liable in negligence is a matter for adjudication and determination by the court, although guided by the evidence of medical practitioners skilled in the area of medical practice in question: Rogers v Whitaker, p 487; Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 at [7].

4. [319]

   It may be recognised that both Rogers v Whitaker and Rosenberg v Percival were cases in which the issue was alleged failure by the medical practitioner concerned to make appropriate disclosure of risks associated with the treatment proposed. However, it is clear that the principles stated were intended to extend to other aspects of treatment; for example, in Rogers v Whitaker, the High Court said (at 487):

5. [320]

   In Rosenberg v Percival, Gleeson CJ added to the principle already stated, the following:

6. [321]

   These observations, in my opinion, are particularly pertinent to the present case. It is difficult to imagine how the primary judge (or this Court) could reach a conclusion as to whether Dr Sparks’ decision to allow the surgery to continue beyond some unspecified point earlier than 21:00 or 21:15 failed to meet the standard of the ordinary skilled anaesthetist other than as informed by the evidence of witnesses with appropriate expertise.

7. [322]

   The relevant provisions of the CLA are s 5B, s 5 I and s 5 O. All are contained in Pt 1A of the CLA, enacted with effect from 6 December 2002. Section 5B provides as:

8. [323]

   Section 5 O provides as follows:

9. [324]

   Also relevant to this appeal is s 5 I, invoked by Dr Sparks, which is in the following terms:

10. [325]

    In Paul v Cooke Leeming JA subjected s 5 I to searching scrutiny. The meaning of s 5 I is, to my mind, obscure. Even more obscure is its purpose. It seems to me that it does little (if anything) more than restate that liability in negligence depends upon a causal connection between the negligence alleged and the harm alleged to have been suffered. In that sense, it is a statement of the obvious. What it might achieve is a short cut to a resolution of the issues: if what occurred could not be avoided by the exercise of reasonable care and skill, there is no harm resulting from whatever negligence might be shown to co-exist with or precede the damage suffered, as required by s 5B. This, perhaps, is what Leeming JA meant at [51] of Paul v Cooke, when he said:

11. [326]

    In Dobler v Halverson, at [60]-[61], this Court held that s 5 O operates as a defence to a claim, the onus lying on the defendant to establish the relevant facts. In Paul v Cooke, Leeming JA observed that s 5 O, like s 5 I, provides a complete answer to a claim under Pt 1 A of the CLA (at [41]). It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.

12. [327]

    In McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District (2013) Aust Tort Reports 82-158; [2013] NSWCA 476 this Court held that s 5 O is directed to:

13. [328]

    The circumstances that gave rise to the decision in McKenna may be briefly stated. In 2004 a psychiatric patient was discharged by the health authority that administered the psychiatric institution in which he had been compulsorily detained under then applicable mental health legislation. Shortly thereafter, he killed a friend (Stephen Rose) who was transporting him from NSW to Victoria.

14. [329]

    Members of Mr Rose’s family who suffered consequential nervous shock sued the health authority, alleging negligence in the decision to discharge the patient. Their claims also were governed by the CLA. This Court (by majority) held that the health authority owed the plaintiffs a duty of care in accordance with common law principles, which it had failed to discharge. It was therefore necessary to consider the application of s 5 O. It was in that context that the majority construed s 5 O as set out above. On that construction, the defence failed.

15. [330]

    Macfarlan JA (with whom Beazley P agreed) said:

16. [331]

    An appeal to the High Court of Australia was successful on the ground that this Court erred in finding that the health authority owed the plaintiffs a duty of care; the High Court therefore did not find it necessary to address the construction of s 5 O: Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270; [2014] HCA 44.

17. [332]

    I consider that I am obliged to accept McKenna (in this Court) as stating the prevailing construction of s 5 O: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [277]-[279]. But for that constraint, I would have considered that the language of s 5 O makes it plain that “competent professional [here, medical] practice” is intended to denote “the practice of a profession [here, medicine]”, and not a specific practice or method of providing the professional services in question. That construction is supported by the absence of the indefinite article in conjunction with “professional practice”, and the use instead of the adjective “competent”, which to my mind signifies professional practice in a general sense, rather than an identifiable, specific, and discrete aspect of the profession or method of providing the professional service.

18. [333]

    As construed in McKenna, s 5 O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed. It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case. It does not appear to me that s 5 O was intended to have such limited application. However, as I have said, I consider myself constrained to follow and apply that decision.

19. [334]

    Failure by a defendant to prove the s 5 O circumstances (however that section is construed) does not conclude the matter. The onus remains on the plaintiff to establish that the defendant failed to provide the professional service in accordance with the standard of the ordinary skilled person practising that profession.

20. [335]

    The claim is then to be determined by reference to s 5B of the CLA: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [27]. The relevant questions are:

Determination

1. [336]

   With those legal principles in mind, I turn to the determination of the issues raised on the appeal.

2. [337]

   In seeking to apply the principles to the present case, it is worth restating, briefly, the relevant chronology. Surgery commenced at about 19:10 or 19:15. At 19:10 and 20:35 the respondent’s blood pressure dropped, but recovered. There were identifiable causes of these episodes – the insertion of the double lumen tube and the insertion of the pedicle screws. At about 20:50 Dr Sparks was sufficiently concerned by the respondent’s condition to consult two colleagues, one an anaesthetist and one a cardiac surgeon. At about 21:24 the respondent’s blood pressure again dropped, causing Dr Sparks to direct cessation of the surgery.

3. [338]

   The conclusion of the primary judge was that the decision to continue beyond 20:30 was “perfectly reasonable”, but that Dr Sparks ought to have directed that the surgery cease at some time before 21:00 or 21:25. It was only in his consideration of causation, with which he dealt appropriately briefly, that the primary judge nominated 21:15 (at the latest) as the time by which surgery should have ceased. He did this in the context of noting that it was uncontroversial that the paraplegia was caused at some time after 21:15 and before 21:30.

4. [339]

   The construction given to s 5 O in McKenna played no part in the primary judge’s rejection of the defences under that section. No ground of appeal sought to call in question the correctness of the McKenna construction of s 5 O. However, if, under s 75A of the Supreme Court Act 1970 (NSW), the court were to proceed to its own consideration of the s 5 O issue, it would be necessary to determine what construction to adopt.

5. [340]

   Senior counsel for Dr Sparks did suggest, during oral argument, that this Court declare that the McKenna construction is wrong. In the absence of any advance notice of that proposal, and any request for the constitution of an enlarged Bench, the suggestion must be rejected.

6. [341]

   Were the construction of s 5 O that I prefer to prevail, I would uphold these grounds of appeal. Drs Manasiev and Forrest were unequivocal in their evidence that Dr Sparks acted in a manner that at the time was widely accepted in Australia by peer professional opinion as competent professional practice. No countervailing evidence was given on behalf of the respondent. Indeed, it is difficult to see how Dr Westbrook (the respondent’s only expert anaesthetist witness) could comment on peer professional opinion in Australia. He practises in the United Kingdom, and gave evidence from London. There was no evidence that he has any Australian experience.

7. [342]

   Whether Dr Sparks acted in accordance with widely accepted peer professional practice is a question of fact; it is not a question of the kind referred to in Rogers v Whitaker and Rosenberg v Percival, involving determination of whether a medical practitioner failed to conform to standards of the ordinary skilled medical practitioner (in this case, practising as an anaesthetist). Under s 5 O, the task of the court is not to evaluate the merits of the competing views (if there is evidence of competing views) but to determine whether, as a factual matter, the service had the acceptance of peer opinion, even if other peer opinion was different.

8. [343]

   However, adopting as I consider I must, the McKenna construction of s 5 O, and since, principally because the circumstances of this case were highly unusual, it was not possible for Dr Sparks to identify “a practice” to which he conformed, the s 5 O defence must fail. That is notwithstanding that the overwhelming medical evidence was that his conduct was in accordance with what was widely accepted in Australia as “competent professional practice”.

9. [344]

   Dr Gray’s September advice to the respondent makes it plain that there was always a risk that the surgery would result in neurological injury, including paralysis. It is also clear from Dr Sparks’ reluctant agreement to participate in the operation that significant risks were involved. Although Dr Sparks did not expressly spell out what those risks were, it is a reasonable inference on the whole of the evidence that they included the very thing that happened.

10. [345]

    Whether the risk of neurological injury including paralysis was an “inherent risk” for the purposes of s 5 I depends upon whether that risk could have been avoided, by the exercise of reasonable care and skill. Having regard to the primary judge’s finding that Dr Sparks was in breach of his duty of care in failing to terminate the surgery earlier than he did, the finding that, by the exercise of reasonable care and skill, the harm suffered by the respondent could have been avoided was logical and inevitable.

11. [346]

    On behalf of Dr Sparks it was argued that, as in Paul v Cooke, the primary judge erroneously focused on the potential for Dr Sparks to avoid the occurrence rather than risk of the occurrence. True it is that the risk could have been avoided by a decision not to operate at all. That, in the circumstances of the respondent’s condition, was not a realistic proposition. Once it is accepted that the respondent’s condition warranted the performance of the operation as emergency surgery, and that that surgery carried a risk of paraplegia, it seems to me that this is a rare case, like Paul v Cooke, in which s 5 I applies. I would uphold Ground 3.

12. [347]

    Since satisfaction of the s 5 I criteria is a complete answer to the claim it may be unnecessary to address the remaining grounds. However, even if I am wrong about s 5 I, I have concluded that the evidence does not support the conclusion that Dr Sparks failed in his duty to exercise the skill and care required of a specialist anaesthetist by failing to take steps to ensure that the operation was terminated at any earlier stage than he did. In the present case, the answers to the first and second questions that arise under s 5B are obvious. There was a risk of harm to the respondent from the administration of anaesthesia given his respiratory condition. That risk was both foreseeable and foreseen. The risk was far from insignificant. The issue is whether Dr Sparks ought to have taken precautions against the risk, those precautions being the termination of the surgery at not later than 21:00 or 21:15. That question is to be decided by reference to the four factors set out in sub-s (2) (as well as any other “relevant thing”). In a case of alleged professional negligence “other relevant things” must include the opinions of relevant experts, as envisaged in both Rogers v Whitaker and Rosenberg v Percival as to conformity (or otherwise) with relevant standards.

13. [348]

    In the light of the rather lengthy exposition of the facts above, the reasons for my conclusion that the evidence did not establish any breach of his duty of care on the part of Dr Sparks may be stated with relative brevity.

14. [349]

    The central circumstance to note is the parlous condition in which Dr Sparks reasonably understood the respondent to be, pre-surgery. The medical consensus, as at 17 November, was that the respondent needed urgent surgery to ensure his survival. Although Dr Westbrook at one point challenged that view, Dr Sparks’ conduct must be assessed in the light of what he had been told by other respected medical practitioners and in the unchallenged finding of the primary judge that the decision to undertake the surgery when it was undertaken was “perfectly reasonable”. It was the ICU staff who first drew attention to the respondent’s life threatening condition. Dr Sparks was entitled (and probably obliged) to act upon the fears of those experienced medical practitioners, or at least to take them into account. Indeed, as I have noted above, his evidence was that, were the surgery not as urgent as he understood it to be, he would not have anaesthetised a patient in the condition of the respondent. That circumstance permeated his decision-making throughout the entire process, during which he was faced with the unenviable task of balancing two competing, extremely serious, risks: on the one hand, the risk that without the surgery the respondent’s survival was in doubt; on the other, the risk that the surgery itself threatened his survival. Initially, on Dr Sparks’ assessment, the former outweighed the latter. When he perceived that the balance had changed, he acted appropriately to have the surgery halted. There is no evidence to support a proposition that his assessment in this respect was erroneous, let alone negligently erroneous.

15. [350]

    Not one of the anaesthetists who reported and gave evidence expressed a view that Dr Sparks’ conduct failed to reach the relevant standard. The nearest was that of Dr Westbrook who considered that the surgery should have stopped at 20:37. Even so, Dr Westbrook’s opinion was given at a time when he rejected the otherwise generally accepted opinion that the surgery was necessary to ameliorate a life threatening condition. His conclusion about the time at which it should have ceased is coloured by that, now known to be mistaken, view. Moreover, as the passage extracted above at [286] demonstrates, he based the assessment, at least in part, on “[the respondent’s] subsequent progress” – that is, on events that post-dated the decision of Dr Sparks – which nobody suggested was or should have been apparent at the time.

16. [351]

    It is not now in issue that the surgery was reasonably believed to be urgent and lifesaving. The concerns of the ICU staff were expressed to Dr Gray and passed on by him to Dr Sparks. Dr Sparks independently satisfied himself of that circumstance. It was also recognised that the surgery was of a complexity that called for the assembly of a particularly skilled and experienced team of specialists, including the neurophysiologist Dr Lagopoulos. The degree of urgency, together with the need for specialised assistance, may be gauged by the fact that the operation was scheduled to take place out of ordinary operating hours. Further, it cannot be overlooked that Dr Sparks agreed to undertake the anaesthetic role only because of the perceived urgency. His evidence that, absent that urgency, he would not have agreed to anaesthetise the respondent is a further indicator of the dire situation in which the respondent was perceived to be. There is nothing in the evidence that supports doubt about that perception. That also influenced his decision to persist, and his reliance on the two most salient factors, the respondent’s blood pressure and oxygenation.

17. [352]

    In this regard, reliance on subsequent events (the respondent’s recovery, and the ultimate successful performance of the second stage surgery, on 11 December) provides no answer: see Moubarak at [31]. Dr Sparks, and the entire medical team, had to work on what they knew at the time, which was that the respondent’s condition was life threatening. The finding (in [242]) that Dr Sparks and Dr Gray ought to have foreseen that “postural adjustment” from a prone to a supine position would have produced immediate resolution of the respondent’s respiratory problems, and acted on that anticipation, was largely based on what happened after the surgery had terminated and is not sustainable in the light of what is known of the respondent’s pre-surgery condition. It does not take into account the extraordinarily painful risk-balancing exercise in which Dr Sparks had to (and did) engage.

18. [353]

    On behalf of the respondent, specific reliance was placed on the earlier episodes of hypotension and hypoxia as indicating that the surgery should have ceased earlier than it did. Two responses may be made to this. The first is that each episode was explicable by a specific event – the insertion of the double lumen tube, and then pressure being placed on the respondent by the insertion of “pedicle screws”. On each occasion, when the cause of the deterioration was removed, the respondent’s condition improved. The second answer is that there was no evidence that the pre-existing condition of the respondent (the condition that compelled the expedition of the surgery) had diminished. That it did on his return to the ICU says nothing about what the signs were at the time.

19. [354]

    Reliance was also placed on behalf of the respondent on an answer given by Dr Barratt in cross-examination, extracted above. This was directed to Dr Sparks’ evidence that, in determining to permit the surgery to proceed, he had relied principally on the respondent’s blood pressure and blood oxygenation levels: Dr Barratt was asked:

20. [355]

    Dr Westbrook, giving evidence concurrently with Dr Forrest, did not dissent from that answer. He had earlier said that blood gas analysis showed evidence of other serious and deteriorating problems, but agreed that those problems were reversible.

21. [356]

    Dr Manasiev was asked in cross-examination what factors would inform competent professional practice with respect to anaesthetists and the continuance or otherwise of surgery. The transcript records the following answer:

22. [357]

    The second answer to the proposition is that the evidence did not extend to precise identification of what other factors ought to have been considered. More importantly, no conclusion can, on the evidence, be drawn as to what decision would, on the probabilities, have been made in the light of the other considerations. In other words, there is no evident causal connection between Dr Sparks’ reliance on those two factors (to the possible exclusion of others) and the injury suffered by the respondent.

23. [358]

    It has been suggested that, urgent as the surgery may have been, it was not so urgent that the respondent would have died if it were not completed within a few hours. This must be seen in the light of acceptance on behalf of the respondent (and the unchallenged finding of the primary judge) that it was reasonable to undertake the surgery at the time it was commenced, and in the circumstances in which it was commenced. A decision to terminate surgery only partly completed, after anaesthetisation of the patient, is very far from a decision to commence, or not to commence, surgery. It was not, I am satisfied, demonstrated that it was outside the bounds of proper practice for Dr Sparks to persist in his efforts to maintain the respondent’s stability in order to allow the operation to proceed to conclusion.

24. [359]

    The medical evidence does not, in my opinion, support a finding that, in failing to direct the termination of the surgery before 21:28, Dr Sparks failed to exercise reasonable care and skill. The decision Dr Sparks had to make (on a continuing basis throughout the surgery) involved the exercise of clinical judgment. Although, as decided by Rogers v Whitaker, the ultimate determination as to whether the clinical judgment made came within the bounds of the exercise of reasonable care and skill expected of a competent anaesthetist lies with the court, the judgment is one which must, in this case, be guided by the evidence of other medical practitioners with the requisite knowledge and understanding of the issues involved. So much is clear from Rosenberg v Percival, and, indeed, from Rogers v Whitaker. It was not sufficient to say, although it is plainly the case, that, had Dr Sparks directed termination of the surgery prior to the respondent’s collapse at 21:28, the injury would not have occurred. The respondent bore the onus of establishing that Dr Sparks’ decision not to direct the termination of the surgery before that time represented a departure from the standard of care and skill required of a specialist anaesthetist. That onus was not discharged. The medical evidence falls well short of permitting a conclusion to that effect.

25. [360]

    Dr Westbrook’s opinion that a decision “could have been taken to abandon surgery” earlier than it was abandoned is insufficient to establish that failure to make that decision lay outside the bounds of competent anaesthetic practice. For the purposes of Dr Sparks’ appeal, the evidence of the orthopaedic surgeons that the surgery should have been brought to an end “when the anaesthetists were unable to maintain the metabolic state, ie satisfactory blood pressure and oxygenation” or “when the anaesthetists reached the stated that they were unable to maintain satisfactory cardiorespiratory parameters” can be given little (or no) weight. The true import of that evidence, in the context in which it was given, was that Dr Gray was entitled to rely on the advice given to him by Dr Sparks and that the decision lay within the anaesthetic (not orthopaedic) speciality. The answer given carefully (and properly) avoided the expression of opinion by orthopaedic specialists in respect of an anaesthetic issue.

26. [361]

    It follows that, in my opinion, the primary judge was in error in finding breach of duty on the part of Dr Sparks. I would uphold the appeal and set aside the judgment.

Damages

1. [362]

   It follows that, in my view, it is unnecessary to determine the appeal so far as it relates to the quantification of damages. It is sufficient to record that, if it were necessary to decide those issues, I would agree with the judgment of Macfarlan JA.

2. [363]

   The orders I would make are: