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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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".
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:
"A risk of not doing the procedure exceeded the risk of going ahead with the procedure."
That remained the position until the respondent's blood pressure and oxygen dropped (at 21:24 or 21:25), at which point:
"The risk of proceeding exceeded the risk of not proceeding."
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.
In consultation with Dr Wang, Dr Sparks decided:
"… that while the arterial blood gas oxygen was normal to high and the blood pressure was normal to high it was reasonable for the surgeons to try and complete the operation"
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:
"Because 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."
When it became clear that, by the application of those two criteria, it would not be possible for the surgery to complete, he told the surgeons to stop the operation, which they did. That happened at 21:28.
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.
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.
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.
Notwithstanding the injury to the spinal cord, the second stage surgery was completed successfully on 11 December.
[2]
The mechanism of the respondent's injury
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.
[3]
The case at trial
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.
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.
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:
(i) that the commencement of (or the failure to delay) the surgery in the absence of spinal cord monitoring, which was intended to be undertaken by Dr Lagopoulos, or to ensure "complete and effective" spinal cord monitoring was negligent; and
(ii) that failure to halt or advise the cessation of the surgery following the adverse signs at various times during the procedure (specified as 18:50, 19:10, 20:35 and 21:20) was negligent.
As against Dr Gray, it was also pleaded that the surgery ought not to have been commenced at the time it was, and that there was no necessity for the operation to have been performed as an emergency procedure. As against Dr Sparks, additional particulars asserted:
(i) that he had negligently failed to advise Dr Gray that a probable cause of failure of the spinal cord monitoring was the use of the chosen anaesthetics and muscle relaxants and that an alternative which did not affect the monitoring should have been used, and
(ii) that he had negligently failed to inform Dr Gray that the likely cause of the respondent's ventilation problems was that he was in a prone position and that this could not be solved in any way other than returning him to a supine position.
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.
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:
"Now, the second procedure was brought forward for reasons which have been expressed as dramatically as, 'if we didn't do it, he was going to die', but at its most benign, he was having respiratory difficulties, but respiratory difficulties would be cured, it was hoped, by the second stage; therefore, it was appropriate to bring the surgery forward. At the end of the day, your Honour will conclude that the melodrama was confected, that is to say, it was ex post facto justification for what was done. And the reality was that it was simply convenient."
In response to a question from the primary judge, he explained "convenient" as:
"… it enabled the surgeon to get all this team together when they were not all available later."
He described the decision as "pragmatism". He then described as "a grim irony" that, while the surgery was timed to enable Dr Lagopoulos to be present, he was, in fact, late arriving.
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:
"… it's not part of the plaintiff's case that the commencement of this surgery was not reasonable or not indicated. So, we're not saying the surgery should never have started."
During the course of cross-examination he said:
"… I accept as my first premise that it was reasonable to commence the surgery. My second premise was though that when it became obvious, as it did, that the surgery was proving to be much more fraught and much more dangerous than it seems you, at least, had assumed, it should have been stopped then. That's what I'm suggesting to you."
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:
"… we will submit that the surgery should never have started."
He said that the respondent's case was put in the alternative - that the surgery should not have been commenced, and that, if it had, it should have been terminated.
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:
"169 Dr Sparks was negligent in not advising that surgery should have been abandoned at no later than 20:37. He was alive to the patient's metabolic deterioration which would have caused a reasonably competent anaesthetist to call a stop to the surgery."
[4]
Medical evidence
Apart from Dr Sparks, reports or affidavits were provided by six anaesthetists, five of whom gave oral evidence.
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.
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.
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).
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.
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.
Relevantly to the present question, whether it was negligent of Dr Sparks not to abandon the surgery earlier, Dr Westbrook said:
"Having positioned the patient prone and shown that the endotracheal tube position was not optimal and that the ventilation was difficult and the carbon dioxide level very high a decision could have been taken to abandon surgery at that point … As the decision had already been made to bring forward Mr Hobson['s] surgery because of his deteriorating condition the team may have decided to proceed on that basis." (italics added)
Dr Westbrook provided a further report and supplementary report, both dated 21 October 2012. In the earlier of these reports, he said:
"The decision to perform Mr Hobson's second operation as an emergency on the evening of 17th November 2009 appears to be critical to this case and the adverse outcome. It meant that the anaesthetists had to persist with an anaesthetic technique that was not achieving optimal gas exchange and ultimately resulted in a significant period of hypoxaemia and hypotension. This appears to have been the cause of Mr Hobson's spinal injury. In addition the operation and the work up to it was commenced before spinal cord monitoring was available. Although it arrived shortly after the start it was not possible to obtain baseline measurements. The monitoring was reported as abnormal throughout the case but this could have been due in part to the anaesthetic difficulties and the use of vecuronium making interpretation very difficult. It is likely 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 … In the absence of any threat to Mr Hobson's life or spinal cord whilst on the intensive care unit on 17th November 2009 the decision to perform emergency surgery needs to be justified."
In the supplementary report of the same date, Dr Westbrook said:
"On the balance of probabilities had the surgery been abandoned before the start when the anaesthetic team were already in difficulty Mr Hobson would not have had the problems he had nor suffered his spinal cord injury. There was not sufficient surgical or medical indication to undertake the surgery that night with anything other than optimal ventilation and haemodynamics."
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:
"It was the correct decision to abandon the surgery following the episode of severe collapse. There were opportunities earlier in the procedure when the anaesthetic team were struggling to achieve adequate ventilation and oxygenation and effective spinal cord monitoring was not in place for the team to discuss discontinuing the surgery … As previously stated this was a very difficult case given the highly complex surgery in a patient with significant comorbidities and very distorted anatomy causing compression of intra-thoracic structures including the heart and the left main bronchus. Dr Sparks would appear to have persisted with a suboptimal anaesthetic when consideration should have been given to abandoning the procedure. Subsequent statements by Dr Sparks and other members of the medical team suggest that they had assessed the operation to be lifesaving. It is not clear from the notes or Mr Hobson's subsequent progress that this was a correct assessment." (italics added)
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.
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:
"Q. Dr Sparks told you that the various metabolic indicators were critical.
A. Yes, yes.
Q. Despite, apparently, adequate blood pressure and blood oxygen levels. That was one of his dilemmas, wasn't it?
A. Yes, yep.
Q. Then in those circumstances, it really wasn't appropriate, was it, to look at the blood pressure and blood oxygen levels alone when making a decision whether to persist or abandon surgery?
A. I agree with that statement."
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.
The transcript records the following exchange in cross-examination:
"Q. When were there indications to your recollection of when it looked as if he was going to crash?
A. Before 9.30. Is it 9.30 when he was about to crash? Blood pressure came down and the saturation came and bradycardia--
Q. What about earlier when Dr Sparks was on the phone to Dr Barrett? There were signs then, weren't there, that he could crash?
A. Yes.
Q. Did you think at that time, 'We really should be stopping this'?
A. I didn't think so at the time.
Q. But you were conscious, weren't you, at that time that this is what could happen?
HIS HONOUR: Sorry. What could happen?
[SENIOR COUNSEL]: That he would crash later.
WITNESS: To explain--
[SENIOR COUNSEL]
Q. No. I don't want to stop you from explaining but I would like to get an answer to the question which was: at about the time of the Dr Barrett conversation, there were indications, weren't there, that he might well be heading towards a crash?
A. There were indications, yes.
Q. That was a time, wasn't it, at least when the surgery should have stopped?
A. Not necessarily.
Q. Not necessarily? Why do you say that?
A. Because in my mind the way I perceived the operation, if we don't do the operation he will die. Up until that point, hemodynamically he was still stable. We are drifting - you know, it's difficult but we were managing. He hasn't crashed. If we stopped then, he could die.
Q. From what?
A. From the reason why we brought him to the operating theatre.
Q. All of this proceeds upon an assumption that you had an understanding from somebody else that if the surgery didn't take place then, he would die. Is that correct?
A. That's my impression at the time, yes.
Q. Your impression?
A. Yes, my understanding at the time.
Q. So then when he did crash, you say that the anaesthetic team which obviously included yourself--
A. Yes.
Q. --and the surgical team together promptly and ultimately made the decision to abandon the operation. Correct?
A. Yes."
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.
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:
"… the decision was balanced against the apparent necessity of the operation as a potential lifesaving technique. As such, it was not warranted by Dr Sparks or Dr Gray to halt the surgery at this time and would be considered widely accepted in Australia by peer professional opinion as competent medical practice to continue the surgery."
He was also asked whether Dr Gray was negligent in continuing the operation "in the face of the anaesthetic events [described] in the Further Amended Statement of Claim" (those events being the instances of hypoxia and hypotension at 18:50, 19:10 and 21:20). Dr Manasiev replied:
"In my opinion, Dr Gray was not negligent in continuing the operation in the circumstances pleaded. As outlined in my answer to 2. above, the management of the ventilatory and cardiovascular parameters is the primary responsibility of the anaesthetist.
Dr Sparks' management of the plaintiff in regards to directing Dr Gray to continue the surgery at 18:50, 19:10 and 20:35 and halt the surgery at 21:20 would be considered widely accepted in Australia by peer professional opinion as competent medical practice, with reasoning for each specific time as outlined in question 1 above. As such it would be considered competent medical practice by Dr Gray to heed Dr Sparks' direction and proceed with the surgery at times 18:50, 19:10 and 20:35 and halt the surgery at 21:20."
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:
"Did Dr Sparks provide a reasonable standard of anaesthetic management to Mr Hobson during surgery on 19 November, 2009?"
He replied:
"Yes.
Mr Hobson was a high risk patient who required major emergency surgery at that time. He posed a very unusual and difficult anaesthetic challenge due to the significant compression of his left main bronchus by his spine and due to the requirement for prone positioning during surgery.
… The patient was appropriately monitored during the case, and the choice and dosages of anaesthetic drugs and intravenous fluids were also appropriate.
The main clinical dilemma in this case was whether surgery should have been allowed to continue given the difficulties in ventilating the patient that were encountered before the severe deterioration that occurred at 21:30. As noted above, the patient had been difficult to ventilate prior to this time due to compression of his left main bronchus, which was exacerbated in the prone position. However, given that the patient's surgery was considered to be sufficiently urgent that it needed to be performed out of hours, and given also that his lung infection would not have been expected to resolve until the compression of his left main bronchus was relieved by surgery, it was reasonable to continue the anaesthetic at that time."
He was also asked:
"Did Dr Sparks, in his anaesthetic management of Mr Hobson, act in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, at the time the service was provided?"
to which he answered:
"Yes.
Mr Hobson was a high risk patient who required major emergency surgery on his spine, in the prone position.
…
The patient was appropriately monitored intraoperatively, and the anaesthetic drugs, dosages and fluid administration were also appropriate.
The management of the patient's critical deterioration at 21:30h was appropriate, as was the decision to abandon the procedure at that time.
The anaesthetic management of Mr Hobson by Dr Sparks would therefore have been widely accepted by peer professional opinion in 2009 as competent professional practice."
Drs Westbrook and Forrest conferred on 7 September 2016, and provided a joint report in which they addressed a number of specific questions.
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.)
Dr Westbrook also modified his earlier stated opinion concerning the use of the double lumen tube, which he now considered "not an unreasonable decision".
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:
"At 21:20, Both experts agree that it is difficult to determine exactly what the cause of the plaintiff's low blood pressure was, but it was likely to have been a combination of patient and surgical factors. At that time, however, his oxygenation was adequate."
Question 14 was:
"In the light of that indication, what steps, if any, should the anaesthetist have taken, particularly including recommending a cessation of the surgery at any of those times?"
The answers were recorded as follows:
"Dr Westbrook feels that in view of the significant worsening of the plaintiff's haemodynamic state at 20:35, surgery should have been abandoned no later than 20:37, given the concurrent evidence of his worsening metabolic state as evidenced by blood gas analysis demonstrating a severe acidosis.
In Dr Forrest's view, given that the plaintiff's surgery was considered to be potentially lifesaving at that time and was well advanced and also given that the period of haemodynamic instability and desaturation were transient at 20:35, it was reasonable to attempt to continue to improve the plaintiff's ventilation and haemodynamic state. At 21:30, however, it was clearly necessary to abandon surgery given the sudden, severe respiratory and haemodynamic instability that suddenly occurred at that time."
The anaesthetists were asked, once the surgery had commenced, when it should have ceased (if at all). The following responses were given:
"It is the opinion of Dr Westbrook that the surgery should have been abandoned before 20:37 following the episode of hypotension that occurred at 20:30 hours, coupled with the plaintiff's severe and deteriorating metabolic state that was identified at 20:37 hours (by blood gas analysis).
Dr Forrest is of the opinion that the surgery should have been abandoned when the plaintiff suddenly became hypoxic and hypotensive at 21:30 hours."
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.
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:
"Well, with a benefit of hindsight I think you couldn't argue that would have been preferable to abandon the surgery earlier than - than - than at the time that it was abandoned. That's a retrospective interpretation of the events that the anaesthetist was faced with at the time. You've also got to bear in mind that the key imperative for performing this case out of hours in the first place was that the attending doctors felt that if they didn't operate, his respiratory state would continue to worsen because of the compression of his main stem bronchus. And there was a reasonable expectation, I think, that if surgery had not been successful or not been performed to alleviate that obstruction, that the patient would have died from contractible respiratory failure …
…
So, I think that there was - would have been a strong sense among the - the - the anaesthetists and attending doctors that - that - that surgery should proceed and that all attempts should be made to correct the underlying causes of his metabolic acidosis, which was being exacerbated by the fact that his ventilation proved so difficult in the prone position. And one thing that was done in order to improve his ventilation was to administer muscle relaxants, which had been withheld up until the period between 20 - 20 - 20.20 and 21.30, in order to attempt to improve his - his ventilation."
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.
For the purpose of their report, they were asked:
"4 Once commenced, when should the surgery have ceased?"
They replied:
"The experts agree that cardiorespiratory problems arising in spinal surgery with the patient in the prone position occur infrequently but they have all experienced these problems necessitating the cessation of the operation.
The experts agree procedures should have ceased when the anaesthetists were unable to maintain the metabolic state, ie satisfactory blood pressure and oxygenation.
Dr Wilson-McDonald notes that at 20:37 blood gas analysis demonstrated a deteriorating metabolic state following an episode of hypotension at 20:30. In his opinion surgery should have been discontinued shortly after this."
They were then asked:
"18 In the light of (a) the information provided by the anaesthetists or (b) information provided by the spinal cord monitor (upon the assumption that the anaesthetists were informing the orthopaedic surgeon of the difficulties that they were experiencing and the spinal cord monitor was informing the orthopaedic surgeon of the inadequacies or absence of traces on the spinal cord monitoring) should the surgery have been ceased and, if so, when?"
The short answer given, representing the opinion of all experts, was:
"The experts agree yes, when the anaesthetists reached the stage that they were unable to maintain satisfactory cardiorespiratory parameters."
These answers reflect an observation in the report of Dr Johnson to the respondent's solicitors, in which he said:
"The decision to halt surgery in the presence of hypoxia and hypotension is anaesthetic rather than surgical matter."
[5]
The primary judgment
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.
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:
"226 … in effect, permissibly taking an expectant approach, in the absence of material that indicated only one possible course of action."
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".
His ultimate conclusions were expressed in six paragraphs. He said:
"239 Dr Sparks understood that Mr Hobson's need for surgery was urgent. He examined him and formed that view for himself. Dr Westbrook's opinion that that view was 'erroneous' is necessarily second hand and retrospective. Both Dr Westbrook and Dr Forrest in their joint report expressed the opinion that it was reasonable for the surgery to commence. I am however not satisfied that either Dr Gray or Dr Sparks conformed to the relevant standard of care in failing to halt surgery before 21.25.
240 As I have earlier noted, the orthopaedic surgeons in their joint report indicated that the surgery should have ceased 'when the anaesthetists reached the stage that they were unable to maintain satisfactory cardio respiratory parameters'. The orthopaedic surgeons made no precise reference to a time when the surgery should have ceased. Satisfactory cardio respiratory parameters were not being maintained by 20.30.
…
242 It is important not to lose sight of the fact that Dr Sparks and Dr Gray were confronted with what was patently a distressing and fraught intraoperative emergency. It is difficult to over-emphasise just how awful it must have been at that time for all concerned. It is clear that Dr Sparks had attempted all of the anaesthetic manoeuvres in his armoury to correct the problem without apparent success. Criticism of these doctors in those circumstances may seem harsh. However, it is not in question that stopping the surgery when no obvious answer to the problems confronting the doctors was presenting itself would have avoided the damage. We know with hindsight that postural adjustment from prone to supine produced immediate resolution of these problems. That was something which in my opinion Dr Sparks and Dr Gray should have foreseen and acted upon. Failure to do so amounted to a want of reasonable care. It was in my view not appropriate to take the risk that something that could not be explained would or might somehow spontaneously resolve or improve. It is no answer to insist that the surgery was lifesaving in circumstances where Mr Hobson's respiratory difficulties at or after 20.30 had deteriorated below his pre-operative condition in ICU."
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:
"243 … a critically significant factor that not only enlivened, but in fact 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."
He then said:
"264 Dr Sparks was negligent in not advising that surgery should have been abandoned no later than approximately 21.00. He was alive to Mr Hobson's metabolic deterioration which would have caused a reasonably competent anaesthetist to call a stop to the surgery. Had the surgery been paused or halted at that time, and Mr Hobson turned supine, he would not have suffered spinal cord damage."
He restated his conclusion that the absence of spinal cord monitoring was irrelevant, but nevertheless held:
"268 … the surgery should have been terminated when it became apparent that no reliable indications of the integrity of Mr Hobson's spinal cord health would be available due to the masking effect of that drug [vecuronium] upon informative traces. I have earlier expressed the view, which I maintain, that the absence of spinal cord monitoring, for whatever reason, should have heightened the doctors' need for caution when proceeding without it."
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:
"248 … the second stage of Mr Hobson's surgery was not attended by an inherent risk that he might suffer a cardiovascular collapse and vascular disturbance causing lower motor neurone injury, such as his anterior spinal artery syndrome, arising out of the circumstances as they occurred. Mr Hobson had a pre-surgical anatomical vulnerability to spinal cord stroke and the effects of hypotension. However, the damage sustained by Mr Hobson was not the materialisation of a risk that was inherent in undergoing posterior instrumented thoracolumbar surgery having regard to his medical condition at the time.
…
251 However, Mr Hobson's paraplegia could in the circumstances have been avoided by the exercise of reasonable care and skill. Neurological injury, including paralysis, was an inherent risk of the surgery. A negligent failure to abandon the surgery, meaning a failure to exercise reasonable care and skill, before his paraplegia developed was not."
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.
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.
[6]
The grounds of appeal
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.
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.
[7]
(i) the common law position
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].
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):
"Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information … it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'."
The Court made a distinction between the application of the principle in cases of alleged failure to warn or inform, and cases of alleged negligence in the administration of treatment, saying (at 489):
"Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices." (italics in original)
In Rosenberg v Percival, Gleeson CJ added to the principle already stated, the following:
"7 … In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues."
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.
[8]
(ii) the Civil Liability Act
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:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
Section 5 O provides as follows:
"5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
Also relevant to this appeal is s 5 I, invoked by Dr Sparks, which is in the following terms:
"5I No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
[9]
Section 5 I
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:
"51 … the issue of causation, determined in accordance with s 5D, does not arise once it is determined a claim falls within s 5I …"
He held that s 5 I provides a complete answer to any claim falling within Pt 1A of the CLA. Leeming JA (with the concurrence of Basten and Ward JJA) considered that, for a s 5 I defence to be made out, what has to be shown to be unavoidable is "the risk of something occurring", as distinct from the occurrence itself. In that case, the surgery proposed and undertaken always carried a risk of the harm that in fact materialised (intra-operative stroke), and that that risk could not have been avoided by the exercise of reasonable care and skill.
[10]
Section 5 O
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.
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:
"165 … a practice, that was in existence at the relevant time, here July 2004 …", (bold added)
and that, in the circumstances of that case, no such practice had been identified.
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.
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.
Macfarlan JA (with whom Beazley P agreed) said:
"165 … It is unlikely, to say the least, that there would have occurred in or before 2004 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." (bold added)
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.
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.
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.
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.
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:
was there a foreseeable risk of harm arising from the conduct the subject of the claim?;
was the risk not insignificant?;
would a reasonable person in the position of the defendant have taken precautions to safeguard against the risk? (It is necessary for the plaintiff to identify the precautions it is alleged ought to have been taken.)
[11]
Determination
With those legal principles in mind, I turn to the determination of the issues raised on the appeal.
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.
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.
[12]
Grounds 1 and 2: section 5 O
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.
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.
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.
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.
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".
[13]
Ground 3: section 5 I
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.
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.
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.
[14]
Grounds 4, 5 and 6: breach of duty
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.
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.
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.
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.
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.
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.
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.
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:
"Then in those circumstances, it really wasn't appropriate, was it, to look at the blood pressure and blood oxygen levels alone when making a decision whether to persist or abandon surgery?"
He agreed with the proposition contained in the question. The primary judge regarded this answer as "critical". Dr Barratt replied that he agreed with that statement. Again, two answers may be given to the proposition. The first is that other specialist medical evidence was more favourable to Dr Sparks: Dr Forrest, asked a similar question in oral evidence, answered:
"Well, these are the parameters that are - that are used routinely in anaesthetic practice to - to guide our management and they're not the only factors that would determine how the surgery would be conducted. But in this particular case, they would be the - the main factors that would be used to determine whether surgery should continue or not."
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.
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:
"Well, it's the whole gambit [sic - gamut] of all the haemodynamic parameters that you're looking at within a patient. Predominantly, the blood pressure and saturation, which are telling you how the organs are being perfused, but as well as that, all the attempts that are made, in this case, to improve ventilation … it's a complicated gambit [sic - gamut] of numbers and figures that you're looking at."
Ultimately, he said:
"You wouldn't exclude, but you would give different parameters different weights upon the patient's stability."
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.
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.
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.
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.
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.
[15]
Damages
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.
The orders I would make are:
(1) The appeal by Dr Gray is upheld.
(2) The appeal by Dr Sparks is upheld.
(3) The judgment against each defendant is set aside.
(4) The respondent is to pay the costs of each appellant of both the trial and the appeal.
(5) The respondent be granted a certificate under the Suitors' Fund Act 1951 (NSW).
[16]
Endnotes
Hobson v Northern Sydney Local Health District [2017] NSWSC 589 ("Hobson").
The judge upheld one, saying there were 15, which is not clear from the pleading: Hobson at [6].
Defence to third amended statement of claim (Dr Gray), 14 November 2016, par 40.
Amended defence (Dr Sparks), 10 November 2016, par 23.
Fourth Defendant's outline of submissions, 21 November 2016, pars 124-140 (Dr Sparks); Second Defendant's outline of submissions, 22 November 2016, pars 195-202.
Dobler v Haloverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60] (Giles JA); Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702 at [21]-[25] (Hodgson JA), [51] (Allsop P), [58] (Sackville AJA).
Cf now Montgomery v Lanarkshire Health Board [2015] 1 AC 1430.
[1957] 1 WLR 582 at 587.
[1985] AC 871 at 881.
Sidaway at 876.
(2001) 205 CLR 434; [2001] HCA 18 at [7].
Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 at [21] (Gaudron J), [47] (McHugh J), [81] (Kirby J).
Dobler at [61].
Cf Qidwai v Brown [1984] 1 NSWLR 100 at 102, dealing with misconduct of a medical practitioner in a professional respect.
McKenna v New England & Hunter Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158 ("McKenna").
McKenna at [160] (emphasis in original).
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 ("Hunter Health District").
(1998) 194 CLR 395; [1998] HCA 48 at [56].
(1981) 146 CLR 336 at 410; [1981] HCA 4.
[2011] NSWCA 59 at [3] (Beazley and Tobias JJA agreeing).
Hunter Health District at [12].
See CEMEX Australia Pty Ltd v Takeovers Panel (2009) 177 FCR 98; [2009] FCAFC 78 at [94]-[95] (Ryan, Jacobson and Foster JJ).
(2013) 85 NSWLR 167; [2013] NSWCA 311.
Civil Liability Act, s 5I(3).
Paul v Cooke at [80].
Hobson at [196].
Hobson at [38], par 7 of Dr Westbrook's supplemental report of 21 October 2012.
Hobson at [39].
Hobson at [59].
Hobson at [224].
Affidavit of Stephen Barratt, 12 November 2015, at Hobson [57].
Hobson at [226] (italics added).
Hobson at [240].
Tcpt, 14/11/16, p 264(27).
Tcpt, p 265(24).
Tcpt, p 265(50).
Tcpt, 08/11/16, pp 103-104
Hobson at [242].
Fourth defendant's outline of submissions, 21 November 2016, par 133.
Hobson at [259].
Report of Dr Forrest, 26 October 2013, pp 5-6.
Report, pp 3-4.
Report, p 5.
Tcpt, 14/11/16, p 268(33).
Report of Dr Manasiev, 26 October 2016, p 3.
Report, p 3.
Report, p 4.
Tcpt, 14/11/16, p 294(28).
Hobson at [122].
Hobson at [248] and see [249(2)].
Report of Joint Orthopaedic Expert Teleconference Conclave of Drs Johnson, Askin and Wilson-MacDonald, 7 October 2016, p 6.
Affidavit, Randolph Gray, 7 November 2016, p 5.
Tcpt, 07/11/16, p 40(15).
Report, p 4.
Tcpt, 14/11/16, p 295(5).
[17]
Amendments
14 May 2018 - [214]: Formatting correction.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 May 2018
34; [2001] HCA 18
Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 1 QB 493
Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871
Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702
The Nominal Defendant v Buck Cooper [2017] NSWCA 280
Category: Principal judgment
Parties: CA 2017/165207
Dr Christopher Sparks (Appellant)
Brendan Hobson (Respondent)
CA 2017/168320
Norton Rose Fulbright Australia (Appellant)
Grieve Watson Kelly (Respondent)
File Number(s): CA 2017/165207; 2017/168320
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law
Citation: [2017] NSWSC 589
Date of Decision: 17 May 2017
Before: Harrison J
File Number(s): SC 2013/80267
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Brendan Hobson, the respondent, suffers from Noonan Syndrome, a genetic disorder that prevents normal development in various parts of the body. As a result of that disorder, Mr Hobson's ability to fill his lungs with air, and hence to breathe, was restricted. Without surgical intervention, his prognosis was grave. Surgery to correct this problem was designed to take place in two stages. The first operation was successful. 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.
Mr Hobson initiated proceedings claiming damages for negligence. His claims ultimately proceeded 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.
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. 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. His Honour held that if the operation had been so terminated, Mr Hobson would not have suffered a significant cardio-vascular collapse during the operation at about 21:30, his spine would not have been damaged and he would not have become a paraplegic.
Drs Gray and Sparks each appealed against the primary judge's decision on liability. As well as contending that the primary judge erred in finding that they acted negligently, the appellants relied, as they did at first instance, on sections 5 I and 5 O of the Civil Liability Act 2002 (NSW).
The appellants also appealed against his Honour's decision on damages in three limited respects. They contended that his Honour erred in the allowances that he made for past and future domestic care, and for motor vehicle expenses.
By majority (Simpson JA dissenting), the Court dismissed Dr Sparks' appeal with costs. The Court unanimously allowed Dr Gray's appeal.
In relation to Dr Sparks' appeal:
(1) Breach of duty was established.
Per Basten JA at [93]: "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. However, 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.) 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" (citations omitted).
Per Macfarlan JA at [181] and [182]: "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…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."
Per Simpson JA (dissenting) at [359]: "The medical evidence does not…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…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."
(2) Section 5 I of the Civil Liability Act 2002 (NSW) did not provide a defence to Dr Sparks (Simpson JA dissenting).
(3) Section 5 O of the Civil Liability Act 2002 (NSW) did not provide a defence to Dr Sparks. Discussion by the Court of the correct interpretation of s 5 O.
McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158 considered. Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 referred to.
In relation to Dr Gray's appeal:
Per Macfarlan JA at [201]: "[T]he 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."
In relation to both appeals:
The challenges to the primary judge's damages assessment were rejected.
Dr Sparks' appeal on the negligence findings against him
The circumstances of the operation were as follows.
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.
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.
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.
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.
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]).
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.
Dr Gray's appeal on the negligence finding against him
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.
The surgeon's role as a member of a team was described in Ingram v Fitzgerald [1936] NZLR 905 at 913-4 as follows:
"The theatre sister and the assistant nurses are supplied by the private hospital where the operation is performed, and they have thus independent duties to perform. In the circumstances of this case, we think the proper inference is that the defendant [surgeon] did not undertake personally to do all the work necessarily involved in the operation … He must rather have undertaken to perform the operation in the hospital selected, and with the appliances there available, and with the assistance and co-operation of qualified, competent, and experienced nurses attached thereto. It is true that he was in supreme control, and that he had the right and the duty to intervene and could do so. But those subject to that control were skilled collaborators with independent duties, and he did not find it necessary, nor would he expect to find it necessary to intervene to direct the manner in which they discharged those duties. They were not his delegates in the sense that they were there to do work which he had contracted to do or to have done. They were, for general purposes, the servants of the hospital, but in the theatre they were subject to his directions. In no sense, then, is it a proper inference from the facts that the doctor undertook personally to carry out that part of an operation which, in practice, falls to the nurses. There was no delegation, then, in the ordinary sense; for he did not intend, and could not be taken to have assumed, to do their work or to have it done."
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]).
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.
Section 5 I of the Civil Liability Act - inherent risk
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.
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?".
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.
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.
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.
Section 5 O of the Civil Liability Act - peer professional opinion
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.
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.
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.
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:
"160 To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice (emphasis in original).
161 One can see in the facts of the cases that I have mentioned the possibility that what was done accorded with a practice. For example, there may well have been a practice in some part of the profession, in Bolam to use electro-convulsive therapy to treat depression; in Sidaway to give or not to give a warning of risks in respect of the type of spinal operation in question; in Rogers v Whitaker to give or not to give a warning of risks in respect of the type of eye operation conducted on the plaintiff and in Dobler to refer or not refer a patient for an ECG and/or to a cardiologist on detection of a heart murmur."
Past domestic assistance
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.
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:
"Q. Are you able to give an estimate of overall how much time you would spend a week on these various tasks that you've nominated?
A. 20 or more, maybe."
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:
"It is in my opinion a mistake to underestimate the challenges for someone such as Mr Hobson, who is rendered a paraplegic, and who is required to come to terms with the mental and physical consequences of that dreadful discovery. Accommodating to life with such a significant disability is too easily discounted as an everyday vicissitude in the life of the injured person. In my opinion, it is not a mistake to err on the side of overstating, rather than understating, the hours of assistance that Mr Hobson required following his discharge from rehabilitation. His sister was very conservative in her evidence in my assessment and played down what the true difficulties probably were" (Judgment [311]).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.
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.
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.
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.
For these reasons, I consider that Dr Sparks breached the duty of care he owed to Mr Hobson.
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]).
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.
In his written submissions, Mr Hobson contended that:
"It would be naïve to suggest that with Dr Sparks at the patient head and Dr Gray at his spine that Dr Gray was somehow not aware of the difficulties Dr Sparks was experiencing establishing ventilation, the more so when Dr Sparks abandoned his position at the patient's head to make an urgent and stressed call to Dr Barratt."
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:
"Q. Doctor, at 20.08 there were very high carbon dioxide levels despite the attempts at pulmonary ventilation with a double lumen tube, and this was causing a significant respiratory acidosis, wasn't it?
A. At the time I was concentrating on my surgery and I was not entirely informed and aware of the, the nuances and details of these changes."
Whilst this answer's references to not being "entirely informed" and to "nuances and details" raise a question as to whether Dr Gray was aware of the carbon dioxide problem at a higher level of generality, this evidence does no more than that. The evidence is insufficient to establish the awareness necessary to make good Mr Hobson's contentions.
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]).
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).
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.
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.
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.
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.
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:
"165 In summary, the section is directed to something, namely a practice, that was in existence at the relevant time, here July 2004. Whilst at that time there were no doubt many practices in the medical profession concerning the manner in which operations were performed, the types of treatments that were administered, the circumstances in which tests were ordered, the circumstances in which warnings were given and other matters, the evidence here did not identify any such practice that was relevant in the present case. In light of the wide variety of circumstances bearing upon the decision to discharge Mr Pettigrove, it would have been surprising if it had done so. It is unlikely, to say the least, that there would have occurred in or before 2004 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."
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:
• The significance of an elevated blood carbon dioxide level when oxygen and blood pressure readings were normal to high;
• The urgency of the operation, bearing in mind Mr Hobson's pre-existing condition;
• The exhaustion of possibilities, short of termination of the operation, for remedying the carbon dioxide problem and its underlying cause, being the compression of blood vessels preventing blood fully perfusing the lungs.
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.
The appellants submitted that the following evidence given by Drs Forrest and Manasiev demonstrated that s 5 O was applicable.
In his report, Dr Forrest stated:
"The patient was appropriately monitored intraoperatively, and the anaesthetic drugs, dosages and fluid administration were also appropriate.
The management of the patient's critical deterioration at 21:30h was appropriate, as was the decision to abandon the procedure at that time.
The anaesthetic management of Mr. Hobson by Dr. Sparks would therefore have been widely accepted by peer professional opinion in 2009 as competent professional practice."
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".
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:
"Q. What are the factors, you say, that would inform competent professional practice, with respect to anaesthetists and the continuance or otherwise of a surgery?
A. Well, it's the whole gambit of all the hemodynamic parameters that you're looking at within a patient. Predominately, the blood pressure and saturation, which are telling you how the organs are being perfused, but as well as that, all the attempts that are made, in this case, to improve ventilation: whether they are successful or non-successful, the response of all the blood gas analysis. It's a complicated gambit of numbers and figures that you're looking at."
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.