What happened

Hobson underwent two-stage corrective surgery in 2009 for spinal deformity and restricted breathing associated with a congenital condition. Serious metabolic and circulatory problems persisted during the second operation despite attempts to correct them, before surgery was stopped. Spinal cord ischaemia left him permanently paraplegic.

The issues

The central question was whether surgery should have been stopped earlier and how responsibility differed between Sparks, the principal anaesthetist, and Gray, the principal surgeon. The Court also considered the inherent-risk and peer-professional-opinion provisions in ss 5I and 5O and challenges to care and vehicle expenses.

The court's decision

The majority upheld liability against Sparks for allowing surgery to continue after available measures had failed to address the immediate danger; ss 5I and 5O did not defeat the claim. Gray’s appeal succeeded unanimously because the evidence did not establish that he had been alerted to the critical problem during the relevant period. Simpson JA dissented on Sparks’ liability, and the damages challenges failed.

Understanding the figures

Challenges to the historical trial damages assessment of A$3,828,075 failed, and Sparks remained liable. The judgment against Gray was set aside, with costs payable to him by Hobson. A later costs decision placed part of Gray’s trial costs on the indemnity basis, so the damages figure should not be read as a final net recovery.

What this case shows

Leadership of an operating team did not make the surgeon liable for every specialist decision. The outcome turned on the risks the anaesthetist had to monitor and address, the surgeon’s justified reliance on that specialist and the evidence of what was actually communicated.

Why another case may differ

The decision applied the Civil Liability Act 2002 to highly unusual surgery in 2009, rather than treating every adverse surgical outcome as negligence. The judges’ approaches to s 5O differed and should not be compressed into a single broad proposition. Special leave was refused on 14 September 2018; that did not amount to High Court approval of every aspect of the reasoning.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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