The New South Wales Court of Appeal in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 provides guidance as to whether it is necessary for there to be an "established practice" which was widely accepted as competent, at the time of the alleged negligence, for a defence to be available under section 22 Civil Liability Act 2003 (Qld).

Section 22 of the Civil Liability Act (Qld) ("CLA") provides, inter alia, that:

1. A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. ("the peer defence")

The Queensland Court of Appeal decision of Mules v Ferguson [2015] QCA 4 provides authority that the section 22 peer defence provision operates as a defence to medical practitioners in medical negligence claims and that the onus is on the medical practitioner to prove the defence.

A fundamental issue for practitioners attempting to establish the peer defence is the extent that it is necessary to show that there existed an established practice at the time of the alleged negligence. There are naturally many occasions in medical practice where there is no clear established practice.

This issue has previously been considered by the NSW Court of Appeal in McKenna v Hunter & New England Local Health District [2013] NSWCA 46 where it was held that a medical practitioner needs to demonstrate that what they did conform with a practice that was in existence at the time the medical service was provided. The practitioner then has to show that that practice was widely accepted by peer professional opinion as competent.

New Approach

In recent case of Sparks v Hobson; Gray v Hobson the patient, Mr Hobson, suffered from Noonan Syndrome, a genetic disorder that prevented normal development of various parts of the body. As a result of that disorder the patient's ability to fill his lungs with air and breathe was restricted. To treat this condition the patient required two lots of surgery. During the second surgery, complications arose which rendered the patient a paraplegic.

The patient subsequently commenced a claim for damages against the principal surgeon, Dr Gray and the principal anaesthetist, Dr Sparks. The allegation 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. It was accepted that if the operation had been so terminated, the patient would not have become a paraplegic.

The doctors appealed the trial judge's decision with respect of breach of duty and sought to rely on the peer defence under section 5O of the Civil Liability Act (NSW), which is identical to Queensland's provision. This appeal provided scope for the established practice issue to be addressed by all three appeal judges.

Basten JA considered that the earlier approach adopted in McKenna was too restrictive and that the phrase "a practice" suggests a regular course of conduct adopted in particular circumstances whereas the legislative provision "competent professional practice" is apt to cover the whole gamut of professional services provided by the practitioner, whether or not the particular circumstances have arisen sufficiently often too result in an established practice.

MacFarlane JA in his judgment considered:

"... 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."

Simpson JA in her reasons, considered that the language in the legislation "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..."

Their Honours' reasons indicate that the operation of the peer defence is less restrictive than the approach previously adopted by McKenna and the plain language of the legislation should be followed.

Ultimately, in relation to Dr Sparks' (the anaesthetist) appeal, the majority held that breach of duty had been established and that the peer defence did not provide a defence to him. In relation to the surgeon Dr Gray's (the surgeon) appeal, the court unanimously held that breach of duty had not been established and thus the peer defence need not be contemplated.

Dr Gray was found not to have breached his duty because it was the anaesthetist's role to monitor the relevant indicators of the patient's condition during surgery and Dr Gray was entitled to rely on the anaesthetist, Dr Sparks, to inform him of any matter of concern without making an enquiry.

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