Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
I. Facts
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 concerns the scope of the defence available to
health practitioners in negligence claims pursuant to section 5O of the Civil Liability Act 2002
(NSW). Hobson suffers from Noonan Syndrome and required two operations to improve his
respiratory condition. Gray (surgeon) advised of the risks associated, specifically neurological
injury, to which Hobson understood. 1
The first operation was successful. Hobson underwent the second operation four days later. 2
Gray commenced the second surgery at 7.30pm. The anaesthetist, Sparks, experienced difficulties
managing Hobson’s metabolic conditions and utilised blood pressure indications and oxygenation
saturation levels to determine stability for the continuation of surgery. By 8.30pm, Hobson’s CO2
levels had risen and remained elevated despite attempts to resolve the situation. At 8.50pm, Sparks
contacted two anaesthetists, however, neither could recommend any new solutions.3 At 9.25pm,
Hobson deteriorated further. Over the subsequent minutes, Hobson’s levels dropped prompting
Sparks to request the termination of the operation. At 9.30pm, Hobson suffered a spinal cord stroke
resulting in paraplegia. 4
The judge held both doctors were negligent by failing to meet the relevant standard of care.
1 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [1] - [8] (Basten JA).
2 Ibid [2] (Basten JA).
3 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [120]-[131] (Macfarlan JA).
4Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [3] (Basten JA), [120]-[131] (Macfarlan JA); Nevena Brown,
‘Sparks v Hobson; Gray v Hobson [2018] NSWCA 29: Is this a prelude to the expansion of the peer professional
opinion defence in NSW?’ (online, Meridian Lawyers, 31 May 2018) <https://www.meridianlawyers.com.au/insights/
sparks-v-hobson-gray-v-hobson-2018-nswca-29-prelude-expansion-peer-professional-opinion-defence-nsw/#_edn2>.
, Hobson’s metabolic deterioration would have caused a reasonable, competent surgeon/anaesthetist
to terminate the operation earlier.
Sparks and Gray appealed.
II. Issue
The issue to be determined was whether the judge had erred in finding that they had acted
negligently having regards to section 5O of the CLA.5 The scope of section 5O6 required
interpretation in dealing with Sparks’ appeal. Hobson argued the section7 required a ‘practice’8
widely accepted by peer professionals pursuant to McKenna v New England & Hunter Local Health
District.9 Sparks argued that McKenna10 was incorrect in requiring demonstration of an existing
‘practice’ to satisfy section 5O.
III. Decision
The Court allowed the appeal of Gray on the basis that Gray had no knowledge of Hobson’s CO2
readings.11
Sparks’ appeal was dismissed.12
5 Civil Liability Act 2002 (NSW) ss 5I, 5O.
6 Ibid s 5O.
7 Ibid.
8 This practice must be in existence at the time of the medical service provided.
9 [2013] NSWCA 476.
10 McKenna v New England & Hunter Local Health District [2013] NSWCA 476.
11 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [201] (Macfarlan JA).
12 Ibid [93] (Basten JA), [181]-[182] (Macfarlan JA).
I. Facts
Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 concerns the scope of the defence available to
health practitioners in negligence claims pursuant to section 5O of the Civil Liability Act 2002
(NSW). Hobson suffers from Noonan Syndrome and required two operations to improve his
respiratory condition. Gray (surgeon) advised of the risks associated, specifically neurological
injury, to which Hobson understood. 1
The first operation was successful. Hobson underwent the second operation four days later. 2
Gray commenced the second surgery at 7.30pm. The anaesthetist, Sparks, experienced difficulties
managing Hobson’s metabolic conditions and utilised blood pressure indications and oxygenation
saturation levels to determine stability for the continuation of surgery. By 8.30pm, Hobson’s CO2
levels had risen and remained elevated despite attempts to resolve the situation. At 8.50pm, Sparks
contacted two anaesthetists, however, neither could recommend any new solutions.3 At 9.25pm,
Hobson deteriorated further. Over the subsequent minutes, Hobson’s levels dropped prompting
Sparks to request the termination of the operation. At 9.30pm, Hobson suffered a spinal cord stroke
resulting in paraplegia. 4
The judge held both doctors were negligent by failing to meet the relevant standard of care.
1 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [1] - [8] (Basten JA).
2 Ibid [2] (Basten JA).
3 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [120]-[131] (Macfarlan JA).
4Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [3] (Basten JA), [120]-[131] (Macfarlan JA); Nevena Brown,
‘Sparks v Hobson; Gray v Hobson [2018] NSWCA 29: Is this a prelude to the expansion of the peer professional
opinion defence in NSW?’ (online, Meridian Lawyers, 31 May 2018) <https://www.meridianlawyers.com.au/insights/
sparks-v-hobson-gray-v-hobson-2018-nswca-29-prelude-expansion-peer-professional-opinion-defence-nsw/#_edn2>.
, Hobson’s metabolic deterioration would have caused a reasonable, competent surgeon/anaesthetist
to terminate the operation earlier.
Sparks and Gray appealed.
II. Issue
The issue to be determined was whether the judge had erred in finding that they had acted
negligently having regards to section 5O of the CLA.5 The scope of section 5O6 required
interpretation in dealing with Sparks’ appeal. Hobson argued the section7 required a ‘practice’8
widely accepted by peer professionals pursuant to McKenna v New England & Hunter Local Health
District.9 Sparks argued that McKenna10 was incorrect in requiring demonstration of an existing
‘practice’ to satisfy section 5O.
III. Decision
The Court allowed the appeal of Gray on the basis that Gray had no knowledge of Hobson’s CO2
readings.11
Sparks’ appeal was dismissed.12
5 Civil Liability Act 2002 (NSW) ss 5I, 5O.
6 Ibid s 5O.
7 Ibid.
8 This practice must be in existence at the time of the medical service provided.
9 [2013] NSWCA 476.
10 McKenna v New England & Hunter Local Health District [2013] NSWCA 476.
11 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 [201] (Macfarlan JA).
12 Ibid [93] (Basten JA), [181]-[182] (Macfarlan JA).
