South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2

New South Wales Court of Appeal

CITATION: South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2

HEARING DATE(S): 16-18 November 2005

JUDGMENT DATE: 1 March 2006

JUDGMENT OF: Mason P at 1; McColl JA at 2; Hunt AJA at 3

DECISION: 1. The defendants' appeal against the judgment entered in favour of the plaintiff against the first defendant is dismissed. ; 2. The judgment entered in favour of the plaintiff against the second defendant for $7,000,000 is confirmed. ; 3. The plaintiff's cross-appeal is allowed. ; 4. The defendants are to pay the plaintiff's costs of the litigation in the Common Law Division up to and including 31 January 2005 on a party and party basis, and her costs thereafter on an indemnity basis. ; 5. The appellants are to pay the respondent's costs of the appeal and of the cross-appeal.

CATCHWORDS: Medical negligence case against hospital and treating specialist for whose negligence the hospital is vicariously liable — plaintiff (13 years old) being treated for cancer by way of radiotherapy, systemic chemotherapy and intrathecal chemotherapy — treatment prescribed by treating specialist radical, experimental and controversial procedure, rarely used in the hospital — protocol on which proposed treatment based in part amended before treatment administered because of risk of neurological damage — system whereby one doctor in the hospital's oncological team disseminated information he received from overseas concerning children's cancer — failure of team doctor to pass on to treating specialist information in his possession demonstrating that protocol had been amended — plaintiff becomes quadriplegic as result of treatment — trial judge finds team doctor negligent and hospital vicariously responsible, but finds treating specialist not negligent - Duty of treating specialist in particular circumstances of case to inform himself of the up-to-date information relating to proposed treatment — failure to ensure that such information obtained — treating specialist found negligent on appeal and hospital vicariously responsible - Refusal of trial judge to order indemnity costs after Calderbank letter sent by plaintiff offering to settle for smaller verdict — judge makes no reference to fact that defendants knew of evidence on which plaintiff's case depended at time of the letter — defendants' rejection of evidence unreasonable — indemnity costs ordered.