The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.
The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.
The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.
The action was dismissed.
