Bruce v Kaye - [2005] NSWCA 206

NEW SOUTH WALES COURT OF APPEAL

CITATION: BRUCE v KAYE [2005] NSWCA 206

FILE NUMBER(S):
40340/2004

HEARING DATE(S): 12/05/2005

JUDGMENT DATE: 21/06/2005

PARTIES:
KRISTY JANE BRUCE (BY HER TUTOR JODY COLLEEN WINBANK)- APPELLANT
DR ALAN KAYE - RESPONDENT

JUDGMENT OF: Handley JA Santow JA Bryson JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20230 of 2001

LOWER COURT JUDICIAL OFFICER: Grove J

COUNSEL:
S G Campbell SC - Appellant
D Higgs SC- Respondent

SOLICITORS:
Maurice Blackburn Cashman Lawyers - Appellant
Tresscox - Respondent

CATCHWORDS:
NEGLIGENCE - Professional Negligence, Medical (Obstetrician) - appellant challenged findings of Grove J which led to judgment for defendant on claim of medical negligence where plaintiff born in emergency Caesarian with catastrophic injuries and cerebral palsy - alleged negligence in permitting pregnancy to continue beyond 42 weeks - review of factual findings and events in management of plaintiff's mother including EDC (estimate date of confinement) - factual findings confirmed, appeal dismissed.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40340/2004
HANDLEY JA
SANTOW JA
BRYSON JA
TUESDAY 21 JUNE 2005

KRISTY JANE BRUCE v DR ALAN KAYE

Judgment

HANDLEY JA: I agree with Bryson JA.
SANTOW JA: I agree with Bryson JA. The meticulous reasons of Grove J and now on appeal of Bryson JA demonstrate why this appeal could not succeed. It is not to diminish the tragic outcome for the appellant, to whose care her mother has been devoted, to acknowledge that the respondent’s impeccable management of the confinement was, on the evidence, in no way responsible for what occurred.
BRYSON JA: The appellant appeals against judgment for the defendant given by Grove J on 8 April 2004 [2004] NSWSC 277 on her claim as plaintiff for damages for catastrophic injuries which she suffered at birth. The appellant is a minor and her elder sister conducts these proceedings as tutor. The respondent, defendant in the Common Law Division, is a Specialist Obstetrician who attended the appellant’s mother Ms Chevelle (hereinafter “the patient”) as his patient on and from 17 October 1988, attended her at the delivery of the appellant and performed a Caesarean section for the delivery.
The appellant was born on 21 March 1989 at 13 minutes past mid-night at the Royal Hospital for Women. When born she was in a terrible condition as reflected in early APGAR scores, and at 11.35am she was transferred to the Prince of Wales Children’s Hospital. Grove J found: (RED 9)
In due course it was discovered that she was suffering from cerebral palsy. She is profoundly incapacitated. Her palsy is described as being of the spastic quadriplegia type. She is wheelchair bound although she can be exercised by taking a few halting steps if she is fully supported by an adult person. She is non-verbal but is sentient and can make known various feelings such as joy and irritation. She has some capacity for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bruce v Kaye

Details

AGLC: Bruce v Kaye [2005] NSWCA 206
Case: [2005] NSWCA 206
Decision Date: 21 June 2005

CaseChat Overview and Summary

The appeal in *Bruce v Kaye* concerned a claim of medical negligence brought by the appellant against the respondent, an obstetrician. The appellant, who suffered catastrophic injuries and cerebral palsy as a result of an emergency Caesarean section, alleged that the respondent was negligent in allowing the pregnancy to continue beyond 42 weeks. The primary judge, Grove J, had found in favour of the defendant, and the appellant sought to challenge these findings on appeal.

The central legal issue before the appellate court was whether the trial judge's factual findings regarding the management of the appellant's mother's pregnancy were erroneous. Specifically, the court was required to review the evidence concerning the estimated date of confinement (EDC) and the subsequent decisions made in managing the pregnancy, to determine if the respondent had breached the standard of care expected of a reasonably competent obstetrician.

The appellate court affirmed the factual findings of Grove J. It was satisfied that the evidence supported the conclusion that the respondent had acted reasonably in the management of the pregnancy, including the assessment and consideration of the EDC. The court found no basis to interfere with the trial judge's assessment of the evidence and the application of the principles of professional negligence. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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