Diamond v Simpson (No 3)

[2003] NSWCA 373

CITATION:	Diamond v Simpson (No 3) [2003] NSWCA 373
HEARING DATE(S):	18, 19, 20 February 2003; 18, 19 June 2003 [Contribution Claim]
JUDGMENT DATE:	16 December 2003
JUDGMENT OF:	Meagher JA at 1; Ipp JA at 2; Young CJ in Eq at 3
DECISION:	(1) Appeal allowed; (2) Declare that the cross defendant is liable to pay to the cross claimant one-half of the amount paid or payable to the plaintiff in respect of orders made against the cross claimant in these proceedings; (3) Liberty to apply to a Master to certify the amount of such amount if the same cannot be agreed; (4) Cross appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE- Hospital- Defective birth case- Scientific evidence- Whether hospital and doctor contributed to defective birth.
LEGISLATION CITED:	Evidence Act 1995 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Limitation Act 1969 Supreme Court Act 1970, s 75A(5)
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Adler v ASIC (2003) 46 ACSR 504 Ahmedi v Ahmedi (1991) 23 NSWLR 288 Benmax v Austin Motor Co Ltd [1955] AC 370 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Broken Hill Pty Co Ltd v Duffy (1943) 16 ALJ 374 Burrows v The March Gas & Coke Company (1870) LR 5 Ex 67 (Full Bench of Exchequer) Burrows v The March Gas & Coke Company (1872) LR 7 Ex 96 (Exchequer Chamber) Cohen v McWilliam (1995) 38 NSWLR 476 Davie v Lord Provost Etc of Edinburgh [1953] SC 34 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 77 ALJR 989 Hollman v Sampson [1985] 2 Qd R 472 The Koursk [1924] P 140 Lawrie v Meggitt (1974) 11 SASR 5 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 March v E & M H Stramare Pty Ltd (1991) 171 CLR 596 Medlin v State Government Insurance Commssion (1995) 182 CLR 1 Purkess v Crittenden (1965) 114 CLR 164 R v GK (2001) 53 NSWLR 317 FF Seeley Nominees Pty Ltd v El Ar Initiations (UK) Ltd (No 2) (1990) 55 SASR 314 Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 Sharp v Avery [1938] 4 All ER 85 Shorey v P T Ltd (2003) 77 ALJR 1104 Simpson v Diamond [2001] NSWSC 150 Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 Smith v Harris [1939] 3 All ER 960 State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Tzouvelis v Victorian Railway Commissioners [1968] VR 112 The Volute [1922] 1 AC 129 Warren v Coombes (1979) 142 CLR 531 Watts v Rake (1960) 108 CLR 158
PARTIES :	Robert Diamond (Appellant) Trustees of the Sisters of St Joseph (Respondent)
FILE NUMBER(S):	CA 40962/01
COUNSEL:	P L G Brereton SC and I F Butcher (A) P Hall QC and S A Woods (R)
SOLICITORS:	Blake Dawson Waldron (A) Makinson & d'Apice (R)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	12791/87
LOWER COURT JUDICIAL OFFICER :	Whealy J

40962/01

MEAGHER JA
IPP JA
YOUNG CJ in EQ

Tuesday 16 December 2003

ROBERT DIAMOND v CALANDRE SIMPSON AND TRUSTEES OF THE SISTERS OF ST JOSEPH (NO 3)

CATCHWORDS
NEGLIGENCE- Hospital- Defective birth case- Scientific evidence- Whether hospital and doctor contributed to defective birth.

FACTS


The plaintiff was born under circumstances from which she has suffered lifelong cerebral palsy. In a lengthy trial she was awarded damages of $14 million, reduced on appeal to $11 million. The doctor admitted negligence.

The doctor sued the hospital for contribution. The trial judge found that the hospital had been negligent in administering to the plaintiff's mother an overdose of Syntocinon. However, he found that that negligence was not a cause of the plaintiff's damage. He accordingly found a verdict for the hospital.

On appeal, the Court considered that the evidence provided by the hospital's partogram and the correct application of the principles of scientific evidence meant that the probabilities were that there was more than one cause of the plaintiff's injury and that both the doctor and the hospital's act of administering an overdose of Syntocinon contributed to the plaintiff's injury. In the circumstances, the doctor and the hospital should be equally liable for the plaintiff's damage.

ORDERS


(1) Appeal allowed.

(2) Declare that the cross defendant is liable to pay to the cross claimant one-half of the amount paid or payable to the plaintiff in respect of orders made against the cross claimant in these proceedings.

(3) Liberty to apply to a Master to certify the amount of such amount if the same cannot be agreed.

(4) Cross appeal dismissed with costs.

40962/01

MEAGHER JA
IPP JA
YOUNG CJ in EQ

Tuesday 16 December 2003

ROBERT DIAMOND v CALANDRE SIMPSON AND TRUSTEES OF THE SISTERS OF ST JOSEPH (NO 3)

Judgment

1 MEAGHER JA: I agree with Young CJ in Eq.

2 IPP JA: I agree with Young CJ in Eq.

3 YOUNG CJ in EQ: This is the second tranche of the appeals arising out of the birth of the first respondent ("the plaintiff"), Calandre Simpson, on 5 July 1979. The birth took place in a hospital operated by the second respondent ("the hospital"). The doctor in charge of the birth was the appellant ("the doctor").

4 As a result of at least the appellant's negligence, the plaintiff was born in such a state that she has developed cerebral palsy.

5 The trial of the plaintiff's action came on before Whealy J and lasted for 12 weeks of hearing.

6 On the first day of the trial, the doctor admitted liability and the plaintiff thereupon discontinued against the hospital. His Honour then had to consider the question of the quantum of damages as against the doctor, and also had to consider a cross claim for contribution by the doctor against the hospital.

7 In a long and careful judgment, Whealy J found a verdict against the doctor for $14,202,042.00, see [2001] NSWSC 925. His Honour found that the hospital was negligent, but that such negligence did not cause the plaintiff's damage. Accordingly, he dismissed the cross claim.

8 The first tranche of this appeal, an appeal by the doctor against the quantum of the verdict, was heard by this Court consisting of Stein and Ipp JJA and Young CJ in Eq and on 7 April 2003, the damages were reduced to $10,998,692.00; see [2003] NSWCA 67. There was also a subsequent judgment on costs by the same panel; see [2003] NSWCA 78, delivered on 9 April 2003.

9 The present appeal seeks to have the hospital contribute to the damages that have to be paid to the plaintiff by the doctor.

10 On this appeal, Mr P L G Brereton SC and Mr I Butcher appeared for the doctor, and Mr P Hall QC and Mr S A Woods appeared for the hospital. The basis of the appeal is simply that the conduct of the hospital was negligent and was a cause of the damage suffered by the plaintiff. The doctor suggests that the hospital should contribute 50% of the amount ordered to be paid by the doctor.

11 The hospital, in its notice of contention, challenges the finding of negligent conduct. It also says that because the doctor was grossly negligent, he is not entitled to contribution at all. There is also a cross appeal by the hospital on a procedural matter, relating to whether the trial judge should have given late leave to the doctor to amend his cross claim.

12 It is convenient to consider the issues that arise on this appeal under the following heads:

A. Glossary and List of Dramatis Personae;

B. The Factual Background;

C. Applicable Principles of Appellate Review;

D. The Opposing Arguments on Appeal;

E. Expert Evidence;

F. Undisputed Relevant Facts;

G. The Syntocinon Argument;

H. The Medical Evidence;

I. The Trial Judge's Findings;

J. Problems with Multiple Causes;

K. Resolution of the Issues;

L. The Notice of Contention;

M. Collateral Matters;

N. The Result of the Appeal.

O. The Orders to be made.

A. Glossary and List of Dramatis Personae

13 This glossary is not intended to be anything more than a list of brief (often over-simplified) definitions of medical terms used in these reasons.

ACIDOSIS An acid condition of the blood.

APGAR An index indicating colour, respiratory effort,
muscle tone, heart rate and reflex irritability
of a new born baby. APGAR is an acronym for A ppearance, P ulse rate, G rimace, A ctivity (muscle tone) and R espiratory effort. The scale is 0 for very poor, 1 for problem and 2 for good.


AUSCULTATION Examination by listening.

BRADYCARDIA A slowing of the heart rate. In 1979 "normal"
heart rate for a foetus was considered to be
120-160 beats per minute (bpm).

CORD COMPRESSION Occlusion of the umbilical cord.

EPIDURAL Stimulant injection to control pain during
child birth.

HYPERSTIMULATION Over stimulation – 5 contractions or more in
any ten minute period. However see [15] below.

HYPERTONUS A form of hyperstimulation of the uterus
manifested by a raised resting tone and elevation of contractions one into the other (coupling).


HYPOSTIMULATION Under stimulation.

HYPOTONUS Low pressure of bodily fluid.

HYPOXIC See [12].

INTERVILLOUS The placenta is an outer growth from the
foetus which has hundreds of little finger
processes called "villi" which are immersed
in a bath of maternal blood. Thus there is
always a barrier between the foetus and the
mother. The placental space is referred to as
"the intervillous space".

MECONIUM Dark excrement of a foetus.

OXYTOCIN A hormone which stimulates contractions.

NON TRIAL FORCEPS Forceps used outside the operating theatre.

PARTOGRAM A hospital chart recording heart beats of
mother and foetus and noting oxytocin dose
and administration of other drugs.

SYNTOCINON Synthetic oxytocin.

TACHYCARDIA Fast heart rate.

TACHYSYSTOLE A lot of contractions close together.

TITRATION The method of mixing the solution and
adjusting the dosage.

VAGAL See [13].

VILLAE See Intervillous.

14 The terms "hypoxic" and "vagal" are vital ones in this case. The Gould Medical dictionary defines the term "hypoxic" as "Reduction in availability of oxygen to tissue due to a decrease in the partial pressure of oxygen in the arterial blood".

15 The term "vagal" refers to or concerns the vagus nerve. This is a pneugastric nerve extending from the face to near the heart. When the vagus nerve is stimulated it emits a chemical neuro-transmitter the effect of which is to slow the heart rate. The vagal effect has a short half life so that when the vagal stimulus is removed, the chemical dissipates and the heart rate recovers.

16 In the present case, the injury was caused by unremitting bradycardia. The key question in this part of the case is whether that bradycardia had a solely vagal cause or whether there was an hypoxic cause as well and, if so, what was that hypoxic cause.

17 It must be noted that Mr Brereton put that there was no particular magic in the classic definition of hyperstimulation noted in [11]. Indeed virtually all the experts agreed that this is so. Even if contractions did not exceed 5 in 10 minutes there could still be occasioned depletion of foetal metabolic reserves.

18 Three types of forceps are referred to in this case, Wrigleys, Neville Barnes and Kiellands. It is difficult to describe the differences in words, but I will endeavour to do so. Drawings of them appear at Blue Appeal Book Vol 3, p 581. Wrigleys are curved forceps with virtually no handles: one cannot get much traction from them. Neville Barnes forceps are a standard pair of classical long forceps with a handle that one can lock and squeeze together. They cannot be used to rotate. Kiellands forceps are different in two critical ways. First, they do not have a fixed lock. Secondly they can be used to rotate the head of the foetus but they can be very dangerous as they can squash the baby's head. See Dr Clements at Black Vol 1, 194-5.

19 Eight expert medical witnesses were called by the parties. The plaintiff called Mr Roger Clements, an obstetrician, Dr Janet Rennie, a neo-natal clinician, and Dr Frederick Hinde, a specialist gynaecologist. The doctor called Professor Nicholas Fisk, an English Professor of Obstetrics and Gynaecology, described by his Honour as a foetal physiologist, Dr Robert Lyneham, a consultant obstetrician and gynaecologist, Dr John Keogh, a specialist in obstetrics and gynaecology, and Dr John Pennington, obstetrician and gynaecologist. The hospital called Professor David Ellwood, Professor of Obstetrics and Gynaecology, another foetal physiologist.

20 In summary, his Honour found the views of Mr Clements and Dr Rennie very compelling. He was very much persuaded by Dr Hinde. He preferred Professor Ellwood to Professor Fisk, and did not find much assistance in the evidence of Drs Lyneham, Keogh or Pennington. This is a matter to which I will return.

21 The only other person who needs to be described at this stage is Geraldine Ranclaud, who was the midwife/nurse involved in the delivery of the plaintiff. Sister Ranclaud was an experienced nurse. She made a statement on 1 February 1988 about the matter, but unfortunately died in 1993. Her statement was tendered at the trial, but of course, there could be no cross examination on this statement.

B. The Factual Background

22 The background facts can be shortly stated. Mrs Gail Simpson, whom I will call "the mother", was admitted to the hospital on the evening of 4 July 1979 for the purpose of giving birth to her second child. At about 8.10 am on 5 July 1979, the doctor ruptured her membranes and Syntocinon was administered to help induce labour. I will need to examine what occurred between 8.10 am and 1.30 pm that day in more detail later. For the present, I am merely outlining the background.

23 The doctor arrived at the labour ward at about 1.25 pm. He determined that the baby (the plaintiff) should be delivered by forceps. He tried five times to deliver the baby by forceps of three different types. During the final attempt with Kiellands forceps the doctor rotated the baby's head and then re-rotated it back to its previous position. The baby did not descend. During this process, the baby's heart beat reduced from about 140 beats per minute (bpm) to between 60 and 80 bpm.

24 These attempts at forceps delivery took 15 to 20 minutes. After the last attempt, the mother was taken to the operating theatre where the baby was delivered by caesarean section at 2.17 pm. There was thus about a 27 minute delay from the time that the decision was made to take the mother into the operating theatre and the time of delivery.

25 The plaintiff's condition at delivery was poor. Her APGAR was 10010 one minute after delivery.

26 The plaintiff developed cerebral palsy. It is common ground that she suffered a terminal bradycardia for at least 15 minutes, probably after 1.50 pm. There was thus a denial of sufficient blood oxygen to the brain of the plaintiff for a period in excess of 15 minutes and this is recognised as a situation where brain damage will most likely result.

27 The plaintiff sued the doctor in these proceedings which she commenced on 3 April 1987, that is, almost eight years after the event.

28 By cross claim filed on 27 February 1991 in what Whealy J, in a preliminary judgment, Simpson v Diamond [2001] NSWSC 150, called "a bland pleading", the doctor sought contribution or indemnity from the hospital without disclosing much by way of particulars as to why the contribution was sought.

29 In November 1999, the doctor's solicitors furnished the hospital's solicitors with a proposed amended cross claim. Discussions went on for some time about this. A formal amended cross claim document was provided by the doctor's solicitors on 20 July 2000. Consent to its filing was not forthcoming. On 2 March 2001, despite the hospital's arguments to the contrary, on the basis that it was prejudiced because of the death of Sister Ranclaud, Whealy J allowed the amended cross claim to be filed and it was filed on 27 February 2001.

30 In what I have described as a collateral issue, the hospital seeks to reverse that decision.

31 The trial commenced before Whealy J and lasted three months. His Honour then reserved his judgment, and on 5 November 2001, found a verdict for the plaintiff against the doctor, but dismissed the doctor's cross claim for contribution.

32 When considering his Honour's judgment I shall refer to paragraph numbers making this clear by the use of square brackets.

33 His Honour found at [1403]:

"I find that the plaintiff's injury was caused solely by Dr Diamond's negligent use of forceps. This, coupled with the fact that the instrumental attempts were made in the labour ward, induced an unremitting bradycardia which continued until birth."

34 His Honour said at [1416] that he accepted on the evidence that there was never a real possibility that the mother had experienced continuous contractions during the hour prior to midday. This appears to be unassailable. His Honour continued at [1417] that he rejected the contention that the contraction frequency resulted in an interval between contractions of just under 60 seconds. He did so on the ground that the mother's evidence was to the contrary. However, as Mr Brereton submits, the mother's testimony on this issue was not likely to have been accurate. There was evidence that a mother in the position of Mrs Simpson would not have been in a position to make precise observations of the extent of her contractions, moreover, there would be a small difference in time between her experience of pain and the start and finish of each contraction.

35 His Honour also rejected at [1418] and [1419] that the entries in the fluid balance chart could have supported the Syntocinon theory because observations of the various nurses and doctors did not disclose that they had observed signs which would have been quite apparent had the fluid been administered in the way the Syntocinon theory suggested.

36 At [1423] his Honour remarked that it was obviously dangerous to attempt to reconstruct events by way of expert interpretation of hospital records. Particularly was this so where some of the records were ambiguous and Sister Ranclaud, the only person who might have been able properly to interpret them, had died before the trial. His Honour said that it was obvious that in many respects the hospital records did not provide a firm skeleton for reconstruction. His Honour said:

"I remain unsatisfied and unpersuaded, despite the variations of approach, that there is any real probability that hyperstimulation occurred."

37 Regarding the contribution claim, his Honour said at [1406]:

"I am satisfied that the hospital was in breach of its duty of care in relation to the dosage of Syntocinon that was administered to Mrs Simpson. This was, contrary to the doctor's instructions, at a rate 43% higher than the prescribed rate. The nursing staff was solely responsible for this breach of duty. Dr Diamond had no role in the administration of the excessive concentration."

However, he said at [1450]:

"Calandre was not harmed by Syntocinon. Until the end stage of the instrumental attempts, her heart rate remained within normal limits. There was no tachycardia preceding an onset of bradycardia. At the time the Kiellands forceps were employed, there occurred 'the first real sign of foetal distress'. The recovery of the heart rate following the drop during the Neville Barnes applications reinforced that this was so."

He thus held that the negligence of the hospital with respect to the dose of Syntocinon was not a cause of the plaintiff's damage and so dismissed the cross claim.

38 As I have said, the vital question in the current appeal is whether the terminal bradycardia was solely a result of the vagal interference caused by the use of forceps. The appellant doctor says it is necessary to find another, an hypoxic cause, as well [see Glossary for definition]. Principally this is because he says normally a vagal interference with blood supply lasts only for a very short period. The significance of the short period is that no lasting harm befalls the foetus as, when normal conditions are resumed, it quickly recovers. The doctor says that the hypoxic cause is the hospital's negligence in administering an excessive dose of Syntocinon which produced hyperstimulation and so used up the foetus' metabolic reserves. The hospital denies that there is a need for a second cause in addition to the vagal cause and, further, denies that the excessive dose of Syntocinon was an additional cause of the terminal bradycardia.

39 The hospital denies that it is necessary to find a second, an hypoxic cause, but further says that if one has to be found it is to be found in the occlusion of the cord by forceps. Both counsel told us that his Honour did not so find.

C. Applicable Principles of Appellate Review

40 Mr Hall commenced his supplementary submissions with a quotation from the judgment of Isaacs J in Dearman v Dearman (1908) 7 CLR 549, 561 that "the whole duty of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance." He then emphasized with reference to high authority the advantage that the trial judge has. He cited extensively from the judgment of Kirby J in State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306, 330 [90-1].

41 Mr Hall says that whilst the Court of Appeal is required by s 75A(5) of the Supreme Court Act 1970 to rehear the matter and to form its own conclusions on the evidence recorded at the trial, in doing so the Court is obliged to take into account, and give full weight to, the trial judge's advantages.

42 Mr Hall says that in the present case the 28 days of evidence, 3 days of submissions and the large number of exhibits, the oral evidence of expert witnesses occupying over 1,500 pages of transcript, the learned trial judge was at a considerable advantage, and this Court should not disturb his findings of fact unless they were not available on the evidence.

43 He then went on to say:

"The principle applies to expert witnesses in the same way that it applies to lay witnesses. The trial judge has the advantage of having seen the experts presenting their opinions, and their manner of dealing with competing opinions and propositions put in cross-examination.
"In particular, where the opinion expressed by an expert is based upon their experience, and where that experience forms a legitimate basis for an inference drawn by the trial judge, the Court of Appeal ought not to set aside the trial judge's assessment of that opinion: X & Y v Pal (1991) 23 NSWLR 26, 34.
"It is also submitted that where the issue under appeal is the issue of causation, an appellate court would be cautious in subjecting the learned trial judge's reasons to meticulous scrutiny in the search of error: the conclusion as to causation is one that is 'often reached intuitively': Chappel v Hart (1998) 195 CLR 232, 290 [148]."

44 Mr Brereton submits that:

"Although, where a challenge is made to a trial judge's finding of primary fact, an appellate court will defer to the trial judge's position of advantage if that finding is founded on substantially on an assessment of credibility, based to a significant extent on observations of demeanour (see Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ), 480 (Deane and Dawson JJ)), the rationale which underlies that approach is that the trial judge is acknowledged to enjoy a position of advantage, vis-a-vis an appellate court, in assessing demeanour. Demeanour did not play a significant role in the trial judge's resolution of those factual issues which remain in dispute on the appeal. The argument turns on objective facts and inferences, and the use and analysis of expert evidence, not the acceptance of one witness over another on demeanour."

45 Mr Brereton then says that it is very necessary to make a distinction between findings of primary fact and inferences to be drawn from the primary facts. In the present case he says there is no real problem about the findings of primary fact made by the Judge, so that inhibitions put on appellate courts in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9 do not concern the present appeal. This is the case, as was Warren v Coombes (1979) 142 CLR 531, 541, where it is clear that:

"Where the question is whether particular inference should be drawn from proved facts the appellate court has the right and duty to decide the question for itself."

However he says, by way of backup submissions that:

"In any event, a trial judge's finding of fact, even when based on demeanour, are open to be reviewed on appeal on the footing that there is too fragile a basis for them." State Rail Authority v Earthline Constructions Pty Ltd .

46 Mr Brereton puts that, as Viscount Simonds said in Benmax v Austin Motor Co Ltd [1955] AC 370, 373 "it may often be difficult to say what is a simple fact and what is inference from fact." In the present case he says that the distinction between simple/primary facts and inferred facts is unhelpful. He puts that by reason of the hospital's own inadequate record keeping, almost all of the critical facts in this case depend on inferences and many of what should be "simple facts" require expert opinion.

47 Mr Brereton puts that, essentially, the only simple facts are:

(1) What dosage of Syntocinon was given?

(2) What was the uterine response;

(3) What was the foetal heart rate at various times.

However even here, because of inadequate records there has to be inference on these matters also.

48 As counsel reminded us, the High Court has recently considered the matter again in Fox v Percy (2003) 77 ALJR 989 and in Shorey v P T Ltd (2003) 77 ALJR 1104. In the latter case at p 1109 [32], Kirby J, who gave the leading judgment, said it was unnecessary to consider whether "the judicial authority about disturbing evidence on the basis of assessments of credibility applies, or applies with the same strictness, in the case of expert witnesses where … the honesty of the witness is not in doubt and the issue for decision at trial is the acceptability of the witness's opinion, the extent of his or her experience in the speciality and whether one expert's conclusion is more acceptable and logical than that of another expert." His Honour noted that there were differing views on that question and referred in a footnote to Ahmedi v Ahmedi (1991) 23 NSWLR 288, 291, the Earthline Constructions case at 321 [68] and referred also to Watts v Rake (1960) 108 CLR 158, 162-3.

49 However, Mr Brereton says that most significant is paragraph 42 of the judgment of Kirby J at p 1111, where his Honour notes that the error into which this Court fell in Shorey's case was to search for a single cause when the case appeared to be one where there were multiple causes, because all the plaintiff had to show was that the defendant's conduct was a cause, not necessarily the cause, of her injury.

50 Mr Brereton points out that in the Earthline case, the High Court did allow the appeal even though the trial judge had been heavily swayed by his impression of a witness on giving evidence, by taking regard to other evidence at the trial.

51 In my view, Mr Brereton's approach is correct. The Court in this case has greater liberty than in many appeals to examine the facts. This is because almost all the findings made by the judge were of inferred facts. Moreover, with minor exceptions, there were no problems as to credibility.

D. The Opposing Arguments on Appeal

52 Mr Brereton for the appellant says that on the whole of the evidence, it is more likely than not that the plaintiff's injury was caused by two concurrent causes, one of them hypoxic rather than by one vagal cause only.

53 He further says that the trial judge erred in taking the view that he could give greater weight to the observations (or non-observations) of the clinicians than to the evidence of the scientists.

54 Mr Hall for the respondent hospital says that the decision below was one on a question of fact. The trial judge made his assessment on the evidence and his decision was well within the range.

55 The heart of the case for contribution between the doctor and the hospital is whether the latter's negligence in administering an overdose of Syntocinon to the plaintiff's mother was a contributing cause of the plaintiff's injury.

56 The learned trial judge found that the hospital was negligent in relation to the dosage of Syntocinon (see [1406]). However, his Honour held that that was not a contributing cause of the injury.

57 The doctor says that this is an error. He says his Honour should have found that that breach of duty was a cause of Calandre's injuries. The excessive Syntocinon regime produced such a level of contractions in Mrs Simpson that the reduced opportunity for replenishment of the placental villae between contractions resulted in the depletion of Calandre's foetal metabolic reserves, such that her ability to withstand the stresses of labour, including instrumentation, was impaired and compromised, with the consequence that, when otherwise she would have recovered from the forceps episode without permanent damage, she was unable to do so ("the Syntocinon theory").

58 Mr Brereton puts it that a compelling reason for this conclusion is that the failed forceps were an insufficient explanation for the catastrophic outcome, unless some other, hypoxic, mechanism were also at work. This was the opinion, in particular, of the two foetal physiologists, Professors Fisk (for the appellant) and Ellwood (for the hospital). Although finding Professor Ellwood's approach to be "both reasonable and convincing", his Honour (contrary to both Professor Ellwood and Professor Fisk) did not accept that it was necessary to find an hypoxic explanation as well as a vagal bradycardia. Rather, his Honour accepted the evidence of the clinicians (Mr Clements and Dr Hinde), that it was not necessary to look for a second pathology. In so doing, his Honour apparently took the view that the clinicians Dr Hinde and Mr Clements "knew what they have seen", and were not concerned with the "niceties of precision" which troubled the foetal physiologists. This approach did not do justice to the scientific evidence. His Honour did not analyse the expert evidence – scientific and clinical – with the rigour required. His Honour should have concluded that the result was not explicable in the absence of a second pathology.

59 These are the basic contentions. There were, of course, arguments on the details. These are considered when matters of detail are discussed in these reasons.

E. Expert Evidence

60 The solution to the very awkward problems presented to the Court in this case lies in the proper interpretation of the expert evidence and analysis of records compiled at the time of the plaintiff's birth.

61 There is no doubt as to the eminence and qualification of all the experts who gave evidence in this case. However their evidence was not entirely consistent. In particular, there was tension between the clinicians and the scientists which I have already noted and will discuss in the appropriate part of these reasons.

62 It must be remembered that "the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert": Davie v Lord Provost Etc of Edinburgh [1953] SC 34, 40. The Court must decide the issue of fact before it, aided by the expert evidence. Where expert evidence is contradictory, the Court resolves the conflict applying "logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted": Hollman v Sampson [1985] 2 Qd R 472, 474.

63 Mr Brereton says that the requirement is for a trial judge to evaluate the reasons given by the expert witnesses for their views. A judge is not entitled merely to pick the most impressive of the expert witnesses put before him or her.

64 It must be remembered further that, whilst under the Evidence Act 1995 it is admissible for experts to give evidence of opinion close to the ultimate issue, the closer they approach the ultimate issue the more careful judicial scrutiny should be: R v GK (2001) 53 NSWLR 317, 326; Adler v ASIC (2003) 46 ACSR 504, 633.

65 In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729 and following, Heydon JA, when a member of this Court, gave detailed guidance as to the way in which courts should approach expert evidence. He said [59] at p 729, with respect to the expert in that case, Professor Morton:

"a prime duty of experts in giving opinion evidence [is] to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions."

66 He pointed out that that view had been accepted by a large number of judicial and academic writers. His Honour then continued at 731 [64]:

"The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision' the opinion will be admissible and material; see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 509-510; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844, 846."

At 733, after discussing a series of other cases his Honour said that there was underlying a number of observations in the leading cases "that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained."

67 The problem arises in the instant case because, if I can over-simplify the position for a moment, the key question was whether a second cause of terminal bradycardia was required. On this point, the expert evidence of Professors Fisk and Ellwood was that a second, an hypoxic, cause was necessary (they thought of different hypoxic causes but that is bye the bye). Mr Brereton says that merely because the evidence of the clinicians showed that they had seen some cases where there had not been an obvious second cause or a second cause which they had been able to discern was no reason for putting aside the expert opinions of Professors Fisk and Ellwood.

68 Mr Brereton says that the present is a classic case of mere ipse dixit of experts preferred by the trial judge. For instance he notes that Mr Clements could only identify one or two cases with which he had been concerned, declining to discuss others on the basis of confidentiality. Thus there could be little opportunity to test his evidence. Indeed the so-called clinical experience was more within Mr Clements' medico-legal theorizing.

69 Dr Rennie also relied only on one actual case from her medico-legal practice. I will set out her evidence in detail later in these reasons.

70 Again, Dr Hinde relied on his clinical experience. At Black 1684 Mr Brereton asked him:

"Q. And I think you have accepted that there is nothing in the literature to support the theory of a vagotonia that doesn't remit?


A. It is just experience that you see this happening."

At Black 1685, Dr Hinde said:

"A. Well, if the foetal heart remains low there has to be a continuing vagal action."


Mr Brereton asked:

"Q. But what causes it?

A. Well, as I have said, I am basing what I say on practical observations, rather than theoretical concepts.
Q. And so far as we know at this stage there is no scientific analysis which explains that?

A. Because fortunately there are very few cases like this.

Q. Would you agree that there is no scientific explanation which explains a continued sustained vagal bradycardia?
A. There is no scientific explanation because it would be extremely difficult to do a study which, under the circumstances of what we are discussing addressed this question."

71 The impression I obtained from these passages is that Dr Hinde was relying on his own experience rather than objective experience from literature.

72 Mr Brereton submits that the opinion of Dr Hinde that forceps alone can lead to sustained bradycardia is based purely and simply on an observation of forceps being followed by bradycardia in rare cases in the past. This involves the unstated and unproven assumption that in those cases, there was a causal connection; and, therefore, the supposition that there could have been such a connection in the plaintiff's case. However, neither Dr Hinde nor the hospital has put forward any factual matters at all which would allow evaluation of the opinion about causation in those earlier cases, or as to how conclusion could be drawn from them applicable to the plaintiff's case. While in some cases a temporal association may be sufficient to permit a causal relationship to be inferred, the evidence of the foetal physiologists means that this is not such a case.

73 Thus, it is put that his Honour did not direct his mind to the expert evidence in the way dictated by authority and considered in Makita v Sprowles (supra).

74 There is a lot of force in this submission.

75 His Honour seems to have considered that there was some dichotomy between "scientific certainty" expected from the perspective of a foetal physiologist and the observations of the clinician "who knows what he has seen"; see [1448].

76 I agree with the submission of Mr Brereton in this regard:

"This does not do justice to the role of scientific evidence. Here, two eminent foetal physiologists – one on each side of the record – agreed that a second pathology was necessary to explain the outcome. It was not enough to discount that to find that clinicians, not even able to describe particular cases on which their professional opinion depended, thought otherwise.
This was no question of 'searching for scientific certitude'; two scientists on opposing sides said that the outcome was not possible without a second pathology, and his Honour should have so found. In a field of specialised knowledge (foetal physiology), the opinion shared by experts on both sides (and as well by Dr Lyneham and Dr Keogh) ought to have been accepted; at the least, it should not have been put aside without compelling reasons. The evidence of the decisions – Mr Clements and Dr Hinde – did not provide such a basis."

F. Undisputed Relevant Facts

77 The following is based on the doctor's submissions (Orange 3 et seq), adjusted by reference to the hospital's submissions (Orange 125 et seq).

(1) Mrs Simpson arrived at the hospital on 4 July 1979 at 8.30 pm for the purposes of a planned induction of labour. She was taken to the labour award at about 8.10 am on 5 July 1979, when Dr Diamond performed an artificial rupture of membranes, and gave instructions to commence Syntocinon to help induce labour.

(2) Dr Diamond's protocol for Syntocinon was 10 units of Syntocinon in 1000 mls of fluid, commencing at 20 drops per minute (dpm) and increasing by 10 dpm every 15 minutes or half hour until a maximum of 60 dpm was reached. However, the evidence shows 10 units of Syntocinon was added to 700 mls of fluid, a substantially stronger concentration than the doctor prescribed. Calculations given to us indicate that the overdose was 43% at 9.30 am-9.45 am, but was only 2% from 11.30 am.

(3) The Syntocinon drip was commenced at 9.30 am at a rate of 20 dpm. At 10 am it was increased to 30 dpm and at 10.30 am to 40 dpm (equivalent to 56 dpm of a 10 unit in 1000 mls solution). The doctor's submission said that this was almost the maximum permissible rate of administration: this was not put in issue in the hospital's submissions.

(4) At 10.30 am Mrs Simpson went into labour.

(5) At 11 am, the rate of administration of the Syntocinon was decreased to 30 dpm at which rate it continued until 12 noon.

(6) The foetal heart rate (FHR) was checked periodically using a Pinnards stethoscope. When recorded, it was within normal limits. There was no record of any observation of the FHR in the hospital notes after 12.45 pm.

(7) The doctor (who had gone to a nearby hospital at Randwick for a surgical list) was called to the hospital, informed of the progress of the labour, and arrived in the labour ward to see Mrs Simpson at 1.30 pm. Mrs Simpson was then in pain. The doctor was informed by nursing staff that there were no abnormalities and that the FHR was normal.

(8) The doctor performed a vaginal examination.

(9) From the nursing staff's assessment using the Pinnards stethoscope, the foetal heart rate appeared to be in the normal range. The doctor re-checked the position of the head, then attempted delivery with Neville Barnes forceps. This too was not successful. The doctor performed an episiotomy, and made a second attempt with the Neville Barnes forceps.

(10) At about the time of the second attempt with the Neville Barnes, a doppler was applied to assist FHR monitoring. Following the second attempt with Neville Barnes, the FHR was heard on the doppler to drop to 100 bpm, but it recovered quickly.

(11) As no descent had been achieved, the doctor decided to use the Kiellands forceps because he felt that he may have made an error in diagnosing presentation, and that the baby's head may have been in an occipito-posterior (OP) position (rather than, as he had thought, occipito-anterior (OA)). The doctor applied the Kiellands forceps, rotated the foetus, and applied traction.

(12) During the attempt with the Kiellands forceps, the foetal heart rate was heard to fall to between 60 and 80 bpm where it then remained. The doctor re-rotated the foetal head, back to the original position. There had been a total of five attempts with forceps to deliver the baby, over 15 to 20 minutes, without any descent having been achieved. The doctor then decided to proceed to Caesarean section.

(13) After taking Mrs Simpson to an operating theatre, calling an anaesthetist, and preparing for the operation, the Caesarean section commenced at 2.15 pm. Present during the operation were Dr Williams (anaesthetist), Dr Hakim (assistant surgeon) and Dr Van Vliet (neo-natologist).

(14) Calandre was delivered in a poor condition at 2.17 pm.

(15) The anterior lip of Mrs Simpson's cervix was later discovered to be missing. [The significance of this is, as the Judge said at [1375] that this probably occurred during the forceps applications].

(16) At birth, Calandre's glucose level was normal. However, a foetus might have its metabolic reserves depleted or exhausted, but still have at birth a normal glucose level. The absence of a need for excessive doses of glucose for the first day or so is not a perfect test and is no more than "an observation in some cases". (See Red Volume 3, 501). It is inconclusive.

(17) No meconium staining was observed. The absence of meconium staining is inconclusive as to whether there has been a depletion or exhaustion of foetal metabolic reserves.

G. The Syntocinon Argument

78 The doctor's principal argument as ultimately formulated was that it was necessary to find a second cause, an hypoxic cause over and above any damage caused by the negligent use of forceps. Indeed, there was evidence particularly from Professors Fisk and Ellwood that it was necessary to find an hypoxic explanation as well as a vagal bradycardia. However, his Honour rejected this view.

79 The doctor says that that second cause is to be found in hyperstimulation of the mother by the hospital administering Syntocinon in a dose of 10 units in 700 mls in lieu of 1000 mls thus initially increasing the dose by 43%.

80 The effect was, so the argument ran, that hyperstimulation so used the foetus' metabolic reserves that when the forceps caused bradycardia there were insufficient reserves to recover as would normally happen if there was abuse of a foetus by forceps.

81 The argument was boosted by evidence that more than one of the eminent medical experts said they did not know of any case where there was unremitting bradycardia brought about by non-hypoxic causes alone.

82 However, there was also substantial evidence from clinicians that they had observed cases where one vagal cause might suffice.

83 His Honour completely rejected the Syntocinon theory. Mr Brereton says that his Honour was in error in doing so. Mr Brereton says that properly considered the expert evidence of Professors Fisk and Ellwood must have been accepted and was not, when properly analysed, affected by the view of the clinicians.

84 Some passages from his Honour's reasons, eg [1445-7] might lead one to think that his Honour favoured the view that if an hypoxic explanation was necessary Professor Elwood's view that that explanation was to be found through the forceps impinging on or occluding the umbilical cord was to be preferred. However, his Honour did not so find, indeed I believe eventually this was common ground.

85 The argument was that hyperstimulation brought about by administering Syntocinon in 700 mls in lieu of 1000 mls so used up the foetus' metabolic reserves that it was unable to replenish when there was vagal bradycardia caused by the last pull of the forceps.

86 At [1414] the learned Judge said that the excess dose of Syntocinon "was clearly capable of producing hyperstimulation as defined. The question is: 'did it'?"

87 A crucial piece of evidence in this case is the partogram kept by the hospital staff to record the progress of labour.

88 The partogram is printed to record a number of different matters including the Foetal Heart Rate (FHR) and Contraction Frequency and Duration. It is basically on squared paper with numerals on the left hand side, sometimes adjacent to the lines between squares and sometimes, as is the case of Contraction Frequency and Duration amidships between the dividing lines.

89 Vertical lines map out the time scale in quarter hour periods for FHR and half hour periods for Contraction Frequency and Duration.

90 The partogram records the foetal heart rate with crosses at various times during the day, the last being 12.45 pm and all the crosses are on the line for 140 beats per minute (bpm). It is almost certain that the baby's heart rate did not remain constant at 140 bpm. On the evidence the possibility of that occurring is extremely remote. Mr Hall did not seriously contest this. It is probable that the crosses are intended to indicate that the foetal heart rate was in the normal range of 120-160 bpm. To this extent the partogram is not entirely accurate.

91 The part of the partogram that is of particular importance is contained in Appendix 1. That part shows the "contract frequency and duration" and the "oxytocic dose".

92 The oxytocic dose section of the partogram shows that, at 9.30 am on the day of Calandre's birth, the Syntocinon dose commenced at a rate of 20 dpm. At 10 am the rate was increased to 30 dpm, at 10.30 am it was increased to 40 dpm and at 11.00 am it was reduced to 30 dpm. Dosage at 30 dpm continued until 12 noon.

93 Mr Brereton submitted that the hospital's administration of Syntocinon, contrary to the doctor's instructions, at a rate 43% higher than the prescribed rate, occurred during the period from 11.00 am to midday. This submission is borne out by the partogram.

94 The partogram is capable of being of even greater significance in regard to the frequency of contractions during the critical period between 11.00 am and midday.

95 There is a dispute between the parties as to the meaning of the partogram in regard to this aspect. Mr Hall submitted that the partogram indicates that, between 11.00 am and midday on the day in question, Mrs Simpson experienced continuous contractions, or contractions of 60 seconds each, every two minute period. Mr Brereton submitted, on the other hand, that, during that time, the partogram indicates that Mrs Simpson experienced contractions of 60 seconds every one to two minutes.

96 I have pointed out that the classic definition of hyperstimulation is five contractions or more in a ten minute period (subject to the comment in [17] above). The likelihood of hyperstimulation occurring increases as the frequency of contractions within this period increases.

97 Thus, if Mrs Simpson experienced 60 second contractions every one to two minutes in the one hour period from 11.00 am to midday, that would be powerful evidence of hyperstimulation (as the contractions were then likely to have exceeded five contractions in every ten minute period over this time).

98 The proposition that contractions occurred for 60 seconds every minute (advanced by Mr Hall) would mean that there would have been continuous contractions, that is, there would have been no break whatever between contractions. There was evidence that continuous contractions with no interval between would have been contrary to foetal life. This appears to have been accepted by his Honour. The partogram does not support such a construction and I would reject it.

99 That part of the partogtram to the right of the words "Time" and "Hours" shows the time in hourly periods, namely from 8.00 am to 3.00 pm (see Appendix 1).

100 The numbers "1" to "6-10" in the "Contraction Frequency & Duration" section represent time periods measured in minutes . Thus, the blocks in the horizontal column to the right of "6-10" are intended for filling in where the patient has contractions every six to 10 minutes.

101 It follows, according to the natural meaning of this part of the partogram, that the blocks in the horizontal column to the right of the number "5" are to be filled in when the patient has contractions every five to six minutes.

102 Thus, the number "20" where it appears under the 10.30 am vertical column to the right of the number "5" indicates that, every five to six minutes between 10.30 am to 11.00 am, Mrs Simpson was experiencing contractions that endured for 20 seconds each.

103 It follows further, that the blocks in the horizontal column to the right of the number "4" are intended to be filled in when the patient has contractions every four to five minutes, those to the right of the number "3" when the patient has contractions every three to four minutes, those to the right of the number "2" when the patient has contractions every two to three minutes, and those to the right of the number "1" when the patient has contractions every one to two minutes.

104 Thus, the number "60", where it appears in two places between the 11 am and 12 midday columns, indicates that, every one to two minutes, from 11 to 11.30 am and from 11.30 am to 12 midday, Mrs Simpson was experiencing contractions of 60 seconds each.

105 Further, the number "60", where it appears between the 12 midday and 1.00 pm columns, indicates that, every two to three minutes from 12 midday to 12.30 pm, Mrs Simpson was experiencing contractions of 60 seconds each.

106 In other words, I consider that the natural meaning of the partogram supports Mr Brereton's submissions. The partogram is compelling evidence that for an hour, from 11.00 am to midday, Mrs Simpson experienced contractions of 60 seconds every 1 to 2 minutes. Contractions at such a rate are readily capable of causing hyperstimulation.

107 Mrs Simpson testified that, in the period between 11.00 am to midday, she was experiencing contractions of a minute on and a minute off. Whealy J accepted her evidence on this issue. His Honour dealt with the conflict between her evidence and the partogram by observing, "the entries in the partogram may have been a simple error later corrected".

108 It is not clear to me what is meant by the reference to a later correction of an error. Importantly, however, the only basis of finding that the partogram contained an error was his Honour's preference for the oral testimony of Mrs Simpson. But, as I have noted, the accuracy of Mrs Simpson's evidence on this issue was inherently suspect as she would have found it extremely difficult to make precise observations of the duration of her contractions and, in any event, there would have been a small difference in time between her experience of pain and the start and finish of each contraction.

109 The partogram is evidence emanating from the hospital itself. It is the hospital's own document. It falls to the hospital to establish that it is inaccurate.

110 The hospital, however, led no evidence to the effect that the partogram was likely to be inaccurate in regard to the duration and frequency of contractions over the relevant period, it led no evidence rebutting the natural meaning of the partogram and it led no evidence suggesting that the partogram contained an error. Moreover, the partogram contains no inherent improbabilities or contradictions in regard to this issue.

111 In the circumstances, I consider that his Honour erred in rejecting the natural meaning of the partogram and in failing to find that, during the period 11.00 am to midday, 60 second contractions took place every one to two minutes.

H. The Medical Evidence

112 It is now necessary to examine the evidence of the expert medical witnesses called by the parties in a little more detail. I will review the evidence of the doctors in the order in which they were called to give evidence.

113 The vital evidence is in relatively short compass for a case which lasted as long as this one did, but I regret to say my notes indicate that there is more than one passage which was read to us three times in the course of the five day appeal hearing.

114 The reason why it is necessary for counsel to concentrate on this material and for me to have to abstract it in so much detail is that it is the only way of noting the differences in the vital medical evidence and in isolating the real differences between them. It also shows up the slender factual material on which some opinions were based.

115 Mr Roger Varley Clements, a clinician, notes that he was in considerable agreement with Professor Fisk's report (Blue (4)904). At Blue (4)922 he says that there are so many uncertainties concerning the Syntocinon regime because of the paucity of hospital records, that it is difficult to form a clear opinion concerning its use.

"If a court were to find that Syntocinon was continued in excessive dosage beyond 12 noon then I would concede that this may well have contributed to Calandre's problem in that it may have deprived her of her metabolic reserve, setting up the conditions in which a period of severe near-total asphyxia would be more damaging than for a normal fetus. Only in that respect can I envisage any role for the Syntocinon in this case. I believe that if the Syntocinon alone were responsible for Calandre's damage, by several hours of hyperstimulation her brain damage would be of a different type.
"On the balance of probabilities Calandre Simpson's injuries are due to repeated incompetent attempts at vaginal delivery; overdosage with Syntocinon, if it occurred, may perhaps have made her more vulnerable to that event."

116 The cross examination of Mr Clements went on for some time. The cross examiner was suggesting to Mr Clements that, for instance, Black (2) 311, having regard to the unexpectedly severe outcome from the application of forceps he should accept that there was a probability that there was a second force at work being hypertonic contractions of the uterus. Mr Clements said:

"I don't think that's sufficient to make it a probability. It makes it a possibility but it doesn't make it a probability. Where counsel and I part company is the necessity to produce a second pathology to explain the outcome.
"I don't find it necessary to have a second pathology, particularly in circumstances where if a softening up process on the baby were needed there is ample opportunity for that softening up in the four forceps attempts which led to the damaging attempt. I don't see the need for the separate pathology. All this conjecture about the dose of Syntocinon and what it might have done is really no more than that.
"I would need to see some evidence that the baby showed signs of stress, of resources being exhausted, before I could say that was probable. Of course I allow that it is possible."

117 Mr Clements maintained his view that the failed forceps delivery was of itself a sufficient explanation for the outcome (Black (2) 314). However, at Black (2) 315 he did go as far as to say that because of the Syntocinon regime there was an increased risk of hypertonus.

118 The next to be called was Dr Janet Rennie who gave evidence at Black (2) 338 that she had a specialist interest in the diseases of the newborn, that is, babies from birth to one month of age and that she was actively involved in clinical practice in that area of medicine. Like Mr Clements, she practised in England. Dr Rennie, at Blue (3) 636 was of the opinion that the plaintiff's brain insult was acquired between 13.40 and 14.17 on 5 July and she suffered a period of hypoxia lasting for 20 minutes during this time, which began when the foetal heart rate fell. She said that if this period of hypoxia had been avoided or lasted for less than 10 minutes the plaintiff would have survived intact.

119 In examination in chief at Black (2) 355, Dr Rennie was asked about the significance of rotating the foetal head with Kiellands forceps and she said:

"It would appear that it was the application of the Kiellands forceps which was temporarily associated with the bradycardia in Calandre's case. In general, removal of the blades of the forceps allows the bradycardia to recover but, clearly, this did not happen, either because this was the culmination of a sequence of attempts at operative delivery and previous applications had caused stress to the foetus, possibly a transient bradycardia which had recovered. … So it could be that there was repeated head compression and the final attempt at head compression caused a bradycardia which did not recover. Alternatively, the cord could have become compressed by the forceps blade because it lay alongside the head. … ".

At 357 she added:

"If the cord is compressed and bruised, then it could become a permanent reduction but the precise mechanism of this bradycardia, I suspect, will never be known. We can but speculate as to the possible mechanisms."

120 At 367, in cross examination, Dr Rennie was asked:

"Q. So is this the position: that excessive Syntocinon can of itself produce a severe and total hypoxic insult?
A. If the foetus is stressed to the point of collapsing solely and only as a result of Syntocinon, that is possible, but one would anticipate prior changes in the foetal circulation.
…
Q. What causes the collapse is a lack of oxygen supply to the foetus, isn't it?
A. The foetus has got to the stage where there is absolutely no reserve left and the entire circulation collapses.
Q. And excessive Syntocinon, without the help of forceps, can of itself produce a result equivalent to what has been seen in Calandre's case, can't it?
A. It can, but it would be very exceptional to observe normal foetal heart rate patterns in the run up to this collapse."

121 At 371 the doctor admitted that it is rare to see a forceps delivery which produces a bradycardia which does not recover.

"It is so rare that I'm unable to comment on whether or not that would be associated with physical trauma."

She said she had not seen such a case reported. However, she had experienced head compression from forceps producing bradycardia which did not recover, but as I understand it that was a case where she had given that as her opinion in litigation which had not yet concluded.

122 At 375 she agreed that she had had experience of cases from which the foetus had not recovered from excessive doses of Syntocinon. However at 376 the doctor said:

"I do not feel that I need to have, as Professor Fisk, does, an additional reason for the bradycardia".

123 I now pass to the evidence of Dr Hinde. Dr Hinde gave a report that he considered that the plaintiff's injuries were probably the result of repeated attempts at forceps delivery. He thought that a more likely explanation than cord entanglement for lack of supporting evidence. He did not direct his mind specifically to the problems of Syntocinon but noted that the oxytocin regime can only be regarded as aggressive, even by 1970s standards (Blue (3) 596). He also noted at Blue (3) 605 that there was no unacceptable delay in the provision of an operating theatre by the hospital, the decision for caesarean section having been made about 1.55 pm and delivery achieved by 2.17 pm. In cross examination, Dr Hinde said at Black (6) 1450 that he was worried about the partogram and wondered whether it had been filled in upside down. He said at 1451 that this partogram was only introduced to the hospital some months beforehand "and I have found in going through obstetric histories in recent years that there is often confusion and incorrect entries by midwives."

211 Mr Brereton's riposte was that it was inappropriate to argue by analogy with the approach to extensions of time under the Limitation Act 1969 that the amendment should not have been permitted because of prejudice occasioned by Sister Ranclaud's death. This was not an application for an extension of time and no limitation question was involved. Prejudice resulting from declining memories and loss of witnesses does not count against an amendment which does not involve any extension of the limitation period. Surely it could never be argued that there could be no amendment at any time after Sister Ranclaud died, because she could have died at any time after the original cross claim was filed.

212 In any event, Mr Brereton says, that the Judge's conclusion that the hospital was far from going into battle defenceless and unarmed was correct. The Judge was entitled to conclude, as he did, that the hospital should be in the position to adduce relevant evidence from other witnesses, tender the statement of Sister Ranclaud, and adduce expert evidence.

213 Mr Brereton also points out that although the action was commenced many years previously, there was no exchange of expert reports on liability issues until 1998. So the first time the parties started exchanging experts' reports on liability was that year. The cross claim was mooted in 1999, and there was absolutely no reaction until 26 February 2001.

214 In my view the discretion as to whether to allow an amendment was properly exercised by the learned trial judge. It was a matter for his judgment. I cannot see any appealable error in the approach taken by his Honour, and indeed, there is something in what Mr Brereton says that the cross appellant's submissions do confuse principles to be applied in cases of amendments after limitation periods with cases of simple amendment. Accordingly, the cross appeal should be dismissed.

N. The Result of the Appeal

215 At first blush, this is an appeal on a question of fact where the trial judge had the opportunity of examining the witnesses and seeing how they reacted under cross examination.

216 However, when one analyses the situation more closely, the real decision to be made is somewhat different.

217 It may be that I have quoted more of the transcript than was, strictly speaking, warranted. However, I consider it necessary to do so in order to get the full flavour of the evidence of the various medical experts.

218 The doctor in the cross claim for contribution stands in the position of the plaintiff. All the plaintiff has to show is that the defendant's negligence could have been the cause of the plaintiff's injury. The Judge accepted that there was an excessive dose of Syntocinon. The scientists, on both sides, markedly Professor Fisk and Professor Ellwood have said that they would expect to find a second hypoxic cause for a continuing bradycardia.

219 I agree with Mr Brereton's submissions that the mere fact that the clinicians say they have not observed that in every case or that they have observed situations where they could not see a second cause, does not seem to me to take the matter any further. Yet his Honour seemed to suggest that there was some dichotomy in the view of the scientist on the one hand, and the practical man and woman dealing with situations on the ground who are not worried so much about theoretical causes. His Honour seemed to suggest that a scientist looks for certainty, whereas the practitioner looks for clinical results and tended to look at the matter as if to say, well, applying common sense, one prefers the practice as witnessed by the practitioner to the theory of the scientist.

220 However, that is not the way one looks at expert evidence at all. If there is undisputed scientific evidence that in order for a certain consequence to occur, there needs to be both a vagal and an hypoxic cause, the mere fact that a person in practice may not have observed a second cause, does not negate the scientific opinion.

221 Once that is accepted, and once it is accepted that, as I have indicated earlier, the learned trial judge excluded the middle when finding that the Syntocinon theory could not have any grounds, one is left with the situation where the quasi plaintiff has shown that the overdose of Syntocinon could well have caused the injury. The evidentiary onus then shifts to the defendant. The evidence as to the hypoxic factor being the occlusion of the cord is not sufficiently supported by the evidence. Accordingly, the cross claimant must succeed.

222 The cross claimant claims 50% contribution. He does that mainly on the basis that by analogy with the principle quality is equity, so where there is little material to distinguish between the contributions the same applies at common law. Mr Hall was aghast at this suggestion and submitted that if the hospital was found liable the doctor's negligence was far more than the hospital's negligence.

223 As Fleming on Torts 9th ed (LBC, Sydney, 1998) notes at p 297, the statutory mandate is that the contribution is to be what is just and equitable having regard to the extent of the responsibility for the damage. However, that learned author also points out that apart from cases such as Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88, 96, where one tortfeasor owes a higher duty than the other, the percentage of contribution has been dealt with broadly and upon common sense principles, picking up words from The Volute [1922] 1 AC 129, 144, a contributory negligence case.

224 In Broken Hill Pty Co Ltd v Duffy (1943) 16 ALJ 374, 376, Latham CJ, with whom Rich, Starke, McKiernan and Williams JJ agreed, said:

"It was very difficult to say that either party was more responsible than the other for the accident, and, that being so, there was no reason why the rule contained in s 1 of the Maritime Conventions Act, 1911 (Imp), that where it is impossible to assign the precise degree of fault the responsibility shall be apportioned equally should not be applied to the similar provision of the Wrongs Act (SA)."

225 The present case is one where despite the great bulk of evidence presented, the responsibility for the plaintiff's injuries is in this position.

226 Accordingly, the apportionment should be 50/50.

227 Accordingly, in my view, the order of the Court should be that the appeal is allowed with costs, the order of the trial judge on the doctor's cross claim set aside and in lieu there be an order that the hospital contribute one-half of the damages and costs that the doctor was ordered to pay the plaintiff. The cross appeal should be dismissed with costs.

O. The Orders to be Made

228 The formal orders of the Court are thus:

(1) Appeal allowed;

(2) Declare that the cross defendant is liable to pay to the cross claimant one-half of the amount paid or payable to the plaintiff in respect of orders made against the cross claimant in these proceedings.

(3) Liberty to apply to a Master to certify the amount of such amount if the same cannot be agreed.

(4) Cross appeal dismissed with costs.

APPENDIX 1 – SECTION OF PARTOGRAM

TIME	8.00	9.00	10.00	11.00	12 MD	1.00	2.00	3.00
HOURS	0	1	2	3	4	5	6	7
CONTRACTION FREQUENCY & DURATION	1	6060
2	60
3
4
5	20
6-10
OXYTOCIC DOSE	10	10	10	1010
20	30	40	3030

************************

Last Modified: 12/17/2003