Elayoubi v Zipser - [2008] NSWCA 335

No judgment structure available for this case.

Appeal Outcome: Special leave dismissed with costs 1 May 2009 (S575/2008 & S3/2009)

New South Wales

Court of Appeal

CITATION: ELAYOUBI v ZIPSER [2008] NSWCA 335

HEARING DATE(S): 25 and 27 June 2008

JUDGMENT DATE:
3 December 2008

JUDGMENT OF: Allsop P at 1; Beazley JA at 2; Basten JA at 3

DECISION:
(1) Allow the appeal and set aside the judgment and orders of the trial judge entered on 28 June 2007.
(2) In lieu thereof,
(a) give judgment for the plaintiff against the first, second and third defendants in the amount of $7,281,319 to take effect on and from 28 June 2007;
(b) on each cross-claim, order that liability be apportioned
(i) as to two-thirds against the first and second defendants,
(ii) as to one-third against the third defendant;
(c) order the defendants to pay the plaintiff’s costs of the trial.
(3) Order the respondents to pay the appellant’s costs of the appeal.
(4) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of his costs of the appeal.

CATCHWORDS: EVIDENCE – experts – medical practitioners – value of evidence of usual practice – whether inference available against second hospital for failure to call operating surgeon from first hospital - EVIDENCE – witnesses – inconsistencies between mother’s evidence at trial and history recorded by medical practitioners – whether inconsistencies significant - MEDICAL NEGLIGENCE – breach of duty of care – failure to warn of previous caesarean section encroaching into upper uterine segment – failure to record nature of previous section – failure to inquire about obstetric history from hospital where previous child born - TORTS – negligence – breach of duty of care – plaintiff born with spastic quadriplegia and intellectual disability – previous caesarean section encroaching into upper uterine section – failure to advise mother of risks of ruptured uterus – second hospital not inquiring of first hospital of nature of procedure - TORTS – negligence – causation – dual tortious conduct – breaks in chain of causation – factual and normative tests – whether first hospital’s failure to record previous section broke causal link between second hospital’s failure to inquire and plaintiff’s damage – whether request for previous obstetric records would have indicated true nature of previous section – whether second hospital’s failure to inquire broke causal link between first hospital’s failure to record and failure to warn mother - WORDS & PHRASES – “causation”

LEGISLATION CITED: Civil Liability Act 2002 (NSW), s 5D
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9

CATEGORY: Principal judgment

CASES CITED: Alphacell Ltd v Woodward [1972] AC 824
Athey v Leonati [1996] 3 SCR 458
Chapman v Hearse [1961] HCA 46; 106 CLR 112
Home Office v Dorset Yacht Co Ltd [1970] AC 1004
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lamb v Camden London Borough Council [1981] QB 625
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522
March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269
Snell v Farrell [1990] 2 SCR 311

TEXTS CITED: Professor A L Goodhart, “Appeals on Questions of Fact” (1955) 71 LQR 402 at 413
Hart and Honoré, Causation in the Law, (2nd ed, OUP, 1985), Ch VIII
Stapleton J, “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 at 394-395
Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed, OUP, 2007) pp 556-558

PARTIES: Kaled Elayoubi BHNF Taman Kolled (Appellant)
Dr Gabriel Zipser (First Respondent)
South Western Sydney Area Health Service (Second Respondent)
Northern Health (Third Respondent)

FILE NUMBER(S): CA 40645/07

COUNSEL: A S Morrison SC/A D Campbell (Appellant)
D J Higgs SC/J Lonergan (First and Second Respondents)
M Bozic SC/I Butcher (Third Respondent)

SOLICITORS: Gerard Malouf & Partners (Appellant)
Ebsworth & Ebsworth (First and Second Respondents)
Phillips Fox (Third Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20260/01

LOWER COURT JUDICIAL OFFICER: Hislop J

LOWER COURT DATE OF DECISION: 28 June 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Elayoubi BHNF Kolled v Zipser [2007] NSWSC 587

CA 40645/07
SC 20260/01

ALLSOP P
BEAZLEY JA
BASTEN JA
3 December 2008

Kaled ELAYOUBI v Gabriel ZIPSER & ORS

Headnote

In 1978, Mrs Kolled’s fourth child, Wosif, was delivered by caesarean section at the Preston and Northcote Community Hospital (“Preston Hospital”) in Victoria, for which Northern Health is now responsible. The section involved an incision encroaching into the upper uterine segment. The practitioners carrying out the procedure, Drs Dawson and Bhardwaj, were allegedly negligent in failing to advise Mrs Kolled of the risks she faced, if she were to have another child by vaginal delivery.

In 1984, Mrs Kolled fell pregnant again. Dr Zipser, a visiting medical officer at Bankstown Hospital, was responsible in part for Mrs Kolled’s antenatal care. He noted that Mrs Kolled had had a previous lower segment caesarean section and that she should have a trial of labour. Dr Zipser did not inquire of Preston Hospital about the nature of Mrs Kolled’s previous pregnancy. Bankstown Hospital did not know of Mrs Kolled’s previous upper uterine incision.

At some stage on the evening of 12 October 1984, Mrs Kolled had her first contractions. She arrived at Bankstown Hospital’s labour ward at 11:00pm. She was examined by Sister Shipley and then by Dr Booth, who decided that Mrs Kolled should have a caesarean section. Dr Booth made arrangements for the operation, including calling the surgeon, Dr Simpson, and an anaesthetist, Dr Hines. The operation commenced at 12:25am and the plaintiff was delivered some three minutes later. The plaintiff was deprived of oxygen during the birth process because Mrs Kolled’s uterus ruptured. As a result, the plaintiff suffers from spastic quadriplegia and intellectual disability.

In 2001, the plaintiff commenced proceedings in the Common Law Division of the Supreme Court, alleging negligence on the part of Dr Zipser, the Area Health Service and Northern Health. On 28 June 2007, Hislop J dismissed the claims. He accepted that each respondent was, in particular respects, negligent; however, the plaintiff was unsuccessful because Hislop J was not satisfied that the exercise of reasonable care in relevant respects would have achieved, or improved the chance of achieving, a better outcome for the plaintiff. The plaintiff appealed these findings. By notice of contention, each respondent challenged aspects of the findings with respect to Wosif’s birth and steps which should have been taken, or were taken, consequent upon Wosif’s delivery by caesarean section.

The issues for determination on appeal were:

(i) whether Northern Health warned Mrs Kolled of the nature of the procedure undertaken at Preston Hospital and its ramifications for the management of any future pregnancy;

(ii) whether the plaintiff’s position would have been different, if Dr Dawson or Dr Bhardwaj had advised Mrs Kolled of the risks consequent upon a caesarean section, which encroached into the upper uterine segment;

(iii) whether Dr Dawson or Dr Bhardwaj correctly recorded the details of the 1978 operation;

(iv) whether the trial judge’s finding that neither Dr Zipser nor the Area Health Service were responsible for any damage which might have flowed from their failure to inquire of Preston Hospital, because the critical information would not have been supplied in answer to such an inquiry, was correct; and

(v) whether any different course would have been taken on the evening of 12 October 1984, resulting in a different outcome, absent the defendants’ negligent conduct.

The Court held, allowing the appeal (Basten JA, Allsop P and Beazley JA agreeing):

In relation to (i)

1. There was support for the trial judge’s conclusion that Dr Bhardwaj did not warn Mrs Kolled about the nature of her section and its ramifications. Dr Bhardwaj’s evidence about her usual practice was a reconstruction of what she would have done on the particular occasion of which she had no memory. In contrast, Mrs Kolled gave express evidence about what was not said by Dr Bhardwaj, which was assessed as genuine: [87].

In relation to (ii)

2. Enough would have been said by Dr Dawson or Dr Bhardwaj to impress upon Mrs Kolled the nature and extent of the risks arising from an upper uterine segment incision, in particular not to subject herself and any future child to the risk of labour. This would have ensured that she passed on the relevant information to her obstetrician, should she have become pregnant again: [34].

3. Had Dr Zipser known the true situation, acting with reasonable care, he should have advised Mrs Kolled that under no circumstances should a vaginal delivery be considered: [40].

4. Had Mrs Kolled arrived before 11:00pm, the operating theatres would still have been open and it is likely that the operation would have been undertaken more expeditiously: [43].

5. The risk arising from the failure to advise Mrs Kolled in 1978 of the risks she faced in relation to a future pregnancy materialised because she did not take steps which would have avoided or reduced the plaintiff’s harm. Dr Zipser’s failure to inquire of Preston Hospital did not break the causal link between the failure to warn and the harm suffered: [56].

In relation to (iii)

6. There was no basis to challenge the trial judge’s finding that, on the probabilities, Dr Dawson was aware that his intrusion encroached into the upper segment. Accepting that it would have been negligent for Dr Dawson to have failed to appreciate the nature of the incision, a finding that he was aware is appropriate, in the absence of probative evidence to the contrary: [61], [69].

7. The overwhelming weight of the medical evidence was that, in the exercise of reasonable care, an encroachment into the upper uterine segment should have been recorded because it had high medical significance for management of any future pregnancy: [73], [75]. The appropriate finding is that the operation notes included the critical information: [82]–[83].

8. The weight of medical evidence was also in favour of the view that Preston Hospital’s response to an inquiry, in 1984, would have recorded the fact of the upper uterine incision because it would have provided the requesting party information from Mrs Kolled’s medical file, including operation and clinical notes: [64]–[65], [75].

In relation to (iv)

9. Any negligence of Dr Dawson or Dr Bhardwaj in failing to record details of the operation would itself have contributed to the materialisation of the risk, but would not have prevented Dr Zipser’s negligence (failing to inquire of Preston Hospital) being a contributing clause: [50], [56]. The avoidance of the risk which each act of negligence created required non-negligent conduct by both parties. The negligence of each party was a contributing factor to the harm suffered and each materially contributed to that harm: [52].

March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870; Alphacell Ltd v Woodward [1972] AC 824; Athey v Leonati [1996] 3 SCR 458; Snell v Farrell [1990] 2 SCR 311, applied.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004; McGhee v National Coal Board [1973] 1 WLR 1, considered.
Chapman v Hearse [1961] HCA 46; 106 CLR 112; Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522; Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269; Lamb v Camden London Borough Council [1981] QB 625, referred to.

In relation to (v)

10. From Mrs Kolled’s point of view, there was one fixed point in time of which she was conscious: the time of the first contraction. The other fixed point, of which Mrs Kolled was not conscious, was the time of her arrival at hospital, 11:00pm. Between those times there was ample opportunity for miscalculation and confusion: [108].

11. It was appropriate to give weight to the time recorded by Sister Shipley – “contractions since 10.45pm” – as evidence of what Mrs Kolled had told her, almost contemporaneously. The difficulty in relying solely upon that evidence is that Sister Shipley’s evidence was not consistent with the proposition that she was anxious to record the time of the very first contraction; rather, she asked about ‘pain’ and was concerned about regular contractions: [94], [97], [109]–[110].

12. The defendants did not present any reason as to why Mrs Kolled’s evidence in respect of the various events which occurred on the night of 12 October, following her first contraction, should be implausible: [114]. It is likely that the contractions commenced no later than 10:00pm: [112], [115].

13. Assuming that the first contractions occurred not later than 10:00pm, even if she closed shop, returned home, collected her bag and then drove to hospital, in circumstances where there was understood to be a degree of urgency involved, it was likely that she would have reached the hospital no later than 10:30pm. Whatever happened thereafter, the timing of the procedure would have come forward 30 minutes, by reason of her earlier arrival at hospital: [116].

14. It is likely that, had the critical information been available at Bankstown Hospital on the night of 12 October 1984, Dr Booth would not have had to make four telephone calls, both surgeon and anaesthetist would have treated the matter with a degree of urgency, which was not in fact displayed on the night in question, with the result that, taken cumulatively with the absence of need for a vaginal examination by Dr Booth, the delay would have been reduced by at least a further 10 minutes: [121],

15. On the basis of the findings above, the plaintiff would have been delivered no later than 11:48pm, namely 40 minutes earlier. On the accepted conclusion of the trial judge that the rupture occurred at about 11:40pm, delivery would have taken place within 10 minutes of the rupture. That was a period within which it was likely that irreversible brain damage would be avoided: [126].

16. It follows that the relevant causal connection was established with respect to each element of negligence found and the harm suffered by the plaintiff: [127].

CA 40645/07
SC 20260/01

ALLSOP P
BEAZLEY JA
BASTEN JA
3 December 2008

Kaled ELAYOUBI v Gabriel ZIPSER & ORS

Judgment

1 ALLSOP P: I agree with Basten JA.

2 BEAZLEY JA: I agree with Basten JA.

3 BASTEN JA:

Index to reasons

Paragraph
Nature of case	4
Factual history	9
Claim against Northern Health	24
Findings relevant to the 1978 procedure	30
Rejection of claim against Northern Health: causation	33
Claim against Bankstown Hospital: failure to contact Preston Hospital	44
Causation: dual tortious conduct	48
What was recorded in 1978?	58
Northern Health’s contention: no failure to warn Mrs Kolled	85
Consequences of negligence	90
Consequences for plaintiff	122
Apportionment	128
Orders	132

Nature of case

4 On 13 October 1984 Kaled Elayoubi (“the plaintiff”) was born at Bankstown Hospital, an institution managed by the South Western Sydney Area Health Service (“the Area Health Service”). The plaintiff suffered deprivation of oxygen (anoxia) during the birth process, as a result of his mother (Mrs Kolled) suffering a ruptured uterus. The plaintiff suffers from spastic quadriplegia and intellectual disability. Dr Gabriel Zipser was a visiting medical officer at Bankstown Hospital responsible in part for Mrs Kolled’s antenatal care. The Area Health Service was vicariously liable for any negligence of Dr Zipser or others at Bankstown Hospital in relation to Mrs Kolled’s antenatal care and with respect to alleged negligence in the course of the delivery. It was the second defendant below. (Where the identity and responsibility of Dr Zipser or the Area Health Service are not in issue, it is convenient to refer to them collectively as “Bankstown Hospital”.)

5 The plaintiff was Mrs Kolled’s fifth child. Her fourth child, Wosif, had been delivered by caesarean section in 1978 at the Preston and Northcote Community Hospital (“the Preston Hospital”) in Victoria, for which the third defendant, Northern Health, is now responsible. Because the procedure undertaken at the Preston Hospital involved an incision encroaching on the upper uterine segment, the practitioners carrying out the procedure, Drs Dawson and Bhardwaj, were said to have been negligent in failing to advise Mrs Kolled of the risks she faced if she were to have another child by vaginal delivery or even to undergo a ‘trial of labour’.

6 Proceedings were commenced in the Common Law Division in 2001, when the plaintiff was some 17 years of age. The matter came on for trial before Hislop J in May 2006, the hearing extending over some 23 days between late May and early December 2006. On 28 June 2007 judgment was delivered dismissing the claims and ordering the plaintiff to pay the defendants’ costs: Elayoubi bhnf Kolled v Zipser [2007] NSWSC 587.

7 In a number of respects, the plaintiff established his case, his Honour accepting that each respondent was, in particular respects, negligent. However, the plaintiff was unsuccessful because his Honour was not satisfied that the exercise of reasonable care in relevant respects would have achieved, or improved the chance of achieving, a better outcome for the plaintiff. It is those findings which lie at the heart of the plaintiff’s case on appeal.

8 Each respondent, by notice of contention, challenged aspects of his Honour’s findings with respect to the birth of the plaintiff’s older brother in 1978 and steps which should have been taken, or were taken, consequent upon Wosif’s delivery by caesarean section.

Factual history

9 Because most of the issues raised at trial were reagitated on appeal, it is convenient to commence by setting out the history relevant to the mother’s earlier pregnancy, as well as her later antenatal care and delivery of the plaintiff.

10 The plaintiff’s elder brother, Wosif, was born at the Preston Hospital by caesarean section, the indications being identified in the birth register as “APH – placenta praevia”. This entry indicated bleeding prior to the onset of labour, resulting from the placenta being implanted in the wall of the lower segment of the uterus. The birth register recorded the surgeon as Dr Dawson and his assistant as Dr Bhardwaj. Dr Bhardwaj gave evidence at the trial, although she had no recollection of Wosif’s birth. Dr Dawson was not called. (The trial took place some 28 years after Wosif’s birth.)

11 The birth register, which was the only record still available from the Preston Hospital, indicated that the position of the baby on delivery was a breech lie and that the delivery was by way of “LUSCS” or “lower uterine segment caesarean section”.

12 The usual method for undertaking a caesarean section is by a transverse incision into the lower segment of the uterus. A vertical incision (known as a “classical caesarean”) is extremely uncommon. It appears that Mrs Kolled had a central vertical scar extending from just below her umbilicus to the pubic area. However, as his Honour noted, “it was generally accepted by the expert witnesses that this merely evidenced a skin incision and was equivocal as to the nature of the incision into the uterus”: Judgment at [39].

13 The precise nature (and appropriate description) of the 1978 procedure was contentious at trial and remained so on appeal. His Honour was satisfied that it did involve a vertical incision extending into the upper segment of the uterus: at [47]. Accepting the correctness of the finding, the risks for a subsequent delivery, otherwise than by elective caesarean section, were significant and, according to the plaintiff, required that his mother be warned not only as to the nature of the operation and the nature of the consequent risk, but also as to the need to inform any future obstetrician of her earlier history. She said she was given no such warning by the Preston Hospital at the time of the 1978 procedure.

14 In relation to her fifth pregnancy, Mrs Kolled first consulted her family doctor, Dr Qidwai, early in June 1984 when she was approximately four months pregnant. Dr Qidwai referred her to Bankstown Hospital. She visited the antenatal clinic on two occasions in June 1984 and later had a consultation with Dr Zipser, on 31 July 1984. On 4 September she attended Bankstown Hospital complaining of nausea and headache and saw Dr Booth, who prescribed antibiotics. She returned to the antenatal clinic on three further occasions on 18 and 20 September and 2 October 1984.

15 The only occasion on which it appears that Mrs Kolled saw Dr Zipser was 31 July 1984. His note on the antenatal attendance sheet included reference to a previous lower segment caesarean section and stated “trial of labour”, indicating an intention that a vaginal delivery should be attempted. The Bankstown Hospital records stated that Mrs Kolled’s earlier (fourth) pregnancy had been by caesarean section at term, because of placenta praevia. That information was supplied by Mrs Kolled. Dr Zipser gave evidence that he would have been aware of that record at the time he indicated that a trial of labour would be appropriate.

16 There was no dispute that, if the earlier delivery had been by a routine lower segment caesarean section, Dr Zipser acted reasonably in proposing a trial of labour. Rather, the question was whether Dr Zipser should have known, or should have made inquiry, as to whether the earlier section had been classical or at least involved a vertical incision into the upper segment of the uterus. If that information had been known, proper obstetric care would have indicated the need for an elective caesarean section, that is an operation undertaken prior to the onset of labour. Such a procedure would probably have been planned for 38 weeks gestation.

17 On 20 September, an ultrasound examination was performed showing a breech presentation. Some two weeks later, on 2 October, the foetal lie was oblique, although it had reverted to a breech presentation when Mrs Kolled presented at the labour ward on the evening of 12 October 1984.

18 Dr Qidwai’s letter had indicated the commencement of the last menstrual period as 31 January 1984. On that basis, as at 12 October, Mrs Kolled was a few days over 36 weeks gestation, although the antenatal records indicated some confusion as to the date of the last menstrual period and the estimated date of confinement. Thus, on 2 October, the antenatal notes indicated that the baby was in fact at 36 weeks. At birth, the baby proving to be at about the 70th percentile, suggesting a slightly more advanced gestation according to estimates by size, consistent with Dr Qidwai’s date. Even working from the antenatal notes, it was not shown that an elective caesarean should have been carried out before 12 October.

19 The events on the night of 12-13 October 1984 were controversial. At some stage on that evening, Mrs Kolled had her first contractions, although there was a separate question as to when she advanced to established labour. The labour ward report for 11pm on 12 October, stated that she had been admitted with a history of contractions since 10.45pm. The baby had a breech presentation and membranes were still intact. The foetal heart rate was noted at 140 beats per minute (bpm), which was normal. On admission, Mrs Kolled was examined by Sister Shipley. Mrs Kolled gave evidence that she was in acute pain when she was examined by Sister Shipley who paged the consultant obstetrician on duty, Dr Booth. Dr Booth was close to the hospital in her car when paged and arrived at the hospital a few minutes later. She was advised that Mrs Kolled was in early labour, had had a previous caesarean section and had a breech presentation. After examining her, Dr Booth decided she should have a caesarean section and started to make arrangements, including calling the surgeon, Dr Simpson, and an anaesthetist, Dr Hines.

20 Shortly after making the calls, the midwife advised her that the foetal heart rate had dropped to 80bpm, a fact recorded in the labour ward notes against the time 11.40pm. By 12.15am, some 35 minutes after the drop in foetal heart rate was noted, Mrs Kolled was in the operating theatre and a general anaesthetic was being administered. The operation commenced at 12.25am and the plaintiff was delivered some three minutes later. He had no heart-beat and was not breathing, but was successfully resuscitated.

21 The operation revealed that the uterus had ruptured along the midline, from the lower segment up and over the higher domed part of the uterus known as the fundus. The baby, still in the amniotic sac, was within the abdominal cavity. The operation record read as follows:

“Ruptured uterus – previous classical caesarean section. Baby removed from peritoneal cavity – male infant – anoxic.”

22 In a different handwriting there was a further note:

“Uterus rupture in midline vertically from lower segment up and over fundus. No tear in bladder visible but adhesions from bladder to uterus.”

23 An important question at trial was when the uterus had ruptured. His Honour held that rupture had commenced at or shortly before 11.40pm: at [152]. It was not likely to have been completed at that time because the foetus would not have survived to be delivered alive at 12.28am.

Claim against Northern Health

24 Mrs Kolled’s earlier children were normal vaginal deliveries, so that the fourth, Wosif, was the first delivered by caesarean section. It was not in doubt following the plaintiff’s birth, that in delivering Wosif Mrs Kolled had undergone, if not a classical caesarean section, at least a transverse section with a vertical incision encroaching on the upper segment of her uterus. His Honour was satisfied as to that fact, both by the descriptions given by Drs Simpson and Booth, who performed the second caesarean, and by reference to the histopathology report carried out on Mrs Kolled’s uterus following a sub-total hysterectomy undertaken in the operating theatre on 13 October 1984, following a heavy post-partem haemorrhage: at [46]-[47].

25 That finding was not challenged by any of the respondents. Northern Health, however, contended that Mrs Kolled was advised by Dr Bhardwaj of the risks consequent upon a classical caesarean section and further contended that if Dr Zipser or other officers at Bankstown Hospital had inquired in 1984 as to the type of section carried out, they would have been correctly informed of the actual operation.

26 For its part, Bankstown Hospital challenged the finding that Dr Dawson was in fact aware of the encroachment and hence of the need for the appropriate warning. It contended that the appropriate finding was that Dr Dawson should have been (but was not) aware that his incision encroached on the upper segment and should have been aware that an appropriate warning was required to be given to Mrs Kolled.

27 It is important to note that the plaintiff did not allege that Drs Dawson and Bhardwaj failed to record the relevant details of the procedure undertaken in the operation notes which would have formed part of Mrs Kolled’s file at the Preston Hospital. (That file was destroyed, probably in about 1994, in accordance with routine practice.) Indeed, both the plaintiff and Northern Health joined in seeking a finding that correct details would have been recorded. Bankstown Hospital took a different course, contending that no such details would have been recorded, with the consequence that the negligence attributed to Dr Zipser in failing to inquire of the Preston Hospital as to the nature of the operation would not, even if undertaken, have revealed the true circumstances. It followed, so Bankstown Hospital contended, that Dr Zipser’s negligence had no sufficient causal link with the harm suffered by the plaintiff.

28 These matters were raised by way of contention only, because the trial judge held that even if all defendants had acted with reasonable care, no different outcome would have resulted in October 1984. Accordingly, his Honour held that the plaintiff had failed to establish that his condition was caused by the negligence of any defendant.

29 Before addressing the contentions, it is convenient to set out the findings made by his Honour relevant to the plaintiff’s appeal so as to identify more precisely the basis upon which he nevertheless failed to establish his claim.

30 There was no suggestion that the earlier procedure, involving a vertical incision into the upper segment, itself involved any lack of care on the part of the Preston Hospital, or the operating practitioners. The issue was whether Mrs Kolled had been given appropriate advice as to the risks which would arise in any future delivery, otherwise than by elective caesarean section, which would follow from the fact of the earlier vertical uterine incision. As explained by Dr Robert Lyneham, a consultant obstetrician and gynaecologist called by Bankstown Hospital, in his report of 25 June 2002 at p 10:

“The risk of rupture of a classical caesarean section scar is well known, and indeed was well known in 1978. It would be my view that it would be vital for a woman who has had a classical caesarean section to be advised that she must convey such information to those who were caring for her in a subsequent pregnancy, and under no circumstances should a trial of scar be considered. Delivery must be by elective caesarean section.”

31 His Honour accepted that Mrs Kolled “was obviously given some information as to the nature of the procedure performed and the reasons for it”: at [57]. His Honour found that she had been told at the Preston Hospital that she had had a placenta praevia, which had been the reason for a caesarean section: at [54]. Although she had denied knowledge of that advice, the antenatal card at Bankstown Hospital had recorded the earlier section for placenta praevia and a UK expert (Mr Clements) briefed for the plaintiff had also recorded a history from her including reference to placenta praevia.

32 Nevertheless, the trial judge held that Mrs Kolled “was not given adequate advice or warnings by [the Preston Hospital] as to the risks consequent upon the caesarean section there carried out”: at [57]. His Honour accepted that reasonable care required that advice and warnings as to the future risks should be given, both in relation to a classical caesarean section or in relation to an incision into the lower segment which extended vertically into the upper segment but did not constitute a “classical caesarean section”: at [49]. It therefore followed that there had been a breach of duty on the part of the staff at the Preston Hospital, for which Northern Health would be responsible. However, the plaintiff failed, his Honour held, to establish the necessary causal link between the failure to warn and advise his mother, and the injury which he suffered.

33 The reasoning in the judgment in this regard was as follows:

“61 Appropriate advice and warnings would have informed [Mrs Kolled] of the nature of the operation, the reasons for it, that in the event of a further pregnancy there was an increased risk of rupture of the uterus, that the baby would have to be delivered by caesarean section at 38 weeks gestation and that the baby should not be delivered vaginally. She would have been warned that she should attend hospital as soon as possible should she come into labour, feel contractions, rupture her membranes or bleed and that she should inform subsequent treating doctors of her history in regard to the previous operation.

62 Assuming [Mrs Kolled] had remembered such advice and warnings and passed them on to the hospital the plaintiff’s position would have been no different as:

(a) the pregnancy did not proceed to the date when an elective caesarean section would have been performed;

(b) although it was planned that [Mrs Kolled] have a trial of labour that did not occur. A caesarean section was substituted. No attempt was made to deliver the plaintiff vaginally;

(c) [Mrs Kolled] was told by the first defendant to attend as soon as possible at the hospital should she come into labour, feel contractions, rupture her membranes or bleed;

(d) the knowledge of the nature of the previous caesarean section would not have resulted in the treatment at the hospital being expedited to such an extent as would have reduced the harm suffered by the plaintiff.

These conclusions are more fully dealt with later in this judgment.

63 In my opinion the plaintiff has failed to establish the necessary causative link between the acts and omissions of the third defendant and the harm which befell him. Accordingly there will be a verdict and judgment for the third defendant.”

34 In relation to [61] it may perhaps be doubted that a warning would have been given in quite such precise terms, but nothing turns on that. It is sufficient to hold that enough would have been said to impress upon Mrs Kolled the nature and extent of the risks, in particular not to subject herself and any future child to the risk of labour, so as to ensure that she passed on the relevant information to her obstetrician, should she become pregnant again. Much of the detailed advice might then have been given by the second obstetrician.

35 Secondly, although at [62] his Honour commenced with an assumption that such advice would have been remembered, he had in fact shortly before that passage rejected the proposition that Mrs Kolled would have forgotten such advice, if given. In considering why Mrs Kolled had not informed Dr Zipser or Bankstown Hospital of the nature of the previous caesarean section, his Honour considered a number of hypotheses, including one which he rejected, identified in the following terms at [56]:

“(d) [Mrs Kolled] may have been given an appropriate warning, understood it, but later forgot it. Whilst this is possible there was evidence that mothers tended to remember and heed advice when it concerned the welfare of their children. I accept that evidence and would apply it particularly to [Mrs Kolled] whose concern for the welfare and care of the plaintiff was obvious.”

36 His Honour also considered the proposition that Mrs Kolled may have been given an appropriate warning but failed to comprehend it fully and for that reason had forgotten it: at [56(e)]. That, too, his Honour rejected as unlikely, having regard to the care which Dr Bhardwaj stated she routinely took to ensure that warnings given by her were understood.

37 It is then necessary to consider why it was said that the plaintiff’s position would have been no different, had his mother been properly advised in 1978 by the Preston Hospital. The reasoning with respect to causation arose out of events which occurred in 1984 at Bankstown Hospital. First, his Honour noted that her pregnancy had not proceeded to the date when an elective caesarean would have been planned, namely, as his Honour accepted, at 38 weeks: at [62(a)]. Although there was evidence from other obstetricians to the effect that an earlier operation may have been planned, his Honour rejected that evidence, particularly in relation to the risks of an unstable lie: at [120]. There is no basis for interfering with those findings.

38 Secondly, a proper understanding of the findings with respect to causation cannot be achieved without bringing into account the analysis which appeared later in the judgment. For example, his Honour’s conclusion that “knowledge of the nature of the previous caesarean section would not have resulted in the treatment of the hospital being expedited to such an extent as would have reduced the harm suffered by the plaintiff” – at [62(d)] – was a synopsis of a far more detailed discussion undertaken later by his Honour with respect to the asserted liability, at [122]-[125], [133]-[154].

39 Thirdly, the four reasons identified for stating that the plaintiff’s position would have been no different had the true situation been known in 1984, required answers to the following additional questions, namely:

(1) Would Dr Zipser have given Mrs Kolled more aggressive advice had he known the true situation?

(2) Would Mrs Kolled have responded differently had she received such advice?

40 The answer to the first question is clear: Dr Zipser, acting with reasonable care, should, according to the evidence of Dr Lyneham, have advised her that “under no circumstances should a trial of scar be considered”: see evidence extracted at [30] above. The warning which his Honour identified as appropriate was in part similar to that which Dr Zipser in any event gave: compare the appropriate advice and warning noted at [61] and that identified at [62(c)], both quoted at [33] above. However, the common element of the warning might be significantly affected by the part which should have been different. In other words, it was one thing to advise Mrs Kolled to attend as soon as possible should she come into labour, feel contractions, rupture her membranes or bleed, in order that there might be a “trial of labour”, with the intention of allowing her to progress to a vaginal delivery if thought appropriate. It was quite another to advise her to come in when such symptoms were identified, so as to avoid serious risks to her and the child because “under no circumstances should a trial of scar be considered”.

41 The answer to the first question suggests that, at least in theory, Mrs Kolled, given the more emphatic warning, might have responded differently to her symptoms on the evening of 12 October. That required the resolution of various pieces of evidence as to when she experienced the first contractions and how she responded. His Honour concluded that they commenced “approximately 15 minutes before” her arrival at the hospital at 11pm: at [136]. As his Honour had previously held that she “could be at the hospital within 15 minutes of the first sign of labour or contractions and was”, it must have been inferred that she in fact proceeded to hospital by car immediately she felt the initial contraction. There was a significant body of evidence inconsistent with that view and suggesting that in fact there was a significant delay before she left for hospital. It will be necessary to consider that evidence in more detail shortly.

42 The answer to the third question, namely whether the staff at Bankstown Hospital would have responded more expeditiously had they known that a trial of labour was not to be allowed, also requires consideration of the factual circumstances on the evening in question. His Honour noted that no trial of labour in fact took place: at [62(b)]. That was because, on examination by Sister Shipley soon after arrival at the hospital, it was confirmed that the baby was in a breech position and would, accordingly, require to be delivered by caesarean section. For reasons which will also need to be addressed in more detail shortly, his Honour concluded that the period of delay from 11pm (when she arrived at Bankstown Hospital) to 12.28am (when the plaintiff was delivered) did not demonstrate a lack of reasonable care. The relevant evidence will need to be assessed against the question whether it related to the time required to undertake a caesarean section generally, as at 1984, or whether it was specifically directed to the circumstances where a trial of scar or trial of labour was not to be permitted.

43 As will be seen, the proper resolution of this case turns upon the answer to the second question rather than the third. That is because, had Mrs Kolled arrived before 11pm, the operating theatres would still have been open and it is likely that the operation would have been undertaken more expeditiously. A critical consideration will be how much earlier the plaintiff could reasonably have been delivered, in circumstances where, by 11.40pm the foetal heart rate had dropped to 80 bpm (from 140 bpm some 10-20 minutes earlier), suggesting that the rupture of the uterus began, as his Honour found, at or shortly before 11.40pm. As the plaintiff survived until delivered almost 50 minutes later, Mr Clements considered that the initial rupture was less than complete. He said that “by midnight or shortly thereafter the plaintiff was in all probability grossly and irretrievably brain damaged”: at [152]. His Honour concluded that it had “not been established that if the plaintiff had been born any time after midnight he would not have suffered severe brain damage and long-term dependency on carers and others”: at [154].

Claim against Bankstown Hospital: failure to contact the Preston Hospital

44 After dealing with the liability of Northern Health, the trial judge turned to consider the liability of Bankstown Hospital with respect to the events of 1984. His Honour dealt first with complaints as to the standard of care during antenatal attendances at the hospital, including complaints that a proper history had not been taken and that insufficient notice had been taken of placenta praevia in relation to the 1978 delivery of Wosif and the vertical scar on Mrs Kolled’s abdomen. His Honour rejected these complaints at [66]-[80], as to which there is no appeal.

45 The second subject of complaint was that neither Dr Zipser nor other members of the staff at Bankstown Hospital took steps to contact the Preston Hospital, to obtain a copy of Mrs Kolled’s obstetric records or seek to ascertain the type of caesarean section which had been undertaken. There was considerable evidence to support the conclusion that it was negligent not to have taken that step in the circumstances of the case. Dr Zipser gave evidence that his usual practice was to write to a hospital where a previous section had been performed in order to seek details: at [81]. Dr Molloy considered it an obligation to take that step and Mr Clements considered it “good practice” with a person presenting with a history of a previous section and a vertical scar, where the nature of the operation was not clear. Dr Lyneham stated that he would not write to the previous hospital if he had obtained a satisfactory history but that “he would have made enquiry if he had received a history of a vertical incision, placenta previa and a transverse lie”: at [83]. Dr Hines was of a similar opinion as a trial of labour was proposed. His Honour accepted this evidence and held that there had been a failure to make the inquiry and a resultant failure to take reasonable care: at [85].

46 His Honour then considered what information would have been supplied, had the inquiry been made. He was not satisfied that the response would have indicated a vertical incision encroaching on the upper segment, but only a lower segment caesarean section, which would, by implication, have involved a transverse incision: at [92]. Accordingly, his Honour held that neither Dr Zipser nor the Area Health Service could be found responsible for any damage which might have flowed from the failure to make inquiry of the Preston Hospital, because the critical information would not have been supplied in answer to such an inquiry.

47 Three specific matters arise from this conclusion. First, it is necessary to consider the reasoning underlying the factual inference that the correct information would not have been supplied, a conclusion challenged on the appeal. Secondly, it is necessary to consider whether the legal premise is correct, on the assumption that the Preston Hospital was negligent in failing to record accurately the procedure undertaken in 1978. On that assumption, it would appear that those who negligently failed to inquire would not be liable for the result of their negligence because of the independent negligence of a third party. Thirdly, it may be necessary to consider whether, absent negligence on the part of the Preston Hospital, a response which (hypothetically) did not contain the critical information would absolve Dr Zipser from liability for his negligence. It is convenient to address the legal issues first.

Causation: dual tortious conduct

48 As already noted, it is possible, though perhaps curious, that Dr Zipser should be under a duty to inquire of the Preston Hospital as to the nature of a previous operation, if the doctors at the Preston Hospital were under no obligation to record the nature of that operation by the inclusion of the critical detail. On the other hand, if, without negligence on their part, no relevant record was made, then it is arguable that Dr Zipser’s negligent failure to inquire had no causal consequence in respect of the injury suffered by the plaintiff.

49 If, however, Dr Dawson had been negligent in failing to make the relevant record, Dr Zipser’s negligence should not have been excused, for reasons discussed below. Accordingly, the trial judge either needed to consider whether the failure to record (on his finding of fact) was negligent, or explain why it did not matter. Indeed even if Dr Dawson were not negligent, there was a respectable argument that Dr Zipser remained liable.

50 For the purpose of considering the legal issue, the elements of negligence may be identified (hypothetically) as a failure on the part of Dr Dawson to record the details of the operation carried out in 1978 and the failure of Dr Zipser, in 1984, to inquire as to the detail of the earlier operation. Each would have been sufficient in itself, but in combination it might appear that each broke the causal connection between the other and the consequences for the plaintiff. In other words, the failure to record was not a cause of the harm, absent an inquiry and the absence of an inquiry was not causative given the failure to record. That analysis should not be accepted, although the reason is not immediately apparent from the case-law.

51 Most cases reveal a chain of causation in which the earlier act causes the later act from which the harm eventuates. Thus, in Chapman v Hearse [1961] HCA 46; 106 CLR 112, the negligence of the driver responsible for the first accident resulted in Dr Cherry placing himself in a position where it was foreseeable that negligent driving by another person could result in injury or death, as occurred. See also Lamb v Camden London Borough Council [1981] QB 625 and cases in which negligently caused injury is followed by negligent medical treatment, such as Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522. Nor is the case analogous to those in which two independent causes have resulted in the same damage: see Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed, OUP, 2007) pp 556-558; see also discussion of “contributory”, “additional” and “alternative” causes in Hart and Honoré, Causation in the Law, (2nd ed, OUP, 1985), Ch VIII.

52 On one view, the case could be analysed as involving independent acts of negligence, each of which gave rise to a risk, which risk in fact materialised. It is not, however, a case where the conduct of each of several negligent employers gave rise to a risk, such as that of mesothelioma, but where it is not possible to say which exposure probably resulted in the disease. Rather, the avoidance of the risk which each created required non-negligent conduct on the part of both. On that view, the negligence of each was a contributing factor to the harm suffered and each materially contributed to that harm. Nevertheless, the hypothetical situation of Dr Dawson may be seen to differ from that of Dr Zipser. Thus the plaintiff could have recovered from Dr Dawson in the event that Dr Zipser had not been negligent and had made the appropriate inquiry. (On the hypothesis, the response would have been unhelpful, because of Dr Dawson’s negligence.) Similarly, if Dr Zipser had negligently failed to inquire, but Dr Dawson had properly recorded the information, the plaintiff would have been able to succeed against Dr Zipser alone. The potential for a different result would arise in a case where Dr Zipser was held to be negligent but, without negligence, Dr Dawson had not recorded the relevant information or, perhaps, it had been recorded but, without negligence, the records had been destroyed before the inquiry was made. Whether or not the casual link is broken in the latter (non-negligent) case, does not affect the reasoning favouring causation in the former case, involving negligence of the third party recorder.

53 Whether Dr Zipser would have been liable had he inquired of the Preston Hospital and (without negligence on their part) not obtained the critical information, will depend upon whether there was a break in the causal link. That conclusion would require a consideration of the limits of the “but for” test, which may not be a sufficient test in all circumstances: see Athey v Leonati [1996] 3 SCR 458 at [14]-[18]. The Canadian Supreme Court accepted that causation was “essentially a practical question of fact which can be best be answered by ordinary common sense”: referring to Snell v Farrell [1990] 2 SCR 311 at 328 and Alphacell Ltd v Woodward [1972] AC 824 at 847 (Lord Salmon), an approach consistent with that adopted in this country in March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506; see also Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [83] (Kirby J) and [140] (Kiefel J). Further, as explained by Lord Reid in McGhee v National Coal Board [1973] 1 WLR 1 at 4:

“It has always been the law that a pursuer succeeds if he can show that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.”

54 Because the factual premise to this last question (namely that Dr Zipser would not have obtained the critical information on making an inquiry) is not made out, this legal issue need not be resolved.

55 As explained by Professor Jane Stapleton, the concept of material contribution can be usefully divided into three different categories: Stapleton J, “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 at 394-395. Her second category, described as “an orthodox case” involved a chain of events such as those which arose in Home Office v Dorset Yacht Co Ltd [1970] AC 1004, where the Home Office was found liable for the damage done by prisoners who escaped through its negligence. Professor Stapleton suggested, correctly, that questions of causation should be approached keeping clearly in mind the factual element identified as “historical involvement” and the normative judgment as to whether the consequences of the tort fall within the appropriate scope of liability: at 392; see also Roads and Traffic Authority v Royal at [83]-[84] (Kirby J); Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 at [85]-[92] (Ipp JA). Such distinctions are important because they help to elucidate the process of reasoning and avoid the risk of idiosyncratic judgments lurking behind claims to have applied “common sense”. If there are relevant policy considerations, they should be identified. Similarly, the precise nature of the “historical” involvement is important to ensure that there is a relevant causal connection.

56 These principles may be applied to two issues of causal connection which arise in the present case. First, in relation to the finding of a failure to advise Mrs Kolled in 1978 of the risks she faced in relation to a future pregnancy, it is clear that the risk materialised in the sense that, on the factual assumption, she did not take steps which would have avoided or reduced the harm suffered by the plaintiff. Even if it be assumed that, had Dr Zipser not been negligent, he would have discovered the true situation, with the result that the risk might not have materialised, nevertheless his failure to take that step did not break the causal link between the failure to warn and the harm suffered. Secondly, in relation to the negligence of Dr Zipser in not inquiring as to the nature of the earlier operation, any negligence of Dr Dawson in failing to record the details of the operation would itself have contributed to the materialisation of the risk, but would not have prevented Dr Zipser’s negligence being a contributing cause.

57 A contrary view is counterintuitive. If the negligence of two tortfeasors each contributes to the indivisible harm suffered by the victim, each is liable for the harm suffered. If neither were negligent, no harm would have been caused. If either one were negligent and the other not, in each case the negligence would have caused the harm. But a conclusion that if both were negligent and the harm eventuated, neither was responsible for that harm, invites a question as to whether the reasoning process has gone awry. One basis for justifying the preferred approach is that the common law has “substituted the test of responsibility or fault for that of causation”, as explained by Professor A L Goodhart, “Appeals on Questions of Fact” (1955) 71 LQR 402 at 413. As he noted, that approach is reflected in statutory amendments which occurred in similar form in England and in New South Wales, dealing with apportionment between tortfeasors and responsibility for contributory negligence. Each provision speaks of damage suffered “as a result of” a tort, thereby avoiding “caused by”: see Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1); Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). A normative element, requiring appropriate allocation of responsibility for tortious conduct should be accepted as part of the assessment of causal connection (potentially to an expansive or a restrictive effect). Although the Civil Liability Act 2002 (NSW) is not consistent in its terminology, it affirms the importance of the normative approach, requiring the court (in cases where it operates) to consider “whether or not and why responsibility for the harm should be imposed on the negligent party”: s 5D(4).

What was recorded in 1978?

58 The question whether Dr Dawson recorded the details of the operation accurately in 1978 arose, not on the plaintiff’s case, but on Bankstown Hospital’s case. It sought to argue that Dr Zipser’s negligence did not contribute to the harm suffered by the plaintiff because an inquiry would not have elicited the relevant information.

59 The plaintiff and Northern Health joined cause in challenging the factual finding that Dr Dawson had not properly recorded the operation in 1978. No doubt the plaintiff was content to take this course because he had not pleaded such a case and because that would preclude a finding that Dr Zipser’s failure to inquire was inconsequential. Northern Health was anxious to take this course because it exonerated either Dr Dawson or Dr Bhardwaj (or both) from one of two possible elements of negligence. (The other head of negligence alleged against them directly, was that they failed to advise Mrs Kolled, a matter which has already been addressed.)

60 The position taken by Bankstown Hospital in relation to this issue was somewhat curious. It sought to support the judgment below on the basis that his Honour ought to have made the following findings, namely that:

61 In relation to the first point, whilst it was no doubt true that there was evidence (from Dr Booth) to the effect that a surgeon could make an incision into the upper segment of the uterus without being aware of it, that evidence did not extend beyond the existence of a possibility and was largely discounted by other witnesses, including Dr Lyneham and Dr Bhardwaj. There was no basis to challenge his Honour’s finding that, on the probabilities, Dr Dawson was aware of the intrusion. The second limb of the contention falls with the first, because the obligation to warn was engaged by awareness of the nature of the incision. The third limb of the contention merely cast doubt upon the other two limbs. To accept that it would have been negligent for Dr Dawson to have failed to appreciate the nature of the incision for which he had been responsible indicates why, in the absence of probative evidence for a contrary view, a finding that he was aware is appropriate.

62 Similar reasoning applies with respect to the inferred failure to record, given that such a failure, assuming knowledge of the nature of the operation, would itself have been negligent.

63 Underlying the third limb of Dr Zipser’s contention was a misconception which appears to have infected the reasoning of the trial judge. It is only if the conduct of Dr Dawson in not recording the operation was not itself negligent that Dr Zipser can escape liability for his negligence. Even if his Honour’s findings with respect to the content of the note were accepted, those findings would have been insufficient without asking whether the failure to note the encroachment, “either by oversight or because his practice was only to record the primary surgery”, involved negligence.

64 Bankstown Hospital sought to make a case at trial that the operation note would not have included an indication of encroachment into the upper segment and that, even if it had, the response to an inquiry would not have recorded that fact. The weight of the medical evidence was in favour of the view that both those things should have happened. If they did not, there would have been a clear case of negligence on Dr Dawson’s part, a fact for which Bankstown Hospital contended.

65 There was undoubtedly a paucity of information available to his Honour in resolving this question. The former medical director of the Preston Hospital (Dr Leslie) gave evidence that upon receipt of a request for patient information, the patient’s complete medical file would have been reviewed. That file would have included operation notes and clinical notes of treatment, including the mode of delivery and any other significant medical information: at [86]. Consistently with expert evidence given at trial, Dr Leslie’s evidence continued:

“If a patient had undergone a classical caesarean, the operation notes completed by the obstetrician and contained in the patient’s file should clearly state this. I am aware, and was so aware in 1978, that if a patient had had a classical caesarean that it was imperative that that fact be included in any obstetric history report provided by the hospital.”

66 Mrs Kolled’s obstetric file was destroyed in 1994. It followed that a request received in 1984 would have been dealt with in the manner stated. The only question, therefore, was whether a vertical uterine incision encroaching on the upper segment would have been noted in the operation notes. The operating surgeon, Dr Dawson, was not called, although it was not suggested that he was unavailable. The trial judge was apparently invited to draw an inference against Bankstown Hospital from its failure to call him, so that he could be satisfied that Dr Dawson’s evidence would not have assisted it; meaning, in this aspect of the case, that he would have said that a vertical incision extending above the lower segment of the uterus would have been recorded. His Honour was not prepared to draw such an inference against Bankstown Hospital, apparently on the basis that Dr Dawson was a potential witness for Northern Health, rather than Bankstown Hospital. Dr Bhardwaj was called (by Northern Health) but, understandably, her evidence (which was not referred to on this issue) was not based upon any recollection of the particular operation, which had occurred in 1978. One inference might have been that Dr Dawson would also have had no specific recollection of the operation and would only have given evidence as to his professional practice.

67 The reasons of the trial judge with respect to this issue divided into two limbs. The first concerned the likely content of the operation note, based on what Dr Dawson may have known and done; the second addressed more generally the established practice with respect to recording details of such an operation. With respect to Dr Dawson, his Honour’s reasoning was as follows at [92]:

Jones v Dunkel

(d) The relevant entry in the birth record provides some support for the conclusion that Dr Dawson may have recorded, on the operation notes, no more than that the procedure was a lower segment caesarean section”.

68 In relation to (a), his Honour’s reference to the absence of any Jones v Dunkel inference against Bankstown Hospital is obscure. A failure by a party to call a witness may carry the inference that the evidence the witness would have given would not have helped that party. The relevant witness not called was Dr Dawson. The evidence that Bankstown Hospital would have sought from him, in support of its case, would have been that he did not record the upper segment encroachment. Pursuant to Jones v Dunkel, the inference which might be available against Bankstown Hospital was that his absence may have provided some support for the contrary inference, namely that he did record the upper segment encroachment. Dr Dawson, however, was clearly in the Northern Health camp and it was not reasonable to expect Bankstown Hospital to call him in support of its dispute in which the plaintiff and Northern Health were aligned. If any Jones v Dunkel inference were relevant, it would have been an inference against the interests of Northern Health.

69 In relation to (c), it is not clear what weight his Honour gave to the possibility that Dr Dawson may not have noted the intrusion into the upper segment. Although there is some ambivalence in (c), there was no suggestion that an experienced and competent obstetrician would not have been aware of an encroachment of the relevant kind. In relation to the possibility that the encroachment was not noted by oversight, or because it was not Dr Dawson’s practice, the term “oversight” is imprecise and may have involved negligence on the part of Dr Dawson. Similarly, if his practice was not to record such matters, that practice may have been negligent in the light of other evidence that such matters were of critical importance to future obstetric treatment.

70 So far as (d) was concerned, the sole remaining record of relevance to the delivery (the birth register) noted the position on delivery as “LUSCS breech”, as noted above at [11]. It also recorded the accoucheur as Dr Dawson/Dr Bhardwaj and in the column headed “Remarks” noted “APH – placenta praevia”. His Honour referred to no evidence as to whether, if there had been an intrusion into the upper uterine segment, that was likely or unlikely to have been noted in the birth record. Nor did his Honour state that he gave much weight to the absence of reference in the birth record as supporting the conclusion that there was no record on the operation notes of the relevant encroachment.

71 Of greater importance in these circumstances was the evidence of practice. It is necessary to note the remaining elements of his Honour’s reasoning in this respect at [92]:

72 Each of the express elements of this reasoning is supportable on the evidence. The potential error arises from what is not said, in two respects. The first was the possibility that no useful information would have been obtained on inquiry in 1984 because Dr Dawson had, negligently, failed to note the encroachment on the upper segment. A finding that X would not bear responsibility for his negligent conduct because, had he done what he should have, he would not have obtained the relevant information because of earlier negligence on the part of Y, resulting in X not being liable to the plaintiff, has been rejected above. Secondly, while it was true that there was no direct evidence of an established practice of including a special note of an upper segment encroachment, known practice with respect to a relatively unusual circumstance may not be determinative of the proper standard of reasonable care. It is necessary, in such a situation, to address the expert evidence as to the significance of the encroachment for future obstetric history and, in that light, assess whether the failure to make such a note would constitute a failure to take reasonable care.

73 Once it was accepted that Dr Dawson would have been aware of the fact that his incision encroached on the upper segment, there was no evidence to support the conclusion that he would not have recorded that fact in the operation notes. The overwhelming weight of the medical evidence was to the effect that such an encroachment should have been recorded, for the very good reason that it had medical significance for management of any future pregnancy. To say that there was “no evidence that there was any established practice of including a special note” to that effect misconceived the medical evidence. No “special note”, in the sense of something inconsistent with or not required by good practice, was required, but a recording of medically significant features of the procedure undertaken was: see Mr Clements, who used the term “special note” at Tcpt, 05/06/06, p 290 (20)-(25).

74 The reliance upon Dr Leslie was also misconceived. Dr Leslie’s evidence included three propositions. The first was that upon request he or the Deputy Medical Director would have reviewed the patient’s medical file, including the operation notes. Secondly, he considered that if the patient had undergone a classical caesarean, the operation notes “should clearly state this”. Thirdly, if the patient had had a classical caesarean, he considered it “imperative” that that fact be included in any obstetric history report provided by the hospital. His Honour considered that the evidence demonstrated that Mrs Kolled had not had a classical caesarean, but a more limited incision encroaching into the upper segment: at [47]. He reasoned that if the operation notes did not identify the procedure as a classical caesarean, the response to an inquiry would have been to indicate merely that it was a lower segment caesarean section.

75 With respect, that reasoning is fallacious. The medical reason for including a note of an upper segment encroachment was that the resultant risks were of the same kind as for a classical section. The reason for making a note of the encroachment was precisely the same as the reason for Dr Leslie to have responded to an inquiry by referring to the content of the note. No doubt it would have been of assistance if Dr Leslie had been called and asked the precise question as to what response he would have given in circumstances where the operation notes referred to an upper segment encroachment, rather than a classical section, but counsel for Bankstown Hospital did not contend (understandably) that the failure to take that step was fatal to its opponent’s case. The reason is that the logic of the medical expert testimony was unanimous in identifying the purpose of recording the encroachment and hence the purpose of conveying the fact of the encroachment in response to an inquiry. A matter which would not merely be relevant, but highly significant, in respect of future obstetric care, must logically be something which, in the exercise of reasonable care, should generally be recorded.

76 The apparent elision in his Honour’s reasoning at this point appears to have flowed from addressing only the plaintiff’s case as pleaded. There was no pleading that Dr Dawson (or for that matter Dr Bhardwaj) had been negligent in failing to record in the operation notes in 1978 a vertical incision encroaching into the upper segment of the uterus. The pleading was limited to negligence in failing to advise Mrs Kolled of that fact, with appropriate warnings as to the course she should take with respect to any future pregnancy. Bankstown Hospital simply denied each of the allegations of negligence levelled against it, raising no specific pleading that, if there had been negligence in failing to inquire, it was not causative of any harm suffered by the plaintiff because the critical information would not have been provided by way of response. (As the relevant particular was concerned with negligence of Bankstown Hospital and not the Preston Hospital, Northern Health did not plead to this allegation at all.)

77 Although no trace appeared in the appeal books, the Court was advised that each of the hospitals had filed cross-claims against each other. These were largely formal, following the language of the Law Reform (Miscellaneous Provisions) Act 1946, s 5. No factual allegations were pleaded, as the Court was informed.

78 Three critical findings were, however, made: first, there was an incision in to the upper segment of the uterus, which caused the uterus to rupture in 1984; secondly, Dr Dawson at least was aware of that incision, and, thirdly, he was negligent in failing to ensure that Mrs Kolled was advised of the relevant facts. Two further findings were relevant in this context: first, it was negligent of Dr Zipser not to inquire of the Preston Hospital in relation to the nature of the procedure undertaken by Dr Dawson in 1978 and, secondly, that the relevant records would have existed in 1984, if the inquiry had been made.

79 Findings might have been made as to one further step in the reasoning, namely that, knowing that there was an incision into the upper segment, Dr Dawson would have been negligent in failing to record it in the operation notes. Although the plaintiff’s case in relation to Bankstown Hospital had other limbs, on the appeal the plaintiff was able to rely upon the unchallenged finding of negligence on the part of Dr Zipser in failing to inquire as to the nature of the operation undertaken in 1978. However, if there were no duty to record, the inquiry might well be rendered an empty exercise. If there were a duty to record, then Dr Dawson must have been negligent in failing to record the nature of the operation.

80 A further difficulty with the finding of the trial judge in this context was that his Honour merely held that he was “not satisfied … that the response … would have indicated other than a lower segment caesarean section”: at [92]. On this issue, Dr Zipser bore the onus of proof: in order to avoid liability he had to establish to the trial judge’s satisfaction that the response would not have contained the relevant details. Given the absence of clear evidence one way or the other, a correct statement of the burden of proof could have been critical.

81 In fact, there was no evidence that Dr Dawson was negligent in this respect. It is true that the only record available at the time of trial was the birth register, which did not record a vertical incision into the upper segment, but there was evidence, accepted by his Honour, that the birth register was not prepared by the surgeon (at [44]) and that notes made by the nurse or midwife, which would presumably provide the basis for the birth register, would be unlikely to contain details from the operating notes: Tcpt, 22/06/06, p 834 (15)-(30) (Dr Bhardwaj). Accordingly, no clear inference could be drawn from the short annotation in the birth register as to the precise nature of the operation.

82 Nevertheless, there was consistent medical evidence for the view that the operating notes would have recorded the true nature of the operation: see Dr Lyneham, Report, 25 June 2002, p 7 and Tcpt, 08/06/06, p 502(35); Dr Malloy, Tcpt, 07/06/06, p 422; Mr Clements Tcpt, 05/06/06, p 306(30). Indeed, Mr Clements was of the view that it would have been “impossible” for the record to omit the encroachment and that such a note was “demanded”: Tcpt, 02/06/06, p 208(5) (in relation to a classical caesarean), Tcpt, 05/06/06, p 290(20)-(25).

83 Because, as a result of Dr Zipser’s negligence, no inquiry was made, and because the notes had since been destroyed, there was an absence of direct evidence as to what the notes contained. There was no evidence, direct or indirect, to support the theory that they would not have contained that which they should have contained. The absence of Dr Dawson does not fill that evidentiary gap. Accordingly, the appropriate finding was that Bankstown Hospital did not establish its case in that respect. The appropriate finding is that the notes did include the critical information.

84 If Bankstown Hospital had established the case supported by its notice of contention in this Court, there would, as it acknowledged, have been a likely finding of negligence on the part of Dr Dawson. That negligence would not have provided a basis for finding that the causal link between Dr Zipser’s negligence and the harm suffered was broken. On either approach, its notice of contention would not support a finding of no liability on its part.

Northern Health’s contention: no failure to warn Mrs Kolled

85 Northern Health sought to uphold the judgment below on the basis that there had been no breach of duty on its part in any event. That constituted a challenge to his Honour’s finding that Mrs Kolled had not been warned in 1978 of the nature of the procedure undertaken at the Preston Hospital and its ramifications for the management of any future pregnancy. Its complaint about his Honour’s finding was twofold. First, it was said that his Honour should not have, implicitly, found that Dr Bhardwaj departed from her normal practice as to what she would have done in such a case, when that was not put to her in cross-examination. Secondly, the possibility was raised that the inference drawn from the failure to call Dr Dawson may have been relied upon, inappropriately, in relation to the evidence of Dr Bhardwaj.

86 In respect of the first contention, the challenge is unpersuasive because it relies upon a purported acceptance of “usual practice”. Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward.

87 Properly understood, Dr Bhardwaj’s evidence was a reconstruction of what she would have done on the particular occasion of which she had no memory, based on her professional expertise and understanding of the significance of the particular procedure which had been undertaken. Furthermore, in contrast to the issue with the content of the operation notes, there was express evidence from Mrs Kolled as to what was not said by Dr Bhardwaj. That evidence was assessed by the trial judge who expressly considered and rejected the possibilities of Mrs Kolled having been given an appropriate warning which she failed to understand, or understood but later forgot. There was support for his Honour’s conclusions in these respects. For example, the antenatal card at Bankstown Hospital recorded that Mrs Kolled had suffered a placenta praevia in 1978, something she had been told by the midwives and had recalled. His Honour was entitled to rely upon such evidence to support his conclusion that, had she been warned by Dr Bhardwaj of the serious risks attendant upon a future labour, she would have recalled that advice. His Honour also relied upon Dr Booth’s assessment of Mrs Kolled’s response as genuine when told, after the procedure at Bankstown Hospital, that she had previously had a classical caesarean (“up and down”), and had denied any knowledge of it. There is no reason to come to a different view from his Honour in this respect and, his Honour having had the benefit of seeing Dr Bhardwaj and Mrs Kolled in the witness box, it is appropriate to place weight upon his assessment of their respective testimonies.

88 The second issue raised by Northern Health was the possibility that an adverse inference was drawn with respect to the evidence of Dr Bhardwaj, from its failure to call Dr Dawson. That complaint is without substance. In order to reach a conclusion that Mrs Kolled was not given a warning in 1978, it was necessary for the trial judge to be satisfied that neither Dr Dawson nor Dr Bhardwaj had given such a warning. As the trial judge noted, there was “no evidence” that Dr Dawson gave any such warning: at [53]. His Honour noted, correctly, that Dr Dawson was not called by Northern Health, and that he was available: at [53]. Those comments were directly relevant to the first part of the question which his Honour was required to answer. Indeed, it was also possible, as his Honour noted, that Dr Dawson may have relied upon his assistant surgeon to give the appropriate advice and warnings: at [56(b)].

89 In reaching his conclusion that Mrs Kolled was not given adequate advice or warnings by the Preston Hospital, his Honour inferred that “the evidence Dr Dawson would have given, if called to give evidence, would not have assisted the third defendant’s case”: at [57]. His Honour further concluded that he could, as a consequence, more readily accept Mrs Kolled’s evidence that she was not given adequate warnings. It may have been more accurate if his Honour had stated that this was relevant to his conclusion that Dr Dawson did not give such a warning, but it might also have been relevant to the question whether Dr Dawson relied upon Dr Bhardwaj to give the warning. In any event, his Honour had already discussed the evidence of Dr Bhardwaj: there is no possible suggestion that his Honour was not aware that she had given evidence. Nor is the fact that one aspect of Mrs Kolled’s evidence received a degree of confirmation irrelevant to considering whether it was correct in other respects.

Consequences of negligence

90 For the reasons given above, each of the respondents’ contentions should be rejected and the plaintiff’s complaint with respect to his Honour’s finding of a break in the causal link between Dr Zipser’s negligence and any harm suffered should be upheld. The remaining issue, which was critical to his Honour’s rejection of the plaintiff’s claim, is whether any different course would have been taken on the evening of 12 October, absent the negligent conduct of the defendants.

91 His Honour found that the failures of the Preston Hospital and Bankstown Hospital to tell Mrs Kolled that she should not undergo a trial of labour and should attend the hospital immediately if she had contractions or any other signs of incipient labour were inconsequential. His Honour held at [98]:

“In any event, such a warning would only have served to heighten [Mrs Kolled’s] concern to make certain that she proceeded to hospital as soon as possible upon the onset of contractions which I find she did.”

92 His Honour’s findings in relation to the evidence as to what Mrs Kolled did on that evening were made in relation to a complaint of the effects of delay in going to the hospital and in the steps taken at the hospital. In addressing those complaints, his Honour noted that a number of issues had already been dealt with and referred to other findings, including a finding that Mrs Kolled “could be at the hospital within 15 minutes of the first sign of labour or contractions and was”: at [133]. His Honour then set out the following further reasoning at [135]:

“The conclusion drawn in these particulars encompasses the acceptance of [Mrs Kolled’s] evidence that she felt the initial contraction at 9pm. I am unable to accept that evidence for the following reasons:

(a) [Mrs Kolled’s] evidence at the hearing was that the contractions had started at precisely 9pm on 12 October 1984. She was aware of that time as there were some regular customers who came at about that time to the shop and this caused her to check the clock. She had always told people her contractions started at 9pm;

(b) [Mrs Kolled’s] evidence was contrary to the history recorded by Dr Harbord that [Mrs Kolled] was admitted 30 minutes after the onset of contractions. It was contrary to Mr Clements’s history of contractions commencing at 9.10pm and contrary to the original Statement of Claim which asserted [Mrs Kolled] presented to the hospital at about 10.30pm with a history of contractions over the preceding period of less than 30 minutes;

(c) [Mrs Kolled’s] evidence was contrary to the history recorded at the hospital at 11pm of ‘contractions since 10.45pm’. The hospital entry was made by Sister Shipley who said the entry was made contemporaneously and recorded [Mrs Kolled’s] response to the question ‘When did contractions start?’. Sister Shipley said there was no language problem, if there had been she would have obtained an interpreter and noted the fact on the record. Sister Shipley was an experienced midwife. She had no reason not to accurately record [Mrs Kolled’s] answers. It was suggested to her that she was concerned to know when the contractions became regular but she denied that the question was in that form. I accept Sister Shipley’s evidence.”

93 As counsel for the plaintiff noted, there was no express credit finding with respect to Mrs Kolled’s evidence. On the other hand, one limb of his Honour’s reasoning was based upon apparent inconsistencies between her evidence at trial and the history recorded by various medical practitioners to whom she had spoken in the past. His Honour was entitled to discount her evidence at trial, which was challenged on the basis of the inconsistencies, to the extent that his Honour was satisfied as to the correctness of the recording of those histories. Nevertheless, the extent of particular inconsistencies and possible reasons for them arguably needed to be considered. To say that her evidence was “contrary to” the history recorded by Mr Clements was open to misinterpretation. Whether an assertion that contractions started at 9pm, as opposed to 9.10pm, involved a contradiction or contrary position, might have depended upon the significance of the variation. In terms of the ultimate outcome, it would have been insignificant: if Mrs Kolled had arrived at the hospital by 9.30pm, there seems little doubt that there would have been a satisfactory delivery of the plaintiff. On the other hand, if the element of contrariness is that someone who recalls looking at the clock and seeing that it was precisely 9pm, but who has earlier stated that the time was 9.10pm, that cast doubt upon the explanation given for her belief as to timing. Then it would be necessary to consider whether, if the explanation (of looking at the clock for a particular reason) were to be rejected, her evidence as to the time should also be rejected. Consideration might need to be given to the possibility that she had lied in an attempt to bolster the credibility of a truthful statement.

94 Acceptance of Sister Shipley’s evidence would itself have been a basis for rejecting Mrs Kolled’s evidence: the difference between contractions commencing at 9pm and contractions commencing at 10.45pm was highly significant in the context of the case. However, there were difficulties in the way in which his Honour summarised Sister Shipley’s evidence. It was not correct to say that the answer elicited by Sister Shipley from Mrs Kolled, which caused her to write “contractions since 10.45pm”, was in response to the question “when did contractions start?”. In her evidence in chief she was taken through the hospital notes and certain explanations were elicited. Thus, at Tcpt 15/06/06, p 695-696 the following evidence was given:

“Q. Right. Now, at the time of the initial contact with the mother coming into the labour ward in circumstances of the type described in these notes, by reference to your usual practice what is it that you would say to the mother?
A. I would ask the mother on arrival what time her pains started and I’d write that down. …

95 Earlier evidence had ascertained that she had been a certified midwife from 1979. She was also asked about the commencement of labour and gave the following answers:

96 There was some little elaboration in cross-examination, but not to significant effect: p 715.

97 The variation between the questions Sister Shipley asked and that recorded by his Honour might not be significant in some circumstances, because a pregnant woman would identify the question about pain as relating to contractions. However, there was scope for ambiguity and possible confusion with a woman who, through experience, knew the pain associated with normal contractions, but said she also experienced a sharp knife-like pain which she did not associate with normal contractions.

98 His Honour also said, in the passage set out above at [92], that she had denied putting a question in a form which allowed her to know when the contractions became regular. There was no such denial in the evidence in chief, given at [94]-[95] above. Further, in cross-examination, the following further evidence was elicited at p 715:

99 The evidence given by Mrs Kolled as to her pain was not succinctly stated. There were language difficulties which resulted in some of the evidence being given in English and some in Arabic and, in the course of her cross-examination, there were difficulties with interpretation: see, eg, Tcpt, 31/05/06, pp 125-130. It is also clear that she had difficulties in focusing on the question: see, eg, Tcpt, 01/06/06, pp 139-140. The explanation she gave in her evidence in chief as to the timing of the first contractions was that they commenced whilst she was at the shop in which she worked with her husband, at 9pm on the Thursday evening: Tcpt, 29/05/06, p 35. She said that she was not in a hurry to go to the hospital and continued with the ordinary routine of the shop until 10pm, which was closing time: p 36. She said that it took about 20 minutes to close the shop and that she made a short detour to her home before leaving for the hospital. She thought it took between 10 and 15 minutes to reach the hospital: pp 36-37.

100 This evidence was entirely consistent with her arrival at the hospital at 11pm, although she said did not know what the time was when she arrived: pp 38-39 and 124. In her evidence in chief she described having a pain “[l]ike a knife in my stomach” whilst at the hospital: p 40. She distinguished that from back pain which she associated with previous pregnancies: p 40 and, in cross-examination pp 138-139. She described the pain she felt at 9pm as that of a contraction: pp 135 and 137. She agreed that when she reached the hospital she was asked “when you first felt pain”: p 136. She described being in pain and screaming whilst she was being examined by the nurse at the hospital. The following evidence was then given (p 138):

101 She was asked whether the nurse had asked her when the pain started, with which she agreed; denied that she had said it started at 10.45pm or that she had said it started 15 minutes before she arrived at the hospital; she also denied the proposition that she had at no time told the nurse that the pain started at 9pm, and the suggestion that the first person she had told that the pain occurred at about 9pm or 9.10pm was Mr Clements on 23 October 2003: Tcpt, pp 142-143.

102 Her recollection of when the pain started continued over a number of hours of cross-examination, parts of which focused on the proposition that she had described the time differently to her solicitors and medical advisors over the years during which the plaintiff had pursued his claim. Her evidence became more emphatic over time. She stated, Tcpt, p 165:

103 She reiterated her insistence on the fact that the pain started at 9pm towards the end of her cross-examination by counsel for Bankstown Hospital: Tcpt, 01/06/06, p 183.

104 Dr Harbord was a paediatric neurologist and not an obstetrician. He was provided with notes from Bankstown Hospital, notes prepared by Mrs Kolled and obtained a further oral history from Mrs Kolled on 26 November 2002. He had no particular interest in the labour or delivery, except to the extent that it assisted in understanding the plaintiff’s condition. His report of 17 December 2002, at p 2, referring to Mrs Kolled by her first name, stated:

“Tamam was admitted to the Labour Ward at the Bankstown Hospital at 2230 on 12th October, 1984 in labour with abdominal pain. The contractions had occurred from 2200 that evening, and the foetal heart rate on admission [sic] at 2330 was 140 beats per minute.”

105 Dr Harbord was not cross-examined and the source of his information is unclear. It was assumed that the times were not taken from the hospital notes, because they did not correlate with the hospital notes. It is possible that they were provided by Mrs Kolled at the consultation, but it is also possible that they were obtained from notes supplied by the plaintiff’s solicitors. They appear to have accorded with the first version of the statement of claim, filed on 30 March 2001. How the solicitors identified the times for the purpose of inclusion in the statement of claim is unknown; a reasonable inference might be that they were provided by Mrs Kolled, although the circumstances by which the times were elicited is unknown.

106 Mr Roger Clements gave an opinion on 31 October 2003, having had access to numerous documents then available, including the statement of claim and Dr Harbord’s report. Mr Clements spoke with Mrs Kolled on the telephone, with the help of an interpreter on 23 October 2003. His report stated (p 9):

“Mrs [Kolled] was admitted to hospital as an emergency … on Friday 12th October. Mrs [Kolled] recalls that on this day she had a contraction at 2110. She knew it was a contraction because she had experience of previous labours. She waited to see whether another contraction would follow and at 2120 she had a second contraction. The contractions then began to come every ten minutes and she decided to go to hospital. She and her husband ran a grocery store at that time and generally closed the shop some time between 2100 and 2200 hrs. She remembers asking her husband to close the shop and take her to the hospital. She believes that she arrived at the hospital at about 2200. The midwife’s first notes however are timed at 2300.”

107 Mr Clements did give evidence at the trial, and in some respects reference was made to his telephone conversation with Mrs Kolled, but there was no helpful elucidation of how he obtained the information recorded above.

108 The weight to be given to the inconsistencies depended upon an analysis of where error might have arisen. From Mrs Kolled’s point of view, there was one fixed point in time of which she was conscious, namely the time of the first contraction. The other fixed point, of which Mrs Kolled was not conscious, was the time of her arrival at hospital, which was accepted as being 11pm as recorded in the hospital notes. Between those times there was ample opportunity for miscalculation and confusion. For example, if Mrs Kolled believed, as she appears to have done at some time, that she arrived at the hospital at approximately 10pm, her understanding must have been that there was approximately one hour between the earliest contraction and her arrival at hospital. If she were right about the time of the first contraction, the period which elapsed was in fact closer to two hours.

109 What happened prior to 11pm was to be identified entirely by reference to her evidence and prior statements made to other persons. No doubt it was appropriate to give weight to the time recorded by Sister Shipley, as evidence of what Mrs Kolled had told her, almost contemporaneously. The difficulty in relying solely upon that evidence is that there is a degree of doubt as to what Sister Shipley was recording. Because it would have taken Mrs Kolled between 10 and 15 minutes to reach the hospital, because she had previous experience of labour and was unlikely to assume that she was about to give birth soon after the first contraction, and because she had no reason to suppose that she should not undergo a trial of labour as she had been advised, it is possible, but highly unlikely, that she set out for the hospital the minute she felt the first contraction. Nor was it put to her in cross-examination that she, a woman who had already delivered four babies, felt any need to get to the hospital immediately the contractions started.

110 Sister Shipley’s evidence was not consistent with the proposition that she was anxious to record the time of the very first contraction. Rather, she asked about “pain” and, contrary to his Honour’s finding, was concerned about regular contractions. The inference drawn by his Honour at [136] was erroneous. The probability is that the contractions commenced at an earlier point in time than 10.45pm, though there is significant difficulty in establishing when they commenced.

111 It must be inferred from his Honour’s findings that he disbelieved Mrs Kolled’s evidence as to the reason why she was able to fix the time of 9pm with some precision. He did not find that was a conscious fabrication, but there were reasons why he was entitled not to be satisfied on the balance of probabilities as to that evidence.

112 Rejection of that evidence was not, however, an end of the matter. It did not follow that Mrs Kolled’s first contraction occurred at 10.45pm. As indicated above, Sister Shipley’s evidence was not necessarily inconsistent with the proposition that contractions had occurred at an earlier time. The cross-examination of Mrs Kolled focused squarely on the proposition that she had looked at the clock when she felt her first contraction and that the time was 9pm. There was also an attempt to establish that, like Sister Shipley, she identified contractions as “pain” and hence to tie the first contraction, as she understood it, to a time approximately 15 minutes before she arrived at the hospital. However, there were other aspects of Mrs Kolled’s testimony which were not directly challenged. She gave evidence that the first contraction occurred whilst she was working at the family grocery shop. She stated that closing time was between 9pm and 10pm: Tcpt, 29/05/06, pp 35-36. She further gave evidence that it took “about 20 minutes” to shut up the shop. She went home after shutting up the shop; home was “just a block or so away”: p 36. At home she said that she helped Wosif wash and put on his pyjamas, checked her bag and then went with her husband and Wosif in the car to the hospital: pp 36-37. She said that it took between 10 and 15 minutes to get to the hospital.

113 On the evidence referred to above, the likely inference is that the first contraction occurred after 9pm, but significantly before 10.45pm. No doubt, in hearing a trial some 22 years after the event occurred, there is some attraction in accepting the only documentary evidence as to timing. However, for reasons already given, there is significant doubt as to what precise event was recorded.

114 In assessing Mrs Kolled’s evidence, it must be accepted that the cross-examination was difficult to control or assess, as a result of the manner in which she answered questions. Given the tragic consequences of the birth, a degree of incoherence is understandable. Nevertheless, no reason was presented by the defendants as to why her evidence in respect of the various events which occurred on the night in question, following the first contraction, should be rejected. They were not inherently implausible: the proposition that she went to hospital immediately she felt the first contraction was, to a degree, implausible. It also required rejection of her evidence that at first contractions were coming at 10 minute intervals.

115 On the basis that she felt the first contraction at the shop, before the usual closing time and that she thereafter took the steps recounted above, it is likely that contractions commenced no later than 10pm. In this connection, the term “contraction” should be understood to mean an indication to the mother that she might be in or approaching labour, being a sign which (if properly advised) she should have assessed with the knowledge that she and her child would be at serious risk if she went into labour and should attend for a caesarean section before that happened.

116 On the basis that the first contractions occurred not later than 10pm, even assuming that it would have been necessary to close the shop, return home and collect her bag and then drive to the hospital, in circumstances where there was understood to be a degree of urgency involved, it was likely that she would have reached the hospital no later than 10.30pm. Whatever happened thereafter, the timing of the procedure would have come forward 30 minutes, by reason solely of her earlier arrival at the hospital.

117 Although it was accepted by the medical experts that it was appropriate for her to be assessed, both by Sister Shipley and Dr Booth, to check she was in established labour, there was no suggestion that their conclusions would have been different if reached half an hour earlier. The labour ward report indicated that blood was taken for cross-matching and a consent form signed at 11.20pm, 20 minutes after her admission. That was accepted as the time by which a decision had been made to proceed by way of caesarean section. Dr Booth gave evidence in chief that, had she known of the prior classical caesarean, the breech presentation would have been irrelevant and she would not have needed to undertake her own vaginal examination of Mrs Kolled: Tcpt, 16/06/06, p 741. If the necessary examinations had commenced at 10.30pm, the decision would have been taken before the operating theatres closed at 11pm and the staff went off duty.

118 His Honour accepted that Dr Booth called both the surgeon and the anaesthetist between 11.25 and 11.30pm. They arrived at the operating theatre at 12.10am, a delay of approximately 45 minutes. If the operating theatres had remained open and the staff had remained at the hospital, that delay should have been reduced. That conclusion follows from a consideration of the only evidence directly relevant to the attendance of on-call medical staff at Bankstown Hospital in the relevant period.

119 Dr Booth gave evidence of making four telephone calls. The first was to her consultant, Dr Simpson, to confirm that her decision to proceed with a caesarean section was correct: p 731. She then rang the on-call anaesthetist to explain that there was a patient needing an emergency caesarean section who had had a previous caesarean and a breech presentation. The anaesthetist, Dr Hines, “didn’t feel happy going ahead – coming in, if I was just the only person present”: p 732. As a result, Dr Booth rang Dr Simpson again to obtain his agreement to come in to the hospital: p 732. She then rang the anaesthetist back and obtained his agreement to come in as soon as possible. She was asked in chief, after noting that there would have been no need for a vaginal examination of Mrs Kolled (p 741):

120 In cross-examination, Dr Booth was pressed with the evidence of Dr Zipser that, when on call, he would take 35 minutes to reach the hospital and that everything would be set up and ready to go when he arrived. She did not disagree with that assessment of time, but noted that “it would depend on which anaesthetist was on call, and where they lived”: p 757. She then gave the following evidence:

121 There is force in Dr Booth’s evidence. How long the anaesthetist and surgeon would have taken to reach the hospital would have undoubtedly depended upon the distance of their homes from the hospital, their circumstances when they received the call and the sense of urgency in respect of the proposed procedure. It could be inferred from Dr Booth’s evidence that the anaesthetist at least did not consider the matter urgent or indeed one requiring his attendance at all, on receiving the first call. Dr Booth hypothesised that they may have been in bed when the calls came, but there was no evidence of that. Even if they had been, it was less likely that they would have been had the calls come 30 minutes earlier. It is likely that, had the critical information been available at Bankstown Hospital on the night in question, there would not have been a need for four telephone calls by Dr Booth, both surgeon and anaesthetist would have treated the matter with a degree of urgency which was not in fact displayed on the night in question, with the result that, taken cumulatively with the absence of need for a vaginal examination by Dr Booth, the delay would have been reduced by at least 10 minutes. This inference can more comfortably be drawn in the circumstance of neither Dr Hines nor Dr Simpson being called, nor there being any evidence as to their unavailability.

122 There was evidence of a dramatic decline in the plaintiff’s foetal heart rate in the course of the evening. His Honour summarised the evidence in the following passage at [124]:

“The foetal heart rate was recorded at 11pm. It was within the normal range at 140. A note made by Dr Booth and timed at 11.30pm refers to a foetal heart rate of 140. It was accepted in the conduct of the plaintiff’s case that this was a foetal heart rate measured by Dr Booth between 11.20pm and 11.30pm and not a reference back to the foetal heart rate measured at 11pm. At 11.40pm the foetal heart rate was monitored by Sister Shipley. It was found to be 80. This was below the normal range. Dr Booth then listened to the heart rate and concluded it evidenced a prolonged bradycardia (slowness of the heart rate).”

123 His Honour noted that after 11.40pm the foetal heart rate was monitored and dropped to 40: at [125]. That event was not recorded but was recalled by Dr Booth, who placed the time at about 12.10am, being the time of arrival of the surgeon and anaesthetist. When born, the plaintiff had no heart rate, was not breathing and required resuscitation: at [146]. His Honour then noted the following evidence:

“[147] Mr Clements gave evidence that, where there was a total or near total lack of oxygen, a foetus at 36 weeks gestation could survive 10 minutes without suffering permanent harm, would suffer irretrievable brain damage at 10–20 minutes and would be dead at 30 minutes. He accepted that foetal bradycardia of less than 20 minutes could be associated with significant brain damage.

[148] Dr Booth gave evidence that with a bradycardia of 80, brain damage would be beginning after 10 minutes and after 20 minutes there would probably be very severe damage.”

124 There was an issue as to when rupture occurred and as to whether it was an event or a process. It may be accompanied by a sudden severe pain: at [149]. Mrs Kolled made consistent complaints about feeling “knife-like pains in the abdomen” although her evidence varied significantly as to when they occurred. There was no record of any such complaint in the hospital notes, but his Honour accepted Dr Booth’s suggestion that they may have happened when the drop in foetal heart rate was noted and, as the matter then became urgent, were not noted: at [151]. There was no finding as to whether less severe pain in the abdomen could have preceded rupture.

125 His Honour concluded that rupture occurred at, or shortly before, 11.40pm. Because the plaintiff was alive when delivered some 50 minutes later, it seems likely, as Mr Clements hypothesised, that “initially there was only a partial rupture”: at [152].

126 His Honour accepted that “by midnight or shortly thereafter the plaintiff was in all probability grossly and irretrievably brain damaged”: at [152]. As the hospital records indicated, the plaintiff was delivered at 12.28am. On the conservative findings set out above, he would have been delivered no later than 11.48pm, namely 40 minutes earlier. On the accepted conclusion of the trial judge that the rupture occurred at 11.40pm, delivery would have taken place within 10 minutes of the rupture. That was a period within which it was likely that irreversible brain damage would be avoided. That likelihood may be accepted as more probable than not because the actual delivery of the plaintiff some 48 minutes later in a state permitting resuscitation indicated that the initial rupture was not complete and hence the period prior to irreversible brain damage would probably have exceeded 10 minutes.

127 It follows that the relevant causal connection was established with respect to each element of negligence found by his Honour and the harm suffered by the plaintiff. There was no challenge to the quantum of damages, which was largely agreed, subject to a small number of items which were assessed by the trial judge. Accordingly there should be judgment for the plaintiff in the amount of $7,281,319.

Apportionment

128 Because his Honour made findings in favour of the defendants at trial, he did not address the question of apportionment between them, as was required for disposal of their respective cross-claims. No written submissions were made in respect of apportionment and in the course of the appeal hearing, it appeared to be common ground between counsel for the respective respondents that the apportionment would be in the order of one-third:two-thirds, with each preferring the lower proportion. No respondent submitted that, if the Court were minded to give judgment for the plaintiff, the question of apportionment should be remitted.

129 On the findings reached above, Northern Health was responsible for a failure in 1978 on the part of the practitioners who undertook the first caesarean section to advise Mrs Kolled of its nature and give her clear warning as to the risks she would face with respect to a future pregnancy. Despite that failure, it should be inferred, on the probabilities, that critical information as to the nature of the procedure was recorded in the hospital operation notes.

130 The failure on the part of Bankstown Hospital was in not writing to the Preston Hospital in 1984 to inquire as to the nature of the procedure undertaken. Although it might well be sufficient to give a clear warning to a mother, the importance of accurate communication between professionals is of greater importance. This is recognised in the universal obligation for doctors to record information which may be material to future medical events. Because people tend to be mobile, it is both expected and required that inquiry and communication occur between those retaining records and those involved in future care and treatment. Because appropriate steps were taken at the Preston Hospital, but were not taken by Bankstown Hospital, Bankstown Hospital must bear primary responsibility for the loss. There is always a risk that communications with a lay person will be misunderstood to some degree and that recollections will fade over time. In these circumstances, communication with the patient should be taken as a necessary but lesser obligation.

131 The appropriate apportionment of responsibility is to attribute two-thirds to Bankstown Hospital and one-third to the Preston Hospital.

Orders

132 The amount of the judgment was calculated by the parties to include interest up to 28 June 2007, being the date of the trial judge’s orders. It would be possible to backdate the present judgment to that date, and it seems preferable to take that course, rather than require the parties to up-date their calculations. The schedule of damages, as agreed between the parties and as further assessed by the trial judge, is for a reasonable amount and is approved.

133 Costs will normally follow the event, but the parties should have an opportunity to make submissions as to any variation of the costs order, dependent upon possible offers of compromise, by notice of motion filed within 14 days of the delivery of judgment.

134 The appropriate orders are as follows:

(1) Allow the appeal and set aside the judgment and orders of the trial judge entered on 28 June 2007.

(a) give judgment for the plaintiff against the first, second and third defendants in the amount of $7,281,319 to take effect on and from 28 June 2007;

(b) on each cross-claim, order that liability be apportioned

(i) as to two-thirds against the first and second defendants,

(ii) as to one-third against the third defendant;

(c) order the defendants to pay the plaintiff’s costs of the trial.

(3) Order the respondents to pay the appellant’s costs of the appeal.

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Elayoubi v Zipser [2008] NSWCA 335

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CITATION:	ELAYOUBI v ZIPSER [2008] NSWCA 335
HEARING DATE(S):	25 and 27 June 2008
JUDGMENT DATE:	3 December 2008
JUDGMENT OF:	Allsop P at 1; Beazley JA at 2; Basten JA at 3
DECISION:	(1) Allow the appeal and set aside the judgment and orders of the trial judge entered on 28 June 2007. (2) In lieu thereof, (a) give judgment for the plaintiff against the first, second and third defendants in the amount of $7,281,319 to take effect on and from 28 June 2007; (b) on each cross-claim, order that liability be apportioned (i) as to two-thirds against the first and second defendants, (ii) as to one-third against the third defendant; (c) order the defendants to pay the plaintiff’s costs of the trial. (3) Order the respondents to pay the appellant’s costs of the appeal. (4) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of his costs of the appeal.

CATCHWORDS:	EVIDENCE – experts – medical practitioners – value of evidence of usual practice – whether inference available against second hospital for failure to call operating surgeon from first hospital - EVIDENCE – witnesses – inconsistencies between mother’s evidence at trial and history recorded by medical practitioners – whether inconsistencies significant - MEDICAL NEGLIGENCE – breach of duty of care – failure to warn of previous caesarean section encroaching into upper uterine segment – failure to record nature of previous section – failure to inquire about obstetric history from hospital where previous child born - TORTS – negligence – breach of duty of care – plaintiff born with spastic quadriplegia and intellectual disability – previous caesarean section encroaching into upper uterine section – failure to advise mother of risks of ruptured uterus – second hospital not inquiring of first hospital of nature of procedure - TORTS – negligence – causation – dual tortious conduct – breaks in chain of causation – factual and normative tests – whether first hospital’s failure to record previous section broke causal link between second hospital’s failure to inquire and plaintiff’s damage – whether request for previous obstetric records would have indicated true nature of previous section – whether second hospital’s failure to inquire broke causal link between first hospital’s failure to record and failure to warn mother - WORDS & PHRASES – “causation”
LEGISLATION CITED:	Civil Liability Act 2002 (NSW), s 5D Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
CATEGORY:	Principal judgment
CASES CITED:	Alphacell Ltd v Woodward [1972] AC 824 Athey v Leonati [1996] 3 SCR 458 Chapman v Hearse [1961] HCA 46; 106 CLR 112 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lamb v Camden London Borough Council [1981] QB 625 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 McGhee v National Coal Board [1973] 1 WLR 1 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Ruddock v Taylor [2003] NSWCA 262; 58 NSWLR 269 Snell v Farrell [1990] 2 SCR 311
TEXTS CITED:	Professor A L Goodhart, “Appeals on Questions of Fact” (1955) 71 LQR 402 at 413 Hart and Honoré, Causation in the Law, (2nd ed, OUP, 1985), Ch VIII Stapleton J, “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 at 394-395 Trindade, Cane and Lunney, The Law of Torts in Australia (4th ed, OUP, 2007) pp 556-558
PARTIES:	Kaled Elayoubi BHNF Taman Kolled (Appellant) Dr Gabriel Zipser (First Respondent) South Western Sydney Area Health Service (Second Respondent) Northern Health (Third Respondent)
FILE NUMBER(S):	CA 40645/07
COUNSEL:	A S Morrison SC/A D Campbell (Appellant) D J Higgs SC/J Lonergan (First and Second Respondents) M Bozic SC/I Butcher (Third Respondent)
SOLICITORS:	Gerard Malouf & Partners (Appellant) Ebsworth & Ebsworth (First and Second Respondents) Phillips Fox (Third Respondent)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20260/01
LOWER COURT JUDICIAL OFFICER:	Hislop J
LOWER COURT DATE OF DECISION:	28 June 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Elayoubi BHNF Kolled v Zipser [2007] NSWSC 587