Ellis (by his next friend Christopher Graham Ellis) v East Metropolitan Health Service
[2018] WADC 36
•9 MARCH 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ELLIS (by his Next Friend CHRISTOPHER GRAHAM ELLIS) -v- EAST METROPOLITAN HEALTH SERVICE [2018] WADC 36
CORAM: GETHING DCJ
HEARD: 4-21 SEPTEMBER & 3 NOVEMBER 2017
DELIVERED : 9 MARCH 2018
FILE NO/S: CIV 2206 of 2012
BETWEEN: COOPER ELLIS (by his next friend CHRISTOPHER GRAHAM ELLIS)
Plaintiff
AND
EAST METROPOLITAN HEALTH SERVICE
Defendant
Catchwords:
Medical negligence - Failure to comply with competent professional practice in managing a complex birth - Breach of duty - Causation - Use of inferential reasoning - Damages for future care - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5B, s 5C, s 5D, s 5PB
Result:
Judgment for the plaintiff against the defendant
Damages assessed
Representation:
Counsel:
Plaintiff: Mr G Droppert & Mr R McCabe
Defendant: Mr G R Donaldson SC
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Downings Legal
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth [2011] HCA 53; 246 CLR 36
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111
Belhaven and Stenton Peerage [1875] 1 App Cas 278
Bennett v Minister of Community Welfare [1992] HCA 27(1992) 176 CLR 408
BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Brakouliasv Karunaharan (Ruling) [2012] VSC 272
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 235 CLR 103
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Cole v P & O Ports Ltd [2002] WASCA 157
Commonwealth v McLean (1996) 41 NSWLR 389
Cook v Cook [1986] HCA 73; (1986) 162 CLR 376
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Dobler v Halverson (2007) 70 NSWLR 151
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510
Fazio v Fazio [2012] WASCA 72
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Golden Eagle International Training Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Gray v Richards [2014] HCA 40; (2014) 253 CLR 660
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Halverson v Dobbler [2006] NSWSC 1307
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Moylan (1997) 18 WAR 492
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Kay v Ayrshire and Arran Health Board [1987] 2 All ER 417
Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90
Kerr v Minister for Health [2009] WASCA 32
King v Western Sydney Local Health Network [2013] NSWCA 162
Leheste v The Minister for Health [2012] WADC 92
Livingstone v Rawyards Coal Company (1880) 5 App Cas 25
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Lyle v Soc [2009] WASCA 3
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd [1991] HCA 12 (1991) 171 CLR 506
Martin v Minister for Health [2016] WADC 15
McGhee v National Coal Board [1973] 1 WLR 1
McKenna v Hunter & New England Local Health Districts (2013) Aust Torts Report 82-158; [2013] NSWCA 476
MD v Sydney South West Area Health Service [2009] NSWDC 22
Morris v Zanki [(1997) 18 WAR 260
Mustac v Medical Board of Western Australia [2007] WASCA 128
Nominal Defendant v Owens (1978) 22 ALR 128
Panagoulias (by his next friend Fiona Averil Panagoulias) v East Metropolitan Health Service [No 4] [2017] WADC 118
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Port Stephens Shire Council v Theodorakakis [2006] NSWCA 70
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reynolds v The State of Western Australia [No 2] [2013] WADC 176
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Shorey v PT Limited [2003] HCA 27; (2003) 197 ALR 410; (2003) 77 ALJR 1104
South Metropolitan Health Service v Westcott [2016] WASCA 225
St George Club Ltd v Hines (1961) 35 ALJR 106
State of Western Australia v Watson [1990] WAR 248 286
Strong v Woolworths Limited t/as Big W [2012] HCA 5; 246 CLR 182
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Sydney South West Area Health Service v MD (2009) 260 ALR 702
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 26
Van der Velde v Halloran [2011] WASCA 252
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Waverley Council v Ferreria [2005] NSWCA 418
Westcott v Minister for Health [2015] WADC 122
Wright v Minister for Health [2016] WADC 93
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Contents
1. Introduction
2. Issues arising for determination
2.1 Matters not in issue
2.2 Issues arising for determination
2.3 Experts
3. Background medical terms – liability
3.1 Overview
3.2 Foetal cardiotocography monitoring
3.3 Terms used to record the progress of birth
3.4 Vacuum extraction devices – explanation
4. What relevant information did Dr Amira know, or ought he have known, prior to attending Bentley Hospital on 24 August 2009?
4.1 Issues in dispute
4.2 Facts which are not in issue
4.3 Dr Amira's knowledge as to the size of the baby
4.4 Dr Amira's knowledge as to Ms Hoglin's BMI
4.5 Summary of findings
5. What took place during Cooper's delivery?
5.1 Overview
5.2 Facts not in issue - events of 24 August 2009 until 8.30 pm
5.3 Facts not in issue - events of 24 August 2009 between 8.30 pm and Cooper's birth
5.4 Facts not in issue - events of 24 August 2009 after Cooper's birth
5.5 Did the foetal head move between 4.30 pm and 8.40 pm?
5.6 Was the baby in foetal distress at any point prior to 9.12 pm?
5.7 At what station was the foetal head at the point in time when Dr Amira commenced the instrumental delivery?
5.8 Why did Dr Amira decide to undertake a vacuum delivery?
5.9 How did the delivery progress?
5.10 Summary of factual findings
6. What is the scope of the duty of care that the defendant owed Cooper?
6.1 Overview
6.2 Standard of care
6.3 What is the status of the guidelines in evidence in determining widely accepted competent professional practice?
7. Did the defendant breach its duty of care in failing to suspect foetal macrosomia?
8. Did the defendant breach its duty of care in failing to perform an obstetric ultrasound which would have indicated the degree of foetal macrosomia?
9. Did the defendant breach its duty of care by attempting instrumental delivery when the foetal head was mid-cavity?
10. Did the defendant breach its duty of care by attempting instrumental delivery in circumstances where there had been no descent of the foetal head between the vaginal examination at 4.30 pm and that performed at 8.40 pm?
10.1 Overview
10.2 KEMH Guidelines
10.3 Royal College Guidelines
10.4 Australian College Guidelines
10.5 Did Dr Amira fail to act in accordance with competent professional practice?
10.6 Did the defendant breach its duty of care?
11. Did the defendant breach its duty of care by not performing the instrumental delivery in an operating theatre which was set up for an emergency caesarean section should the instrumental delivery have failed?
11.1 Overview
11.2 KEMH Guidelines
11.3 Royal College Guidelines
11.4 What should Dr Amira have known about the weight of Ms Hoglin's baby?
11.5 Dr Amira's evidence
11.6 Dr Lyneham's opinion
11.7 Dr Thompson's opinion
11.8 Competent professional practice
11.9 Did the defendant breach its duty of care?
12. Did the defendant breach its duty of care by continued attempts to deliver the baby when there was clear instrumental failure?
12.1 Overview
12.2 KEMH Guidelines
12.3 Royal College Guidelines
12.4 Australian College Guidelines
12.5 Dr Amira's evidence
12.6 Dr Lyneham's opinion
12.7 Dr Thompson's opinion
12.8 Competent professional practice
12.9 Did the defendant breach its duty of care
13. What injuries did Cooper sustain in the birth process?
13.1 Overview
13.2 PMH Medical Records – 25 August 2009 to 11 September 2009
13.3 Injuries which are not in dispute
13.4 Day 1 Ultrasound
13.5 Day 7 MRI
13.6 PMH Clinical assessment of hypoxic ischaemic encephalopathy
13.7 Determination on the level of hypoxic ischaemic encephalopathy
13.8 Summary of findings
14. Were any of Cooper's injuries at birth caused by a breach of a duty of care owed by the defendant?
14.1 Overview
14.2 Relevant law – CLA
14.3 What would have happened had there been no breaches?
14.4 Scope of liability
15. What are Cooper's residual impairments?
15.1 Overview
15.2 Physical development
15.3 Neurological and cognitive development
15.4 Cooper's Developmental and Cognitive Impairments
16. Are Cooper's Developmental and Cognitive Impairments sequelae of the birth injuries caused by the defendant's negligence?
16.1 Overview
16.2 Use of inferential reasoning to determine causation
16.3 Issues with 'scientific' evidence
16.4 2014 and 2015 MRI scans
16.5 Significance of the diagnosis of hypoxic ischaemic encephalopathy
16.6 The profile of Cooper's Developmental Issues
16.7 Other potential causes of Cooper's Developmental and Cognitive Impairment
16.8 Determination as to factual causation
16.9 Scope of liability
17. What heads of damages are not in issue?
18. What measure of damages is Cooper entitled to for future care?
18.1 Plaintiff's claim
18.2 Relevant law
18.3 Types of paid assistance
18.4 First stage – judgment to 2021
18.5 Second stage 2022 to 2027
18.5 Third stage – 2028 to remainder of expected life
18.6 Damages assessed
19. What measure of damages is Cooper entitled to for trustee's fees?
20. What final orders are appropriate?
GETHING DCJ:
Introduction
Cooper Ellis was born on 24 August 2009 at Bentley Hospital. The pregnancy of his mother, Michelle Hoglin, was uneventful. Cooper was doing well in the labour at Bentley Hospital up until the point in time Ms Hoglin's obstetrician, Dr Hamza Amira, decided to undertake an instrumental delivery, specifically one using vacuum extraction devices. When Cooper was delivered some 30 minutes later, he was in a very poor state, with concerns that he would not survive. He sustained brain injuries as a result of the birth process. During the next eight years as he has grown up, he has experienced developmental and cognitive impairments. It is likely that these impairments will continue into his adulthood.
As the plaintiff in this action through his next friend and father Christopher Ellis, Cooper claims that his injuries and subsequent impairments were caused by his traumatic birth process. He is critical of the initial decision by Dr Amira to undertake an instrumental delivery, in particular one in a labour ward and not in an operating theatre. He is also critical of the decision by Dr Amira not to abandon the instrumental delivery part way through when it was clear that delivery was not imminent.
Cooper has sued the defendant, the East Metropolitan Health Service, which is responsible for the Bentley Hospital, including the actions of Dr Amira.
The defendant denies that Dr Amira was negligent. Whilst accepting that the traumatic birth process caused Cooper some injuries, it says that these injuries are not responsible for Cooper's developmental and cognitive impairments.
For the reasons which follow, I find that Dr Amira was negligent in the manner in which he delivered Cooper, and that the defendant is vicariously responsible for his negligence. I also find that this negligence caused both the injuries Cooper sustained in the birth process and his subsequent developmental and cognitive impairments. I assess damages at $3,972,435, together with an allowance for trustee's fees.
Issues arising for determination
2.1 Matters not in issue
It is not in issue that the defendant, the East Metropolitan Health Service, managed and controlled Bentley Hospital, and is the appropriate defendant in this action.
It is not in issue that at all material times Dr Amira and each nurse involved in the care of the Cooper and his mother were duly authorised agents or employees of the defendant, acting within the scope of their responsibilities, and that the defendant is vicariously responsible for their actions.
Nor is it in issue that, at all material times, the defendant owed a duty of care to Cooper to take reasonable care in the assessment, advice and treatment to his mother such as to avoid a reasonably foreseeable risk of harm occurring to him.[1]
[1] Statement of claim [4]; defence [3].
The parties tendered by consent a number of lever arch files containing medical records, reports of treating medical practitioners and allied health professionals, expert reports and policy documents. A number of academic papers and school reports were also tendered. The parties agreed that the documents tendered could be taken as proof of the facts recorded in their contents. Specifically, the parties agreed that where a medical record or report contained an observation as to the condition of either Cooper or his mother, this observation can be taken as proof of the fact that Cooper or his mother, as the case may be, was in this condition at the time the observation was made.[2]
2.2 Issues arising for determination
[2] ts 112.
The issues arising for determination stem primarily from the particulars of negligence set out in the amended statement of claim. The plaintiff alleges that Cooper's injuries were caused by the negligence and/or breach of duty of care of the defendant in that the defendant, its employees, servants and agents:[3]
[3] Plaintiff's amended statement of claim, par 29.
(a)Failed to suspect foetal macrosomia;
(b)Failed to perform an obstetric ultrasound which would have indicated the degree of foetal macrosomia;
(c)Failed to perform a caesarean section given the foetal macrosomia;
(d)Failed to perform instrumental delivery in an operating theatre which was set up for an emergency caesarean section should the instrumental delivery have failed, such failure being contrary to King Edward Memorial Hospital Clinical Guidelines, including Guideline 5.11, which applied at the Hospital;
(e)Attempted instrumental delivery when the foetal head was mid‑cavity;
(f)Attempted instrumental delivery in circumstances where there had been no descent of the foetal head between the vaginal examination at 16:30 hours and that performed at 20:40 hours;
(g)Continued to attempt to deliver the baby when there was clear instrumental failure;
(h)Failed to apply supra pubic pressure when performing the McRoberts manoeuvre.
In closing submissions, counsel for the plaintiff said that the plaintiff was not relying on the breaches in par (c) and par (h).[4] On the evidence, for ease of analysis I have slightly reordered these allegations.
[4] Plaintiff's closing submissions, par 176.
The plaintiff submits that the pleaded allegations of breach it relies on 'are appropriately read as a whole and identify features of the management of [Ms Hoglin's] pregnancy including delivery of [Cooper] which the plaintiff claims constitutes a breach of duty to exercise the duty owed to the required standard'. The submissions continue that to 'read each allegation in isolation in the context of the expert evidence that it is the whole of the circumstances (which are then set out as serial allegations of breach) is an approach to determining liability which leads the Court into error'.[5]
[5] Plaintiff's closing submissions, pars 176 - 177.
I both disagree and agree with this comment. I disagree because the particulars perform the important roles of informing the defendant of the case it has to meet and determining what evidence is relevant.[6] It is necessary for the plaintiff to establish a particular of negligence as the foundation for a finding of a breach of a duty of care.
[6] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664 (judgment of the court).
I agree with the observation that each allegation needs to be considered as part of the whole of the circumstances which occurred on the evening of 24 August 2009. This is because, in the present case, there are a series of interrelated failures by Dr Amira. As is apparent from the factual findings in Part 5 to Part 12, each decision in breach of competent professional practice sequentially compounded the seriousness of the situation facing baby Cooper in the birth process. This is of particular relevance when the issue of causation is being considered (see [728], [734] below).
Causation and some heads of damage are also in issue.
Seventeen issues arise for determination in this case:
•What relevant information did Dr Amira know, or he ought to have known, prior to attending Bentley Hospital on 24 August 2009?
•What took place during Cooper's delivery?
•What is the scope of the duty of care that the defendant owed Cooper?
•Did the defendant breach its duty of care in failing to suspect foetal macrosomia?
•Did the defendant breach its duty of care in failing to perform an obstetric ultrasound which would have indicated the degree of foetal macrosomia?
•Did the defendant breach its duty of care by attempting instrumental delivery when the foetal head was mid-cavity?
•Did the defendant breach its duty of care by attempting instrumental delivery in circumstances where there had been no descent of the foetal head between the vaginal examination at 4.30 pm and that performed at 8.40 pm?
•Did the defendant breach its duty of care in failing to perform the instrumental delivery in an operating theatre which was set up for an emergency caesarean section should the instrumental delivery have failed?
•Did the defendant breach its duty of care by continued attempts to deliver the baby when there was clear instrumental failure?
•What injuries did Cooper sustain in the birth process?
•Were any of Cooper's injuries at birth caused by a breach of a duty of care owed by the defendant?
•What are Cooper's residual impairments?
•Are Cooper's residual impairments sequelae of the birth injuries caused by the defendant's negligence?
•What heads of damage are not in issue?
•What measure of damages is Cooper entitled to for future care?
•What measure of damages is Cooper entitled to for trustee's fees?
•What final orders are appropriate?
At the outset it is instructive to explain some of the medical terms and concepts that arise in this case. This is done in Part 3. The issues set out above are dealt with in Part 4 to Part 20.
2.3 Experts
The plaintiff adduced expert evidence from eight witnesses.
Dr Robert Lyneham is a Consultant Emeritus at Royal Prince Alfred Hospital and Specialist in the areas of Obstetrics and Gynaecology.
Dr Mark Tracy is a Senior Newborn Intensive Care Specialist and Clinical Senior Lecturer of Paediatrics and Child Health at the University of Sydney.
Dr Ross Keenan is a Consultant Radiologist and Clinical Senior Lecturer of Radiology at the University of Otago.
Dr Carmela Pestell is a Clinical Psychologist, Clinical Neuropsychologist, and Associate Professor and Director of the Robin Winkler Clinic at the University of Western Australia.
Ms Jane Burns is a Rehabilitation Consultant and Managing Director of the Lighthouse Health Group, with professional training and qualifications in Clinical Nursing specialising in Paediatrics and spinal injuries.
Ms Lindy Williams is a Senior Occupational Therapist at the Lighthouse Health Group and Westmead Children's Hospital.
Ms Elizabeth Shannon is a Specialist Neurological Physiotherapist with the Lighthouse Health Group and Australian Rehabworks.
Ms Michelle Quail is a Senior Lecturer in the School of Psychology and Speech Pathology at Curtin University, and a Senior Speech Pathologist and Practice Manager at 'Next Challenge' in Perth.
The defendant called five expert witnesses to give evidence.
Dr Graeme Thompson is a Clinical Lecturer in Reproductive Medicine at the University of Western Australia and Consultant Gynaecologist at the Concept Fertility Centre.
Professor Michael Ditchfield is, amongst other current appointments, the Head of Paediatric Imaging at Monash Health, a Specialist Paediatric Radiologist, and a Professor of Paediatric Imaging at Monash University.
Professor Rodney Hunt is a Consultant Neonatologist and Director of the Department of Neonatal Medicine at the Royal Children's Hospital in Victoria. He is also an Associate Professor at the University of Melbourne, and a Senior Research Fellow at Murdoch Children's Research Institute.
Dr Tien Do is a Senior Paediatric Neuropsychologist with the Neurosciences Unit in Mount Claremont and a Clinical Neuropsychologist with NeuropsychEd Consultants in Subiaco.
Ms Ceri Pass is a registered Occupational Therapist currently working within the State's Head Injury Unit in Western Australia.
No issue was taken with the expertise of each of these witnesses, and I find them to have been duly qualified to have given the opinions which they did.
The plaintiff also called Dr Shripada Rao who was Cooper's treating Neonatal Physician and Dr Thai Nguyen, a Paediatric Radiologist who reported on an MRI scan undertaken when Cooper was seven days old. To the extent that Dr Rao and Dr Nguyen gave opinion evidence, no issue was taken with their expertise, and I find them to have been duly qualified to have given the opinions which they did.
From time to time a witness giving expert evidence would decline to opine on a particular matter on the basis that it was outside their particular area of expertise.
There are significant differences in the opinions given by the experts called by each party. There is no rational basis to prefer the opinion of one particular expert over another based on relative differences in their respective curriculum vitae. Rather, as will become apparent, there are a number of issues on which there are, it seems to me, defensible differences in opinion. To the extent that it was necessary to resolve these differences, the outcomes turn on the specific factual context in which the difference of opinion arose.
Background medical terms – liability
3.1 Overview
Before considering what in fact occurred prior to and at the delivery of Cooper, it is instructive to set out some definitional and explanatory material on three areas of the medical evidence: foetal cardiotocography or 'CTG' monitoring, the terms used to record the progress of birth and some background in relation to vacuum extraction devices. Most of the findings in this part come from the evidence of Dr Lyneham, from both his initial report dated 4 October 2011[7] and his oral evidence. There was no challenge to this evidence. I make factual findings in terms of this evidence. Where necessary, I have supplemented the evidence by reference to Mosby's Dictionary of Medicine, Nursing & Health Professions.[8]
3.2 Foetal cardiotocography monitoring
[7] Exhibit 3, tab 3.
[8] Harris P, Nagy S, Vardaxis N (eds), Mosby's Dictionary of Medicine, Nursing & Health Professions (2013, 3rd ANZ Edition, Elsevier).
The basic principle of intrapartum[9] monitoring is to detect developing foetal hypoxia, hypoxia being inadequate oxygen tension at the cellular level.[10] The body's initial response to chronic or slowly developing hypoxia is to increase cardiac output and redistribute this to the brain and heart. The increase in cardiac output is achieved by an increase in heart rate. This may be followed by a reduction in heart rate variability. Continued and worsening hypoxia will eventually result in heart rate decelerations. By contrast, acute hypoxia, initially results in a decrease in foetal heart rate. Metabolically, progressive foetal hypoxia results firstly in a respiratory acidaemia and secondly in a metabolic acidaemia with tissue injury. Acidaemia refers to decreased pH status of the blood or abnormal acidity in the blood.[11] Dr Lyneham observes that:[12]
… the fundamental principle is to avoid acidaemia in the infant, for it is acidaemia which causes tissue injury. It is not possible to have tissue‑injuring hypoxaemia and acidaemia without changes to the fetal heart rate pattern.
[9] Meaning pertaining to the period of labour and birth: Mosby's (922).
[10] Mosby's (860).
[11] Mosby's (18).
[12] Exhibit 3, tab 3, page 12.
A CTG is an electronic recording of the baby's heartrate. This form of monitoring involves placing a band around the mother's abdomen with recording devices attached. The CTG monitor provides two outputs. The first is an audible noise of the foetal heart rate. The second is the CTG trace which is a graphical representation of results of the CTG monitoring. The CTG trace has two parts. The upper part is the heart rate of the baby. The lower shows the contractions of the mother.
Dr Lyneham explained that there are four features of the CTG trace. The first is the baseline rate. This is the average foetal heart rate between accelerations and decelerations. A normal baseline is 110 to 160 beats per minute. The second is the variability of the trace, or the 'wriggly‑ness' of the trace.[13] This is the variation in the baseline rate over a minute, excluding accelerations and decelerations. There should be a variation of at least 5 bpm. The third is decelerations, or falls in the heartrate, from the baseline. In order to be significant, a deceleration must consist of a slowing of the foetal heart rate of at least 15 bpm for at least 15 seconds. The fourth is accelerations or reactivity. Accelerations of the foetal heartbeat are completely normal, and are a manifestation of a healthy baby.
[13] ts 467.
Foetal heart rate traces are categorised into 'normal', 'suspicious' and 'pathological', as follows:
Category
Definition
Normal
A cardiotocograph where all four features fall into the reassuring category.
Suspicious
A cardiotocograph whose features fall into one of the non‑reassuring categories and the remainder of the features are reassuring.
Pathological
A cardiotocograph whose features fall into two or more non‑reassuring categories or one or more abnormal categories.
This table is to be read with the following table:
Feature
Baseline (bpm)
Variability (bpm)
Decelerations
Accelerations
Reassuring
110-160
≥ 5
None
Present
Non-reassuring
100-109
161-180
< 5 for ≥ 40 but less than 90 minutes
Early deceleration
Variable deceleration
Single prolonged deceleration up to 3 minutes
The absence of accelerations with an otherwise
normal
cardiotocograph is of uncertain significance
Abnormal
<100
>180 Sinusoidal pattern
≥ 10 minutes
< 5 for ≥ 90 minutes
Atypical variable decelerations
Late decelerations
Single prolonged deceleration
> 3 minutes
In cases where the CTG falls into the suspicious category, conservative measures should be used. In cases where the CTG falls into the pathological category, management has to be undertaken to either reverse what is occurring or deliver the baby.[14]
[14] ts 471.
Foetal tachycardia refers to a condition in which the heart contracts at a rate greater than 160 beats a minute or more for longer than 10 minutes.[15]
[15] Mosby's (671).
Foetal brachycardia refers to a condition in which the heart rate is abnormally slow, at less than 100 beats a minute.[16]
3.3 Terms used to record the progress of birth
[16] Mosby's (670).
In the context of this case, four key terms were referred to which recorded the progress of the birth of Ms Hoglin's baby, being the station, level, degree of caput and degree of moulding. Each of these is recorded in a document known as a partogram.[17] This is a graphical representation of the mother's labour. In the present case, it is a two page document of A3 size. It has various tables and sections to record information relevant to the labour and birth. In the present case, as I understand is common practice, it was progressively annotated as the labour progressed.
[17] Exhibit 1, tab 20.
The first term is the 'station'. This term is used to describe where the foetal head is in the descent through the pelvis. Dr Lyneham described it as the most important way to tell how the head is descending through the pelvis as it reflects how the actual head is coming through the pelvis. The 'landmark' used is the ischial spines, two promontories on the ischial bone of the pelvis. When a vaginal examination is done, these little protuberances can be felt quite readily. Station zero is where the leading part of the foetal head has reached a level of the ischial spine.[18]
[18] ts 454 (Lyneham); ts 1017 (Parry).
Dr Lyneham explained that the absolute essential thing for a vaginal delivery is that the widest part of the foetal head (being the biparietal diameter which is between the parietal bones) must traverse the narrowest part of the pelvis, (which is the brim of the pelvis). When the widest part, the biparietal diameter, is just coming through the brim of the pelvis, the leading part of the head will reach the ischial spines, being station zero. At station zero, the head is just engaged, which is an absolute requirement for vaginal delivery. The measurements of the 'stations' beyond station '0' are '+1' (plus one), '+2' (plus two) and so on until '+5' (plus five), each subsequent station representing a further one centimetre movement of the head below the ischial spines. The head is fully down around station plus five. Dr Lyneham explained that if the head is above station zero, and under some circumstances above station plus one, vaginal delivery must not be attempted.
The second term is the 'level'. This refers to the level of abdominal palpation, being the amount of the baby's head which is palpable abdominally, that is, the amount of head which is able to be felt above the pelvis. It is measured in fifths. So a measure of one-fifth means that one‑fifth of the baby's head is able to be felt above the pelvic brim, in turn meaning that the other four‑fifths are coming down into the pelvis. Because head sizes vary and pelvis shapes vary, the fact that none of the head may not be palpable abdominally, does not reliably indicate how low it will be on vaginal examination. Accordingly, as Dr Lyneham explained, if none of the head is palpable abdominally, 'you don't know whether it's just engaged or about to fall out. You don't know. But you use other ‑ other factors to determine that'. [19]
[19] ts 506 - 507 (Lyneham); ts 1018 (Parry); ts 1505 (Thompson).
The third term is 'caput'. Caput is soft tissue swelling on the baby's head that develops when a labour is prolonged and when there is some degree of obstruction to the head coming through the pelvis. It is due to the head being forced down by the contractions onto the cervix, which is gradually dilating during each contraction as the head is pushed down on the cervix. The blood flow of the baby's scalp goes into the part below the cervix, but the blood and fluid cannot escape back up, giving rise to an increase in swelling on top of the baby's head, which can be very substantial.[20]
[20] ts 455 (Lyneham); ts 1017 (Parry); ts 1505 (Thompson).
Dr Lyneham explained that caput is not necessarily a problem and can be part of a normal labour, but that it is an important clinical finding as part of the whole situation being assessed. This is because it indicates that there is likely to be some degree of difficulty or obstruction of the baby's head coming through. If a woman is having a smallish baby, say three kilograms, and she has a very generously‑sized pelvis and she is in good labour, there may not be caput. As the baby's head increases in size, so the difficulty of the labour increases. As the duration of the labour continues, caput is a finding which will occur, something that will be found in a difficult labour.
The station is measured from the leading part of the bony skull, not the caput. It can be more difficult with a caput to know where the bony part of the skull is.
The fourth term is 'moulding', described by Dr Lyneham as 'another part of nature's assistance in women delivering babies'.[21] If the head is biggish for the mother's pelvis, it may well be that that particular size of head cannot come through the pelvis, so as the labour continues, the head actually changes shape. The lower part of the head becomes more elongated as it is being pushed through the pelvis, which can give rise to an overlapping of the bones to allow the head to come through. Moulding can be quite normal, but it is another manifestation of a labour that is difficult as it is a tight fit, and that needs to fit into the whole clinical picture.[22]
[21] ts 455(Lyneham); ts 1017 (Parry).
[22] ts 456 (Lyneham).
Another part of the partogram records the contractions. Three aspects are assessed: strength, duration and frequency.
Strength refers to the strength of the contractions, and results are recorded as either 'M' for moderate or 'S' for strong.[23]
[23] ts 469 (Lyneham).
Duration refers to the duration of the contractions, and results are recorded in seconds.[24]
[24] ts 469 (Lyneham).
Frequency refers to the frequency of the contractions. It is important that the contractions should not be more frequent than every two minutes, as time is needed between contractions to allow blood flow through the placenta to be restored to supply oxygen to the baby.[25]
3.4 Vacuum extraction devices – explanation
[25] ts 469 (Lyneham).
Baby Cooper was delivered using two different vacuum extraction devices. Vacuum extraction involves a cup being affixed to the back of the baby's head and held there by vacuum or suction pressure. Dr Lyneham described vacuum extraction as a 'well established technique to assist vaginal delivery'.[26]
[26] Exhibit 3, tab 3, page 15.
The vacuum cup is placed at a specific point in the back of the head of the baby. The positioning is significant as it has to be put in what is called the 'flection point'. The flection point is in the midline three centimetres anterior of the posterior fontanelle, over the sagittal suture, and six centimetres back from the anterior fontanelle. When traction is applied and the head of a baby is pulled during vacuum extraction, the baby's head is tucked down towards its chin, so that the smallest diameter of its head can come through the pelvis. If the cup is not applied over the flection point, the baby's head will not be appropriately flexed; meaning the diameter of the head to come through the pelvis will be bigger. This in turn increases the potential for the procedure to fail and the risk of injury to the baby.[27]
[27] ts 481 (Lyneham).
Where a vacuum extraction is to be performed, the mother will be on her back with her legs in stirrups.
The pulls with the vacuum extraction device are timed to coincide with the contractions. The midwife will be palpating the mother's abdomen, feeling for the contractions. When the contraction is identified, the mother is told to push. As the mother pushes with the contraction, the doctor pulls with the vacuum extraction device. Once the contraction ceases, the doctor will cease pulling and wait for the next contraction.
Occasionally, the cup will fall off, for example where the baby has a lot of hair.
The first vacuum extraction devices had a metallic cup.[28] Dr Lyneham explained that a lot of pressure can be exerted during the vacuum extraction process. Metallic cups were quite sharp so when used there was always the chance that trauma and swelling would be inflicted upon the baby's head, especially if there is caput present.[29] Over the years, a number of flexible, softer, cups have been developed. However, metallic cups do not detach from heads as often as soft suction cups.
[28] ts 1205 (Amira).
[29] ts 457 (Lyneham).
In the present case, two types of vacuum extraction device were used, a Kiwi cup and a Silastic cup.
Dr Lyneham described the Kiwi cup as a smaller, good fitting cup with a good system of manually developing the pressure, and flexible instruments for applying the pressure, and so less traumatic; a good brand which is very frequently used. The Kiwi cup has a smaller suction cup than the Silastic cup, about 58 or 60 cm, as opposed to 65cm.[30] The plastic is hard. On occasion the cup will not seal properly and will pop off. The suction pressure is generated by hand. The Kiwi cup is considered to be less intrusive for the mother because it is smaller and flexible. It is also thought that it is less likely to cause any damage to the baby. However, because of its small size, a Kiwi cup is more likely to detach than other types of cup.
[30] ts 481 (Lyneham).
Dr Amira had only been using the Kiwi cup for 6 to 12 months prior to Cooper's delivery.[31]
[31] ts 1204 - 1205 (Amira).
The second type, or brand, of soft cup was a Silastic cup. The Silastic cup is, as I have noted, bigger than the Kiwi cup so therefore more vacuum pressure can be achieved, and more traction can be applied. It has been in use since around 2000.
What relevant information did Dr Amira know, or ought he have known, prior to attending Bentley Hospital on 24 August 2009?
4.1 Issues in dispute
The plaintiff does not call into question any aspect of the antenatal care given to Ms Hoglin prior to 24 August 2009.
The antenatal care is relevant for two purposes. The first is to provide the context for the events which occurred on 24 August 2009, being the day Cooper was delivered.
The second is as a source of the information which Dr Amira knew, or ought to have known, when he attended Bentley Hospital on the morning of 24 August 2009. In this regard there are two relevant facts: the expected weight of Ms Hoglin's baby and Ms Hoglin's Body Mass Index or BMI. Both these factors are relevant to the decision as to whether, if an instrumental delivery is to be undertaken, it should be undertaken in the labour ward or in a fully staffed operating theatre. This issue is dealt with in Part 11.
4.2 Facts which are not in issue
The context for the events which occurred on 24 August 2009 is sufficiently set out in the facts relating to antenatal care which are not in issue. Those facts are set out in this section.
Ms Hoglin and Mr Ellis attended the antenatal clinic at Bentley Hospital on six occasions between 7 April 2009 and 6 August 2009.[32] On each of these occasions, Ms Hoglin was seen by a midwife.
[32] Exhibit 1, tab 4.
On 1 April 2009 Ms Hoglin had her 20 week ultrasound.[33] The finding was that there was a single live intrauterine foetus present. No obvious foetal anomaly was seen.
[33] Exhibit 1, tab 3.
Ms Hoglin and Mr Ellis attended four appointments with Dr Amira at his consulting rooms at the Forrest Lakes Medical Centre: [34]
•15 April 2009
•8 June 2009
•7 August 2009
•20 August 2009.
[34] Exhibit 5, tab 1.
On each of these antenatal visits, Dr Amira, among other things, felt Ms Hoglin's stomach to determine how the baby was sitting in her stomach.
On Thursday 20 August, at around 6.45 pm, Ms Hoglin contacted Bentley Hospital by telephone. She complained of period like pain. Ms Hoglin was advised to stay at home and ring back later.[35] She did so at around 10.20 pm, again reporting period pain, and also lower back pain every 15 to 20 minutes.[36] She was again told to stay at home and ring back if concerned.
[35] Exhibit 1, tab 8.
[36] Exhibit 1, tab 9.
On Friday 21 August, at about 1.10 pm, Ms Hoglin contacted the Hospital by telephone. She was having contractions, and was advised to come to hospital.[37] She subsequently presented to the Hospital at around 1.45 pm, and was reviewed by a midwife.[38] The midwife noted a history of five minute mild to moderate contractions.[39] The midwife also noted: 'big baby'.[40] A vaginal examination was performed wherein the cervix was found to be 75% effaced and 3 cm dilated with a presenting vertex at station '-2'. A CTG was performed which showed that the baby had a baseline of 130 – 140 beats per minute with good variability, good reactivity and no decelerations. At around 2.25 pm Ms Hoglin was reviewed by Dr Amira. She remained in Bentley Hospital. At around 8.00 pm Ms Hoglin was again reviewed by Dr Amira. By that time, her labour had eased. The CTG trace did not indicate any cause for concern, and Ms Hoglin was discharged from the Hospital and went home.
[37] Exhibit 1, tab 10.
[38] Exhibit 1, tab 11.
[39] Exhibit 1, tab 11, 12.
[40] Exhibit 1, tab 12.
At some stage during Friday 21 August, Dr Amira had a telephone conversation about the progress of Ms Hoglin's labour with a Dr Vujcich, who was at the time a specialist obstetrician at Bentley Hospital. The outcome of this conversation was agreement between the two of them that Ms Hoglin was to be observed over the weekend, and induced on the Monday if she had not delivered. In accordance with the protocols of Bentley Hospital, Dr Amira had to obtain the approval of Dr Vujcich to induce Ms Hoglin, as this was to occur earlier than the 10 days over term prescribed in that protocol.
On Saturday 22 August at around 4.30 pm, Ms Hoglin rang Bentley Hospital and told the midwife that she was concerned that her baby was not moving. She was told to have a cold drink and something to eat, and ring back if concerned at 6.30 pm.[41] She rang back at 6.30 pm, informing the midwife that she had felt some foetal movement since the last call. She was initially told to stay at home and ring back if concerned, but later the midwife rang and asked her to come in for CTG monitoring.
[41] Exhibit 1, tab 14.
On 22 August at 7.45 pm Ms Hoglin presented to the labour ward of Bentley Hospital. On presentation she was reviewed by a midwife. She provided a history of reduced foetal movements during the day. A CTG was performed which was 'not reassuring but not sinister'.[42] Dr Amira was called at 9.25 pm and he came in to see her at 10.20 pm. He told Ms Hoglin that she could go home. He also told Ms Hoglin to come back to the hospital the following morning for further CTG monitoring and review.[43] Dr Amira drove her and Mr Ellis home (they had come to the hospital by taxi).
[42] Exhibit 1, tab 15.
[43] Exhibit 1, tab 15.
On Sunday 23 August at around 10.45 am, Ms Hoglin went back to Bentley Hospital for further CTG monitoring. She was reviewed by a midwife. The midwife noted that maternal observations were normal. On abdominal examination the uterine fundus was described as 'term'. A foetal CTG was performed and described as 'reactive with good foetal movement'.[44] Ms Hoglin was reviewed by Dr Amira. He performed a vaginal examination and found the cervix to be 3 cm dilated with the presenting vertex at station zero. Dr Amira told Ms Hoglin that she had been booked in for an induction of labour at 7.00 am on 24 August 2009.
[44] Exhibit 1, tab 16.
Mr Ellis attended each of these visits with Ms Hoglin.
Dr Lyneham did not make any criticism of the antenatal care provided to Ms Hoglin by either the midwives at Bentley Hospital or Dr Amira.[45] In particular, he was of the opinion that the management of Ms Hoglin during her visits to Bentley Hospital in the days prior to 24 August was appropriate, as was the decision to admit her for induction of labour on 24 August.[46] Dr Thompson was of the same opinion.[47] In particular, Dr Thompson was of the view that the decision on 23 August to induce on the following morning was quite reasonable considering that Ms Hoglin had reported reduced foetal movements, but the fact that it was the next morning was also reasonable because of the reassuring CTG.[48]
4.3 Dr Amira's knowledge as to the size of the baby
[45] ts 502 (Lyneham).
[46] Report dated 4 October 2011, exhibit 3, tab 3, page 5.
[47] ts 1476 (Thompson).
[48] ts 1477 (Thompson).
Ms Hoglin gave evidence that in the course of attending the antenatal clinic over the months prior to Cooper's birth, the nurses were telling her that she had a big baby, 'a few of them even stating that he looks to be like a 10‑pounder'.[49] She recalls similar comments being made by midwives over the weekend prior to Cooper's birth. Mr Ellis' evidence is in similar terms.
[49] ts 116.
Ms Hoglin also gave evidence that on occasion Dr Amira had told her that she was having a big baby. This included evidence that at the appointment with Dr Amira at his rooms on Thursday 20 August, Dr Amira told her that 'Cooper was large but Cooper and I were both healthy so it would be an easy birth'.[50] She also said that Dr Amira made a comment to the effect that her baby was big when he saw her on the evening of Saturday 22 August. Again, Mr Ellis' evidence is in similar terms.[51] He reiterated this evidence in cross‑examination, giving evidence that Dr Amira told them 'She's healthy. The baby's healthy. He's a biggish baby', and that everything was going to plan.[52]
[50] ts 116.
[51] ts 201, 204.
[52] ts 325 (Ellis).
There are various references in the notes from the antenatal clinic about the weight of Ms Hoglin's baby. However, Dr Amira did not have access to the notes from the antenatal clinic prior to attending the hospital on 24 August 2009.[53] Accordingly, these notes cannot be used as a basis for his actual knowledge, nor the knowledge he ought to have had on this date.
[53] ts 1209.
In evidence-in-chief, Dr Amira said of Ms Hoglin's baby: 'I thought it would be on the big side but I did not think it will be 4.5 kilos as in macrosomic'.[54]
[54] ts 1195.
In cross-examination, Dr Amira initially denied telling Ms Hoglin and Mr Ellis that the baby was a big baby,[55] but later conceded that he might have said that.[56] In the end in cross-examination, he accepted that he knew that the baby was a big baby: 'I knew it was a big baby. And I said before I did not think it would go beyond 4,000 grams'.[57]
[55] ts 1214.
[56] ts 1285.
[57] ts 1285.
Counsel developed the theme in cross-examination that Dr Amira had read the relevant guidelines in preparation for giving evidence and had adjusted his evidence accordingly:[58]
[58] ts 1209 - 1210.
Yes. And you agree that when the baby was born it weighed 4,590 grams, don't you?‑‑‑Yes.
And can I put to you that as a very experienced GP obstetrician, as at August 2009, you should have at least suspected that this was going to be a big baby?‑‑‑I suspected it was a biggish baby, and many people can - can miss a big baby.
See, you used the word 'biggish'?‑‑‑Yes.
And by that you mean you didn't think it was going to be over four‑and‑a‑half kilograms?‑‑‑No, I didn't think it was going to be that big.
Yes. But a baby that was much bigger than average but less than 4.5 kilograms, is that a fair description?‑‑‑I thought it would be less than 4 kilograms.
You thought it would be less than 4 kilos? Have you documented that anywhere?‑‑‑No, I haven't.
Can I suggest that you know that one of the triggers in relation to the - have you read the guidelines again in preparation for this case?‑‑‑Yes.
Has it been drawn to your attention that one of the guidelines suggests that a baby over 4,000 grams should proceed by way of a trial of instrumental delivery?‑‑‑Yes.
All right. And nowhere have you ever previously stated that you thought the baby was less than 4,000 grams. Not in any document that's in these proceedings?‑‑‑It is not usual practice to document that this is going to be that much, or I expect this to be that much.
All right. And I'm putting to you that the volunteering of the evidence that the baby - you thought the baby was going to be under 4,000 grams is evidence that you have just made up in order to fit within the guideline?‑‑‑That's not correct, sir.
In relation to conflicts between the evidence of witnesses, I am conscious of the need to limit my reliance on the appearances of witnesses as a basis for drawing conclusions about their truthfulness and reliability, and 'to reason to [my] conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events'.[59] Further as Heydon JA observed in Makita (Aust) Pty Ltd v Sprowles:[60]
It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over-egging the pudding. The test for the trier of fact is to separate the truthful parts from the rest.
[59] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31] (Gleeson CJ, Gummow and Kirby JJ); Fazio v Fazio [2012] WASCA 72 [42] - [44] (Murphy JA, with whom Pullin and Newnes JJA agreed).
[60] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [35].
With those comments in mind, I agree with the assertion made by counsel for the plaintiff that Dr Amira was embellishing his evidence as to the weight of the baby. In my view, his evidence-in-chief more accurately represents his state of mind at the time of Ms Hoglin's labour. The additional references to the baby being less than four kilograms, or not being more than four kilograms, are in my view, retrospective embellishments.
Accordingly, I find that at the time Ms Hoglin presented at Bentley Hospital on 24 August, Dr Amira knew that her baby was a big baby, but did not think that it would be bigger than four and a half kilograms.
Interestingly, as I have extracted at [88], Dr Amira used the word 'biggish' in cross-examination without being prompted by counsel.[61] This is the phrase that Mr Ellis recalled him using at an antenatal visit. Whilst this adds some veracity to the evidence of Mr Ellis, it is not necessary for me to make any specific factual findings as to what Dr Amira told Mr Ellis and Ms Hoglin at the antenatal visits.
4.4 Dr Amira's knowledge as to Ms Hoglin's BMI
[61] See also ts 1182, ts 1209.
When Ms Hoglin saw Dr Amira on 8 June, the nurse recorded her as weighing 85 kilograms, being 167 cm tall and having a BMI of 30.48. This information was recorded in Dr Amira's notes,[62] which he confirmed in evidence he had knowledge of.[63] The notes from his practice record Ms Hoglin's weight as being 89 kilograms at the time of the 7 August appointment, and 92 kilograms by the time of the 20 August appointment. I find Dr Amira to have had this knowledge.
[62] Exhibit 5, tab 1.
[63] ts 1265.
Dr Amira gave evidence that, aside from the note from the 8 June appointment, he did not record Ms Hoglin's BMI anywhere else in his notes. He commented that recording of the BMI is not routine in obstetric practice.[64]
[64] ts 1210 - 1211.
Ms Hoglin was weighed on her admission on 24 August, her weight being recorded on the partogram as being 91 kilograms. Dr Amira subsequently made notes on the partogram. I infer that he read the notes already on the partogram and so knew Ms Hoglin's weight.
In re-examination, Dr Amira accepted the proposition put to him by counsel for the defendant that a BMI recording on 8 June did not tell him what that BMI was going to be on 24 August.[65]
[65] ts 1291.
However, BMI is effectively a ratio of height to weight.[66] As there is no suggestion that Ms Hoglin's height changed during the course of her pregnancy, her increase in weight to 91 kilograms on 24 August must, logically, have been reflected in an increased BMI above that which she had on 8 June, with a weight of 85 kilograms. Accordingly, I find that Dr Amira knew, or ought to have known, that Ms Hoglin's BMI exceeded 30.48 by the time of her admission on the morning of 24 August.
4.5 Summary of findings
[66] ts 1520 (Thompson).
In summary, I find that on the morning of 24 August 2009 before Dr Amira first saw Ms Hoglin, he:
(a)knew that the baby was a big baby, but did not think that it would be bigger than four and a half kilograms;
(b)knew that on 8 June 2009, Ms Hoglin's BMI was 30.48;
(c)knew that Ms Hoglin weighed 91 kilograms; and
(d)knew, or ought to have known, that Ms Hoglin's BMI exceeded 30.48.
What took place during Cooper's delivery?
5.1 Overview
There was evidence from six witnesses as to what took place on 24 August 2009 from the time Ms Hoglin arrived at Bentley Hospital until the time Cooper was taken to Princess Margaret Hospital (PMH): Ms Hoglin, Mr Ellis, Dr Amira, a midwife Susan Parry, another midwife Clare Hagley and the attending consultant paediatrician, Dr Jack Vercoe. Nurse Parry gave evidence that she had no recollection of the events of this day, but was able to identify her notes in the partogram and interpret them. Nurse Hagley had some recollection of the events, as did Dr Amira. Dr Vercoe's evidence was received by way of a witness statement which stood as his evidence-in-chief.[67] It is also instructive to weave into the narrative some of the observations of the two obstetric specialists called by the parties, Dr Lyneham and Dr Thompson.
[67] Exhibit 51.
There were a considerable number of records of Bentley Hospital relating to the birth of Cooper that were tendered by consent. Two documents were of particular significance. The first was the CTG trace from the monitor applied to Ms Hoglin's stomach from late on the morning of 24 August.[68] The second document is the partogram which was progressively annotated as the labour progressed.[69] It has various tables and sections to record information relevant to the labour and birth. Each of Dr Amira, Nurse Parry and Nurse Hagley identified their handwriting on the partogram. It is not in dispute that the partogram is a contemporaneous record of what occurred, and, with one exception which I mention below, I find it to be so. The factual findings which follow are based on the chronology set out in the partogram.
[68] Exhibit 1, tab 6, exhibit 17, exhibit 54.
[69] Exhibit 1, tab 20.
With one caveat, the partogram was accepted as an accurate record of what occurred. The caveat is whether there is an error by either Dr Amira or Nurse Hagley in the recording of the results of the station of the baby in their vaginal examinations at 7.00 pm and 8.40 pm respectively. This issue is dealt with in section 5.5 below.
Many of the facts as to what occurred on 24 August are not in issue. It is convenient to identify these facts in three parts: before 8.30 pm, being the point of time at which Dr Amira attended the labour ward; 8.30 pm to 9.42 pm, when Cooper was born; and after 9.42 pm. These facts are set out in sections 5.2, 5.3 and 5.4 respectively. Except where I have expressly identified, I find each of the facts set out in these sections to have been proven.
Within this overall chronology, I have noted five issues of fact which arise for determination:
•Did the foetal head move between 4.30 pm and 8.40 pm?
•Was the baby in foetal distress at any point prior to 9.12 pm?
•At what station was the foetal head at the point in time when Dr Amira commenced the delivery?
•Why did Dr Amira decide to undertake an instrumental delivery?
•How did the delivery progress?
These issues are dealt with in sections 5.5 to 5.9. Section 5.10 contains a summary of the key factual findings.
5.2 Facts not in issue - events of 24 August 2009 until 8.30 pm
Ms Hoglin and Mr Ellis attended the Hospital at around 7.00 am. They understood that Ms Hoglin was going to be induced to give birth to the baby.
The attending midwife was initially Nurse Parry.
At the time of her admission, Ms Hoglin weighed 91 kilograms, a fact recorded in the partogram. In the partogram, against the item 'FUNDUS (weeks)', is the notation 'T+'. Nurse Party explained that this meant that the baby was overdue. The baby had a longitudinal lie, meaning the long axis of the foetus was parallel to the mother, and was not transverse or oblique. The presentation was cephalic (head first in the pelvis) presentation in a left occipitolateral position.[70] On palpitation, the baby had a level of '2/5', that is, Nurse Parry could feel 2/5ths of the baby's head in the abdomen, meaning that it was 3/5ths in the pelvis.
[70] Exhibit 3, tab 3, page 5.
Around 8.25 am Dr Amira examined Ms Hoglin. He performed an artificial rupture of her membranes, recorded by the acronym 'ARM'. As set out in partogram, the relevant results of his examination were:
•Dilatation – 3 cm
•Caput - nil
•Moulding - nil
•Station - -1
•Level - 1/5.
Dr Amira started Ms Hoglin on a drip containing Syntocinon, a type of oxytocin, the purpose of which was to induce contractions.
Dr Amira had a conversation with Ms Hoglin and Mr Ellis as to what was to occur. There was a discussion of the pain relief available to Ms Hoglin. Ms Hoglin was not keen to have an epidural as she wanted to 'experience it natural'.[71] She was told she had some time to make a decision about pain relief as it would still be a while before her baby was born. At that time, Ms Hoglin did not make any decisions as to pain relief. Beyond this, I do not need to make any factual findings as to the precise details of this conversation.
[71] ts 120.
At around 10.45 am CTG monitoring of Ms Hoglin and the baby was commenced.
In the later stages of the morning, Ms Hoglin was experiencing quite painful contractions that were 'on top of themselves'.[72] Her recollection is confirmed in the partogram, which records her contractions around this time strengthening and increasing in duration, and decreasing in frequency. This led to Nurse Parry reducing the level of oxytocin Ms Hoglin was receiving.[73]
[72] ts 121.
[73] ts 1012.
As a result of the increase in pain, at around 11.00 am, Ms Hoglin had a conversation with Nurse Parry about pain relief. Although she was not keen on having an epidural, she nonetheless requested one.
At 11.10 am Nurse Parry contacted Dr Amira and requested him to organise for Ms Hoglin to have an epidural block.
At 1.00 pm, Ms Hoglin was seen by a Dr Keogh, an anaesthetist, who sited an epidural block.
At 1.25 pm Nurse Parry conducted a vaginal examination. As set out in the partogram, the relevant results of her examination were:
•Dilatation – 4-5cm
•Caput - +
•Moulding - +
•Station - -1.
There was no entry against the heading 'level', for reasons which Nurse Parry could not recall.[74]
[74] ts 1018.
Prior to 3.00 pm, Nurse Parry had observed some late decelerations in the CTG trace. As to what she meant, Nurse Parry explained:[75]
… what the definition of a late deceleration is now is it has to be uniform and repetitive and it's with hypoxia and reduced variability. When I look at the CTG it looked - it looks more like a variable than it does a late deceleration.
So what's a variable?‑‑‑A variable is a very quick up and down recording. It's usually from cord compression, whereas the late decels are from contractions and hypoxia, and it recovered and was okay afterwards so there was only one.
And so is the variable a matter that gives rise to a concern ‑ ‑ ‑?‑‑‑No, no. It usually will resolve quite quickly.
[75] ts 1020.
In cross-examination she added that in 2009 she understood a late deceleration after a contraction to be a deceleration below 110 bpm.[76]
[76] ts 1027 (Parry).
When giving evidence, Nurse Parry identified two decelerations in the CTG trace[77] to around 100, one at around 2.10 pm and the other at around 2.45 pm.[78] In each case, the deceleration resolved itself.
[77] Exhibit 1, tab 6.
[78] ts 1028.
At 3.00 pm Nurse Parry contacted Dr Amira. She informed Dr Amira that there had been occasional late decelerations in the CTG trace, with a foetal heart rate of 106/107 bpm. She conveyed to Dr Amira the results of the vaginal examination and informed him that the epidural block had been sited.
Ms Hoglin[79] and Mr Ellis[80] both gave evidence about a conversation with Nurse Parry just before she went off shift. On their evidence, Nurse Parry told them that it may be necessary for Ms Hoglin to have a caesarean section as the baby was not making his way down the birth canal the way he should have been. Nurse Parry gave evidence that she would talk generally to a mother in labour, or her partner, and answer their questions, including about caesarean sections. However, it was not her practice to recommend caesarean sections to mothers in labour.[81] Nor was it her practice to voice any opinion she may have had about the size of the baby a mother was carrying.[82]
[79] ts 121.
[80] ts 206.
[81] ts 1021.
[82] ts 1038.
For the purposes of determining the issues in dispute in this case, it is not necessary for me to make any specific factual findings as to what was said in the conversation between Nurse Parry and Ms Hoglin and Mr Ellis. Rather, it is sufficient for me to find that Ms Hoglin and Mr Ellis came away from their conversation with Ms Parry at around 3.00 pm under the clear impression that it may be necessary for Ms Hoglin to have a caesarean section as the baby was not making his way down the birth canal the way he should have been. It was not Nurse Parry's intention to convey that impression.
Around 3.00 pm, Nurse Parry topped up Ms Hoglin's epidural.
At 3.00 pm another midwife took over the care of Ms Hoglin, Lily Ting (who was not called to give evidence).
At 4.00 pm, Nurse Ting made a recording in the partogram 'occasional decelerations with contractions with good recovery'.
At 4.15 pm Nurse Ting telephoned Dr Amira and informed him as to her observations about the occasional decelerations. Dr Amira requested that a vaginal examination be conducted.
At 4.30 pm there was a change of shift. Nurse Hagley took over as Ms Hoglin's midwife.
At the time when she commenced looking after Ms Hoglin, Nurse Hagley reviewed both Ms Hoglin and the baby. In particular, at 4.30 pm, she conducted a vaginal examination. As set out in the partogram, the results of this examination were:
•Dilatation - 7 cm
•Caput - +
•Moulding - +
•Station - + 1
•Level - 1/5.
As a result of her review, Nurse Hagley was of the view that the labour was progressing normally, and she had no concerns as to Ms Hoglin's condition or the condition of the baby.
There is a conflict between the evidence of Nurse Hagley and that of Ms Hoglin and Mr Ellis in relation to a conversation which occurred between the three of them shortly after Nurse Hagley came on duty. Ms Hoglin and Mr Ellis say they inquired as to what was happening with the caesarean section, and were told by Nurse Hagley that: 'We'll get the baby out, no problem'.[83] Nurse Hagley denied having a conversation in these terms.[84] For the purposes of determining the issues in dispute, I do not need to make any specific factual findings as to what was said in this conversation.
[83] ts 123 (Hoglin); 209 (Ellis).
[84] ts 1113 – 1114.
Around 4.30 pm, Nurse Hagley called Dr Amira and informed him of the results of the vaginal examination.
Around 5.30 pm, Nurse Hagley topped up Ms Hoglin's epidural.
Between 4.30 pm and 7.00 pm Ms Hoglin was having strong contractions of 60 seconds duration every two to three minutes.
At around 6.30 pm Ms Hoglin had a temperature of 37.5 degrees.
Nurse Hagley did a further vaginal examination at 7.00 pm. As set out in the partogram, the results of this examination were:
•Dilatation – 9 cm
•Caput - ++
•Moulding - ++
•Station - +1
•Level - 1/5.
There is an issue as to whether Nurse Hagley accurately assessed the results of the station of the baby in her vaginal examination at 7.00 pm. This is dealt with in section 5.5 below.
When she did the 7.00 pm vaginal examination, Nurse Hagley found that Ms Hoglin had an anterior lip on her cervix. This refers to a little portion of the skin at the top of the cervix which becomes swollen and forms a lip, instead of being a circle, and is still in the way of the baby's head. This is the last part of the cervix to be pulled over the baby's head. This lip needs to flatten out and then retract backwards in order for the cervix to become fully dilated. Nurse Hagley could not recall whether she did anything to deal with the anterior lip.[85] The presence of an anterior lip was not a matter of concern to her.[86]
[85] ts 1073.
[86] ts 1074.
Nurse Hagley told Ms Hoglin about the anterior lip.[87] There is a divergence between Nurse Hagley's evidence as to what she told, or would or would not have told, Ms Hoglin and Mr Ellis about the anterior lip[88], and their recollection.[89] For the purposes of determining the issues in dispute, I do not need to make any specific factual findings as to what was said in this conversation.
[87] ts 1099 - 1100.
[88] ts 1099 - 1100.
[89] ts 123 (Hoglin); ts 209 - 210 (Ellis).
Around 7.00 pm Nurse Hagley topped up Ms Hoglin's epidural.
At around 7.30 pm Ms Hoglin's temperature was 37.7 degrees. This was a matter of concern to Nurse Hagley, though not of sufficient concern to cause her to call Dr Amira straight away.[90]
[90] ts 1074 - 1076.
Around 7.30 pm, Ms Hoglin's contractions were easing in intensity (from strong to moderate). In response, Nurse Hagley increased the dose of oxytocin.[91]
[91] ts 1097 - 1098.
At 7.50 pm Dr Amira called the ward and spoke to Nurse Hagley. Although Nurse Hagley gave evidence that she called Dr Amira[92], I prefer the record in the partogram: 'Dr Amira called ward'. It is also consistent with Dr Amira's contemporaneous record.[93]
[92] ts 1053.
[93] Exhibit 1, tab 22.
Nurse Hagley informed Dr Amira that:
•Ms Hoglin was 7 cm dilated
•She had an anterior lip
•Ms Hoglin's temperature was 37.7 degrees
•There was foetal tachycardia at times between 150 to 180 bpm.
Looking back over the records up to this time, neither Dr Lyneham[94] nor Dr Thompson[95] could see anything which indicated any cause for concern as to the condition of either Ms Hoglin or the baby. In particular, they were both of the view that the CTG trace during this period was reassuring.[96] Dr Lyneham's opinion from the partogram was that throughout the labour Ms Hoglin was having good contractions, that is, of appropriate strength, duration and frequency.[97]
5.3 Facts not in issue - events of 24 August 2009 between 8.30 pm and Cooper's birth
[94] Exhibit 3, tab 3; ts 479, 557.
[95] ts 1539.
[96] Exhibit 3, tab 3, page 8 (Lyneham).
[97] ts 469.
Dr Amira attended the labour ward at about 8.30 pm.
At this time, Ms Hoglin's contractions were medium to strong, every three minutes.[98] The recording of the contractions in the partogram at 8.30 pm is the last recording.
[98] ts 1100 – 1102.
At 8.40 pm Dr Amira did a vaginal examination, the results of which were recorded in the partogram:
•Dilatation – full
•Caput - ++
•Moulding - +
•Station - +1
•Level - '-' (meaning that it was zero).[99]
[99] ts 1484 (Thompson); ts 562 (Lyneham); ts 1199 (Amira).
Dr Amira then told Ms Hoglin she could start pushing.[100]
[100] ts 1187.
At 8.45 pm there is a record in the partogram that Ms Hoglin was feeling ready to push. This was the earliest time at which Ms Hoglin felt the urge to push. After that point, Ms Hoglin was in second stage labour pushing with each contraction.[101]
[101] ts 1097 (Hagley); ts 1219 (Amira).
At some point between 8.40 pm and 9.12 pm, Dr Amira made a decision to undertake a vacuum extraction of the baby. There are three factual issues connected with this decision:
•Was the baby in foetal distress at any point prior to 9.12 pm?
•At what station was the foetal head at the point in time when Dr Amira commenced the instrumental delivery?
•Why did Dr Amira decide to undertake an instrumental delivery?
These issues are considered in sections 5.6, 5.7 and 5.8 below.
At around 9.00 pm a second midwife became involved in Ms Hoglin's care, being Karyl Male.[102] Nurse Male was not called to give evidence. Nurse Hagley undertook the role of documenting what was occurring. Nurse Male was directly attending to Ms Hoglin.
[102] Exhibit 1, tab 18.
Prior to 9.10 pm, Ms Hoglin was being prepared for a Kiwi cup vacuum extraction. Nurse Hagley was getting the equipment ready for the vacuum extraction.[103] The preparation of Ms Hoglin included an 'in/out' catheter which was inserted into the urethra to drain the bladder. This was required preparation for an instrumental delivery to prevent damage to the bladder during the process of delivery. At this point, the foetal heart rate was recorded in the partogram as being at 157 bpm.
[103] ts 1100.
Both Dr Amira and Nurse Hagley gave evidence as to the progress of delivery of the baby whilst the vacuum devices were being applied. As this is the subject of contention, it is dealt with separately in section 5.9. The overall chronology of the use of the vacuum devices is not in issue.
At 9.12 pm, Dr Amira undertook the first pull with the Kiwi cup.
At 9.14 pm, Dr Amira undertook the second pull with the Kiwi cup.
At 9.15 pm, Dr Amira undertook the third pull with the Kiwi cup. The Kiwi cup fell off the baby's head. As recorded in the partogram, the baby's heart rate at this time was 109 bpm.
At 9.19 pm, Dr Amira and the midwives commenced preparation for a Silastic or standard vacuum cup extraction.
Between the application of the Kiwi cup and the application of the Silastic cup, Ms Hoglin had a further period of second stage labour.[104]
[104] ts 1274 (Amira).
At 9.30 pm, Dr Amira undertook the first pull with vacuum extraction. The cup fell off the baby's head.
At 9.33 pm, Dr Amira undertook a second pull with the vacuum extraction device. At this stage, Ms Hoglin was pushing well with the contractions.
At 9.38 pm, the baby's head was delivered with a third pull from the vacuum extraction device.
The baby's head was large, something noted in the partogram.
When the baby's head was delivered, to use Nurse Hagley's expression, it 'turtle‑necked'.[105] This meant that when the baby's head was delivered, it was swept back into the perineum, squashing into it. This in turn meant that the shoulders did not rotate and come down, a condition known as shoulder dystocia.Dr Lyneham explained the meaning of shoulder dystocia:[106]
Well, the shoulders don't come into the pelvis. Neither of them … have been delivered so you generally deliver the anterior shoulder first or the posterior, but … you can't deliver the shoulders. You need to get one shoulder out so you can get the baby out.
[105] ts 1056 (Hagley).
[106] ts 518 - 519.
Dr Amira then pulled on the baby's head, which did not result in delivery.
Dr Amira then implemented a technique known as the 'McRoberts manoeuvre'. This is a manoeuvre by which the mother's legs are flexed on the mother's abdomen. A rocking movement is then done with the mother's abdomen. The purpose is to open the pelvis and let the impacted shoulder slip under the symphysis pubis. The rocking movement was facilitated by the midwives, one holding each leg, whilst Dr Amira was pulling on the head. As part of this manoeuvre, a midwife applied suprapubic pressure whilst Dr Amira was pulling.[107] The purpose of applying suprapubic pressure was to increase pressure on the abdomen, hoping to slip the baby's shoulder under the symphysis pubis.[108] The baby was not able to the delivered using the McRoberts manoeuvre.
[107] ts 1193 - 1194 (Amira), ts 1057 (Hagley).
[108] ts 1057 (Hagley).
Dr Amira then made two attempts to deliver the posterior shoulder with a finger in the left axilla (being the pyramid shaped space forming the underside of the shoulder between the upper arm and the chest[109]). This also did not work.
[109] Mosby's (169).
The next technique employed was to assist Ms Hoglin to turn over on to her stomach, and get into an all-fours position. Mr Ellis assisted Ms Hoglin to get on all fours. This took a little while to arrange as Ms Hoglin still had the epidural block. The baby was able to be delivered using this technique.
At 9.42 pm Cooper was born.
5.4 Facts not in issue - events of 24 August 2009 after Cooper's birth
Mr Ellis gave a graphic description of Cooper when he was born. His description was not challenged in cross-examination, and I accept it as being accurate:[110]
His head looked like it had eggs all over. There was a contortion at the back that came out probably two inches. There was one at the side that looked like it came out around the same size. His head was – and it was – looked bruised in part, and – and almost black on his head in parts where – and red and purple. It was – his head looked like it'd been hit by a baseball bat a few times. It was – it was the most horrifying thing I ever saw in my life.
[110] ts 213.
Cooper weighed 4.590 kg when born.
Cooper was 'flat' when he was born, meaning he was not breathing, not moving and showing poor muscle tone.[111]
[111] ts 1194 (Amira).
Cooper was assessed using the 'Apgar' ratings, the results of which were:[112]
[112] Exhibit 1, tab 26.
1 minute
5 minute
10 minute
Colour
0
1
1
Respiration
0
1
1
Reflex Irritability
0
0
0
Muscle Tone
0
0
0
Heart Rate
1
2
2
1
4
4
A rating of '0' under colour means 'white or blue'. These notations are in handwriting. Save for Nurse Hagley saying it was not her[113], the author was not identified.
[113] ts 1068.
Cooper was immediately placed on a resuscitation cot where CPAP (continuous positive airway pressure - otherwise known as bagging and masking) was employed. This involved pushing oxygen under pressure into the nose and mouth. When this failed to get a response, Dr Amira did CPR (cardiopulmonary resuscitation). Cooper did not take his first breath until five minutes later.[114] He underwent resuscitation for 20 minutes.[115] He was given adrenalin through his umbilical vein, which caused the heart rate to start to come up.[116]
[114] Exhibit 1, tab 22; Exhibit 3, tab 8, page 3 (Tracy).
[115] Exhibit 1, tab 41.
[116] ts 1194 (Amira).
At 10.00 pm the nurse manager at Bentley Hospital contacted WANTS (Western Australian Neonatal Transport Service). [117]
[117] Exhibit 1, tab 49.
At 10.01 pm Dr Vercoe arrived at the labour ward, that is, 19 minutes after Cooper was born.
There is a conflict between the evidence of Dr Amira and Dr Vercoe as to Cooper's condition when Dr Vercoe arrived, which is dealt with in section 5.9.
Dr Vercoe intubated Cooper. Dr Cooper said that bag and mask resuscitation is involved in something like 3% to 5% of deliveries. He observed that not many babies with respiratory depression require intubation. Intubation involves placing a tube through the trachea into the lungs. Dr Vercoe said that he would intubate three or four babies a year.
Once Cooper had been oxygenated, his perfusion improved, that is, the strength of his pulses became a bit stronger. His peripheral pulses improved to a point where Dr Vercoe could feel them. Because Cooper was still quite shocked, Dr Vercoe gave him some intravenous saline. The purpose of giving him saline was to increase his circulating blood volume. Increasing the blood volume serves to increase the perfusion, as it gives the heart something to pump around the body, and carries some oxygen as well.
At about 60 minutes of age, Dr Vercoe observed that Cooper started moving his legs. This was the first time Dr Vercoe had seen Cooper move his legs. He observed that usually a baby would move its legs straight away after delivery.
Dr Vercoe also put some adrenalin down the endotracheal tube to improve Cooper's heart beat during resuscitation. Dr Vercoe observed that this is the quickest way to get adrenalin to the heart, especially when there is no intravenous access. He also gave Cooper some intravenous antibiotics to cover the possibility of an infection.
When Cooper was 60 minutes old, that is 10.42 pm, the WANTS team from PMH arrived and took Cooper to PMH.[118] By that time, his heart rate was 140 beats per minute, which Dr Vercoe described as being normal.
[118] Exhibit 1, tab 48.
Ms Hoglin left the Hospital the following morning, and went to PMH to see Cooper with Mr Ellis. They saw Cooper, who was in the intensive care unit. Ms Hoglin recalls Cooper being under the care of Dr Rao. They were told that Cooper was very sick, and that they had to take things hour by hour.
Cooper was discharged from PMH on 11 September 2009 and went home. The evidence in relation to Cooper's care at PMH and the injuries he sustained in the process of his birth is set out in Part 13.
5.5 Did the foetal head move between 4.30 pm and 8.40 pm?
The plaintiff asserts in the pleadings that the foetal head did not move between 4.30 pm and 8.40 pm. This is based on the recordings of the station of the foetal head at 4.30 pm, 7.00 pm and 8.40 pm as being at '+ 1' (plus one).
It is necessary to consider this issue in some detail as, when giving evidence, Dr Amira and Dr Thompson raised the issue of whether Nurse Hagley's finding of station plus one at the 4.30 pm and 7.00 pm examinations were incorrect, and that there had in fact been descent of the foetal head over this time to the station plus one at 8.40 pm based on the change in level from one-fifth to zero.
For ease of reference, the relevant section of the partogram to this issue is as follows:[119]
[119] Exhibit 1, tab 20.
DATE
24/8/09
24/8/09
24/8/09
24/8/09
24/8/09
TIME
0825
1325
1630
1900
2040
CAPUT
(?)
+
+
++
++
MOULDING
(?)
+
+
++
+
STATION (SPINES)
-1
-1
+1
+1
+1
LEVEL 1/5 (ABD. PALP)
1/5
1/5
1/5
-
EXAMINERS NAME (PRINT)
Amira
Parry
Hagley
Hagley
Amira
As I have already noted, the dash in the row 'level' at the 8.40 pm examination means that it was zero.[120]
[120] ts 1484 (Thompson); 562 (Lyneham); ts 1199 (Amira).
The genesis of the plaintiff's case is the initial report from Dr Lyneham, dated 4 October 2011, in which he noted that there had been no descent of the foetal head between 4.30 pm and 8.40 pm.[121] This was based on the fact that the station of the baby's head remained at plus one during this period, that is, across the two assessments by Nurse Hagley and one by Dr Amira during this period.[122]
[121] Exhibit 3, tab 3, page 20.
[122] ts 562 - 563.
The scenario that Nurse Hagley's assessment was incorrect was first raised by Dr Amira in cross-examination:[123]
[123] ts 1217 - 1218, 1233.
And you knew it had been plus one for more than four hours preceding your vaginal examination?‑‑‑No, that… plus one in a.. preceding examination is incorrect.
So the midwife doesn't know how to measure plus one?‑‑‑… the head was felt abdominally, in… previous recordings in the past four hours, so there has been descent in these four hours. It did not stay in one station.
Right. So do you say that the midwives who have recorded plus one as the station have got it wrong?‑‑‑Yes.
So it was higher than plus one?‑‑‑Was higher than plus one.
But you don't know how much higher?‑‑‑By one‑fifth because they say one‑fifth abdominally it was felt.
Now… so what's one‑fifth of the baby's head? How much is that? How many centimetres?‑‑‑One centimetre.
One centimetre?‑‑‑Or maybe ‑ yeah, one ‑ one plus.
So you say…the two entries from the… the same midwife at plus one, almost certainly wrong, and would have been at least ‑ ‑ ‑?‑‑‑Minus one. ‑ ‑ ‑ zero ‑ ‑ ‑?‑‑‑At least zero or minus one.
…
Now, if you need to see the partogram, … can I just get you to agree with me, it's clear, isn't it, that at the time you did the vaginal examination, in your opinion, correctly you identified the station as being plus one?‑‑‑Yes.
And that there was caput plus plus?‑‑‑Yes.
Now, you think that… the midwife has got the entries wrong at plus one in the preceding four hours?‑‑‑Yes.
But you don't doubt your own observation at 8.40 pm, do you?‑‑‑No, I don't.
The position remains that the District Court has not published rules of court dealing with this issue. The court did publish a circular to practitioners, Circular to Practitioners CIV 2012/3 Catastrophic Personal Injuries, however, this was withdrawn following the decision in McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2].[1202] The decision in McGlinn is the only prior decision of a District Court judge to have considered whether to make a catastrophic personal injuries declaration.
[1202] McGlinn as administrator for Jeffrey Craig McGlinn v Joondalup Hospital Pty Ltd [No 2] [2014] WADC 3.
The discretion in item 17 provides a 'means by which the costs of preparation of a case for trial in certain personal injuries cases may be taxed without regard to the limit prescribed in item 17, other than by application pursuant to s 280(2) of the LPA on the grounds of "unusual difficulty, complexity or importance" '.[1203] The same comment may be made in relation to items 16(b) and 20(a).
[1203] McGlinn [28] (Staude DCJ).
The principles set out above more generally in relation to costs apply equally to the discretion to make a catastrophic personal injuries declaration. The discretion must be exercised judicially, that is, in accordance with established principle and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the intent of the Legal Costs Committee,[1204] being the body to whom Parliament has delegated the responsibility of drafting costs determinations.[1205]
[1204] Oshlack [22], [65] - [66], [134] (Kirby J); Hughes [5]; Naidoo [39]; Brookvista [26].
[1205] See Division 5 of the Legal Professions Act 2008 (WA).
The commentary in cl 6 of the 2016 Determination is to the effect that the Legal Costs Committee is of the view that the two criterion identified in the passages quoted from the 2014 Determination and 2012 Determination (LCC Criteria) would need to be addressed in the exercise of the discretion to make a catastrophic personal injuries declaration. As the drafting body for the costs determinations, their view should be given some weight. In any event, a logical dissection of the notes to items 16(b), 17 and 20(a) would have identified the same two issues. As Staude DCJ observed in McGlinn:[1206]
[1206] McGlinn [43].
The application of both criteria is indicated because an injury which by its nature is catastrophic may not necessarily create an extra burden of work. For example, where a plaintiff, by reason of serious injury, is hospitalised for the rest of his or her life, the quantum of the claim may be uncontroversial.
The expression 'personal injuries' should, as a matter of consistency, bear the same meaning as contained in the definition of a 'personal injuries action' in DCR r 3, that is, as including 'any illness suffered by him or her and impairment of his or her physical or mental condition'.
In McGlinn Staude DCJ set out the following principles regarding the making of a catastrophic personal injuries declaration which I respectfully adopt:
(a)the question is whether more work is required than is allowed for by item 17 for preparation of the case for trial, and whether that extra work is occasioned by virtue of the nature of the subject injury;[1207]
[1207] McGlinn [48].
(b)the question of an 'extra burden' in the second of the LCC Criteria is whether by virtue of the subject injuries more time is reasonably required to be spent in preparation of the case for trial than allowed by item 17;[1208]
[1208] McGlinn [42].
(c)the court is required to evaluate as a matter or impression, and without usurping the role of the taxing officer, whether the work involved in preparation of the case for trial exceeds the limit of item 17;[1209]
[1209] McGlinn [44].
(d)the extra burden must be due to the subject injury, meaning that the court is concerned with the effect of the injury itself on the work done on preparation for trial;[1210]
[1210] McGlinn [45].
(e)the expression 'catastrophic injury' as used colloquially in personal injury litigation 'characterises injuries which have a profoundly disabling effect on the victim, generally by depriving the victim of independence such that a permanent need for attendant care and supervision is created';[1211]
[1211] McGlinn [38].
(f)the words 'at issue in the proceedings' in the LCC Criteria should be taken to mean the subject of the proceedings;[1212]
[1212] McGlinn [40].
(g)in considering whether an extra burden is imposed by virtue of certain injuries, it is appropriate and necessary to have regard to whether liability is in issue as preparation for trial where it is not will necessarily involve less work;[1213] and
[1213] McGlinn [61].
(h)it is for the party entitled to costs to satisfy the court of the extra burden occasioned by virtue of the injury in order to justify the declaration.[1214]
[1214] McGlinn [96].
His Honour identified five ways in which a catastrophic injury may create an extra burden of work by way of preparation of a case for trial:[1215]
[1215] McGlinn [55] – [59].
First, if the effect of the injury is to render the plaintiff profoundly disabled, particularly in terms of cognitive function, but also physical function (for example, dysphasia, as in this case, or inability to ambulate), more time may need to be spent obtaining instructions than would be necessary otherwise.
Second, a profoundly disabled plaintiff, depending on the nature and effect of the injury in question, may require a next friend to conduct the action. As in this case, an administration order may be necessary. In that event, work has to be done to prove the cost of trustee and fund management fees in respect of any damages recovered.
Third, profoundly disabling injury may give rise to a greater number of heads of damage, in particular in relation to future needs, as well as the issue of life expectancy. More expert evidence is likely to be required in such a case.
Fourth, the nature of the injury may give rise to losses and needs of a complex nature, such that more time is spent by a legal practitioner on work requiring the skill of a practitioner. (Item 17 expressly states that the work may be done by a legal practitioner, clerk or paralegal, for each of whom there is a prescribed maximum hourly rate.)
Fifth, a catastrophic personal injury claim is likely to involve briefing independent counsel at an early stage.
At the time of the decision in McGlinn the catastrophic personal injuries declaration only related to item 17. The concept was extended to items 16(a) and 20(a) in the 2014 Determination. The principles identified by Staude DCJ in McGlinn apply equally to items 16(a) and 20(a), though their application would need to reflect the different work involved in these two heads.
Counsel for the plaintiff refers to the findings at trial:
(a)as regards Cooper's injuries;[1216]
[1216] Ellis [709].
(b)as regards Cooper's Developmental and Cognitive Impairments (using my defined term);[1217]
[1217] Ellis [790].
(c)that Cooper's need for care and assistance will increase from 27 hours per week to age 18 to 33 hours per week as an adult;[1218] and
[1218] Ellis [1012], [1027], [1055].
(d)that Cooper will require the administration of his judgment as an adult.[1219]
[1219] Ellis [1062].
This founds the submission that Cooper's injuries were 'catastrophic' for the purposes of the 2012 Determination and subsequent determinations.
However, notwithstanding Cooper's Developmental and Cognitive Impairments, as at the date of trial he had attended school (albeit with teacher support). The damages awarded are premised on him continuing to attend school, and provide for support for this to occur. In relation to Cooper's high school years, it is instructive to repeat Ms Burns' opinion:[1220]
[1220] Ellis [1015].
After Cooper enters High School he would be expected to be much more independent with activities of daily living. Nursing care staff would focus on developing self‑care routines with the support of the Occupational Therapist and Psychologist, supporting social and leisure activities whilst promoting fitness and supporting Cooper with any after school activities/therapies.
As to his adult years, I identified four areas in which Cooper is more likely than not to require assistance:[1221]
[1221] Ellis [1043] – [1046].
(a)to coordinate the provision of his medical therapeutic and rehabilitation services;
(b)to assist him to manage his financial affairs;
(c)to assist him with day‑to‑day activities, including to assist him to grow in independence in this regard; and
(d)to assist him socially and vocationally.
This assessment assumes that Cooper will be able to live independently with the assistance provided. I did not assess him to require 24 hour a day on‑call assistance.[1222]
[1222] Ellis [1049].
Whilst Cooper's injuries are serious, I do not consider them to be catastrophic. Whilst they have a disabling effect on him, the effect could not be described as 'profoundly' disabling. He will have a measure of independence as an adult, and the damages provided are for care and assistance to enable him to live as independently as practicable.
As to the second aspect, counsel for the plaintiff refers to the five ways in which an 'extra burden' could arise set out by Staude DCJ in McGlinn (quoted at [66]). Counsel submits that, whilst these factors are neither exhaustive nor necessary, they indicate the types of factors to be considered. I agree.
As to those factors, the first does not apply given Cooper's age. The second applies given the work done in relation to the court appointed trust. The third factor applies as significant time at trial was spent on the issue of Cooper's future needs. The fourth factor applies given the complexity of Cooper's treatment needs. The fifth factor also applies as counsel was briefed at an early stage.[1223]
[1223] Plaintiff's Submissions, par 67.
More generally, as a matter of impression I am easily satisfied that it would reasonably have taken well in excess of 120 hours to have prepared this case for trial (item 17). I am likewise satisfied that it would reasonably have taken more than eight hours time by a senior practitioner to prepared the schedules of damages filed (item 16). I am further satisfied that it would reasonably have taken more than 3.5 days preparation by counsel (item 20(a)).
The issue in this case is that the extra burden did not, in my view, arise 'by virtue of' the nature of the plaintiff's injuries. The complexity in this case arose because of the disputes as to liability and causation, as opposed to the disputes related to the nature of Cooper's injuries. Consistent with what I have said about the nature of Cooper's injuries, the case is not one that I would describe as a 'catastrophic personal injury claim'. Rather, for the reasons that I am about to articulate, it is a case of unusual difficulty and complexity. The plaintiff is entitled to have the scale limit in items 16, 17 and 20(a) increased, but not because the case involved a 'catastrophic personal injury' to Cooper.
Should there be an uplift in the applicable costs determinations pursuant to LPA s 280?
The power to make special costs orders is contained in Legal Profession Act 2008 (WA) (LPA) s 280(2), as follows:
… if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -
(a) order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.
The specific order sought by the plaintiff in the Plaintiff's Minute is that there be an uplift in the scale items for:
(a)schedules of damages (item 6(b));
(b)discovery (item 7);
(c)preparation of case (item 17);
(d)counsel fee on brief (item 20(a)); and
(e)counsel fee for the second and each successive day of hearing (item 20(c)).
I take the term 'uplift' used by the plaintiff to be a compendious description of the orders in paragraphs LPA s 280(2)(a), (b) or (c) (par (d) being a power to make ancillary orders).
The relevant item for schedules of damages in the present case is not item 6(b) (which refers generally to particulars) but item 16(b) (which deals specifically with schedules of damages filed pursuant to DCR r 45C).
If an order is made removing the limits on costs fixed for certain items in the applicable determination, it will remain for the taxing officer to quantify the costs by reference to rates, hours and amounts which are, in all the circumstances of the litigation, reasonable.[1224] I have already referred to the applicable principles for a party and party taxation (above [25]). So, in the present case, if an order is made removing the scale limits, is not necessary for the plaintiff to specifically seek an order altering the rates at which work may be claimed. Specifically the issue of whether the plaintiff is entitled to claim the rates set out in any costs agreement is one for the taxing officer. It will also be an issue for the taxing officer as to whether the briefing of a second junior counsel by the plaintiff was reasonably necessary.[1225]
[1224] Cazaly Iron Pty Ltd v Minister for Resources [No 5] [2008] WASCA 181 [1] (Wheeler JA); [10] (Buss JA, with whom Pullin JA agreed).
[1225] Haddon v Everitt [2001] 126 A Crim R 418; [2001] WASCA 420 [60] (Wallwork J); Stanley v Phillips [1960] HCA 24; 115 CLR 470, 479 (Barwick CJ)
The court can either remove the scale limits generally[1226] or for specific items.[1227]
[1226] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 11] [2011] WASC 74 [102] (Murray J).
[1227] Cifuentues v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S) [54] (Murray J).
The principles for making an order pursuant to LPA s 280(2) are well established:[1228]
[1228] Atwell v Roberts [2013] WASCA 37 S [15] – [17] (judgment of the court); Wainright v Barrick Gold of Australia [2014] WASCA 15(S) [7] – [9] (judgment of the court); Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66(S) [3] (judgment of the court); O'Rouke v P & B Corporation Pty Ltd [2008] WASC 36(S) [23] (Martin CJ); Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) (Martin CJ) [11].
(a) the court must first form an opinion that the costs otherwise allowable would be inadequate and second form an opinion that such inadequacy arises because of the unusual difficulty, complexity or importance of the matter;
(b)the requirement of inadequacy will be demonstrated if the applicant shows that there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination;
(c)because the determination would ordinarily be made in advance of taxation, it is a matter of impression rather than of detailed evaluation;
(d)in regard to unusual difficulty, complexity or importance, the court can have regard to whether the work done was appropriate to the significance of the issues that arose in the litigation, to the parties or the public or to the community generally;
(e)'unusual' in LPA s 280(2) qualifies 'difficulty' only and not 'complexity' or 'importance';
(f)'unusual' means unusual having regard to what one might describe as the usual run of civil cases in the court; and
(g)having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than science or mathematics.[1229]
[1229] Cape Lambert [3].
It is convenient to form an opinion on whether the costs allowable for the individual items identified would be inadequate and then to consider whether such inadequacy arises because of the unusual difficulty, complexity or importance of the matter looking at the case as a whole.
As to the cost of preparing schedules of damages, the time limit in item 16(b) is eight hours of the time of a senior practitioner. In the Second Hafford affidavit, Ms Hafford deposes that preparation of the damages schedules in this matter took in excess of five hours, referring to the limit in item 6(b). The detail and complexity of the damages assessment and calculation is patently evident in the particulars of damages in their most full form, being that filed 22 February 2016 (Folio 42) Additional particulars of damages were filed after trial (2 November 2017, Folio 138), which again reflect detail and complexity, albeit with many heads agreed. In view of the detail and complexity of the damages calculations in the present case, it is fairly arguable that the item for particulars in the bill to be presented to the taxing officer will be taxed at well in excess of 8 hours of the time of a junior practitioner.
The scale limit for discovery (item 7) is 10 hours of the time of a senior practitioner. In this case discovery of the medical history of the plaintiff from birth necessitated ongoing discovery. In the Second Hafford affidavit, Ms Harford deposes the completion of discovery in this matter took in excess of 10 hours. At the commencement of the trial, the plaintiff tended as exhibits five lever arch files of documents, two of hospital records, two of experts reports and one of school records. This is ample evidence for me to conclude that it is fairly arguable that the item for discovery in the bill to be presented to the taxing officer will be taxed at more than 10 hours of the time of a senior practitioner.
As to preparation of the case for trial, the scale limit is 120 hours of the time of a senior practitioner. The relevant scale limit is that specified as at the date the bill is assessed.[1230] This includes work reasonably and necessarily undertaken prior to the commencement of the proceedings. As an indicator of the work done in the matter as a whole, in the Second Hafford affidavit, Ms Hafford deposes that a review of her firm's online document management system indicates more than 4,600 documents have been created in relation to this matter. This figure does not include handwritten telephone or file notes or other materials received from the defendant or third parties which were not saved onto their document management system. She also identifies a large number of individuals and organisations which the plaintiff's solicitors have needed to liaise with. She further deposes that their file in relation to the matter comprises some 65 lever arch files. She says that that significantly in excess of 120 hours were expended with respect to getting up in preparation of the case.
[1230] Beasley v Ocean Foods International Pty Ltd [2005] WASC 116 [14] (Master Sanderson).
The extent of the preparation of the case is also reflected in the fact that it took 14 sitting days, and evidence was taken from 24 witnesses. Fourteen of the witnesses were expert witnesses. The issues were ultimately the subject of a judgment that ran for 274 pages, with over a thousand paragraphs. There is again ample evidence for me to conclude that it is fairly arguable that the item for the preparation of the case will be taxed at more than 120 hours of the time of a senior practitioner.
As to the counsel fee on brief, the scale limit in item 20(a) is for 3.5 days preparation and the first day of trial. The plaintiff submits that the detail required to reach conclusions as to complex heads of damages, which came to be the subject of the agreed quantum for those heads of damages, of itself warrants an uplift in the number of days of preparation. I accept this argument. The effect of the agreement as to quantum was to obviate the need for between 5 to 10 sitting days. However, in order to position the parties to reach an agreement, it was necessary for counsel for the plaintiff to have prepared to a level which meant that, if required, the plaintiff could prove the damages claimed.
The plaintiff in written submissions also drew the court's attention to the level of preparation required for the expert witnesses, both in examination‑in‑chief and in cross‑examination. I agree with the observation in the plaintiff's submissions that this preparation included the need to have a detailed working knowledge of the matters referred to by the experts in their reports, the academic literature and the evidence at trial.
Item 20(a) also includes submissions. The plaintiff's opening submissions comprised 30 pages. Counsel for the plaintiff also had to read and consider the defendant's opening submissions, which comprised 14 pages. To this I add the observations as to the length and complexity of the trial at [88].
Again, there is ample evidence to conclude that it is fairly arguable that the counsel fee on brief would be taxed at a figure well in excess of the time specified in item 20(a).
The final item on which an uplift is sought is item 20(c), being the counsel fee for the second and each successive day of hearing. The counsel fee of $3,960 is based on an hourly rate of $396 for 10 hours.[1231] The plaintiff submits that not only were some sitting days longer than standard hours, but that where expert witnesses had already given evidence‑in‑chief, extensive review of that evidence in preparation for cross‑examination was also required out of hours. The plaintiff submits that the extent of those additional hours remains a matter for assessment by a taxing officer, but submits that it is fairly arguable that the daily fee during trial could be exceeded and that the scale be lifted to allow for the exercise of that assessment. I agree.
[1231] 2016 Determination, Table A.
I turn to the second aspect of the discretion in LPA s 280(2), whether the inadequacies which I have identified arose because of the unusual difficulty, complexity or importance of the matter. The unusual difficulty and complexity of the case is well evident in the matters that I have identified in concluding that it is fairly arguable that the amounts in the scale items identified are inadequate. Compared to the run of the mill cases in the District Court, the small number of medical negligence trials conducted by the court each year are among the most complex undertaken by the court. This is one of those cases. It was both unusually difficult and complex.
The plaintiff is entitled to the orders it seeks pursuant to LPA s 280(2).
What costs orders is the plaintiff entitled to?
For the reasons which I have set out, the plaintiff is entitled to costs orders in the following terms:
(a) subject to order (d), the defendant pay the plaintiff's costs of the action, including reserved costs:
(1)up to 5 April 2017 on a party and party basis, to be taxed if not agreed; and
(2) from 6 April 2017 as between a law practice and its client, to be taxed if not agreed;
(b)the limits on costs fixed in the applicable determination for the following items be removed:
(1)discovery (item 7);
(2)schedules of damages (item 16(b));
(3)preparation of case (item 17);
(4)counsel fee on brief (item 20(a)); and
(5)counsel fee for the second and each successive day of hearing (item 20(c)).
(c)there be liberty to the parties to apply to a registrar (who may be the taxing officer) or the trial judge for any orders or directions required for the purposes of enabling costs above those in the determination to be assessed;
(d)the costs of and incidental to the defendant's application to further amend the defence filed 19 March 2018 be reserved.
The order in par (c) is taken from LPA s 280(2)(d) and ensures that the taxation can proceed in an orderly manner and that all relevant issues can be efficiently determined. It is not appropriate to make an order in the general terms sought by the plaintiff, that the plaintiff have liberty generally to apply for any further special costs orders. The plaintiff has had ample opportunity to apply for any other special costs orders.
I will hear from counsel as to the precise terms of the order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING
10 MAY 2018
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