Fisher v Marin - [2007] NSWSC 1411

No judgment structure available for this case.

CITATION: Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor [2007] NSWSC 1411

HEARING DATE(S): 9,10 August 2007
29, 30 October 2007

JUDGMENT DATE :
11 December 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 112

LEGISLATION CITED: Contracts Review Act 1980
Civil Procedure Act 2005

CASES CITED: Nguyen v Taylor (1992) 27 NSWLR 48;
Baltic Shipping Co v Dillon (1991) 22 NSWLR 1;
Amcor Ltd v Watson [2000] NSWCA 21;
West v AGC (Advances) Ltd (1986) 5 NSWLR 610;
Mitchell v Osbourne (unreported 20 May 1997);
Smallman v Smallman [1972] Fam 25;
Dietz v Lenning Chemicals Ltd [1969] 1AC 170.

PARTIES: Lauren Fisher by her tutor Janice Fisher - Plaintiff
Dr Raymond Marin - First Defendant
Women's and Children's Hospital, Adelaide -
Second Defendant

FILE NUMBER(S): SC 20247 of 2002

COUNSEL: Mr A Bartley SC with Mr R Ingram - Plaintiff
Mr ASullivan QC with Mr J Downing - Defendants

SOLICITORS: Commins Hendriks - Plaintiff
Blake Dawson Waldron - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

11 November 2007

No: 20247 of 2002

Lauren Fisher by her Tutor Janice Fisher
v
Dr Raymond Marin & Anor
JUDGMENT

1 The Plaintiff moves on an Amended Notice of Motion (the Notice of Motion) for the following orders:

“1. An order declaring that the agreement or purported agreement is void in whole and or refusal to enforce the provisions of the agreement or purported agreement on the grounds that it is unjust pursuant to section 7(1) of the Contracts Review Act (NSW) 1980 (as amended) on the following further grounds:

(i) of undue influence and or improper pressure

(ii) that the agreement or purported agreement is not in the best interests of the plaintiff.

(iii) that the Plaintiff’s tutor was not reasonably able to protect the interests of the Plaintiff because of the state of her physical and or mental capacity set out in section 9 (2)(e)(ii) of the Act in (sic)

2. The agreement constituted by the Plaintiff’s offer of Compromise dated 8 August 2006 and the Defendants acceptance dated 23 August 2006 be declared void or be set aside pursuant to Part 20 Rule 29(1) of the Uniform Civil procedure Rules 2005 on the following grounds.

(i) The Plaintiff’s tutor’s consent to making the offer was vitiated or lacked voluntariness on the grounds of undue influence and/or the Plaintiff’s physical or mental capacity.

(ii) The agreement is not in the best interests of the Plaintiff .

(iii) The agreement is not a valid or binding contract until approved by the Court.

3. An order or declaration that the agreement is not a valid or binding contract until approved by the Court.

4. Further or in the alternative a declaration or order that the agreement is void on the grounds of public policy namely:

(i) The Plaintiff’s tutor’s instructions were obtained as a result of undue influence and/or improper pressure

(ii) The Plaintiff's tutors consent to make the offer lacked voluntariness on the grounds of undue influence and/or the Plaintiff’s tutor’s physical and or mental state.”

2 Although the offer of compromise and the acceptance do not seem to be in evidence before me, (despite the very large quantity of material tendered), it was common ground that by letters dated 8 August 2006 the Plaintiff’s then solicitors, on behalf of the Plaintiff, conveyed to the Defendants’ solicitors an offer to compromise the action for the sum of $2.4m plus costs, and that the Defendants’ solicitors accepted the offer on 23 August 2006. There was no challenge in any formal sense to the constitution of a contract in this way.

3 The proceedings brought by the Plaintiff’s mother as her tutor allege negligence by the Defendants in relation to the birth of the Plaintiff in the Second Defendant’s hospital on 17 July 1985. The First Defendant was the tutor’s specialist obstetrician.

4 It was alleged that as a consequence of the Defendants’ negligence the Plaintiff suffered “hypoxic brain damage, hypoxic ischaemic encephalopathy and subsequently, she developed cerebral palsy”.

5 Particulars of negligence alleged against the First Defendant included:

“(c) Failure to attend on Mrs Fisher at sufficiently regular intervals and for sufficient periods of time in order to make accurate judgments as to the progress of the labour and, therefore failure to recognise the potential for intrapartum threat to the welfare of the plaintiff.

(d) Failure to effect emergency Caesarean Section delivery of the plaintiff in a timely manner in accordance with accepted standards of obstetric management so as to minimise the harmful effects of foetal distress and hypoxic ischaemic encephalopathy on the plaintiff.”

6 As against the Second Defendant, particulars of negligence included:

“(b) Failure to examine properly and review the progress of the labour.
…………………………
(f) Failure to recognise that the labour had become dysfunctional.
……………………….
(h) Failure to promptly and properly act upon signs of possible foetal distress.

(i) Increasing the rate of Syntocinon in the face of ongoing foetal distress.
…………………………
(k) Caused or permitted unreasonable delay in summoning and ensuring the attendance of medical assistance during labour.

7 The Notice of Motion was supported by the affidavits of the Plaintiff’s tutor (Mrs Fisher) sworn 26 February 2007 and 20 March 2007. In the earlier affidavit she recounts how in early 2000 she came to consult Charlton Shearman Medical Lawyers as to the prospects of success of a claim arising out of the circumstances of her daughters birth. She was given encouraging advice and instructed the solicitors to act.

8 Ms Natalie Merunovich was allocated as the solicitor primarily responsible for the case and, as it seems, Mr L Levy SC and Mr R O’Keefe of counsel were retained at an early date. In June 2005, Mrs Fisher was informed that Charlton Shearman had merged with Maurice Blackman Cashman but that “the team” involved in representing the Plaintiff would remain unaltered.

9 In November 2005 Ms Merunovich told Mrs Fisher that the case had been fixed for hearing the following October with an estimate of 12 weeks. Mrs Fisher says that she was also told that the claim could be as much as $16m.

10 In December 2005, Ms Merunovich went on maternity leave and her place was taken by Mr Peter King. On 21 and 21 March 2006, Mr King, with Mr O’Keefe, attended the Plaintiff’s home at Yass and took proofs of evidence from Mrs Fisher.

11 In the following months, matters arose in connection with the case which caused Mrs Fisher concern, including a change in the rules regarding expert witnesses, a requirement that there be an assessment of future party and party costs, and a request by Mr Levy that a third counsel, Mr Anthony Cheshire, be retained. These matters were discussed by Mrs Fisher with Mr King and were the subject of correspondence. In relation to expert witnesses, there was a conference with Mr Levy. A meeting to discuss the proposed role of Mr Cheshire occurred with Mr Levy on 18 July 2006. Both Mrs Fisher and her husband were present, as were Mr O’Keefe and Mr King.

12 According to Mrs Fisher:

“For reasons which are still unclear to me, my husband and I were advised that the case was high risk and only had a 30% chance of success at trial. We understood that it was suggested that I was the problem in the case, and the defendant would have little trouble convincing the Court that I was an anxious patient and not a credible witness.

Mr Levy then went on to say that an offer of compromise in the sum of $1.7 million should be made. My only recollection is that he said “It should bring them to the negotiating table and would be open to 28 days”. I did not recall him explaining what would happen should they accept the offer.

……………………………

I was not given a chance to respond to Mr Levy’s opinion during any part of the conference except at the end and by this time, I was too shocked and confused with what my husband and I had just been told. I recall saying, “I am very disappointed”.

13 Thereafter, according to her affidavit, Mrs Fisher had a number of conversations with Mr King in which she expressed disquiet about advice that the action should be compromised for what she regarded as the inadequate sum of $1.7m. However, on 27 July, Mr King told her that following a meeting he had with Mr Levy, it was proposed that she should seriously consider offering to accept $2.4m plus costs and that she should make up her mind by July 31.

14 Thereafter, Mrs Fisher’s affidavit recites the events which led her, on or about 8 August, to instruct her solicitors to put to the Defendants an offer to compromise for $2.4m plus costs:

“47. Without any explanation by our solicitors as to how the figure of $2.4 million was arrived at and not told of the quantum figures of Mr Cheshire’s work, I arranged on 29 July 2006 a meeting with our solicitors to be held on 1 August 2006 at their offices.

48. At this meeting, attended by Mr Charlton, Mr King, Ms Anna Walsh and Mr Taverner, my husband and I were advised that Mr Taverner would be taking over our case from Mr King whilst he was involved in another court matter.

…………………………..

50. Prior to the arranged meeting I emailed Mr King instructing him to provide the breakdown of $2.4 million, and to calculate what would be the net figure that we could anticipate for our daughter. He had not done this.

51. It was only at this meeting that my husband and I were told, after calculations were done on the spot, that a net figure of $1.6 - $1.7 million would be available to our daughter out of this sum of money.

…………………………….

53. There were several further conversations with Mr King over the phone. On one occasion Mr King said that if this matter ended up in Court, Lauren may not get anything, it could bankrupt us and the impact it will have on my health. He also said words to the effect of “$2.4million is the figure and don’t come for more”.

………………………….

55. Unhappy at all times with the notion of putting forward the offer of compromise, I felt pressured, used as a scapegoat and pushed into a corner where I could not do anything about it. I felt as the advocate for my daughter in these proceedings, as though I had let her down.

56. I did not any stage consider it to be a satisfactory offer, and paramount to my mind was that it was to be a tactic to get the defendant to come to the table. I had difficulty understanding that the figure could not be much improved on $2.4 million since we were starting so low.

………………………………….

58. I do not believe I was in a sufficiently strong frame of mind physically and mentally to consider the effects of the offer upon the case, and I do not believe it is in my daughter’s best interest to accept the sum of money, which will have very little benefit for her in the long term. I believe that instructions to put the offer were obtained under coercion.”

15 In her second affidavit sworn 20 March 2007, Mrs Fisher said about her medical condition at the time of the compromise discussion:

“I was suffering with angina pain which was becoming worse. As the pressure of this matter increased my angina symptoms became worse. I became distracted and worried because my cardiac condition was deteriorating under such pressure. This effected my decision making in that I could not make proper decisions under such pressure. This situation played a large part in my agreeing to the Offer of Compromise. This concern about my deteriorating condition also led me to agree to what my legal advisors wanted.”

16 Mrs Fisher’s second affidavit also stated that she “felt under a lot of pressure from my legal team to do what they said”, and that “I didn’t understand why they were pressuring me to agree to what they wanted. In particular, I did not understand the reason for their apparent change of mind”.

17 Mrs Fisher gave oral evidence and was subjected to cross-examination by Mr A Sullivan QC, counsel for the Defendants. In evidence in chief she told her senior counsel, Mr A Bartley SC that she had always been willing for the action to be referred to mediation but had understood that Dr Marin was not willing, although the hospital was. She said that the tone of Mr King’s voice, when in the telephone conversation he suggested she instruct him to offer to accept $2.4m plus costs, was abrupt or aggressive, unlike his usual manner. In that same conversation, she said that he told her what she should put in her letter of instruction.

18 Asked what were the factors in her mind when she gave instructions for an offer of compromise, she replied:

“A. The factors were that my credibility as a witness, I felt very guilty that it would lead to me losing the case on behalf of my daughter and I was carrying enormous guilt from the actual birth itself and I just felt that I was let down, I was letting her down again.”

19 Mrs Fisher was extensively cross-examined by Mr Sullivan upon the conferences with, and telephone attendances upon, the lawyers representing her in the case. For instance she was cross-examined upon a file note, prepared by Ms Merunovich and tendered in the Defendants’ case, of a conference held on 22 April 2005 with Mr Levy, Mr O’Keefe and Mr and Mrs Fisher. The note included these paragraphs:

(Mr Levy) discussed the issue of costs associated with having the matter proceed to a hearing, and the costs associated with bringing the witnesses out from overseas. It was noted that (Mrs Fisher) was tutor in the proceedings. The family home is in (Mr Fisher’s) name and there are no other assets of any significance that could potentially be pursued by the defence in the event that we were unsuccessful at hearing.

……………………………..

20 When the file note was put to her, Mrs Fisher disputed its accuracy, as the transcript records:

“Q. You will agree, will you not, that in early 2005, in April 2005, Mr Levy advised you and your husband that the case was not an easy one and it was complicated?
A. No.

Q. You deny that, do you?
A. Yes.

Q. You deny also, do you, that you were told in early 2005 that the defence were vigorously defending these types of claims and it was part and parcel of the professional environment?
A. Yes.

Q. Do you deny that Mr Levy told you that there appeared to be a stand off with the defendants present and that Dr Marin was not prepared to mediate at that time?
A. Yes.

Q. You disagree with that?
A. No, I agree with that.

Q. You don't deny that in April 2005 in conference Mr Levy went through the options you and your husband had concerning a mediation, namely, for instance, that you could ask for a court-appointed mediation?
A. I cannot recall.

Q. You don't deny it though, do you?
A. I can't recall it.

Q. And do you deny that Mr Levy in April 2005 advised you that if a court mediation was not granted you could alternatively go to trial?
A. I can't recall.

Q. You know the difference between saying you can't recall and "I deny", don't you?
A. Yes.

Q. You don't deny that?
A. I do deny it.

Q. Do you deny that you had a discussion with Mr Levy and Ms Merunovich in April 2005 in which you informed them that the family home was in your husband's name, and that there were no other assets of any significance that could be potentially pursued by the defence in the event that the claim was unsuccessful?
A. Yes.

21 Later in the cross-examination, Mr Sullivan turned to the subject of the conference with Mr Levy on 18 July 2006. She conceded that Mr Levy said that the success of the case depended upon the court accepting her as a credible witness and that one issue was whether she had been correctly characterised by Dr Marin as an “anxious patient”. In that context she agreed that Mr Levy raised material which had come into his possession as to Serepax being prescribed for her in 1978 and 1979 and as to the fact that before the birth of the Plaintiff she had 3 pregnancies terminated.

22 Mrs Fisher also agreed that Mr Levy raised with her the fact that there were inconsistencies between what she was then saying to her lawyers in conference and what she had stated in a proof of evidence made some years previously.

23 According to Mrs Fisher, in conference, Mr Levy told her that the action could result in a verdict for $8m. There was then this exchange:

“Q. And did he say a pragmatic analysis would be to take 30 percent of that sum, being 2.4 to $3 million?
A. Yes.

Q. Did he then say to you that some allowance would have to be made for the inevitable unrecoverable costs to date and for the future, including multipliers, as the case would take weeks?
A. That was taken into the discussion.

Q. Did he say that "if we applied a discount of $1 million for those factors, that would yield a figure of 1.4 to $2 million"?
A. I can't recall.

24 Further cross-examination of Mrs Fisher regarding the conference with Mr Levy on 18 July 2006 contained these passages

“Q. And did you ask Mr Levy at this meeting: "Would it be different if my previous evidence was the same as my evidence now," words to that effect?
A. No.

Q. You deny saying that to him?
A. Yes.

Q. And Mr Levy responded, "It would depend upon a full analysis"?
A. I don't recall.

Q. Did you then ask, "Well, how do we look at gaps?"
A. At the meeting of 18 July?

Q. Yes, at the meeting of the 18th?
A. No.

Q. You deny that as well, do you?
A. Yes.

Q. Do you deny Mr Levy saying this in response: "You will be prepared to give evidence, including identifying any holes, to make it look like links. There are always holes but it does not always matter; it is unpredictable"?
A. At the meeting of the 18th? I cannot remember.

Q. Did you say, "If Mr Marin said I had chronic anxiety, how come that is not documented?"
A. I said that at meetings prior to the 18th, but not at that meeting. I was--

Q. You deny you said that at this meeting?
A. At that meeting.

Q. I put it to you that you did say that at this meeting and Mr Levy said in response, "We will defend that vigorously"?
A. I have said that at a lot of other meetings and that was the response Mr Levy always said.

Q. I put to you at this particular meeting he said that and went on to say, "But a session of building up evidence is not for today, this is a reality check with a different agenda." Did he say that to you?
A. I can't recall.

Q. Do you deny he said that to you?
A. I can't recall.

Q. Did you say to him, "I thought I had a reasonable case against the hospital?"
A. I can't recall.

Q. Did Mr Levy say to you in response, "You have an arguable case against the hospital but one cannot separate the hospital from the obstetrician since they are interrelated"?
A. Mr Levy certainly said things to that effect prior to that meeting.

Q. I am talking about at this meeting?
A. No, well, I can't recall.

Q. Do you deny that he said that to you at this meeting?
A. I can't recall.

Q. Did he say that was especially the case since the hospital's case depends upon the Syntocinon protocol and the perceived instructions from Dr Marin to the midwives?
A. I can't recall.

Q. Do you deny that?
A. I can't recall.

Q. You recall you said at this meeting, didn't you, of 18 July: "If we are not strong against Dr Marin, do we just go against the hospital?"
A. I can't recall.

Q. Do you deny it?
A. I can't recall.

Q. Did Mr Levy respond to you by saying, "No, Dr Marin is in both cases as the hospital accepted you as a patient. They will make noise but the hospital is still in the gun"?
A. I can't recall.

Q. This was a very long meeting, wasn't it, Mrs Fisher?
A. No, it wasn't a very long meeting.

Q. How long do you say it took?
A. Up to - it was about an hour and a bit.

Q. Could I suggest to you, would you disagree that it took from 1105 to 1305, a two hour meeting?
A. Up to.

25 Mrs Fisher agreed with Mr Sullivan that on 19 July 2006, she sent an email to Mr King which dealt with a number of the matters raised at the conference the previous day including the possibility of making an offer of compromise which she mentioned in these terms:

“Geoff and I are now going through things so that we will be in a position to consider the ‘Offer’ (28 days principle) before it is presented to the defendants. Our position will be based on what we feel are the essentials/minimum $ Lauren will need. Based on that benchmark we will then prioritise.

By the way, the $1.75 m that Len mentioned is unacceptable. If you analyse the basic requirements Lauren will need and what has been costed out by John Kennedy-Gould and others, how will this amount assist in keeping Lauren healthy, happy, safe and secure over the next ten years or so? What are the consequences for us not going along with that?”

26 Mrs Fisher agreed with Mr Sullivan that by the end of the day of 18 July, she knew that if an offer of compromise were made and accepted then, subject to court approval, the case would be over.

27 Mr Sullivan asked Mrs Fisher about the telephone conversation with Mr King on 27 July. She agreed that to the best of her knowledge, Mr King’s note of it was accurate. In the conversation which, according to Mr Kings’s note, occupied about one hour, many aspects of the case, including its principal issues and of the advice given by Mr levy as to its prospects of success were discussed. As to the making of an offer of compromise, Mr King’s file note reads:

“Turning to the issue of Offer of Compromise I stressed the importance of her considering the following issues:

1. Lauren’s future and stated that although the offer may be accepted and it is certainly no deal then she would at least get some form of compensation which would assist her in her life, the alternative if she loses is that she will get zero.

I noted that Ms Fisher has no assets in her name other than being a company director and I questioned whether if she were made bankrupt if that would effect her contract and employment opportunities. She stated that would not.

We discussed the issue of the defendants mind set, in particular that of Blake Dawson Waldron being particularly determined to run this case to the end. We noted that the second defendant is more amiable to resolving this issue by way of settlement or negotiation. Having regard to the costs incurred by the defendants or likely to be incurred by the defendant in the future I estimated that the total costs will be approximately 1 – 2 millions in total each.

Therefore having regard to the Offer of Compromise we need to pitch that level at the range in which the defendant would seriously contemplate the cost benefit ratio of settling the matter for an agreed sum not potentially be exposed to a fee far excess of that amount. I stated that the figure would remain open for 28 days and if accepted then the matter would resolve. If however, the matter was not accepted within the 28 days then we would not be bound by that in the future, and we could raise the stakes significantly. I re-mentioned the benefits of indemnity costs should the plaintiffs succeed in this matter and exceed the Offer of Compromise.

I described in detail how we arrived at the figure of 2.4 million (plus costs) and noted that this is the upper range in which the offer should be made to the defendant. I stated that she and Geoff need to discuss this matter in view of the real prospects of losing this claim and that if the defendants did accept it then at least Lauren would have some form of financial compensation as opposed to zero.

I told Jan that she needs to discuss it with Geoff but if she intended to come back with a figure higher than 2.4 then that would be unacceptable in pitching an Offer of Compromise in this matter.

Jan stated that she would discuss the matter with Geoff and advise me accordingly on Monday.

28 Mrs Fisher was cross-examined about this telephone conversation:

“Q. At this stage having taken into account your e-mail that $1.75 million was an unacceptable figure for any potential offer of compromise, Mr King and Maurice Blackburn Cashman had come to another figure of $2.4 million plus costs, and Mr King explained in detail how that figure was arrived at, didn't he, in this conversation?
A. Not in detail. It wasn't in writing.

Q. Sorry?
A. He summarised it.

Q. He gave you--
A. An overview.

Q. He orally summarised the process leading to the figure of $2.4 million, didn't he?
A. Yes, how he arrived at it.

Q. He told you, as you say, that you and your husband would need to discuss the matter in view of the real prospects of losing the claim, and in light of the fact that if the offer of compromise was accepted, that at least Lauren would have some financial compensation, as opposed to zero?
A. Yes.

Q. You were told at this meeting by him, weren't you, that you needed to discuss it with Geoff, but if you intended to come back with a figure higher than $2.4 million, that that would be unacceptable in pitching an offer of compromise in this matter?
A. Are you saying that that's how he said it, and what he said?

Q. Yes, I am?
A. Well, he didn't say it like that.

Q. What did he say?
A. He said, "And don't come back for more."

29 Mr Sullivan proceeded to ask Mrs Fisher about an email she sent to Mr King later in the afternoon of 27 July. It read:

Could you please let me know why you need to decision (sic) on Monday.

30 She agreed that in the email she made no reference to Mr King being abrupt or aggressive or to him telling her not to come back with an offer of more than $2.4m

31 Mrs Fisher agreed with Mr Sullivan that she sent a further email to Mr King on Saturday 29 July:

“Hello Peter,

the purpose of the meeting is for Geoff and I to be in position where we are able to make an informed decision about the offer.

Even though you gave us independent advice last Thursday regarding the offer, both Geoff and I feel at this point that we need further information before we meet next Tuesday. To this end, we would appreciate it if you could email the following information to us on Monday afternoon:

What costs, to whom and the $dollar amount that need to be taken out of the $2.4 million offer of compromise?

In addition, Geoff and I would like to start the meeting by confirming our understanding of where we have come from, where we are up to, and what is next if the offer is/ not accepted by the defendants.

32 An exchange with Mr Sullivan about this email revealed, I think, what I regarded as Mrs Fisher’s reluctance to give evidence against her perceived interests even on inconsequential matters:

“Q. You were giving a lot of thought, weren't you by this stage, to the pros and cons of making an offer of compromise for a particular amount of money?
A. We had been advised to seriously and strongly consider this from our legal team, and the solicitor had said, "Don't come back for more. We strongly urge you to consider this." So obviously I felt, or we felt that we had to at least move in this direction, even though we had not been given, to our point of view, enough information.

Q. You were seriously and strongly considering the matter as suggested, weren't you?
A. We were considering. We weren't seriously, we were considering.

33 Mrs Fisher was next cross-examined about a conference which she attended with her husband in the office of Maurice Blackburn Cashman on 1 August 2006. Four representatives of the firm were present, namely Messrs Malcolm Charlton, Peter King and Murray Taverner and Ms Anna Walsh. She agreed that the conference occupied over 2 hours and seemed to accept that, with one relatively insignificant qualification, the file note subsequently prepared by Mr Taverner, accurately reflected the substance of what transpired. In my view, the conference has significant relevance to this case and I set out Mr Taverner’s note of it in full:

“The following issues were discussed with the client throughout the conference:

1. (Mr King) explained that in relation to the amount of the Offer of Compromise: we as the solicitors have a different view than to Senior Counsel. Peter indicated that he cannot recommend or advise that they follow Senior Counsels' instructions regarding putting an Offer of Compromise of $2.4 million plus costs.

2. The clients were advised of the estimated cost of counsel’s fees up to and including 1 September 2006. Ultimately (Mr King) advised that the costs incurred up to that date for solicitors professional fees and disbursements, counsels’ fees x 3, Centrelink repayments and private health insurance repayments and HIC repayments is in the range of $600 k to $800 k.

The clients provided clear instructions that they do not want to put an Offer of Compromise of $2.4 million this is unacceptable and they wish to pursue the case.

3. (Mr Charlton) discussed with the clients his view on the Syntocinon administration during the labour and how that the medical literature does not suggest the Syntocinon administration should be increased during labour.

4. (Mr Charlton) also advised that the reasons as he sees it, that Syntocinon should not have been used was that you were already in labour and had a precipitous labours and you were multi-parti, you were not grand multi.

5. He opines that (Mrs Fisher’s) previous terminations are not relevant because the termination occurred within 20 weeks of conception.

6. (Mrs Fisher) confirmed that she was administered Serepax (anti-depressant) while in hospital however she did not know why. She also confirmed that she was also prescribed Serepax by the Crafter Medical Centre because that would have been around the time of her acrimonious divorce to her previous husband.

7. (Mr Charlton) advised that Len Levy SC opines that the defence will raise the Syntocinon administration as the doctor exercising a clinical judgment, and it will be hard if not impossible to get supportive opinion for the plaintiff. It is a possible argument that the doctor thought the Plaintiff (sic Mrs Fisher) was anxious and was nearly grand multi and that the court may reason that nothing was wrong with the administration of Syntocinon in those circumstances.

8. He opines that we need to contact our liability experts primarily Leroy Endozin and Dr Roger Clements to ask their opinion on whether the escalation of the Syntocinon administration was a breach of accepted practice (in the circumstances of Janice’s labour) and had the Syntocinon administration or increase not occurred would the baby have been as brain damaged or would they have averted brain damage altogether.

9. (Mr Charlton) advised that Junior Counsel Richard O’Keefe opines that the prospects of this, should supportive opinions be obtained from the relevant liability experts, increases to around 70%. (Mr Charlton) confirmed that there is a differing opinion within the legal team, however the solicitors have a united front.

10. (Mr King) explained that all things considered he believes that the case can be won.

11. They also confirmed that if supportive opinion in relation to the Syntocinon administration could not be obtained they would need to reconsider their case and entertain the idea of a lower Offer of Compromise. It was made clear that (Mr King) and (Mr Charlton) were not advising “not” to put on an Offer of Compromise but to put on a larger offer on despite this causing possible descent (sic dissent) from Len Levy.

12. The clients understood that an Offer of Compromise is exactly that; a compromise and that certain discounts must be made given the arguments relating to the level of Lauren’s life expectancy. Should the court accept the defendants’ expert evidence on Lauren’s life expectancy the amount of the claim be significantly reduced, therefore any damages would be significantly less than quantified.

13. The clients were reassured that should Len Levy disagree with putting a larger offer on and he choses (sic) to walk away from the case, a suitable Senior Counsel will be obtained and is not fatal to the case, however, it is unlikely that (Mr Levy) will walk away.

14. The clients also understand that should they proceed to trail and they lose they will be exposed to a costs order and will be liable to pay for the defendants’ costs and that an offer of compromise really need to be put on in order to protect their costs situation and liability and this will reduce the gap in party party costs (the rest will need to come out of Lauren’s compensation).

Next steps:

1. Peter King is to contact the relevant liability experts relating to the Syntocinon administration issue.

2. After speaking with the experts (Mr King) is to draft a letter to the clients and advise them of the outcome the expert conferences and whether they agree with the management theorised by Malcolm Charlton and to obtain the clients instructions regarding putting another Offer of Compromise on and what amount this will be.”

34 Although Mrs Fisher was not prepared to admit the accuracy of paragraph 11 it does, in my view, at least cast doubt on her evidence that in the conversation on July 27, Mr King with some emphasis told her not to suggest an offer higher than $2.4m.

35 Mrs Fisher agreed that in due course she received from her solicitors a lengthy letter which reviewed the advice given to her, to date, and concluded under the heading “Instructions”:

“Following our conference on 1 August 2006, we confirm that you do not want to put on an Offer of Compromise for $2,400.000.00 plus costs.

You have instructed us to explore, with our medical experts the issue of whether:

1. Syntocinon was contraindicated for a multigravida woman with a history of precipitated labour;

2. The Syntocinon rate should never have been increased as you were in labour with regular moderate (/10) contractions;

3. You were in labour when you were admitted to the labour ward with a 3cm dilated cervix, contractions etc.

We confirm that Malcolm Charlton will attend to the above and will advise you of the outcome of that conference in due course.

You have advised that you are prepared to put on an Offer of Compromise but the amount recommended is insufficient to cater for Lauren’s future requirements. You will advise, in due course, the minimum amount that you would be willing to settle for should the defendant accept that proposed Offer of Compromise.”

36 The letter purported to enclose inter alia a memorandum of advice signed by Mr Levy. Mrs Fisher told Mr Sullivan that she could not recall receiving the memorandum but there is no reason to believe that it was not enclosed. Indeed, having been given the opportunity to read Mr Levy’s memorandum dated 1 August 2006, she agreed that she saw it prior to the making of an offer of compromise later that month. Mr Levy’s advice concluded:

“In the foregoing circumstances I find it difficult to understand how it could be said that I had advised that this case had excellent prospects of success. It was always a case with arguable merit based on the premise of an acceptance of the evidence to be presented for the plaintiff. In that sense it had reasonably arguable prospects of success. That remains the position although the prospects of success have obviously been lessened by recent events. The case is still reasonably arguable and therefore maintainable although the outcome is unpredictable.

Initially, and understandably, prior to challenge from the defence, the plaintiff’s expert evidence was stronger. When the defence expert evidence progressively became available which put the plaintiff’s expert evidence into a different light it has been self-evident that there would be an extreme contest with an unpredictable outcome.

I stand by the comments I made in conference and would, if requested to do so, be prepared to provide written advice concerning my view on the prospects of the case succeeding.”

37 Mrs Fisher acknowledged that she received an email from Mr King on 3 August, which attached a memorandum of advice of that date signed by Mr Levy and Mr O’Keefe. This memorandum followed a telephone conference that counsel had with a Mr Roger Clements of Harley Street London UK, an obstetrician and gynaecologist retained by the Plaintiff. The conference, according to the memorandum, primarily concerned the appropriateness of Mrs Fisher being infused with Syntocinon in the period prior to her giving birth to the Plaintiff.

38 Counsel expressed these conclusions:

“It is our considered opinion that whilst the questions posed and the anticipated answers are prima facie helpful to the case succeeding they are not pivotal to the outcome because the true pivotal issue will be determined by an assessment of the credibility of Mrs Fisher’s testimony. We remain of the view that the outcome of the factual contest concerning the credibility of Mrs Fisher’s testimony especially her state of mind at the relevant time in the context of Dr Marin’s recommendation for Syntocinon induction, remains at large and unpredictable.

For these reasons we reiterate our earlier advice that it would be reasonable to serve a 28 day offer of compromise on the defendant in the range $1.7m to $2.4m depending on the instructions given by Mrs Fisher. In our view such an offer will serve the following purposes:

Provide the client with the opportunity to exit this very highly risk laden litigation in a positive albeit compromised manner with an amount for damages which, whilst not perfect or anything approaching full or even modest compensation, will avoid a foreseeable loss and probable resultant bankruptcy which could have other adverse consequences. The rationale behind such an approach is simply that in circumstances where it is abundantly clear that the defence will not negotiate in the mid-range of compromise and won’t even talk to us about settlement, it seems to us that the only effective approach to a settlement position is to appeal to the defendants’ commercial/risk assessment approach aimed at limiting and re-allocating to the plaintiff their own potentially unrecoverable but inevitably incurred costs in an effort to resolve a potentially extremely expensive case.

It may well deflect the defence from pursuing an inconvenient listing of the matter to debate selected procedural defaults on the plaintiff’s part and other inconvenient “spoiling activity” whilst the defendants engage in a process of negotiation amongst themselves to try and reach a sharing arrangement to effect a settlement with the plaintiff where such a sharing arrangement seems to have eluded them to date.

The sooner the offer is made, and, if accepted, it will limit the plaintiff’s liability for costs, especially in respect of the element of costs which, on a solicitor / client basis, will be unrecoverable from the defendants.

It has to be recognised that in a very difficult and unpredictable case conservative thinking indicates that something in the way of a damages settlement, although quite low in comparison to the theoretical potential of the case is better than nothing which would be the result if the case failed. We believe that the risk of the case failing is real and significant both with respect to the issues of alleged breach of duty of care and causation. In the best interests of the plaintiff we believe that an offer of compromise in the suggested range should be served without further delay.”

39 There was cross-examination regarding this advice including:

“Q. You read that advice when you received it?
A. Yes I did.

Q. That advice indicated counsel's concern, didn't it, about certain issues in the case relating to Syntocinon?
A. Yes.

Q. And indeed what it did do, it was again reiterating how important it was that your - on the credit issue involving you?
A. Yes.

Q. Because what this document said was that Dr Clements, Mr Clements, the main expert that the plaintiff was relying upon, was of the view that if you were an anxious patient then it would have been justifiable to administer Syntocinon to you?
A. Yes.

Q. That's why you knew that a large part of your case was whether or not it was appropriate to administer Syntocinon to you to induce the birth, didn't you?
A. A large part of my case--

Q. A large part of your daughter's case was that?
A. The Syntocinon issue.

Q. There was a factual dispute between you and Dr Marin on the papers because you denied being an anxious patient and that is what he said was a reason for why it was that Syntocinon was administered to you?
A. He accused me of having chronic anxiety disorder. There's a big difference between being anxious, most mothers are anxious during childbirth.

Q. And you understood it was in that context that this issue of credibility arose, namely, who was likely to be believed about that dispute?
A. There was no evidence. I was led to believe that was an issue by my--

40 Mrs Fisher agreed that she and her husband discussed the advice with Mr King on 4 August. She agreed that his note of the conversation was accurate, it included the sentence:

41 On the morning of 7 August, as Mrs Fisher acknowledged to Mr Sullivan, she telephoned Mr Charlton who suggested that she be guided by Mr Levy’s advice. The cross-examination continued:

“Q. And you had faith in Mr Charlton, didn't you?
A. I had faith in no one.

Q. Faith in no one, I see. In this telephone conversation you gave instructions, didn't you, to make an offer of compromise of $2.4 million plus party party costs as soon as possible?
A. On 7 August?

Q. Yes?
A. Yes.

Q. And you said to Mr Charlton, didn't you, that you would confirm in writing your instructions?
A. Yes.

Q. And Mr Charlton said to you that they would not act until they got your written instructions, and you told him you would be faxing them straight away?
A. Not straight away.

Q. Or now?
A. I would be faxing them as soon as we could get them.

Q. In questions my friend asked you before I started asking you questions, you said that you did not prepare the letter of instruction yourself but that Mr King told you what to--
A. How to frame the letter and what was needed to be put in the letter. How it was to be put.

Q. When did Mr King, do you say, tell you that?
A. Prior to the - the following week before that.

Q. Prior to this? I suggest to you that Mr King did not at all tell you in any shape or form how to write the letter of instruction?
A. Well, that's not true.

Q. So you say that you already had been told by Mr King, had you, what should go in a letter of instruction?
A. I had been told by MBC as to how to frame this letter. Given that I had not ever done it before, I was not - I did not know how I should be putting it.

Q. Did you just keep that information that MBC gave you about that in your head or did you write it down somewhere so you could remember it?
A. I have done that.

Q. You had done that, did you? So the previous week you had written down, had you--
A. I had made notes. I had scribbled notes.

42 Mrs Fisher agreed that on 7 August she gave written instructions addressed to Mr Charlton:

“Dear Malcolm,

Lauren’s Medical Negligence Claim: Offer of Compromise

I refer to Mr L Levy, Senior Counsel and Mr Richard O’Keefe, Junior Counsel’s joint Memorandum of Advice about the Syntocinon issue requested by Maurice, Blackman Cashman (MBC) following the case conference held in you office Tuesday 1 August 2006.

Resulting from further discussions with Peter King (Friday 4 August 2006) and yourself (Monday 7 August 2006) I would like to advise that I have considered the matter before me and instruct you to proceed with formalising the offer and sending it to the defendants for their consideration. I understand that the offer to be put forward is 2.4 million plus party/party costs and will be opened for 28 days from the date the offer was formally made.

Furthermore, I indicated to Peter King on Friday 4 August that I intend to negotiate solicitor/client and counsel costs subject to the Offer of Compromise outcome.”

43 Mr Charlton replied by email dated 8 August as follows (omitting formal parts):

“We confirm recept of your facsimile dated 7 August and confirm your instructions to make an Offer of Compromise in Lauren’s claim for $2.4 million plus party/party costs.

In relation to Lauren’s ‘in hand’ sum, should the Defendants’ accept the offer, we refer to Mr King’s letter dated 3 August 2006, which estimated the gap you are required to pay between solicitor/client and party/ party costs.

We confirm that pursuant to your cost agreement, you are entitled to have the solicitor/client costs assessed, should you choose, at the successful completion of the matter. We note that ‘successful completion’ is receipt of compensation from the Defendants.

We confirm that we will serve an Offer of Compromise on the First and Second Defendants in the amount of $2.4 million plus party/party costs to be agreed or assessed, today. The offer will be open for 28 days and will expire on 5 September 2006.”

44 Mrs Fisher agreed that on 8 August she had 2 telephone conversations with Mr Taverner wherein, according to Mr Taverner’s note, which Mrs Fisher accepted as accurate, he confirmed her instructions to offer to accept $2.4m, plus party and party costs and said that he would serve an offer of compromise by the end of the afternoon.

45 In relation to Mrs Fisher’s allegation that her lawyers put undue or improper pressure upon her to settle, I have found it impossible to discern from the evidence any basis for that complaint. So far as the evidence reveals her lawyers, solicitors, and counsel, behaved very professionally. There was, in my opinion, no evidence that her decision to offer a compromise was the product of any undue or improper pressure. Rather, she seems to have received very full advice and been given every opportunity to make a well-informed decision.

46 Overall, I do not regard Mrs Fisher as a reliable witness. Her answers to questions in cross-examination were frequently unresponsive and, as I have indicated earlier, she seemed reluctant to give answers against what she perceived were the Plaintiff’s interests. While it is, of course, impossible not to be very sympathetic towards Mrs Fisher who, apart from the responsibility of caring for a severely handicapped daughter has had her own significant medical problems in recent years, I would be cautious about accepting her uncorroborated evidence on any contentious matter.

47 The two affidavits of Mr Fisher supported in some respects the testimony of his wife but did not, in my opinion, significantly advance the Plaintiff’s case on the motion. He was not required for cross-examination and did not give oral evidence.

48 Medical evidence as to the state of Mrs Fisher’s mental and physical health during 2006 was, in my opinion, inconclusive as to whether it had any relevant impact upon her ability to consider the advice tendered to her and make an informed decision. Two reports were annexed to the affidavit of the Plaintiff’s present solicitor, Mr Geoffrey Potter. The first was from psychiatrist Dr Robert Gertler who assessed Mrs Fisher on 19 February 2007. He took, inter alia, the following history:

“In January 2005, Ms Fisher developed cardiac symptoms and was diagnosed as suffering from cardiac disease after that time. She continued working in her usual capacity but in April 2006 decided to wind her business down, because of the pressures of her work and an increase in her cardiac symptomatology. She moved her work to Yass, terminated staff, and opened her own shopfront in Yass after initially trying to work from home. She had projects from her time in Canberra which needed to be finished off; despite these changes however, Ms Fisher’s cardiac symptoms continued and slowly worsened. There was associated tingling of parts of her body, nausea and some chest pain.

Ms Fisher had been involved in protracted legal proceedings to do with her daughter’s brain damage at birth. These proceedings culminated during 2006 when in June she called a meeting to discuss issues to do with the case and found out about an offer, which had been made by the other side, which “stunned” her. As well, the QC representing her informed Ms Fisher that there was “a poor success rate” and moreover that she would not be “a credible witness”.

She can recall being “gobsmacked”. Later that day there was another meeting during which her legal team tried to reassure her. Subsequently there was an increase in the offer of settlement by the other side, however by this stage Ms Fisher had become increasingly anxious, was not sleeping and was experiencing ongoing cardiac symptomatology.

She felt pressured by her legal team to accept the offer which after several days was increased; towards the end of August last year Ms Fisher signed the relevant documents. She can recall feeling “numb” and in a “state of disbelief”.

Her cardiac status deteriorated further so much so that she underwent urgent coronary artery bypass surgery towards the end of September 2006. She remained an inpatient in Canberra for several weeks and was then transferred to Yass district Hospital for further convalescence. She returned to part-time work some four weeks after the surgery but remains with ongoing symptomatology.”

49 Dr Gertler concluded that Mrs Fisher “appears to have suffered from a chronic low grade depression for many years”. Later he added:

“She decided at the beginning of 2006 to wind down her business and moved to part-time work closer to home so that she could be in a better position to help care for her daughter, whose condition was becoming increasingly demanding, as well as still maintaining a business which could support the family.

Despite these moves, however, Ms Fisher’s physical and emotional state deteriorated further. From mid 2006, following an apparent increase in pressure upon her to accept a settlement in the long running case relating to her daughter, coupled with the pressure associated with finalizing residual projects and maintaining and establishing a new workplace for herself, Ms Fisher’s cardiac symptoms worsened.

At the time i.e. from June of last year, Ms Fisher’s emotional state, in my opinion, deteriorated such that she was experiencing not only an increase in her level of depression, but also heightened anxiety. This would, in my opinion, have impacted on her capacity to deal with the legal matters pending at the time.

Attesting to the worsening in her overall emotional and physical state, was the fact that she underwent urgent coronary artery bypass surgery in September 2006 and is still in my opinion, recovering from the effects of that surgery”.

50 The second opinion was provided by Dr Owen Graham. His report dated 21 February 2007 states:

“In the latter part of 2006, Mrs Fisher had a recurrence of anterior chest pain which was diagnosed as angina. She had previously in February 2005 had insertion of stents into her coronary arteries, but in spite of this she had a recurrence of angina in 2006.

I understand that Mrs Fisher does have quite a lot of stress in her life, and this situation with the chest pain leading to heart surgery would certainly be an added stress. However, I really feel that I am unable to comment as to whether her condition during that time would have affected her ability to make clear and rational decisions in pressured situations. Whilst I certainly believe that stress can affect peoples ability to make clear and rational decisions, I am really unable to comment in this case whether this was definitely so, all I can say is that this is possible.”

51 The Defendants in their case relied on the oral evidence of Mr Levy, he having declined to provide an affidavit. He was admitted to the Bar on 25 November 1977 and took silk in November 1996. For the past 10 to 15 years, he said that medical litigation has been the predominant part of his practice. Principally, his cases have involved neonatal injury and cerebral palsy. Such cases, he said, generally involve large damages and great technical complexity.

52 He first received a brief from the Plaintiff’s solicitors in this matter early in 2002. He said his first conference with his instructing solicitor was on 31 January 2002 and that altogether he has had 5 or 6 conference in the matter.

53 Mr Levy was taken in evidence in chief through file notes of conferences and memoranda of advice. It was plain to me that he had considerable recollection of the detail of the case, an unsurprising circumstance perhaps, given that he was preparing it for trial a little over a year ago. He had formed the opinion that Mrs Fisher was a very intelligent woman but otherwise his evidence, at least in his answers to Mr Sullivan, did not extend to any great extent beyond the matters recorded in the file notes and memoranda to which I have already made reference. Referring to a 2½ hours conference with Mrs Fisher on 26 May 2006, Mr Levy said that she had a more optimistic view of the prospects of success than himself, and that they had a long discussion as to the need for her “not to look at the case through rose coloured glasses”.

54 He acknowledged that he assessed the possible range of damages if the case went to trial as between $7m and $10m:

“…… but it was a nomination of a ball park range based on results in other cases, experience, and some nips and tucks here and there for some of the known issues on damages.”

55 He summarised to Mr Sullivan his concern about what he described as the “Syntocinon issues”:

56 He also elaborated upon his concern about Mrs Fisher’s credibility:

“The issue of Mrs Fisher's credibility was a matter of acute focus for us in analysing the case. On this particular issue of prior terminations the issue was two-fold. Firstly, what was her motive in withholding this history or not relating it to her treating obstetrician and that gave rise to a different issue, that's the second fold which is not stated here, but it was a matter of concern to us because we knew, at least I knew, that a history of multiple dilations of the cervix created a cervix predisposed to incompetence, which was then an indication for cerclage which is what happened in Mrs Fisher's case. So I felt and I think others in the team felt on discussion that this item of history was a matter of some significance and that the defence may place some significance on it in terms of credibility once it came out.”

57 Asked by Mr Sullivan in effect to explain the processes by which various settlement figures were suggested, he replied:

“If one looked at an upper value of 10 million dollars, 30 per cent of that was 3. Then one looked at cost discounts in a very arbitrary enough range and that gave us a range of between 1.4 to 2 million dollars. On that scenario we identified - I identified, if you like - a possible range of settlement which may find favour with the defence.

There was another approach discussed which involved an identification of likely unrecoverable costs if the case went to trial and was successful. The methodology by which that calculation proceeded was, as I started to outline before, to assume a range of 8 to 10 million dollars, take a midpoint of 9, to take 50 per cent of that as being the basis upon which one would view compromise where there was a 50/50 view based on credibility, not a 50/50 view on merit, and to then subtract from the resulting 4.5 million allowances for what would inevitably be possible unrecoverable costs to arrive at a truly discounted figure as a nucleus for settlement.

…………………………………

58 As to Mrs Fisher’s demeanour at the conference on 18 July 2006, there was this exchange:

“Q. Do you have any recollection of Mrs Fisher's demeanour or attitude at this conference at all?
A. Yes.

Q. What's that recollection?
A. I thought she was poised and calm. I had no indication otherwise.

Q. Did she seem to be shell shocked at all or stunned or startled?
A. No.

Q. Was there any tension, as you observed it, in the air at this meeting?
A. No. I have a very clear recollection of Mrs Fisher and where she was sitting in my room and she had a notepad on her lap and she was taking notes as we went with a pencil and she referred to those notes from time to time and again at the end of the conference when she recapped on a number of matters we discussed.

Q. Do you have a recollection of your observations of Mr Fisher's demeanour at this meeting?
A. Mr Fisher sat on my far right and took very little part in the conference. I don't think he - I can't recall him saying anything.

Q. Was there any signs either orally or by way of physical observation to you that indicated to you that Mrs Fisher was unable to comprehend what was being discussed at this meeting?
A. No. The only thing I can recall in the way of Mrs Fisher's demeanour that changed during the conference was that she raised her eyebrows a couple of times during the discussion, but that was all. There was no indication I had that she was not following what was being said.

Q. Are you able to remember what topics were being discussed when she raised her eyebrows on those occasions?
A. The discussion of quantum and the issue of her credibility.

Q. Did she seek to defend herself by way of making comments when you were having the discussion about credibility?
A. Not so much defend herself, but she did ask whether Dr Marin's credibility would be challenged as well and I explained to her that before we got to that point we had to ensure that he got in the witness box and we had to prove our case before that happened and before his credibility could be challenged.

Q. Did she say anything or do anything or in any way convey by her appearance that she was upset or distressed at the comments you were making about the critical nature of her credibility and the prospects of success?
A. I got no indication that she was distressed but she did say twice that I can recall that she was very disappointed at learning this, namely what I was talking about, and I think she might have raised her eyebrows at that time, but the conference proceeded.

59 Mr Sullivan asked Mr Levy about the suggestion that Mrs Fisher felt under pressure because she thought that Mr Levy was threatening to return his brief if a third counsel were not retained:

“Q. Did you ever make any such threat to withdraw?
A. Not in those terms.

Q. What is your recollection of what you conveyed and when?
A. Well, summarising my correspondence, the words speak for themselves but I intimated on numerous occasions to my instructing solicitors that I regarded the appointment of a second junior as - as critical to my retainer because I felt this was a three counsel case in view of the timetabling orders that had been made and the bulk and volume of the work required to get the case ready for hearing and I reiterated that on a number of occasions and I see from the correspondence that the way that has been relayed to the client, it has been either relayed or perceived by the client - relayed to the client or perceived by the client as a threat. I never made a threat - it could perhaps be interpreted in that way, but I never threatened.

60 Mr Bartley cross-examined Mr Levy upon a number of aspects of his evidence. It was suggested that the case was not in fact ready for trial:

“Q. Mr Levy, is it the fact at least on one occasion, you told the solicitors that if more wasn't done to prepare the case, you would return the brief?
A. I didn't say it in those terms, but I had a robust conversation with Mr King and a separate one with Mr Charlton to that effect.

Q. When were those conversations?
A. I can't put a date on it at the moment, but it was certainly after May 2006. I believe it was in June 2006 and it was around 22 June 2006, a date I fixed by looking at my letter to instructing solicitors dated 22 June 2006.

Q. Mr Levy would you agree with this, that certainly between May 2006 and the meeting that was held on 18 July 2006, the preparation of this case became unsettled because of your concerns about a lack of preparation of the case?
A. That's one way of putting it.

Q. That's a polite way of putting it, isn't it?
A. Yes.

Q. By July 2006, the plaintiff was in default of various orders that had been made at a directions hearing by McClellan CJ?
A. Yes.

Q. The time for service of further medical reports on the issues of liability had passed by then?
A. Yes.

……………………………………..

Q. But the position was by July, August it was your view that the plaintiff was facing the very real prospects of having to make an adjournment application of a 12 week trial?
A. That was a possibility.

Q. Well it was more than a possibility was it not, it was looming as a significant factor in the attempts to dispose of the matter?
A. Well if things weren't done, yes.

Q. And they weren't getting done. That was your concern?
A. I had a concern about that, yes.

61 As to the question of compromise, there was this exchange:

“Q. May I suggest this Mr Levy, that your initial view was that the offer of compromise should be at 1.7 and that you communicated that to the tutor in conferences which involved the instructing solicitors as well?
A. I think I communicated that as a bottom range figure.

62 Mr Bartley challenged Mr Levy upon his assessment that Mrs Fisher’s credibility was essential to a successful outcome:

“Q. Mr Levy, I'd like you to assume that the hospital records show that the dosages were indeed, or the rate of infusion was in fact, doubled at 9.30 and then doubled again at 10. If you'd make that assumption. I'd like you to assume that the hospital's own protocol was that the increase should be an increase of 50 per cent of the original dosage, that that protocol was not followed. And I'd like you to assume that the hospital's protocol and Dr Marin's instructions to the hospital was that the administration of Syntocinon was to be continually monitored and ceased or reduced as soon as it became apparent that that should be done. If you assume those factors, then there's no credit issue in that is there?
A. Well there could be. I'm sorry I don't wish to be difficult about it. What's not inherent in the assumptions is the delivery system by which the Syntocinon was administered. And for example, there's a technical difference between whether it is a drip or pump. At this moment I cannot contribute to that discussion, I just don't remember--

Q. How does that discussion relate to the tutor's credit?
A. I believe it has some relevance to the question of when it is suggested that hyper stimulation could have occurred and the responses to that event. I'm afraid without studying the clinical detail, I'm not able to contribute to that question.

Q. You've already told his Honour that Mr Clements's explanation of why the pharmacological opinion could be sidelined was because of the widely variable idiosyncratic responses by different women to the same dosages of Syntocinon?
A. Yes.

Q. So that protocols, whilst providing a guidance, should be accompanied by careful qualified continual monitoring. That was a respectable and indeed predominant medical opinion as at 1985?
A. Yes.

Q. The evidence here, was it not, was that that monitoring was not taking place in the hour between 9 o'clock and 10 o'clock in the case of the tutor?
A. I can't be absolutely sure that's so at the moment.

Q. If it were the case, then that would not be a factor that depended on a tutor's credit, would it?
A. My recollection of the tutor's version of events was that there was some variability of account between what she recalled and what she didn't and as to who was present during the labour at different times and who wasn't. I can't reconcile in my mind now which event she finally settled upon in her statement, and I can't precisely say why, now, as a result that that is a credit issue. I would have to look in great detail at the documents. I'm sorry if that hinders you, but I don't wish to guess the answer.

63 Upon the aspect of the Plaintiff’s case relating to the performance of a caesarean section, the transcript records:

“Q. Mr Levy, can I suggest that the other area that you focused on which was of concern to you on behalf of the tutor and the plaintiff's prospects of success was the question of how quickly the emergency caesarean section delivery should have been performed after it was established that the plaintiff was in bradycardia. Is that right?
A. Yes.

Q. You saw real difficulties in relation to establishing a breach of duty of care on anybody's part in the emergency response to the life threatening bradycardia?
A. I felt a case based on that theory was fraught with difficulty and had poor prospects.

Q. Would this not be correct, the plaintiff had a strong case to demonstrate that the administration of Syntocinon contributed to the bradycardia, didn't she?
A. Yes, I think that's right.

Q. The consensus of medical opinion, as you understood it amongst respectable experts as at the middle of 1985, was that Syntocinon had to be used with great care?
A. I think the literature says judiciously.

Q. A good servant but poor master?
A. Perhaps.

Q. If in fact, the Syntocinon were doubled in the face of charts showing that the uterus was not returning to its normal base line before 10 o'clock, then there was a strong body of medical opinion available to the plaintiff that the continued and indeed, doubled administration of Syntocinon at 10 o'clock was a significant contributing factor to the bradycardia which led to the plaintiff's brain damage?
A. You're trying to engage me in a discussion of a case which I think we had concerns over. Our case was more to do with whether induction or augmentation was clinically indicated and the scenario which you're asking me about was not the main stay of our case. It was to do with analysing the chain of causation but not breach of duty of care as much.

Q. But you see, may I suggest this, that if there was evidence of insufficient monitoring of the tutor and the foetus in response to the Syntocinon between 9 o'clock and 10 o'clock, and if there was evidence of increased uterine tone and hypertonicity before 10 o'clock, then given your understanding that a doubling of a dose of Syntocinon at 10 o'clock would contribute to the bradycardia, it would not matter from a causation point of view whether Dr Marin was or wasn't justified in instituting the Syntocinon first. And second, the claimed failure of the defendants to respond quickly enough, was a failure in a situation which would not have arisen but for the breach on the part of at least the hospital in administering doubling doses of Syntocinon at a time when, if anything, the cessation of Syntocinon was indicated. If that's the case--

Q. Tell me Mr Levy if you have any difficulty. They are easy to formulate?
A. I can see where it's going. My comment is it's not as simple as that because a case based on judicious increase of Syntocinon is - what I remember of the clinical circumstances of this case, it was fraught with difficulty because there was a big issue on causation as to what, if any, effect the cessation of Syntocinon would have had on procuring a different outcome if the cessation occurred at given times on the clock between, for example, 10 to 10 and 10.15.

64 Later in the cross-examination, Mr Bartley returned to the state of preparedness of the case for hearing and non-compliance with court directions:

“Q. Mr Levy, in the period between 18 July when the conference with the tutor and others took place and 3 August when instructions were finally given to make the offer of compromise, there were outstanding orders directly relating to the position of each of the parties on the question of liability?
A. Yes.

Q. There was no schedule of damages completed on the plaintiff's side?
A. Yes.

Q. And therefore, no opportunity to indicate to the tutor whether or not the defendants agreed with some or all of the quantum assessments put forward by the plaintiff?
A. Yes.

Q. There was a further directions hearing for 16 August?
A. Yes.

Q. The question of mediation was still at large?
A. Yes.

Q. Did you communicate to the tutor any sense of urgency about her giving instructions to make an offer of compromise in that period, the end of July into the early part of August?
A. Yes.

Q. What was the urgency?
A. Well, I had several issues with which I was concerned. I was concerned that the case was not being prepared according to a timetable of my expectation for various reasons. I was concerned that there were increasing costs which, not all of which would be recoverable from the other side. I was concerned that the solicitor for the first defendant had already signalled through correspondence that there would be a cross dispute in relation to some of the work that applied to that topic and that, in a case where there was an improbability of settlement which is how I saw it, it was in the plaintiff's best interests to file, or to serve an offer of compromise as soon as practicable to provide a measure of cost protection in the event that there was a successful out come of the case and the verdict exceeded the offer. Alternatively, if the offer of settlement was satisfactory to both the plaintiff and the defendant then the case would settle and there would be cost benefits and finality benefits from that as well.

In broad summary that is what I considered to be the urgency. I felt the sooner an offer of settlement was made the more it would place the defendants into a position of difficulty regarding the further conduct of the case.

Q. Mr Levy, the cost saving that you identified as an agenda item for your meeting of 18 July of about a million dollars, that sort of figure could not possibly have been involved in the compliance with the court orders for the preparation of affidavits of evidence from witnesses, a Scott Schedule and an exchange of schedules about what was in dispute between the experts. There could not have been a million dollars involved in that, could there?
A. Of course not and I don't suggest that that is so.

………………………………..

Q. You advised the tutor that the offer of compromise to be put should be low enough to engage the interest of the defendant?
A. In context, yes.

65 Mr Bartley cross-examined Mr Levy upon the subject of mediation. He agreed that he was aware that an order for mediation was made at a Directions Hearing on 16 August 2006, while the offer of compromise remained open. He said that he did not receive instructions to apply for leave to withdraw the offer and, in any event, saw no reason to change the terms of the advice previously given in relation to compromise.

66 Finally in the cross-examination, Mr Bartley questioned Mr Levy about costs aspects of the case, including the likely amount of deductions from any compromise verdict awarded to the Plaintiff:

“Q. Mr Levy, from the 2.4 million that was advised as an offer of compromise to be put to the defendant a very substantial portion of that was going to be retained by the plaintiff's solicitors to meet costs and disbursements that were not expected to be met on a party and party basis. You knew that, didn't you?

A. I don't know about very substantial, I was not privy to their cost calculations. In fact I was shown part of a cost advice they had received from a firm of cost consultations with which I fundamentally disagreed.

Q. You had been asked to and had provided an estimate of your fees should the matter go to trial?
A. I provided, I think, two estimates. One was a very pessimistic view of how costs could blow out on a full running of the case and another which was what I thought my costs would be including cancellation fees in the event of a settlement.

67 The only other evidence in the case emanated from Mr King, called by Mr Sullivan. He too had declined to provide an affidavit. He said that he had the conduct of the case from February 2006 until December 2006, apart from about 3 weeks during August when he was engaged with another case. During that period, Mr Murray Taverner filled his role.

68 During the period he was involved, he said he had numerous conferences with, and telephone attendances upon, Mr and Mrs Fisher. He formed the opinion that both were well appraised of everything that was occurring in the case and asked appropriate questions at relevant times. He said that he was aware that Mrs Fisher had cardiac health issues but at no time had concern about her ability to give instructions, even in relation to issues of some complexity. He denied that he put any improper or excessive pressure upon her to settle the case, nor was any complaint made to him in that connection. He also denied that he ever spoke to Mrs Fisher in an abrupt or aggressive manner.

69 He told Mr Sullivan that in making notes of conferences and telephone conversations he was concerned to ensure their accuracy.

70 As to whether he said to Mrs Fisher “$2.4m is the figure and don’t come for more”, he testified:

71 Mr King denied to Mr Sullivan that he had any part in drafting the letter written by Mrs Fisher to his firm on 8 August 2006.

72 In cross-examination by Mr Bartley, Mr King agreed that the statement of particulars filed in court early in the proceedings quantified the Plaintiff’s damages at $15m or $16m but he said this document was not prepared by him. During the period he had conduct of the matter he did not turn his attention to any re-assessment of damages.

73 As to the compromise figure of $2.4m plus party and party costs, there was this cross-examination:

“Q. Could you explain how you came from an assessment of approximate value of the case of 8 million to advising the tutor to put an offer of compromise of 1.7 million?
A. I didn't make that statement to her.

Q. Did you never give that advice?
A. I didn't give her advice of 1.7.

Q. Did you provide a range of 1.7 to 2.4?
A. Mr Levy strongly suggested 1.7. I advised the client I thought it too low.

Q. Could you explain the new advice of 2.4?
A. I said 2.4 would be a fair and reasonable offer.

Q. Could you explain how you get to 2.4 million where your approximate estimate of the value of the case was 8 million? What were the factors that led you to give advice to compromise the case at 30 per cent or thereabouts of less than 30 per cent of your estimate of the value of the case? Could you explain step by step the reasoning that led you to give that advice?
A. Well as I said, it wasn't based on 30 per cent of the value of the case. It was based on the commercial reality.

Q. What does that mean?
A. The commercial reality was looking at, we had somewhere in the range of, from our estimate for the potential witnesses that we had in the case there was about 40 that we could have called. The defendants had around about 20 as far as I can remember. There was senior and junior counsel on both sides, estimated at 12 weeks. Working on a range of around about $25,000 to $30,000 a day for legal costs and prep work and the rest of it, I calculated that on a 12-weeks basis and then doubled it.

Q. You thought they might pay 2.4 because it would cost them more to defend it. Is that what you're saying?
A. Yes.

Q. That's how you arrived at the 2.4 million advice to the tutor. You thought you might get that out of the defendants because it would cost more to run the case and win?
A. I said it was a commercial decision.

Q. Not based in any way on the strengths and weaknesses of your client's case?
A. It was based on the weaknesses of the client's case.

Q. What about the strengths?
A. Most of it turned on the credibility of Mrs Fisher.

74 As to what the Plaintiff would receive from the compromise:

“Q. How much was the plaintiff going to net out of the 2.4?
A. Based on the worst figures that we had, it was a range and I wrote in a letter before she actually made, or any suggestion about putting on a final offer. There was a range I believe somewhere between 1.6 and 1.9, I think. I don't have that in front of me.

Q. So somewhere between 1.6 and 1.9?
A. I believe it might have been 1.6 and 1.9.

Q. Less the loss to solicitor client basis?
A. Based on a worst case scenario. All we had were rubbery figures.

75 Later, it was put to Mr King, but denied, that a factor in the advice he gave Mrs Fisher regarding compromise was that there had been delay in the preparation of the case for hearing and that it may be necessary to seek an adjournment with consequential costs penalties.

76 Although Mr King was closely and carefully cross-examined by Mr Bartley, the thrust of his evidence was not, in my view undermined. He was, I think, a truthful witness doing his best to assist the court. In some respects he, unsurprisingly, deferred to Mr Levy, or Mr Charlton and some details were outside his recollection.

77 Of greater significance was the evidence of Mr Levy whom I also assess as a truthful and reliable witness. He was forthright in his answers and seemed to have a very good recall of the details of the case, much of which was supported by contemporary notes and other documents. To the extent of any conflict between the evidence of Mrs Fisher and either Mr Levy or Mr King, I would prefer the latter.

78 Although, when Mrs Fisher gave instructions for the compromise she had not been given a detailed written analysis of the case by Mr Levy, she had had the benefit of some hours of conferences with him and other lawyers involved in the case. In my opinion, she was comprehensively advised as to the prospects of success in a difficult and complex cause of action. Moreover, in my view, the advice was given honestly and dispassionately by lawyers who, particularly in the case of Mr Levy, were highly qualified and experienced in the relevant area of practice. Although, as at August 2006, there were some deficiencies in the preparation of the case for hearing, I accept Mr Levy‘s evidence that those deficiencies were capable of being, and likely to be, overcome in the period prior to trial.

79 In my opinion Mr Levy, in particular, was genuinely concerned that for a variety of reasons the case may fail and gave appropriate advice to Mrs Fisher in that regard. Even if it be the case that during 2006, his optimism about the prospects of success had diminished somewhat from his initial assessment, this would not be to the point in the context of this motion as his duty was to advise Mrs Fisher about the case as he saw it at the time. If he had earlier advised differently, if that advice was given negligently, and if, (an unlikely event) the Plaintiff suffered loss as a consequence, she may have had other rights but that is not an issue before me.

80 I am satisfied that Mrs Fisher, a very intelligent woman, was capable of exercising an informed decision when she instructed her solicitors to offer a compromise and that her will was not overborne by any undue or improper influence upon her by Mr King or anyone else. I am also satisfied that it has not been proved that the state of her health prevented her from understanding the advice given to her and from freely reaching what, on the face of it, was a rational decision to make an offer of compromise.

81 I turn now to consider the relief which the Plaintiff seeks. In final submissions, Mr Bartley did not press any entitlement under paragraphs 2 to 4 inclusive of the Notice of Motion but it is, I think, appropriate that I make brief comment about those paragraphs, which I will do in reverse order.

82 The findings of fact stated above allow me to dispose immediately of paragraph 4. The factual sub strata for the relief sought in that paragraph was not established.

83 It was common ground that a compromise of the action requires the approval of the court. The Plaintiff, on the evidence is undoubtedly a person under legal incapacity within s3 of the Civil Procedure Act. Accordingly, s76 applies that section relevantly, being in the following terms:

“76 (1) This section applies to proceedings commenced by or on behalf of any of the following persons:

(a) a person under legal incapacity ,
(b) ………………..
(c) ………………….

(2) …………………………..

(3) Except with the approval of the court , there may not be:
(a) any compromise or settlement of any proceedings to which this section applies, or
(b) any acceptance of money paid into court in any such proceedings,
as regards the claim of a person referred to in subsection (1).

(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.

(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.

84 Paragraph 3 of the Notice of Motion seems to suggest that without the approval of the court, there can be no contract at all. Support for such a contention may, I think, be found in the decision of the House of Lords in Dietz v Lenning Chemicals Ltd [1969] 1AC 170, particularly in the words of Lord Pearson at page 190, “Either party could lawfully repudiate it at any time before the court approved it”. The case concerned the interpretation of RSC order 80 r 11, “Where in any proceedings …………… money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court …..shall ………… be valid without the approval of the court”.

85 In the divorce case of Smallman v Smallman [1972] Fam 25, the Court of Appeal of England and Wales had before it the question whether an agreement expressed to be subject to the approval of the Court constitutes a binding agreement.

86 In the course of his judgment, Denning MR (with whom Phillimore LJ (with an additional observation) and Orr LJ agreed) said:

“Since the Divorce Reform Act 1969 also it is common for agreements to be made “subject to the approval of the court” and to seek the opinion of the court under section 7 as to the reasonableness of them.

In my opinion, if the parties have reached an agreement on all essential matters, then the clause “subject to the approval of the court” does not mean there is no agreement at all. There is an agreement, but the operation of it is suspended until the court approves it. It is the duty of one party or the other to bring the agreement before the court for approval. If the court approves, it is binding on the parties. If the court does not approve, it is not binding. But, pending the application to the court, it remains a binding agreement which neither party can disavow.”

87 Perhaps somewhat curiously Dietz was not referred to in Smallman but Smallman was expressly approved by Young J, albeit obiter, in Mitchell v Osbourne (unreported 20 May 1997) where his Honour, after holding that the agreement in question did not require approval said:

“However, if I were wrong on that then the passage from Small man v Smallman [1972] Fam 25 at 31, to which Mr Trebeck referred, should be followed. It the agreement is said to be subject to the approval of the court, that does not mean there is no agreement at all. There is an implied term in the agreement to present the settlement to the court for approval. In the meantime, it remains a binding agreement, which neither party can disavow”.

88 In my opinion, Smallman should also be followed in this case, but, in any event, as it seems to me, the terms of the relevant section are plain, there being no reference to invalidity as there was in the rule considered in Dietz. Rather s 76 of the Civil Procedure Act, particularly by its references to “agreement” in ss (4), (5) and (6) seem to assume that the approval of the court is required to an agreement otherwise binding.

89 Accordingly, in my judgment, the Plaintiff is not entitled to the declaration sought in paragraph 3 of the Notice of Motion. The agreement for compromise is binding upon the parties, none of whom is entitled to repudiate it. There is to be implied a term to bring the agreement to the court for approval.

90 Of course, there is a practical difficulty which need not concern me in that there is much long standing authority to the effect that on an application for approval of a compromise the court will ordinarily seek the endorsement of the plaintiff’s tutor (see eg In re Birchall 16 Ch D41). An implied term requiring a party to bring the agreement to the court for approval would not, I think, because of an overriding duty to the court require a party to support a compromise which the party then thought should not, in the interests of the disabled person, be approved

91 The relief sought by order 2, in my view, is misconceived. Rule 20.29 (1) provides:

(a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or

(b) to an order that the proceedings be dismissed, and to judgment accordingly, as the defendant elects, unless the court orders otherwise.”

92 The rule is in a division of the rules dealing with formal offers of compromise and seems to have no application to the situation where an agreement for compromise requires court approval. Nor for that matter does the rule contemplate the granting of relief of the kind sought by the Plaintiff.

93 There remains the Plaintiff’s claim for relief under the Contracts Review Act (hereafter “the Act”). The jurisdiction to grant relief under the Act is conferred by s 7(1) which relevantly provides:

“7 Principal relief

(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:

(a) it may decide to refuse to enforce any or all of the provisions of the contract,

(b) it may make an order declaring the contract void, in whole or in part,

………………………………………….”

94 Section 9, inter alia, deals with the matters to be considered by the court:

“9. Matters to be considered by Court

95 There follows 12 paragraphs commencing with:

“(a) whether or not there was any material inequality in bargaining power between the parties to the contract, “

96 Other paragraphs which arguably may have some relevance to this case are:

(e) whether or not:

(i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or

(ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented,
because of his or her age or the state of his or her physical or mental capacity,

(f) the relative economic circumstances, educational background and literacy of:
(i) the parties to the contract (other than a corporation), and
(ii) any person who represented any of the parties to the contract,
…………………………………….
(h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,

(i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect,

97 Neither counsel was able to refer me to a case where, as here, the applicant for relief placed no reliance upon the knowledge, conduct of, or circumstances peculiar to the other contracting party. In this case, the Defendants had seemingly shown no interest in compromise. The impetus for the Plaintiff’s offer emanated solely from the advice Mrs Fisher received from the Plaintiff’s own lawyers and had nothing to do with the Defendants.

98 As it seems to me none of the paragraphs of s 9 (2) was proved to have any relevance. The Plaintiff was advised by experienced and competent senior counsel, junior counsel and solicitors who were undoubtedly independent of the Defendants. Mrs Fisher was an intelligent and, on her own evidence, successful businesswoman. Despite her own health problems and the stressful nature of her responsibilities as her daughter’s tutor, I am, as previously indicated, satisfied that she understood the advice which was proffered to her and the nature and significance of the offer of compromise which she instructed the Plaintiff’s solicitors to make. She was, in my view, at all relevant times mentally and physically capable of adequately representing the interests of her daughter.

99 As I have already found, no undue influence or undue pressure was exerted on Mrs Fisher, but even if it were otherwise, s 9(2) (j) would not apply as there was no evidence that the Defendants played any role in Mrs Fisher’s decision to offer a compromise. Indeed, the evidence overwhelmingly suggests the contrary.

100 However, the preliminary words of ss (9) (2) are very wide and plainly encompass circumstances not specifically mentioned, including cases where no “fault” is alleged by the other contracting party. See for instance Nguyen v Taylor (1992) 27 NSWLR 48; Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 and the more recent case of Amcor Ltd v Watson [2000] NSWCA 21.

101 The first question to be considered therefore is whether the agreement was “unjust” within s 7 of the Act. The word is defined in s 4 to include “unconscionable harsh or oppressive”. The Act being beneficial legislation is to be interpreted beneficially (West v AGC (Advances) Ltd (1986) 5 NSWLR 610 per Kirby P at page 611). See also the observations in West of McHugh JA, with whom Hope JA agreed, at page 612:

Contracts Review Act

102 In determining whether the Plaintiff has proved (in my opinion, she has the onus) that the agreement for compromise of the proceedings was unjust it will be necessary to have some regard to the evidence available in the case. If an unjust agreement is established it will then be necessary to consider as a separate matter whether relief should be granted under the Act.

103 The case involved medical issues as to breach of duty and causation. In part it depended upon Mrs Fisher’s credibility, a matter upon which I have earlier commented in relation to the evidence she gave before me.

104 As I understand it, there was little if any dispute as to the extent and consequences of the Plaintiff’s profound disabilities, which seem to be fairly summarised in Associate Professor John Yeo’s report to Maurice Blackman Cashman dated 3 February 2006.

“Medical History

Miss Fisher has suffered from cerebral palsy since her birth on the 17.7.85. She continues to live with her father and mother in Yass. She has two married half sisters.

Miss Fisher continues to be severely disabled suffering from chorea-athetoid cerebral palsy.

She has profound spastic paresis involving upper, lower limbs and trunk with serious loss of cognitive function with inability to produce understandable speech although continuing to appreciate her home environment and the dedicated attendant care given by her parents and some paid personal assistance.

Miss Fisher normally wakes at around 7am and is assisted with one attendant to the toilet and then dressed after completing her personal care. During school term she attends a special school travelling by bus and her father anticipates that Lauren will continue with this schooling for at least one more year. The patient is now aged twenty years. She will continue to benefit from participation in community programs for the severely handicapped and be encouraged to socialise in a limited capacity by her parents w ho are now aged sixty years and fifty-nine years. Her father confirmed that the patient has not had any major convulsions over at least the last six years, however remains on medication. The patient tends to be continent at night but incontinent during the day. She has been investigated for visual difficulties including a reported loss of central vision and an observed disturbance of conjugate gaze. Her hearing appears to be within reasonable limits and she indicates her enjoyment of attending school and familiar company.

She does also express periods of anger and frustration. The patient has some ability to use, in particular, the left upper limb despite the spastic paresis. Her father indicates that she has limited ability to paint but is unable to feed herself. There is some use of the right upper limb but this is of very little functional use.

The patient has had osteotomies to help correct contractures and deformities in both lower limbs. She has an ability to assist with standing transfers due to limited function in the left lower limb with some spasticity. She has established contractures particularly involving the left knee joint.

Miss Fisher has had a persisting permanent scoliosis with a degree of lordosis. Her father confirmed that she has continued with Epilim. One tablet TDS and Prothiadine BD as well as her analgesic therapy. She also has Valium when she is agitated, especially at night.

In addition to operative procedures on her hip, she has had operations to help correct a squint and has been in the past hospitalised for convulsions but has not had any major periods of hospitalisation for this problem over the last ten years. She has only had one episode of trophic skin ulceration. The patient appears to suffer from dysmenorrhoea.

Clinical Examination:

The clinical examination on the 2.2.06 confirmed that the patient has profound spastic tetraparesis with serious loss of cognitive function. She has an established scoliosis and lordosis. There was no demonstrable understandable language but the patient did on one occasion shriek when frustrated or anxious. She had bilateral and equal movements of the palate and did not appear to have any significant evidence of respiratory obstruction during this interview. She continues to have the problem of incontinence of urine and faeces and wears absorbent pads. The patient has remained wheelchair dependant with the wheelchair being controlled by her personal carer. The patient is able to assist with standing transfers. She appears to have normal sensation but was unable to fully extend the right lower limb, either in active or passive movements due mainly to the contractures around the right knee joint.

Investigations:

The most recent MRI report in 2001 had confirmed the presence of established bilateral ischaemic changes in the thalamic regions as a result of the apparent hypoxia suffered by the patient at birth.

Discussion and Conclusions:

Miss Fisher will remain with a permanent and severe spastic tetraparesis without any useful coordination with attempted voluntary movement in either upper or lower limbs. While having some voluntary movement mainly in the left upper and lower limbs, the patient’s functional abilities will be permanently and severely limited by her underlying brain pathology.

I would not expect her lack of speech to improve although there may be techniques which would help the patient in communication and a further consultation should be sought with her treating speech therapist. The patient will also continue to require regular review by her orthopaedic surgeon, neurologist and a urologist at least on a yearly basis.”

105 Later in his report Professor Yeo opined that the Plaintiff’s life expectancy is 71% of the years “that now normally remain in view of her, 1. Spastic tetraparesis and, 2. Profound cognitive loss with permanent brain damage”.

106 In the circumstances, although I have not attempted myself to quantify damages with any precision, Mr Levy’s assessment as being within the range $8m - $10m seems reasonable.

107 The large volume of medical evidence tendered in the hearing before me on the issues of breach of duty and causation was complex and conflicting. All parties had qualified experts of very high standing and great experience, yet there was little agreement amongst them. I do not think it is either appropriate or possible for me to attempt resolution of the conflict between the experts on the hearing of this motion. However, I will illustrate the width of the conflict with two examples.

108 In the Plaintiff’s case, Mr Clements provided several reports, the first of which dated 19 November 2004 concluded with this “Summary”.

In my opinion, oxytocin should not have been employed; it should not have been employed in inappropriate doses; the effects of oxytocin in causing hyperstimulation should have been recognised sooner, the oxytocin stopped and a tocolytic drug given. The management of Mrs Fisher’s labour was incompatible with a reasonable standard of care and directly caused the injury to Lauren. “

109 In the Second Defendant’s case, Dr John Campbell, obstetrician and gynaecologist of Melbourne in a report dated 8 May 2006 expressed this opinion to the Second Defendant’s solicitors:

“I will address the issues raised in paragraph 2 of your letter of 19 April 2006.

I consider that the mother and the foetus were appropriately monitored. Analgesia was appropriately ordered and administered.

2.(b) A Syntocinon infusion regime of 5 units of Syntocinon per litre of fluid commencing at an infusion rate of 10 drops per minute is a standard dose regime. The infusion rate was doubled to 20 drops per minute after 30 minutes and a further doubling occurred to 40 drops per minute after a further 30 minutes. This is a standard infusion rate and all midwives are instructed to increase the Syntocinon until effective contractions occur. The Syntocinon infusion can be adjusted upwards or downwards depending on the uterine response. At the time of the increase to 40 drops per minute the partograph charted contractions as occurring 4 in every 10 minutes and being moderate to strong in intensity.

I consider the use of a low dose Syntocinon regime was appropriate. The timing of increases of the Syntocinon infusion was also standard and appropriate. In particular it was appropriate to increase to 40 drops per minute based on the assessment of the contractions.

2(c) It is most likely that the Syntocinon infusion was ceased at 1002 – 1003 hours as written on the partograph. In an acute situation it is usual practice to make a quick note on the partograph as that is immediately available whereas the hospital records may be no in the Delivery room at the time of an action.

Review of the CTG indicates that the first suggestion of a foetal heart abnormality is at 1002 – 1003 hours. Thus the timing of cessation of the Syntocinon infusion was appropriate.

2(d) The exact time that the Obstetric RMO was called is not recorded. The RMO’s notes written at 1025 (which would be after the assessment and management had been made) would suggest that the RMO was called between 1005 and 1015 hours. The nursing staff initiated correct procedures for the management of foetal distress which included turning the patient onto her left side and the administration of oxygen. The obstetric RMO correctly performed a vaginal examination to exclude cord presentation or prolapse, and appropriately instituted treatment for maternal hypertension. The RMO promptly and appropriately called for help from a more experienced Obstetric Registrar and the Registrar arrived within a very short time. The hospital record also indicates that Dr Marin had been appropriately contacted at the same time as the hospital RMO and arrived within a reasonable time of being called.

I consider these steps were all appropriate management in 1985. The only other treatment that could have been considered was the administration of a tocolytic medication such as Salbutamol. I do not know if that option was available at the Queen Victoria Hospital Delivery Suite in 1985. It appears to me that the hospital staff responded quickly and appropriately to the detection of foetal distress and that correct measures for management were undertaken by the hospital staff up until the time of arrival of Dr Marin.”

110 I am required by s 9(1) of the Act to take into account the strong public interest in holding parties to their contract. Such interest is particularly acute where the agreement involves the settlement of legal proceedings, especially in the circumstances of this case where the compromise resulted in the vacation of the hearing date for a trial estimated to take twelve weeks. Very considerable community resources were involved. However, even in the absence of these considerations. I would not be persuaded that the contract of compromise was “unjust’ at the time it was made, in all the circumstances. This was a case which clearly could fail having regard to the conflicting medical and factual issues raised and I see no reason to question the advice as to its prospects of success given by Mr Levy. On the basis of that advice, resolution of the case for a compromise verdict of $2.4m, plus party and party costs, seems reasonable, given that the alternative may have been a verdict for the Defendants with no benefit whatever to the Plaintiff, and the imposition of a huge costs burden upon Mrs Fisher. It seems to me not to the point to speculate whether an offer pitched at a higher amount might or might not have been acceptable to the Defendants. There is no reason to suppose now that the Defendants would have been attracted to a higher offer.

111 During argument, I expressed concern as to the significance of evidence that the court ordered the parties to mediation at a time when the Plaintiff’s offer of 8 August 2006 remained open. Upon reflection, I agree with Mr Sullivan that it has no relevance to the motion, as it seems highly improbable that even if the offer were, with leave of the court, withdrawn, the Defendants would have been willing to settle for a sum greater that the Plaintiff offered.

112 In my opinion, the Plaintiff has failed to show that the agreement was unjust within the meaning of the Act. It follows that the Notice of Motion must be dismissed with costs, and I order accordingly.

113 The exhibits may be returned.

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Citations

Fisher v Marin [2007] NSWSC 1411

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CITATION:	Lauren Fisher by her Tutor Janice Fisher v Dr Raymond Marin & Anor [2007] NSWSC 1411
HEARING DATE(S):	9,10 August 2007 29, 30 October 2007
JUDGMENT DATE :	11 December 2007
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 112
LEGISLATION CITED:	Contracts Review Act 1980 Civil Procedure Act 2005
CASES CITED:	Nguyen v Taylor (1992) 27 NSWLR 48; Baltic Shipping Co v Dillon (1991) 22 NSWLR 1; Amcor Ltd v Watson [2000] NSWCA 21; West v AGC (Advances) Ltd (1986) 5 NSWLR 610; Mitchell v Osbourne (unreported 20 May 1997); Smallman v Smallman [1972] Fam 25; Dietz v Lenning Chemicals Ltd [1969] 1AC 170.
PARTIES:	Lauren Fisher by her tutor Janice Fisher - Plaintiff Dr Raymond Marin - First Defendant Women's and Children's Hospital, Adelaide - Second Defendant
FILE NUMBER(S):	SC 20247 of 2002
COUNSEL:	Mr A Bartley SC with Mr R Ingram - Plaintiff Mr ASullivan QC with Mr J Downing - Defendants
SOLICITORS:	Commins Hendriks - Plaintiff Blake Dawson Waldron - Defendants