Fowkes v Parker

[1999] NSWCA 442

CITATION:	Fowkes v Parker [1999] NSWCA 442 revised - 14/12/99
FILE NUMBER(S):	CA 40948/98
HEARING DATE(S):	7 September 1999
JUDGMENT DATE:	3 December 1999
PARTIES :	Dr Geoffrey Fowkes v Maria Teresa Gabriella Parker
JUDGMENT OF:	Priestley JA at 1; Fitzgerald JA at 145; Davies AJA at 154

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5505/97
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Williams

COUNSEL:	Appellant - P. L. Brereton SC Respondent - D. Wheelahan QC; M. Williams
SOLICITORS:	Appellant - Blake Dawson Waldron Respondent - Abbott Pardy & Jenkins, Glen Innes
CATCHWORDS:	Medical negligence; Damages awarded by jury
CASES CITED:	Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 130 Browne v Dunn (1893) 6 R 67 (HL) Cameron v Baker (unreported, CA, 6/8/80) Channel 9 Pty Ltd v Antonidias (1998) 44 NSWLR 682 Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Griffith v Kerkemeyer 139 CLR 161 Grincelis v House (1998) 156 ALR 443 Humphries v The Queen (1987) 17 FCR 182 Jones v Dunkel (1959) 101 CLR 298 Montague L Meyer Pty Ltd (1976) 51 ALJR 77 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Saunders v McDonald (unreported, CA, 20/11/96) Whittaker v FCT (1998) 153 ALR 334
DECISION:	Allowed in part - new trial ordered limited to assessment of damages

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40948/98
DC 5505/97

PRIESTLEY JA
FITZGERALD JA
DAVIES AJA

Friday, 3 December 1999

FOWKES v PARKER

MEDICAL NEGLIGENCE - action tried by jury - witness refers to medical insurance - conflict between expert witnesses - trial judge’s refusal to permit expert to give evidence on an issue not dealt with in the expert’s written report - objection to particular questions asked in cross-examination of one expert witness directed to partiality - address by plaintiff’s counsel to jury said to be inflammatory.

DAMAGES AWARDED BY JURY - whether, taking into account the maximum amounts the jury could have awarded on the evidence for all damages other than general damages, the general damages must have been excessive.

The respondent (the plaintiff at the jury trial) suffered an inverted uterus when, seven minutes after the appellant medical practitioner (the defendant at the trial) had delivered the respondent’s first child, assisted the delivery of the placenta by holding the umbilical cord and exerting pulling pressure on it. The consequences of the inverted uterus were serious, and the respondent suffered permanent damage, including a set of symptoms classified as Sheehan’s syndrome. Her case at the trial was that the appellant had mismanaged the delivery of the placenta by exerting too much force on the umbilical cord when using it to assist the delivery of the placenta. The jury’s verdict for the respondent was in the sum of $960,500. It became common ground at the hearing of the appeal that the jury must have awarded general damages of the order of $560,000. The appellant appealed both as to liability and quantum.

As to liability, the appellant acknowledged that there had been evidence before the jury upon which it was open to them to find for the respondent. The appeal was based on a number of incidents at the trial (referred to in the above catchwords) which it was said warranted a new trial. As to quantum, it was not contended for the respondent that the verdict could be sustained.

Held : (1) when the various incidents at the trial complained of by the appellant were considered in the full context of the ten day trial, none of them, and no combination of them, justified the granting of a new trial. The judgment would have to be set aside however because the amount of damages awarded was excessive. Upon considering the constraints of s 107 of the Supreme Court Act and the decision of the High Court in Shehata v Montague L. Meyer Pty Ltd (1976) 51 ALJR 77, the court was not satisfied that it was fully able to assess the amount of damages on perusal of the evidence contained in the documents before it. A new trial limited to damages would therefore have to be ordered.

ORDERS

1. Appeal allowed (in part).
2. Judgment below, as to amount of damages, and costs, set aside.
3. Judgment below, as to liability, to stand.
4. New trial ordered, limited to the assessment of damages.
5. Costs of first trial to be in the discretion of the judge presiding at the new trial.
6. Subject to order 7, half of the appellant’s costs of the appeal to be borne by the respondent.
7. Liberty reserved to either party, to apply within a period of seven days after the making of these orders, if any question of indemnity costs in regard to the appeal needs to be argued.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40948/98
DC 5505/97

PRIESTLEY JA
FITZGERALD JA
DAVIES AJA

Friday, 3 December 1999

FOWKES v PARKER

PRIESTLEY JA:
Introduction .

1    On 25 September 1977 Mrs Parker, the respondent in this appeal, gave birth to a son at the Inverell District Hospital. As events have turned out, her son has been her only child. The doctor attending at the birth was the appellant, Dr Fowkes. 2    The baby boy was delivered by forceps and was healthy. Seven minutes later the placenta was delivered by traction on the umbilical cord. It was then noticed that the uterus was inverted and had come through the cervix into the vagina. There was profuse bleeding. Emergency procedures were carried out at the end of which it was recorded in the operation notes that “Uterus had resolved itself” (Blue AB 53). The respondent experienced discomfort and “a sensation of a mass in the vagina” before leaving hospital (Blue AB 19) and after she was discharged. In February 1978 upon examination by Dr Giblin she was found to have an inverted uterus presenting well down in the vagina. This was corrected by a Holtain’s operation. From that time she continued to have a number of symptoms which affected her life very substantially. 3    In 1991 her symptoms were explained when she was diagnosed as suffering from a rare condition known as Sheehan’s syndrome. Following that diagnosis her health improved to some extent. Following the diagnosis also, she commenced proceedings in 1992 against the appellant in the Supreme Court, claiming damages for negligence. The proceedings later became an action in the District Court. Her claim was that her health problems and problems related to it had been caused by the way in which the appellant removed the placenta and then dealt with the inverted uterus. 4    The respondent’s negligence action was tried before his Honour Judge Williams of the District Court and a jury of four. The trial lasted through ten days, 19 October to 30 October 1998. Evidence was completed at the end of the eighth day. At the end of the tenth day the jury returned a verdict for the respondent in the sum of $960,500. 5    In outline, the case the respondent presented to the jury was as follows: after her baby had been delivered by forceps “I heard [the appellant] say that the placenta wasn’t coming away and he was going to pull on the cord”; the next thing she felt was “a great expulsion”; this caused the inversion of her uterus, with severe shock and loss of blood; her life was immediately in danger; this caused her considerable immediate harm and was also responsible for all her later problems. 6    There was no doubt that after the birth the respondent suffered from uterine inversion. Major issues at the trial were whether (i) the appellant had mismanaged his removal of the placenta (ii) if so whether that had materially contributed to the uterine inversion and (iii) if (i) and (ii) were answered yes, her subsequent serious problems were all at the least materially contributed to by the uterine inversion. 7    In this court the appellant sought a new trial. It was recognised by the appellant that there was undoubtedly evidence before the jury which, if accepted, entitled them to find the appellant in breach of his duty of care. The appellant nevertheless submitted that there had been a number of happenings at the trial, which the trial judge wrongly permitted, and which were prejudicial to the appellant, any one of which was a sufficient ground for finding that the trial had miscarried, and which in combination made a new trial virtually inevitable. 8    The appeal was heard on 7 September 1999. The final notice of appeal was filed on 26 August 1999. It contained fifteen grounds. Grounds 1 to 7, 14 and 15 were directed to the jury’s finding of negligence (liability) and the rest to the amount of damages awarded. Grounds 4, 5 and 11 were not pressed in the appellant’s submissions to the court. The argued grounds going to liability were as follows:

“ 1. His Honour erred in refusing to allow the appellant’s expert, Dr Hinde, to give evidence in reply to the viva voce evidence of the respondent’s expert, Professor Crandon, on the issue of the aetiology of uterine inversion.
2. His Honour erred in failing to discharge the jury consequent upon an address to the jury by counsel for the respondent which was inflammatory and suggested to the jury that the appellant was insured in respect of the respondent’s claim.
3. His Honour failed to direct the jury that:
(a) there was no obligation on medical practitioners to carry professional indemnity insurance; and
(b) there was no evidence that the appellant carried such insurance.
.....
6. His Honour erred in directing the jury that the uncontradicted evidence that an obstetrician exercising reasonable skill and care following a complicated birth to be five minutes away from the respondent within a large hospital was of little significance as in a large hospital there would be a host of other personnel available to treat the patient, whereas there would be none in a hospital such as Inverell, when there was no evidence as to either of those matters.
7. His Honour erred in summing up to the jury in a manner prejudicial to the appellant.
.....
14. His Honour erred in allowing cross examination of the appellant’s expert, Dr Elliott, in relation to proceedings in which he had been a defendant, in particular on findings of credit in those proceedings.
15. His Honour erred in allowing Dr Cross’s evidence in re-examination to the effect that Dr Fowkes was insured. ”

9    I will consider these in the order in which they were argued, but before doing so will make some preliminary general observations and outline the way the cases for the respondent and appellant were presented at the trial.

General .

10    This appeal is typical of many that come before this court. There is a long trial in which many issues emerge, some of which become the focal issues upon which the attention of counsel and the court is principally concentrated. After judgment, a party appeals and fresh counsel go carefully through the trial transcript, looking for possible appeal points. Then, in the Court of Appeal, attention is concentrated on those points, which sometimes tend to become detached from the body of what happened at the trial. This of course does not always happen, and frequently this court has to deal with arguments concerning what were the main points in issue at the trial. But it also frequently happens that this court becomes enmeshed in detailed consideration of matters not really going to the heart of what the trial was about. This is particularly noticeable in appeals from jury trials, where the new counsel at the appeal sometimes succeed in putting the case in a different light altogether from that it bore at the trial. This can be a perfectly legitimate procedure, but nevertheless this court must be wary lest it overlook the context of the trial and be diverted to attaching more significance to particular points on appeal than is warranted by what happened at the trial. This cautious approach to appeals needs to be kept in mind in regard to several of the grounds relied on by the appellant here.

Outline of the cases of the respondent and the appellant on liability .

11    The purpose of the outline. This outline of the opposing cases is very summary, and is principally confined to what happened in regard to the main liability issues. It is intended to give some idea of the course of the trial and the context in which some matters came up which were later sought to be relied on by counsel for the appellant in support of the grounds of appeal. Witnesses whose evidence was not relevant to liability are mentioned in the order in which they appeared, without any discussion of their evidence. 12    The respondent’s evidence. I have already set out in paragraph 5 what became a very important part of the respondent’s evidence concerning the inversion of her uterus after the delivery of her son. She recalled hearing the appellant say “that the placenta wasn’t coming away” immediately before he pulled on the cord. The hospital records establish that the delivery of the placenta took place seven minutes after the birth. That timing was another matter that became important in regard to liability. The respondent was not cross-examined about her recollection of what the appellant had said. This was because the appellant had no recollection of the birth of the respondent’s son. All he was able to say about the birth when he came to give evidence was by way of reconstruction and deduction from the surviving hospital records. Dr Finlay, the anaesthetist in attendance when some emergency procedures were carried out on the respondent, who was a partner of the appellant at the time, although the partnership came to an end soon afterwards, had no independent memory of any of the events either. 13    The respondent gave evidence also of having felt a blockage in her vagina while still in hospital after the birth and then through the period until February in the following year when she consulted Dr Giblin who diagnosed an inverted uterus and operated on her to correct it. 14    The respondent’s evidence was given on the first and second days of the trial. Her husband was the next witness, on the second day. Also on the second day Dr Tan gave evidence. His evidence was mainly psychiatric and also dealt with Sheehan’s syndrome. 15    Dr Giblin. Dr Giblin gave his evidence in chief by videolink on the third day of the trial. He was a specialist obstetrician of many years experience. He had furnished a medical report, which was not tendered as an exhibit but read onto the record in the course of his evidence. In examination in chief he said it appeared to be “quite plain that [the respondent] had an inverted uterus following her having had the baby and it remained like that for the next five months”. (Black AB 1/122) 16    At the end of Dr Giblin’s examination in chief, the appellant’s counsel sought to defer his cross-examination because some material had emerged during his evidence for which counsel was not prepared. Whether the appellant’s counsel should have been prepared or not did not become an issue because counsel for the respondent said that “Putting aside the rights and wrongs of” appellant’s counsel not having the documentation, he could understand the prejudice and would not raise any objection to the cross-examination being deferred (Black AB 1/124). That course was followed. 17    Counsel for the appellant also mentioned to the judge that two further medical witnesses whom he knew were going to be called for the respondent would also criticise the appellant’s failure to correct the inversion, this being something of which counsel had had no previous notice and about which he needed to obtain expert advice before he could cross-examine. It was agreed that he should have time to get instructions about those matters before the two further witnesses (Professor Crandon and Dr Cross) were called. 18    Dr Bartley: Dr Buckley. The evidence of Drs Bartley and Buckley was then given (third day). Dr Bartley was an endocrinologist who explained the relation between the pituitary gland and Sheehan’s syndrome. Dr Buckley specialised in rehabilitation medicine. 19    Respondent recalled on third day. In the remaining part of the third day and at the beginning of the fourth, the respondent gave further evidence relevant to damages. 20    Professor Crandon. The next witness on the fourth day was Professor Crandon. He was a highly qualified specialist in obstetrics and gynaecology. He had prepared a report about what had happened to the respondent, dated 13 October 1992. This was not tendered. He gave his evidence in chief by reference to it, supplemented by further questions from counsel. It was based upon the hospital records and the available objective facts of what had happened to the respondent after the events of 25 September 1977. He thought that it simply defied logic that the inversion of the uterus had reversed itself as asserted in the hospital notes. 21    In his report, Professor Crandon had stated his opinion that the appellant’s care of the respondent at the time of her confinement fell below the professional standards that would be expected in four ways. It is not necessary to list them all here. The first of them was that undue traction was placed on the cord at the time of the delivery of the placenta, thus leading to the uterine inversion. This was seven minutes after the delivery of the baby. (Black AB 1/179). Professor Crandon later said that “If you do nothing, in the vast majority [of cases, the placenta] will deliver itself eventually. It may take an hour or so” (Black AB 1/181). Professor Crandon also recognised that it is sometimes necessary for the delivery of the placenta to be assisted by pulling on the umbilical cord. He emphasised however that this should not be done before the placenta has commenced to separate from the wall of the uterus, particularly if the uterus is not yet contracting:

“ ... If you don’t have a contracting uterus and the placenta is still adherent to the wall of the uterus, you run a very real risk of just turning the uterus inside out .” (Black AB 1/183)

22    The importance of this aspect of Professor Crandon’s evidence was that the inference was clearly available, in light of the respondent’s evidence of the appellant’s having said “the placenta wasn’t coming away”, that the appellant had applied traction to the umbilical cord before the placenta had commenced to separate from the uterus wall. This material if accepted by the jury was quite sufficient for them to find the appellant liable for negligence causing the uterus to invert. 23    In addition to the case for negligence that could be made on the basis so far described, which seems to me to have been the respondent’s primary case, a further matter relevant to liability was introduced in the evidence in chief of Professor Crandon. This became intertwined with what I have called the primary case. It became the subject of much dispute at the trial. This further strand of the argument was based on the view expressed by Professor Crandon in his evidence in chief that:

“ ... The vast majority of these cases are as stated in Maggie Myles’ book on midwifery and in other textbooks of obstetrics and in scientific literature. The vast majority of these cases are related to the mismanagement in some way, shape or form of the third stage of labour. ” (Black AB 1/183)

(It was common ground that the third stage of labour was the period between the delivery of the baby and the delivery of the placenta.)

24    Whether the medical literature supported the opinion expressed by Professor Crandon, or whether the latest statements in that literature supported a much less positive view, became an issue at the trial, with expert medical witnesses called in the appellant’s case disputing the accuracy of Professor Crandon’s opinion. 25    Reference to Dr Hinde’s report. Professor Crandon’s cross-examination began before lunch on the fourth day and continued into the fifth day of the hearing. During the afternoon of the fourth day counsel for the appellant asked Professor Crandon whether he had read Dr Hinde’s report, this being a report from a proposed witness for the appellant. Before cross-examination of Professor Crandon on that report began, counsel for the respondent intervened saying that the report was under objection for certain reasons and that notice of objection had been given because of late service in terms of the timetable. Counsel submitted that if counsel for the appellant wished to do anything about the report the objection should be dealt with first. The matter was left in abeyance at that stage. 26    Cross-examination of Professor Crandon. The cross-examination of Professor Crandon was wide ranging but, speaking broadly, he maintained his opinions. Towards the end of the cross-examination he was referred to articles in recognised medical journals on the basis of which he was asked whether “In September 1977 in all probability [the appellant] confronted a patient with an inherent predisposition towards inversion?” (Black AB 1/231). Professor Crandon raised a number of queries about the scientific soundness of the conclusions of the authors. This became the subject of further argument during the trial, the chief features of which were the fact that inversion of the uterus was very rare so that most papers about it would be based on a limited number of cases, and any wider surveys would be based on cases where the reliability of the basic facts could never be accepted with any confidence. (See Dr Child’s evidence referred to at par 62 later.) 27    Dr Giblin. When Professor Crandon’s evidence was complete, Dr Giblin’s videolink evidence was resumed (the afternoon of the fifth day). In cross-examination Dr Giblin agreed that spontaneous inversion of the uterus was possible. He said he had delivered “some 7,200 babies in [his] lifetime” (Black AB 2/267) and later he said:

“ I have seen a lot of inverted uteri and I have pushed a lot back in my time but I have never had a recurrence of an inversion. I am not saying that it can’t occur but ... it must be fairly rare for a uterus to re-invert but I am not saying that it can’t .” (Black AB 2/273)

28    In re-examination there were the following questions and answers:

“ Q. I think you told my learned friend that you don’t use cord tugging or traction to try and ...
A. I don’t like the word tug.
Q. Sorry, traction, you don’t use cord traction to try and remove the placenta, to detach the placenta?
A. No, no, you’re not. You’re only testing to see if it is separated. ” (Black AB 2/275)

This was further material supporting what I have called the respondent’s primary case.

29    Dr Cross. Dr Cross was called as the last witness in the respondent’s case, on the sixth day of the trial. He was a general practitioner, practising in Adelaide. He had provided a written report, apparently of some length (p 16 is referred to - Black AB 2/284) but again this was not tendered. He gave his evidence by reference to the report, not always by direct quotation. 30    He was asked in chief whether the first reason he had given in his report for thinking the standard of skill and care of the appellant was not acceptable was that on the balance of probabilities the acute inversion “was related to misjudgement of the applying force by [the appellant], i.e. too much force; is that right?”. Dr Cross answered “And/or too early”. He was then asked whether his “too early” comment referred to too early application of force to which he answered “Right” leading to the following question and answer

“ Q. Does that relate to the suggestion of not waiting for a contraction or not waiting long enough until there was a sign of the placenta starting to remove itself?
A. Both and also for maybe the drugs involved. ” (Black AB 2/284)

31    Cross-examination of Dr Cross. The cross-examination of Dr Cross introduced a new note in the trial. The first three questions and answers were as follows:

“ Q. Do you believe that you can bring a completely impartial mind to bear on the case as between the plaintiff and the defendant in this case?
A. Yes.
Q. Is there anything that the jury should know that might suggest to them that that is not the case?
A. Possibly. Could I speculate?
Q. Well, you say there is something that might go with your perceived partiality and you haven’t told the jury to date, is that what you are saying?
A. No.
OBJECTION
HIS HONOUR: He has not been asked. ”

(It would seem that the witness had answered no to the third question before or at the same time as the objection was made.) The judge’s comment, indicating a rejection, was quite appropriate. As the cross-examination proceeded from the starting point I have quoted, it turned out that the point of the beginning questions was that Dr Cross was the father of one of the solicitors for the respondent. The purpose of a number of the following questions seems to have been to suggest that Dr Cross would, to suit the case of his son’s client, give expert evidence of opinions he did not genuinely hold.

32    Dr Cross’s examination, cross-examination and re-examination all took place before the first adjournment of the day. Re-examination immediately followed the end of the cross-examination. The transcript shows that the re-examination opened as follows:

“ Doctor, it wasn’t put to you squarely in cross-examination so I am going to put it to you now so you can answer it, has the fact of having a son associated with the plaintiff’s firm of solicitors affected your opinion or views on this case in any way?
A. No. One of the jobs I have to do in my trade is act as an independent medical examiner and one of the things I have to take into account in all those sorts of circumstances is competing influences and when I was asked the question earlier and said probably there were some issues, they were the issue of one, my son, and the second competing issue which gives me greater heartache and more concern is the fact that I am insured with the insurance company that I presume is handling this case.
[Defendant’s counsel]: Objection. This is outrageous.
HIS HONOUR: I will allow the evidence. It is not outrageous at all. If you want to make suggestions like that about people and leave them up in the air, counsel is entitled to clear them up.
[Plaintiff’s counsel]: Q. I don’t think we need to go into it any more. You say that the possibility is you being tugged either way?
A. Yes.
Q. If you felt compromised by either of those considerations would you have gone ahead and given your opinion?
A. No. ”

33    The appellant’s witnesses. Dr Finlay. Dr Finlay was the first witness in the appellant’s case, on the sixth day of the hearing. He had not been present in the delivery room on 25 September 1977 when the respondent gave birth and the placenta was shortly afterwards delivered. According to the hospital records he was present in the operating theatre when the appellant repaired the perineal tear. Whether or not he had administered a general anaesthetic to the respondent was not clear on the records. He had no independent memory at all of what happened in the operating theatre. Based on his recollection of his practice, he said he would not have administered general anaesthetic to the respondent in the state she was in at the time when he was in the operating theatre as disclosed by the hospital records. 34    His evidence was not of any direct assistance on the question of liability. However, in view of the rare occurrence of an inverted uterus, and the fact that when one did occur, as all the experts agreed, it created an immediate life threatening emergency, it may well have seemed strange to the jury that neither he nor the appellant had any recollection of it whatsoever. 35    The appellant’s evidence. The appellant himself was the next witness, also on the sixth day. He had no independent recollection of his delivery of the respondent’s baby. It was the only time he had delivered a child whose mother’s uterus was immediately noticed as inverted. He said he understood about traction and the need for care in using it. Based on his recollection of his knowledge at the time, his usual practices and the documentary materials in the various hospital records, he said he would not have exerted undue force when pulling on the umbilical cord. He also said that visual inspection during his repair of a perineal tear which he did in the operating theatre following the removal of the respondent there from the delivery room, showed the uterus was no longer visible in the vagina; he had a clear view to the cervix. 36    In the appellant’s evidence in chief he gave an account of his medical career which had begun in England. He had spent a number of years as a doctor in the British army. In the course of this he had had to deal as a surgeon with many life threatening wounds. He came to Australia in 1975 where, at first at least, he encountered what he called “a bit of a closed shop mentality” (Black AB 2/321) in the medical profession. He also said that he found medical things in Inverell a bit strange in that there were two major practices in the town whose senior partners would not even say good morning to each other if they met in the hospital corridors (Black AB 2/322). That was one of the reasons he eventually left Inverell in March 1980. 37    A couple of his answers to questions in cross-examination may have had an effect on the jury. One of the matters of complaint against him (which I doubt was in the end either particularly important or made out) was that despite the grave state of his patient after he had operated on her, he did not stay in the hospital. The answer was that his home was very close to the hospital and he could get there very quickly if called. Asked where he was at the time, however, he said he could only assume he was at home. Then:

“ Q. Do you know what you would have been doing?
A. Probably gardening. I had a very big garden there. Maybe watching the grand final on the television.
Q. When discussing your postpartum care of this lady, I have you noted here as saying: ‘Well, the patient’s still here today so I can’t have been that negligent.’?
A. That was a bit of a flippant thing to say but unfortunately having said it, I can’t withdraw it. ”

38    A little later in the cross-examination he was asked whether, given that the case against him was a medical negligence case,

“ You and your colleagues who give evidence to assist you have an interest in resisting plaintiffs winning against you, haven’t you? ” (Black AB 2/355)

The question was objected to. Counsel for the respondent sought to justify it as going to the credibility of the appellant but said that perhaps it was better for submission but he did not want to be in the position where he could be accused of not having put it to the appellant. The trial judge did not formally rule on the question but it was not pressed.

39    During cross-examination it was put to the appellant that he had been unduly hasty in using traction at only seven minutes into the third stage. He denied this. In re-examination he said that the normal length of the third stage varied from five to fifteen to thirty minutes adding “So seven minutes is at the lower end of the normal range”. 40    Further mention of Dr Hinde’s report. The appellant’s evidence ended towards the end of the sixth day. Then, in the absence of the jury, counsel for the appellant again raised the matter of Dr Hinde’s report which had been earlier mentioned on the fourth day. He said that he understood counsel for the respondent still intended to object to his relying on it, although, in his contention it had been served within time. He said Dr Hinde was an obstetrician and that he had three obstetrician witnesses who all said substantially the same thing. Counsel for the respondent then said that although in his contention the report had not been served in accordance with the specific timetable laid down for the case, he thought the respondent was able to meet it. He said the only real prejudice was the possibility that the jury might do a head count of experts and ended by saying that subject to his respectful request that the judge would in the course of directing the jury enjoin them not to make any decision based upon a head count of experts, he did not object to the use of the report. 41    Dr Elliott. Dr Elliott was the first witness to give evidence on the seventh day of the trial. He had a very long experience and very high qualifications as a specialist obstetrician and gynaecologist. He estimated he had delivered 12,000 babies in the course of which he had had one incident of uterine inversion which he said had been a spontaneous occurrence which he had replaced immediately. 42    Dr Elliott had given a report based on the clinical notes of the Inverell Hospital. The report was not tendered. Counsel for the appellant took the witness through the report, in a way which makes it difficult to know when the witness was reading from it, when he was paraphrasing it or when he was adding to it. 43    A principal point of his evidence for present purposes was that the “authors ... of the more recent literature ... believe that spontaneous occurrence of inversion of the uterus is probably the cause in 50%.” (Black AB 2/366). In the same answer he added “Cord traction is controlled, ... and it is not used until there is separation ... You can’t use that method of delivering the placenta until there has been placental separation”, and he added, shortly afterwards, in another answer, “... the afterbirth is beginning to separate as the baby is being delivered. So placental separation is occurring at that stage ...” (Black AB 2/367). A little later again, he said that in 99.999% of cases the placenta will have started to separate as the baby is coming through the entrance to the birth canal (Black AB 2/367). 44    His opinion was that on the materials available to him, the appellant had not been in any way deficient in his management of the respondent in his care of her on 25 September 1977. His conclusion (although it sometimes appears in fact to have been an assumption) was that the appellant carried out controlled cord traction in a way that would not have been the cause of the inversion of the uterus. 45    He was also asked, in his evidence in chief, about a number of articles in the medical literature. In answer to questions from counsel for the appellant he read out parts of some of the articles. When asked to quote from one particular article he said:

“ I could quote on page - it is cut off but what they are saying is modern reports fail to show a direct association of inversion with mismanagement of the third stage, so what they are saying is that this rare occurrence doesn’t happen because the doctor has mismanaged it. ” (Black AB 2/370)

46    Simply from a reading of the witness’s answer, and that is all that was before the jury, the witness’s understanding of what the authors were saying as given at the end of his answer does not seem to follow from the earlier part of it; it seems to be an expansion of the text, not justified by so much of the text as was available to the jury through the witness’s evidence, and an expansion in favour of the appellant’s case. 47    However, the impression given by that answer of the witness must be qualified by what he said very shortly afterwards:

“ Q. Now, I take it that you subscribe to the school of thought that you have just been telling the jury about?
A. Yes, I believe that you can’t incriminate mismanagement as the cause with the exception of actually pulling on the cord, I mean, without control of the things and without knowing that the placenta has separated. ” (Black AB 2/370)

48    Although this answer is not completely clear, it seems to me to mean that mismanagement can be incriminated as the cause of uterine inversion when there has been pulling on the cord “without control of the things and without knowing that the placenta has separated”. Why I am not fully sure of the meaning of his answer is the presence of the words “without control of the things” which, in the context, I do not understand. However the answer as a whole seems to me to mean that the witness was recognising that even after delivery of the baby the placenta may not have separated and that there should not be any pulling on the cord until the attendant doctor is at least reasonably sure that that has happened. 49    The cross-examination of Dr Elliott began with a challenge to his impartiality. Based on his cross-examination, counsel for the respondent later said to the jury in his final address that Dr Elliott was “an appalling witness ... A bad record, and an appallingly evasive, biased witness”. He contrasted him with Professor Crandon, Dr Cross and Dr Child (a witness called in the appellant’s case, who gave evidence after Dr Elliott) who he said were prepared to make concessions that seemed to them to be reasonable. In the course of argument in the appeal. questions were raised whether counsel had been entitled to say these things to the jury about Dr Elliott. I think it is difficult for this court itself to form any opinion of Dr Elliott. The opinion it was open to the jury to form would be based not only on what appears in the transcript and is available to this court, but also upon the manner in which he answered questions. Pauses and hesitations do not appear in the transcript. They play a part in the formation of an observer’s opinion of a witness. Just how efficient the part they play is has in recent years been a matter for argument, but, for better or for worse, they do play a part, and they are not available to this court. All that this court can do upon a reading of the record in this case is to try to assess whether the answers given by the witness to counsel were such as to enable counsel, without impropriety and unfairness to the witness, to make the observations that he did. 50    With that in mind I would say at this stage, that the answers given in cross-examination at Black AB 2/389, 390 (about not checking about the blood bank in 1977), 392, 395 lines 25 to 45, 397 lines 22 to 29, 398 to 399 line 5, 401 lines 45 to 49, and then the following sequence, seem to me to provide material upon which it was possible for counsel to make the submission to the jury that he did. It was a matter for the jury to decide whether it accepted the view put to them by counsel. I wish to make it clear that I am not myself adopting or approving counsel’s view. For reasons already mentioned, I do not think I am in a position to do so. My comment goes no further than saying that the written record of the cross-examination of Dr Elliott provides material in the light of which I do not think that it can be said to have been improper of counsel to say what he did. 51    (I have gone into this in a little detail because in the course of the oral argument in the appeal there was some discussion about whether there was something improper or unfair in the submission made to the jury about Dr Elliott. As I have indicated I do not think, on the available materials, that there was. It also seems to me to be of some relevance that counsel for the appellant did not make such a submission.) 52    It also became clear in cross-examination that Dr Elliott’s opinion that the appellant had not been negligent was based on the appellant’s having said that he only used controlled traction as taught. His opinion was thus based on the assumption that controlled cord traction had been used which he defined as “a gentle thing with pushing the uterus away with your hand above the pubic bones and the placenta is already separated”. This led to counsel asking whether or not he should not have said the placenta should be already separated to which Dr Elliott replied “You cannot use controlled cord traction if the placenta is not separated” (Black AB 2/397). The cross-examination proceeded:

“ Q. You must never use it in order to separate it?
A. That is correct.
Q. So you don’t use it in a situation where the placenta is not coming down, to drag it down, do you?
A. You can’t drag it down if it is not separated. You can’t use controlled cord traction unless the afterbirth has separated from the womb.
Q. Because you might the whole uterus inside out, mightn’t you?
A. Exactly. That is why you don’t do it. ”

53    This part of his evidence was useful to the respondent in support of what I have called her primary case (depending, of course, on the meaning the jury would attribute to the appellant’s reported statement that “the placenta wasn’t coming away”). 54    There were other questions asked of Dr Elliott in cross-examination which became the subject of submission in the oral argument in the appeal which I will not set out here but will deal with when dealing with the ground of appeal under which they were raised. 55    Dr Child. Dr Elliott’s evidence finished not long before lunch on the seventh day of the trial. Dr Child was then called as a witness for the appellant. He was another highly qualified specialist obstetrician and gynaecologist. In more than thirty years of practice he had himself twice experienced an inverted uterus when in charge of a childbirth. (Not all of his years of practice involved him in the personal delivery of babies; for a number of years he had been in a supervisory position.) The standard method that he used for delivering the placenta was by controlled cord traction. He was asked whether he had been asked to prepare a report by Blake Dawson Waldron to which he answered yes. The report was not tendered. Dr Child was taken through it by counsel in examination in chief in such a way that parts of it seem to have got into the evidence verbatim. In part of his report he had said he did not think the placenta was being delivered with any undue haste by the appellant. 56    Dr Child said the cause of acute inversion of the uterus was not well understood. On the materials with which he had been supplied he saw no basis for criticism of the appellant. He was asked about “current thinking as to the most common cause of uterine inversion” (Black AB 2/415). His answer was

“ Some of the articles and chapters now would suggest that approximately 50% may be due to excessive traction on the cord, pulling on the cord too hard before the placenta has completely separated. The other 50% seem to occur spontaneously and to be due to various factors. ” (Black AB 2/415)

57    Dr Child then listed the factors. He stressed the need of separation of the placenta before the use of traction (Black AB 2/416). He said that the usual sign of separation is that the cord lengthens, accompanied by the fundus moving up (that is, away from the cervix). He said abdominally you can feel it move up as a hard ball in the abdominal cavity (Black AB 2/416). He went on to say that the most definitive sign of separation is the doing of an internal examination which enabled you to feel the placenta sitting in the cervix or the vagina; then, he added, “once you have established that it has separated or you are comfortable that it is separate then the normal practice is controlled cord traction” (Black AB 2/416). 58    Dr Child also later commented in his evidence in chief that the complication the appellant had encountered was extremely rare and with the sort of experience the appellant had he would expect to come across it once in every 200 years, so that to face it in the circumstances in which he did “must have been a most unnerving event” (Black AB 2/418). 59    Once again, the evidence concerning separation before traction lent weight to the respondent’s case, if the jury took a view of the meaning of the words “the placenta wasn’t coming away” favourable to the respondent. The evidence concerning the unnerving event would have been favourable to the appellant in one way, in suggesting that it may have been unreasonable to expect more of him in his circumstances at the time than he in fact did (although the unnerving event occurred after he had pulled on the cord) but again may well have caused the jury to wonder how he had come to forget about it so completely. 60    Dr Child’s evidence in chief continued into the eighth day. 61    In cross-examination one question taken up with Dr Child was how the appellant’s statement that the inverted uterus had reversed itself between the time when he first noticed it in the delivery room and when he made the perineal repair in the operating theatre could be reconciled with Dr Giblin’s finding that the uterus was inverted in the following February in a way which he thought must be connected with its having been inverted at the time of the birth in September. Dr Child conceded that it was a possibility that at the time the respondent was discharged from the Inverell Hospital there was some degree of partial inversion of the uterus remaining. He also agreed, consistently with the evidence he had given in chief that if at the time the appellant had applied traction to the cord there was no sign of the placenta coming down it would have been inappropriate for him to apply traction (Black AB 2/441). 62    Dr Child was also asked in cross-examination about the basis of some of the modern literature concerning the causes of uterine inversion. He agreed that it was necessarily based on reports by attending doctors who had had to deal with the event. He also agreed that, in regard to the possibility they may have pulled too hard, “they wouldn’t advertise that fact” in their reports of the case. 63    Dr Hinde. Dr Hinde was the last witness for the appellant. He was called between the morning and lunch adjournments on the eighth day of the hearing. He had prepared a report. Yet again, this was not tendered. He was without objection invited to read from it. Judging by the amount that found its way verbatim into the transcript it must have been quite lengthy. The reading was interspersed with comment and explanation. Counsel also raised with him in the course of the reading of the report various opinions expressed by Professor Crandon and Dr Cross and Dr Hinde gave his own opinion on those matters, sometimes differing from them. All this took up about twenty pages of transcript. Counsel for the appellant then said to the witness that he wanted to put to him another view expressed by Dr Crandon concerning the reasons for uterine inversion. This brought an objection from counsel for the respondent. The basis was that the matter was not dealt with in Dr Hinde’s report. Counsel reminded the judge that the objection to the report’s being out of time had not been persisted in. 64    After hearing argument, with which I deal in a little detail when considering the first ground of appeal, the judge refused to allow evidence on the topic to be given. 65    Dr Hinde was then cross-examined on the matters with which he had dealt in evidence in chief. He was also asked questions about the possibility that his expert evidence might not be completely objective. He maintained his belief in his own objectivity. 66    He also said in cross-examination that he believed that what had happened between 25 September 1977 and the respondent’s consultation with Dr Giblin was that at the conclusion of the procedure on 25 September 1977 there was a first degree inversion of the respondent’s uterus and then during the period until she was examined by Dr Giblin there was progressive change to what was a second degree inversion (Black AB 2/487). However he rejected completely the possibility that there could have been an inverted uterus to the vaginal opening, in light of the hospital notes. 67    Final preliminary remarks. Some of the oral argument in the appeal hearing seemed to me to stray outside the grounds of appeal. It is noteworthy that three grounds (1, 14 and 15) complain about events in the course of the giving of evidence and these complaints deal with exclusion or admissibility of evidence. The other four grounds deal with the respondent’s counsel’s address to the jury (ground 2) and errors allegedly made by the trial judge in his directions and summing up to the jury (grounds 3, 6 and 7). Except to the extent that ground 2’s allegation of counsel’s inflammatory address to the jury reflected things said in the course of presentation of evidence, no complaint was made in the appellant’s submissions about the conduct, prior to his final address to the jury, of the respondent’s counsel. 68    Before at last coming to the grounds of appeal I would like to make it clear that on reading the transcript more thoroughly after hearing oral argument in the appeal than I had done before it, I finished with quite a different impression of the course of the trial from that I had gained simply by attending to the argument on the particular grounds of appeal relied on by the appellant. It is against that fuller background that I now approach those particular grounds.

Ground 1: Refusal to allow Dr Hinde to give evidence in reply to the viva voce evidence of the respondent’s expert, Professor Crandon, on the issue of the aetiology of uterine inversion .

69    In the circumstances already summarised, Professor Crandon, who had not referred to the general topic of the aetiology of uterine inversion in his report, gave evidence about it on the fourth and fifth days of the trial. This evidence was not objected to. In the appellant’s case Drs Elliott and Child gave expert evidence on the aetiology issue on the seventh and eighth days of the hearing. When counsel for the appellant sought to lead evidence from Dr Hinde, who had not dealt with the aetiology issue in his report, objection was taken on the ground that the issue was not dealt with in his report, leave to lead the evidence was therefore required, and leave was opposed. 70    The question whether leave should be granted was argued at a little length in the absence of the jury, and the judge gave reasons for refusing to allow it to be led. It is clear from his reasons that he took the following matters into account: the fact that leave was needed; the stage the trial had reached; the fact that two expert witnesses for the appellant had already given their opinions on the issue in replying to what the respondent’s expert witnesses had said about it; that he was not persuaded, on what he had been told by counsel would be said by Dr Hinde, that his evidence would add anything to what the jury had already heard; the claim made by the respondent’s counsel that, having conducted the case on the footing that Dr Hinde would not be giving evidence on this topic, he would be forensically prejudiced by leave being granted: and other matters connected with the way issues had been dealt with at the trial which were relevant to the expediency of granting or refusing leave. 71    After mentioning these matters and also his understanding that the main subject of the evidence sought by leave to be led was “the most likely cause of uterine inversions generally” the judge said:

“ the only third stage mismanagement we are talking about in this case, it seems to me, is that there was too much traction applied to the cord, which is a factual thing the jury will have to decide ...
[He mentioned the evidence given in the appellant’s case by Drs Elliott and Childs on the aetiology issue, and continued]
I am concerned about Dr Hinde’s report because it nowhere either talks about what his view is of the particular case, that is what his view is as to why Mrs Parker had her uterine inversion, nor does he talk at all or say on what basis at all he would say, as he is going to be asked, his view on the most likely cause of uterine inversions generally and I think at this time in proceedings to go into that area yet again is going to be prejudicial to the plaintiff. There is little opportunity of being able to deal with it and I do not think it is going to be terribly helpful to the jury.”

72    I do not see any miscarriage of the exercise of the trial judge’s discretion in this aspect of the trial. Although, obviously, he could have legitimately exercised his discretion to allow the evidence to be led, that of course does not mean he was obliged to do so or that the decision he actually made was one which this court could say was a wrongful one. An aspect which evidently weighed with the trial judge and which seems to me to have been a legitimate matter for his concern, was that the application was made well into the afternoon of the eighth day of the trial, in respect of the last witness, when it will have been known that addresses were going to follow immediately. The judge’s remark about there being little opportunity for the respondent to be able to deal with the evidence proposed to be led is to be understood in that context, and also in light of what counsel had submitted concerning the forensic difficulty (which I take to be principally the delay required for preparing to deal with whatever Dr Hinde might say on the topic) which would be occasioned if the evidence were allowed to be given. 73    This was not a fanciful submission by counsel in view of the way each expert gynaecologist had produced and read onto the record excerpts from different medical publications. If Dr Hinde produced further material of this kind counsel would either have to cross examine on it without specific preparation, or seek an adjournment. No doubt counsel was by this stage of the trial in a reasonable position to cross-examine any doctor on the aetiology issue, but even so, his client was entitled to have his counsel prepare himself for the specifics of what Dr Hinde was to say and rely upon in the way of medical literature. 74    I do not see any mistake of law or understanding of the various factors at work, on the part of the trial judge. Nor do I see that his decision caused any injustice to the appellant when it is kept in mind (a) that the appellant’s counsel said that the particular evidence (as to aetiology) was going to be the same as that already given and (b) all the aetiology evidence was based upon each expert’s reading of medical literature based on a small number of cases the facts of which could not be taken as firmly established. Also, as the trial judge later said in his summing up

“ In many respects, members of the jury, the argument between the various doctors as to whether or not the literature established the predominant cause of inverted uterus is mismanagement of the third stage or involuntary or spontaneous causes may have little relevance to your deliberations if you are satisfied one way or the other for other reasons as to what happened during that third stage. ” (Black AB 3/20 E-I)


The trial judge had earlier made it clear to the jury that what I have been calling the respondent’s primary case was probably the first issue for them to consider.

Ground 15: his Honour erred in allowing Dr Cross’s evidence in re-examination to the effect that Dr Fowkes was insured. Ground 2: his Honour erred in failing to discharge the jury consequent upon an address by counsel for the respondent which was unduly inflammatory and suggested that Dr Fowkes was insured. Ground 3: alternatively, his Honour failed to give adequate directions to the jury in respect of that suggestion .

75    Each of these grounds relied on the fact there had been references to insurance in the course of the trial. 76    I have earlier set out how insurance first came to be mentioned. Turning to the answer where Dr Cross referred to it in re-examination, it is true that he did not answer the precise question that the respondent’s counsel had asked him. It was however an answer responsive to the second question asked of him in cross-examination. In light of that question, and of the suggestion that had been made against him of partiality it seems to me that the answer he gave was one that he could have given at some stage in re-examination and that its being given in a way that was not strictly regular was a matter of no great significance, subject to the question, to be dealt with later, of the introduction of the topic of insurance. 77    The next time insurance was referred to in the course of the trial was during the address by the respondent’s counsel to the jury. In a review of the evidence of the medical witnesses he referred to Dr Cross’s evidence and recalled the way his cross-examination had begun. He mentioned the relationship between Dr Cross and his solicitor’s son and said the opening part of the cross-examination had been one where “the cross-examiner circles but never has the fortitude to strike”. He said the insinuation had been left up in the air that because Dr Cross had a relative in the solicitor’s practice “may be he wouldn’t tell the truth, or you shouldn’t believe him or something”. He then read the relevant part of the re-examination, ending with the judge’s rebuke to counsel for the appellant. 78    At the end of respondent counsel’s address, counsel for the appellant applied for the discharge of the jury on the basis that the reference to insurance had caused such prejudice that it could not be cured by appropriate direction to the jury. After hearing argument his Honour said that he did not think it was appropriate to discharge the jury because of what had been said about insurance; he said he was disappointed that counsel for the respondent had raised it again during addresses but it had already been raised, the jury had heard it and it was actually part of the evidence. He ended by saying:

“ I will direct the jury in regard to the question that they are not to have any consideration whatsoever as to whether the defendant’s insured or uninsured. ”

79    It was submitted that his Honour had not dealt satisfactorily with the question of insurance in his summing-up. It was made a subject of criticism that when the judge mentioned that a number of the experts had had questions raised about their objectivity he referred particularly to Dr Cross and to Dr Elliott and in regard to these two witnesses said:

“ Dr Cross was asked if he could bring to bear an unbiased mind to this case having regard to the fact that his son was a partner in the firm of solicitors acting for the plaintiff. You heard his response to that. Dr Elliott was more severely challenged as to his objectivity by [counsel for the respondent] and you heard the allegations regarding that and the doctor’s response to it. ”

It was submitted that so far as Dr Cross was concerned this unnecessarily recalled to the jury what it was that he had said about insurance. To my mind, it was a reference that could not have affected the conclusions of any juror in any significant way.

80    Counsel then drew attention to the direction given by the trial judge about insurance. This was as follows:

“ I would also like just to direct you briefly at this time about the question of insurance. Now whether or not either of the parties in this matter are insured can play no part in your deliberations whatsoever. It would be quite unfair for it to be otherwise. It would be unfair to award a plaintiff less because a defendant is not insured as it would be to award a plaintiff more because the defendant is insured. The plaintiff should be awarded what you think she is entitled to, no more and no less, no matter what the reason, so I direct you that any question of whether or not the defendant or anyone else is insured should just play absolutely no part in your deciding what the plaintiff should get by way of damages .”

81    This seems to me in the circumstances of the case to be quite an adequate direction. Counsel for the appellant submitted that the direction was defective in not drawing to the jury’s attention the fact that there was no evidence that the defendant was in fact insured and submitted that there should have been a direction that there was no evidence that the defendant was insured. I do not think this point has any weight. As I have said, I think the direction given was adequate. The further direction which it is said should have been made, seems to me to go on the implicit premise that the jury would not adhere to the direction that had been given; the further direction would be pointless otherwise. I see no reason why this court should not proceed on the footing that the jury would comply with the judge’s direction. On that assumption, the further direction could not improve matters and could have the result of focussing more attention on the insurance question than was needed. 82    In short, I do not think that the references to insurance in the trial were such as to require the discharge of the jury; further, I think the references were capable of being dealt with by a satisfactory direction; and, finally, it seems to me that the direction that was given was satisfactory. The insurance grounds are in my opinion an example of what I earlier mentioned, something of much less significance when seen in the overall context of the trial than when dealt with on appeal, in isolation, and with the spotlight shining on them much more fiercely than was the case at the trial. 83    In support of the grounds of appeal now being considered, counsel for the appellant sought to rely on some other matters which did not directly raise the matter of insurance but which he said should be considered in connection with the “inflammatory” aspect of the present grounds. These matters were relied on because it was said, taken all together they showed the respondent had successfully and improperly been able to create the David and Goliath impression that his unfortunate plaintiff client was struggling against an insured medical profession with long pockets and legal representation of one of the biggest firms of solicitors in Australia. (I will deal with these matters separately under the sub-heading “prejudice” immediately after what I have to say about Ground 14 following.) 84    I would not uphold any of grounds of appeal 15, 2 or 3.

Ground 14: his Honour erred in allowing cross-examination of the appellant’s expert, Dr Elliott, in relation to proceedings in which he had been a defendant, in particular on findings of credit in those proceedings .

85    In the course of cross-examination of Dr Elliott, extending from Black AB 2/401 to 404, three questions were objected to. It was submitted in this court however, that those objections ought to be taken as covering the whole line of cross-examination in those pages of the transcript. 86    The passage to which objection was sought to be taken in the appeal commenced at Black AB 2/401S where Dr Elliott was asked whether, when he prepared the report for the appellant in the present case, he was himself then being sued for medical negligence. No objection was made to this question, which drew the answer, “Every gynaecologist in Australia has”. This hyperbolic reply inevitably led to further questioning. This led to a partial retreat by Dr Elliott in saying “From what I am told, yes, more than 50%, certainly the vast majority in the teaching hospitals have been sued”. 87    Dr Elliott was then asked whether after he had written the report for the appellant in the present case he had had judgment entered against him for $107,540 taking effect from 24 February 1995 in the New South Wales Supreme Court (Black AB 2/402 J). This is the first of the three questions which was objected to. It was allowed. Curiously, it was not then ever directly answered, although the context of the following questions and answers makes it fairly clear that both counsel and witness were going on the basis that the answer was yes. 88    A little later Dr Elliott was asked whether he agreed, on the issue of his credibility as a witness, whether or not the Supreme Court had said about him “Rejecting as I do Dr Elliott’s attempt to explain...” (Black AB 2/403 D). At this stage of the question an objection was made (this was the second question objected to) and then argued in the absence of the jury and the witness. The transcript does not record either the argument or the ruling on the admissibility of the question. 89    The next question by the cross-examiner took up another aspect of the case in which Dr Elliott himself had been a defendant and had given evidence. He was asked whether he had been untruthful in giving his evidence in that case in a number of ways. It was put to him that he had been evasive in his answers in that case as well as in the instant proceedings and that he had “a desire to cover up for fellow doctors”. (These questions were all asked separately.) Dr Elliott denied any desire to cover up for fellow doctors. He added: “I did not have anything to do with the other doctors”. 90    The transcript now comes to the third question objected to:

“ Q. Except that they were doctors like you.
OBJECTION.
[Counsel for respondent]: Q. I put it to you that you had that in common, didn’t you?
A. Well, we are all doctors certainly. ” (Black AB 2/403 X - 404 D)

91    The cross-examination then went to asking the witness whether he agreed there was in the medical fraternity a very marked tendency to close ranks when one of their number is under fire in medical negligence litigation. The remainder of the cross-examination was on this theme. In one answer the witness said that every doctor is intimidated by medical negligence litigation and the fear he might be the next one in line. This led to a question to the effect whether that sort of feeling amongst doctors would make it difficult for them to be objective. Through this aspect of the questioning the witness maintained his own objectivity in having given his report and his evidence. 92    Returning to the third of the questions objected to, I have set out above the relevant part of the transcript. What ruling the trial judge made on the objection does not appear. The question that was asked was not answered. The next question after the objection had been dealt with was very similar to the one objected to. Simply from my reading of the transcript, the meaning of the question is not very clear, but probably it was a repetition of the previously unobjected to and denied suggestion that the witness by his behaviour in the way he was answering questions was showing a desire to cover up for fellow doctors. 93    When the question of a witness’s credibility is raised, I do not think there can be any objection to the witness being asked whether on a previous occasion, specified to the witness, the witness has told a lie. Nor do I think there can be any objection to the questioning of a witness about attitudes on specific relevant subjects, as for example in the present case, the witness’s attitude to the growing number of negligence cases being brought against doctors. The substance of the questioning in the passage of evidence complained about by the appellant is aggressive and hostile. It may be that it would be more effective and more civilised to ask a doctor giving an opinion in a negligence case whether he thought that there were too many cases in which claims of negligence were succeeding against doctors where the doctor had not been at fault in any professional sense at all and then to ask whether such a feeling might affect the opinions doctors formed and gave evidence of in negligence cases brought against other doctors. (I am not saying my suggested questions are necessarily in admissible form, but I feel sure that the ideas could be properly raised in cross-examination.) 94    Whether or not the approach I am suggesting would be better than that used in the present case, the fact that the cross-examination was put in terms which seem to me to be somewhat crude does not mean that the substance of the line of questioning ceased to be a legitimate one. In saying it was legitimate I have in mind that it was relevant to the question of the witness’s reliability. 95    From the above statement I except the second of the three questions objected to, namely the one in which the cross-examiner was trying to get into evidence a statement made by a judge concerning an explanation made by the witness in evidence before that judge. I agree with what Fox J said in Humphries v The Queen (1987) 17 FCR 182 at 186 that questions concerned with the conclusions formed by judges in another case as to the weight of a witness’s evidence are objectionable. 96 However, in regard to the actual question being considered in the present case, what was being suggested to the witness as having been said about him by the judge in the case in which he was defendant was never fully stated in the question, which was interrupted by objection at a stage when what the judge was supposed to have said had not yet been fully read out. What the judge in the other case was supposedly rejecting was an attempt on the part of the witness to explain something. That certainly sounds as if it may have gone on to say something adverse to the witness’s credit; however, equally it may not; the rejected matter may have been for example, an opinion upon some matter of medical expertise about which there was conflicting expert evidence which the judge preferred to that of the witness. Further, the question was never answered. 97 My conclusion on this ground of appeal is that first, the court should be concerned only with the three questions objected to, for two quite separate reasons. The first and technical one is that if objection was going to be taken to other questions, it should have been taken at the trial. There are various reasons why counsel may have decided not to object to the other questions. At no stage, judging by the transcript, did he make any objection on the basis that he was objecting to a whole line of cross-examination. Second, and more substantially, it seems to me that the general line of questioning was, although getting towards the margins of relevance and usefulness, upon a topic that counsel was entitled to pursue. 98 As to the first of the three questions explicitly objected to, it seems to me to have been admissible as going to a legitimate line of questioning about the witness’s partiality; the fact that the questioning may not have been particularly successful does not mean it was inadmissible. 99 As to the second question, although it should not have been asked, for reasons already given I do not think it helps to make out the ground of appeal. 100 As to the third question, for reasons already given, I think it was permissible. 101 This ground of appeal therefore fails.

Prejudice .

102    In par 83 I mentioned submissions made in connection with grounds 15, 2 and 3 which were said to be connected with the “inflammatory” aspect of those grounds. It seemed to me preferable to deal with those matters separately because to my mind they were really directed more generally to the proposition that the respondent’s case has been conducted in a way to cause unfair prejudice to the appellant. Other matters arose for discussion in the course of the oral argument relating to the same topic. 103    In regard to these various matters my first comment is that they were never raised as a specific ground of appeal. 104    One of the matters discussed in this context was the line of cross-examination of Dr Elliott suggesting that members of the medical profession had a common interest in defeating negligence claims by former patients. I think I have dealt sufficiently with this in what I have said about ground 14. 105    Another connected matter was a comment by counsel in his address to the jury that Dr Elliott had been an “appallingly bad witness”. I have already dealt with this (par 50) but I think it needs to be added that counsel for the appellant in oral argument did not himself submit that respondent’s counsel at the trial had not been entitled to make such a comment (see transcript of argument p 23). 106    Also allied with the prejudice aspect, was what counsel for the appellant referred to as “the theme” the respondent’s counsel at the trial had been trying to communicate to the jury of his client as a single individual being opposed by the Goliath of the medical profession represented by a large firm of solicitors. On examination of the transcript it is possible to see here and there traces of such a theme, but they do not seem to me to have been so numerous or so strong or so irrelevant in the context in which they appear as to have been prejudicial to a fair trial in the ordinary understanding of that term. 107    On the argument presented to this court, and on my reading of the materials, I do not think the respondent’s counsel caused (whether deliberately or otherwise) the trial to be unfair.

Ground 6: his Honour erred in directing the jury that the uncontradicted evidence that an obstetrician exercising reasonable skill and care following a complicated birth could be five minutes away from the respondent within a large hospital was of little significance, as in a large hospital there would be a host of other personnel available to treat the patient, whereas there would be none in a hospital such as Inverell. Ground 7: his Honour erred in summing up to the jury in a manner prejudicial to Dr Fowkes .

108    In oral argument, the appellant did not seek to enlarge upon what had been said in his written submissions in support of these two grounds. 109    As to the first, the written submissions drew attention to an additional passage in the judge’s summing up as well as that mentioned in ground 6 itself. This additional passage was:

“ The plaintiff’s counsel yesterday put an argument that if Dr Fowkes did not have the skills, was unsure of what to do next, having one minute an inverted uterus of obviously very severe proportions and a short time later, it having gone, he did not seek assistance or help from anyone else, either his colleague Dr Finlay or another partner in the practice, or possibly by phone to a larger hospital. Again, whether you think that that is a matter that deserves consideration is something for you. ”

110    The submission then was that such a proposition had not been put to Dr Fowkes in cross-examination nor to any expert witness. This submission was presumably based upon a view as to the extent of the rule in Browne v Dunn (1893) 6 R 67 (HL). 111 The appellant did not complain about this part of the summing-up at the trial. The case was one where the trial judge invited counsel to raise any matters with him concerning further or corrected directions they wished him to make and the transcript records the discussion about those matters that counsel then saw fit to raise. In view of the minor role that the particular passage complained of must, in my opinion, have played in the jury’s overall consideration of the case, it seems to me that this answer, put by the respondent in her written submissions, is sufficient to dispose of the complaint about it. I doubt whether the reasons of fairness underlying the rule in Browne v Dunn would have required the particular matter to be raised with either the appellant or other medical witnesses, but even if there were anything in the point, it certainly does not seem to me to be of such significance as to warrant consideration when considering whether a new trial should be granted. 112    The passage which ground 6 was specifically directed to was as follows:

“ It was put to a number of experts that even in a major hospital like Royal Prince Alfred it is quite possible that the treating doctor could be five or more minutes away from the patient at the other end of the hospital. But of course if an emergency situation occurs at Royal Prince Alfred Hospital there would, you would think, be a host of other personnel available to attend a patient while waiting for the treating doctor to arrive. The question is, would that be likely to occur at Inverell. ”

113    A further direction concerning this was requested at the trial. The judge declined to give it. He said he thought that his observation had been a matter of common sense. This seems to me to have been a fair enough response: all that was happening was that a distinction was being drawn between a hospital like Royal Prince Alfred, which it is common knowledge is a major teaching hospital, and a smaller hospital in a country town. 114    In my opinion neither of these complaints about the summing-up succeeds. 115    Nothing was said about ground 7 beyond what was in the written submission. This was that the summing-up did not deal in a balanced way with the two cases, but favoured the case for the respondent. 116    It seems appropriate to answer such a brief submission with equal brevity. Having read the summing-up, it seems to me to have been a reasonably fair one. In my opinion, the way the evidence about liability fell out, and particularly in light of the appellant’s inability to remember anything about a dramatic complication following the delivery of a baby which according to the evidence was so rare that many general practitioners would never encounter it in their practice, meant, as I have stated in a little more detail earlier, that the respondent had a strong case for the consideration of the jury. If the strength of that case on liability happened to be reflected in the summing-up, that would indicate fairness rather than unfairness, so long as the case for the appellant was also made plain to the jury. 117    In my opinion there was nothing untoward in the summing-up and nothing which led me to think that it was unfair or such as to necessitate a new trial. 118    The summing-up also seems to me to have been fairly put in regard to the disputed issues relating to the amount of the damages. 119    In my opinion neither of grounds 6 or 7 should succeed. 120    Conclusion on liability. In my opinion this court should not disturb the jury’s liability verdict. 121    Grounds of appeal - the amount of damages.

Of the various grounds relevant to the amount of damages I will deal first with Ground 10.

Ground 10: the jury’s verdict was manifestly excessive .

122    On this the submissions for the appellant were as follows:

“ 26. The jury awarded the respondent $960,500. Taking the respondent’s case at its highest, the non-general damages components, as put to the jury, comprised:-

Past out of pocket expenses (agreed)	$ 15,219.07
Future out of pocket expenses	$ 33,772.00
Past economic loss	$194,245.59
Future economic loss	$149,042.36
Total	$392,279.02

26. Accordingly, the general damages component was at least $568,229.98. On the application for interest, Williams DCJ was of the view that the jury awarded approximately $560,000 for general damages. ”

123 The respondent agreed, in broad terms, with the appellant’s calculations in the above two paragraphs. The respondent also agreed that the figure which had to be arrived at for general damages was of the order of $560,000 and that such figure could not be sustained. 124 Although I do not understand the respondent formally to have accepted that the excessive figure for general damages must lead to a setting aside of the amount of the jury’s award, for practical purposes, the respondent could not sensibly argue against such a result. In my opinion, that result is inevitable. 125 Both appellant and respondent asked the court to reassess the respondent’s damages rather than send the case for a new trial on damages, this request being conditional upon this court coming to the conclusion that it was in a position where it could carry out that task satisfactorily. This proviso was a reference to ss 106 and 107 of the Supreme Court Act 1970. Section 106 makes s 107 applicable to an appeal to this court where the appellant seeks a new trial or the setting aside of a verdict or judgment after a trial with a jury in an action commenced in the District Court. Section 107 gives this court power in such a case, where once it would have had to send the action for a new trial, to arrive itself at the amount of the judgment and to enter judgment accordingly. That power however is subject to rather strict conditions. The section requires that before the court can exercise the power the court must be satisfied that

“ (i) Without seeing or hearing the plaintiff or defendant or other witnesses; ...
it is fully able to assess the amount of ... damages ... on perusal of the evidence contained in the documents before it ... ”

126    Further conditions are that the parties consent to the exercise of the power and that it appear to this court to be desirable to exercise the powers for the purpose of avoiding a multiplicity of trials. 127    As already mentioned, the parties have consented to the exercise of the power if the court is satisfied “it is fully able to assess the amount of ... damages ... on perusal of the evidence contained in the documents before it ...”. 128    The strictness with which this court must consider whether “it is fully able to assess the amount of ... damages” was emphasised by the High Court over twenty years ago in a case which has been followed ever since: Shehata v Montague L. Meyer Pty Ltd (1976) 51 ALJR 77. The court, (Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ) all said that this court had been wrong in that case in exercising the power. Barwick CJ stated the reason as follows:

“ There was a contest before the jury as to whether or not the appellant had suffered any economic loss, that is to say, whether the loss of the joints of the fingers of his right hand had resulted in any loss of earning capacity. The evidence on that matter was neither documentary nor all one way. Its resolution involved questions of personal credit. The case, therefore, was not one, in my opinion, in which the Court of Appeal could have been satisfied that it was fully able to assess the damages without seeing or hearing the parties and the witnesses. ” (at 79)

129    A little later he said:

“ Where an appellate court is properly satisfied that it is in a position itself to assess the damages, its task under s 107 of the Act is to assess damages under all the heads of damages which the plaintiff made out on the evidence. The assessment must be its assessment of the whole of the damages. It is not permissible, in my opinion, for the court to do as was done in this case, namely, to take a part of the jury’s assessment and add to it a supplementary assessment in relation to some only of the established heads of damages. Here, the Court inferred from the verdict that the jury had declined to assess any sum for loss of earning capacity. It therefore in substance adopted the jury’s view in that respect and supplemented it with its own assessment of damages for the other heads of damage. It did not itself examine whether the appellant had suffered any loss of earning capacity. This, in my opinion, was an unwarranted course. It was the more so in that any such conclusion of the jury essentially depended upon the credit given by the jury to the contested evidence. ” (at 79-80)

130    Gibbs J agreed with Barwick CJ and added some remarks including the following:

“ I agree, however, that in any case the circumstances were such that the Court of Appeal was not ‘fully able’ to assess the damages without seeing the witnesses. To make an assessment of the extent to which the appellant had suffered a loss of earning capacity which was likely to be productive of financial loss it was necessary to decide which of the evidence was to be regarded as acceptable. ” (at 80)

131    Stephen J’s reasons were to the same general effect. Mason J agreed with the reasons of the Chief Justice and Gibbs J. Murphy J agreed with the reasons of the other judges. 132    In the present case, all the chief heads of damage were contested at the trial: general damages, past economic loss and future economic loss. They are still in issue and the parties are at significant disagreement about them. To arrive at figures for each of the heads of damages, which include sub-issues, requires an assessment of the respondent’s evidence and a number of facts concerning the respondent’s earning activities over the years. These matters seem to me to fall directly within what was said by both Barwick CJ and Gibbs J in Shehata. With regret, I have come to the view that this court could not, consistently with what was said by the judges of the High Court in Shehata, be satisfied that “it is fully able to assess the amount of ... damages ... on perusal of the evidence contained in the documents before it”. 133    This means, in my opinion, that the verdict of the jury as to the amount of damages must be set aside and a new trial ordered limited to the assessment of damages. 134    Although this conclusion means that it may not be strictly necessary to deal with the remaining grounds of appeal, I will nevertheless state my opinion on them shortly.

Ground 8: his Honour erred in refusing to direct the jury that the evidence did not reveal a causal link between Sheehan’s Syndrome and many of the disabilities from which the respondent alleged that she suffered. Ground 9: his Honour erred in refusing to direct the jury as to the consequences of the failure of the endocrinologist called on behalf of the respondent to give evidence as to the causal link between Sheehan’s Syndrome and many of the disabilities from which the respondent alleged that she suffered .

135    These two grounds were dealt with together, presumably because they both involved reference to the evidence of Dr Bartley, the endocrinologist. They are really quite distinct. 136    The first of them seems to me not to require much discussion. Counsel for the appellant did not try to make water run uphill. He candidly said that there was undoubtedly evidence, and that the finding was not challenged, that the respondent had Sheehan’s Syndrome and further that there was undoubtedly evidence, and again the finding was not challenged, that the Syndrome was caused by her post-partum haemorrhage consequent upon the inversion of her uterus. The complaint he was seeking to make good was, not about the finding of Sheehan’s syndrome, but about the attribution of the respondent’s particular symptoms, complaints and disabilities to that Syndrome. He submitted there was no expert evidence relating to the connection between each one of her symptoms and the existence of the Syndrome. In saying this he was referring to what he submitted were gaps in Dr Bartley’s evidence in regard to some of the respondent’s symptoms. There was however evidence from Dr Tan about them. 137    It seems to me that the sequence of events, the emergence of the symptoms for which no explanation could be found until Sheehan’s syndrome was eventually diagnosed in 1991, taken together with the fact that before the birth of her child the respondent was a healthy woman with no known complaints or disabilities apart from occasional migraine, supplemented by Dr Tan’s evidence, all provided quite sufficient material to entitle the jury to infer that the symptoms more probably than not were Sheehan’s syndrome symptoms contributed to by the post partum trauma. 138    The submission put by the appellant in support of ground 9 relied on Jones v Dunkel (1959) 101 CLR 298 as applied in Commercial Union v Ferrcom Pty Ltd (1991) 22 NSWLR 389. That decision established that the rule in Jones v Dunkel applied not only when a witness was not called by a party who might be expected to be called by that party but also when a witness called by a party was not asked questions by that party on an issue in the case upon which the witness might reasonably be expected to be able to give relevant evidence. However, my understanding of the rule as explained in Ferrcom is that it only applies with its full force in regard to a witness who is called, when the party calling the witness does not put any other evidence before the court on the issue in respect of which counsel has refrained from asking that witness in his evidence in chief. In the present case as I have said in the preceding paragraphs, my opinion is that there was evidence of the matters about which Dr Bartley was not asked available in the case presented on behalf of the respondent. In these circumstances I do not think the trial judge was obliged to direct the jury in the way for which the appellant contends. 139    Had it been necessary to decide it, this ground of appeal would fail.

Ground 12: his Honour erred in ordering that Dr Fowkes pay the respondent’s costs on an indemnity basis from 11 June 1998 .

140    The parties were agreed that this ground could not be decided until the amount of damages was known. 141    In view of my conclusion that there should be a new trial limited to damages, the appropriate way to deal with the subject matter of this ground would appear to be to leave the decision concerning the costs of the first trial to the discretion of the judge presiding at the new trial.

Ground 13: his Honour erred in failing to take into account that interest on past economic loss should be calculated at a rate below the commercial rates on account of such interest not being taxable .

142    In my opinion there were two reasons why this ground should not have been upheld. The first is that it was not argued at the trial; had it been, it is possible that the evidence may have been significantly different. The second is that explained by Fitzgerald JA in his reasons, which I therefore do not repeat. 143    Conclusion.

Costs of the appeal . There was some discussion about what order should be made for the costs of the appeal in the event that the court reached the conclusion that in my opinion it should reach. Counsel for the appellant at first submitted his client should get half the costs of the appeal, and then sought, to some extent to improve on that position. I think his first submission was reasonable.

144    Orders. In my opinion the following orders should be made:

1. Appeal allowed (in part).
2. Judgment below, as to amount of damages, and costs, set aside.
3. Judgment below, as to liability, to stand.
4. New trial ordered, limited to the amount of damages.
5. Costs of first trial to be in the discretion of the judge presiding at the new trial.
6. Subject to order 7, half of the appellant’s costs of the appeal to be borne by the respondent.
7. Liberty reserved to either party, to apply within a period of seven days after the making of these orders, if any question of indemnity costs in regard to the appeal needs to be argued.

145    FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Priestley JA. I agree with the orders proposed by his Honour and substantially with his reasons. My brief observations are confined to a few points. 146    Priestley JA has commented Para 10. on the appellate technique of altering the emphasis from the matters of concern at trial to matters which then had no, or little, significance. I agree with what his Honour has written, and add only that, in litigation such as this, both at trial and on appeal, there often seems to be an unwillingness to identify and concentrate on substantial issues. 147    It is troubling that it has taken until late 1999 for Mrs Parker to ascertain that she is entitled to damages for events which happened on 25 September 1977, when she was younger than the son to whom she then gave birth is today. While I do not know who is to blame for the delay, I disapprove the tactics employed at the trial of this action, in which counsel unnecessarily engaged in questionable attacks on witnesses, unwarranted criticism of the appellant’s legal representation and unjustified (on the evidence) assertions of bias, both general and particular, producing a further problem associated with a witness’s reference to the appellant’s insurance. The jury would not have been assisted in performing its function correctly by such conduct, which presumably was intended to influence the jury by prejudice in addition to evidence. Those who set out to inflame juries run a serious risk of unfair trials and successful appeals. My mind has vacillated on this occasion, and only the force of Priestley JA’s reasoning has finally persuaded me that the trial did not miscarry. 148    I consider it particularly regrettable that Dr Hinde was not permitted to give all his relevant evidence. 149    Because counsel for the respondent was not given an opportunity to present oral submissions on this question at the hearing of the appeal, I will not go into detail. However, this Court’s refusal to interfere with the trial judge’s discretion under Part 51 rule 23 does not mean that I agree with the manner in which that discretion was exercised. “Justice is the paramount consideration” in performing such a task. Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155. See also Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 130; Channel 9 Pty Ltd v Antonidias (1998) 44 NSWLR 682 at 691. Despite the importance of the material rule and the significance of the appellant’s breach in not serving a report from Dr Hinde which dealt with the evidence which was excluded, I consider that the trial would have been fairer if that evidence had been permitted Cf. Saunders v McDonald (unreported, Court of Appeal, 20 November 1998); Cameron v Baker (unreported, Court of Appeal, 6 August 1980).. 150    Although it is unnecessary to do so in view of the orders which are to be made, I propose to comment on one other matter. 151    The appellant argued that interest on any past economic loss included in the damages to be awarded to Mrs Parker should not be awarded at a commercial rate but at a reduced rate because such interest is not taxable. Whittaker v FCT (1998) 153 ALR 334. It was submitted that interest calculated at a commercial rate over-compensates a plaintiff because the interest relates to a delayed payment of money which, if it had been paid earlier, would have been invested and earned interest which would have been taxable. 152 Reliance was placed by the appellant on the recent decision of the Full Federal Court in Grincelis v House. (1998) 156 ALR 443. There, Madgwick J, with whom Mathews J agreed, stated that interest in respect of Griffith v Kerkemeyer (1977) 139 CLR 161. damages “should be discounted to some extent, say by 25% to 35%, to allow for its non-taxable quality in the hands of the plaintiff”. (1998) 156 ALR 443, 467-468. 153 Other considerations aside, the premise on which the appellant’s argument with respect to interest is unwarranted. An assumption that, if damages for past economic loss had been received earlier, a plaintiff would have been in a financial position to invest the money in a manner which would have returned interest is unjustified. 154 DAVIES AJA: I agree with Priestley JA.

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