Gillett v Robinson - [2011] NSWSC 1143

Supreme Court

New South Wales

Medium Neutral Citation: Gillett v Robinson [2011] NSWSC 1143
Hearing dates: 1,2,3 and 5 August 2011
Decision date: 26 September 2011
Jurisdiction: Common Law
Before: Harrison J
Decision:
Verdict for the defendant.

Catchwords: PROFESSIONAL NEGLIGENCE - medical negligence - plaintiff injured during obstructed delivery - shoulder dystocia causing Erb's palsy - whether obstetrician negligently failed to perform caesarean section - whether caesarean section should have been performed when requested by mother - whether caesarean section indicated by mother's particular obstetric history - whether vaginal delivery appropriate - whether breach of duty - no breach of duty - verdict for the defendant
EVIDENCE - experts - joint report - whether admissible
Legislation Cited: Civil Liability Act 2005
Cases Cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Forge v ASIC [2004] NSWCA 448; (2004) 213 ALR 574
Gillett v Robinson [2011] NSWSC 863
Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52
Category: Principal judgment
Parties: Halina Jain Gillett (Plaintiff)
Professor Jeffrey Robinson (Defendant)
Representation: Counsel:
J Kirk (Defendant)
Solicitors:
Thomas Mitchell Solicitors (Plaintiff)
Blake Dawson (Defendant)

File Number(s): 2006/267258
Publication restriction: None

Judgment

HIS HONOUR : The plaintiff was born in October 1985. Her mother's attending obstetrician was Professor Robinson. The plaintiff sustained an injury to her right shoulder during the delivery, known as Erb's palsy, which was caused by shoulder dystocia. She alleges that her injury, and consequent disabilities, resulted from Professor Robinson's negligence or breach of duty. She claims damages.

The plaintiff relies on two particulars of negligence. She alleges first that Professor Robinson failed to undertake a caesarean section on her mother despite requests to do so. She alleges secondly that he failed appropriately to consider her mother's prior pregnancy and birthing concerns. I dismissed an application made by the plaintiff on the first day of the hearing to adjourn the proceedings and to amend her statement of claim to allege that Professor Robinson failed to provide information and advice to her mother as to the options for her delivery in light of circumstances attending her mother's three previous pregnancies and the instant pregnancy. On 12 August 2011 I published my reasons for judgment in that application: see Gillett v Robinson[2011] NSWSC 863. Familiarity with that judgment is assumed.

For the reasons that follow, I consider that the plaintiff has failed to establish her case against Professor Robinson and that there should be a verdict for the defendant.

Background

The plaintiff alleges that Professor Robinson should have performed an elective caesarean section on her mother rather than proceeding to a vaginal birth. Her mother was a private patient who had attended Professor Robinson's rooms on 12 occasions up to and including 21 October 1985. Professor Robinson had arranged for her to be hospitalised on 22 October 1985 because of concerns about her blood pressure and a history suggesting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gillett v Robinson

Details

AGLC: Gillett v Robinson [2011] NSWSC 1143
Case: [2011] NSWSC 1143
Decision Date: 26 September 2011

CaseChat Overview and Summary

The case of Gillett v Robinson involved the plaintiff, Gillett, suing the defendant, Robinson, an obstetrician, for professional negligence. Gillett alleged that Robinson negligently failed to perform a caesarean section during her obstructed delivery, resulting in her child suffering Erb's palsy, a form of brachial plexus injury. Gillett argued that the caesarean section should have been performed when she requested it and that it was indicated by her particular obstetric history. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to decide were whether Robinson breached his duty of care by not performing a caesarean section and whether the evidence of expert witnesses, particularly a joint report, was admissible and persuasive. The court had to consider the standard of care expected of an obstetrician in similar circumstances and assess whether Robinson's actions fell below that standard. Additionally, the court needed to determine the weight and admissibility of the expert evidence presented, particularly the joint report of the obstetricians, in establishing the standard of care and causation.

The court found that Robinson did not breach his duty of care in managing Gillett's delivery. The evidence, including the joint report of the expert obstetricians, did not establish that a caesarean section was necessary or that Robinson's actions were negligent. The court was not persuaded by the plaintiff's argument that the caesarean section should have been performed based on her particular obstetric history or her request. The evidence indicated that the vaginal delivery was appropriate and that Robinson's management of the delivery was in line with accepted medical practice. Consequently, the court dismissed the plaintiff's claim, finding no breach of duty on the part of the defendant.

The final orders of the court were that the defendant was not liable for the plaintiff's injuries, and the plaintiff's claim was dismissed with costs.

Orders