Hirst v Sydney South West Area Health Service
[2011] NSWSC 664
•22 August 2011
Supreme Court
New South Wales
Medium Neutral Citation: Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Hearing dates: 25-27 October 2010; 3-4 November 2010 &14-16 February 2011 Decision date: 22 August 2011 Jurisdiction: Common Law Before: Davies J Decision: Verdict for the Plaintiff with damages to be agreed or assessed.
Catchwords: NEGLIGENCE - medical negligence - diagnosis - obstetric practice - diagnosis of "unstable lie" - whether such a diagnosis made - failure to manage properly - baby with developed hydrocephalus when diagnosis ought to have been made of unstable lie - reduction in disabilities if treated earlier - causation - Civil Liability Act - whether s 5E is confined to legal onus - whether principle in Watts v Rake operative to claims under Civil Liability Act. Legislation Cited: Civil Liability Act 2002 Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Flounders v Millar [2007] NSWCA 238
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
McGhee v National Coal Board [1973] 1 WLR 1
Mobbs v Kain [2009] NSWCA 301
Purkess v Crittenden (1965) 114 CLR 164
Shorey v PT Limited [2003] HCA 27; (2003) 77 ALJR 1104
State of New South Wales v Doherty [2011] NSWCA 225
Stephens (t/as CTS Plumbing) v Giavenco [2011] NSWCA 53
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Tabet v Gett (2010) 240 CLR 537
Varga v Galea [2011] NSWCA 76
Watts v Rake (1960) 108 CLR 158
Wilson v Nilepac Pty Ltd [2011] NSWCA 63
Woolworths Limited v Strong [2010] NSWCA 282
Zanner v Zanner [2010] NSWCA 343Texts Cited: Isaac MacKenzie, High Risk Pregnancy, 2nd Ed., W B Saunders, 1999 Category: Principal judgment Parties: Eliza Grace Maree Hirst (Bnf Amanda Hirst) (Plaintiff)
Dr David Browning (Second Defendant)Representation: A J Bartley SC, S J Longhurst & L Whalan (Plaintiff)
D Higgs SC & E C Muston (Second Defendant)
Kells The Lawyers (Plaintiff)
Blake Dawson (Second Defendant)
File Number(s): 2006/267037
Judgment
The Plaintiff was born on 24 October 2000 with gross hydrocephalus. As a result, she is grossly disabled with cerebral palsy that manifests itself in a variety of ways including cognitive impairment, spasticity, vocal and visual impairment, and epilepsy.
She brings these proceedings against Dr David Browning who was her mother's obstetrician. She does not allege that Dr Browning caused the hydrocephalus. Rather, she says that at about 36 or 37 weeks into the pregnancy he ought to have ordered an ultrasound which would have identified that she was suffering from the hydrocephalus. In that way her birth could have been induced earlier than it occurred and the remedial operation she underwent to relieve the pressure in her brain could have been performed at an earlier time leaving her with fewer or less severe disabilities.
She says that Dr Browning ought to have ordered the ultrasound because he detected, or ought to have detected, that there was what is called an unstable lie at that point in the pregnancy. One definition of "unstable lie" (accepted both by the obstetrics experts who gave evidence and the parties) is to be found in Chapter 59 of an obstetric text by Isaac MacKenzie, High Risk Pregnancy , 2 nd Ed., W B Saunders, 1999 as follows:
An unstable lie is generally a description used beyond 36 weeks when the foetal lie and presentation repeatedly change, the lie varying between longitudinal, transverse and oblique.
This was not the only definition of the term, and I shall discuss this matter later in the judgment.
These proceedings originally named the Sydney South West Area Health Service as a Defendant but after the 4 th day of hearing Adams J approved a settlement between the Plaintiff and the Area Health Service resulting in the Area Health Service no longer being a party to the proceedings. Any reference hereafter to "the Defendant" is a reference to Dr Browning.
After the liability evidence concluded the Plaintiff and Dr Browning reached agreement on the damages which would be awarded if the whole of the Plaintiff's injuries and disabilities had been caused by Dr Browning. That agreement was approved by Garling J on 11 February 2011. It will be necessary to refer to the makeup of these damages later in this judgment.
The result is that the remaining issues for determination by me are these:
(1) breach of duty;
(2) causation of loss, including the extent to which the Plaintiff's injuries and disabilities were aggravated by any breach of duty;
(3) what damages should the Plaintiff recover bearing in mind the agreement reached between the parties including agreement as to particular heads of damage.
A consideration of (1) includes a determination of whether Dr Browning found an unstable lie on any one or more of the dates on which he examined Mrs Hirst.
The facts
The Plaintiff's mother and father were married on 27 October 1990. Their first child, Caleb, was born on 8 February 1995. The labour was a long one and it was necessary to perform an episiotomy because Mrs Hirst did not fully dilate.
Mrs Hirst first came under Dr Browning's care in March 1999. She had been endeavouring to fall pregnant. She had experienced a number of thrush infections which caused pain during intercourse. Dr Browning recommended that she have an operation on the neck of her womb. That was carried out at his rooms in Bowral, apparently in June 1999.
Mrs Hirst became pregnant with the Plaintiff in early 2000. She first consulted Dr David MacFarlane, an obstetrician, because of a vaginal discharge. That problem was rectified and thereafter Mrs Hirst was cared for by her General Practitioner Dr Terry Flynn whom she appears to have first consulted with respect to the pregnancy on 26 February 2000.
She continued under Dr Flynn's care throughout the pregnancy but from 27 September 2000 she was also under the care of Dr Browning.
Until the Plaintiff came under Dr Browning's care she underwent 3 ultrasounds, the first being on 10 April 2000 (at about 12 weeks), the second on 29 May 2000 (at about 19 weeks) and the third on 16 June 2000 (at about 20 weeks). (The reason for this third ultrasound was not established.) None of those ultrasounds demonstrated any abnormality.
On 2 September 2000 Mrs Hirst presented at the Maternity Outpatients Department of Bowral Hospital with pain and irregular contractions. She was admitted to the Hospital and a CTG trace undertaken. She was seen by Dr Flynn who called in Dr MacFarlane. A speculum examination was carried out and the cervix was shown to be closed.
She subsequently saw Dr Flynn on 6 and 9 September 2000, and on the latter date she was sent by Dr Flynn to an obstetrician for review.
Mrs Hirst said that at about 36 weeks (which she said was around 14 September) she started to worry that she was putting on a lot of weight. Her feet swelled and she had a lot of discomfort in her abdomen. She did not have those problems during Caleb's pregnancy.
Mrs Hirst first saw Dr Browning on 27 September 2000 pursuant to Dr Flynn's referral. Dr Browning noted Mrs Hirst as being 36+ weeks. The expert obstetricians considered she was at 36 weeks 4 days. Dr Browning's entry on his card for Mrs Hirst is annexure A to this judgment. The entry contains the following:
[BP] 120/70 a-s-[no sugar or protein in the urine] Head in RIF [right iliac fossa] - [this is followed by a forward pointing arrow together with the word "centre" that appears to have been struck through] EDC [estimated date of confinement] 22/10/99. Abdomen sore. Itchy discharge. Cervix closed. Vaginal swab. No significant growth.
Dr Browning wrote on Mrs Hirst's antenatal care and medical record card which is annexure B to this judgment. Apart from filling in columns on that card, Dr Browning wrote:
Unstable lie - head in RIF. Worried re discharge - swab NAD.
Mrs Hirst said that when she saw Dr Browning on that day he examined her. She lay on the examination bed and he felt her abdomen. On her account of the consultation, when he did so he said:
Ooh!
I said: What's wrong?
He said: You have an unstable lie.
I said: What does that mean?
He said: Your baby is very mobile for this late in the pregnancy.
She said that after the examination she sat at Dr Browning's desk opposite him. She saw that he wrote on her antenatal record and maternity card the words "unstable lie". She said to him:
Should I have another ultrasound?
She said that he looked across at her, looking over his glasses at the end of his nose and grinned as he said words to the effect:
No, why should you have another ultrasound? You've had all your routine ultrasounds.
By contrast, what Dr Browning said in his Statement about that consultation is this. Mrs Hirst expressed concerns to him of reduced foetal movements, abdominal pain and an itchy discharge. Dr Browning said that he conducted an abdominal examination. He said it is possible that the term "unstable lie" was used but he did not have a recollection of either he or Mrs Hirst using the term during the consultation. He said he did not tell Mrs Hirst that she had an unstable lie as that was not a finding that he made. Nor did he tell her that her baby was very mobile as that was not a finding that he made. He does not recall that Mrs Hirst asked whether she should have another ultrasound. If she had asked him he would have told her that it was not required because her previous ultrasounds were reported as normal and there was no indication for another ultrasound at that consultation.
In his oral evidence Dr Browning said he had no actual recollection of seeing Mrs Hirst at any of the consultations and that the evidence he gave was based on his usual practice. That latter statement, about his usual practice, could not apply to evidence he gave in relation to what was said in the consultations. He also agreed in cross-examination that he could not refute what Mrs Hirst claimed was said in the consultation of 27 September. It was put to Mrs Hirst in cross-examination that Dr Browning never told her that he thought she had an unstable lie, and that he never told her that in his view the baby was very mobile. She denied that he had not said these things. I accept her evidence in that regard. The statements are consistent with what Dr Browning has recorded. To the extent that the questions in cross-examination suggested either that she had fabricated this evidence or had wrongly remembered what Dr Browning had told her, the consistency of her evidence with what Dr Browning recorded is a sufficient answer to either such suggestion.
Dr Browning submitted that Mrs Hirst had almost no recollection of events which occurred during the course of her pregnancy with the Plaintiff 10 years ago. He pointed to a number of answers in the transcript where Mrs Hirst said she did not remember particular matters that were put to her. In my opinion, the matters relied upon were fairly inconsequential or were otherwise not established by other evidence. Dr Browning also said that Mrs Hirst was wrong in asserting that he had glasses perched on the end of his nose and looked over the top of them when he spoke to her after he examined her. He said that he does not wear reading glasses and that his ordinary glasses were always worn on the bridge of his nose. Even if Mrs Hirst is mistaken about that detail I do not consider that it undermines her evidence of what happened at that consultation on 27 September.
When it is remembered that Mrs Hirst had experienced a number of matters during the pregnancy that caused her concern, at least from 2 September 2000, it is not at all surprising that she should remember being told something which suggested there might be a problem, particularly when the word "unstable" was used. The fact that a person may not have a good recall or any recall of matters that, at least at the time, would appear to be of no consequence, does not mean that they may not recall a conversation or an event which is likely to have an impact on them at the time it occurs. I am satisfied that Mrs Hirst remembers correctly the substance of the conversation she had with Dr Browning on 27 September.
Later that day Mrs Hirst attended the Outpatient section of Bowral Hospital apparently for an examination with a CTG because of reduced foetal movements. The CTG apparently showed reactive foetal movements and Dr Browning was notified of that.
On 2 October 2000 Mrs Hirst attended at the Maternity Outpatients Department of Bowral Hospital. It was noted that she was at 37 weeks. Nothing was noted on the Maternity Outpatient record concerning the reason for her presentation. As it happened she saw Dr Browning at the Outpatients Department. A good deal in the case turned on this particular record. For that reason a copy of the record appears as annexure C to this judgment. The only part of the document that was written by Dr Browning are the words that appear after the printed words "Consultation Notes:".
There is considerable dispute about whether the first word written was "scan" or "seen". There was also a dispute about whether the question mark after that word should be read as a comment on that word or as a comment on the words "unstable lie" which followed it. The Plaintiff's contention is that the word was "scan" whereas Dr Browning contended that it was "seen". Dr Browning justified his reading on the basis that nothing was recorded after the words "presents with:". He said that where that was blank he would write the word "seen". I shall return to this matter later in the judgment.
Dr Browning also filled out the Plaintiff's antenatal card. He did not write the words "unstable lie" on that card (as he had done on 27 September 2000) but only (relevantly) wrote "head central but free. CTG".
Dr Browning also made a note on his patient card for Mrs Hirst as follows:
2/10/00 120/60 -- red dot vx [vertex] free CTG
There was also considerable dispute in the case about the significance of the words "red dot". The words themselves refer to a red circular sticker that was placed on the front of Mrs Hirst's medical records at Bowral Hospital. Dr Browning gave evidence in his Statement that the red dot placed on the file was an indication that Mrs Hirst was now under the care of a specialist. He said the significance of the red dot was that it acted as an instruction to the midwife to call the specialist when Mrs Hirst went into labour and not to call the GP who was on call that day. Despite what Dr Browning said in his Statement in that regard, he agreed in cross-examination that the red dot was intended to indicate that the patient had moved from being an ordinary antenatal care patient to a high risk patient.
On 4 October 2000 Mrs Hirst consulted Dr Flynn who recorded her gestation dates (38 weeks), her blood pressure, her weight, that there was no abnormality detected in her urine, and that there were foetal heart sounds. He also wrote "has unstable lie - ceph [cephalic]. Not engaged."
On 9 October Mrs Hirst again saw Dr Flynn. He recorded her gestation dates (39 weeks), her blood pressure, her weight, and that there was no abnormality detected in her urine. He also wrote "pt not engaged".
There was also in evidence a copy of a letter from Dr Flynn to Dr Browning dated 9 October 2000 which said this:
Mrs Hirst has ongoing abdominal discomfort and an unstable lie with head not engaged.
Her EBD is 23.10.00. Can you please review her and arrange further management of this pregnancy.
On the same day Mrs Hirst went to Bowral Hospital and saw a midwife, Pamella Page. The Maternity Outpatient record noted that she presented with:
Depressed movement at 38 to 39 weeks gestation. Mother nauseated and diarrhoea spasmodically for past 2 weeks.
A CTG was performed that showed a good reactive trace.
Mrs Hirst saw Dr Browning on 13 October 2000. He recorded on her antenatal card:
13/10/00 38+ 120/8 95 urine nad vx 3 head palpable FH [foetal heart sounds]
On 15 October 2000 Mrs Hirst presented at Bowral Hospital Maternity Outpatients. She saw Dr Browning. He wrote on the Maternity Outpatient record next to the words "consultation notes" "? Unstable lie. Head presenting, central. CTG. Home and review Wednesday."
On 18 October 2000 Mrs Hirst saw Dr Browning. Dr Browning made the same entry on his own card as on Mrs Hirst's antenatal card as follows:
18/10/00 39+ a-s- 120/70 95 Vx NE
H , M
On 22 October 2000 Mrs Hirst presented at Maternity Outpatients at Bowral Hospital complaining of diarrhoea and lower abdominal pain. She saw midwife Corbin who recorded that the foetus was palpable, cephalic and ballotable (meaning that the head was easily moved). A CTG trace was applied and was reactive but midwife Corbin noted that the mobile foetus was hard to trace. She was referred to Dr Flynn.
On the following day (23 October) she saw Dr Flynn. Dr Flynn recorded on the antenatal card that the head was free and palpable. She was sent to see Dr MacFarlane.
Dr MacFarlane recorded on Dr Browning's patient card:
23.10.00 40 - - 130/80 vx as cx clos
pain ++ for admission + r/v
On the next line and apparently written on the same day the following appears:
Scan! Hydrocephalus: transferred to Liverpool
He wrote the following letter:
Dear Midwives
Please admit.
Amanda HIRST
at Term with an unstable lie and marked pelvic pain. I want her to have rest, analgesia, a CTG and a scan* to help us decide what to do next.
Underneath Dr MacFarlane's signature appeared:
*Booked for 3pm tomorrow
On 24 October Mrs Hirst was transferred to Liverpool Hospital. The letter written by Dr Macfarlane to a doctor at Liverpool Hospital said this:
Dear Doctor
Thanks for accepting the transfer of Amanda Hirst G2P, at term, with hydrocephalus. She's previously had what was described as a "difficult" vaginal delivery at Shellharbour.
This time she's had an uneventful pregnancy, 2 early scans were normal, but she has an unstable lie so I saw her yesterday for the 1 st time. A scan has shown hydrocephalus. Enclosed are copies of her antenatal tests and scans. ...
The Plaintiff was delivered by caesarean section later that day at Liverpool Hospital. She had a head circumference of 44cm, very much larger than the average head circumference of 34-36cm. She need resuscitation with bag and masked ventilation. The initial head ultrasound showed no evidence of intraventricular haemorrhage but widely dilated ventricles.
The following day a further ultrasound was performed and was reported as follows:
There is marked dilatation of each lateral ventricle. There appears to be third ventricle dilatation but no definite fourth ventricle dilatation has been demonstrated. There is a one centimetre hyperdense area in the basal ganglia on the right, which could represent an intra-parenchymal haemorrhage. No other abnormality can be identified.
The Plaintiff was transferred to the Children's Hospital at Westmead on that day. She had a preoperative CT scan which showed grossly dilated lateral ventricles and third ventricle consistent with the diagnosis of aqueduct stenosis. There were also areas of hyperdensity in the right Sylvian Fissure and in the Interhemispheric Fissure. Dr Chaseling inserted a ventriculo-peritoneal shunt via a right parietal burr hole and right paramedian laparotomy.
The following summary with regard to the Plaintiff's condition up to 2002 is taken from the report of Professor Ouvrier, a paediatric neurologist who was one of the experts on questions of causation.
During the first several years, Eliza had a number of complications of her hydrocephalus. She had an admission from 20/11/00 to 23/11/00. She had an oedematous area at the abdominal surgical site but appeared well. She was treated with antibiotics but developed a rash. She was readmitted on 26/11/00, with concern about the shunt function. Shunt revision took place on 27/11/00 and a Rickham reservoir was placed over the burr hole. She was discharged on 30/11/00. She was readmitted on 21/12/00 with an infected, blocked shunt, complicated by peritonitis. The shunt was revised on 22/12/00. She received antibiotic therapy and was discharged on 1/1/01. On 6/2/01 she had a physiotherapy assessment, at the age of 15 weeks. She appeared to be making good developmental progress, although there was a preference for head turning to the left in supine and her eye following was inconsistent.
In September 2001 she had an admission for right middle lobe pneumonia but was not particularly unwell and responded to antibiotics. Around this time it was noted that she had diminished movements of the right side of the body and a right hemiparesis was diagnosed, which was considered to be likely due to less cortical and white matter on the left side of the brain, as compared to the right. CT scan was said to show the latter findings but there was no suggestion of shunt dysfunction.
A blood film showed ovalocytosis, possibly of a hereditary nature.
In November 2001 she developed fever and was admitted to Wollongong Hospital on 4/11/01 with irritability. CT scan was reported to be consistent with infected mastoiditis, with evidence of demineralisation of the right petrous bone.
She was transferred to The Children's Hospital at Westmead on 14/11/01. She was treated with bilateral grommets and antibiotics and made a good recovery. CT scan showed no deterioration. She was discharged on 17/11/01. In March 2002 she had the onset of right sided seizures. Assessment by the Neurology Fellow (Dr M Maharir) indicated that she always had (L) hand preference. "Sitting one year, standing with support, no walking. Speaks monosyllables with meaning. Has word association. Waves bye, claps. Knows name, responds to name." Paucity of movements on the right side was noted, although she moved both sides. Reflexes were brisker on the right, without clonus. CSF and shunt studies were normal. EEG apparently showed a left hemispheric focus. She was started on carbamazepine and discharged.
Several reports from paediatricians (Dr P Kristidis, 22/11/00; Dr N Hanson, 13/9/01 and 5/2/02) confirmed the right hemiparesis. A report by Prof. Frank Martin, ophthalmologist, indicated the presence of a right hemianopia (16/5/02). The optic discs were pale and partly atrophic and she had a left to right exotropia.
Neurological care appears to have passed to the Sydney Children's Hospital. In a report dated 17/6/02 Assoc. Prof. Annie Bye reported that Eliza had been seen by Dr Charlie Teo, neurosurgeon and that he was comfortable with the shunt. Eliza was having some ongoing seizures, under treatment with carbamazepine. She was making slow developmental progress. She pulled herself along the floor. Her right hemiplegia was evident then. She used the right arm grossly as a helping arm. It was often fisted and she would not take an object in the right hand. She had several words and was babbling. Her height of 89.5cm was above the 98 th centile and the head circumference of 50cm was on the 50 th centile. The right eye was turned outwards. She had a right hemianopia and quite a dense right hemiparesis, with increased tone in the right arm and right leg. Reflexes were asymmetric and she was globally developmentally delayed.
In a letter dated 3/9/02 Dr N Hanson reported that there had been concern with further seizures. CT scan had not shown evidence of obstruction of her shunt. She was transferred to Westmead Hospital but discharged soon thereafter.
(1) Breach of duty
(a) Was there an unstable lie?
Five obstetricians gave concurrent evidence, having earlier met and prepared a joint report for the Court. It is fair to say that on most issues there was a considerable divide between those obstetricians retained by the Plaintiff (Dr Molloy and Mr Clements) and those retained by the Defendants (Dr Lyneham, Professor Giles and Dr Challis). However, the obstetricians agreed on the definition of "unstable lie" as given by MacKenzie.
It is clear from that definition accepted by all of the obstetric experts that an unstable lie is a reference to a dynamic situation and not to the position of the foetus on any particular occasion. By that definition the fact that Dr Browning wrote "unstable lie" on the antenatal card on 27 September could not truly be a description of an unstable lie simply because the head was in the right iliac fossa (as the entry suggests), unless Dr Browning was making a comparison with what had been earlier recorded, namely a consistent cephalic presentation and position. That Dr Browning was doing this is made clear by this answer he gave in cross-examination:
Q. Doctor, in writing "unstable lie", you were comparing her previous presentations and lie with the one that you found, weren't you?
A. Yes.
Yet he had not seen her for many months prior to this occasion.
One of the expert obstetricians, Dr Robert Lyneham, gave evidence, with which the other expert obstetricians did not appear to disagree, of an alternative approach to the definition of "unstable lie". He said this:
BARTLEY: So Dr Lyneham, is that right, that if Dr Browning did write and mean "unstable lie", then he was writing it - and, if so, meaning it - within the parameters of the definition that's referred to in Mackenzie?
WITNESS LYNEHAM: No. Dr Browning was referring, if he wrote "unstable lie", to, on that occasion [27 September], there being an oblique lie. We have discussed this before. An oblique lie is unstable because it can't stay in that position. It's going to move one way or another, and it did. But I did refer earlier to the fact that there are two definitions that really are out there. One is an oblique lie which by definition is unstable because it won't say [scil. stay], and an oblique lie can be detected on one examination. And there is the Mackenzie definition of an unstable lie, which is, as we've said, a repeated examination where the lie changes from one visit to the next.
BARTLEY: And that's the definition which you all adopted.
WITNESS LYNEHAM: And that's the definition we all adopted for the joint report.
BARTLEY: And it's the definition that you would expect to be generally applied by a competent obstetrician who was a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists as at the year 2000.
WITNESS LYNEHAM: It would be an understanding of an obstetrician in 2000 that an oblique lie could be defined - or could be written down as an unstable lie. But we're now interpreting the records in retrospect. I wouldn't expect the Mackenzie chapter to be in the knowledge of a practising obstetrician, but I would expect the principles that are espoused in that chapter and the management of an oblique lie at 36 weeks to be understood, and I think I did refer to that in my report.
The experts accepted that the description given by Dr Browning on the antenatal card ("head in RIF") was a description of an oblique lie.
Dr Browning's evidence about why he wrote the words "unstable lie" on 3 occasions was very unsatisfactory. In saying that, I do not overlook the fact that he clearly conceded that he had no actual recollection of seeing Mrs Hirst at the consultations he recorded and that the evidence he gave (presumably) about what he recorded and the reasons for it, was based on his usual practice.
Nevertheless, the evidence initially contained within his Statement was based upon false assumptions that he made, as he later conceded. In paragraph 10 of his statement he said this of his entry on the antenatal card on 27 September 2000:
The reference to an unstable lie was not a finding I made as this was the first time I saw Mrs Hirst and, on examination, the baby was lying longitudinally with a cephalic presentation, the head almost central. Rather, I used the term "unstable lie" because either Mrs Hirst mentioned it or Dr Flynn may have spoken to me beforehand and mentioned it . I do not now recall whether I spoke with Dr Flynn on 27 September 1999 (sic) about the reasons for his referral of Mrs Hirst to me. The words "unstable lie" appear in Dr Flynn's subsequent letter of referral. At the time I assumed that this was as a result of a conclusion or suspicion he had .
Dr Browning was present in Court during the opening of Mr Bartley of Senior Counsel for the Plaintiff. In that opening Mr Bartley referred to Mrs Hirst last seeing Dr Flynn on 14 September 2000 before she became Dr Browning's patient on 27 September. He said also that Dr Flynn was absent at the Olympic Games in Sydney from 15 September 2000 for 16 days. Having heard that opening, Dr Browning, when he entered the witness box, said that he wished to make some changes to his Statement. He first said he wished to omit the italicised sentences in paragraph 10 (para [50] above).
Similarly, he said he wished to remove the italicised sentences in paragraphs 15 and 27 as follows:
[15] I did not diagnose Mrs Hirst with an unstable lie at this consultation. I believe that I referred to an unstable lie as a reference to the history I had obtained from Dr Flynn or Mrs Hirst when I first saw her five days previously.
...
[27] I saw Mrs Hirst at Bowral Hospital on 2 October 2000 however I did not make an observation of an unstable lie. Rather, the reference in the notes to an unstable lie arose out of the suggestion presumably first made by Dr Flynn that she had an unstable lie . However the lie was not unstable during the time I saw her.
Dr Browning was asked in cross-examination why it was that he wrote "unstable lie" on the antenatal card for the consultation on 27 September 2000. He gave this evidence:
Q. So you wrote down "unstable lie" because that was your clinical finding on 27 September 2000?
A. No, it was a potential finding rather than a clinical rather than an absolute finding.
Q. Doctor, you elsewhere adopt a practice of using question marks where you're not certain of a finding, don't you?
A. Yes.
Q. You've put no question mark on "unstable lie" on 27 September 2000, have you?
A. No.
Q. And you would expect anybody reading that, any medical person, to read it in the terms in which it's stated; namely, this woman has an unstable lie?
A. No, it's a warning for people to look out for that possibility.
Q. Doctor-
A. Because things change from day to day.
Q. Yes, but doctor, you wouldn't have lightly recorded a matter as significant at 36 weeks as unstable lie unless you found it, would you?
A. I would have recorded it if I thought it was a possibility rather than an absolute diagnosis.
Q. Doctor, that's just not true, is it?
A. It is absolutely true.
Q. And doctor, in the next part of the note, "head in right iliac fossa" you seek to describe what it was about the mother that led you to record the finding of unstable lie, don't you?
A. The "head in iliac fossa" gave me a suspicion of unstable lie rather than absolute diagnosis.
Q. Doctor, in writing "unstable lie", you were comparing her previous presentations and lie with the one that you found, weren't you?
A. Yes.
Q. Unstable lie is an observation of a dynamic condition, isn't it?
A. Yes.
Q. Sometimes the lie might be central, sometimes it might be oblique, sometimes in one fossa, sometimes in the other?
A. Mm.
Q. That's exactly what it means, isn't it?
A. Yeah, well, unstable lie has to - would have to imply at the very least a definite oblique lie, and this I wasn't able to determine.
Q. That's just not true, doctor.
A. It is true. By definition.
Q. Doctor, oblique lie is not a necessarily element in describing unstable lie, is it?
A. It is.
Q. Unstable lie is a description of mobility.
A. Yes.
Q. The word "unstable" means what it says; that is, there is mobility in the lie.
A. Yes.
Q. And it does not have to be a fully oblique lie to justify the use of the term "unstable lie", does it?
A. It has to be fully oblique or transverse to justify that term, or it has to imply that I've seen her on at least two occasions when the lie has changed from one pole to another.
Q. Does that mean that it's possible you might have seen her before 27 September?
A. No, no, it doesn't at all.
Q. It means then, doctor, that at the consultation on 27 September 2000 there was sufficient mobility in the lie to warrant the use of the term "unstable lie", doesn't it?
A. No, it doesn't mean it at all. It means that I am concerned about that possibility and want to impress on anybody looking at the card that they should be alerted to that possibility and take necessary steps should they find the lie still to be in a worrying position.
The second time that Dr Browning wrote the words "unstable lie" was in respect of the consultation at the Maternity Outpatients on 2 October 2000.
In his Statement Dr Browning said that he did not diagnose Mrs Hirst with an unstable lie on 2 October. In the sentence that he wanted eliminated from his Statement he said that he believed that he was referring to an unstable lie as a reference to the history he had obtained from Dr Flynn or Mrs Hirst when he first saw her.
In his oral evidence he said that on 2 October he found that the head was central and that the baby was lying longitudinally so the diagnosis of unstable lie was no longer tenable at that point in time. He went on to say that he would still be concerned because the head was high and that was why he wrote "head central but free" on the pink antenatal card.
In cross-examination he said that the question mark in what he wrote was linked to the words "unstable lie". He said an unstable lie was not a confirmed diagnosis - he wanted to confirm it, and 2 October was the date when he would be confirming or seeing what had happened. He said the reference to "head central" eliminated the possibility of an unstable lie, but then agreed that the fact that the head had moved from where it was on 27 September indicated some mobility. What he could say was that there was not an unstable lie on 2 October. He agreed that, because Mrs Hirst was at 37 weeks+, it was a cause for mild concern although it was not uncommon in a multigravida patient.
Nevertheless, it was on this day that Dr Browning determined to put a red dot on the file. Despite what Dr Browning said in his Statement about what the red dot meant, I find that the proper interpretation of the red dot is that Mrs Hirst was to be regarded as a high-risk patient. That was what Dr Browning agreed with in cross-examination.
All of the experts agreed that the only matters which could place her in a high-risk category were the unstable lie and the head being persistently high. In either case the danger is a cord prolapse. Mr Clements (with whom Dr Molloy agreed) was of the view that both unstable lie and high head were the same problem because the risk was the same.
Of course, the evidence of all of the experts in this regard must be based upon inference, albeit inference informed by their obstetric expertise. Nevertheless, the only person who knows why the red dot was put on Mrs Hirst's file was Dr Browning. He appeared to have no recollection of when he did it, and his evidence about it was confined to the statement that she had moved from being an ordinary antenatal care patient to a high-risk patient.
All of the experts (except Dr Challis) were of the view that the unstable lie was one of 2 possible explanations for Dr Browning having placed a red dot on Mrs Hirst's file. In my opinion, even if he was also concerned about the head being high, the matter of an unstable lie was likely to have been the principal reason she was regarded by him as being high-risk. He had found an unstable lie on 27 September (whether by it simply being an oblique lie on that occasion or, much less likely, by reason of his comparison with her earlier records) and he was still considering if she had an unstable lie (at the very least) on 2 October. Although Dr Browning gave evidence that it was a cause of mild concern on 2 October his decision to place her into the high-risk category on that occasion points strongly to his having more than a mild concern about the matter.
I do not accept that the reference to "Head central" on 2 October eliminated the possibility of an unstable lie. There was no evidence of when he wrote the words on the Maternity Outpatients Record. If he wrote the words "? Unstable lie" before he examined her to suggest that the purpose of the consultation was to confirm or negative his previous diagnosis it would be extraordinary for him not to have noted after examination that the lie was not unstable if that was his conclusion. If he wrote the words after examining her he could not have eliminated the possibility of an unstable lie. That he had not eliminated it is demonstrated by what follows.
The third time Dr Browning wrote "unstable lie" was when he saw Mrs Hirst in the Maternity Outpatients on 15 October 2000. In paragraph 24 of his Statement, a paragraph that was not amended along with the other paragraphs, Dr Browning said this of the consultation on 15 October 2000:
[24] I was on-call and saw Mrs Hirst and examined her. I refer in my note to the possibility of an unstable lie, again not because it had been unstable while she had seen me but because this possibility had been passed on from Dr Flynn.
...
That cannot be the correct explanation (in the light of the other withdrawals). If, as he said, he had eliminated the possibility of an unstable lie on 2 October I cannot accept that he wrote it again just because Dr Flynn had thought it sometime previously. The highest the matter could be put for Dr Browning was that he wrote it because of what he had observed on previous occasions. That is not, however, the only explanation for his writing it.
Between consultations with Dr Browning of 2 and 15 October Mrs Hirst saw Dr Flynn on 4 October. That seems to have been planned because Dr Browning noted in the Maternity Outpatient Record on 2 October "For review later this week with Dr Flynn". In his obstetric care notes Dr Flynn wrote in respect of the consultation on 4 October "Has unstable lie - cephalic. Not engaged". Dr Browning thought that Dr Flynn would have the expertise to diagnose an unstable lie. However he said it was a contradiction to record "cephalic" because that was a reference to presentation and position that would be inconsistent with an unstable lie.
His explanation for Dr Flynn's having written "Has unstable lie" was that he was recording what Dr Browning had communicated to Mrs Hirst. (This, of course, was a complete reversal of his explanation in his Statement for having himself written the words on 27 September and thereafter.) It is to be remembered, however, that Dr Flynn's referral letter of 9 October 2000 said that Mrs Hirst had an unstable lie with the head not engaged. Dr Browning said he would not assume that Dr Flynn was communicating information to him that was current as at 9 October - rather, the referral letter was a late one sent to him for the consultation with Dr Browning on 27 September to enable Mrs Hirst to recover medical benefits for the consultation with a specialist. However, there is nothing in Dr Flynn's notes to suggest he had any suspicions or knowledge of an unstable lie prior to his consultation of 4 October. The reference in the letter of 9 October was either reference to a diagnosis made by Dr Flynn on 4 October or was a reference to what he was told Dr Browning had diagnosed on 27 September and, presumably, 2 October.
Dr Browning's evidence that what he observed on 2 October had eliminated the possibility of an unstable lie cannot be accepted. If, as he says, the question mark on the Maternity Outpatient Record was linked to the words "unstable lie" there would be no need for him to have written that symbol and those words if he was satisfied that there was no unstable lie. Moreover, it would make no sense for him to have written the same symbol and words on 15 October 2000.
Further, if Dr Flynn was only recording on 4 October information conveyed to him from Dr Browning he would not have written it if Dr Browning was satisfied on 2 October that the possibility of an unstable lie had been eliminated. Again, for the reasons I have given, the fact that Dr Browning put a red dot on Mrs Hirst's file on 2 October suggests that Dr Browning had not eliminated an unstable lie from his diagnosis on that day.
There are other reasons why Dr Browning's evidence about what he found on 27 September, 2 October and 15 October should not be accepted. In my opinion, Dr Browning diagnosed, on a provisional basis, an unstable lie on 27 September. When he saw Mrs Hirst again on 2 October I find that he confirmed that diagnosis. On that day he contemplated sending her for an ultrasound but for unexplained reasons did not do so. In addition to the matters that I have discussed above in this section of the judgment, my further reasons for not accepting Dr Browning's evidence about what he found on 27 September, 2 October and 15 October, and for finding in the way I have indicated, are what follows.
First, his initial reconstruction of what he did and why he used the term "unstable lie" is now acknowledged by him to be wrong. Secondly, he said he could not refute Mrs Hirst's account of the conversation that she had with Dr Browning on 27 September - that conversation included his statement to her "you have an unstable lie". Thirdly, he wrote the words "unstable lie" on the antenatal card on 27 September without any question mark or any other words or symbols to suggest it was only a differential diagnosis as Dr Browning asserted.
In this regard some further evidence that Dr Browning gave about his understanding of what amounted to an unstable lie should be noted (T213 - 215):
HIS HONOUR
Q. Doctor, if you had a thought there might be an unstable lie on the 27 th --
A. Yes.
Q. -and you had a thought on 2 October when you asked her to come back partly I think to check that--
A. Yes.
Q. -but there might be an unstable lie--
A. Yes.
Q. -wouldn't you be thinking about a scan?
A. If I confirmed it on 2 October, your Honour, yes, certainly. But the fact on 2 October is confirmed and I confirmed it wasn't an unstable lie on that, on that consultation. The-
Q. You determined on that day that the head was in a central position?
A. Yes. Yes.
Q. Previously it had been central to the right, in the right iliac fossa?
A. Yes, that's right.
Q. Doesn't that mean it had moved?
A. Yeah. But it's only a very small amount. When you consider - unstable lie refers to the movement of the whole body. What we are talking about is a few centimetres, a couple of centimetres of the head moving (witness indicated).
Q. But isn't movement not indicative of an unstable lie?
A. That small amount of movement certainly not indicative, no.
Q. I see.
A. Unstable lie is the whole body rotating to a different position.
BARTLEY
Q. So doctor, does that mean that on the occasions, once every 3 months, that you had encountered a woman in your practice who presented with an unstable lie you only used the words "unstable lie" when the whole of the foetus had rotated?
A. Yes.
Q. Do you believe that that's in accordance with general obstetric practice?
A. Yes, I do.
Q. At that time?
A. Yes.
Q. So, you were conducting your practice as at September/October 2000 on the basis that you would only record an unstable lie if there had been complete rotation of the foetus?
A. Well, yes. The whole moved in, in, in (witness indicated).
Q. Doctor, if an unstable lie was your diagnosis on 27 September 2000, that means that what you discerned on that day was a complete rotation of the foetus?
A. No, I didn't determine that at all. I just said it was a tentative diagnosis or a possible diagnosis. There wasn't a rotation of the foetus at all.
Q. Why didn't you write question mark, doctor, on 27 September?
A. Question mark?
Q. Yes.
A. Because it alert (sic) myself and everybody else for that possibility ensuing.
Q. But doctor, without the question mark, according to you, what you're telling the next practitioner that reads these notes--
A. Yeah.
Q. -you have discerned a complete rotation of the foetus on 27 September, didn't it?
HIGGS: Your Honour, I object. That's not what he has said.
WITNESS: What--
HIGGS: Just stop when there's an objection taken.
BARTLEY: That is put as a proposition.
HIS HONOUR: That's not I think a fairly put proposition in the light of the evidence he has given.
BARTLEY: Could the doctor wait outside?
HIGGS: Sorry. I preface that with the word "so". That's the only point that I want to make from what has fallen from your Honour.
BARTLEY: Your Honour, it is a perfectly permissible question in that context.
HIS HONOUR: I think you had better put the question without the word "so".
BARTLEY: I withdraw the question.
Q. Doctor, recording unstable lie on 27 September without a question mark was intended to convey to the next practitioner who read that card that there had been a complete rotation of the foetus?
A. No. Because if you read on, "unstable lie - head in RIF". So it's, it's an indication that unstable lie was a possibility.
Q. You have nothing really, doctor, do you, to advance as to why if you thought it was only a possible diagnosis that you didn't use a question mark on the 27 th ? You have nothing to advance about that, do you?
A. No.
That evidence suggests that Dr Browning has not recorded everything he observed, and/or cannot recall what else it was that caused him to write "unstable lie" on the 3 occasions. This adds support to what Mr Clements said:
I think there must have been something else going on that gave him concern that this lie was unstable.
Fourthly, in paragraph 34 of his Statement, Dr Browning said:
When Mrs Hirst consulted me on 27 September 2000 she had already been seen on that day by Dr Flynn.
That statement was completely wrong which Dr Browning accepted in cross-examination. He agreed that he had no way of knowing whether or not Mrs Hirst had seen Dr Flynn on 27 September when he signed his statement. This is a further indication that Dr Browning's evidence about factual matters was entirely reconstruction. It was not at all reliable for that reason.
Fifthly, Dr Browning gave this evidence:
Q. Doctor, in those cases where you had confirmed unstable lie, would you attach a question mark to it?
A. If I had confirmed?
Q. If in those cases, those one in every 3 months where you say you found unstable lie--
A. Yes.
Q. -would you record that as "?unstable lie" or would you simply record it as "unstable lie"?
A. Definitely "?unstable lie," yes. Yes.
Q. And doctor, where you were uncertain you would use the question mark?
A. Normally, yes. Yes.
Although there is internal inconsistency in this evidence it shows, at best for Dr Browning, that if he wrote "? Unstable lie" he would be uncertain about whether or not there was an unstable lie. If that is accepted, it means his explanations for having written "? Unstable lie" on 2 and 15 October cannot be accepted. It also means that I can place no weight on any of Dr Browning's evidence concerning his usual practice when it involves writing notes on the medical records.
Sixthly, I do not accept Dr Browning's assertion that the word written in the Maternity Outpatient Record is "seen". In the first place, the word looks as if it is "scan". Next, it makes no sense to have written the word "seen", and Dr Browning's explanation that he wrote it because there was nothing written on the Maternity Outpatient Record next to the words "presents with" itself makes no sense. Dr Browning's evidence in this regard was this:
Q. May I suggest to you that the first word in your consultation note is the word "scan". That's right, isn't it?
A. That's completely wrong. The word is "seen". Although it looks as though it could be "scan", I agree, but it's not "scan". It's "seen".
Q. That's your interpretation of that writing, isn't it?
A. That's my reading of that writing.
Q. If it said "scan", it would fit in with the discussion which Mrs Hirst remembers having had with you on 27 September 2000 about having a scan?
OBJECTION (HIGGS). Question withdrawn.
Q. Doctor, you can't possibly suggest that what you've written there is the word "seen", can you?
A. Yes, I can, because if you look at the English, it does makes sense. The whole point of that consultation, as I realised only the other day or whenever it was , is that it was a consultation initiated by myself. You said this morning earlier that there's no note against the "presents with", which is normally put there by the nurses, so you know, it is my consultation that I've "seen" her, query, "unstable lie". So it's "seen", query, "unstable lie" in place of whatever the nurses might write in that line which commences "presents with".
Q. So the question mark doesn't relate to the first word, you say?
A. No. The question mark relates to "unstable lie". (emphasis added)
The emphasised words point clearly to reconstruction and perhaps speculation.
When asked about this again in the context of the Maternity Outpatient Record of 15 October 2000 where there was also nothing written alongside "Presents with" but Dr Browning had not written the word "seen", the following evidence was given:
Q. When I was asking you questions earlier about that page you drew the attention of the Court to the absence of any entry against the heading "Presents With"?
A. "Presents With", yes, indeed.
Q. Just stay where you are, please, Doctor?
A. Yes, yes, yes.
Q. And when I asked you why you said you'd written the word "seen" instead of "scan"-
A. Yes.
Q. -you said it was because nothing was written in the "Presents With" section?
A. Yes.
Q. So, Doctor, was it your invariable practice at that time that if those in the maternity outpatients had not written any reason for presentation, that you would write under "Consultation Notes" the word "seen" to demonstrate that you had seen the patient?
A. Not every time, no.
Q. Well, why sometimes and why not others?
A. I guess it's just a matter of a whim of the moment, I suppose.
Q. Come forward now to 15 October.
A. Yes.
Q. There's nothing written against-
A. Yes.
Q. -"Presents With" there, is there?
A. No.
Q. But you haven't written "seen" there, have you?
A. No.
Q. Doctor, it is nonsense to say that you wrote the word "seen" when you were actually seeing the patient?
A. No, I don't think it's -I don't think it's nonsense at all.
Q. Was that a practice you were taught as a young doctor, to write down the word "seen" when you saw a patient?
A. No.
Q. Sometimes you'd write that and sometimes you wouldn't, is that right?
A. Yeah. (emphasis added)
The clear import of that evidence was that Dr Browning did not have an invariable practice about writing the word "seen" when nothing was written against the words "presents with". His explanation, in the absence of any memory for these consultations, must therefore be nothing better than speculation. He sought to support it, however, by suggesting that the word "scan" made no sense by this evidence:
Q. Doctor, I suggest to you again that the word on 2 October 2000 on the consultation note is in fact the word "scan"; it is absolutely clear that is the word, isn't it?
A. I don't think so at all. I don't think it makes any sense if you put "scan" there. As I-
Q. It makes no sense in the context of somebody who has told the Court that they raised the question of a scan with you?
A. No, it makes no sense in the context of that particular consultation.
Q. Do you say it's because "scan" could not possibly have been thought about at that consultation?
A. No, I say it because scan is not something that's ordered through the maternity outpatient department.
Q. So, is that your principal reason for saying that, that is, the words "seen and not scanned"?
A. It's one of the reasons, yeah.
Q. Would it not indicate that you had in mind that she needed a scan and somebody should arrange it?
A. No, it doesn't mean that at all.
...
Q. But you say that could not be the word "scan" because there was nothing at all to indicate that a scan was going through your mind even at that time, is that right?
A. But a scan would be indicated if, if the question mark was removed. But the fact that we have got "scan ? Unstable lie," scan query unstable lie doesn't make sense. It wouldn't be ordering a scan of query unstable lie. We would be ordering a scan if there was an unstable lie.
A further reason for thinking that word is "scan" is that Mrs Hirst had already raised the question of having an ultrasound (even if Dr Browning had dismissed it at the time), coupled with the fact that Dr Browning agreed that if there was unstable lie then there must be a scan in the form of an ultrasound. Even on the best case for Dr Browning, the issue of whether or not there was an unstable lie was certainly in his thinking on 2 October. That makes it likely that the word he wrote was "scan".
I note that, before the controversy arose about whether the word was "scan" or "seen" Dr Challis, retained by the Area Health Service, clearly interpreted the word as "scan" because at 2 places in his report when referring to the consultation on 2 October 2000 he noted that Dr Browning considered ordering an ultrasound examination at that time. He confirmed that that was how he read the word when giving evidence with the other obstetricians.
The issue with regard to the unstable lie is focussed on events after 27 September to determine if such a diagnosis could be justified on those dates, and particularly on 2 and 13 October. The approach of the Defendants' obstetricians to the consultations that post-dated 27 September was to point to the finding that the head was central with the result that the baby must have been in a longitudinal lie and that the presentation was described in some places as cephalic. Those findings were said to be inconsistent with any diagnosis of an unstable lie on those occasions.
Whilst the expert evidence from the obstetricians was very useful in informing the Court of medical matters, its limitations became clear when the experts were asked to opine on the written records of Dr Browning and others. What had Dr Browning meant by writing the words "unstable lie" on 3 occasions whether with or without question marks? Had he written the word "scan" or "seen" and what did each mean in any event? Did Dr Flynn refer to unstable lie only because Dr Browning had done so or did Dr Flynn make an independent diagnosis of an unstable lie? Why was a red dot placed on Mrs Hirst's file? The answer to these and other questions ultimately depend on evidence given by Dr Browning and inferences that the Court draws from the contemporaneous medical records although informed by the matters of medical expertise provided by the experts.
As Dr Lyneham acknowledged (at T311) what the experts were doing was interpreting Dr Browning's records in retrospect. However, whilst those experts had an advantage of obstetric training and experience, they did not have the benefit of hearing all of the evidence in the case, particularly evidence from Mrs Hirst and Dr Browning. Hence the opinions of the experts, particularly with regard to the written records, could not be determinative.
Another difficulty about the way the experts for Dr Browning (Dr Lyneham and Professor Giles) formed their views was on assumptions which are no longer reliable because Dr Browning changed his evidence. In particular, as Dr Lyneham makes clear in his report, he formed his views about the consultations on 27 September and 15 October (and presumably 2 October) on the assumption that the reference to an unstable lie was not a finding that Dr Browning made but was noted either because Mrs Hirst mentioned it or Dr Flynn may have spoken to Dr Browning and mentioned it.
The experts retained by the Defendants, in answer to a question in the conclave whether it was consistent with widely accepted peer professional opinion for Dr Browning on a number of dates from 27 September 2000 to 18 October 2000 not to have made a diagnosis of an unstable lie, answered that it was consistent. However, the issue in the case is not so much what he ought to have done but what he in fact did. I have found, for the reasons that I have given, that he did make a provisional diagnosis of unstable lie on 27 September, confirmed it on 2 October, and was still concerned about it on 15 October 2000. He was correct in so doing. In those circumstances the experts' opinion about what he ought to have diagnosed based on their reading of the material becomes irrelevant.
Dr Flynn's notes on 4 October and his referral letter of 9 October suggests that he also was of the view that there was an unstable lie. Dr Browning said that it was probable that he would have spoken to Dr Flynn after receiving the letter of referral, whether or not he obtained it before he saw Mrs Hirst on 9 October.
The absence of Dr Flynn makes the task of resolving some of the factual matters more difficult. It was a matter of concern to me that Dr Flynn was not called to give evidence in the case. It is necessary to consider whether a Jones v Dunkel inference should be drawn and against whom. On one view, Dr Flynn was in the Plaintiff's camp since he was the GP attending Mrs Hirst. However, what was contained in Dr Flynn's contemporaneous notes and his letter of referral, and given what Dr Browning sought to prove concerning Dr Flynn (in the first instance that Dr Browning only used the term "unstable lie" because that had been told to Mrs Hirst by Dr Flynn, and subsequently that Dr Flynn only wrote the words in his documents because Mrs Hirst must have conveyed to him what Dr Browning had said) suggests that there was likely to be an evidentiary onus on the Defendant to call Dr Flynn. But I do not consider there is any need to resort to a Jones v Dunkel inference to reach the views I have formed.
In my opinion, Dr Browning diagnosed an unstable lie, probably on 27 September, but certainly by 2 October. By 15 October Dr Browning had not satisfied himself that the unstable lie had resolved. This caused him on 2 October to consider sending the Plaintiff for an ultrasound (that was what was meant by the word "scan") but he did not do so. My reasons have been detailed in the foregoing discussion but can be summarised by saying (1) I accept the evidence of Mrs Hirst about what was said at the consultation of 27 September; (2) Dr Browning wrote the words "unstable lie" with or without a question mark on 27 September, 2 October and 15 October - the explanations put forward for this in the Defendant's submissions were not supported by evidence of Dr Browning; (3) the word written by Dr Browning on 2 October was "scan"; (4) Dr Browning placed a red dot on Mrs Hirst's file on 2 October which he agreed meant that she was a high risk patient - the only reasons she could have been a high risk patient was that there was an unstable lie and/or the head was persistently high.
(b) What should Dr Browning have done?
Even if one adopts the alternative definition of "unstable lie" by Dr Lyneham and concludes that Dr Browning diagnosed an unstable lie on 27 September, that is only the starting point. The distinction made by Mr Higgs of Senior Counsel for Dr Browning was between diagnosis and management. When the obstetricians came to address the question of management only Dr Molloy adamantly maintained the position that an ultrasound ought to have been organised as a result of what Dr Browning found on 27 September. Mr Clements was prepared to accept that it might be appropriate to wait, perhaps, 3 days for a further examination to see what the position was before having an ultrasound performed.
I accept that view of Mr Clements which was, in substance, the view of the obstetricians retained by the Defendants, namely, that it was necessary to wait for further observations on a second occasion before taking any specific action. I accept that view, not only because 4 of the 5 obstetricians in substance agreed with it but also because I found Dr Molloy to be rather rigid in his approach to the issues. It did not seem to me that he was prepared to make any concessions in the views he held and I formed the opinion, to some extent, that he was an advocate for the Plaintiff in the matter. For example, I found Dr Molloy's statement that the head had to be in the pelvis for lie to be stable not to have any support whether from the definition in MacKenzie nor from Mr Clements.
On the other hand, although Mr Clements disagreed with the Defendants' experts on a number of matters, he was prepared to modify his opinions on occasions, and I thought that his views were supported by careful and thoughtful reasoning and analysis. I similarly found Dr Lyneham, in particular, to provide the most assistance to the Court in terms of his reasoning and analysis.
The experts retained by the Defendants also said that it was consistent with widely accepted peer professional opinion in Australia for Dr Browning not to have proceeded in his management with the Plaintiff on the basis that there was an unstable lie and not to have ordered an ultrasound on all dates from 27 September 2009 to 18 October 2009. However, that opinion was necessarily based on the conclusion of those experts that he was not wrong in not having made a diagnosis of unstable lie. When he did so, that opinion has considerably diminished weight.
On the other hand, the experts agreed in their joint report that if Dr Browning had found an unstable lie on 2 October 2000 and had written the word "scan" with or without a question mark, then a scan ought to have been performed. Dr Challis, for example, said (T345):
There is no accepted way of managing an unstable lie at term. Yesterday I said "term" by definition is beyond 37 weeks. So I would be very critical of a colleague if they had a patient with unstable lie at 38, 39 40 weeks and did not make a plan for management. There are a number of acceptable plans for management of that condition at term, particularly if you are planning to do an external cephalic version and rupture the membranes at 38 or 39 weeks.
There is an obligation to order an ultrasound examination because you want to know where the cord is, you want to make sure there is not a placenta previa or, as we spoke about yesterday, a swelling tumour in the pelvis of whatever nature which is preventing the fetal head from engaging. You want to know about that. There is no reason to do that prior to 37 or 38 weeks because it is not going to change what you do.
In the light of my findings that Dr Browning did find an unstable lie on 2 October and did write the word "scan" it follows that he ought to have arranged for a scan shortly after that occasion. Mr Clements, Dr Molloy and Dr Lyneham all say that that should have happened within a few days of 2 October.
It was appropriate for Dr Browning not to send Mrs Hirst for an ultrasound as a result of the consultation on 27 September because, as the experts said, it would be appropriate to wait a short time to review the position to see if the position of the baby corrected itself. Further, the relevant time for concern about an unstable lie is accepted as being at 37 weeks. At 27 September Mrs Hirst was not yet at 37 weeks. Dr Challis said that term in the pregnancy is between 37 and 42 completed weeks. Similarly Dr Lyneham drew attention to what MacKenzie said in his article that at 37 weeks and beyond is the time that, if there is an unstable lie, investigations are necessary. Mr Clements suggested that one should not nitpick between 36 weeks and 4 days on the one hand and 37 weeks, but he was content to accept that it was appropriate to wait until 37 weeks (which was, in the event, 3 days after 27 September) to see if the position resolved itself before an ultrasound was ordered.
The purpose of carrying out an ultrasound was not specifically to see if the baby had the condition which the Plaintiff had. As Dr Lyneham made clear the chances of a baby being live born with hydrocephalus is about 1 in 5000 whereas the likelihood of having an unstable lie was considerably higher at this stage of the pregnancy. The purpose of the ultrasound would be generally to see if there was some explanation for the unstable lie including placenta praevia (a condition where the placenta is implanted in the lower uterine segment and covers the internal cervical os or opening). Another cause might be a form of tumour. Dr Browning agreed that one of the matters that a scan would elucidate would be a child with megalocephaly.
The experts agreed that the other symptoms of which Mrs Hirst was complaining (abdominal pain, weight gain, apparently decreased movements of the baby) were not indicative of a baby with hydrocephalus. It can be accepted, therefore, that the purpose of the ultrasound, which should have been ordered on 2 October by Dr Browning, was not for the purpose of ascertaining if the baby Mrs Hirst was carrying had hydrocephalus. Nevertheless, an ultrasound would have detected that problem.
I accept the joint evidence of the experts that if an unstable lie was found on 2 October and that Dr Browning contemplated doing a scan, then a failure to ensure that this happened was a breach of Dr Browning's duty.
The Defendant calls in aid s 5O Civil Liability Act 2002 and relies on the evidence of Dr Lyneham, Dr Challis and Professor Giles. However, the position initially adopted by those Doctors in their reports and, to some extent in the joint report, was dependent upon the assumptions that they had made about what Dr Browning had written and said had happened, particularly with regard to why he had written the words "unstable lie" at various places in the medical records.
In the situation where I have found that Dr Browning diagnosed an unstable lie at least by 2 October, the experts accept that an ultrasound ought to have been carried out to determine the cause of the problem. At this point there was no longer a difference in the way a specialist obstetrician should have acted in the circumstances. Therefore, s 5O ceases to have relevance.
(2) Causation
Expert evidence was given jointly by 5 experts in relation to causation. Those experts were Dr Jane Antony, a paediatric neurologist; Dr George Williams, a paediatrician; Professor Robert Ouvrier, a paediatric neurologist; Dr Geoffrey Parker, a neuro-radiologist; and Dr Andrew McPhee, a neo-natal paediatrician. Those experts had previously met either in person or by telephone in conclave and had answered a number of questions in a joint report. Most of the questions were answered unanimously by the experts, although there were some small differences between them to which I shall refer.
What they gave unanimous evidence about were these answers to the identified questions:
(a) It was more probable than not that the Plaintiff had hydrocephalus from 27 September 2000 onwards (Question 1);
(b) The cause of the Plaintiff's hydrocephalus was aqueduct stenosis, which is a narrowing of the small channel which conducts cerebrospinal fluid from the 3 rd ventricle to the 4 th ventricle of the brain (Question 3);
(c) The ultrasounds which took place on 29 May and 16 June 2000 contained no clinical concerns (Question 4);
(d) At all of the relevant dates from 27 September onwards, if the Plaintiff's hydrocephalus had been detected, the mother should have been immediately referred for early delivery in a tertiary level centre close to a paediatric hospital capable of performing a shunting procedure as soon as possible (Question 6);
(e) Had that treatment occurred the Plaintiff would not have avoided suffering from the following injuries and disabilities:
(i) Hydrocephalus, need for a shunt, peritonitis
(ii) Cerebral palsy
(iii) Epilepsy and seizures
(iv) Loss of balance, co-ordination and gait
(v) Intellectual and cognitive impairment, developmental delay and self-stimulatory behaviours
(vi) Impairment of speech
(vii) Hemianopia, vision impairment
(viii) Loss of upper limb function (Question 7);
(f) It was more likely than not that the Plaintiff would have suffered less damage than she suffered after birth if she had been appropriately treated on 27 September, 2 October or 9 October 2000. Had she been operated on or around 15 October 2000 it was not more likely than not that the Plaintiff would have suffered less damage (Question 8).
These experts did not agree on the period of time over which the hydrocephalus developed nor at what stage it had reached by 27 September 2000. Dr Williams and Dr Antony considered that the hydrocephalus was likely to have commenced on or before 32 weeks; Professor Ouvrier thought it was before 30 weeks, Dr McPhee thought that it was after 21 weeks but before 30 weeks, and Dr Parker thought it was sometime after 21 weeks.
In relation to the speed of progression Dr Williams thought it had progressed rapidly; Dr Antony thought it had started slowly but then accelerated; Dr McPhee similarly thought it had a gradual onset followed by acceleration; Professor Ouvrier thought it had progressed fairly quickly over a minimum of 10 weeks; and Dr Parker thought it had progressed slowly.
By 27 September Dr Williams thought the hydrocephalus was mild-moderate, Dr Antony thought it was moderate and the remaining 3 Doctors thought it was moderate-severe.
The issue of how much better off the Plaintiff would have been had she been delivered and treated prior to 9 October 2000 was not answered specifically in the joint report but was explored at some length during the concurrent evidence. The matters in paragraphs [103]-[105] above were relevant to this consideration.
Another matter of some significance is Dr Parker's views that the scans that he examined suggested that in addition to the aqueduct stenosis there were also subtle development derangements involving structures in the posterior fossa in particular. Some of those developmental abnormalities, he said, were likely to be of genetic origin and may have been a cause of the Plaintiff's disabilities. If that was so, earlier delivery after 37 weeks may have meant that the Plaintiff would not have avoided the abnormalities and there would have been no impact on the Plaintiff's long-term prognosis.
The Defendant submitted that the Plaintiff does not satisfy s 5D(1)(a) CLA because the causation experts agreed that the injuries and disabilities from which the Plaintiff currently suffers could not have been avoided had treatment of the type likely to have been indicated if the Plaintiff's hydrocephalus was detected between 27 September and 18 October 2000 had been administered, namely, early delivery and a shunting procedure. The Defendant further submitted that all the Plaintiff can establish at best is the loss of a chance of a better medical outcome. In that regard the Defendant submitted that the present case is no different from Tabet v Gett (2010) 240 CLR 537. The Defendant pointed in this regard to the evidence of the causation experts that expressed uncertainty about a percentage improvement had there been earlier intervention, and the uncertainty about being able to identify what disabilities would have been eliminated or improved.
The Defendant submitted that the evidence was all speculative in a similar way to the description given of the evidence in Tabet v Gett . The speculative nature of the evidence was said to be highlighted by the differing views amongst the causation experts about how long the hydrocephalus had been present and the rate at which it developed.
The Defendant also submitted that under s 5D(1)(b) CLA the Court should not hold Dr Browning legally responsible for failing to detect the hydrocephalus by not ordering an ultrasound. That is to say, the Defendant submitted that it is not appropriate for the scope of Dr Browning's liability to extend to the harm so caused. The reason for this, the Defendant submitted, was that the finding of hydrocephalus upon an ultrasound would have been serendipitous. The performance of the ultrasound would not have been for the purpose of ascertaining if the Plaintiff had hydrocephalus.
(a) Section 5D(1)(a)
The question of causation is governed by s 5D CLA . The establishment of factual causation referred to in s 5D(1)(a) is to be determined by the "but for" test in all but the undefined group of exceptional cases contemplated by s 5D(2): Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [132]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 45; Varga v Galea [2011] NSWCA 76 at [9]; Stephens (t/as CTS Plumbing) v Giavenco [2011] NSWCA 53 at [11].
In my opinion the Plaintiff satisfies s 5D(1)(a). The causation experts unanimously agreed that it was more likely than not that the Plaintiff would have suffered less damage if she had been appropriately treated on (relevantly) 2 or 9 October 2000. Dr Browning ought to have sent Mrs Hirst for an ultrasound on 2 October 2000. Even if it is accepted that the scan would not have been performed for 2 or 3 days, the hydrocephalus would have been detected on that basis by no later than 5 October 2000. It seems reasonable to me to apply the same timing to events as happened from 23-25 October to what was likely if Dr Browning so referred Mrs Hirst for an ultrasound. If the hydrocephalus had been detected on 5 October 2000 she would have been transferred to Liverpool Hospital at least by the following day and the Plaintiff would have been delivered. She would then have been transferred to the Children's Hospital at Westmead on 7 October where either a shunt or an external drain could have been inserted. In those circumstances the evidence of the experts, with which I agree, is that more likely than not the Plaintiff would have suffered less damage than she sustained as a result of being delivered on 24 October 2000.
The answer of the experts to question 7, that the Plaintiff would not have avoided suffering from the injuries and disabilities set out in para [102](e) above must be seen in the light of their answer to question 8 set out in para [102](f) above. But for Dr Browning's failure to refer her for an ultrasound on 2 October 2000 the Plaintiff has suffered more damage than she otherwise would have done.
The fact that there is disagreement amongst the experts about the timing of the onset of the hydrocephalus, about the rapidity with which it had progressed, about the extent of its severity at 36+ weeks, and about the difficulty of being able to put a precise figure on the improvement that would have been likely had there been earlier treatment, cannot obscure the fact that the evidence of the causation experts about these matters was a good deal more than a guess and speculative.
Dr Antony, Dr Williams, Dr McPhee and Professor Ouvrier all thought that the appropriate range of improvement would have been between 10-30%. Dr McPhee thought it more likely to have been down the bottom of that range, and Professor Ouvrier had originally mentioned 10%, but having heard Dr Antony he was prepared to accept that it could be up to 30% or, he said, "even more". Dr Antony thought a 10% improvement would leave the Plaintiff not much different from her existing state. Dr Parker did not consider that he had expertise to opine about functional matters.
Dr Antony, without dissent from the other experts, said that merely looking at the physical state of the brain (as Dr Parker had detailed) could not give a clear idea of how that would result in functional disabilities. She said that 2 people could have the same evidence on a brain scan but could have different functional problems. She said, however, that if the Plaintiff had been treated earlier her intellectual handicap could have been a bit better and she may have had some improvement in her speech. She did not think there would be any difference to the Plaintiff's right-sided hemiparesis because the left ventricle was so big. Dr McPhee thought there may have been a reduction in seizure activity and an increased ability to interact. This is because the seizure activity is probably the dominant process, he said, which interferes with her ability to communicate with the world.
The present case is not in that regard similar to Tabet v Gett . The trial judge in that case was not persuaded on the balance of probabilities that the discovery of the tumour upon the administration of a CT scan on 13 January would have led to the appellant being treated in such a way as would have avoided the seizure and deterioration in her condition on 14 January. Rather, the trial judge found that the appellant lost a chance of a better medical outcome had the brain tumour been detected on 13 January 1991, as it would have been if the CT scan had been performed that day - see at [6] and [7].
The Defendant submitted that in Tabet v Gett the trial judge found a 25% chance of a better outcome. He then submitted that the experts in the present case said that there was a 10-30% chance of a better outcome. It does not seem to me that that was what the experts in the present case were saying. They agreed that it was more likely than not (i.e. on the balance of probabilities) that the Plaintiff would have suffered less damage if appropriately treated on 2 to 9 October 2000. They then went on to say that the likely difference between her present outcome and the outcome that would have been had she been treated earlier was an improvement of 10-30%. The first part of the opinion demonstrates that the Plaintiff proves damage that was caused by the breach of duty. The second part of the opinion is an attempt to say what the extent of the damage is. This is not a chance of a better outcome but an assessment of how much better the outcome would have been.
The Defendant relied particularly on what Kiefel J said at [114]:
In actions involving medical negligence the loss or damage claimed to have been suffered is ordinarily physical or mental injury or harm. When such injury or harm is proved the question then is whether it was caused by the negligent act or omission, such as a failure to diagnose or treat the disease or other condition from which the plaintiff then suffered. The difficulty which the appellant faced in this case was that the expert medical evidence did not establish the link between the omission of the respondent, with the consequent delay in treatment, and the brain damage which occurred on 14 January, necessary for a finding of causation. There was no evidence as to what harm might have been caused by the delay. It could not be said that "but for" the delay the appellant would not have suffered brain damage. It follows from Studdert J's findings that the probability was that the tumour would have caused it in any event.
However, unlike in that case, in the present case there was evidence as to what harm was caused by the delay in treatment. The evidence was that the Plaintiff would have been 10-30% better off than she now is with Dr Antony and Dr McPhee identifying particular matters which they thought would have been different.
In Tabet Hayne and Bell JJ said this:
[66] For the purposes of the law of negligence, "damage" refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.
[67] In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent's negligence had caused any difference in the appellant's state of health. That is, it was not demonstrated that the respondent's negligence was probably a cause of any part of the appellant's brain damage.
Because I accept the evidence of the causation experts in answering question 8 in the joint report, the Plaintiff has suffered a difference which is detrimental, the difference being represented by her increased injuries and disabilities (between 10-30%) from the time when the negligent act or omission occurred.
In Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Ipp JA (with whom Beazley JA agreed) said at [138]:
[138] ...The fact that experts do not infer causation on a balance of probabilities does not mean that a court may not: Seltsam Pty Ltd v McGuiness at [143]-[144]. A finding of causal connection may be made even when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole establishes causation on a balance of probabilities: Seltsam Pty Ltd v McGuiness at [89], [94]-[96], [98]-[100], [102], [143], [144] and [153].
[139] What is meant by "balance of probabilities" in this context? Guidance may be obtained from the remarks of Mahoney JA in Jones v Sutherland Shire Council [1979] 2 NSWLR 206 where his Honour, in commenting on this issue, said (at [227]):
"The first step, in a sense, involves simply an assessment of what is human experience: it is, or is not, a fact that human experience is so. But such an assessment is not made as a mathematical calculation. It involves other kinds of reasoning in judgments, the correctness of which cannot be demonstrated by mathematics or ordinary logic. Therefore, the subjective confidence which a person or a court will have in the correctness of the assessment may vary.
It is to this that, in my opinion, phrases such as 'the balance of probabilities' refer in respect of such an assessment."
[140] Mahoney JA observed that one possible meaning of a thing being "probable" is where the person, judging the probability of that thing, "has the appropriate degree of confidence in its existence or correctness based on or judged according to reason". His Honour remarked (at [227-228]):
"It is in this sense that 'probability' is used in determining whether a particular proposition of fact should be accepted for the purpose of litigation. It was in my opinion to this that Dixon J referred in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. In referring to what constituted proof of a fact, his Honour said: ' ... the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality'."
[141] These observations echo his Honour's remarks in Fernandez v Tubemakers of Australia Ltd at 199 (quoted by Spigelman CJ in Seltsam Pty Ltd v McGuinness at [95] and [99]) and with respect, are not inconsistent with what is said in Flounders v Millar at [35], namely:
"It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail. ... The rules governing causation at common law are those expressed in Luxton v Vines and March v Stramare (E & M H) Pty Limited , namely, the test of commonsense, with the onus of proof at all times being on the plaintiff".
Although I consider that the experts themselves agreed that it was more likely than not that the Plaintiff would have suffered less damage if she had been appropriately treated on 2 or 9 October 2000, to the extent that that answer was qualified in their evidence concerning the percentage difference that would have been demonstrated had she been treated earlier, I am satisfied that the evidence as a whole establishes on the balance of probabilities that the Plaintiff sustained some damage by the failure to treat her earlier, such damage being that she was worse off in terms of her disabilities by the 10-30% margin.
In my opinion, factual causation in accordance with s 5D(1)(a) is established.
(b) Section 5D(1)(b)
The next issue to be determined is, pursuant to s 5D(1)(b) whether it is appropriate for the scope of Dr Browning's liability to extend to the harm caused to the Plaintiff.
One of the questions put to the obstetric experts in conclave was this:
Q. Having recorded the words "scan ? unstable lie" on 2 October 2000 at the Maternity Outpatient Department, should Dr Browning and the Hospital have ordered an ultrasound assuming that this was the second finding of "unstable lie" by Dr Browning within a 5 day period?
On the assumptions contained in that question Mr Clements, Dr Molloy and Dr Lyneham answered that an ultrasound was indicated in those circumstances. Dr Lyneham also answered that it was appropriate to investigate an unstable lie or persistent oblique lie beyond 37 weeks to determine a possible cause. In his report of 28 July 2008 Mr Clements had also said that an ultrasound was indicated to establish, if possible, a cause for the condition. He referred to the fact that MacKenzie had listed possible causes for an unstable lie as including hydrocephaly although Mr Clements said it was a less common cause of cephalopelvic disproportion than other causes such as placenta praevia, polyhydramnios and pelvic disproportion.
I accept this evidence. The purpose of the ultrasound is to detect a cause for the unstable lie. Although hydrocephalus would not necessarily be expected, it was a possible cause of the problem. In those circumstances it cannot be said that liability should not extend to the damage the Plaintiff sustained by not being delivered and treated earlier. In any event, Dr Browning as the obstetrician, accepted responsibility for Mrs Hirst to ensure as far as possible the safe delivery of the Plaintiff. Whether Mrs Hirst was high risk either because of an unstable lie or because the head was high there was a chance of cord prolapse if she came into labour. If she had megalocephaly a caesarean delivery would be indicated, as in fact happened. In circumstances where he ought to have ordered an ultrasound which would have identified the problem and led to earlier treatment, it would be surprising indeed if the scope of his liability should not extend to the damage that the Plaintiff sustained.
The case is not at all similar to the position in Mobbs v Kain [2009] NSWCA 301 nor to the example given by Lord Hoffman in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 at 213 (referred to in Mobbs at [13]) where the only causal connection was a "but for" uninformed by the notion of common sense. The latter involved a serendipity that the present case does not. Where hydrocephalus was a possible (if unlikely) finding on an ultrasound and a possible (if unlikely) reason for the unstable lie, if it was found it cannot be said to be serendipitous.
For these reasons, I am satisfied that it is appropriate for the scope of Dr Browning's liability to extend to the harm caused to the Plaintiff.
(3) Damages
The Agreed Schedule of Damages is as follows:
HEAD OF DAMAGE
AGREED AMOUNT
1
NON ECONOMIC LOSS
$500,500
2
PAST OUT OF POCKET EXPENSES
$30,000
3
INTEREST ON PAST OUT OF POCKET EXPENSES
$7,065
4
ONGOING TREATMENT AND MEDICATION
-
4.1
Occupational Therapy
$32,748
4.2
Speech pathology
$123,862
4.3
Physiotherapy
$67,751
4.4
Psychological counselling
$0
4.5
General Practitioner review to age 18 years
$1,080
4.6
General Practitioner consultation for rest of life from 18 years
$2,288
4.7
Ophthalmologist
$1,169
4.8
Neurologist
$1,169
4.9
Orthopaedic review
$848
4.10
Surgery
$28,200
4.11
Medication
$22,937
4.12
Hydrotherapy
$36,021
5
PAST CARE
$1,047,478
6
FUTURE CARE
-
6.1
To 18 years
$1,606,282
6.2
From 18 years
$3,629,829
6.3
Carer's expenses for events
$0
6.4
Carer's expenses for transport and travel, etc
$0
7
LEISURE AND SOCIAL TO 88 YEARS
$0
8
EXTRA COST OF TRAVEL
$105,512
9
TEACHER'S AIDE
$181,049
10
FUTURE EQUIPMENT
$360,987
11
MOTOR VEHICLE
$0
12
HOUSE MODIFICATIONS
-
12.1
See paragraph 108 of particulars
building costs
air conditioning
home maintenance
hydrotherapy facility
hydrotherapy maintenance
$500,000
13
HOUSE EQUIPMENT
-
13.1
House equipment - past
$0
13.2
House equipment - future
$0
14
ECONOMIC LOSS
$395,502
15
LOST SUPERANNUATION
$34,721
16
FUTURE CASE MANAGER
$283,002
17
FUNDS MANAGEMENT
TBC
TOTAL (excluding funds management)
$9,000,000
I have already indicated the evidence of the experts as to the percentage improvement that they would have expected had the Plaintiff been delivered and treated prior to 15 October 2000, and the possible functional differences that might have been expected (paras [115] and [116] above. It must be said at once that it was in this area that the causation experts struggled the most, not having any hard empirical evidence upon which to base their opinions. Despite this, I consider that the Plaintiff has established on the balance of probabilities through the evidence of the causation experts, that she would have been in an improved state in percentage terms. As I have noted, the experts were largely agreed that the improvement would have been in the range to 10-30% with some tending to the lower end of the range and some tending to the higher end. Doing the best I can on the available evidence, I am of the opinion that the Plaintiff would have been 20% better off had she been treated at the earlier time specified.
The causation experts identified some of the possible ways she would have been better as I have referred to in para [116] above. Again, doing the best I can on the paucity of evidence, and bearing in mind what the Court of Appeal said in Stamoulis particularly at [138], I accept that there was likely to have been an improvement in the Plaintiff's speech, that her seizure activity would have been somewhat reduced, her intellectual handicap would have been reduced to a small extent and she would have had a small increase in ability to interact with other people. On the other hand, I also accept Dr McPhee's evidence that the Plaintiff would be a child who was totally dependent on care.
The real difficulty comes in translating those matters into damages. There are legal difficulties because of the provisions of s 5E CLA and the issue of whether the principle in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 still applies to cases governed by the Civil Liability Act .
The Defendant submitted that s 5E, when speaking of onus of proof, covered not only the legal onus of proof but also the evidentiary onus. Accordingly, the Defendant submitted, the principle in Watts v Rake has no application because that principle imposed an evidentiary onus on the Defendant to disentangle other causes of the Plaintiff's injury.
Three cases in the Court of Appeal suggest that s 5E is concerned with legal onus. In Woolworths Limited v Strong [2010] NSWCA 282 Campbell JA (with whom Handley AJA and Harrison J agreed) said this:
[59] I do not find the statutory background to section 5E useful in interpreting it. Its words are quite clear, and do not change the pre-existing law . That the Ipp Report makes clear that the reason for including the recommendation that became section 5E was to remind courts that they ought not overlook an important part of the law of negligence does not, it seems to me, have any bearing upon its meaning.
[60] I do not agree that section 5E shows that the type of reasoning in Shoeys case is no longer open. It was uncontentious in Shoeys that it was the plaintiff's task to prove causation of damage (68,940 col 2 per Mahoney J, 68,944 col 1 per Handley JA, with whom Priestley JA agreed). Section 5E makes no difference to that. But it was, and still is, possible for a plaintiff to satisfy its onus of proving causation if the court can infer that it is more likely than not that the failure to exercise reasonable care and skill was a necessary condition of the particular harm that the plaintiff suffered. In Shoeys there was no evidence of precisely what the plaintiff had slipped on, merely that it caused "a wet spot" on the heel of her shoe, and that there were some type of green leaves like cauliflower or cabbage on the floor near where the plaintiff fell. Nor was there any evidence of how long the substance on which the plaintiff slipped had been there. It was purely a question of the inferences open, on the facts of that case, whether the plaintiff had discharged her onus of proof of causation. As Ipp JA showed in Flounders v Millar [2007] NSWCA 238 at [30]-[35], this is an acceptable method of establishing causation of damage under the common law. (emphasis added)
In Varga v Galea , a case to which the Civil Liability Act applied, McColl JA having noted the terms of s 5E which provided that the plaintiff always bore the onus of proving, on the balance of probabilities, any fact relevant to causation, said:
[51] A defendant who alleges that a plaintiff suffered from a pre-existing condition which may have had an adverse impact on his or her future whether or not the immediate injury in question had occurred, bears an evidential burden to show that the plaintiff's condition would have deteriorated in any event regardless of the accident: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (at 160); see also Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (at 168). As Ipp JA explained in Seltsam Pty Ltd v Ghaleb in a passage upon which the respondent relied, the effect of the High Court's decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 is that because the issue involves "hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring ... the Court is required to evaluate possibilities ... not proof on the balance of probabilities." (emphasis in original) : Seltsam (at [105]). Ipp JA then said:
"[107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.
[108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.
[109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences ... it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence , 5th ed, para 338, p511)."
Similarly, in State of New South Wales v Doherty [2011] NSWCA 225, a case also governed by the Civil Liability Act , Hodgson JA (with whom Whealy JA and Handley AJA agreed) discussed a submission by the Plaintiff's counsel concerning the evidentiary onus on the Defendant to disentangle the causes of the Plaintiff's condition at [99] and went on to say at [104] that he did not think it was a case where the Defendant had failed to discharge an evidentiary onus, as in Watts v Rake or Purkess v Crittenden. It does not appear that s 5E was referred to.
I do not overlook the remarks of Allsop P (with whom Young JA agreed) in Zanner v Zanner [2010] NSWCA 343 at [5] and [7] where he suggested that s 5E changed the common law. However, the issue in that case was principally the scope of liability issue raised by s 5D(1)(b) CLA , and the principal judgment of Tobias JA does not refer to s 5E. The precise standing now of Watts v Rake and Purkess v Crittenden awaits an authoritative decision of the Court of Appeal - Woolworths Limited v Strong does not say anything about those cases when discussing s 5E. In Varga the issue was not whether the issue referred to in s 5E was only the legal onus or also included an evidentiary one. The Court of Appeal appears, however, to have proceeded on the assumption that it referred only to the legal onus. Nevertheless, as a single judge I feel bound to follow the clear statements in Woolworths Limited v Strong in relation to s 5E, and the assumption in the approach of the Court in Varga .
As a matter of practicality it is likely that the reference to onus of proof in s 5E is a reference to the legal onus of proof. That is because the evidentiary onus shifts between the parties at various times during the case depending on what evidence is led by the other party.
Moreover, it does not appear from anything said in the Ipp Report (particularly para 7.26 - 7.49) that the issue being discussed was the principle in Watts v Rake . Nor does the discussion in such cases as Flounders v Millar [2007] NSWCA 238 and all of the cases referred to therein, particularly in the judgment of Ipp JA, suggest that 5E is concerned with the Watts v Rake principle. The concern in Flounders and the cases referred to was the relationship between breach of duty, a risk of injury and the risk coming home. The present concern is at one stage beyond that, where causation has been established between the breach and some damage, and the problem is to decide what particular damage flows from that breach and what damage is occasioned by other factors. Whilst it is certainly true that the extent of the damage caused by the breach includes "fact[s] relevant to the issue of causation" it does not appear that the present issue was the one contemplated by s 5E.
Accordingly, in my opinion, the principle in Watts v Rake applies notwithstanding s 5E.
The Plaintiff submitted that when any loss or damage is proved to have been caused by a Defendant's act or omission the Plaintiff recovers the entire loss: Tabet v Gett at [113]. The Plaintiff submitted that the evidentiary onus is then cast upon the defendant under the Watts v Rake principle to show what damage would have been sustained by the Plaintiff in any event regardless of the Defendant's breach. The Plaintiff submitted that the Defendant has not disentangled the damage with the result that the Plaintiff must be entitled to recover the whole of the loss. The Plaintiff also pointed, in support for this approach, to the decision of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 at 6-7 and the High Court's decision in Shorey v PT Limited [2003] HCA 27; (2003) 77 ALJR 1104.
The present case is not like McGhee or Shorey . The Defendant did not in any sense cause the hydrocephalus. The Plaintiff accepts that she would have been grossly disabled even if Dr Browning had not breached his duty. The causation experts identify the injuries and disabilities that the Plaintiff would have suffered regardless of any breach on Dr Browning's part. I have accepted the evidence of the causation experts and concluded that the Plaintiff would have been 20% better off if there had been no breach. I have accepted the individual matters to which they referred.
If there is an evidentiary onus on the Defendant to unravel in accordance with the Watts v Rake principle, it seems to me that the causation experts have done this to the maximum extent possible. It would not accord with common sense, in the face of the expert evidence, to say that the Plaintiff should be entitled to recover the whole of the agreed amount of damages for her hydrocephalus because there has not been greater specificity in the evidence about how much better off she would be.
I accept that the experts cannot do better than they have done, and these experts are amongst the leading experts in this area in Australia.
What is, however, particularly unfortunate is the course of events during the hearing. The causation experts gave their evidence on the second day of the hearing (on 26 October 2010) but it was not until February 2011, when the matter had been adjourned from November 2010 after the fifth day of hearing, that the parties agreed on the damages which were approved by Garling J on 11 February 2011. For that reason the particular Heads of Damage were never put to the causation experts to obtain assistance from them about what adjustments could appropriately be made to the Schedule based on their view of the extent of the Plaintiff's improvement had the breach not occurred. The result is that without any expert assistance from the causation experts I am required to make those adjustments to the Schedule to calculate the damages that the Defendant must pay.
The Defendant submitted that the evidence about any improvement in the Plaintiff's condition, if there had not been a breach, was purely speculative so that all that the Plaintiff had established was an unquantifiable improvement and, from a damages point of view, that the matter was de minimis . The latter submission relies principally on the statement of Dr Antony that a 10% improvement might mean that there was no difference in the disabilities sustained by the Plaintiff.
I do not consider that the evidence of the experts was speculative, and I have already said that I accept their evidence about the improvements that might have been expected. Nor do I accept that the matter would be governed by the de minimis principle. Accepting the specific matters that the experts said, together with an overall improvement of 20%, the matter is not de minimis . Indeed, the Defendant might be thought to have accepted that there might need to be some adjustment at the least to the damages for non-economic loss if the matters the experts referred to were accepted as being likely.
The evidence does not enable me finally to assess the Plaintiff's damages. At the present time I can only indicate what follows.
With regard to the Heads of Damage in the Schedule attached to the Consent Orders approved by Garling J, I consider that in the circumstances where the Plaintiff would have been 20% better off if the breach had not occurred, taking a broad brush approach (as I am forced to do with the paucity of the evidence), the Plaintiff should recover $100,000 for non-economic loss.
I have accepted evidence from the experts that there would likely have been reduction in the Plaintiff's seizure activity had she been delivered and treated earlier. I note from the report from Dr Antony who examined the Plaintiff that she was taking Epilim, Carbamazepine, Lamotrigine and buccal Midazolam, all of which are anticonvulsant drugs to control her seizures. Dr Antony only listed one other drug that the Plaintiff was taking daily, being Clobazam which is an anti-anxiety agent. The amount in the Schedule for past out of pocket expenses (which include medication) is $30,000 and the amount provided for future medication is $22,937. It seems likely that both of these amounts would have been less if the seizures were better under control.
In the light of Dr McPhee’s evidence I do not consider that any part of the past or future care costs are recoverable. Further, the evidence of the experts concerning her intellectual impairment suggests strongly that no part of the amounts in the Schedule for economic loss and lost superannuation are recoverable. For similar reasons, it seems likely that none of the amounts provided for travel, a teacher’s aide and the $500,000 for building costs (presumably for modification of a house) is recoverable.
.
Because I have no evidence to assist me beyond the matters that I have mentioned it is not possible without further evidence to assess the damages to which the Plaintiff is entitled by reason of Dr Browning's breach. What I have said is with a view to assisting the parties either to reach agreement on the quantum of damages other than damages for non-economic loss or for further evidence to be adduced to enable a decision to be given.
Conclusion
At this stage the only order that I make is:
Verdict for the Plaintiff with damages to be agreed or assessed.
**********
Annexure A:
Annexure B:
Annexure C:
Decision last updated: 22 August 2011
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