Hughes v SDN Children's Services - [2002] NSWCA 11

NEW SOUTH WALES COURT OF APPEAL

CITATION: Hughes v SDN Children's Services [2002] NSWCA 11

FILE NUMBER(S):
40483/00

HEARING DATE(S): 21 June 2001

JUDGMENT DATE: 08/02/2002

PARTIES:
Linda Hughes
Jacob Hughes
SDN Children's Services Incorporated (formerly known as Sydney Day Nursery and Nursery Schools Assocation Inc)

JUDGMENT OF: Meagher JA Beazley JA Giles JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20908/94

LOWER COURT JUDICIAL OFFICER: Studdert J

COUNSEL:
Appellants: D J Higgs SC/J Clarke
Respondents: J Poulos QC/S Torrington

SOLICITORS:
Appellants: Charlton Shearman
Respondents: J Sharpe, solicitor for NRMA Workers Compensation (NSW) (No 2) Pty Ltd (formerly known as HIH Workers Compensation (NSW) Pty Ltd)

CATCHWORDS:
Negligence
Causation

LEGISLATION CITED:

DECISION:
Appeal allowed

JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40483/00
SC 20908/94

MEAGHER JA
BEAZLEY JA
GILES JA

Friday, 8 February 2002

LINDA HUGHES & ANOR v SDN CHILDREN’S SERVICES INC

FACTS
The first appellant was pregnant with the second appellant (Jacob) whilst employed by the respondent as a childcare worker. Shortly after birth it became apparent that Jacob had significant disabilities including features of cerebral palsy, neural deafness and mental retardation. Jacob was referred to Dr Grigor a specialist paediatric in internal medicine who diagnosed Jacob’s disabilities as being caused by cytomegalovirus (CMV), a herpes type virus, which, Dr Grigor considered had been contracted by Jacob in utero. At trial the respondents put in issue that Jacob’s disabilities were caused by CMV.
Infection of the foetus can occur either through primary maternal CMV infection or maternal reactivation infection. It was common ground that for the appellants to succeed in their claims for damages that they needed to establish that the injury to Jacob was caused by a primary as opposed to reactivated infection. It was not known whether the first appellant had had the virus prior to her pregnancy.
At first instance Studdert J held that the respondent had breached its duty to warn the first appellant of the dangers of contracting CMV whilst pregnant. He also held that Jacob’s disabilities were caused by CMV. However, he held on the balance of probabilities that the first appellant was a carrier of the virus at the time of her pregnancy and the injury to Jacob was caused by a reactivation of the infection, rather than primary infection of the first appellant during pregnancy. The appellants challenged this finding on appeal.
HELD per Beazley JA (Meagher JA and Giles JA agreeing)
(i) The trial judge made erred in a number of important respects in his assessment of the evidence, and in particular in his finding that the appellants’ principal expert witness made a concession in relation to Jacob’s immunological status. That evidence was otherwise unchallenged.
(ii) The combination of facts and circumstances, and in particular the pattern of Jacob’s disabilities (a matter which the trial judge appeared to overlook), the fact that the first appellant had flu like symptoms (typical of CMV infection) early…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] NSWCA 11
Decision Date: 8 February 2002

CaseChat Overview and Summary

The appeal concerned a dispute between the appellants, Mr and Mrs Hughes, and the respondent, SDN Children's Services, regarding the cause of Jacob Hughes' disabilities. The central issue was whether these disabilities were caused by congenital Cytomegalovirus (CMV) infection, and if so, whether this infection resulted from a primary maternal infection during pregnancy. The case was heard on appeal after a trial decision.

The legal issues before the court were whether the trial judge erred in his findings regarding the causation of Jacob's disabilities and whether the appellants had proven, on the balance of probabilities, that Jacob's disabilities were caused by a primary CMV infection contracted by the first appellant during her pregnancy. Specifically, the court had to review the medical evidence, including the opinions of various medical experts, to determine the likelihood of primary versus reactivated CMV infection and its link to Jacob's condition.

The court's reasoning focused on re-evaluating the evidence that the trial judge may have overlooked. It noted that while the first appellant's statistical chance of being seropositive at the start of her pregnancy was high, Jacob's statistical chance of having congenital CMV due to primary infection was low. However, the court considered several factors that supported the appellants' case. These included the first appellant experiencing flu-like symptoms around Christmas, which Professor Isaacs suggested could indicate seroconversion, aligning with the known incubation period of CMV and the estimated time of foetal insult. Furthermore, the first appellant's work environment presented a significantly elevated risk of contracting the virus. Crucially, the court highlighted that Professor Isaacs consistently linked the severity and specific pattern of Jacob's disabilities to a primary CMV infection, and this aspect of his evidence was not challenged in cross-examination or contradicted by other evidence. The court found that the trial judge may have conflated "severity" with the "exact type" and "pattern" of abnormalities, overlooking the significance of the latter in Professor Isaacs' opinion.

The appeal was allowed.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

These findings and his Honour’s conclusion requires a review of the medical evidence and the evidence of Professor Isaacs and Dr Rawlinson in particular. The Medical Evidence At the trial, there was a significant dispute as to whether Jacob’s disabilities were due to the CMV virus at all. Dr Grigor, the physician to whom Jacob had been referred when his disabilities first became apparent, had, by January 1993, reached a fairly firm conclusion that his disabilities were caused by CMV which he had contracted in utero. His opinion was reinforced by a CT scan in early 1993. Then, in early 1994, Professor Gibson, Head of the Children’s Cochlear Implant Centre ordered an MRI scan which confirmed Dr Grigor’s clinical diagnosis. Dr Grigor considered, on all the evidence, that the insult had occurred in the second trimester of pregnancy. In the second half of 1993, Professor Isaacs, a clinical professor of Paediatric Infectious Diseases at the University of Sydney and who was, at the time, Head of the Department of Immunology and Infectious Diseases at the Children’s Hospital was asked to provide a medico legal opinion as to Jacob’s condition. In his first report of 9 September 1993 Dr Isaacs expressed the opinion that Jacob was suffering from the effects of congenital CMV. In June 1999, Professor Isaacs was asked to report, inter alia, upon whether Jacob’s disabilities were due to congenital CMV infection and whether that most likely was the result of primary or reactivated infection. He reported:“… Congenital CMV infection can follow primary maternal CMV infection … or maternal reactivation … Although severe congenital infection can occur following either primary or secondary maternal infection, it is far more likely to follow primary infection. …” He concluded:“If Jacob Hughes did indeed have congenital CMV infection, the severity of his disease means that it is far more likely to have been a result of primary maternal CMV infection than reactivation.” During the course of his evidence at trial, Professor Isaacs said that the MRI and CT scans carried out on Jacob and the pattern of Jacob’s abnormalities suggested that the first appellant had primary CMV infection 13-21 weeks post conception. Dr Kendall, an English neuro-radiologist consultant specialising in paediatric neuro-radiology at the Royal Free Hospital, the Hospital for Sick Children and the National Hospital for Neurology and Neurosurgery also considered that Jacob’s MRI and CT scans “strongly support[ed] the diagnosis of congenital [CMV] infection in the second trimester”. In a second report he expressed surprise at the fact that the respondent’s neurologist was questioning the diagnosis. The respondent’s expert was Dr Rawlinson, an expert infectious diseases physician and virologist and Associate Professor of Medicine at the Prince of Wales Hospital, which is part of the University of New South Wales. He has made a specialty study of CMV, including in the area of paediatrics. Dr Rawlinson diagnosed the appellant as suffering from cerebral palsy but concluded that his disabilities were not caused by congenital CMV. He accepted, however, that the MRI and CT scans indicated a neurological foetal insult, consistent with some form of infective process. Dr Rawlinson said that the time frame of the insult was outside his expertise.

Decision

Reasons for decision

This case is quite different from Seltsam. The legal task which confronted the trial judge was to determine whether the appellants had proved on the balance of probabilities that Jacob’s disabilities were caused by primary infection in the first appellant during the pregnancy. The essential fact finding task necessary for that legal determination was whether it had been proved that the first appellant had a primary infection during the pregnancy. Conclusions on Appeal In my opinion, the appellants’ statistical re-jigging, even if correct, does not assist the resolution of the matter for the reasons advanced by the respondent. The fact remains, the first appellants’ statistical chances of being seropositive at the commencement of her pregnancy were high. Jacob’s statistical chances of having congenital CMV due to primary infection were conversely extremely low. Because of the findings which he made in respect of Professor Isaacs evidence, his Honour was left with little more than a statistical case upon which to make his determination. On that case, I would agree with his Honour’s conclusion. However, because I consider his Honour erred in the respects I have discussed, the question remains whether the appellants had established their case, on the balance of probabilities. In my opinion, the following matters are relevant to the determination of that question. First, the first appellant suffered flu like symptoms on Christmas Eve and Christmas Day. It is not known what the cause of the symptoms was. Professor Isaacs was of the view that the first appellant’s flu-like symptoms over Christmas could have involved seroconversion. Support for contraction of the virus at this time is also to be found in the known incubation period of the virus and the apparent time of foetal insult (13-20 weeks). Secondly, during her pregnancy, including the time in which she felt the flu like symptoms, the first appellant was working in an environment in which she was at a high risk of contracting the virus. Professor Isaacs said she had a 10 fold risk of contracting the virus in those circumstances if she was seronegative. No other figure was suggested or proved in the case. Thirdly, although Professor Isaacs acknowledged that severe disabilities could be caused by reactivated CMV (he always having been of that opinion), he consistently regarded the severity of Jacob’s disabilities as pointing to primary infection. That had been Dr Rawlinson’s initial view, categorically held, although he changed it in the light of the Alabama study; for the reasons given by Professor Isaacs, the Alabama study may not have called for such a radical change. As well, Professor Isaacs consistently referred in his evidence to the clinical picture presented by the pattern of Jacob’s abnormalities, the “exact type” of his disabilities as indicating primary as opposed to reactivated infection. Professor Isaacs was never cross-examined on this aspect of his evidence. No contrary evidence was called. In my opinion, there is a difference between “severity” and “exact type” and/or “pattern”. This evidence appears to have been overlooked by his Honour.

Ratio Decidendi

Legal Principle Established

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