KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote
Citation:	[2018] ACTSC 84
Hearing Dates:	3 – 12 October 2017
DecisionDate:	5 April 2018
Before:	Burns J
Decision:	See [311]-[314]
Catchwords:	NEGLIGENCE – Medical practitioner – Hospital – psychological harm to plaintiffs – liability – whether there were breaches of duty – content of duty of care – whether the breaches of duty were causative of the injuries sustained – assessment of damages – contribution
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 32, 33, 34, 35, 42, 43, 44, 45 Civil Liability Act 2002 (NSW) s 5O
Cases Cited:	Bolam v Friern Hospital Management Committee (1957) 1 WLR 582; [1957] 2 All ER 118 Rogers v Whitaker (1992) 175 CLR 479 Malec v J.C. Hutton Proprietary Limited (1990) 169 CLR 638
Parties:	KS (First Plaintiff) XT (Second Plaintiff) Calvary Health Care ACT trading as Calvary Hospital (First Defendant) Dr Andrew Foote (Second Defendant)
Representation:	Counsel Mr I Roberts SC with Mr Ingram (First and Second Plaintiffs) Ms K Burke (First Defendant) Ms K Oldfield (Second Defendant)
Solicitors Commins Hendriks (First and Second Plaintiffs) Sneddon Hall and Gallop (First Defendant) Ken Cush and Associates (Second Defendant)
File Numbers:	SC 6 of 2014; SC 7 of 2014

BURNS J:

These two proceedings SC 6 of 2014 and SC 7 of 2014 were heard together. I will refer to KS, the plaintiff in SC 6 of 2014 as the first plaintiff, and I will refer to her husband, XT, the plaintiff in SC 7 of 2014, as the second plaintiff.

On 13 January 2011 the first plaintiff was admitted to Calvary Private Hospital, an institution administered by Calvary Health Care ACT Limited, the first defendant. For convenience, I will refer to this defendant simply as “the hospital”. The first plaintiff was a patient of Dr Andrew Foote, the second defendant. Dr Foote was an obstetrician and gynaecologist who had been attending to the first plaintiff since August 2010. The first plaintiff was pregnant with her first child, which had been conceived by IVF in about April 2010. The estimated date of confinement was 6 January 2011.

By 13 January 2011 the baby was one week overdue, and it had been agreed between the plaintiffs and Dr Foote that the first plaintiff would be admitted to the hospital that day for the birth of the baby to be induced. The plaintiffs arrived at the hospital about 4.30 pm. The first plaintiff was then attached to a foetal heart rate monitor, which had a screen depicting foetal heart activity, and which also produced a paper graph of that activity (a cardiotocograph, or CTG).

It is now common ground that by 4.58 pm abnormalities were apparent in the baby’s heart activity. At that time there was a prolonged bradycardia (abnormal slowness of the pulse) with a return to baseline after 7 minutes. At 5.08 pm and 5.11 pm there were further episodes of bradycardia. At 5.40 pm there was a further episode of bradycardia of 6 minutes duration. The midwife attending the first plaintiff, who was an employee of the hospital, did not appropriately assess the significance of these events, and it was not until sometime between 5.50 pm and 6.00 pm that Dr Foote was contacted. At 6.00 pm Dr Foote ordered a Caesarean section and at 6.15 pm the first plaintiff was transferred to the operating theatre, arriving at 6.35 pm. Dr Foote undertook a Caesarean section, but the child (A) was still-born at about 7.00 pm. I will refer to the child as “A”. There was an inconsistency between witnesses as to the spelling of the word “Caesarean”, and unless I am quoting a report, I will use the spelling “Caesarean.”

The plaintiffs claim that as a result of these events they suffered psychological harm. They claim that they suffered this harm by reason of the negligence of the defendants. I will set out below the particulars of negligence pleaded by the first plaintiff, but those pleaded by the second plaintiff are essentially the same:

The First Defendant by itself and / or its agents was negligent in that it /they:
(a)Failure to properly or adequately interpret the CTG carried out on the Plaintiff on 13 January 2011
(b)Failure to heed the significance of the CTG carried out on the Plaintiff on 13 January 2011
(c)Failure to advise the Plaintiff she required an urgent Caesarean section on admission
(d)Failure to organise and / or carry out an urgent Caesarean section on the Plaintiff on 13 January 2011
(e)Failure to heed the interpretation of the CTG carried out on the Plaintiff ~~taken~~ on 13 January 2011 indicated a significant risk to the Plaintiff’s baby
(f)Failure to inform the second defendant of the Plaintiff’s un-reassuring, pathological and/or abnormal CTG on 13 January 2011 at all times from 1640 hours through to 1800.
(g)Failure to inform the Second Defendant of the results of the Plaintiff’s CTG at all times on 13 January 2011 from 1640 hours through to 1800.
(h)Failure to maintain a continuous CTG on the Plaintiff from 1640 hours until 1900 on 13 January 2011.
(i)Failure to contact another Obstetrician or to call for assistance from a qualified obstetric treatment provider when attempts at contact with the Second Defendant were unsuccessful on 13 January 2011.
(j)Failure to prepare the Plaintiff for theatre within a reasonable time in the context of the Plaintiff requiring an urgent caesarean section from 1800 on 13 January 2011.
(k)Failure to ensure that an anaesthetic assessment was carried out on the Plaintiff within a reasonable time or urgently.
(l)Failure to minimise the interruptions to the CTG carried out on the Plaintiff at all times from 1640 hours until 1900 on 13 January 2011.
(m)Failure to classify the Plaintiff’s need for a caesarean section on the RANZCOG category of urgency on 13 January 2011.
(n)Failure to classify the Plaintiff’s need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.
(o)Failure to arrange or undertake an urgent caesarean section on the Plaintiff on 13 January 2011 within 30 minutes of the decision to undertake the caesarean section.
(p)Failure to prepare or to otherwise ensure the Plaintiff was prepared for urgent caesarean section within a reasonable time after 1800 on 13 January 2011.
(q)Failure to devise, institute and/or maintain proper or adequate protocols, policies or guidelines in respect of the time period that a caesarean section ought to be carried out from decision to birth interval for a category one urgent caesarean section.
(r)Failure to adequately train and educate its employees, servants and agents in relation to the category of urgency for caesarean sections and the time required between decision to birth interval.
(s)Failure to resuscitate the Plaintiff’s baby properly or adequately or in accordance with proper resuscitation guidelines including administering adrenalin to the baby.

The Second Defendant was negligent in that he:
(a)Failure to properly or adequately interpret the CTG carried out on the Plaintiff on 13 January 2011
(b)Failure to heed the significance of the CTG carried out on the Plaintiff on 13 January 2011
(c)Failure to advise the Plaintiff she required an urgent Caesarean section on admission
(d)Failure to organise and / or carry out an urgent Caesarean section on the Plaintiff on 13 January 2011
(e)Failure to heed the interpretation of the CTG carried out on the Plaintiff ~~taken~~ on 13 January 2011 indicated a significant risk to the Plaintiff’s baby.
(f)Failure to classify the Plaintiff’s need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.
(g)Failure to classify the Plaintiff’s need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.
(h)Failure to arrange or undertake an urgent caesarean section on the Plaintiff on 13 January 2011 within 30 minutes of the decision to undertake the caesarean section.
(i)Failure to prepare or to otherwise ensure the Plaintiff was prepared for urgent caesarean section within a reasonable time about 1800 on 13 January 2011.
(j)Failure to ensure that an anaesthetic assessment was carried out on the Plaintiff within a reasonable time or urgently
(k)Failure to ensure the First Defendant and the Plaintiff’s other treatment providers were aware of the urgency of her need for a caesarean section at all times after 1800 on 13 January 2011.
(l)Failure to maintain a continuous CTG on the Plaintiff from 1800 hours on 13 January 2011.
(m)Failure to minimise the interruptions to the Plaintiff’s CTG at all times from 1800 hours.
(n)Failure to resuscitate the Plaintiff’s baby properly or adequately or in accordance with proper resuscitation guidelines including administering adrenalin to the baby.
(o)Failure antenatally to recognise the Plaintiff’s higher risk of stillbirth.
(p)Failure to properly or adequately advise the Plaintiff of the risks of stillbirth.
(q)Failure to properly or adequately advise the Plaintiff of the proper timing of induction of labour.
(r)Failed to categorise the Plaintiff as a category 1 patient in accordance with the RANZCOG guidelines and to record that categorisation within the Plaintiff’s hospital clinical notes after reviewing the Plaintiff and determining a lower segment caesarean section was required on 13 January 2011.
(s)Failed to seek from the First Defendant or to arrange with the First Defendant for an operating theatre to be made available for the Plaintiff within 30 minutes of 1800 hours on 13 January 2011.
(t)Failed to make himself available to perform the Plaintiff’s lower segment caesarean section between 1800 hours and 1830 hours on 13 January 2011.
(u)Failed to remove himself as the assistant surgeon in surgery conducted at the First Defendant’s premises between 1812 hours and 1830 hours on 13 January 2011.
(v)Failed to seek assistance or to otherwise arrange for another competent surgeon to either conduct the surgery he performed between 1812 hours and 1830 hours on 13 January 2011 or alternatively to perform a lower segment caesarean section on the Plaintiff between 1800 hours and 1830 on 13 January 2011.
(w)Failed to perform a lower segment caesarean section upon the Plaintiff between 1800 hours and 1830 hours on 13 January 2011.

Each of the defendants filed defences denying liability. During the course of the hearing the hospital effectively conceded liability, and Dr Foote made limited admissions of breach of duty without conceding liability. In addition each defendant served on the other defendant a Notice Claiming Contribution or Indemnity. Each defendant filed a Defence to the Notice Claiming Contribution or Indemnity denying liability. I will return to these issues later. I will initially set out a summary of the evidence given by the plaintiffs personally, as well as the witnesses called by the plaintiffs. I will then address the issue of liability. I will then assess damages, before finally addressing the issue of contribution.

However, before referring to the evidence I will set out the provisions of the Civil Law (Wrongs) Act 2002 (ACT) referred to by the parties:

Part 3.2 Mental Harm
32 Definitions—pt 3.2
In this part:

child, of a person, means the son, daughter, grandson,
granddaughter, stepson or stepdaughter of the person, or someone to
whom the person is acting in place of a parent.
consequential mental harm, to a person, means mental harm to the
person that is a consequence of bodily injury to the person.
family member, of a person, means—
(a) a domestic partner;
(b) a parent or child of the person; or
(c) a brother, sister, half-brother or half-sister of the person.
mental harm, to a person, means impairment of the person’s mental
condition.
negligence means failure to exercise reasonable care and skill.
parent, of a person, means the father, mother, grandfather,
grandmother, stepfather or stepmother of the person, or someone
acting in place of a parent to the person.
pure mental harm, to a person, means mental harm to the person
other than consequential mental harm.
33 Personal injury arising from mental or nervous shock
In an action for personal injury, the plaintiff is not prevented from
recovering damages only because the injury arose completely or
partly from mental or nervous shock.
34 Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the
plaintiff) to take care not to cause the plaintiff mental harm unless a
reasonable person in the defendant’s position would have foreseen
that a person of normal fortitude in the plaintiff’s position might, in
the circumstances of the case, suffer a recognised psychiatric illness
if reasonable care were not taken.
(2) For the application of this section in relation to pure mental harm to
a person, the circumstances of the case to which the court must have
regard include—
(a) whether or not the mental harm was suffered as the result of a
sudden shock; and
(b) whether the plaintiff witnessed, at the scene, a person being
killed, injured or put in danger; and
(c) the nature of the relationship between the plaintiff and anyone
killed, injured or put in danger; and
(d) whether or not there was a pre-existing relationship between
the plaintiff and the defendant.

(3) For the application of this section in relation to consequential mental
harm to a person, the circumstances of the case to which the court
must have regard include the nature of the bodily injury out of
which the mental harm arose.
(4) This section does not affect the duty of care a person (the
defendant) has to another person (the plaintiff) if the defendant
knows, or ought reasonably to know, that the plaintiff is a person of
less than normal fortitude.
35 Mental harm—damages
(1) Damages must not be awarded for pure mental harm to a person
resulting from negligence unless the harm consists of a recognised
psychiatric illness.
(2) Damages must not be awarded for economic loss for consequential
mental harm to a person resulting from negligence unless the harm
consists of a recognised psychiatric illness.
[…]
42 Standard of care
For deciding whether a person (the defendant) was negligent, the
standard of care required of the defendant is that of a reasonable
person in the defendant’s position who was in possession of all the
information that the defendant either had, or ought reasonably to
have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk
of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person
knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s
position would have taken those precautions.

(2) In deciding whether a reasonable person would have taken
precautions against a risk of harm, the court must consider the
following (among other relevant things):
(a) the probability that the harm would happen if precautions were
not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.

44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm
includes the burden of taking precautions to avoid similar risks
of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or
affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been
taken earlier) have avoided a risk of harm does not of itself
give rise to or affect liability in relation to the risk and is not of
itself an admission of liability in relation to the risk.

Part 4.3 Causation
45 General principles
(1) A decision that negligence caused particular harm comprises the
following elements:
(a) that the negligence was a necessary condition of the happening
of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s
liability to extend to the harm so caused (the scope of liability).

(2) However, if a person (the plaintiff) has been negligently exposed to
a similar risk of harm by a number of different people (the
defendants) and it is not possible to assign responsibility for causing
the harm to any 1 or more of them—
(a) the court may continue to apply the established common law
principle under which responsibility may be assigned to the
defendants for causing the harm; but
(b) the court must consider the position of each defendant
individually and state the reasons for bringing the defendant
within the scope of liability.

(3) In deciding the scope of liability, the court must consider (among
other relevant things) whether or not, and why, responsibility for the
harm should be imposed on the negligent party.

Evidence of KS

Background of KS

KS, the first plaintiff, gave her evidence on 4 and 5 October 2017. KS was born in 1972 in Venezuela, but moved to Australia in 2007. Her two siblings and parents now also live in Australia. KS went to school in Caracas and completed the equivalent of year 12 in 1989. In 1990, she commenced studying medicine at the Central University of Venezuela, undertaking a six and a half year course, made up of five and a half years at university and then one year’s full-time work in a hospital as an intern. She gave evidence that she completed the five and a half years at university, sitting all her exams, and doing well, never having to repeat any subjects, although it was common for people to have to repeat subjects. In June 1997 she was awarded her medical degree from the university.

In 1997, KS commenced her compulsory 12 months practice in the community. She then commenced study for a postgraduate degree in ophthalmology, which was completed both through the university and while undertaking practical training in a hospital.

10. KS confirmed that she then opened a private practice with three other colleagues practising general ophthalmology in Caracas. KS worked at the hospital four mornings a week, had one afternoon operating theatre shift, and the rest of the time worked in the private practice. KS confirmed that she worked long hours. She agreed that she enjoyed her hours, and that it was a successful practice. She said her particular interest in ophthalmology was glaucoma.

11. She gave evidence that she always wanted to be a doctor, she “want[ed] to help people”. She also confirmed that she understood the need to have learned English to undertake that course of study. The official language spoken in the course was Spanish, but that the text books, articles and most of the literature came from overseas, in large part from the United States. She said that if she waited for these documents to be translated into Spanish, they would be out of date, so it was necessary to have “a good reading acumen” in English. KS confirmed that after finishing high school and before beginning university, she undertook some English classes at a private institute in Caracas. In answer to a question from counsel regarding the accents of the teachers at this institute, KS confirmed it was “American English”.

12. KS confirmed that in 2001 she had to undergo a cholecystectomy. She had an operation again in relation to kidney stones in 2002. She further attested that in 2003 she had to have an operation for a non-cancerous breast tumour, from which she made a full recovery.

13. KS confirmed that she continued to work in private practice. She completed her ophthalmology residency in 2001, and in December 2004 she obtained her degree as a specialist in ophthalmology at the Central University.

14. KS confirmed that she continued to work as an ophthalmologist in Venezuela until 2007. She confirmed the hours were long, and it could be stressful on occasions. It involved sometimes dealing with difficult patients, and difficult colleagues. She said she did not have difficulty doing it. She gave evidence that she enjoyed it, and hoped to practice for the rest of her life.

Move to Australia

15. In October 2006, KS was on holiday in Spain. There she met XT and they began a relationship, and he went to Venezuela and met her parents. They decided to get married, deciding to live their married life in Australia. KS confirmed that she had been brought up in the Catholic faith and that she is still a practising member of the Catholic Church. KS said that she wanted to keep practising medicine in Australia as an ophthalmologist. She arrived in July 2007, initially on a tourist visa, and was granted a spousal visa in late 2007.

16. In this first part, it is convenient to set out this evidence chronologically, under the following headings: (a) studying English and career in Australia; (b) IVF Treatment; (c) consultations with Dr Foote; (d) events of 11-13 January 2011; and (e) subsequent events. In the second part I will set out the effects following A’s death.

a. Studying English and career in Australia

17. At the time that she arrived in Australia, according to her evidence, KS did not have any problem with reading in English and did not have too much trouble with writing. She could write on a computer in English as well as in Spanish. KS said that when she first arrived she had a very strong accent, so sometimes it was a little bit difficult for people to understand her, and she also had difficulty understanding Australian English, because all the English to which she had been previously exposed had been American English. She confirmed that she attended the migrant resource centre to improve her English, and that she was planning on further improving it at the Canberra Institute of Technology. KS agreed that she commenced study at the Institute of Technology in what is called a functional English course. Despite being told her English was better than functional English and therefore did not need to complete the course, KS undertook the course and passed.

18. From 2008, KS worked as a pathology collector at Capital Pathology for about a year and a half. KS confirmed that when she migrated to Australia she had in Venezuela equipment necessary for her practice as an ophthalmologist, which she shipped to Australia. KS confirmed that as a pathology collector, she had to deal every day with patients, take histories, as well as take pathology samples. She said that she did not have any difficulty doing that and did not have any difficulty completing the paperwork. So far as she knew, her employer was happy with her performance.

19. She agreed that in 2008 she made inquiries from the medical board of the ACT in relation to having her Venezuelan qualifications recognised in Australia. There were apparently four pathways for international-trained doctors to be able to practice in Australia, one of which applied in relation to specialist qualifications. In order for an overseas specialist qualification to be recognised in Australia, KS explained that she needed to put an application to the Australian Medical Council (AMC), and that she also needed to take an English test. This test was called IELTS (International English Language Testing System) and it had four components. She also understood that she had to undertake an Australian Medical Council practical test. She confirmed that at that stage she did not know anything about whether it would be necessary to undergo further study to translate her Venezuelan specialist qualifications.

20. KS gave evidence that she understood that there was no limit as to the number of times one could sit the IELTS test, and that in order to pass she was required to obtain a score of seven out of ten in all of the four categories: listening, reading, writing and speaking.

21. KS gave evidence that she first undertook the IELTS test in September 2008. She did not get the required seven out of ten in two of those categories. After she got those results, KS submitted an application for special consideration to the AMC, for which she received a response in February 2009.

22. KS undertook the English language test a second time on 31 January 2009. On that occasion, she did not get seven in one subject. When asked whether this dispirited or worried her, KS said that “[s]he was close, [she] was very close, almost there, so [she] had improved and this encouraged [her].”She confirmed that it was still her intention to get her qualifications recognised in Australia.

23. KS received a response from the AMC to her application for special consideration. KS agreed that they told her she had to get a lot of documents together, including some translations, a process which she began, via her parents, who were still in Venezuela.

24. KS made a decision to do further study before sitting the test again, deciding she should prepare better before retaking the test and spending more money.

25. In March 2009, KS changed employment to Canberra Eye Hospital. She agreed that she thought that having that job might also assist her in due course in having her registration recognised. At the Canberra Eye Hospital, KS was employed as an ophthalmic technician, which she said was initially part-time, but after about three months, it was increased to full-time. As an ophthalmic technician, she had to take a history of general health and medications, as well as an ocular history. She had to test patients’ vision for distance and reading, as well as check the intraocular pressure, and do additional tests. KS confirmed that this required a lot of interaction with the patients and with the ophthalmologist, as well as the keeping of records. KS said she did not have any difficulty doing this, and that she enjoyed it. She confirmed that cataract surgery was a regular occurrence at the Canberra Eye Hospital, and that as time went by, she was entrusted with some tasks relating to the post-operative care of patients who had undergone cataract surgery, such as reviewing the patients when they came to consultation the first day after the surgery. That review involved various tests. If there was an abnormality, KS had to contact the doctor.

26. Whilst there were other orthopists employed at the hospital, KS was the only opthalmic technician. According to KS, she was not called an orthopist because she did not have a degree in orthoptics, so for “legal matter[s]” she was given the job title of ophthalmic technician. KS agreed that the orthoptists were better qualified to do the technical work. None of the orthoptists were assigned the job of undertaking post-surgical reviews of cataract patients.

27. KS also stated that at the Canberra Eye Hospital there were students from universities, including students from ANU Medical School and Sydney University. KS agreed that in the course of her work at Canberra Eye Hospital, in relation to the orthoptist students from the University of Sydney, she, along with the orthoptists that were working with her, had “to work with them and be their mentor. [They had] to show [them] how to do the theory that they have in the practice, and [they had] to teach them to use some of the equipment.” In relation to the medical students from ANU, KS said she taught them by taking them around to the theatre, where cataract surgery was being performed, and explaining to them the steps that the surgeon was carrying out. To her knowledge, KS was the only member of staff to do that. KS confirmed that she was calling on her knowledge as an ophthalmologist to provide the explanation that she gave to those medical students. So far as she was aware, she did not think any of them had any difficulty in understanding what explained to them.

28. On 23 September 2009, KS submitted documents to the Australian Medical Council. On 29 September, KS received notification from the AMC that the documentation was inadequate. Her certificate of registration and certificate of good standing was issued on 13 January 2009, and by the time she submitted it to the Council, it was past the three month deadline. Also, KS still had to complete the requirement of English language proficiency. Having received that notification, KS said that she decided she was going to take the English test again, and after she passed, she was going to ask her parents again for the documents and get them translated. She confirmed that she continued to study her English before undertaking the test again.

29. In April 2010, she reduced her hours of work to 32 hours a week, as she said she did not have enough time between IVF (see below) and working, and wanted to dedicate more time to study.

30. KS agreed that on 17 December 2010, she did the English exam for the third time, at which time she was heavily pregnant, and suffering some related symptoms. In relation to when she undertook the exam, she said: “I was stressed, and I remember when I was sitting doing the reading and the listening I feel very hot in the face.” She was asked why she had undertaken that test when she was so heavily pregnant, and responded: “I have been study (sic) for that, and I knew that if I weren’t – the baby comes, it was going to be more difficult, because with a newborn it were going to be a little bit difficult for me to take the test.” If she had not taken the test, she said it would be at least four months before she would be able to take the test again.

31. KS took maternity leave starting in December 2010, anticipating being off work for a year. She confirmed that she hoped that during that one year she would be able to complete everything that needed to be done to get her registered as an ophthalmologist in Australia. The results of the English test were disappointing in that she got just under the required scores in two of the subjects. In one of them she had gone backwards. KS said she was disappointed with the result, because even though she had studied longer and been longer in Australia, in one component her mark decreased. She confirmed that even so, she had the intention, after the baby was born, to do the exam again.

b. IVF Treatment

32. KS gave evidence that in 2008 there had been discussions between her and XT as to having a family. KS confirmed that they purchased their present house, with four big bedrooms, before they had any children, because they wanted to start having a family and they wanted to have at least three children.

33. She further confirmed that in pursuit of their desire to have a family, she consulted Dr Viketos, her GP. Dr Viketos devised a pre-pregnancy plan for KS, but KS was not successful in falling pregnant. In September 2008 Dr Viketos referred KS to Dr Sides, a fertility specialist. KS first consulted with Dr Sides in October 2008, and the doctor carried out some tests and prescribed some short-term treatment. The first plaintiff was again unsuccessful in falling pregnant.

34. In February 2009, Dr Viketos referred KS to another fertility expert, Dr Simone Campbell. KS confirmed that she consulted with this doctor and that various tests were undertaken. After various tests, Dr Campbell recommended IVF as a course of treatment. According to her evidence, KS commenced the first cycle of IVF in April 2009. An embryo was implanted, and KS was informed some time later that she was pregnant. About seven weeks into the pregnancy, KS underwent a scan. The scan revealed a foetal heart defect, which KS said was very difficult to take. Her counsel asked whether she had some understanding when she commenced IVF that it was the sort of thing that could happen, and she replied in the negative, saying she was “very sure that it was a successful pregnancy and [they] would go all the way.” On 25 June 2009 KS had a chemically-assisted miscarriage at Canberra Hospital.

35. KS confirmed that in July 2009, she went back to see Dr Campbell, requesting to undergo a further IVF cycle, but that Dr Campbell advised KS to wait for another month, as it was too close to the loss of the first foetus.

36. At that time KS was undertaking a full-time job, but recommenced IVF treatment, with a second lot of egg retrieval on 11 December 2009. KS agreed that, notwithstanding having the IVF treatment, the studying of English and particularly the full-time job described above, she was enjoying life. She also said she was coping with the difficulties associated with IVF. She confirmed that of the eggs that were retrieved in December 2009, an embryo was implanted on 17 December 2009. In March 2010, she was advised that the cycle had been unsuccessful and she was not pregnant. There then ensued a reasonably lengthy process of dialogue or discussions between KS, XT and Dr Campbell in relation to the possibility of a sperm donation being made.

37. By April 2010, KS still had a strong desire to have a baby. She commenced a third IVF cycle on 18 April 2010. She confirmed that on 10 May she was told that she was five weeks pregnant. Subsequent investigations revealed that she was pregnant with twins. She said that she and XT were happy with that news, “but not like the first time, because [she] knew already that things can go wrong, so [she] was cautious”.

38. She confirmed that she suffered morning sickness quite severely during that pregnancy. KS said that she and XT went to Singapore in June and when they arrived, she started spotting. She booked an appointment to see an obstetrician in Singapore, and an ultrasound was performed. The obstetrician reported that one of the twins did not have foetal heartbeat. They were reportedly told that the other twin was okay. KS said that when she learned that one of the twins had no foetal heartbeat, it was sad news, and it was stressful. She also had concerns about the remaining foetus. She confirmed that she was told that the other foetus was healthy. She agreed that when she returned to Australia she commenced to consult specialists in relation to that pregnancy, and that she attended Dr David O’Rourke on 8 July 2010. She understood that Dr O’Rourke was an obstetrician and gynaecologist. XT was with her at that time. According to KS, the doctor did an ultrasound and said that the baby was okay. She did not continue to consult Dr O’Rourke during the course of the pregnancy. When asked why not, she said:

Because I was very careful. I wanted everything to be fine with this baby. It was a precious baby, and [XT]’s sister, his father-in-law, he used to practise as an obstetrician and I talked to him. He was practising after that as a GP and I talked to him for advice, because I didn’t know anybody here, and he suggest me to go to Dr Foote.

c. Consultations with Dr Foote

39. KS said that she first consulted with Dr Foote on 9 August 2010. On that occasion Dr Foote gave her an estimated date of confinement of 6 January 2011. KS agreed that when she first saw Dr Foote, he did a medical history and she told him what had happened to the twin as well as the fact that the child was as a result of IVF.

40. She continued to consult with Dr Foote during the course of her pregnancy, initially consulting him every four weeks. She confirmed that after a few months, she was having cramps in her legs, and had heartburn. She reported these symptoms to both the midwife and Dr Foote. Apart from those symptoms, KS was reportedly generally well, was continuing to work and was looking forward to the birth of her baby. Asked about the approach of the estimated date of confinement, KS said she was “very excited and also a little bit stressed”. She confirmed that as she advanced in the pregnancy, the consultations became more frequent. Towards the end of her pregnancy she was seeing the doctor for review every week.

41. KS consulted with Dr Foote on 31 December 2010, and at that time the baby was 39 weeks and one day. KS’s blood pressure and weight were noted. She said her feet were a little swollen and she was still suffering heartburn, and was having trouble sleeping. Dr Foote prescribed KS Temazepam to help her sleep. She confirmed that XT was with her at all of these consultations. KS said that at her visit on 31 December, she said to Dr Foote that she “didn’t want to go over the 40 weeks”. KS said that this was because “[i]n [her] training and in Venezuela, nobody goes over 40 weeks. This baby was very important for [her], very precious, and [she] didn’t want to take any risks.” KS gave evidence that in reply, Dr Foote said “the first time that women are pregnant always it is usual that they go over 40 weeks before going to labour.” KS said that on this occasion, the baby was “perfectly fine” and that Dr Foote said that they “were going to wait.”

42. KS’s counsel asked her whether Dr Foote said anything about whether or not he would be available to deliver the baby on 6 January 2011, and KS said “[y]es, he was going to on holidays.” KS said she couldn’t remember whether at the time Dr Foote said he would be on holiday, he offered KS the opportunity of having the baby delivered by someone else. She said “[h]e said that it was fine to wait, and we made an appointment when he return.” That appointment was for 11 January 2011, the second Tuesday in January that year.

d. Events of 11-13 January 2011

43. KS said that when she went to see Dr Foote in his rooms near the Calvary Hospital complex on 11 January, she was “stressed” and “concerned”, and that “[she] didn’t want to wait”. She confirmed that she was still suffering from swollen feet. KS agreed that there had been earlier discussions with Dr Foote about the baby being delivered at the private hospital at Calvary Hospital. KS said that when she went to his rooms on 11 January, she took her clothes with her: “[she] packed [her] bag, because [she] was determined to don’t [sic] come back home.”

44. When she was there, the midwife carried out the checks with her blood pressure, and KS confirmed that Dr Foote carried out an internal examination. She agreed that by her recollection, Dr Foote listened to the baby’s heartbeat, using a “Doppler”. She then recalled: “He said my cervix was closed. It wasn’t mature, and I haven’t started labour, and I have to be an induction.” In terms of the health of the baby, KS said Dr Foote said that she was “10 out of 10”.

45. It is worth noting that KS and XT were aware before this point that KS was carrying a daughter. KS and XT had decided they would call her A.

46. KS recalled that after Dr Foote said it may be necessary to induce labour, she said she wanted to have an induction that day. The following questions were put to KS in examination-in-chief, and she gave the following answers:

Firstly, who was it who talked to him? Was it you or [XT] or both of you?---I (indistinct). I wanted to have an induction that day.
Right. Did you say why?---I was worried for her, to being overdue. Yes, I didn’t want to wait more time.
Did Dr Foote then do something?---At the beginning he say that we could wait another week.
Yes?---That it wasn’t going to be a problem. He said he was (indistinct) sure that she was 10 out of 10 and he said that before, he didn’t hear to our wishes because I wasn’t overdue, but at this stage, as I already was over, he will listen to me and what I want.
Did he then make some enquiry while you were there, from the private hospital?---She [sic] called the Calvary Private Hospital.
What, after he’d made that phone call did Dr Foote say to you?---He said that they didn’t have a bed for me.
Did he at that time, say anything to you about any risks that may accompany an overdue birth?---No.

Did he say anything about any risks that may be associated with [A] being an IVF baby?---No.
Did he make any offer to you, to arrange for your admission to be admitted to the public hospital?---No.
Had he been able to arrange your admission to the public hospital, would you have gone there rather than the private hospital?---Yes.
Did he discuss with you the possibility of performing the induction on the following day, that is to say 12 January?---No, he proposed to me that we could wait until next Tuesday.
Did he say you could wait until next Tuesday?---Yes.
What did you say to that?---I wasn’t going to wait.
Was some compromise reached?---Yes.
What was that compromise?---That I want you to come to the hospital on Thursday 13 to have an induction. If I haven’t gone in labour before that.

47. KS again confirmed that Dr Foote never mentioned that an IVF child had some increased risk of still-birth.

48. When KS went to the hospital on 13 January 2011, she went there around 4.30 pm. She was accompanied by XT as well as her parents, who had come from Venezuela for the birth. KS recalled doing some administration when they arrived and then being placed in a room. She recalled that the room was called “[t]he first room, the number one.” She did not remember what floor of the hospital it was on. In the room, she recalled there being a bed and either chairs or a couch, as well as a machine and a bathroom inside the room. The witness was shown a photograph of a CTG machine, which she confirmed resembled the machine in the room. From her medical training, she knew what it was, and understood its purpose was to monitor the baby.

49. She was wearing her regular clothes and was asked to lie down on the bed. XT and KS’s parents stayed in the room with her, and the midwife fitted the band for the CTG. The midwife explained that the machine was turned on and in KS’s words, instructed her to listen to the noise of the machine. KS recalled being told that “if something was wrong with the noise, just to press the buzzer.” KS confirmed that the midwife had turned the machine on. KS could clearly hear a repeated noise, that she understood to be the sound of the baby’s heartbeat. The midwife then left the room. KS’s parents and XT remained in the room. She confirmed that at some stage, she noticed something about what she was hearing from the machine. She noticed that “[t]he noise by that time was very regular. Change and the rhythm wasn’t as before […] It was regular at the beginning and then it changed […] The pattern changes, the rhythm.” When asked if she was looking at the graph being created, the trace, or just listening to the noise, KS said she was listening to the noise. When she noticed that change, she pressed the buzzer as she had been told to do. KS said the midwife then came back. She appeared to look at the trace, and she repositioned the belt. The midwife said that the change could have been because the contact was lost and she repositioned the belt, before again leaving the room.

50. KS said that at some later stage, she, her parents and XT were still in the room without anyone from the hospital. KS then noticed that “[i]t happened again. It was a change in the rhythm again.” She pressed the buzzer and the midwife returned. On that occasion, she said to KS that she did not think that it was loss of contact, and that she had some concerns about the heart rate. KS recalled feeling distressed, when she heard that. The midwife said she would have to call the doctor. She did not remain in the room and did not reposition the belt. KS told herself to lie on her left-hand side, because she said she knew that this position would increase blood flow to the heart and the baby and to the placenta. The midwife returned sometime later, and came back with another midwife. According to KS, the new midwife said “that with that trace, they couldn’t proceed with an induction. They said that, the other midwife said that they have called the doctor. They couldn’t be able to talk to him, but they left a message.” KS said that the midwives said that the doctor was in the hospital and he was attending to a C-section. The midwives left, with KS’s parents and with XT. At that stage, KS said she felt very distressed and very concerned.

51. At some stage, Dr Foote arrived. KS’s counsel asked her whether she could give any accurate estimate as to how long it was between the time the midwife told her they had attempted to contact Dr Foote and the time he actually arrived, and what he said to her once he read the trace. The following exchange occurred during the hearing:

Are you able to give any accurate estimate as to how long it was between the time the midwife told you they’d attempted to contact Dr Foote and the time he actually arrived? If you’re not able to be accurate, it’s perfectly understandable?---I don’t remember exactly the time, but it wasn’t quick. It seems like a long time.
When Dr Foote arrived, what did you see him do?---He was looking at the trace.
After he looked at the trace, did he say something to you?---Yes.
Doing the best you, and trying to use his words, what did he say to you?---He said that the meaning of that, it was the baby had, wasn't receiving enough oxygen.
All right?---And in that condition they couldn't induce me, it has to be a C-section.
When he said to you the baby wasn't receiving enough oxygen, how did you feel?---I was desperate. I started crying, and then he said that, "I am not worried" and he say that if he were worried, "I would put you in a shopping trolley and take you straight to the theatre myself."
Did that reassure you at all?---No.
Did you say anything to him that you recall?---I was just crying, desperate.

52. KS could not remember whether XT said anything to Dr Foote. Her parents could not speak English. Dr Foote did not stay with her. She said she still had the belt on when he arrived. KS could not remember if any other member of the hospital staff was there when Dr Foote said he wasn’t worried. After he left, some of the nursing staff were there. They started preparing KS to go to theatre. She remembered going to the toilet. KS said she thought that the nursing staff took some blood and also put her in a theatre gown. When asked whether any of them said anything to her that indicated things had to be done quickly, KS said “[n]o. I [KS] was the one in a hurry and trying to do everything quick, but nobody else was in a hurry.” She said that she was continuing to cry. Eventually, a wardsman arrived, and took her to the lift and to the room outside the theatre. XT accompanied her. KS said that:

I don’t remember [XT] being with me in the room, and I remember telling him that, “look after [A]”, and with that I mean that, if he have to make a decision take her.

53. In cross-examination, KS was asked further questions about whether Dr Foote or the midwife told her that she was going for an emergency Caesarean, or whether she got the impression from watching them that the Caesarean section was considered by them to be an emergency. She answered in the negative to these questions.

54. In cross-examination, counsel for the hospital put the following questions, referring to the midwife:

All right. Did she check you to see whether you had any contractions at the time?---I don't think so.
But she could have done, you're just might not remember?---I don't believe that.
Did you have a discussion with her along the line of as to how your pregnancy had gone and while she was doing your vital signs?---No.
Can I suggest that there was a discussion that occurred between you and the midwife whilst she was doing your vital signs about how your pregnancy was proceeding?---No.
During the course of that discussion, she also explained to you what happened with respect to the CTG and the purpose of why it was being used?---I already know.

55. When she was in the room outside the theatre, KS agreed that someone she understood to be an anaesthetist came to see her, and explained the type of anaesthetic she was going to have. He apparently told her she would have an epidural, and he explained to her all the procedures that were going to be done for an epidural. She said she knew what that was, and that the explanation seemed to her to take a long time. It did not appear to her that he was in a hurry.

56. When asked if she could remember how long she was in the room outside the operating theatre, she said “[h]alf an hour or – I don’t remember clearly, but it wasn’t a short period. I don’t know if was half an hour or - - -“ KS could not remember whether the anaesthetist came into the operating theatre with her or if he was already there. She also could not recall whether Dr Foote was there when she was taken into the operating theatre, but at some stage she saw Dr Foote, before she had been given the epidural. KS recalled Dr Foote telling her that he was going to check the heart of the baby. She said she saw him stand up, close to her abdomen and that he started looking for the heartbeat in different places. He was moving the Doppler on a number of different parts of her abdomen. KS gave the following evidence:

As he was doing that, what, if anything, did you notice about Dr Foote?---I couldn't - nobody could hear the heart, and I saw him (indistinct) for the first time in all the time I saw he's starting to get worried.
What did you see?---I saw his face and it was changing, and I could see this part of the muscles to start to get tense.
The muscles along his jaw?---Yes.
How were you feeling at that stage?---(indistinct) crying and screaming.
Did you then hear someone else say something?---(indistinct) this side, my head and ‑ ‑ ‑
Just a moment, something behind on your right side, you think?---Mm.
Someone behind you on your right side said something? Was it a man or woman, do you remember?---It was a female.
What, if anything, did you hear the female say?---She say, "Calm down, calm down, we have to put you out. We have to get the head out."
Did you say that she said, "We have to get the put you out" or "We have to get her head out"? I didn't hear?---Her out.
Her out? Thank you. Did you hear Dr Foote say anything, or simply this female?---That female.
What happened then?---I don't, I don't know anything then.
So she told you, "Calm down" and the rest, and that's your last memory? What's your next memory after that?---[XT].
[XT] was in the ‑ ‑ ‑?---I saw him come in.
Do you know whether you were in the operating theatre or in another ward?---I wasn't even in the bed, but I don't remember where I was.
When [XT] came in, did you observe anything about how he was?---I know, I know because I was crying and he crying and crying.
Was he carrying something? What was that?---It was [A], but I know she wasn't alive because he was crying and crying.
Was he carrying the baby, or was she wrapped in something?---In a blanket.
Can you describe it?---Yes, I know what the blanket is. It was a (indistinct) blanket and it have squares, with white, yellow and blue.
Yellow and blue? Did you notice something about the blanket?---It was [A] there.
e.Subsequent events

57. On the following day, Dr Foote came to see KS, who was still in the ward. When asked what he said, KS said:

He say, he comes and I remember that even a tear came from his eye, and he said to me that the heart of a healthy baby doesn’t stop, it wasn’t (indistinct) and he start telling me, making comparison, he compare, he say that he lost his mother, or mother-in-law, in a car accident and he make comparison of my loss with a miscarriage that he wife have with twins.

58. KS recalled that he said that if, next time she got pregnant, he would deliver her at 38 weeks. That day he also told her that she should go home, as she was amongst some new parents, and it was not healthy for her. KS did not see Dr Foote again.

59. KS remained in the hospital until 18 January. She had to undergo three blood transfusions. XT was there a lot. For a lot of that time A was with KS too. A naming ceremony was carried out. KS was visited in hospital by counsellors, and by a Catholic priest. Eventually she was discharged on 18 January. When asked how she was feeling at the time she was discharged, she said:

I was sad. I was out of me. I remember calling [A], but where was her. I remember asking my mum, “Where is [A]? Where is her?” I’m calling her. I was angry, I was sad.

60. When asked if she was able to sleep, KS said no, that she had images for a long time – an image that A was with her and her face and the blanket, an image KS said she would never forget. A funeral service was held on 25 January.

61. KS confirmed that in the weeks following the funeral, she was feeling the same as she had described above.

62. Whilst staying at her brother’s place in Queensland, she experienced some heavy bleeding. On 26 February 2011, KS was taken by ambulance to Nambour Hospital. She was discharged home with advice to be reviewed by her GP. KS confirmed that when she got back on 8 March 2011, Dr Campbell referred her for an ultrasound. In March 2011, a counsellor from SIDS for Kids attended at KS’s home. KS said that at that point she was “numb, sad. [Her] parents... were concerned with [her]. [She] felt guilty because [she] didn’t do what [she] should have done and [she] wasn’t eating properly. [She] wasn’t sleeping properly.” She said she felt guilty because she “didn’t protect A. [She] should have been strong and (indistinct) let A go at 40 weeks.” She said she was not sleeping or eating well. She had low energy levels, was confined to her house and would wake several times during the night with dreams about what had happened in the theatre on that day. She had trouble getting moving in the morning.

63. Having decided with XT that she may benefit from going home to Venezuela with her family, KS went back to Venezuela with her parents on 22 March. When she went back, she consulted with two obstetricians. Until she saw those obstetricians, KS said that she did not want to have more babies. She said that “[she] didn’t want to have another baby. [She] wanted [A] and [she] couldn’t have her.” She confirmed that the advice she was given related to her age. She changed her mind about having another baby. Whilst KS was away, she thought about whether she would go back to work. She decided not to go back to work, saying:

I couldn’t. I couldn’t face people and patients that I’d seen before. Everybody knew that I was pregnant and I couldn’t face to be asked how’s the baby? How are you coping? Because it was too hard and it was hurting too much.

64. Following this, KS met XT in New York and then they went on a cruise before returning to Canberra. They returned to Canberra on 6 June 2011.

Effects after A’s death

65. During the course of her evidence, KS described a variety of symptoms and difficulties following the death of A. These symptoms and psychological effects appeared to relate to different areas of her life, including the workplace and workplace relationships, her ambitions to practice as a doctor, her experience of IVF treatment, pregnancy and the birth of her child OT, as well as her relationships with her husband, family and friends. The extent of these effects, and the steps taken to deal with them, were challenged in cross-examination. This cross-examination has been incorporated in the relevant sections as they arise below.

a. Workplace difficulties and psychological difficulties

66. KS resigned from the Canberra Eye Hospital from 17 June 2011. She cited professional improvement in her letter of resignation, but explained her situation to her team leaders. She successfully applied for a job at the Eye Clinic at the Canberra Hospital, doing orthoptic work. She commenced on 25 July 2011.

2012/13

67. In 2012, KS agreed that she experienced events that led her to report a colleague to her superiors in relation to what she perceived as bullying and an inability to share the workload. KS had apparently been unhappy with other people’s performance earlier in her working life but in those days it did not worry her. She agreed that there had been a change in her ability to cope with the situation, and said that now, she was “a bitter person” and “less tolerant…a person that used to live at the edge, very irritable.” She said that she “allowed everything to affect [her] a lot and [she] lost the ability to cope with things.” She also said she did not trust people anymore, a problem that she confirmed she did not have before A’s death. After A’s death, even small things could affect her, and lead to her being in tears. She agreed with her counsel that there were a number of occasions during the interactions with the colleague concerned and other staff at the eye clinic at Canberra Hospital where she was in tears. She said that had not happened to her before A’s death, even in the most difficult circumstances.

68. The problem was solved to some extent when KS was assigned to alternate duties away from the eye clinic. The problems with the co-worker were discussed freely with KS’s superiors, often in tears and with stress. An investigation had been opened and it was apparently a difficult environment. KS continued working, often working longer hours.

69. KS agreed that her employer arranged for her to see a psychologist called Ms Vareeda Hanson. Although KS went through a brief history with Ms Hanson, and told her about A’s stillbirth, KS agreed that she did not ask KS questions about how that affected her. KS understood that she was seeing Ms Hanson in relation to the workplace stress issues.

70. KS consulted Dr Viketos, her GP, and told him of some of the issues that she was having at work. He gave her a workers compensation medical certificate certifying that she was unfit for work from 11 April 2013 to 24 April 2013 and KS made an application for workers compensation for that period. She returned to work and continued to work, doing the work of an orthoptist in the eye clinic. When asked if she was contemplating attempting to undertake the English language test again, she said that she wanted to do it, but “just didn’t have energy or motivation to do it.” She said she wanted to do it because she wanted to be practising medicine, which had remained her hope all along. However, she said she “wasn’t coping very good. [She] was struggling to get through the days. [She] didn’t have good concentration or memory. [She] was struggling with the things that [she] had at the moment; so [she] couldn’t take anything else.”

2014-2017

71. After KS returned from maternity leave in 2014/15, the colleague with whom she had had issues returned with apparently no change in her behaviour. KS said she did not feel like she could cope with that. She took some time off, and when she returned to work she was assigned work of an administrative kind, where she was not in contact with the colleague.

KS said that at times she felt as though she was being pressured to return to work at the eye clinic, despite the particular colleague being there. Her workplace suggested also that if she did not want to go back to the eye clinic, she should seek retraining and find another job. KS confirmed that she did a two day course, an introduction to project management course. She said she did not enjoy the administrative work very much but that they did not give her too many options. In December 2016 she ceased performing administrative duties at the Canberra Hospital and that she was offered participation earlier that year in a project, related to her training in project management.

73. Dr Viketos put KS off work on 21 December 2016 and continued to prescribe Lexapro. She returned to work just before Christmas and then went on annual leave. At the time that she went on annual leave the feelings that she had and which she has described were still there. She said that 2015 “wasn’t too bad a year.” However, she said that by the end of 2016, she “went backwards.” She said she was not coping very well with her duties, she could not concentrate, and the work she was doing was often in front of a computer without much interaction with people. She was still feeling sad, but was not teary. She recalled having difficulty sleeping and thinking a lot about A. When asked how often, she said, “I always think about [A]. Especially having OT. I always it bring me her memories.” KS said that her motivation was not very good, but that by the end of 2016, she was pushing herself, and working, and wanting to work.

In January 2017, KS changed GP to Dr Al-Naser. She said that she had been seeing Dr Viketos for many years and she was “not being well enough on Lexapro” but her basic mood had not improved and she wanted to hear another opinion. Dr Al-Naser referred KS to a different psychologist, Coral Warren, and changed her medication to another anti-depressant, Aropax. He also added Valium and Stilnox. KS agreed that he also suggested that she should only work with the diabetic service not at the Canberra Hospital. KS agreed that she thereafter continued working three days a fortnight for the diabetic service. She began working full-time for the diabetic service in April 2017.

75. The first plaintiff gave evidence that she had seen the psychologist Coral Warren in February or March 2017, who she was referred to by Dr Al-Naser. She saw her on five occasions. When KS saw Dr Warren, she talked to her about the stressful situation at work, and also told her about A. In relation to talking about A, KS said about Dr Warren:

She say that I am not there to discuss other thing that were not work related but to her she thinks that I haven’t finished my grief but if I wanted to talk about that I have to go to another psychologist or to see her private because I wasn’t there to talk about that.

76. KS agreed that she understood that Dr Warren’s fees for treating her were being paid by the workers compensation insurer. KS’s anxiety was also increased by the fact that information was circulated regarding Allied Health professionals’ credentials, and that KS understood that not being registered with the Australian Orthoptist Board, she would not be able to continue practising as an orthoptist for ACT Health. At about the same time, KS was diagnosed with the early stages of cervical cancer. She had the cancer removed, and as part of her treatment underwent a hysterectomy. Subsequent tests revealed that the cancer was completely treated.

77. KS went back to full-time work doing the diabetic vision screening at the Belconnen Community Centre. KS said that she has since learned that ACT Health, on 31 July 2017, agreed that she can remain credentialed to practice in her position with ACT Health notwithstanding not being registered with the Australian Orthoptist Board, which KS said was a relief. KS confirmed that she hopes to be able to continue that work.

b. Cross-examination on psychological effects

78. In cross-examination, KS was questioned about why she did not seek professional psychological help earlier. KS agreed that the first psychologist she saw since A’s death, 18 months afterwards (4 August 2012), was Dr Vareeda Hanson. KS gave the following evidence when asked about her not having earlier seen a psychologist:

And you, with the medical training, understood that in circumstances where you have grieving or ongoing stress related issues, such as you had with the death of [A], that you could have seen a psychologist with any problems you had associated with nightmares, flashbacks, lack of sleep or loss of appetite?
---They told me here and people from SIDS and Kids and the consulting that we saw at the hospital, the consulting that was looking after us after that happened, they suggest me to go to groups that have had the same problem that we had or the same traumatic event. I didn't see that that was a good idea. I rather take the support of the faith and I don't respond well of people telling me and putting the finger in the wound. "What happened? What you did? How that made you feel?" That makes me feel difficult and I was angry because something that could be avoided, now that all the tragedy happen, now you can go and talk with groups about that. "May you feel. Go and cry with everybody about what happened," but the fact was that nothing was done before to avoid that to happen.
I want to peel back some of your answer. Number one, I'm not suggesting to you that you could have gone for group therapy but from what you've said you wouldn't have gone to group therapy in any event - - -?---No.
- - - because you're not interested in that way of essentially dealing with the issue of the grief that you suffered with [A]'s death?---I didn't think that it was going to help me.
What I'm suggesting to you is you knew that you could go and see a psychologist, one like Dr Vareeda Hanson, to assist you dealing with the grief after [A]'s death but you didn't see anyone, did you?---No.
And from what your evidence is you didn't see anyone because you didn't see it as being helpful to you. You said something like sticking your finger in a wound - - -?---Yes.
- - - in asking how you're dealing with it. You didn't feel that was of benefit to you. Is that correct?---I was - yes.
So in terms of dealing with the grief you were dealing with it in your way. Did you mention it to your general practitioner?---Dr Viketos?
Yes?---I don't remember. I don't know.
You spent some time in Venezuela with your family to help heal the raw wound associated with [A]'s death and when you returned to Australia you did go back to work but you didn't seek any medical assistance, did you, with respect to the psychological injury that you now complain of here in this court case?---No.
The only time you saw a psychologist, with respect to psychological issues, the first time was with Dr Vareeda Hanson and that was work related, wasn't it?
---Yes.

79. In re-examination, KS said that she was not sure whether Dr Hanson said she had to pay for treatment herself if she wanted to deal with personal matters, but said that was told to her by the psychologist that she was referred to from work, Mrs Coral Warren. As far as she was aware, Ms Hanson’s fee was paid for by her employer.

80. In cross-examination, KS said that in April 2013 she went to see Dr Viketos, and told her about what happened with the spotting, with OT, with her pregnancy and that she was working long hours and over her capacity. She told her that it was putting more pressure on her and her pregnancy. Counsel asked KS whether she talked to Dr Viketos about the symptoms that she had been having for two years as a result of A’s death. KS said she had not, because she was sent there to see Dr Viketos for work. KS said it was after talking to Professor McFarlane, a psychiatrist retained by her lawyers, that she first told Dr Viketos about the symptoms she had been suffering as a result of A’s death. KS said “I was managing. I was pushing myself with dealing with both situations.” The following cross-examination occurred:

So the question if I remember it, [KS], is that you did not think with your medical training that you could get benefit out of seeking medical help?---I have problem dealing with the imprint memories and I didn’t think that going again and again and repeat and cry and people tell me what will happen? What do you feel? No. I talk a lot to family. I attach to my faith. I see priest. I went to church and I pray to the - that with both - with [A] and with issues from work, pushing myself through the day. No, I didn’t think that nobody could help me at that stage.

81. During cross-examination, Ms Burke asked a number of questions regarding the first plaintiff’s ability to continue working following the death of A, as well as the assistance she received in managing psychological problems she has experienced since A’s death, and the improvement in these symptoms over time. KS confirmed that from July 2011 until the present, KS has only had time off work to travel to South Africa for IVF issues, time off as a result of the workplace incident, time off with respect to the laparotomy and cervical cancer, and her holidays and maternity leave. She agreed she has not had time off with respect to the psychiatric or psychological problems associated with A’s death. She confirmed that before seeing Professor McFarlane, she had not seen a psychologist for the purposes of counselling or cognitive behaviour therapy to assist in dealing with the symptoms resulting from A’s death. When asked whether the symptoms improved over time, KS said: “By 2014, 2015 the flashbacks weren't that often that they used to be … [b]ut the changes in mood, my changed high react and the other changes that my lack of - my resistance to the things affect me and - very bitter, lack of tolerance, they are still there.” Counsel put to KS that she had told Professor McFarlane in 2017 that the nightmares had ceased in around October or November 2014. KS agreed that her nightmares had ceased by 2014-2015. She said she did not believe she has overcome her other symptoms.

82. She did agree that notwithstanding the fact she said there has not been an improvement in her other symptoms, she has still been able to maintain a position at work and has continued to work since July 2011. She said that work has been an escape and has kept her mind busy, which helps. She agreed that her work required a degree of concentration, and that she needs concentration to perform her job satisfactorily and appropriately. It was put to her that she does retain information, and KS acknowledged the fact that she recalled the pathways to practising in Australia during the hearing, for example, but did not appear to fully accept that she retains information as fully as she used to. In re-examination, KS said that she did not think that her current work requires the level of concentration as working as a medical doctor, as it is very automatic.

83. KS said she stopped taking Lexapro in late 2015.

Right and that was because you were feeling okay and you were coping relatively well in 2015?---It wasn’t as a difficult a year as I been having.
Okay and that was because the grief and the loss associated with [A] had settled. Is that right?---The nightmare and the flashback.
Okay and your thoughts of [A]’s death, whilst it returned from time to time, it had lessened, hadn’t it?---More often but it still hurting a lot.

84. In cross-examination, counsel for the first defendant clarified that KS only saw Dr Warren, who she was referred to by Dr Al-Naser, on five occasions, because the doctor said KS no longer needed to see her, a determination that KS said she was happy with. She also confirmed with KS that she changed antidepressant to mirtazapine, which over a period of time made KS feel 50 per cent better than she had previously. This dosage was increased quite soon before the hearing. KS said she understood that a period of time elapses before an improvement can be seen, and agreed that not enough time had passed since she started the higher dosage to observe whether there has been an improvement.

85. Counsel for the second defendant also asked KS about the fact that she filled in a pre-employment medical examination when she went back to work in July 2011. KS agreed that she circled a number of answers in relation to medical conditions that she was or was not suffering at that time. KS had circled that she had no mental or nervous disorder and no stress. The following exchange occurred:

Those answers are just wrong as at that time, aren't they?---No.
So as at July 2011, which is only six and a half months after [A] died, you did not believe you had any mental or nervous disorder?---I think I thought that my reaction to the loss of my daughter is a reaction that anybody can have, especially after going through many cycles of IVF, after a miscarry, after have tried for so long, after I fail, but I failed to protect her, and after I felt that it was a medical mistake, I don't think that I was sick. I believe that everybody that lose a child in any way would have a period of grief, sadness, depression or what is called - I don't believe that anybody can be immune to all that feelings.
That's why you circled "no" for mental or nervous disorder?---Yes, I didn't consider that I was have mental disorder.
Did you consider that you were stressed?---Sad, depressed, but just low, low, low mood.
But not stressed?---Lack of self esteem, lack of energy. Is that - I don't believe that is stress.
So you did not believe that you were stressed at that time?---No.

86. In cross-examination, KS agreed that in 2014, KS started seeing Jo Rouston, for a total of about seven sessions. Over a fairly brief period KS said she felt better (in 2015). She took some Lexapro because Dr Viketos suggested it, and stopped that when she felt better as well. KS said also that she experienced insomnia in relation to A’s death but also in relation to her workplace injury. She did not suffer from insomnia before A’s death. She said the insomnia did not change when she had her workplace issues, but that she had not told Ms Hanson that she had already been suffering insomnia when she went to see her about her work-related injury. KS said she had given a brief family history, and that Ms Hanson had known about A’s stillbirth, but that she had been told by Dr Hanson that these were personal matters, and KS understood she had been sent there by work.

87. When KS saw Professor McFarlane in 2014, she did not tell him about her workplace injury in 2012, as she said it had been resolved and at that stage she was on maternity leave, and it was not at the top of her mind.

c. Career ambitions

88. KS agreed that two ophthalmologists at the eye clinic she was working at gave her some encouragement to attempt to get back to studying. They provided KS with textbooks and papers, which KS attempted to study. She said this was because she always wanted to be a doctor, and that she studied “long years, [she] study (sic) long years in Venezuela to be a doctor and [she didn’t] have [her] dream.” When she attempted to study them, she said she felt a little bit overwhelmed, that she had problems concentrating and retaining things in her brain, and that she lacked motivation. She said she felt like she did not have too much energy and “the fact that [she] lost [her] daughter has changed [her]”. The following exchange occurred:

How had it changed you, [KS]?---I am not the same person. I have different priorities and I learn in a tough way that actions of people can destroy your life, your life in matter of hours. Your marriage, your dreams, everything that you have in life and I, it’s difficult, it was difficult for me to get the concentration.

89. KS said that she persisted in trying to do this, and that she still thought about being a GP, but she said:

… my life now is up and down. I go from being more or less to people to being down. I am now as a roller coaster. I now a person that is not as strong as I used to be. A forgetful person, difficult to concentrate. Sometimes I even don’t know if I have turned anything on or if I left the stove on.

90. KS confirmed that when she started work at the Canberra Hospital, she was working with a Registrar from Europe, as well as an ophthalmologist, who said to her that once she handled all the papers, relating to the Royal Australia and New Zealand College, that in order to be an ophthalmologist she would probably need to apply to do the training again, and that this would be for the full five years.

91. KS agreed that this had some effect on her desire to have her specialist qualifications recognised. After learning that, she agreed that she had “some hope and plan in relation to being able to practice medicine in Australia.” She said she “knew how hard people compete here to be able to enter a post-graduate studies here and [she] knew that [she] could go to the general practitioner pathway, through the ANC test.” She said it was an alternative pathway for her, but she was not committed.

92. KS agreed that she anticipated that had A’s death not intervened she was looking forward to attempting to do the English language test and reviving her application for registration. She gave the following evidence:

And had you learned in the course of doing that what you subsequently learned from your colleagues at the eye hospital that you needed to go back to do a protracted course of study to become a specialist ophthalmologist in this country, what would you have done?---I wasn’t going to study again for five years. I probably, I don’t’ know if I would do, go into the training what going to be successful but I was going to be successful to become a GP.
So you don’t think you would have done the five year course?---No.
You would have proceeded to become a GP. Is that right?---Yes.
How do you feel about trying to do that now? Do you think you could possibly succeed in getting your qualifications recognised and undergoing any test you had to undergo in Australia, leaving aside the English language test?---I have changed after losing my baby and as I say before I have problems with concentration, with memory, with energy. My life of my mood is a roller coaster now. I go from period of being not too bad to periods that I am very down. I have difficulty coping.

93. In cross-examination, counsel for the first defendant confirmed that KS had decided not to pursue the ophthalmology specialisation aspect of her medical career as there was a requirement for five years of study in Australia, but her hope was still to pursue being a GP in Australia. KS said she decided this when she heard about the need for a further five years training when she was working in the eye clinic with registrars, around 2011 or 2012. KS confirmed that it was approximately 1998 when she last practised as a GP in Venezuela. The following exchange occurred:

So, therefore, at the time that you're looking at perhaps continuing to be a GP, almost 20 years had elapsed since you had last practised as a GP. Is that right?---Yes.
Had you undertaken any investigation as to whether you were required to upskill your level of knowledge as a general practitioner and perhaps undertake a period of time working within a hospital as an intern?---I know that I have to have supervision. I cannot - the only fact that I pass the test it doesn't mean that I - I know that I have to be under supervision at the beginning.
Did you understand that you might also actually have to also spend a period of time improving your clinical skills by working within a hospital setting?---I don't know that the supervision has to be at the hospital.
So, you didn't know?
MR ROBERTS:   She doesn't know?
HIS HONOUR:   She doesn't know that the supervision has to be at a hospital.
MS OLDFIELD:   All right.
You understand the difference between supervision and perhaps working in the same capacity as you did 20-odd years ago as an intern in a hospital?---Yes.
What I'm suggesting to you is did you make inquiries, because so much time had elapsed between being a GP in Venezuela in 1998 and the time at which you were considering practising as a GP in this country did you make any inquiries whether you would need to work as an intern for example in a hospital in Australia before you could even work as a GP under supervision?
---I didn't, no, understand that.

94. Further during cross-examination, KS explained that the role of GPs in Venezuela is different from in Australia. She confirmed that in Australia, the way she understood it, a GP refers a patient to a specialist, whereas in Venezuela, the patient would go straight to the specialist. Therefore, as counsel for the first defendant confirmed, GPs working in the community in Venezuela would not see such a wide range of patients as they may in Australia.

95. KS confirmed that she knew she would have to study, to “refresh [her] knowledge”, in order to pursue the path of practising as a GP in Australia. KS answered the following questions about her research in relation to practising in Australia:

When you made the decision to come to Australia and live you’d already decided that you wanted to practice in ophthalmology?---Yes.
What steps did you take in Venezuela to make inquiries as to what you needed to do in order to practice as an ophthalmologist in Australia? Did you go to the Australian Embassy or contact ‑ ‑ ‑?---We don’t have Australian Embassy in Venezuela.

The reason that Dr Foote sought to fix the content of his duty of care in the current proceedings as completion of the Caesarean section within 30 minutes from the time of deciding to undertake the procedure is that he submitted that the evidence does not permit a finding that A was alive after 6:27 pm, which is within the 30 minute period (he submitted) after he decided to undertake the procedure. In essence, his submission was that the plaintiff had not established that any breach of his duty of care caused the injuries which they sustained. This submission was of course based upon the proposition that the decision to undertake the Caesarean section was made not before 6 pm. For the reasons which I have given, I am satisfied that the decision was made before 6 pm, and indeed before 5:58 pm. The submission was expressed to be based upon the evidence of Dr Colditz, but does not accurately reflect his evidence. Dr Colditz expressed the opinion that, on the balance of probabilities, if A’s delivery had taken place “at approximately 18:27 hours” she would have been born alive. It is not correct to say that the evidence of Dr Colditz fixed the outer limit of the time when A would probably have been born alive if delivered by Caesarean section at 6:27 pm.

The three minute window which Dr Foote sought to rely upon to avoid liability is illusory. Dr Colditz did not purport to set a hard and fast cut-off for A to have been born alive at 6:27 pm. More importantly, Dr Foote’s liability for damages based on his actions on 13 January 2011 does not hinge upon a failure to meet a DDI of 30 minutes. The tenor of the evidence of Dr Colditz and Dr Edozien was that a competent obstetrician would have, in the circumstances that existed on 13 January 2011, undertaken the Category 1 Caesarean section as quickly as possible. Of course, in deciding how quickly that could be done, it is necessary to consider whether there were any impediments such as the lack of access to a theatre or a lack of staff. There is no suggestion that there were any such issues in the present case. The evidence of Mr Unicomb, which was unchallenged, was that there were theatres and staff available to undertake an urgent Caesarean section at about 6 pm on 13 January 2011. There was no suggestion that the on-call anaesthetist was not available, or that an anaesthetic registrar could not have been called upon. In addition, the evidence of Dr Edozien was that DDIs of much less than 30 minutes were routinely achieved in hospitals in Australia with respect to Category 1 procedures. There is no evidence that this was not a reasonably achievable outcome in the present case if Dr Foote had properly recognised that the CTG trace revealed a medical emergency. The evidence of Mr Unicomb also supported the proposition that urgent Caesarean sections were routinely performed in the hospital within less than the 30 minute period referred to in the Guideline.

Based upon all of the evidence, I am satisfied that if Dr Foote had recognised the significance of the CTG trace and had arranged and/or conducted the Caesarean section in accordance with his duty to the first plaintiff, it is probable that A would have been born alive and the plaintiffs would not have sustained the injuries which they did.

I have, again, focused upon Dr Foote’s duty to the first plaintiff in the above, but I am also satisfied that Dr Foote had corresponding duties to the second plaintiff. For the reasons that I have given, I am also satisfied that Dr Foote breached his duty of care to the second plaintiff, and that his breach was causative of the injuries sustained by the second plaintiff.

Assessment of Damages – first plaintiff

I have no hesitation in accepting the evidence of the first plaintiff. I am satisfied that as a result of the stillbirth of A, the plaintiff suffered from post-traumatic stress disorder and major depression. There was a disagreement between Professor McFarlane and Dr Saboisky about whether the first plaintiff’s post-traumatic stress disorder had abated by September 2017 when Dr Saboisky last reviewed the first plaintiff, but I prefer the evidence of Professor McFarlane because it is more consistent with what I accept to be the truthful evidence given by the plaintiff about her continuing symptoms, and the continuity of her symptoms from 13 January 2011 until trial.

I will not here repeat the history of the first plaintiff’s symptoms from 13 January 2011 until trial; they are set out in full in the summary of her evidence earlier in these reasons. I am satisfied that her ongoing symptoms of post-traumatic stress disorder and major depression have had a profound effect on her ability to enjoy her life; it has pervaded all aspects of her life including her work and her family relationships. It has changed her from a happy person who enjoyed her work, had plans for the future and was happily married into a sad, depressed and angry person who has lost much of the enjoyment of her life, work and relationships.

Probably the most contentious issue concerning the assessment of damages for the first plaintiff is her claim for economic loss based upon a claim that but for the negligence of the defendants she would have qualified as a medical practitioner in Australia, and worked in that capacity until retirement age. The defendants submitted that any such claim was speculative, and no allowance should be made for any economic loss.

I accept that the first plaintiff will be able to engage in her current employment for the foreseeable future. This is essentially the same employment that she undertook prior to 13 January 2011. From that perspective she has suffered no loss. I accept, however, that it was the first plaintiff’s continuing intention as at 13 January 2011 to have her qualifications recognised in Australia and to practice as a medical practitioner. There were not insignificant hurdles that the first plaintiff had to cross in order to achieve her goal. Having determined that she was not prepared to undertake the further lengthy period of study required to have her specialist qualifications recognised, the first plaintiff planned to practice as a general practitioner (GP). To achieve this goal she had to pass the IELTS English language proficiency test, to pass a medical knowledge test and to find a GP who was prepared to mentor her for 12 months. It cannot be said that absolute certainty attended any of those contingencies.

The first plaintiff expressed her claim as one based upon the decision of the High Court in Malec v J.C. Hutton Proprietary Limited (1990) 169 CLR 638 (Malec). In Malec, when considering the correct approach to assessment of damages for future or potential events, the plurality (Deane, Gaudron and McHugh JJ) said at 642-643:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take the chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallet v McMonagle; Davies v Taylor; McIntosh v Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.
(Footnotes omitted)

There is evidence that the first plaintiff’s condition has improved in relatively recent times due to a change in her medication, but I am satisfied that she continues to suffer cognitive impairments, such as difficulty concentrating, such that she is unlikely to be able to cope with the requirements for having her medical qualifications recognised in this country. This is unlikely to change, particularly as the longer the delay in her being able to undertake the process, the harder it will become. I accept that Dr Saboisky was of the opinion that other life stressors may have been the cause of the first plaintiff’s failure to progress her plan to have her qualifications recognised, but I prefer the opinions proffered by Professor McFarlane. Dr Saboisky had a partially incorrect history, in that he believed that the plaintiff’s child OT had “severe behavioural problems”. This is not correct. In addition, I am satisfied that the first plaintiff’s post-traumatic stress disorder and major depression which developed as a consequence of the events of 13 January 2011 reduced her ability to cope with other stressors in her life, such as the problems which she encountered at work in 2012-2013. The evidence of the plaintiffs, and of the first plaintiff’s brother, convinces me that prior to 13 January 2011 the first plaintiff was a person who regularly had to cope with stress in her life, and coped well. Since 13 January 2011 she has not been able to cope as well with stressors in her life due to her post-traumatic stress disorder and her depression. This resulted in a temporary aggravation of her symptoms in 2012-2013 due to problems in her workplace, and difficulty coping with further IVF treatment, her pregnancy and the birth of OT, but her continuing disabilities are referable to the events of 13 January 2011.

The first plaintiff’s claim for damages for economic loss is based upon an event that may have occurred but for the negligence of the defendant. This event was contingent upon three other, separate events occurring: passing the English proficiency test, passing the medical knowledge test and finding a mentor. It is true that the first plaintiff unsuccessfully attempted the English proficiency test in September 2008, January 2009 and December 2010. In each case she came close to passing. With regard to her third attempt, in December 2010, the first plaintiff’s performance must be assessed in the light of the fact that she was heavily pregnant with A at the time, and had been through a difficult period of IVF treatment, had suffered a miscarriage and had experienced the in utero death of A’s twin.

Despite this history, I am satisfied that the first plaintiff had excellent prospects of passing the English proficiency test in the period of three years after January 2011 but for the negligence of the defendants. The first plaintiff is clearly a very intelligent person, and one who had demonstrated an ability to achieve a level of facility in the English language relatively quickly. She had also demonstrated determination to achieve her goals. I have allowed a period of three years from January 2011 because had A been born alive there would probably have been a period during which the first plaintiff’s focus would have been on the responsibilities of being a new mother. In my opinion there was at least an 80 per cent chance of the first plaintiff successfully completing the English proficiency course within that three year period.

The second contingency involved the first plaintiff successfully passing a medical knowledge test. The first plaintiff was not challenged on the extent of her basic medical knowledge. She gave evidence that she had obtained past copies of the test, and as such she was aware of the level of knowledge that she would be required to demonstrate. In my opinion the first plaintiff’s prospects for passing that test within six months of passing the English proficiency test should be assessed at 90 per cent.

The third contingency, the necessity to identify another GP who would have been prepared to mentor and supervise the first plaintiff for 12 months, presents the greatest difficulty. No evidence was called addressing this issue. It is notorious that there is a shortage of GPs in Australia, at least in some areas, and a GP proficient in both English and Spanish may well be an attractive proposition for a prospective employer, but the supervision period would still involve the supervisor in inconvenience and possibly expense. Doing the best I can, I would not estimate the first plaintiff’s prosects of identifying a supervisor at greater than 70 per cent.

I readily acknowledge that the percentage figures I have given for each of these contingencies are not based on any science. They are matters of impression formed from a consideration of the evidence, but I set them out in order to attempt to provide some transparency to the process of arriving at the final figure representing the risk that the first plaintiff would suffer the claimed loss. Combining the probabilities of these three events occurring leads to an overall probability of all three occurring of 50.4 per cent. I will round this down to 50 percent in recognition of the uncertainty surrounding the first plaintiff’s ability to obtain a supervisor.

The first plaintiff submitted that but for the defendants’ negligence she would have commenced practice as a GP “under supervision” on 1 January 2012. In my opinion this is too optimistic. A more realistic date would have been 1 January 2015. It is probable that she would initially have been employed at less than the average weekly earnings of a female GP, but the use of average figures over her potential working life addresses this likelihood as well as the possibility that she may have earned more than the average later in her career.

The first plaintiff provided 2 sources of evidence concerning her likely past earnings as a GP. The first was average weekly earnings of non-managerial adult female generalist medical practitioners as at May 2012 as provided by the Australian Bureau of Statistics (ABS), and increased annually in line with increases in average full-time adult female earnings from that date. The second was based upon information obtained from GP recruitment agencies. In my opinion, the former figures are likely to be more reliable. Recruitment agency figures may be heavily influenced by the utilisation of such agencies to identify candidates for employment in areas where it is difficult to attract candidates, and where it may be necessary to pay a premium to obtain suitable candidates. In addition, the ABS figures are likely to cover a broader range of GPs.

I have set out below the actual earnings of the first plaintiff from 1 January 2015 to the date of trial, and her projected earnings if she had practised as a GP during that period:

PLAINTIFF’S ACTUAL EARNINGS

Date Gross per annum Net per annum Net per week

01.01.2015 $27,193 $25,077 $482

30.06.2015 $29,934 $27,039 $520

30.06.2016 $76,380 $58,482 $1,125

30.06.2017 $67,692 $52,769 $1,015

01.07.2017 to date $91,942 $68,453 $1,316

EARNINGS OF GENERAL PRACITIONERS

According to Australian Bureau of Statistics

Year Annual increase Gross per annum Net per annum Net per week

2015 $156,524 $107,532 $2,068

2016 3.3% $161,689 $110,742 $2,130

2017 2.6% $165,893 $113,503 $2,183

Before reduction to allow for the likelihood that the first plaintiff would have suffered the suggested loss, I calculate the past economic loss as follows:

(a)From 1 January 2015 to 30 June 2015 (26 weeks)
Potential earnings as GP                   $2,068 per week
Actual earnings  $520 per week
Potential loss per week  $1,548 per week
Potential loss for period  $40,248

(b)From 1 July 2015 to 30 June 2016
Potential earnings as GP                   $107,532 per annum
Actual earnings  $58,482
Potential loss for period  $48,408

(c)From 1 July 2016 to 30 June 2017
Potential earnings as GP                   $110,742 per annum
Actual earnings  $52,769
Potential loss for period  $57,973

(d)From 1 July 2017 to 7 October 2017 (14 weeks)
Potential earnings as GP                   $2,183 per week
Actual earnings  $1,316 per week
Potential loss per week  $867 per week
Potential loss for period  $12,138

This equates to a potential loss of $158,767.00. Reducing this by 50 per cent to reflect the risk that the first plaintiff would have suffered this loss leads to an award for past economic loss in the sum of $79,383.50.

The first plaintiff is entitled to interest on this sum at 3.5 per cent for 2.25 years, being $6251.45.

Based on the ABS figures, the difference between the plaintiff’s current earnings and her potential earnings as a GP is $867.00 net per week. Counsel for the first plaintiff submitted that any potential loss of earning capacity be calculated on the basis that she would have worked to age 70, but there was no evidence from the first plaintiff that prior to sustaining her injuries she intended working to that age, as a GP or otherwise. In my opinion potential loss of earnings should be calculated to age 65. Assessing the loss at $867 per week for 20 years using 3 per cent tables (787.9) gives a loss of $683,109.00. I reduce this by 50 per cent to reflect the risk that the first plaintiff would suffer the loss, leaving a sum of $341,554.50. I will then reduce this by 15 per cent to allow for normal vicissitudes, leaving a sum of $290,321.30.

I allow loss of superannuation as follows:

(a)Past - $79,383.50 x at 11% = $8732.00
(b)Future - $290,321.30 at 11% = $31,935.30

Past out of pocket expenses were agreed (on the basis that the plaintiff was successful on her argument that induction of labour ought to have occurred prior to 13 January 2011) in the sum of $2117.05.

Future out of pocket expenses in the sum of $11,504 were claimed, consisting of:

(c)Four GP visits per annum for 10 years at $100 per visit       $3,474.00
(d)Psychiatrist – 12 sessions at $330 per session  $3,960.00
(e)Antidepressant medication at $40 per month  $4,170.00

I assess general damages at $230,000, of which half is attributable to the past. The first plaintiff is entitled to interest on the past component equalling $15,525.

I therefore assess damages for the first plaintiff as follows:
General damages                  $230,000.00
Interest  $15,525.00
Past out of pocket                  $2,117.05
Future out of pocket               $11,504.00
Past economic loss               $79,383.50
Interest  $8732.00
Future economic loss            $290,321.30
Interest  $31,935.30
Total  $669,518.15

Assessment of damages – second plaintiff

I also have no hesitation in accepting the evidence of the second plaintiff. To the extent that there is disagreement between the opinions expressed by Professor McFarlane and Dr Saboisky concerning the nature of the condition suffered by the second plaintiff, its continuing effect upon him and the need for treatment, I prefer the opinion of Professor McFarlane. His opinions are more consistent with what I accept to be the honest evidence given by the second plaintiff.

I am satisfied that as a consequence of the events of 13 January 2011 the second plaintiff suffered from, and continues to suffer from, major depression of mild to moderate severity. This has adversely affected his relationship with the first plaintiff and, to a degree, with their son, OT. It has also significantly reduced his enjoyment of life. It has not precluded him from working, but it has made work more difficult and reduced his work satisfaction.

It is probable that antidepressant medication and appropriate therapy will improve the second plaintiff’s symptoms. It has not been unreasonable on the part of the second plaintiff to not undertake this treatment to date because of the adverse effect that such treatment would have upon his current employment. The second plaintiff has always intended to retire from his current employment shortly before his 55^th birthday, so as to take advantage of his current superannuation scheme, and to then work part-time in some capacity. Once he has retired, it is probable that he will achieve significant reduction in his symptoms through treatment. It is improbable, however, that the second plaintiff will be able to achieve his pre-injury goal of teaching flying. The second plaintiff submitted that a substantial “cushion” of $75,000 should be allowed for future economic loss, but in my opinion the evidence does not support such an approach. It is probable that the second plaintiff will be capable of working part-time in some capacity after he turns 55 should he wish to do so, but I accept that such employment may not be as enjoyable or satisfying as he had planned. This should be addressed in general damages.

I assess damages for the second plaintiff as follows:

(a)General damages   $200,000.00
(b)Interest on past component of $150,000.00 at 2% per annum for 6.75 years  $20,250.00
(c)Out of pocket expenses   $123.00
Total                 $220,373.00

Notices claiming contribution or indemnity

The hospital served on Dr Foote Notices Claiming Contribution or Indemnity with regard to the claims by both plaintiffs (the Notices). The notices are effectively identical. The Notices provide:

4. In the event the Plaintiff establishes that the First Defendant is liable with respect to the Plaintiff’s claim (which is denied), and that the Plaintiff has sustained injury, loss or damage (which is not admitted), the First Defendant says that the Second Defendant is liable in respect of the same injury, loss or damage as claimed by the Plaintiff as against the First Defendant.
Particulars of Negligence
(i)For the purpose of this Notice only, the First Defendant repeats the particulars of negligence as alleged against the Second Defendant, under the pleading “The Second Defendant…..” in paragraph 2(a) to (q) of the ASOC.
(ii)Further, for the purposes of this Notice only, the First defendant says the Second defendant failed to:
(a)   answer the telephone call made by the midwife in the birthing suite at 1744hrs, either by physically answering the call or attending the ward within 10 minutes of the call;
(b)   categorise the Plaintiff as a category 1 patient, in accordance with RANZCOG guidelines; and record that categorisation within the Plaintiff’s hospital notes, after reviewing the Plaintiff and determining a LSCS was required;
(c)   seek or request an Operating Theatre to be made available for use within 30 minutes of 1800hrs;
(d)   make himself available to perform the Plaintiff’s LSCS between the time period of 1800hrs to 1830hrs;
(e)   remove himself as the assistance surgeon in surgery conducted at Calvary Public Hospital between 1812hrs and 1830hrs; or
(f) seek assistance or organise another Obstetrician to be assistance surgeon in the surgery being conducted in Calvary Public Hospital between 1812hrs an 1830hrs;
(g)   perform the Plaintiff’s LSCS at some time between 1800hrs and 1858hrs.

5. In the event the First Defendant is found liable to the Plaintiff, the First Defendant says that any injury, loss or damage sustained by the Plaintiff was caused or contributed to by the negligence of the First Defendant.
Relief Claimed
6. The First Defendant claims against the Second Defendant:
(i)Indemnity for any damages, interest and/or costs which may be awarded against the First Defendant in favour of the Plaintiff;
(ii)Contribution or indemnity pursuant to section 21 of the Civil Law (Wrongs) Act 2002 (ACT);
(iii)In the alternative, contribution as the Court thinks fit; and
(iv)Costs of defending the proceedings and of the contribution and/or indemnity proceedings.

Dr Foote also served Notices of Contribution or Indemnity on the hospital. These Notices were in general terms, although no issue has been taken in these proceedings with regard to their form:

1.For the purposes of this cross-claim the second defendant repeats the facts contained in the plaintiff’s Amended Statement of Claim dated 29 July 2017.
2.The second defendant also relies upon his Amended Defence filed in these proceedings dated 9 February 2017.

Claim
Nature of claim
(a)Contribution and/or indemnity for any damages, interest and costs which may be awarded against the second defendant in favour of the plaintiff.
(a)Relief claimedA declaration that the second defendant is entitled to be indemnified in full (or in the alternative in a proportionate manner) by the first defendant in respect of the damages, interest and costs which may be awarded against the second defendant in favour of the plaintiff pursuant to Section 21 of the Civil Law (Wrongs) Act 2002.
(b)Judgment for the second defendant against the first defendant:
(i) in any amount that may be found due from the second defendant to the plaintiff; and
(ii) for the amount of the second defendant’s costs for defending the action brought by the plaintiff against him and of these contribution and indemnity proceedings.
(c)Further, or in the alternative, such contribution as this Honourable Court deems fit and appropriate.

Interest claimed
The second defendant claims interest from the first defendant in relation to the relief sought.

The apportionment of damages is the subject of s 21 of the Civil Law (Wrongs) Act 2002 (ACT):

21 Right of contribution
(1) A person (the first person) who is liable for damage caused by a
wrong can recover contribution from someone else (a contributory)
who is also liable for the same damage.
(2) The contribution must be an amount that the court considers just and
equitable having regard to the extent of the contributory’s
responsibility for the damage.
(3) However, the first person is not entitled to contribution under this
section if—
(a) the first person is liable to indemnify the contributory against
the contributory’s liability for the damage; or
(b) the court exempts the contributory from liability to make
contribution; or
(c) the court has directed that contribution to be recovered from a
person for the damage is a complete indemnity for the damage.

The preconditions to the making of orders for contribution have been met, as each of the defendants are liable for the same damage suffered by the plaintiffs. The question is, simply, what is a just and equitable apportionment of the damage between the defendants? In my opinion, Dr Foote is significantly more culpable for the damage sustained by the plaintiffs than the hospital. Dr Foote had the first, and best, opportunity to avoid the damage by providing the first plaintiff with an appropriate warning of the risks associated with continuing the pregnancy past 6 January 2011. As I have said, I am satisfied that if he had done so it is probable that A would have been born alive and the plaintiffs would not have sustained their injuries. In addition, Dr Foote had the last chance to avoid this tragedy. Had he properly interpreted the CTG trace, recognised its significance for foetal viability and acted with appropriate haste to conduct, or arrange for, an emergency Caesarean section it is also probable that A would have been born alive.

The established negligence on the part of the hospital is also substantial.

I would apportion liability 70 per cent to Dr Foote and 30 per cent to the hospital.

Orders

In proceedings SC 6 of 2014 there will be judgment for the plaintiff (KS) in the sum of $669,518.15, of which the first defendant is liable for 30 per cent and the second defendant is liable for 70 per cent.

In proceedings SC 7 of 2014 there will be judgment for the plaintiff (XT) in the sum of $220,373.00 of which the first defendant is liable for 30 per cent and the second defendant is liable for 70 per cent.

The parties are to file and serve within 21 days of publication of these reasons written submissions on costs not exceeding 3 pages.

I have not made formal orders disposing of the Notices claiming contribution or indemnity, trusting that my decision as to the relative contributions by the defendants will be sufficient. If formal orders are sought, the parties are to agree upon the form of those orders and file them within 21 days.

I certify that the preceding three hundred and fourteen [314] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 5 April 2018

[2018] ACTSC 84

5 April 2018

Key Legal Topics

Areas of Law

Medical Law

Legal Concepts

Negligence

Duty of Care

Causation

Compensatory Damages

Date	Gross per annum	Net per annum	Net per week
01.01.2015	$27,193	$25,077	$482
30.06.2015	$29,934	$27,039	$520
30.06.2016	$76,380	$58,482	$1,125
30.06.2017	$67,692	$52,769	$1,015
01.07.2017 to date	$91,942	$68,453	$1,316

Year	Annual increase	Gross per annum	Net per annum	Net per week
2015	$156,524	$107,532	$2,068
2016	3.3%	$161,689	$110,742	$2,130
2017	2.6%	$165,893	$113,503	$2,183