Lainie Radovanovic by her next friend and father Anton Radovanovic v Bryan Cutter and Australian Capital Territory
[2004] ACTSC 9
LAINIE RADOVANOVIC by her next friend and father ANTON RADOVANOVIC v BRYAN CUTTER and AUSTRALIAN CAPITAL TERRITORY
[2004] ACTSC 9 (19 MARCH 2004)
NEGLIGENCE – medical negligence – care of mother prior to birth of child – failure to order a repeat ultrasound at 18-20 weeks of pregnancy – failure to inspect cervical suture – whether failure amounted to negligence
NEGLIGENCE – medical negligence - high risk pregnancy – whether medical practitioner was informed by nursing staff of large bleed of mother – whether condition of mother should have been ascertained by medical practitioner– whether medical practitioner should have attended hospital sooner
NEGLIGENCE – medical negligence – failure to ascertain history of event that brought mother into hospital -whether medical practitioner palpated mother’s abdomen to ascertain engagement of baby’s head before conducting a vaginal examination–whether medical practitioner was negligent
NEGLIGENCE – medical negligence – whether medical practitioner was justified in proceeding in the manner he did – delay in proceeding to Caesarean section after diagnosis of vasa praevia – whether negligent
NEGLIGENCE – medical negligence – high-risk pregnancy - risk of harm – foreseeability in the context of rarely occurring condition – association of rare condition of vasa praevia with placenta praevia
DAMAGES – child born with cerebral palsy – gross physical and mental impairment – life expectancy – expert evidence - lack of mobility affecting life expectancy – reduction from normal life expectancy – appropriate damages calculation
DAMAGES – loss of earning capacity – no work history – difficulty of assessment – statistical material used for average weekly earnings of adult workforce
DAMAGES – Griffiths v Kerkemeyer – commercial cost of services provided – provision of care by parents – no discount because parents would have given the care in any event – Black v Lipovac [1998] 699 FCA (Unreported) 4 June 1998 applied
DAMAGES – profoundly disabled plaintiff – provision of care when parents unable to provide present care – consideration as to appropriateness of government provided community living facilities – allowance made for time when parents unable to provide care
Supreme Court Act 1933 (ACT), s 69
Beischer N A and Mackay E V, Obstetrics and the New Born for Midwives and Medical
Students, Holt-Saunders Pty Ltd, 1976
MacGillivray, I, Combined Text Book of Obstetrics and Gynaecology, 1976
Llewellyn Jones, Fundamentals of Obstetrics and Gynaecology, 2nd ed, 1978
Donald, I, Practical Obstetric Problems, 5th ed, 1979
Dewhurst , CJ (Ed), Integrated Obstetrics and Gynaecology for Post Graduates, 1976
Kouyoumdjian A “Velamentous insertion of the umbilical cord” (1980) 56 Obstetrics and Gynecology 737
Strauss and Shavelle, Life Expectancy of Adults with Cerebral Palsy, Journal Of Developmental Medicine and Child Neurology, 1998, Vol 40 369
Eyman., Richard K, Crossman., Herbert J, Chaney., Robert H and Call., Thomas L, Survival of Profoundly Disabled People with Severe Mental Retardation, American Journal of the Disabled Child, March 1993, Vol 147
Long-Term Survival of Children and Adolescents after Traumatic Brain Injury, Archives of Physical Medicine and Rehabilitation, Vol 79, September 1998
Crichton, McKinnon and White, The Life Expectancy of People with Cerebral Palsy, Developmental Medicine and Child Neurology (1995) Vol 37 567
Strauss, Shavelle, Anderson Long-Term Survival of Children and Adolescents After Traumatic Brain Injury
Luntz Assessment of Damages and Personal Injury and Death, (4th ed) 2002
X and Y (by her tutor X v Pal and others (1991) 23 NSWLR 26
Rogers v Whitaker (1992) 175 CLR 479
Burnie Port Authorities v General Jones Pty Ltd (1994) 179 CLR 520
Jolly v Sutton London Borough Council [2000] 3 All ER 409
Nader v Urban Transit Authority of NSW [1985] 2 NSWLR 501
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Bennet v Minister of Community Welfare (1992) 176 CLR 408
Wyong Shire Council v Shirt (1980) 146 CLR 40
Chapman v Hearse (1961) 106 CLR 112
Mount Isa Mines v Pusey (1970) 125 CLR 383
Simpson v Diamond [2001] NSWSC 925, 5 November 2001
Skelton v Collins (1966) 115 CLR 94
Hawkins v Lindsley (1974) 4 ALR 697
D’Ambrosio v de Souza Lima (1985) 60 ACTR 18
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Todorovic v Waller (1981) 150 CLR 402
Stewart v Jacobson (2000) 31 MVR 450
Osborne v Kelly (1993) 61 SASR 308
Griffiths v Kerkemeyer (1977) 139 CLR 161
Black v Lipovac [1998] FCA 699 (Unreported) 4 June 1998
Van Gervan v Fenton (1992) 175 CLR 327
Kars v Kars (1996) 187 CLR 354
Grincelis v House (2000) 201 CLR 321
Rosniak v The Government Insurance Office (1997) 41 NSWLR 608
GIO (NSW) v Mackie (1990) ATR 81-053
Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518
Lainie Radovanovic bhnf Anton Radovanovic
Bryan Cutter and Ors [2001] ACTSC 16 (1 March 2001)
No. SC 1005 of 1985
Judge: Gray J
Supreme Court of the ACT
Date: 19 March 2004
IN THE SUPREME COURT OF THE )
) No. SC 1005 of 1985
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:LAINIE RADOVANOVIC by her next friend and father
ANTON RADOVANOVIC
Plaintiff
AND:BRYAN CUTTER
First Defendant
AND:AUSTRALIAN CAPITAL TERRITORY
Second Defendant
ORDER
Judge: Gray J
Date of Judgment: 19 March 2004
Place: Canberra
THE COURT ORDERS THAT:
There be judgment for the plaintiff against the first defendant.
The plaintiff’s claim against the second defendant be dismissed.
The first defendants cross claim against the second defendant be dismissed.
RADOVANOVIC v CUTTER – Headings
HeadingParagraph No.
Introduction [1]
The particulars of negligence [4]
The plaintiff’s summary of allegations [7]
The factual issues [9]
The circumstances giving rise to the claim [10]
High risk pregnancy [12]
The ultrasound [13]
The Shirodkar suture [15]
The first bleed [16]
The admission to hospital [18]
The telephone call to Dr Cutter [19]
Dr Cutter’s attendance at the hospital [22]
The events that gave rise to the plaintiff’s injury [24]
Vasa praevia [26]
Timing of the events before the Caesarean section [27]
Dr Cutter’s notes of the events [28]
Knowledge of the bleed at home [32]
Placenta praevia [39]
Expert evidence on management [41]
The engagement of the head [45]
The decision to rupture the membranes [49]
Abdominal palpation [52]
Duty of care on the hospital [58]
The duty to ascertain the fact of the large bleed at home [61]
Dr Cutter’s position [68]
The possible diagnosis of placenta praevia [71]
Expected duration of labour [82]
Other aspects of alleged negligence before Mrs Radovanovic’s
admission to hospital [84]
The cervical suture [85]
A repeat ultrasound [89]
After the decision to rupture the membranes; delay in proceeding
to Caesarean section [91]
The timing of the brain damage to the plaintiff [98]
Dr Harbord’s initial view [100]
Dr Antony’s view [101]
Discussion of views on the timing of the brain damage [103]
Resolution of the time at which brain damage occurred [111]
The duty of care [115]
The duty of care in this case [119]
Breach of duty of care [124]
The scope of the duty of care and issues of remoteness [128]
Association of vasa praevia and placenta praevia [132]
Foreseeability of the kind of damage [135]
Damages [142]
The injuries sustained [143]
The video [147]
Life expectancy [149]
Dr Harbord’s evidence on life expectancy [154]
Dr Buckley [155]
Dr Bowers [156]
Professor Oakeshott [158]
Dr Antony’s evidence on life expectancy [160]
The studies on life expectancies [166]
The conclusion as to life expectancy [170]
Relevant dates and interest calculations [175]
Delay [177]
General damages [179]
PAST COSTS
Past costs [181]
Medical and hospital expenses [182]
Podiatry [188]
Clothing, equipment and aids [190]
Home modifications [201]
Travelling expenses [211]
Respite care (not paid by the defendants) [212]
FUTURE COSTS
Medical and hospital expenses – [216]
Future pharmaceutical expenses [228]
Future physiotherapy [229]
Speech pathology [230]
Occupational therapy [231]
Music therapy [233]
Psychology [234]
Podiatry [235]
Dentistry [236]
Clothing equipment and aids [237]
Future home modifications [254]
Motor vehicle modifications and transport [263]
Increased holiday costs [268]
Past Griffiths and Kerkemeyer damages [271]
Future Care [277]
Loss of earning capacity [287]
Fund management [294]
Costs [295]
Proposed orders [298]
Introduction
Lainie Radovanovic, who is now 24 years of age, sues by her next friend, her father Anton Radovanovic. She was born with cerebral palsy. The first defendant, Dr Brian Cutter, was the specialist gynaecologist who attended the plaintiff’s mother, Cherie Radovanovic. The second defendant was responsible for the Woden Valley Hospital where the plaintiff’s mother attended for the birth. The plaintiff was born at the hospital on 28 January 1980.
It is not in contest that the plaintiff’s cerebral palsy is attributable to the brain damage that she sustained at her birth. What is in contest is whether the first and second defendants were negligent in their management and treatment of the plaintiff and her mother and whether any failure by them of their duty of care caused that brain damage.
Proceedings were instituted in this matter in 1985. Over this considerable period of time since the proceedings were instituted the particulars of negligence alleged against the defendants have been extensively amended and many of the allegations that may have constituted negligence have not been pursued. The plaintiff’s counsel now put their case in somewhat narrower terms than the particulars which remain, but I do not understand that the wider propositions involved in those particulars to have been abandoned but rather to still remain relevant to the way that the plaintiff’s counsel summarise their allegations.
The particulars of negligence
As far as the first defendant, Dr Cutter, is concerned, the particulars are:
·Failing within a reasonable time or at all to diagnose foetal distress in the Plaintiff and hence to decide to deliver the Plaintiff immediately by Caesarean section (Statement of Claim 7(a)).
·Conducting an inadequate examination of the Plaintiff’s mother shortly prior to the birth when he knew or ought to have known that emergency procedures would or might become necessary (7(i)).
·Given the mother’s history, failing to arrange for admission of the mother for the Caesarean operation as soon as she suffered the first antepartum haemorrhage (7(k)).
·Failing to arrange for a Caesarean birth immediately upon the occurrence of the second antepartum haemorrhage (7(o)).
·Failing to ensure that there were available emergency facilities for operating, including blood transfusion at the time of conducting a per vaginum examination (7(q)).
·Failing to recognise the progressive dilation of the cervix to 2-3 centimetres by 27 January 1980 by regular examination during the later stages of pregnancy (7(aa)).
·Failing to order repeat ultrasound at 18-20 weeks gestation and thus failing to detect the possibility of placenta praevia (7(ab)).
·Failing to order or perform ultrasound examination of the mother late in pregnancy and/or following the mother’s first antepartum haemorrhage (7(abb)).
·Failing to attend upon the mother immediately upon her admission to hospital (7(ac)).
·Failing to take a full and accurate history of the first antepartum per vaginum haemorrhage suffered by the mother (7(ad)).
·Failing to adequately consider the possibility of a placenta praevia which necessitated the access to an operating theatre at extremely short notice after the on-set of labour (7(af)).
·Failing to ensure that the mother was taken to an operating theatre upon the on-set of labour to carry out an immediate Caesarean and/or to carry out a vaginal examination to confirm or exclude the possibility of a placenta praevia as the cause of the first antepartum haemorrhage (7(ag)).
·Rupturing the mother’s membranes when in labour in the absence of exploring the possibility of a placenta praevia and in the absence of having an operating theatre ready (7(ah)).
·Rupturing the mother’s membranes and conducting a vaginal examination in the labour ward rather than the operating theatre (7(ai)).
·During the course of the mother’s admission and particularly at the time of the rupture of the membranes, failing to consider the possibility of placenta praevia notwithstanding his belief that the Plaintiff’s head was engaged (7(ak)).
·During the course of the mother’s admission and particularly at the time of the rupture of the membranes, wrongly excluding, or failing to consider, a diagnosis of placenta praevia on the mistaken belief that the Plaintiff’s head was permanently engaged (7(al)).
As far as the second defendant, the hospital, is concerned, the particulars relied upon are:
· Failing to alert the First Defendant that the first antepartum haemorrhage suffered by the mother was painless and significant (and thus putting the First Defendant on notice of possible placenta praevia) (7(ab)).
· Failing to accurately convey the mother’s history of the first antepartum haemorrhage to the First Defendant (7(ac)).
The precipitating factor which caused the plaintiff’s mother to attend the hospital was the antepartum haemorrhage that she sustained at home on the evening of 27 January 1980 which is referred to in the plaintiff’s summary of allegations.
The plaintiff’s summary of allegations
In the plaintiff’s written submissions, the allegations against Dr Cutter are summarised as:
(a) Given the significant nature of the first antepartum haemorrhage (APH) and the consequent presumption of placenta praevia in the context of a high risk pregnancy, failing to arrange an immediate Caesarean section when notified of that bleed;
(b) Even if it were reasonable, in the context of a high risk pregnancy, to consider vaginal delivery and augmentation of labour with artificial rupture of membranes (AROM), failing first to exclude a placenta praevia by conducting a digital vaginal examination in an operating theatre set up to proceed, if required, to an immediate Caesarean section before then proceeding to vaginal delivery and AROM; and
(c) Unreasonably delaying the decision to proceed with the Caesarean section after rupturing the membranes at 11.55 pm on 27 January 1980.
Those allegations against the hospital are summarised as:
· Failure of midwives Alexander and Patacca to inform Dr Cutter fully about the first APH and, if it is accepted that all information was provided, failure of the midwives to provide the information in a way which would not mislead Dr Cutter into believing that the first APH was insignificant.
The factual issues
The passage of time has immensely complicated the factual issues in this case. The difficulties of imperfect memory and the deficiencies of the contemporaneous records, particularly those which Dr Cutter acknowledges he should have made, makes formidable the task of determining the factual matrix against which the duty of care and any causative effect of what might be argued to be a breach of that duty. If proper records were available, it may have been easier to support the customary practice which was so heavily relied upon to support Dr Cutter’s actions. Without those records the resolution of this matter relies upon testimony that is unsupported by any external, evidence but rather requires a best estimate being made of whether the witness would have followed the usual practice that the witness customarily followed in such circumstances.
The circumstances giving rise to the claim
At an early stage in her pregnancy, Mrs Radovanovic was referred by her general practitioner to Dr Cutter. Dr Cutter had graduated with an MBBS in 1961 and had commenced practising as a specialist obstetrician/gynaecologist at the Crown Street Hospital for women in Sydney as a resident medical officer and later a Registrar from 1965 to 1968. He became a member of the Royal College of Obstetricians and Gynaecologists in London in 1968. He commenced private specialist practice in Canberra in December 1970. He was a visiting medical officer at each of the Canberra Hospitals from that time.
On 26 June 1979, Mrs Radovanovic first saw Dr Cutter. She had been referred by her general practitioner but she presented with a letter from Dr Deck, a specialist gynaecologist. Her past obstetric history included a premature birth in November 1970 after 46 hours of labour, and later a spontaneous miscarriage and then, consequent upon a bus accident, a very late miscarriage or early premature birth in respect of which she had complications and required a blood transfusion. In respect of her last pregnancy, she had a Shirodkar suture put in to deal with a suspected incompetent cervix after 16 weeks of pregnancy. A month later, Dr Deck had curetted her and diagnosed a missed abortion. Dr Cutter’s notes made at the time of her visit also recorded a past history of pancreatitis which, if confirmed, showed an increased risk of diabetes developing in a subsequent pregnancy.
High risk pregnancy
It is common ground that Mrs Radovanovic’s pregnancy was “high risk”. That, at the least, meant that special care and attention should be given to anything untoward that occurred to her in the course of her pregnancy. On this aspect, there seemed general agreement by the parties and by all the experts called. This was acknowledged by Dr Cutter. One early circumstance that required attention was the suspected incompetent cervix and that was dealt with by Cr Cutter also inserting a suture to prevent dilation of the cervix during this pregnancy. However, no other untoward circumstance occurred until the occurrence which brought Mrs Radovanovic into the hospital. I will later discuss the high-risk pregnancy in that context.
The ultrasound
At an early stage, Dr Cutter ordered an ultrasound. That was performed in the first trimester of pregnancy on 5 July 1979. The Ultrasonographer, Dr Richard Picker, the Director of the Ultrasound Department, Royal North Shore Hospital in his report suggested a gestational age of seven weeks. The report stated, “Repeat study at 18–20 weeks may be advisable to follow foetal growth and more accurately assess foetal gestational age”.
No subsequent ultrasound was, in fact, ordered by Dr Cutter. The plaintiff maintains, as a particular of negligence, the failure to do so either then or on Mrs Radovanovic’s ultimate admission to hospital on the basis that such a test at that time had the capacity to indicate the position of the placenta. It is said that the presence of the placenta in the lower uterine sector of the uterus could have had significant consequences for the way that Mrs Radovanovic’s pregnancy was to be managed.
The Shirodkar suture
On 30 August 1979 (although his notes record 29/8), Dr Cutter inserted a suture to prevent dilation of Mrs Radovanovic’s cervix. The suture was described as a Shirodkar suture, although there was debate as to whether it fulfilled that description by the medical experts. What Dr Cutter did was described by him in detail. The suture actually inserted was of type less prone to failure than perhaps the type of one described as a MacDonald suture and that is a more important aspect than its classification. A very significant issue is whether the suture could have been the cause of the bleeding that precipitated Mrs Radovanovic’s admission to the hospital. Another aspect is whether the suture should have been regularly examined in the later stages of the pregnancy and the consequences that might have ensued had it been.
The first bleed
On 27 January 1980, at about 10.00 pm, after finishing dinner with friends, Mrs Radovanovic laughed and felt a sudden gush of blood. She had blood seeping through her shorts and running down her legs onto the carpet. She got towels, showered and was taken to the hospital. Her evidence was that when she was in the shower she was still bleeding but it was more like a menstrual flow. She was still bleeding a little after the shower and she used a sanitary pad to contain it. Her friend, Mrs Corvo, confirmed that there was a lot of blood. She saw it and it was she who rinsed out the towel and Mrs Radovanovic’s clothing.
I have no hesitation in accepting Mrs Radovanovic’s evidence on this and the other topics upon which she gave evidence. She was an impressive witness and despite the passage of time, the nature of the event and the way that she gave her evidence indicated a clear and unmistaken recall of the events. The question of the extent of the blood loss plays a vitally important part in the resolution of this matter, not only because Dr Cutter says that he was not told of it, but also because the expert evidence of Professor Bennett and Dr Patterson, called for the defence, is largely dependent on the assessments that they made on the basis of their presumption that Dr Cutter knew the extent of the blood loss.
The admission to hospital
When Mrs Radovanovic was admitted to the Canberra Hospital at 10.30 pm on that night, she was attended by a trained experienced midwife, Sister Alexander. Sister Alexander now has no recollection at all of Mrs Radovanovic’s admission. Her evidence was based solely on her usual practice and the notes she made in the hospital records on that night. That is hardly surprising as it seems that she was first asked to recall these events about 17 years after they had occurred and that she had ceased duty about half an hour after Mrs Radovanovic was admitted and before Mrs Radovanovic had commenced labour.
The telephone call to Dr Cutter
The notes that Sister Alexander made on the admission form indicate that she telephoned Dr Cutter at 10.45 pm. By reference to those notes and to her usual practice, she was able to say that she would have informed the doctor that Mrs Radovanovic had been admitted with bright blood on her sanitary pad, blood pressure 110/80, a pulse of 80, that foetal heart sounds were present with a foetal heart rate of 132 beats per minute and that there were no contractions. The notes also contain the notation “not palpated” and Sister Alexander said that she would not have told the doctor of the position of the baby because she did not palpate the patient. Palpation involves feeling the patient’s abdomen with a view to ascertaining the position of the baby’s head. Under the heading “History”, this notation appears –
H/O L/A – (sudden gush) of blood loss @ home
OA – S/A bright blood on pad
Sister Alexander explained those notations as meaning -
History of large amount (sudden gush) of blood loss at home.
On admission – small amount bright blood on pad.
Based upon that notation and her usual practice, Sister Alexander said that she would have told the doctor that the patient had a large blood loss at home and present on her pad at the moment there was a small amount of bright blood.
Dr Cutter, who had been in bed at the time he received the call, consistently maintains that he was never told of the large bleed at home. In the notes that he made after the events of that evening, he recorded an “APH” (antipartem haemorrhage) which he said could be taken to mean a bleed as little as a “show”. Dr Cutter said that had he been told of a large blood loss, he would have immediately ordered cross-matching of blood and come into the hospital. Instead, his instruction to Sister Alexander was for him to be informed if any contractions occurred or there was any excessive bleeding and he also instructed that the patient’s blood be cross-matched in the morning. There is a note in a red and blue biro to that effect in Sister Alexander’s handwriting in the hospital notes. They are clearly the instructions that he gave.
Mrs Radovanovic gave evidence that she heard what Sister Alexander said to Dr Cutter in the course of that telephone call. Her recollection is that Sister Alexander told Dr Cutter that she (Mrs Radovanovic) was there, that she also said that Mrs Radovanovic had said that she had a heavy bleed at home, however there was only a slight bleed at the time and that she had no pain. Mrs Radovanovic further said that she felt put out because the tone that the nurse had used when she spoke to Dr Cutter was that she (Mrs Radovanovic) had said that she had had a heavy bleed at home as if she had imagined it. Although it was suggested that the set-up of the hospital would not have permitted Mrs Radovanovic to overhear the conversation that took place between Sister Alexander and Dr Cutter, I consider that I can rely upon this evidence from Mrs Radovanovic. There is a combination of factors at play here. What I suspect was the reticence of Sister Alexander to disturb Dr Cutter in relation to a patient who had presented without contractions and with no abnormal signs, taken with Dr Cutter’s reliance upon and respect for the judgment of Sister Alexander as an experienced and competent midwife. It was put in argument that these factors may have minimised or did not register in Dr Cutter’s mind the significance of the event which brought Mrs Radovanovic into the hospital and I am inclined to think that may have been the case. I consider that is significant that Sister Alexander did not, on Mrs Radovanovic’s admission to the hospital, palpate her abdomen to ascertain the baby’s position presumably because of the history of the bleed. That indicates positive consciousness of the information concerning the heavy bleed on Sister Alexander’s part. Further, no evidence was given by either Sister Alexander or Dr Cutter as to the conversation that they had which indicated the position of the baby on admission although this information would normally be expected to be given and received. In the event, the consequence was that Dr Cutter did not know of or consider the significance of the bleed which had brought Mrs Radovanovic to the hospital, nor did he attend the hospital as a consequence of that telephone call.
Dr Cutter’s attendance at the hospital
About half an hour after the telephone call that Sister Alexander had made to Dr Cutter, at about 11:15pm, Mrs Radovanovic commenced to feel contractions. Dr Cutter was again contacted by telephone and within a short time he attended at the hospital.
Sister Alexander had completed a hand-over to another midwife who had come on duty, Sister Patacca. In the course of that handover she said that she would have described to Sister Patacca the history of bleeding that had occurred. In the patient’s progress notes, Sister Alexander had noted a history of a large PV (per vagina) bleed at home. Whether Sister Patacca had that information verbally from Sister Alexander, or as I think could have been the case, from the progress notes, I am satisfied that at the time Dr Cutter came to the hospital she had that information. That is important because at no stage does it appear that Dr Cutter sought from her that history, nor did he seek it from Mrs Radovanovic, nor did he consult the patient’s progress notes which would have revealed that history. I accept that Dr Cutter’s usual practice on attending the hospital was to make full enquiry of both the patient and the attending midwife, but in light of the fact that he maintains that he was unaware of the extent of Mrs Radovanovic’s bleed, on this occasion, he could not have done so. I take this to be a failure to ascertain what he should have ascertained either from his patient, the attending midwifes or the hospital notes. The effect of this failure goes to the heart of the determination of liability in this case.
The events that gave rise to the plaintiff’s injury
The practical effect was that Dr Cutter treated Mrs Radovanovic as a patient in labour in a standard pregnancy with the only complication being that she had a cervical suture in place. He took it as his duty to remove the suture and to proceed to delivery. Mrs Radovanovic had been placed on a table in the labour ward with her feet in stirrups. Having cut out the suture, Dr Cutter ruptured the membranes to facilitate the labour. That action led to disastrous consequences. When the membranes ruptured, there was a gush of liquor and blood which was Dr Cutter described as “bright, fresh and abnormally large and there was liquor with it”. At this stage, Mrs Radovanovic was lying on her back with her feet in the stirrups. The midwife heard “very, very slow” foetal heart sounds. Mrs Radovanovic was taken down from the stirrups and the doctor and nurse attempted to listen again for foetal heart sounds. They were possibly assisted by a trainee nurse. There were two Sonicaids used and the foetal heart sounds were again heard, although described again as “very slow”, and a decision was made to do a Caesarean section.
The diagnosis made by Dr Cutter immediately after he ruptured the membranes was that of a rupture of a vasa praevia. That rare condition occurs when the umbilical vessels insert into the foetal membranes. If they run in that part of the membranes which overlies the cervix, they tear at the time that the membranes are ruptured. The bleeding is from the foetus, not from the placenta, and places the foetus in great jeopardy.
Vasa praevia
All the experts called by both the plaintiff and the defendants agreed with Dr Cutter’s diagnosis. Of the plaintiff’s experts, Professor Beischer gave the most detailed description and he gave evidence that in about 1:1000 cases the foetal vessels, rather than inserting into the middle of the placenta, insert on the actual membranes around the placenta and run between the two membranes to lie in front of the presenting part (in this case the baby’s head). Another of the plaintiff’s witnesses, Dr Beavis’ was of the view that the incidence of vasa praevia was 1:3000 but on any view he said that it was an uncommon complication. He described the condition as the insertion in a velamentous fashion (a veil-like spreading) by the foetal vessels spreading into the placenta. If the membranes are ruptured the vessels tear and the baby bleeds. As a generalisation Dr Beavis said that the amount of blood loss initially is difficult, if not impossible, to estimate because of the liquor that is mixed in with it. Professor Beischer was of the view that vasa praevia was almost invariably associated with placenta praevia and this is an issue which I deal with later. All of the experts were agreed that there is generally a very high mortality rate for the foetus. In this case, it became common ground that the exsanguination consequent upon the rupture had the disastrous consequence of causing the plaintiff’s cerebral palsy.
Timing of the events before the Caesarean section
Dr Cutter performed the artificial rupture of the membranes at about 11.55 pm. Although in his evidence Dr Cutter thought that the time that he spent listening for foetal heart sounds before making a decision to perform the Caesarean operation was about 10 minutes, his notes and all the other indications seem to suggest that it was more like 20 minutes. The Caesarean section was commenced at 12.35 am on 28 January 1980 and the plaintiff was delivered within five minutes at 12.40 am. The plaintiff was born with cerebral palsy. It is accepted on all sides that the exsanguination which occurred consequent upon the rupture of the vasa praevia directly caused that condition. That is because the brain was deprived of blood. However, the question of whether the brain damage occurred within a relatively short time of the rupture of the vasa praevia or somewhat later, consequential upon the cardiac arrest which the plaintiff suffered shortly after her birth, was the subject of competing expert evidence from Doctors Harboard and Anthony and I shall later deal with the effect and significance of that circumstance.
Dr Cutter’s notes of the events
Understandably, with the passage of time Dr Cutter and the two midwives, Sisters Alexander and Patacca, could only refer to their usual practice where their memory was unassisted by notes made at or near the time. I have referred to the notes made by Sister Alexander concerning Mrs Radovanovic’s admission and based on those notes I consider it unlikely that Dr Cutter was not informed of the matters contained in those notes. Dr Cutter’s contemporaneous note making was however woefully inadequate, especially having regard to the significance of the event. His relatively contemporaneous subsequent written explanations are also deficient in their lack of explanation of matters that I consider should have been addressed.
Dr Cutter’s own clinical records, written up shortly after the event, record:
28.1.80 Admitted with APH [ante partem haemorrhage] Shirodkar Suture removed ARM [artificial rupture of membranes] [diagnosis] Vasa Praevia FHS [foetal heart sounds] [descending] 40 LSCS [lower Caesarean section] GA Major [the anaesthetist]. Baby exsanguinated and given transfusion in theatre Repeat ultrasound later by A Crawford. Apgar 1:1.3 Lippes loop had perforated thro fundus. Not confirmed on ultrasound left ovarian cyst, [therefore] left oophorectomy [excision]. Note IUCD [intro uterine contraceptive device] in situ.
On 24 March 1980 Dr Cutter had a consultation with Mrs Radovanovic as part of the post-natal check up. Mr Radovanovic also attended that consultation. Both Mr and Mrs Radovanovic raised matters that they said that the paediatrician had told them. Dr Cutter made notes of this conversation and those notes, inadequate though they still might said to be, were the most detailed recollection that exists as far as Dr Cutter is concerned concerning the events of the plaintiff’s birth. These notes were said to have been compiled without reference to the hospital notes although some of the detail of what is set out as to what Dr Cutter was told on Mrs Radovanovic’s admission would seem to indicate otherwise. I do not doubt that Dr Cutter now believes that he recalls that detail but I think it more likely that over time he has come to believe it rather than to recollect it. If he did access the hospital notes for the purposes of this note he conspicuously fails to account for why he did not know of the heavy bleed at home to which Mrs Radovanovic refers or acknowledge that he was unaware of it. I set out in full the notes that Dr Cutter made consequential upon that consultation:
24/3/80Seen for post natal check where I was accused of negligence on the following grounds:
1.Because Mrs Radovanovic was a high risk she should have been an inpatient near term.
Note ultrasound on 5.7.79 » 7/52 gestation.
2.That Mrs Radovanovic bled heavily at home on night of admission and that I should not have relied on a trained midwife’s assessment but should have come immediately to the hospital on her admission. They stated that the paediatrician told them.
(a)that a heavy bleed could not have occurred from a cervical suture.
(b)that the long delay between the commencement of the haemorrhage from the baby and the caesarean section caused the brain damage to the child; and
(c)If he knew how bad the baby was he would not have resuscitated it.
My comments are made in retrospect and my recollections of the time prior to being called are hazy. Certainly I can recall the details after being called to see the patient in great detail because of the drama and tragedy of the event which followed.
The patient was admitted to the delivery suite at 10.30 pm on 27 January 1980 and I was notified at 10.45 pm and was told of her presence and that:
(1)her BP [blood pressure] was 110/80;
(2)pulse 80/min;
(3)FHS [foetal heart sounds] 132/min;
(4)bright blood on sanitary pad; and
(5)that there were no contractions.
I made the comment that if the blood loss increases or if the patient commences having contractions to notify me immediately. Some time later and I do not know what the time was I was notified that uterine contractions had recommenced.
I immediately got out of my bed and went to the delivery suite and proceeded to do what I normally do in patients who have Shirodkar sutures.
The patient was noted to be in no distress and the FHS were 130/min. After scrubbing up the patient’s legs were placed in stirrups so that she was in the lithotomy position.
She was examined with a Cusco [speculum] position (sic) and the cervix was noted to be 2-3 cms in diameter, and there was some blood in the vagina, which I felt was coming from the cervix. The Shirodkar suture was cut out under vision and I proceeded to do a PV [vaginal examination]. At PV she had a bulging bag of membranes so I artificially ruptured them in an effort to get the patient into good labour. This is my routine management of such cases with a Shirodkar suture.
After rupture of the membranes there was a gush of bright blood. We immediately listened to the FHS [foetal heart sounds] and they were astoundingly at 40/min. We proceeded to lower the legs from the stirrups so that the patient was flat on her back and we relistened to the foetal heart sounds. We could not hear them despite using the sonic aid and the usual foetal stethoscope. After about twenty minutes we finally felt a movement and heard the foetal heart sound which once again was 40 beats/min. At this time we immediately proceeded to caesarean section without delay and delivered a female baby which appeared to be exanguinated and had an Apgar [Apgar score, a measurement of the condition of a newly born infant] rating of 1. The baby was resuscitated by the anaesthetist (Dr Major) until the paediatrician arrived 10 minutes later.
The caesarean section was commenced at 12.35 am and this was despite the fact that theatre staff and anaesthetist had to come to the hospital. Also at the Caesarean section it was noted that Mrs Radovanovic had an intrauterine device which had previously perforated the top of the uterus, and a left ovarian cystic mass.
The intrauterine device was removed and the left ovary was taken out for a dermoid cyst. Post operatively the mother’s course was uneventful.
At the time I was obviously distressed and on analysis of the situation I considered that I would manage a similar case in the same way.
The diagnosis of Vasa Praevia was made as soon as the membranes were artificially ruptured. It was not considered before as it is not uncommon for Shirodkar suture to bleed and there was no recognisable foetal distress prior to the ARM. [artificial rupture of membranes].
Mr Radovanovic asked me why I did not proceed immediately from ARM to LSCS [lower Caesarean section]. I told him that as we could not hear foetal heart sounds despite every means available to us I did not feel that I could risk a possibly dangerous operation if I thought the baby was dead.
Mr Radovanovic persisted in saying that the bleeding seen at home came from the baby despite me saying that there was no foetal distress prior to rupturing the membranes and that there was a considerable bright haemorrhage on rupturing the membranes. Also prior to the ARM it was considered that the bleeding was coming from the cervix.
On 5 February 1980 he had written to Dr Deck, a specialist obstetrician, practising in the Australian Capital Territory who had referred Mrs Radovanovic to him. That letter said:
We have had a disaster with Mrs Radovanovic.
As you know she had a poor obstetrical history and I inserted a Shirodkar suture under general anaesthetic because of cervix dilating at 15 weeks gestation. The pregnancy was uneventful until she was admitted to hospital on the 28th January at 39 weeks gestation with an APH which I presumed to be coming from the suture as she was in early labour. We removed the suture, the bleeding continued, I ruptured the membranes and within 5 minutes the foetal heart sounds were down to 40 and the diagnosis of vasa praevia was made. Despite the fact that it was 1am on a Sunday morning there wasn’t too much delay in getting to theatre but it wasn’t without its hassles. We did a caesarean section and delivered an exsanguinated baby with an Apgar of 1. Tony Crawford was in the theatre and infused the baby at that time and although the baby is alive it appears to have severe neurological damage and frankly I hope it doesn’t survive. I feel that I didn’t do too much good last Sunday.
She had a Lippi’s loop which had perforated the uterus and was sitting up like a single hair on a bald head and she also had a left ovarian cyst which seemed to be a mucinous cystadenoma.
Apart from the caesarection I did a left oophorectomy.
Mrs. Radovanovic is in Royal Canberra Hospital with the baby and will be transferred home in a couple of day’s time.
At the time he wrote Dr Cutter had had access to the hospital notes yet there is no elaboration as to why he should have presumed the “APH” to be coming from the suture when as he now says, he was not considering a large blood loss. Nor is there any indication that such a presumption was made on the understanding of only a small blood loss. In his evidence he agreed that the reference to Mrs Radovanovic being in early labour was wrong. The letter also quite curiously refers to the bleeding continuing after he removed the suture when this is not the way Dr Cutter described the events in his evidence before me.
Knowledge of the bleed at home
I consider firstly whether either of the defendants breached their duty of care to the plaintiff in respect of the fact that Dr Cutter was unaware of the fact of the history of a significant antepartum haemorrhage as the precipitating factor that brought Mrs Radovanovic into the hospital. A central matter following on is whether Dr Cutter was entitled to proceed as he did in dealing with Mrs Radovanovic having regard to the fact that at the time that he dealt with her he says that he was unaware that she had a large bleed at home which was in fact painless.
As I have said, Dr Cutter proceeded on the basis that he had no knowledge of a large bleed at home. It was suggested by counsel, that the knowledge was not communicated to Dr Cutter by Sister Alexander in such a way as to perhaps necessarily bring it to his immediate attention. In considering that aspect I accept Dr Cutter’s evidence that had he known of this bleed, he would have immediately come to the hospital and before doing so he would have ordered cross-matching of blood. He did neither and this is certainly consistent with this matter not having impacted upon him.
However, an aspect that points to Dr Cutter not paying the attention that he should have to Sister Alexander’s report to him is the knowledge that he had of Mrs Radovanovic’s obstetric history. He might have thought it justifiable for Mrs Radovanovic to attend the hospital on the first “show” of blood. But if so he could have been expected to inquire whether this in fact was the case or whether there was something, apart from the “show”, that had brought her to the hospital. After all, in every other aspect there was no other reason for her to present herself at the hospital at that hour of night when she was clearly not experiencing contractions. Particularly having regard to Mrs Radovanovic’s evidence of what she overheard of the telephone conversation between Sister Alexander and Dr Cutter I am satisfied that Sister Alexander did that which she was required to do and that is to report to Dr Cutter the history of the large bleed at home.
I am also satisfied that Sister Pattaca had obtained the information about the large bleed at home on hand-over from Sister Alexander, who had left the hospital before Mrs Radovanovic came into labour, and that the hospital notes to which she could have had regard, reflected the history of a large amount “(sudden gush) of blood loss” at home. Whilst Dr Cutter’s usual practice was to talk to the midwife and to the patient to obtain the presenting history, he does not remember doing so in this case. I would not regard it as sister Pattaca’s responsibility to bring that circumstance to Dr Cutter’s attention unless she was asked about Mrs Radovanovic’s condition. He maintains that whatever Sister Pattaca did tell him, she did not tell him anything about a large bleed at home. That may be so, but I am satisfied that that is because he did not seek the information, which could have been provided by either Sister Pattaca, Mrs Radovanovic or the hospital notes. It seems to me that that was his responsibility and in that he failed.
I have referred to Mr and Mrs Radovanovic seeing Dr Cutter on 24 March 1980, within a month of the event, to seek an explanation of what had happened on that night. Dr Cutter records in his notes on that consultation that the allegation was made that Mrs Radovanovic “bled heavily at home on night of admission”. It is, in my view, significant that nowhere in his noted response to the allegations made (which forms the basis of all his subsequent statements of what took place on that night) does he deal with the consequence of this allegation as far as the duty of the midwives is concerned. At the end of his notes is this sentence, “Also prior to the ARM it was considered that the bleeding was coming from the cervix” which might be taken to be a reference to Dr Cutter’s understanding of the course of the previous bleed which brought Mrs Radovanovic to the hospital. If that observation was predicated on Dr Cutter’s understanding of a small bleed it, at least deserved some reconsideration on the basis of Mrs Radovanovic allegation on 24 March 1980 that it has been a large bleed. Whilst I would not necessarily expect a notation to the effect that Dr Cutter had been misled by the midwives, I would expect more justification or explanation responsive to Mrs Radovanovic’s assertions than were recorded by Dr Cutter. As I have said those assertions were that “Mrs Radovanovic bled heavily at home on the night of admission” and his note also that the paediatrician had told Mr and Mrs Radovanovic that “a heavy bleed could not have occurred from a cervical suture”. The notes that Dr Cutter then made do not justify or seek to explain Dr Cutter’s view that he had proceeded that night on the basis of only a small loss of blood as the explanation for Mrs Radovanovic seeking admission to the hospital.
I have also noted that in the letter to the referring specialist, Dr Deck, written on 5 February 1980, Dr Cutter had referred to Mrs Radovanovic’s admission to hospital “with an APH [antepartum haemorrhage] which I presumed to be coming from the suture as she was in early labour”. As I have indicated that explanation also does not sit well with the description of the bleed in the hospital notes of “large PV [per vaginum] bleed at home” of which Dr Cutter says he was by then aware. It also does not sit well with Dr Cutter’s own knowledge of bleeding from cervical sutures of the nature that he had inserted and which, he said, he had only experienced in circumstances where there had been an onset of labour which could be assigned to contractions putting pressure on the stitch. Mrs Radovanovic was admitted before her contractions had commenced. It seems to me that Dr Cutter has always closed his mind to the probability that he was informed of the large bleed and has chosen to reject such a possibility. I am satisfied that he was told of this fact by Sister Alexander.
I am satisfied that the large bleed at home suffered by Mrs Radovanovic was adequately drawn to Dr Cutter’s attention and importantly, that Dr Cutter failed to make proper enquiry as to this aspect in respect of his patient and that factor had a direct bearing on his actions. The effect, as far as Dr Cutter was concerned, was to not give rise to the possibility of placenta praevia of any degree as a differential diagnosis in his management of Mrs Radovanovic.
Placenta praevia
The fact that Mrs Radovanovic had a large bleed was an important aspect for her diagnosis and management. The only concerning factor in Mrs Radovanovic’s history when she presented to the hospital was the large blood loss. As far as diagnosis is concerned, as was stressed throughout the trial of this matter, it is axiomatic that, any painless bleeding in the second half of pregnancy is assumed to be due to placenta praevia until proved otherwise. Placenta praevia is a condition in which the placenta is abnormally located in the lower uterine segment of the uterus. The placenta encroaches upon the os (the opening in the vaginal part of the neck of the uterus). In a standard text book available at time of these events to which I was referred, Beischer N A and Mackay E V Obstetrics and the New Born for Midwives and Medical Students Holt-Saunders Pty Ltd, 1976, a book co-authored by Professor Norman Beischer, one of the expert witnesses called by the plaintiff, the types of placenta praevia are described at pages 119-120 as follows –
Types
(i) First degree. Part of the placenta lies in the lower segment, but does not reach the internal os (lateral). (ii) Second degree. The lower margin of the placenta reaches the internal os, but does not cover it (marginal). (iii) Third degree. The placenta covers the os when closed, but not completely when it is dilated (partial). (iv) Fourth degree. The placenta lies centrally over the os (central).
The significance of the different types lies in the increasing morbidity and mortality to mother and foetus as the placenta becomes more centrally placed. As the lower segment of the uterus forms in the latter half of pregnancy, the placenta tends to become sheared off: the more centrally it is situated over the os, the earlier the haemorrhage and the greater the amount.
The placenta may be implanted on the front (anterior) surface of the uterus or the back (posterior) surface of the uterus. The position of the baby depends on the site of implantation of the placenta. Where a haemorrhage occurs referrable to this condition there may, at any stage, be a very profuse haemorrhage. The outstanding feature of placenta praevia is a haemorrhage without significant abdominal pain or tenderness.
Expert evidence on management
The steps taken by Dr Cutter in respect of his management of Mrs Radovanovic were the subject of detailed expert evidence from medical practitioners whose qualifications and experience, both in practice and academically in the field of obstetrics, were unchallenged. I also place the defendant, Dr Cutter, in that category although, for obvious reasons, his opinions and conclusions must be weighed in the context of him being a party to these proceedings. The plaintiff called Professor Norman Beischer, the present director and chairman of the Medical Research Foundation for Women and Babies and co-author of a standard text-book, Obstetrics and the New Born for Midwives and Medical Students (supra), a distinguished academic and teacher, Professor Ian MacGillivray, a visiting Professor of the Departments of Obstetrics and Child Health at the University of Bristol and who had been Regis Professor of Obstetrics and Gynaecology at the University of Aberdeen between 1965 and 1984 during which time he was visiting Professor at a number of universities and institutions including the Royal North Shore Hospital, Sydney. He too was a co-author of a textbook, Combined Text Book of Obstetrics and Gynaecology, published in 1976. In addition, the plaintiff relied upon reports of Dr Edward Beavis and the video cross-examination of Dr Beavis on those reports conducted when he was in hospital suffering from polyneurone disease, shortly before his death. Dr Beavis was a very experienced and well-renowned obstetrician.
On this aspect, the first defendant supported by the second defendant called Professor Michael Bennett, Professor of Obstetrics and Gynaecology, Head of the School of Obstetrics and Gynaecology, University of New South Wales, Royal Hospital for Women at Randwick. The first defendant also called Dr William Patterson, at present a consultant obstetrician and gynaecologist at the Royal North Shore Hospital in Sydney, who has had considerable practical experience as a specialist obstetrician and gynaecologist since 1962 and has been a clinical teacher with the University of New South Wales from that date.
The views as to the proper management of Mrs Radovanovic held by the plaintiff’s witnesses are diametrically opposed to those held by the witnesses called by the first defendant. This would appear to substantially result from the stance that each took as to what they speculated as to Dr Cutter’s state of mind and knowledge at the time of the events. That speculation was based upon the quite inadequate notes that Dr Cutter made at the time of the events and was compounded by the deficiencies in his responses when challenged a month or so after the event by Mrs Radovanovic. An important aspect is that those materials did not clearly indicate that at the time he was proceeding to attend to Mrs Radovanovic in the labour ward, he was completely unaware of the large bleed that had brought Mrs Radovanovic into the hospital. In addition, all of the relatively contemporaneous writings of Dr Cutter lack the detail that one might expect considering the catastrophic nature of the event.
The plaintiff’s experts proceeded on the assumption that Dr Cutter had been informed about a large painless bleed at home and took the view that certain actions were required of him. In fact, Dr Cutter maintains (although, as I keep saying, his notes do not reflect this) that he was not told of the extent of that bleed and remained unaware of it until sometime after the events. The evidence given by Professor Bennett and Dr Patterson supporting his case as to the proper management and treatment was also predicated on an assumption that Dr Cutter had knowledge of a significant bleed having brought Mrs Radovanovic to the hospital and on it being entirely reasonable for Dr Cutter to have assumed that bleed came from the suture that he had inserted and to which he had made passing reference in the post-event letter that he wrote to Dr Deck and somewhat elliptically in the notes of the response that he made to Mrs Radovanovic in the consultation on 24 March 1980.
The engagement of the head
The other aspect which affected the approach of the experts to the management of Mrs Radovanovic was the question of whether the baby’s head was engaged in the mother’s pelvis before Dr Cutter examined her in the hospital. Again, Dr Cutter’s notes are unhappily deficient on this aspect. Engagement of the head occurs when the greatest diameter of the baby’s head has passed through the pelvic brim. The pelvic brim is the inlet of the pelvis and, when engaged, about two centimetres of the baby’s head is able to be felt in the mother’s abdomen. It is felt by gentle palpation of the abdomen. It is an important matter and is noted if it occurs in antenatal visits. It is not expected that the head will become engaged in a multiparous (having had more than one child) patient such as Mrs Radovanovic until labour occurs and even then, sometimes not until the second stage of labour or when birth is imminent.
In the present case, there is nothing in the notes made after the event which would indicate that the head was engaged at the time of Dr Cutter’s examination of Mrs Radovanovic in the hospital. The antenatal notes, in respect of entries that were made on 7, 16 and 23 January 1980 indicate that Dr Cutter’s locum, Dr Penny Roberts-Tompson, found engagement of the head on 7 January 1980. On 16 January 1980 Dr Cutter noted that the head was presenting and on 23 January that the head had engaged. There was general agreement amongst the experts that engagement of the baby’s head would exclude a diagnosis of a major degree of placenta praevia (that is in the third and fourth degree described in para [39]).
Because it would appear to have arisen for the first time during the hearing of this matter, the question of whether, and in what circumstances, the head engagement would have excluded a diagnosis of a major degree of placenta praevia, although touched upon briefly in cross examination, was not really canvassed through the plaintiff’s witnesses. That is probably attributable to the length of time that it has taken to bring these proceedings to hearing and the fact that it was not made clear that Dr Cutter maintained that he was unaware of the large bleed at home. At no stage was it suggested by Dr Cutter that the question played any part in his diagnostic approach. At no stage during the events did he assert that he was consciously aware of this circumstance although he now maintains that the presence of an engaged head justified his actions. Its relevance ultimately goes to questions of management rather than diagnosis. After the question became an issue, considerable time was spent concerning the question of whether or not the head may have disengaged given that the plaintiff was a small baby (with a small head), that Mrs Radovanovic was multiparous and that there was a “bulging bag of membranes” felt by Dr Cutter during his vaginal examination. It seems to me that for these purposes it is sufficient to accept the concessions made by witnesses called for the defence, Professor Bennett and Dr Patterson, that the engagement of the head did not, however, exclude a minor degree of placenta praevia.
The issue of the potential existence of any degree of placenta praevia becomes extremely relevant to how Dr Cutter should have proceeded in the absence of any suspicion in his mind of its possible presence. The question of the engagement of the baby’s head is but one of the factors. In cross-examination, Dr Patterson was asked about the true engagement of the head in circumstances where it had been ascertained that there was a bulging bag of membranes and as to that circumstance being compatible with a head that is fitting snugly or a head that is engaged. He was asked, 2648-2649-
And I think that you have also said that the bulging bag of membranes would have had within it liquor? - - - Yes.
And that liquor would have come from the uterus? - - - Come from the liquor pool, yes.
In which the foetus was floating? - - - Certainly.
And doesn’t the appearance of a bulging bag of membranes in that situation suggest that there was some pressure from within the uterus to push out that bulging bag of membranes? - - - Yes.
And that indicates, does it not, that the foetal head was not either fully engaged in the pelvic area or there was sufficient of a gap between the foetal head and the cervix to enable the liquor to escape inside the bulging bag of membranes? - - - Fluid to pass between the pelvic wall and – well, on one side and the head, to allow for – fluid to get down, could seep down there, certainly.
And if fluid could get down then blood could get down, outside the membranes? - - - If there had been some sort of haemorrhage outside it’s possible for blood to get down there too.
Right and that’s what happens in a placental bleed, isn’t it? - - - Yes.
So that even on all the assumptions you’ve made, then placental bleed was still possible for Mrs Radovanovic when she was in the labour ward being examined by Dr Cutter? - - - I would have to say yes but I would like to qualify that.
Please do? - - - At that stage of the clinical examination he would have got to the stage of examining because he felt there was a local cause, otherwise he wouldn’t be justified in doing it.
Right? - - - And so I am only happy to clarify it for the court that …
No, no doctor. I am not trying to stop you at any time from offering your opinion. So viewing the cervix, the gentle speculum examination that took place confirmed his diagnosis that the bleeding was coming from the cervix and the engaged head really precluded any significant contribution to the patient’s hazard by any degree of placenta praevia. In other words, once he had looked at the cervix he saw the bleeding associated with the stitch and that validated the subsequent clinical steps. He saw the damage to the external surface of the cervix? - - - At that stage he saw that, yes.
And that’s a necessary step in your reasoning, is it doctor? - - It is.
The decision to rupture the membranes
The importance of that exchange is to direct attention to how vital a role the bleeding that had brought Mrs Radovanovic into the hospital played in the decision making process. In Dr Patterson’s view, in all the circumstances that justified Dr Cutter proceeding on the basis of a bleed attributable to the stitch cutting out. At that stage Dr Cutter was proceeding only on the basis of what he took to be a small blood loss and not the sort of haemorrhage that had been described to Sister Alexander. A further matter of moment is Mrs Radovanovic’s assertion in her evidence that after Dr Cutter removed the stitch he told Mrs Radovanovic that he would wait until morning before rupturing the membranes. She felt disappointment at this. She then says that “he put his hand back inside me to examine me”. That clearly indicates to me that Dr Cutter did not make a conscious decision to rupture the membranes before he commenced a vaginal examination of Mrs Radovanovic. It may also be taken as an indication that he had not ascertained that the baby’s head was engaged before that vaginal examination, for his evidence was that his invariable practice was to not consider rupturing the membranes unless he had ascertained that the head was engaged. In any event, it is clear that he did conduct the digital vaginal examination that he regarded as routine in respect of women in labour and without any consideration given to any possible presence of placenta praevia. His evidence was that the purpose of the examination was to assess the state of the cervix, the state of the pelvis, the level of presentation of the head and the presence or absence of membranes. It was a procedure that he undertook in circumstances where there was no suspicion of the existence of a placenta praevia. It should also be noted, at no stage, has Dr Cutter asserted a recollection that he knew that the head was engaged before he conducted that examination and for reasons that I go on to express, I find that he did not palpate Mrs Radovanovic, which might have disclosed the engagement of the head upon him doing so. He relies upon his usual practice that he would not have ruptured the membranes unless he had satisfied himself that the head was engaged. I am prepared to accept that, but that begs the question of whether, in the circumstances of this case, he may have conducted a digital vaginal examination without ascertaining the fact that the head was engaged.
As I have said he was proceeding without any suspicion of any degree of placenta praevia and the question that must be asked is whether, in circumstances where there is a state of affairs which should have given rise to a suspicion of the presence of a placenta praevia of any degree, a digital vaginal examination in the labour ward as opposed to such an examination taking place in an operating theatre could ever be justified. The experts called by the plaintiff were firmly of the view that it could not.
Dr Cutter was adamant that he would not have artificially ruptured the membranes if he was not certain that he had ascertained that the baby’s head was engaged. However, I just do not have any confidence in the fact that he ascertained the head engagement by abdominal palpation. His notes do not record that circumstance and one would have expected that they would have or, at least, that circumstance would have been raised at some stage before the hearing of this matter as a justification for the course that he in fact took. Mrs Radovanovic does not recall palpation and she gave clear evidence of her feet being placed in stirrups preparatory to delivery. On admission Sister Alexander specifically recorded in the notes “not palpated”. Sister Patacca gave evidence that at no stage did she palpate Mrs Radovanovic and she gave no evidence that Dr Cutter did. Dr Cutter’s first recollection on attendance at the hospital is removing the stitch and examining the cervix when Mrs Radovanovic had been draped and her feet placed in stirrups. It is apparent from the evidence that Mrs Radovanovic and Sister Patacca gave, that it was the nurses who placed her in the stirrups, in the lithotomy position, ready for Dr Cutter to remove the stitch. Neither Mrs Radovanovic nor Sister Patacca gave evidence of any form of examination conducted by Dr Cutter before Mrs Radovanovic was placed in that position.
Abdominal palpation
Dr Cutter was unable to recall at all what happened when he attended the hospital and before he commenced to remove the stitch he had inserted in the cervix except by reference to his “usual practice”. Accordingly, he could not say from whom he had obtained his patient’s history or what steps he had taken prior to removing the stitch. His evidence by reference to his usual practice of what he would have done was to this effect-
…What was your usual practice in relation to patients who had Shirodkar sutures in 1980 that you refer to in this note?--- I would talk to the patient, I would examine the patient to assess the uterus, the abdomen, the baby, where the baby was, how well the baby was, before deciding to go the next step, which is to go and scrub up and make arrangements to take the stitch out.
… Right. And when you say that you would have examined the patient, you’ve told us the purpose of the examination. Could you tell us what the examination involved you doing?---It involves palpation very similar to which I described at my antenatal visit.
When you’ve said, “examined the uterus,” I think your note referred to wellbeing and where the baby was, can you just – in a situation such as this, at least by reference to your usual practice at the time, is where the baby is of any particular significance?---Yes, because I would want to know whether it was a head down, whether the baby’s head was below the pelvic rim, whether it was engaged or not engaged.
All right. And by reference to your usual practice at the time, in circumstances such as this, are you able to tell us the difficulty or otherwise in ascertaining that fact, the fact of engagement or not?---I believe the head is either engaged or it isn’t engaged, and it’s usually very easy to tell.
And with the benefit of the hospital notes, and your own notes, is there anything there that would indicate any difficulty in ascertaining whether or not the head was engaged in the event of you following your usual practice as you’ve described? --- No.
He then gave evidence of his usual practice in scrubbing up, and being helped into a gown and gloves. It was then, he said, the patient would be put up in stirrups and in the lithotomy position. His evidence thereafter was that he recalled conducting a vaginal examination and he gave evidence of the rupture of the membranes and the consequences which followed upon that.
I am not satisfied that the events occurred in the way that Dr Cutter described as his usual practice. There is no doubt that Mrs Radovanovic having gone into labour, the removal of the stitch was a priority. Sister Pattacca had been told, by Dr Cutter, when she called him into the hospital or by another staff member, to set up for the removal of the suture and had done so. Although she said Dr Cutter spoke to Mrs Radovanovic when he came in she does not recall any examination taking place. There are no notes or any indication anywhere that Dr Cutter ascertained a history from Mrs Radovanovic. There is no evidence that Dr Cutter obtained such a history from any staff member on his attendance at the hospital. At that stage there was a clear priority with Mrs Radovanovic in labour to remove the stitch.
That priority is also significant in connection with Dr Cutter’s usual practice to abdominally examine the patient before proceeding to “usual management”, in this case the removal of the stitch. I am satisfied that the hospital staff had set Mrs Radovanovic up for the removal of stitch prior to Dr Cutter coming to the hospital. Although Sister Patacca was not clear as to whether this was occasioned by a request to her from Dr Cutter on her phoning him or by instruction from another staff member, but it seems the set up had been completed and Mrs Radovanovic placed in the delivery suite ready for the removal of the stitch before she was actually seen by Dr Cutter. Any clinical examination that Dr Cutter undertook would have had to have taken place then. However, on Mrs Radovanovic’s evidence, which I accept, the nurses had already placed her in stirrups ready for the removal of the stitch to take place.
In these circumstances I am satisfied that Dr Cutter did not adopt his normal practice and either take or obtain a history from his patient or abdominally examine her. My conclusion is supported by Mrs Radovanovic’s account of the events, the absence of any evidence to the contrary from the nursing staff and non-existence of any note of or consequent upon such an examination.
If I had accepted that Dr Cutter had palpated Mrs Radovanovic’s abdomen and ascertained that the baby’s head was in fact engaged then it was submitted that within the bounds of reasonable practice, he would have been justified in proceeding as he did even if he was unaware of the extent of the bleed that had brought Mrs Radovanovic into the hospital. In that event, although he would have proceeded without making a diagnosis that he should have made, in light of the engagement of the baby’s head, he could have excluded a diagnosis of a major degree of placenta praevia. It was then said that he could have regarded the tamponading effect of the baby’s head below the brim of the pelvis as preventing bleeding from the placenta. However, there would still remain the question of whether he could properly assign a local cause to the bleed of which he was not properly aware. I think that at that stage with the mother in labour and a stitch to be removed that his decision to proceed as he did could perhaps be justified but only if he had affirmatively ascertained before proceeding that the baby’s head was engaged and that the explanation for the bleed that had brought Mrs Radovanovic into the hospital was caused by the stitch.
It was put that as the baby’s head was almost certainly engaged that alone justified Dr Cutter proceeding as he did. As was pointed on behalf of the plaintiff that submission overlooks Dr Cutter not determining that which he should have determined, namely the exclusion of the possibility of placenta praevia before proceeding in any way. By his lack of awareness of the history that brought the mother into the hospital he was in no position to make that determination. In addition and in any event, I consider that he could not be justified in proceeding as he did without first ascertaining the position of the baby’s head by abdominal palpation. He could only be justified in conducting a vaginal examination in a theatre where, if necessary, he could immediately resort to undertaking a Caesarean section.
Duty of care on the hospital
The onus is on the plaintiff to establish that the hospital was in breach of its duty of care through one of its employees not alerting Dr Cutter of the nature and extent of the bleed at home. On Dr Cutter’s evidence the initial consequence of him not being informed of the nature and extent of the circumstance that brought Mrs Radovanovic into the hospital was that he did not proceed to the hospital but rather ordered the midwife to arrange for cross-matching of blood in the morning and request that he be notified immediately should the blood loss increase or contractions commence. Dr Cutter was adamant that had he been aware of the large blood loss he would have gone into the hospital immediately. I have accepted that this is so but it is clear that Dr Cutter, for whatever reason, was not consciously aware of that blood loss. All of the experts called on this aspect were of the view that the large painless bleed raised a presumptive diagnosis of placenta praevia which should be excluded before any further steps were taken in the management of the patient. There was, however, no agreement as to whether Dr Cutter should have come into the hospital at that stage. Unfortunately, the views of the experts were coloured by the weight that they gave to certain external factors about which they had formed a view during the protracted time that this matter had taken to come to trial. Both Professor Beischer and Professor MacGillivray took the view that there was in existence a placenta praevia and that event almost certainly indicated that the baby’s head would not have been engaged. Professor Bennett and Dr Patterson, on the other hand, regarded it as a given that the head was engaged and that factor should be regarded in the diagnosis and the management of the patient. Further, all the experts in their pre-hearing reports took Dr Cutter as having knowledge of the heavy bleed at home and proceeded to give their opinions as to his management on that basis. The fact is that it is Dr Cutter’s evidence that he did not know of the large bleed and, as I have found, did not ascertain that the baby’s head was engaged before he conducted a vaginal examination of Mrs Radovanovic.
Professor Bennett was of the view that even if Dr Cutter had known of the large blood loss in the conversation with Sister Alexander, he would have been entitled to remain in bed and not come into the hospital. He could do so on the basis of the fact that the midwife was not concerned, having examined the patient and taken into account the foetal condition and the fact that the bleeding had ceased. That view seemed to be predicated on the fact that the engagement of the baby’s head would have enabled Dr Cutter to conclude that he was not dealing with a major degree of placenta praevia. Dr Patterson’s evidence was to a similar effect and therefore it would have been unnecessary to attend the hospital at that stage. That is not the approach that Dr Cutter himself says that he would have taken and I think that clearly indicates that the engagement of the baby’s head was not a factor that he had under consideration at that stage.
On the evidence before me, I have concluded that Sister Alexander did inform Dr Cutter of the large bleed at home. It may have been put in such a way that led Dr Cutter to not give it the attention that he should have but if the information was clearly given, as I am satisfied that it was, then the hospital has discharged its duty. It seems to me that the burden of justifying Dr Cutter not coming into the hospital lies on him by his preparedness to rely on the midwife’s assessment which included the information about the large bleed. It was Dr Cutter’s view that had he appreciated the fact of the large bleed at home he would have immediately ordered cross matching of blood and gone immediately into the hospital. I consider that is what he should have done. However, I am not able to say that the fact that he did not do so relevantly caused the events which transpired or given what took place when Dr Cutter did attend the hospital that an earlier attendance would necessarily have altered what took place. It is enough that, on this aspect, I am satisfied that the hospital through its nursing staff was not in breach of its duty of care to the plaintiff.
The duty to ascertain the fact of the large bleed at home
Those conclusions leave the issue of Dr Cutter ascertaining for himself the fact of the large bleed at home. He did not do so either during the conversation with Sister Alexander or, critically, when he attended the hospital by obtaining that information from the midwife then on duty, Sister Patacca, the hospital notes or Mrs Radovanovic herself.
The importance of obtaining this history was stressed by all of the experts who gave evidence on this aspect. All of the experts also stressed the importance of proceeding to a diagnosis which excluded the possibility of placenta praevia of any degree. This seems to me to be the crux of the matter. The issue is whether Dr Cutter should have proceeded as he did without excluding that possibility as the cause of the bleeding. He could of course exclude it by ascertaining the cause as one not being referable to a placenta praevia but unless he did so, the possibility remained. Because he was unaware of the extent of the bleed at home, he never consciously reached a diagnostic conclusion predicated on a large blood loss.
Professor Beischer was quite clear and firm in his view that an obstetrician would ascertain the history of the antepartum haemorrhage either from the patient, the midwife or the hospital records.
Professor Bennett was of the view that upon the ascertainment of a history with the classic symptom of placenta praevia, there should be an investigation as to whether there was, in fact, that condition. He postulated the alternatives of an ultrasound examination, if there was time, or a vaginal examination if that was done in an operating theatre. He considered that in circumstances where that was that history, a vaginal examination created a risk of haemorrhage and that the happening of a haemorrhage could result in an injury to mother or foetus. Professor Bennett’s opinion in this regard was qualified by the fact that in his opinion the cause of the large bleed at home in this case could be assigned to the stitch. His overall view was predicated on his understanding that there was not in fact a large vaginal haemorrhage at home but rather an ante partem haemorrhage the size of which was probably an over estimation on the part of the patient.
Similarly, Dr Patterson’s views were based on the view that Dr Cutter could be of the opinion that the cause of the bleed at home could be assigned to the cervical suture cutting out. Dr Patterson was asked to assume a situation where a speculum examination did not indicate any injury to the external surface of the cervix. If that were so, in Dr Patterson’s view, the only remaining diagnosis was one of placenta praevia. He agreed that in the absence of a local cause (eg, bleeding from the stitch), any attempt at digital examination of the cervix would be a very dangerous activity in the labour ward. He said that he would not resort to immediate Caesarean section but rather conduct an examination under anaesthetic. He said the patient should be taken as quickly as possible to theatre for further investigation under anaesthesia. The examination which would then take place would be a gentle digital examination to avoid, if possible, a provocation of bleeding. The usual routine being to feel through the vaginal fornices for sponginess. If that sensation is there, that is presumptive of placental tissue and a Caesarean section would ensue. If not, a further digital examination through the cervix could be made.
In light of this evidence, Dr Patterson was examined at length in respect of the matters that would have justified Dr Cutter concluding that the cause of the bleed could be assigned to the stitch cutting out. The crux of his opinion was that an ordinary skilled obstetrician, in the place of Dr Cutter, could discard the differential diagnosis of placenta praevia upon deciding that it was more likely than not that the bleed at home was attributable to the injury to the cervix. Although Dr Cutter observed in his speculum examination of Mrs Radovanovic a small amount of blood in the vagina, he gave no direct evidence of a diagnosis made as a result of that observation. He described it in this way –
And then what is the next thing you remember? - - - The – inserting the bi-valve speculum or Cusco’s speculum to examine the cervix and to examine the stitch.
And do you have a recollection of what you saw? - - - There is a small amount of blood in the vagina, not enough for me to swab the vagina out to remove it. I was – saw that the cervix was dilated to 2-3 cm, the knot was still in place with the tied ends of the stitch and then I grabbed the tied end of the stitch, put it under traction and cut the suture and withdrew the knot.
A big issue in this debate is whether a carer should always be of the standard of a registered nurse or residential care worker. It is Professor Oakeshott’s view that Lainie will require a trained attendant carer to be present for 24 hours each day for the rest of her life. He advises against frequently changing rosters and different people as such an arrangement he says could easily upset her and would likely cause aberrant behaviour. He recommends either a house couple or a roster of carers working shifts, one of such persons needing to be trained at an equivalent level to an assistant in nursing or a residential care worker. He points out that her mother provides part of this need at present. Dr Buckley, in his report and in his evidence before me considered that care should be provided in Lainie’s own home by a house couple on a 24 hour a day basis with the training of one member of the couple to be at least at the standard of a registered nurse. He considered that the requirement for a professional standard of that nature was because Lainie will always be unable to make appropriate decisions for herself and will be morally vulnerable to the decisions of her carers. He was cross-examined at some length with respect to this proposition but did not resile from it. He did not, however, suggest that Lainie’s parents were unable to provide this but rather directed his attention to the time when Lainie’s parents were no longer able to do so. He also made the point that account should be taken for the fact that Lainie’s parents may not always be available to do this for reasons of intervening illness and even marital disharmony. He also made the point as to the institutional care suggested by the defendants that the current governmental policy did not favour institutional care. This latter point did not seem to be directed at the community living arrangements suggested by the defendants as being appropriate for Lainie when her parents were no longer able to provide their support. It is a difficult question to determine what resources should be provided to Lainie to provide for her own care having regard to what might be projected as to it. In Dr Buckley’s view, whilst Lainie’s parents are involved, supervision of any house couple would ordinarily be by them but there would be a requirement for assistance for at least one hour per month of supervision by a local community team or developmental disability service. Such a team would provide a case manager who would assist in the decision-making process regarding vocational activities and other professional requirements as they arose. Professor Oakeshott was of the view that a case manager should be provided being a person skilled in the care and needs assessment of people with brain injury and to be of a registered nurse standard or a training equivalent. Such a person, he considered, would have responsibilities with the selection and training of carers, ensuring that they are rostered appropriately and that backup can be provided. He estimated that this person would be required for at least four hours per month for the rest of her life. I am inclined to accept the regime that Professor Oakeshott proposes concerning the provision of such a case manager irrespective of the parent’s role. I consider that contrary to Dr Buckley’s views, the lesser standard required by Professor Oakeshott of the carer can be met not necessarily by the standard that Dr Buckley requires of that of professional nurse, but rather that of an assistant in nursing or residential care worker.
I accept the plaintiff’s submission that it matters not how much of this assistance is provided by the plaintiff’s parents, the ascertainment of needs relates to the provision of the requirements that I have outlined.
It is the defendants’ submission, based upon a report by Dr Bowers, that a registered nurse is not required in all situations to care to all aspects of personal care for patients such as Lainie, particularly with respect to ethical standards. I accept this but consider that the regime proposed by Professor Oakeshott satisfactorily meets the concerns expressed by Dr Buckley. The defendants further submit that it is presumed that the plaintiff will continue to reside with her parents and receive many services from them. They point to the fact that no evidence has been given of the provision of the services recommended by the two rehabilitation specialists supporting the plaintiff’s case. It is then submitted that the absence of such evidence of these services being provided permits a conclusion that significantly lesser services adequately meet the plaintiff’s needs. I do not follow the argument. The evidence, which the defendants do not challenge, show what the plaintiff’s needs are. I am not prepared to assent to a proposition that some arbitrary percentage be applied to reduce the amount claimed on the supposition that lesser services cold be provided to meet the plaintiff’s needs.
As to the cost of care, the plaintiff puts a case for 24 hour care by two carers either as a house couple or as an attendant carer with her parents. It is put that a live-in house couple costs $1,750.00 per week for a five day week plus keep of $21.25 per person per day plus an allowance for superannuation at eight percent. This is an amount of $1,962.50 plus $157.00 superannuation per week, a total of $2,119.50. (The plaintiff’s figures have been adjusted to include an additional $21.25 being the keep for the second person). To that is added relief assistance for the weekends costing $625.00 per day plus keep of $21.25 per person per day and superannuation at eight percent. Relief care per weekend is claimed at $1,441.80 (as adjusted). This amounts to a total cost of care per week of $3,561.30. These figures are not disputed by the defendants nor in making a case that significantly lesser services would adequately meet the plaintiff’s need, do the defendants attempt to itemise the details of such care. They provide a calculation suggesting a figure of approximately 75 percent of the “claimed amount” being allowed at $2,500.00 per week for 10 years and amounting to $1,130,000.00 together with their estimate based on their expectation of the plaintiff’s life to age 57 of the cost of community housing which they put forward as $996,450.00. The total of these sums is rounded out to $2,500,000.00. That results in approximately a 50 percent reduction on the figures that the plaintiff puts forward. On my calculation of a weekly cost of care of $3,516.00 by the multiplier of 1,351 is $4,750,116.00.
In addition, the plaintiff points out that there will be a need for replacement care when a house couple take their four weeks annual leave. They cost that replacement care at $625.00 per day plus keep of $21.25 per person and superannuation at eight percent. The total relief care on a weekly basis is $5,023.00 at an annual cost of $20,092.00. However, their calculations are on a seven day week, not the five day week which would be required. On that basis the total relief care on a weekly basis is $3,604.50 at an annual cost of $14,418.00. Which on my calculations is a weekly cost of $277.27 by the multiplier of 1,351 is a cost of $374,591.77. The total cost for carers on this basis is therefore $5,124,708.00.
There, is however, a great degree of uncertainty about the requirement for carers based at this optimum level. It is in this regard that I must give some effect to the paucity of material before me as to the plaintiff’s present care requirements. I know that the parties have drawn a cut-off line as at 13 August 2001 for the assessment of this matter but it would be unrealistic of me not to regard the claim put forward, certainly in this regard, as satisfying the optimum requirements of the plaintiff. At the time of the start of this hearing, the plaintiff had just left school and the effect that this might have on her future life and her needs is very speculative. I must consider that there is a chance that at some time in the future Lainie or her parents might regard the option of being accommodated in community housing as appropriate. Despite the unsatisfactory nature of the material which might make this a more viable proposition, I cannot reject it entirely. I am therefore prepared to apply a contingency factor to the amount that I have assessed as the optimum amount for the provision of carers for her. Accordingly, I reduce the figure that I have assessed at $5,124,708.00 by 15 percent. Accordingly, I would allow $4,356,002.00 under this head.
Nevertheless, I still consider that a house couple would require assistance and professional supervision. That seems to me to accord with the view of Professor Oakeshott and to provide something of the control mechanism of professional standards that Dr Buckley alludes to. The defendants have a simplistic response to this matter. They say that Lainie’s parents have supervised her carers to date, that they have the capacity and are likely to perform as part of their ordinary parental functions the supervision which would otherwise be performed by a case manager. Thereafter they say when Mrs Radovanovic reaches the age of 65, Lainie will go into group housing which includes the services of a case manager. I am satisfied that as a consequence of her injuries, Lainie requires the services of a case manager and that her parents effectively provide this function. However, when her parents are unable to do so, I do not see any reason why an allowance should not be made for the four hours per month suggested by Professor Oakeshott for the provision of this service. However, I do not regard her parents’ performance of this function as necessarily requiring compensation at anything other than the ordinary carer’s rate. The costs of a case manager accepted for the purposes of these proceedings is $120.00 per hour. On the plaintiff’s figures this is an annual cost of $6,240.00 per annum or $120.00 per week which, by the multiplier of 1,351 is $162,120.00. If Lainie’s parents perform this function I would expect them to do so for at least 15 years or so (I do not accept that upon Mrs Radovanovic turning 65 she would abdicate her responsibilities in that respect). I would allow $130,000.00 in respect of this item.
An associated claim is made for the services of a professional handyman for minor repair jobs, gardening and lawn mowing. This is a recommendation of Dr Buckley, the rehabilitation specialist, and also of Ms Flanagan, the occupational therapist. Dr Buckley made his recommendation in his report in 1996 when he recommended four hours of handyman assistance per week. Ms Flanagan, in her report in 2000, suggested that part of a carer’s duties would include indoor household maintenance activities but considered an additional two hours per week assistance should be provided for outdoor household maintenance tasks such as gardening and general repairs. Professor Oakeshott, in his report, also in 2000, commented that Lainie was unable to perform heavy housework or handyman activities and estimates support required of an average of two hours each week for the rest of her life. The plaintiff’s claim based upon what is said to be the current rate in September 2000 of between $25.00 and $30.00 per hour is for four hours per week at $30.00 per hour. The defendant’s response is to say that while the plaintiff lived at home with her parents, the plaintiff’s father would, regardless of her presence, have attended to these items, that there may be some doubling up with respect to the maintenance allowed in respect of the home modifications and that the quoted amount of $30.00 per hour over the whole range of work is not a reasonable sum. As to the last point, no other rates were put to me. The plaintiff’s response to the point about the plaintiff’s father undertaking the work is to reiterate the need argument to which I have earlier referred.
Having regard to the view that there is some inter-relationship between the maintenance related to the household modifications which have allowed for some outdoor work as well as the internal alterations and involvement of the carers in aspect of the internal household maintenance, I would allow two hours per week for this service. Although the plaintiff claims that $30.00 per hour does not include agency fees, GST or a claimed rate based upon a minimum call out period of two hours, I am not inclined to accept any more than $25.00 per hour as the appropriate rate. At $50.00 per week by the multiplier 1,351 that amounts to $67,550.00 and I allow that sum.
Loss of earning capacity
The nature of the plaintiff’s disabilities means that the plaintiff cannot, and will never be able to participate in the work force. She is entitled to compensation for this loss of her capacity to earn income. It is particularly difficult in a case such as Lainie’s where there is no work history or indeed any real idea of what Lainie’s capacity would have been for work had the injuries that she sustained not occurred. There was no attempt in this case to provide evidence of what matters could have caused the assessment of a loss of capacity for a higher rather than a lower degree of economic participation in the work force. The plaintiff chose the approach of looking at the statistical material provided by the average weekly earnings of the adult work force. No suggestion to the contrary was put by the defendants although they attacked the plaintiff’s application of this material to the whole of the plaintiff’s working life arguing that some lesser weekly sum would have been earned in the early years of the plaintiff’s participation in the workforce.
In theory, I would have to accept this criticism of the plaintiff’s methodology. However, I do not understand that the plaintiff puts this in other than a broad averaging factor because of the difficulty of predicting what would have been the situation as far as the plaintiff’s participation in the work force is concerned. As best I understand the defendants’ response to the plaintiff’s claim to entitlement over the whole of her participation in the work force of being entitled to average weekly earnings, it is a response that challenges that being applicable to the time when adult wages are not commonly paid until the age of 21, arriving at a lesser amount and then extrapolating that lesser amount for the period of time that they say would apply to the plaintiff for the whole of her working life.
The only material that was placed before me was material obtained from the Australian Bureau of Statistics (ABS) of a full-time adult ordinary time earnings and total earnings for females in three monthly periods from February 1998 to May 2000. The ABS qualification to those average weekly earnings is that they represent average gross (before tax) earnings of employees and do not relate to average award rates nor to the earnings of the “average person”. Notwithstanding that, the defendants ultimately assert that the plaintiff’s adult earning capacity is approximately $400.00 per week net of tax. I am uncertain as to how the defendants arrive at this figure. The suggestions seems to be that, because the plaintiff, on the scenario put forward of leaving school at year 12, the defendants are entitled to extrapolate in respect of her future loss of earning capacity at the rate that the defendants suggest. I think that the defendants’ argument boiled down to a concern about allowing, as past loss of earning capacity, the amount of average weekly earnings for the 3.5 years between when it was said the plaintiff would have left school and 13 August 2001 agreed as the date from which future loss would be calculated. Put that way, I also think that there is force in that argument. The average weekly earnings used relate to adult employment and those employed in it. Any average takes into account those persons who have spent their years before becoming an adult (and after) in achieving tertiary qualifications often without obtaining very much by way of remunerative employment. Ultimately, of course, such persons may earn more than the average. Equally, persons who immediately enter the work force will earn less than what is regarded as adult average weekly earnings at least until the time they qualify as adults. What the plaintiff suggests here is a very broad brush approach and in light of no particular profile established as to why the plaintiff should earn more or less than average adult weekly earnings, I also think that there is force in their submission.
I am conscious of and prepared to apply the observations made by Clarke A-JA in Rosniak v The Government Insurance Office (1997) 41 NSWLR 608 at 627 when he said –
I would, however, like to add some short observations on the question of the appropriate tables to adopt in assessing economic loss. At the outset it must be said that a court faced with the task of assessing economic loss for a plaintiff who is injured as a young child must be accorded a very wide discretion. Clearly enough, precision is impossible. The exercise is one which in many ways involves guesswork.
Nonetheless a practice has developed which has been followed for many years in this State, pursuant to which the plaintiff’s loss is calculated by adopting an average wage and making appropriate adjustments to fit any factual vicissitudes. That does not, of course, mean that a court should not prefer to adopt a median wage as a basis for assessing the economic loss in a particular case. There are, however consequences which will, or may, flow from adopting a median figure. That is because, as Badgery-Parker J explained, that figure is the amount which divides the distribution of employees into two equal groups, one having earnings below and the other earning above that figure, whereas the average wage is influenced to a degree by the earnings of a small group of high income earners. In these circumstances it would seem to me that unless there is no reasonable possibility exposed on the evidence that the person under consideration may have become a high income earner it is appropriate to adopt a figure which takes account of the higher earnings, viz, an average figure. It may be that in a given case the facts strongly support the conclusion that there was no realistic possibility that the injured plaintiff would become a high earner. If so, a proper exercise of judgment may support the adoption of the median figure.
It should not, however, be overlooked that in the case of the type under discussion the court is necessarily dealing with possibilities and is doing so with very little information on which to assess those possibilities. It should also be borne in mind that, where propitious possibilities are disregarded in fixing the primary figure for the loss, care needs to be taken in dealing with the vicissitudes to ensure that there is not something in the nature of a double deduction. In my view, where little is known beyond that the child is an average child from a family with no background of tertiary education, broad justice is better accommodated by adopting an average wage and taking account of all the possibilities in fixing an allowance for vicissitudes.
It is that approach that I am minded to adopt in this case.
For this reason I am not in favour of assessing for these purposes any past loss up to the time that the plaintiff could arbitrarily be said to enter the work force at 13 August 2001. It is only speculation that cannot be quantified that she might have had no employment at all whilst completing tertiary studies, casual employment during the course of those studies or being employed as a full-time, part-time or casual employee in the work force. Each of those possibilities may well have effected whether she ultimately earned above or below female average weekly earnings. Absent in this case the sort of speculation that is often made on the occupations of parents and siblings, attitudes to life and work and other historical factors, I consider that the very broad approach taken by the plaintiff can be adopted. Given that all that was really put before me on this topic were the average weekly earnings and the fact that no argument is really advanced as to why this should not be appropriate for the future, I accede to the claim that the plaintiff’s loss of earning capacity should be assessed on this basis but with no allowance being made for past loss. That means that I should accept the plaintiff’s calculation of a net loss of $639.00 per week calculated from 13 August 2001 to cease when the plaintiff reaches 65 years of age. I do not accept the defendants’ argument that I should adopt an age of 57 because “such an age is more representative of the working life of females”. There is no material before me to suggest or support that proposition. That is a period of 43.5 years and using the tables in Luntz Assessment of Damages and Personal Injury and Death, (4th ed), Appendix Table 2, I apply a multiplier of 1,277. That results in an amount of $816,003.00. Both the plaintiff and the defendants accept a deduction from this amount of 15% for the vicissitudes of life. That results in a figure of $693,603.00 which I allow.
The plaintiff also claims a loss of 9% in respect of employer contributions to her gross weekly wage to age 65. The defendants point out that this rate of 9% is applicable only from 1 July 2003 and prior to that date it was 8%. The defendants would only allow this on their estimate of the plaintiff’s earning capacity at $400.00 per week ceasing at age 57. I have not accepted that approach. On the plaintiff’s figures the weekly loss is $75.15 and a working lifetime loss of $96,530.00. I deduct $850.00 for the 1% difference before 1 July 2003. Both parties are agreed that this sum should contain the contingency for vicissitudes of 15%. The amount calculated, accordingly, is $62,419.00.
It is also put that the plaintiff is entitled to the economic benefit of the likelihood of her marriage. This question is quite controversial given its speculative nature and modern mores which does not necessarily countenance the economic dependency or economic advantages of matrimonial union. Having allowed for the prospect of the plaintiff having a uninterrupted working life, the difficulty of adjusting that assessment on the basis that the plaintiff might marry and derive an economic advantage from her partner and the interruptions that might cause to her working life, is, I think, impossible to quantify. In a case like this where the plaintiff is injured at birth, there is just no measure one can apply to the plaintiff’s circumstances. As Clarke A-JA said in GIO (NSW) v Mackie (1990) ATR 81-053 at 68,215 –
Bearing in mind the possibilities that [the plaintiff] may never have married, may have left the work force on marriage, or the birth of a child, may have had a short or disastrous marriage and had to support her husband or, on the other hand, may of worked continuously in a successful partnership with her husband and thereby enjoyed a very high standard of living, the approach would recognise a vicissitude which worked in her favour.
In that case, his Honour thought that any adjustment would need to be small to avoid a risk of over-compensation. In this case, I do not think that there is anything to suggest an adjustment either way. As I have accepted that the plaintiff would have an uninterrupted working life at average weekly earnings I am not persuaded that I should make any allowance for any factor related to the possibility that the plaintiff might have married.
Fund management
The nature of the plaintiff’s disabilities mean that she will always be unable to make decisions concerning her financial affairs. The defendants accept that there is a requirement for professional financial advice and management in relation to any sums of money awarded to the plaintiff. The plaintiff puts forward the fees and charges charged by the Public Trustee for the Australian Capital Territory as indicative of the costs of professional financial management. Those costs are 1.1% of the monies received as a once only charge, 5.5% charged on the income earned, and in turn, an annual audit fee of $40.00 and fees for the preparation of income tax returns as required at $100.00 per hour with a minimum fee of $55.00. I understood the defendants as accepting these figures with a quibble about the charge for the income tax return on the basis that it would be a simple return at a preparation cost that might have been incurred in any event by a person on average weekly earnings. I do not accept this would necessarily be so. If the tax return is indeed “simple”, presumably it would attract the minimum fee. However, I do not regard it as a matter about which I can make an assessment on the material provided to me other than at this stage, to allow the minimum fee. I would allow the amounts claimed for fund management, those amounts are to be calculated once the other heads of damages have been finally determined and the sum to be administered ascertained. I would hope that a fair amount allowable for income tax return preparation can be agreed.
Costs
I will hear the parties on the question of costs. A discrete matter was the application by the plaintiff and the second defendant in respect of costs occasioned by my ruling that the first defendant discover certain reports and file notes concerning the evidence of Professor Bennett (see Lainie Radovanovic bhnf Anton Radovanovic v BryanCutter & ors [2001] ACTSC 16 (1 March 2001). The plaintiffs sought the costs of the Notice of Motion which gave rise to the ruling and subsequent loss of 4.5 hearing days on an indemnity basis, the second defendant sought costs on a more generous basis than the party to party, basis but did not seek the full scope of an order or an indemnity basis. The plaintiff’s application was predicated on the view that the first defendant had made a deliberate forensic decision to defer the production of Professor Bennett’s documents until well into the hearing. I do not share that view. The first defendant took the view that the documents concerned attracted a claim of legal professional privilege and was not an “expert report” for the purposes of Supreme Court rules Order 39. Whilst I rejected that view I do not consider that it was a view unreasonably held or that the first defendant sought to obtain an unfair advantage as a consequence of holding that view.
In such circumstances I do not consider that an award of indemnity costs would be appropriate. The second defendant argued that as far as it was concerned if the application had been made before trial, it may not have been involved and should not have inevitably wasted all the costs incurred in the application and “it should receive an order that will adequately compensate it”. I consider this to be speculative, but in any event I do not regard it as a sufficiently compelling circumstance to make the award of costs in those terms.
It is true that the plaintiff was not completely successful in the application and I maintained the privilege claimed in respect of those parts of the documents that dealt with particulars of negligence that were subsequently abandoned. Nevertheless the plaintiff was substantially successful and I see no good reason why the costs of the application should not be awarded against the first defendant in respect of the plaintiff and second defendant on the ordinary basis.
Orders
I enter judgment for plaintiff against the first defendant.
I dismiss the plaintiff’s claim against the second defendant.
I dismiss the first defendants cross claim against the second defendant.
The heads of damage that I would award and the quantum with respect of each of these heads I set out –
HEADS OF DAMAGES
General damages [179] (including damages for
loss of expectation of life) $320,000.00
Past expenses
Medical and hospital expenses paid [183] –
Medicare 12,120.85
MBF 34,718.19
Gap paid by parents [184] 10,613.75
Interest on gap payments [185] 14,422.00
Past pharmaceutical expenses [186] 3,000.00
Interest 1,896.00
Past podiatry [188] 376.00
Interest 214.00
Sub-total$77,361.00
Clothing, equipment and aids
Walking frame and standing frame [190] 300.00
Special boots [191]) 3,720.00
Special silicon sox [192] 520.00
Hoists x 2 [193] 7,990.00
Special spoon, fork and plate [194] 500.00
Electric wheelchair [195] 5,712.00
Incontinence pads [196] 10,452.00
Commode [197] 650.00
Electric toothbrushes [199] 900.00
Galah Audible Communicator [199] 650.00
Sub-total $20,942.00
Interest 19,853.00
Sub-total $51,247.00
Home modifications
Hawker House [207] 36,000.00
Red Hill house [208] 150,000.00
Maintenance [209] 48,000.00
Interest Disallowed
Sub-total$234,000.00
Travelling expenses (agreed [211]) 15,200.00
Interest 7,685.00
Sub-total$22,885.00
Respite care –
Hartley House and Hartley Court [212] 28,363.00
Interest 32,266.00
Carer [213] 4,763.52
Interest 2,709.00
Community supported respite [214]) 8,000.00
Interest 3,539.00
Home Help Service ACT Inc [215]) 5,260.18
Interest 3,657.00
Sub-total$88,557.70
TOTAL Past Expenses$474,050.00
FUTURE COSTS
Medical and Hospital expenses
Home visits by General Practitioner [216] 10,916.00
Medical specialist consultations [217] 831.00
Neurologist [218] 4,161.08
Orthopaedic surgeons [219] 2,081.00
Hospitalisation [220] 28,510.65
Blood tests [221] 3,012.73
Bony limb surgery [222] 1,000.00
Upper limb surgery [223] 1,000.00
Spinal fusion [225] Disallowed
Orthopaedic surgery [226] Disallowed
Ophthalmologist view [227] 1,689.00
Pharmaceutical expenses [228] 5,404.00
Physiotherapy [229] 31,640.00
Speech pathology [230] 59,849.00
Occupational therapy [231] 27,122.00
Music therapy [233] 3,900.00
Psychology [234] 48,325.00
Podiatry [235] 9,093.00
Dentistry [236] –
Home visits 2,297.00
Theatre and facility fees 5,715.00
Future treatment of fractured incisor tooth 1,875.00
Sub-total$248,420.00
Clothing, equipment and aids
Replacement wheelchairs [237] 49,762.00
Maintenance costs [238] 21,157.00
Postural inserts and sheep skin cover [239] 15,928.00
High-top boots [240] 12,997.00
Silicon sox [241] 3,378.00
Special spoon, fork and plate [242] 2,661.00
Adjustable beds and pressure mattresses [243] 11,720.00
Electric toothbrushes [244] 1,200.00
Portable communication device [245] 65,388.00
Computer (including recurring costs) [248] 61,127.00
Portable ramps [249] 1,581.00
Cushioned toilet seat [250] 2,337.00
Portable bed pan [251] 243.00
Over-bed tables [252] 1,108.00
Portable folding commode [253] 3,026.00
Sub-total$253,613.00
Future Home Modifications
Deferred value of modifications to present or
future home [257] 80,000.00
Maintenance [258] 77,939.00
Heated pool [259] 10,000.00
Air-conditioning unit [260] Disallowed
Future maintenance of heated pool [261] 5,000.00
Hoists [262] 30,667.00
Sub-total$203,606.00
TOTAL Future Costs$705,639.00
Cost of initial vehicle [265] 71,224.00
Standing and running costs [265] 221,442.00
Hands-free mobile phone [267] 4,175.00
Increased holiday costs [270] 130,000.00
Past Griffiths v Kerkemeyer damages [276] 1,144,556.00
Future care [283] 4,356,002.00
Professional supervision of carers [284] 130,000.00
Professional handyman [286] 67,550.00
Loss of earning capacity [291] 693,603.00
Loss of 9% employer superannuation contributions [292] 62,419.00
Economic benefit of likelihood of marriage [293] Disallowed
Fund management [294] To be determined
Sub-total$6,880,971.00
TOTAL$8,380,660.00
The present calculation of these damages is in a sum not less than $8,380,660.00. That calculation does not include the sum of $550,000.00 for medical and allied health professional supplies funded by the defendants. It also does not include the costs of fund management upon which matter I indicate that I will further hear the parties when, as a result of whatever orders I am asked to make, the final sum to be administered has been determined.
The sum awarded is a very significant figure. On the other hand, there is no doubting the magnitude of the plaintiff’s disabilities and her losses. The purpose of damages is to award such sum of money as will, as nearly as possible, put the plaintiff in the same position as if she had not been injured by the defendants’ negligence. It follows that the amount that I propose to award I regard as just and proper compensation.
I anticipate the need in some cases to make arithmetical corrections and adjustments to the amounts awarded in this judgment and the parties have leave to apply for that purpose.
I will hear the parties on costs and the final form of the orders to be made and I stand the matter over to a date to be agreed between the parties.
I certify that the preceding three hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 19 March 2004
Counsel for the plaintiff: Mr P Webb QC with Mr D Graham
Solicitor for the plaintiff: McClellands
Counsel for the first defendant: Mr D Higgs SC
Solicitor for the first defendant: Tress Cocks & Maddox
Counsel for the second defendant: Mr P Donohoe QC and then
Mr R Meldrum QC with Ms P Burton
Solicitor for the second defendant: ACT Government Solicitor
Dates of hearing: 23, 24, 25, 26, 27, 30, 31 October 2000,
1, 2, 6, 8, 9, 10, 13, 15, 16, 17 November 2000
27, 28 February, 2001
1, 2, 6, 7, 8, 9, 13, 14, 15, March 2001
13, 14, 15, 16, 20, 21, 22, 23, 24, 27, 28 August 2001
12, 13, 14,19, 20, 21, 22 March 2002
2, 3, 4, 5, 8, 9, 11 April 2002
22, 23, 24, 25, 26 July 2002
Date of judgment: 19 March 2004
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