McLennan v McCallum - [2010] WASCA 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MCLENNAN -v- MCCALLUM [2010] WASCA 45

CORAM: McLURE P
BUSS JA
NEWNES JA

HEARD: 19 NOVEMBER 2009

DELIVERED : 12 MARCH 2010

FILE NO/S: CACV 90 of 2007

BETWEEN: JACOB RIELEY MCLENNAN by his next friend YVONNE JOYCE MCLENNAN
Appellant
AND
KEITH ARNOLD MCCALLUM
First Respondent
THE MINISTER FOR HEALTH
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :JACOB RIELY [SIC] MCLENNAN an infant suing by his next friend YVONNE JOYCE MCLENNAN & ANOR -v- MCCALLUM & ANOR [2007] WADC 67
File No  :CIV 959 of 2003

Catchwords:

Tort - Medical negligence - Appellant born with severe encephalopathy - Whether obstetrician negligent - Whether nursing staff negligent - Causation - Turns on own facts

Appeal - Whether appellant should be permitted to advance a new case on appeal - Whether appellant should be permitted to re-amend his statement of claim - Whether appellant should be permitted to re-amend his orders wanted on appeal to claim a re-trial - Turns on own facts

Legislation:

Nil

Result:

Application to re-amend the statement of claim dismissed
Application to re-amend the orders wanted dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr A G Melick SC & Mr D H Hirsch
First Respondent           :     Mr C L Zelestis QC & Mr J A Thomson
Second Respondent      :     Ms C J Thatcher

Solicitors:

Appellant:     Julian Johnson Lawyers
First Respondent           :     Panetta McGrath Lawyers
Second Respondent      :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279
Bell v Lever Brothers Ltd [1932] AC 161
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Findlay v State of Victoria [2009] VSCA 294
Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; (2007) Aust Torts Reports 81-891
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632
Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 158 CLR 447
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

INDEX

Buss JA's reasons

Overview of the appellant's case at trial
Overview of Dr McCallum's case at trial
Overview of the Minister's case at trial
Risks associated with breech presentation
Overview of the management of the appellant's mother in the Hospital
The principal witnesses at trial
The trial judge's findings of fact and conclusions
Certain interlocutory procedures in the appeal
The amended grounds of appeal
The proposed re‑amendments to the statement of claim
The appellant's proposed re‑amended orders wanted
The appellant's proposed new case in the appeal
The general principles of appellate review
The principles relating to the advancing of a new case on appeal
The principles governing the amendment on appeal of a statement of claim or defence at trial
The principles governing whether an appellate court should order a re‑trial
The organisation of the balance of these reasons
Ground 1 of the appeal: the appellant's submissions
The merits of ground 1 of the appeal
Ground 2 of the appeal: the appellant's submissions
The merits of ground 2 of the appeal
Ground 3 of the appeal: the appellant's submissions
The merits of ground 3 of the appeal
Ground 4 of the appeal: the appellant's submissions
The merits of ground 4 of the appeal: general
The merits of ground 4: the period of bradycardia
The merits of ground 4: cord compression causing bradycardia
The merits of ground 4: the prolapsed foot at 0415 hours caused the cord compression
The merits of ground 4: the appellant's cerebral palsy was not caused by antenatal neuropathology
The merits of ground 4: conclusion
The appeal generally: should the appellant be permitted to advance his proposed new case?
The application to re‑amend the statement of claim
The application to re‑amend the orders wanted
Result of the appeal

McLURE P: I agree with Buss JA.
BUSS JA: On 15 May 1997, the appellant was born at Kalgoorlie Regional Hospital (the Hospital) with severe encephalopathy (dyskinetic cerebral palsy). He is severely disabled.
The first respondent (Dr McCallum) is an obstetrician. The second respondent (the Minister) is the Board of Management of the Hospital pursuant to s 7 of the Hospitals and Health Services Act 1927 (WA).
The appellant's mother consulted her general medical practitioner, Dr Date, at monthly intervals, until 30 weeks into the term of her pregnancy with the appellant, and thereafter on a fortnightly basis. When she saw Dr Date at about 36 weeks, he told her that the foetus was in breech position. Dr Date referred her to Dr McCallum.
On 7 May 1997, the appellant's mother consulted Dr McCallum for the first time in relation to this pregnancy. On 14 May 1997, Dr McCallum arranged for her to be admitted to the Hospital that evening for an induced vaginal delivery. Dr McCallum delivered the appellant by an induced vaginal delivery at 0458 hours on 15 May 1997.
In 2003, the appellant (as first plaintiff) and his mother (as second plaintiff) commenced proceedings in the District Court against Dr McCallum (as first defendant) and the Minister (as second defendant).
The appellant alleged that each of Dr McCallum and the Minister had owed him a duty of care and that each of them had breached it. It was alleged that the negligence of Dr McCallum and further, or alternatively, the negligence of the Minister's nursing staff, had caused his cerebral palsy.
The appellant's mother also alleged that each of Dr McCallum and the Minister had owed her a duty of care and that each of them had breached it. It was alleged that the negligence of Dr McCallum and further, or alternatively, the negligence of the Minister's nursing staff, had caused her to suffer loss of enjoyment in giving birth to a healthy child, nervous shock and depression.
Dr McCallum and the Minister denied liability.
After a trial in the District Court, Wisbey DCJ dismissed the claims of the appellant and his mother.

The appellant (but not his mother) appeals to this court. Damages are not in issue. Quantum was agreed before trial in the sum of $8,000,000, subject to any significant change in circumstances.

Overview of the appellant's case at trial

At trial, the appellant alleged, in essence, against Dr McCallum that on 7 May 1997, and again on 14 May 1997, the appellant was presenting for birth in a double footling breech position, and Dr McCallum should have realised that was the case. Further, and as a result of this assessment, Dr McCallum should have delivered the appellant by Caesarean section, rather than by an induced vaginal delivery. Alternatively, at some point before the rupture of the appellant's mother's membranes at about 0315 to 0330 hours on 15 May 1997, Dr McCallum should have delivered the appellant by Caesarean section before 0400 hours. The appellant alleged that if a Caesarean section delivery had been carried out he would not have suffered from cerebral palsy.
At trial, the appellant alleged, in essence, against the Minister that the Minister's nursing staff failed properly to notify Dr McCallum of various events in the course of the appellant's mother's labour, failed continuously to monitor the progress of her labour with cardiotocography (CTG) monitoring, and failed properly to manage a sudden incident of bradycardia which occurred shortly before delivery.

Overview of Dr McCallum's case at trial

At trial, Dr McCallum accepted that if the appellant had presented in a footling breech position when he examined the appellant's mother on 7 or 14 May 1997, it would have been negligent for him not to have delivered the appellant by Caesarean section. However, Dr McCallum alleged that the appellant had in fact presented in an extended (frank) breech position on 7 May 1997, and in a flexed (complete) breech position when his mother was admitted to the Hospital on the evening of 14 May 1997.
Dr McCallum alleged that even if, which he denied, the appellant had presented in a footling breech position when he examined the appellant's mother on 7 or 14 May 1997, the appellant had actually sustained his cerebral palsy as a result of some compromise which had occurred before the commencement of the labour and delivery process, and not during that process.

Overview of the Minister's case at trial

At trial, the Minister alleged that at all material times the appellant's presentation was as a flexed (complete) breech. There was nothing out of the ordinary about the labour and delivery process before the sudden incident of bradycardia, that would have required a Caesarean section. Upon the occurrence of this incident, the proper course of action was to deliver the appellant as soon as possible, and this was done by the Minister's nursing staff. After the sudden incident of bradycardia, it was unlikely that a Caesarean section could have been organised and performed in less time than it actually took to deliver the appellant.
Like Dr McCallum, the Minister alleged that, in any event, the appellant had actually sustained his cerebral palsy as a result of an established antenatal neuropathology, rather than hypoxia during birth.

Risks associated with breech presentation

There are, in essence, three types of breech presentation.
First, there is the frank or extended breech. This occurs when the lower limbs are fully flexed at the hip and fully extended at the knee so the feet are at about head level.
Secondly, there is the flexed or complete breech. This occurs when the hips and knees are flexed so that the buttocks and feet are level.
Thirdly, there is the footling or incomplete breech. This occurs when the legs are extended downwards so that the feet (or a foot) are the presenting part, and the foetus is, in essence, in an upright or standing position.
The usual presentation for a foetus before delivery is the cephalic presentation. The foetus' head (which is the largest part of the foetus) is the presenting part.
When there is a footling or incomplete breech, the feet can enter the introitus before the cervix is fully dilated. There is a risk that the feet, legs and trunk will be delivered through the incompletely dilated cervix, but the head cannot be delivered. This is known as head entrapment. Also, when there is a footling or incomplete breech, the presenting part does not fit snugly with the introitus and, in consequence, when the membranes rupture there is a greater risk of the cord prolapsing through the cervix. If the cord prolapses, the cord will be compressed and the supply of oxygenated blood to the foetus will be disrupted.
When a flexed or complete breech occurs, the feet and buttocks are the presenting part. They are unlikely to be delivered until the cervix is completely dilated.

Overview of the management of the appellant's mother in the Hospital

As I have mentioned, on 14 May 1997, the appellant's mother was admitted to the Hospital for an induced vaginal delivery. Dr McCallum intended that the appellant's mother should have a trial of labour and, if this proceeded normally, the appellant would be delivered vaginally.
Dr McCallum examined the appellant's mother at about 1800 hours on 14 May 1997. He conducted an ultrasound examination. According to Dr McCallum, the appellant was then in a flexed or complete breech position. Dr McCallum administered 1 mg of Prostin, a prostaglandin which ripens the cervix and may induce labour. He also ordered electronic CTG monitoring to commence 30 minutes after the administration of the Prostin. The monitoring was to continue for 30 minutes. Pursuant to this instruction, electronic CTG monitoring commenced at 1821 hours and continued until 1915 hours. Dr McCallum drew a diagram in the Integrated Progress Notes. There was a dispute at trial as to whether his diagram depicted a flexed or complete breech or whether it depicted a footling or incomplete breech.
At about 0315 to 0330 hours on 15 May 1997, the appellant's mother's membranes ruptured spontaneously. The Hospital's nursing staff performed a vaginal examination at about 0330 hours. This confirmed that the cervix was dilated to 2 - 3 cm. The cord was not felt. At about 0400 hours, the appellant's mother was taken to the labour ward. An entry was made in the Integrated Progress Notes that the mother was 'contracting more strongly'.
At trial, the parties disputed the timing of events which occurred after 0400 hours on 15 May 1997.
The appellant alleged that his mother went to the toilet at about 0415 hours.
The Integrated Progress Notes, with a recorded time of 0430 hours, say:
[W]ent to toilet to void and felt 'something'. Returned to bed and placed in lithotomy position. Foot on view. Dr Date and Dr McCallum notified at 0440 hours. FHR $ 90 not picking up after contractions [that is, the sudden incident of bradycardia]. O² 6LPM (oxygen 6 litres per minute) via Hudson mask applied to mother. Pushing. Assisted delivery of shoulders and head. Baby [apnoeic] at birth. N Gilks RM.
The time '0430' appears in the margin. In the two previous entries, times are recorded in the body of the notes by midwife Gilks. The time '0430' also has a mark above the 3. The time '0450 hours' appears in the margin in the line commencing 'view'. The time '0500' appears in the margin in the line commencing 'pushing'.
The next entry, written by Dr McCallum, reads:
5am called to ward with meconium and $ FH arrived and breech assisted delivery within 2 minutes of arrival. Baby pale. FH approximately 60 ‑ areflexia. Doctors called to LW (Labour Ward). " resuss (resuscitation) and mask O² with cardiac massage. Dr Date arrived. HR # 120 within 1 minute but no respiratory effort until approximately 8 minutes with occ (occasional) gasping. Aspirated mucus and attempted intubation at approximately 10 ‑ 12 minutes. FH and colour good. Dr Jeffries arrived approximately 16 mins and took over resuss.
In the note there is a symbol used for 'approximately'.
Midwife Gilks also recorded in the Integrated Progress Notes:
'Breech delivery at 0458 hours. Dr McCallum in attendance as shoulders were delivering. Rapid delivery. Baby did not breathe at birth. [Resuscitation] commenced immediately. 0508 hours Dr Date in attendance. Dr Jeffries called. Baby bagged and masked until intubated at 0520 hours. N Gilks RM.
The trial judge's findings on the disputed timing of events were these:
Although not demonstrably certain (some of the hospital recording involved a degree of retrospection) it appears that the emergency consequent upon the drop in the foetal heart rate occurred between 0430 and 0450 (probably 0440). [Dr McCallum] was immediately notified, would have arrived with 5 minutes of notification, and [the appellant] was delivered within minutes of his arrival ‑ certainly by 0457 hours. Nurse Jones estimated a period of 15/20 minutes between emergency and delivery. Thus the maximum period of foetal bradycardia would have been no more than 15 or 20 minutes, and the statement of claim does not seem to assert otherwise [206].
The Apgar score is a score to indicate the condition of a baby at birth. A score of 0, 1 or 2 is awarded for each of 5 criteria, namely colour, respiration, reflex irritability, muscle tone and heart rate. The appellant's Apgar scores were recorded as 1 (for heart rate) at 1 minute, 3 (2 for heart rate and one for colour) at 5 minutes, 3 at 10 minutes and 3 at 15 minutes.

The principal witnesses at trial

The principal witnesses at trial were as follows:
(a)Mrs McLennan, the appellant's mother;
(b)Dr McCallum;
(c)Dr Date, Mrs McLennan's general practitioner;
(d)Dr Thonell, a paediatric radiologist;
(e)Professor Colditz, professor of perinatal medicine;
(f)Dr Molloy, a consultant obstetrician and gynaecologist;
(g)Mr MacKay, formerly a professor of obstetrics and gynaecology;
(h)Mr Korda, a fellow of the Royal College of Obstetricians and Gynaecologists;
(i)Professor MacLennan, professor of obstetrics and gynaecology;
(j)Associate Professor Pettigrew, an obstetrician and gynaecologist;
(k)Dr Renou, an obstetrician and gynaecologist;
(l)Ms Jones, a midwife and nurse manager;
(m)Ms Freeman, a qualified midwife and, at the material time, a trainee midwife.
Midwife Gilks died before the trial.

The trial judge's findings of fact and conclusions

The trial judge found that the appellant had not presented as a footling breech on 7 or 14 May 1997 [239]. He also found that the presentation immediately before birth was a flexed or complete breech [239].
His Honour, having found that there was not at any material time a footling breech, went on to consider whether Dr McCallum had been negligent in any respect in the manner in which he had managed the appellant's mother's labour on the basis of his finding that the appellant had presented in a flexed or complete breech position.
The trial judge reviewed the expert evidence concerning whether it was appropriate in 1997 for an obstetrician to carry out a vaginal delivery of a baby presenting as a flexed or complete breech:
[The appellant's] case was essentially mounted on the basis that there was a footling breech, and there can be no doubt that if that had been the position, to advise and proceed to natural delivery would have been negligent. That is readily conceded by [Dr McCallum]. However he has failed to establish the allegation that there was a double footling breech presentation.
Having regard to the manner in which the case was presented it is necessary however to determine whether the exercise of reasonable obstetric care and skill dictated it was inappropriate in 1997 to undertake the natural delivery of a flexed or complete breech.
Generally, the witnesses called by [the appellant] had some reluctance addressing that issue, being firmly of the view that [the appellant] presented as a footling breech, and before proceeding further, it is necessary that I make some general remarks about my assessment of the medical experts.
Dr Thonell, an experienced paediatric radiologist, interpreted and described the results of ultrasound and CT examinations. There does not seem to be any dispute as to his finding of basal ganglia injury, the issue being its cause and timing.
Professor Colditz is a perinatal clinician with a special interest in brain development and damage in the foetus and the new born. In the end there did not appear to be a great deal of divergence between his views and those of Professor MacLennan, save as to causation. He was influenced by the belief that there had been a footling breech presentation.
Dr Molloy was firmly of the view that there was a footling breech presentation and confirmed that his views were based on that premise, and the events timing from the hospital records. There were occasions during his evidence when he displayed a lack of objectivity. He was unaware of the Hannah trial initiative research which was very relevant to the issues under discussion, and to his discipline.
Mr MacKay lacks contemporary practical involvement in obstetrics, and the views he expressed were clearly influenced by his conclusion that there was a footling breech presentation. His evidence that when the foetal heart rate dropped to 90 steps should have been taken to delay the birth process, did not find support with any other witness. He appeared too enthusiastic in his support of the case for [the appellant].
Mr Korda's views were also clearly influenced by the belief that there was a footling breech presentation.
Professor MacLennan appeared to have the broadest experience as to the issues involved in this particular case. He was heavily criticised about his published views on medical negligence and the legal process. Also that he was biased because he has been sued for professional negligence. His views would not be regarded by many as aberrant and do not reflect adversely on the quality of his evidence which he gave in an objective, thoughtful and analytical manner. I felt however that he often demonstrated a requirement for scientific proof before accepting a position.
Associate Professor Pettigrew and Dr Renou appeared to have considerable practical and contemporary experience with the issues involved in this action, and generally I accept their evidence.
Dr Molloy accepted that provided the foetus was not large (which was the case), and because Mrs McLennan [the appellant's mother] had a previous cephalic delivery, it would not have been inappropriate to have contemplated natural delivery in the case of a flexed or complete breech, although expressing the view that there would need to be monitoring throughout labour.
Mr MacKay agreed that a frank breech and a flexed or complete breech did not create the same level of risk of cord prolapse or entanglement as a footling breech, and agreed reluctantly that prior to the outcome of the Hannah trial in the year 2000 there was no general obstetric practice in respect to advising caesarean section for other than a footling breech. He accepted that [the appellant] was quite a small baby, and that it was reasonable to expect that he would pose no problem negotiating the birth canal – as events demonstrated.
Mr Korda was of the view that in 1997 one would not have expected a caesarean section for a frank or extended breech, and agreed that the risks associated with a flexed or complete breech were only slightly higher than with an extended breech. He agreed that the standard of care in 1997 demanded the recommendation of a caesarean section for a footling breech, but that before the outcome of the Hannah trial became known it was the standard to allow a trial of labour for a flexed or complete breech. He was also of the view that full monitoring was required when there was natural delivery of a breech.
Professor MacLennan's evidence was that before the Hannah trial, excluding a footling breech, it was not known which form of delivery was best overall for mother and child. He accepted that in 1997 natural delivery of a flexed or complete breech was within the range of reasonable clinical options if there were no other known major clinical risk factors presenting; as demonstrated by the fact that complete breeches were included in the ethically approved international term breech trial (the Hannah trial). Prior to the Hannah trial there was no good evidence that delivering a complete breech by elective caesarean section was preferable to embarking upon a trial of labour and natural delivery.
Associate Professor Pettigrew expressed the view that as at May 1997 there was no evidence to suggest that a caesarean section carried greater benefit than vaginal delivery in terms of foetal outcome for a complete breech.
Dr Renou said that as at 1997 a decision to deliver a flexed or complete breech vaginally was appropriate, and particularly in Mrs McLennan's [the appellant's mother] case as she had a normal past obstetric history, and no other medical abnormalities there was no reason to suppose she shouldn't undergo a natural birth process.
Clearly, [Dr McCallum] was of the view that natural birth was appropriate, and Mrs McLennan [the appellant's mother] desired it [244] ‑ [260].

His Honour's conclusion in relation to Dr McCallum's decision to carry out a vaginal delivery, based on his Honour's finding that the appellant had presented in a flexed or complete breech position, was as follows:
I am not satisfied on the balance of probabilities that it was negligent of [Dr McCallum] to advise Mrs McLennan [the appellant's mother] that it was appropriate to undergo a natural delivery. The Hannah trial is eloquent of the fact that the state of obstetric learning at that time was that it was not contra indicated [261].
Next, his Honour considered whether it was inappropriate for Dr McCallum to have utilised Prostin to ripen the appellant's mother's cervix before induction:
I am not satisfied that it was inappropriate for [Dr McCallum] to utilise the agent Prostin prior to induction. Professor Colditz agreed that it was commonly used. Dr Molloy considered that it was inappropriate, although seemingly on the basis that there was a footling breech presentation. He agreed that it was widely used in 1997. Mr MacKay expressed the view that it was the cause of the fairly rapid labour, had resulted in hyper-stimulation of the uterus, and that as the cervix did not need to be softened, its use was inappropriate. If used, careful observation, particularly of contractions, was necessary. He accepted however that generally speaking there was no problem with the use of Prostin to 'ripen' the cervix, and it was commonly used as at 1997. The evidence does not establish that there was hyper-stimulation of the uterus. Mr Korda also agreed that in 1997 it was common place to administer Prostin in an induction process for the purpose of 'ripening' the cervix, stating that whether or not it was employed was a decision to be arrived at following physical and ultrasound examination. Professor MacLennan who, as I have already observed, has particular knowledge of the use of Prostin, stated that it was of considerable benefit and an appropriate agent in achieving a safe, short and comfortable labour and better outcome overall, and was particularly useful in natural breech deliveries. Associate Professor Pettigrew regarded its use as appropriate. Dr Renou also regarded its use as appropriate, stating that a complete breech would not have been considered a mal‑presentation in 1997, and that generally it facilitated expeditious and safe delivery, and was not likely to hyper-stimulate the uterus. [Dr McCallum], having carried out a clinical examination, was in the best position to determine the appropriateness of its use, and the manufacturer's recommendation did not preclude it. Its use in these circumstances was entirely appropriate, particularly as the evidence does not establish that there was hyperstimulation of the uterus [262].
The trial judge then examined whether the monitoring of the appellant's mother during labour was appropriate:
The [appellant] also alleges that there was inappropriate monitoring of Mrs McLennan [the appellant's mother] during labour, and in particular asserts that there should have been electronic monitoring. Dr Molloy was of the view that continuous monitoring was required, but that view seems to be based on the premise that there was a footling breech. He agreed that the recordings from electronic auscultation up until 0400 hours on 15 May 1997 was indicative of a perfectly natural onset of labour, but claimed that because there was a lack of continuous monitoring it was not known what was happening during contractions. Mr MacKay considered that in a case such as this, where there was an ever present risk of major umbilical cord compression, intermittent foetal heart rate auscultation was not appropriate. (I do not accept on the evidence that there was an ever present risk of major umbilical cord compression.) He accepted that the trace did not indicate that the contractions were having an adverse effect on the foetus, and that is accepted in the pleading. He agreed that in the low risk situation intermittent auscultation was appropriate, and that as at 1997 the general practice in maternity hospitals was to use manual auscultation, and only use electronic monitoring when there were some particular labour concerns. He also accepted that a CTG monitor (trace) required careful interpretation, and was not on its own a particularly useful test. It did not indicate the strength of uterine contractions, and it was possible to detect hyperstimulation by manual auscultation. Professor MacLennan stated that there is still considerable debate about the relative value of electronic foetal monitoring as against intermittent auscultation without good evidence of the superiority of either method, noting particularly that statistically electronic foetal monitoring had a false positive rate of 99.8 per cent, resulting in unnecessary caesarean deliveries. He agreed that one of the purposes of electronic foetal monitoring was to detect cord compression, and that the protocol in most hospitals in 1997 was that there would be a brief period of monitoring after membrane rupture, re-established when labour pains commenced. Notwithstanding, he was of the view that electronic monitoring during labour was not essential, and stated that was still not standard practice. Associate Professor Pettigrew was of the view that the extent of electronic monitoring in this case was entirely appropriate, and that the CTG trace appeared to be normal, there being no evidence of hyper-stimulation or intrauterine hypoxia, although he would have preferred to have seen the trace go on a little bit longer. He disputed that continuous CTG monitoring was required, stating that it was not the practice in most institutions. Dr Renou also regarded the CTG trace as essentially normal, considering that at the time of the cessation of the trace the foetal heart rate was normal, and the uterine contractions were not significant. He did not support the necessity for electronic monitoring.
The evidence establishes that the foetal heart rate was unremarkable up until at least 0425 hours.
Having regard to the fact that the foetus did not present as a footling breech, I am not satisfied on all the evidence that electronic auscultation during the period proximate to the insertion of Prostin, followed by what appears to be regular manual auscultation up to and during labour was inappropriate. I accept the evidence of Professor MacLennan, Associate Professor Pettigrew and Dr Renou that as at May 1997 a competent obstetrician exercising reasonable care and skill would not in this case have regarded continuous CTG monitoring as necessary [263] ‑ [265].
His Honour then examined briefly an allegation in the statement of claim as to the inappropriateness of an induced delivery:
The statement of claim refers to the inappropriateness of an induced delivery, although that seems to be based on the proposition that there should have been an abdominal delivery. In any event there appears to have been a natural onset of labour, and the evidence does not establish that it would have been medically inappropriate to have induced delivery having regard to the imperatives outlined by the [Dr McCallum] [266].
In the result, the trial judge determined that the appellant had failed to make out any of his allegations of negligence against Dr McCallum [267].
His Honour also found that the Minister had not been negligent. His findings and conclusions were these:
[Dr McCallum] was a visiting medical officer and the sole obstetric/gynaecological specialist practising at the Kalgoorlie Regional Hospital. The nursing staff of the hospital not surprisingly followed his medical directions; and unless the [Minister] knew or ought to have known that any directions given constituted inappropriate medical practice, it would not be in breach of its duty to [the appellant] to comply with them.
The burden of the expert evidence is that the CTG trace demonstrated an unremarkable position in respect of the foetal heart beat and uterine contractions. Clearly the hospital's obligation only dictated reporting any adverse or unexpected result to [Dr McCallum], who incidentally viewed the trace prior to leaving the hospital, at which stage it had been active for about 15 minutes. [Dr McCallum's] evidence was that there was nothing demonstrated by the trace recording that would have caused him to alter the birth plan in any way. Had the staff of the [Minister] brought the total recording to [Dr McCallum's] attention it would not have been of consequence.
I accept [Dr McCallum's] evidence that Nurse Gilks rang him in the early hours of 15 May to advise that Mrs McLennan's [the appellant's mother] membranes had ruptured, and provide other clinical information. Having regard to her professionalism that would not be unexpected. She was advised by [Dr McCallum] to carry on with normal management.
Having regard to my finding that continuous CTG monitoring was not required, and that manual auscultation was appropriate, the [Minister] was not negligent in failing to implement continuous electronic monitoring, or to institute electronic monitoring after the rupture of the membranes.
The evidence establishes that until 0430 hours on 15 May 1997 there was no clinical indication that labour was not proceeding normally, and when the foetal heart beat was recorded at 90 the only practical and rational step was to deliver [the appellant] as quickly as possible; necessarily naturally. Appropriate steps were taken in that regard. Any course of action not directed to that end was contrary to proper medical practice.
It has not been established that the [Minister] was in breach of duty to [the appellant] [268] ‑ [273].
Next, the trial judge addressed the issue of causation. His Honour was not satisfied that the appellant's condition arose out of any particular event during the labour or delivery process. He began by reviewing the expert evidence:
It is accepted that [the appellant] was born with severe encephalopathy, and the question is what was its cause.
Dr Thonell stated that where a baby's brain was denied oxygen it would manifest in brain swelling and reduced attenuation in parts of the brain that had been ischaemic. Maximum swelling would occur between 2 to 3 days of the triggering event and then begin to resolve. If swelling was observed radiologically all that could be said is that it had occurred within 2 or 3 days of its identification. His interpretation was that the cranial ultrasound performed on 16 May 1997 indicated moderate generalised oedema. The cranial ultrasound performed on 20 May 1997 suggested some resolution. The CT scan carried out on 20 May 1997 indicated widespread changes suggestive of area of cerebral oedema or infarction. He considered that scanning demonstrated increased blood perfusion in the basal ganglia most often associated with a sudden severe hypoxic event. The likelihood was that the changes observed radiologically were referable to an event or events either shortly before, during or immediately after birth, and that it would require a severe and sudden injury to the brain to result in the observable damage to the basal ganglia.
Professor Colditz, a participant and contributor to the 1999 International Consensus Statement, confirmed the view expressed in the statement that acute intrapartum events were an uncommon cause of cerebral palsy. A foetus was well accustomed to living in an hypoxic environment and hypoxia alone was unlikely to damage the foetal brain. Brain damage resulted from a complete lack of oxygen to the brain tissue which would result if the blood flow failed, possibly resulting in hypoxic ischaemic encephalopathy. He agreed that cerebral palsy was more commonly encountered in a growth restricted foetus, although the vast majority of growth restricted babies did not develop cerebral palsy. Growth restriction was a risk factor. Also, that the risk of cerebral palsy was higher for a foetus in breech presentation, although again the vast majority of those in breech did not develop that condition. At trial he resiled from the position he had earlier taken, and agreed that [the appellant] was growth restricted (below the 10th percentile) and that intrauterine growth restriction was a risk factor for cerebral palsy which he put at between 1.6 to sixfold. His view was that the radiological evidence of basal ganglia injury was confirmatory of a severe hypoxic ischaemic injury. He conceded that he didn't not know what the singleton hypoxic event was causing the condition because the uterus had not ruptured and the foetus was from all observations doing quite well until there was sudden and sustained bradycardia 'for no particular reason'. He then inferred that there had been an hypoxic event namely cord compression notwithstanding that he was unable to identify it or its timing. He accepted that the hospital records indicated that the foetal heart rate was normal up until 0425 hours on 15 May 1997.
Dr Molloy considered that [the appellant] was probably in an hypoxic state because of cord compression. Compression was deleterious when it occurred over a long period of time.
Mr MacKay considered that it was virtually certain that the drop in the foetal heart rate was caused by cord compression or possibly hyperstimulation. He agreed that [the appellant], being a small baby, would pose no problem negotiating the birth canal. He drew the inference that there was cord compression from the fact that in his view there was no other logical explanation for the fall in the foetal heart rate.
[Dr McCallum's] evidence was that there had not been any head entrapment or cord prolapse or entanglement, and no clinical indication of cord compression. He arranged an ultrasound following admission and ascertained that there were no cord problems at that time.
Professor MacLennan stated that considerable research into cerebral palsy had led to the presently held the view that only 1 per cent of babies born with the condition were thought to have been compromised by an acute de novo primary asphyxial event in labour. Over the 38 years since he commenced practice the incidence of cerebral palsy in term births had not changed notwithstanding the dramatic escalation in the rate of caesarean sections before labour, more efficient surgical methods, a dramatic increase in electronic foetal monitoring, and better neonatal resuscitation. He considered that [the appellant's] birth [weight] was around the third percentile, and that he had asymmetrical growth restriction. Professor MacLennan referred to the report of Dr Ian Walpole commenting on very deep hand and feet creases which was possibly indicative of an unsound intrauterine environment. The consensus of current scientific evidence was that the neuropathology of cerebral palsy was established silently during pregnancy, and that signs of foetal neurological compromise often did not appear until the stresses of labour. His view was that the risk of cerebral palsy was approximately tenfold in term babies under the 10th percentile in weight for gestational age. One third of babies born with cerebral palsy had an inflammatory response syndrome. A foetal heart rate of 90 was not indicative of total hypoxia and was present in approximately one third of all second stage labours. He accepted that in a small number of cases neuropathology could begin and become established in a healthy foetus following an acute hypoxic event intrapartum. His conclusion was that [the appellant] was already chronically stressed with resultant intrauterine growth restriction and reduced reserves, and experienced further stress in a rapid labour and assisted breach delivery. There was no theoretical explanation why an intact healthy foetal brain would have become acutely and severely ischaemic or hypoxic during what was a short labour, and it was more likely that the neuropathology of the cerebral palsy was already established before labour. He stated that it was impossible for a radiologist to differentiate between late peri-natal neurological compromise and that in a growth retarded foetus where final and irreversible neuropathology was established only in the last 2 hours before delivery. Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck or fell down and got compressed by the presenting part above it. Research had demonstrated that intrauterine growth restriction was a major risk for cerebral palsy. He would not accept that there was acute de novo hypoxia between 0440 hours and 0457 hours, stating that [the appellant] was very severely growth restricted (23 per cent down on his weight) indicative of the fact that he had been chronically [compromised] for weeks. He was not a healthy baby going into labour.
Dr Renou referred to [the appellant's] birth weight stating that he was born in a very poor condition with gross central nervous system dysfunction which was unlikely to be the consequence of the quick and uncomplicated labour. He thought that the CTG trace suggested an abnormal response to the normal stresses of early labour in a baby who already had severe central nervous system dysfunction.
Dr Walsh, a paediatric neurologist, speculated that [the appellant] may have suffered some adverse events during pregnancy which could have made him particularly sensitive to a mild degree of hypoxia at birth; apparently being troubled by the incongruity between the benign labour and the neurological outcome. He felt that the EEGs were consistent with hypoxic ischaemic encephalopathy.
Another paediatric neurologist Dr Lindsay Smith reported on 22 October 2002 (Exhibit 10.93) that:
'The major thrust as I indicated in my report of the Monday the 2nd of September 2002 on page 4 first paragraph is whether or not [the appellant] was abnormal prior to delivery or not. I posed this question to mother directly during the consultation in relation to the unexplained, presumed to be drug reaction to sodium malproate, coma at the age of 3 years. The alternative explanation for this is that he has an inborn error of metabolism that falls in to the mitochondrial group and that the ability of the brain to withstand the stresses and strains of both delivery and of other post natal events is severely compromised leading to a decrease in function. This does not obviate the fact that such stresses and strains did occur and if it is reasonable that he had a pre-existing condition then certainly the mode of delivery would have exacerbated his present level of disability. I strongly recommend that the specific question be directed to his treating physician Dr Avihu Boneh, Metabolic Physician, Genetics Health, Royal Children's Hospital, Flemington Road, Parkville, in relation to the question of the underlying diagnosis and the likelihood that this young man had a pre-existing abnormality.'
The evidence is silent as to any metabolic enquiry.
Dr Ian Walpole a consultant geneticist reported on 4 November 1997 (Exhibit 10.16) inter alia that:
'Findings of note were multiple pressure dimples on bony prominences, and it was difficult to extend the fingers of both hands, right more than left. The transverse palmar creases were extremely deep and I believe would be indicative of intrauterine fisting…
I think that in light of the nature of clinical signs present at birth the intrauterine foetal condition had not been sound, as reflected in the poor response to birth stress, the very deep hand and foot creases which may be attributed to long standing clenching and the subcutaneous dimples as seen in hypokineses.'
Considerable attention was directed during the trial to the Consensus Statement and the factors which it requires to be established before it can be asserted that cerebral palsy is the result of an acute intrapartum hypoxic event. Clearly the Statement is looking at causation from a scientific rather than legal perspective. The Court's task is to determine whether 'as a matter of common sense' on the balance of probabilities [the appellant's] condition can be attributed to an acute intrapartum hypoxic event. The Consensus Statement is significant however in that it is an acknowledgment by a substantial international body of medical expertise in this area that cerebral palsy is rarely the consequence of an acute intrapartum hypoxic event. Also that intrauterine growth restriction appears to have a reasonable association with the condition (it is a risk factor). Further that there is doubt as to the efficacy of electronic foetal monitoring [278] ‑ [289].

His Honour then considered the circumstances of the present case in the context of the expert evidence:
It is axiomatic that the burden of proof is on the [the appellant] to establish on the balance of probabilities that the condition of cerebral palsy was caused by an event during labour. ('a period of oxygen deprivation' ‑ par 34 of statement of claim.)
The evidence of Nurses Jones, Freeman and [Dr McCallum], and the integrated progress notes and partogram, demonstrate that there was no rupture of the uterus, placental abruption, head entrapment, or cord entanglement or prolapse; and there was a rapid labour and delivery.
[Dr McCallum] did not identify any clinical evidence of cord compression, and having regard to the speed of the delivery, if such there was, it would have been of short duration and would not have been expected to have resulted in brain damage.
Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck, or fell down and got compressed by the presenting part above it. There is no evidence of such occurrence.
The experts who support the proposition that there was cord compression resulting in hypoxia and subsequent brain damage, appear to draw that inference from the fact that they believe there was a footling breech presentation; the drop in foetal heart rate with none detectable [sic] immediately prior to birth; the subsequent radiological imaging; and an inability to ascribe any other cause.
As against that there was an apparently benign labour, and I am satisfied that [the appellant] was asymmetrically growth restricted, indicative of an unsound intrauterine environment, which is a risk factor having an association with cerebral palsy. That raises the possibility that the drop in the foetal heart rate was part of the clinical reaction of a chronically compromised foetus to the normal stresses of labour.
Bearing in mind that [the appellant's] heart rate was 60 immediately following delivery, I have difficulty accepting that his heart was not functioning as he was delivered.
Dr Thonell attributed the radiological evidence of brain damage to an event or events either shortly before, during, or immediately after birth. The evidence establishes that [the appellant] did not make any real respiration effort for approximately 8 minutes after birth which was not explored during evidence but would seem to be an extremely relevant factor in this respect.
The evidence also establishes that an acute intrapartum hypoxic event is a relatively rare cause of the condition [290] ‑ [298].
The trial judge concluded that identification of the cause of the appellant's condition was, on the whole of the evidence, a 'mere matter of conjecture' [300]. He was not satisfied that it arose out of any particular event in labour [300].

Certain interlocutory procedures in the appeal

On 25 May 2007, the appellant filed his appeal notice.
On 16 May 2008, the appellant filed an application in the appeal for, relevantly:
(a)leave to re‑amend his statement of claim in accordance with a minute dated 14 April 2008; and
(b)leave to amend his grounds of appeal in accordance with a minute dated 16 May 2008.
Before any order was made on the appellant's application, he filed a substituted minute of amended grounds of appeal dated 14 August 2008.
On 15 August 2008, Pullin JA ordered, relevantly:
(a)the appellant have leave to amend his grounds of appeal in terms of the minute dated 14 August 2008, but without prejudice to the right of Dr McCallum and the Minister to oppose the appellant's application for leave to re‑amend his statement of claim in terms of the minute dated 14 April 2008;
(b)the appellant's application for leave to re‑amend his statement of claim be heard together with the appeal; and
(c)if the appellant's application for leave to re‑amend his statement of claim is dismissed, then the appeal be dismissed.
The appellant has not applied for a review by this court of any of the orders made by Pullin JA on 15 August 2008.
Dr McCallum and the Minister oppose the appellant's application for leave to re‑amend his statement of claim.

The amended grounds of appeal

The amended grounds of appeal, without the supporting particulars, read:
LIABILITY
Negligence of the first respondent [that is, Dr McCallum] and the second respondent [that is, the Minister] in the management on 15 May 1997
Ground 1
Negligence of the first respondent
1.The trial judge erred in fact in not finding the plea at paragraph 32(e) of the statement of claim was made out in so far as the first respondent was concerned, and that the first respondent was negligent in his management of the appellant's mother's ('Mother') labour on 15 May 1997 because he failed to, but should have directed Nurse Gilks at 0330, or the second respondent's staff before then, to notify him when the Mother came into established labour with strong and regular contractions, as she did at 0400, when the weight of evidence lead to such conclusion of breach, because the first respondent's own evidence was that:
1.1.He had an expectation that he would be informed of 'any changes' during the labour which included when established labour commenced, yet he had not clearly communicated such expectation to nurse Gilks or the hospital staff and his written standing instructions were vague as to when he was to be contacted;
1.2.he appreciated that because the appellant was in a breech presentation this increased the complexity and difficulty of his delivery (and was the reason he was involved);
1.3.he at all times anticipated the potential for a rapid and dramatic delivery and knew that any rapid delivery would be dangerous;
1.4.when he was contacted at 03:30 the labour was proceeding in an unexpected and abnormal fashion in that:
1.4.1.The first respondent's management plan had been to use Prostin to ripen the cervix, not to start contractions. For this he expected to give Syntocinon the next morning. The first respondent said that he did not expect contractions to develop until 8-12 hours after the Prostin was given soon after 1800. But in this case contractions began at about 1900, so the labour was not proceeding 'as normal'.
1.4.2.The first respondent said that if, contrary to his expectations, the Prostin did start some contractions, these would not have been labour contractions and would normally stop after a couple of hours (in this case after about 2000). But the contractions did not stop but rather continued and increased in intensity. The contractions at 0330 were unexpected labour contractions and not Prostin-related contractions so the labour was not proceeding 'as normal'.
1.4.3.The first respondent said that he was not expecting the membranes to rupture until labour contractions were established (strong and regular) and that if the membranes did not rupture the next morning after contractions started with Syntocinon then he would rupture them artificially, when the mother's cervix was fully dilated and at 'the last possible time.' The rupture of membranes at 0315, being prior to established labour, was unexpected and so the labour was not proceeding 'as normal'.
1.5.He knew that the appellant's Mother's labour was being primarily managed by Nurse Gilks on whom he relied to be informed of the progress of labour but he did not know Nurse Gilks and was unsure as to her experience and her knowledge of when he expected to be contacted.
1.6.He knew that there were no protocols in the second respondent directing the second respondent's staff, including Nurse Gilks, to:
1.6.1.Notify him when the Mother's contractions changed from being weak and irregular to strong and regular.
1.6.2.Notify him when the Mother was in established labour.
1.6.3.Ensure that the Mother did not ambulate in circumstances where a baby was in breech position, the breech was in the -2 station, the application was only 'fair', the Mother's membranes had ruptured, and the Mother was in established labour.
1.7.He had not informed himself at 0330 and did not know the station of the breech in the pelvis (assessed by Nurse Gilks as '-2' and so not a 'snug fit') or its application (only 'fair' and so not a 'snug fit') although this information was relevant to the risk of foot prolapse and cord compression.
1.8.He knew at 0330 that:
1.8.1.The appellant was small.
1.8.2.The appellant had changed in his breech position (frank, footling, extended, complete) several times in the weeks preceding the labour on 14 May 1997.
1.8.3.The appellant's position would change as labour progressed.
1.8.4.The appellant's Mother was having labour contractions, not Prostin-induced contractions.
1.8.5.There had been an unexpected, spontaneous rupture of membranes.
1.8.6.Progress may be rapid and so dangerous once labour became established with strong and regular contractions.
Ground 2
Negligence of the second respondent
2.The trial judge erred in fact in failing to find the plea at paragraph 33(b) of the statement of claim was made out and that the second respondent was negligent in its management of the Mother's labour on 15 May 1997 because the second respondent's staff failed to notify the first respondent when the Mother came into established labour after 0330 on 15 May 1997 at or about 0400, when the weight of evidence lead to such conclusion of breach, because the second respondent's staff were aware, or ought to have been aware, of:
2.1.The first respondent's expectation set out in paragraph 1.1, which he claimed he had communicated to the second respondent.
2.2.The same facts that the First Respondent was aware of set out in paragraphs 1.5, 1.6, 1.7, 1.8.3, 1.8.4 and 1.8.5.
2.3.It would be expected of any trained midwife to know to call the attending obstetrician at such point in circumstances of a breech presentation, spontaneous rupture of membranes, the breech assessed at -2 station and the application assessed at only 'fair' prior to the onset of established labour.
CAUSATION OF FOOT PROLAPSE
Ground 3
3.Had the trial judge not made the errors the subject of grounds 1 and/or 2, he should have found, because the weight of evidence overwhelmingly lead to such conclusion, that but for the first respondent's and the second respondent's negligence in management of the Mother on 15 May 1997 there would have been no prolapse of the appellant's foot at around 0415 hours. This is because:
3.1.Had the first respondent been notified as he should have been he would have realised that the Mother had come into established labour.
3.2.He would have known that the 'rapid and dramatic' delivery that he had anticipated was likely to occur very soon (as it did).
3.3.He would have attended the hospital promptly in advance of the anticipated 'rapid and dramatic' delivery as he said was his practice (although it was not the practice of all obstetricians).
3.4.He would have managed the remainder of the Mother's labour after 0400 as he said that Nurse Gilks should have done, namely by not permitting the Mother to leave her bed and go to the toilet (which is where the foot prolapse occurred).
3.5.He would have managed the remainder of the Mother's labour after 0400 as he and the unanimous expert evidence said should have been done by assessing the Mother and, if he determined that the appellant was then in a footling breech position, he would have performed a caesarean delivery.
CAUSATION OF APPELLANT'S CEREBRAL PALSY
Ground 4
4.Unless the Court of Appeal is satisfied that the trial judge's comments on causation were obiter, the trial judge erred in fact in failing to find that it was the prolapse of the appellant's foot (that would not have occurred, were it not for the first and second respondents' breaches) that caused the appellant's prolonged bradycardia, that this caused hypoxia and in turn [caused] the appellant's brain damage and cerebral palsy.
5.Such finding ought to have been made because:
5.1.the trial judge:
5.1.1.failed to appreciate the significance of important evidence on this issue;
5.1.2.attached importance to irrelevant evidence going to such issue in finding that cause for the appellant's condition was a 'mere matter of conjecture' (R300), and
5.2.the weight of evidence ought to have lead to such finding.

The proposed re‑amendments to the statement of claim

The proposed re‑amendments to the statement of claim comprise the addition of new subpars (f) and (g) to par 34.
I reproduce pars 32, 33 and 34 of the statement of claim, with the proposed re‑amendments underlined:
32.The First Defendant [that is, Dr McCallum] breached his duty of care to the Plaintiffs.
PARTICULARS OF BREACH OF FIRST DEFENDANT'S
DUTY OF CARE
The First Defendant:
(a)Arranged for induction delivery of the First Plaintiff [that is, the appellant] on 14 May 1997 at the First Defendant's initial attendance upon the Second Plaintiff [that is, the appellant's mother] without discussing the risks with her.
(b)Induced the Second Plaintiff's labour at about 1600 hours on 14 May 1997:
(i)Despite the Second Plaintiff being parous;
(ii)despite the Second Plaintiff's cervix being 2 centimetres dilated;
(iii)despite there being a double footling breech presentation; and
(iv)without due regard to the possibility of the labour progressing rapidly overnight and/or complications occurring during the labour due to the obstetric history.
(c)Induced the Second Plaintiff's labour with Prostin when he knew or ought to have known that Prostin would stimulate uterine contractions, thereby increasing the likelihood of the risks eventuating and the First Plaintiff suffering oxygen deprivation in the uterus.
(d)Ordered the effects of the induction drug (Prostin) to be monitored by CTG, but for only 30 minutes, and left the Hospital prior to reviewing the result of the CTG, and without leaving any or any adequate instructions with employees or agents of the Second Defendant as to:
(i)further action that should be taken if the monitoring indicated contractions were occurring; and
(ii)when he should be advised as to the progress of the labour, and any complications with the labour.
(e)failed to leave any or any adequate instructions with employees or agents of the Second Defendant as to when he should be contacted during the Second Plaintiff's labour with the First Plaintiff.
33.The employees and agents of the Second Defendant, and for whom the Second Defendant is vicariously liable, breached the Second Defendant's duty of care to the Plaintiffs.
PARTICULARS OF BREACH OF SECOND DEFENDANT'S DUTY OF CARE
The Second Defendant:
(a)Failed to report the results of the CTG monitoring to the First Defendant either during the period of the CTG, or at any time prior to about 0440 hours on 15 May 1997.
(b)Failed to advise the First Defendant of the rupture of the Second Plaintiff's membranes at 0315 hours on 15 May 1997 and the presence of uterine contractions, and/or the presence of stronger contractions at 0400 hours on 15 May 1997.
(c)Failed to continuously monitor the progress of the Second Plaintiff's labour electronically using CTG, given the risks.
(d)Failed to commence cardiotocographic monitoring after spontaneous rupture of the membranes, especially considering the obstetric history referred to in paragraph 5.
(e)Failed to take any or any adequate steps to attempt to increase the First Plaintiff's heart rate (which had dropped to about 90 beats per minute) between about 0430 hours and 0500 hours. Apart from giving oxygen to the Second Plaintiff, a paediatrician should have been immediately notified and attempts should have been made to improve the blood flow through the umbilical vessels by:
(i)Reducing compression on the umbilical cord by positioning of the Second Plaintiff (such as the semi-Trendelenberg position);
(ii)Attempting to replace the First Plaintiff's leg in the uterus to reduce pressure on the umbilical cord; and
(iii)Administering tocolytic medication to reduce uterine contractions.
(f)The Plaintiffs repeat sub-paragraphs (b) ‑ (e) of paragraph 32.
34.The First Plaintiff's injuries were caused by a period of oxygen deprivation sustained during the Second Plaintiff's labour with the First Plaintiff that would not have occurred or alternatively would have been of shorter duration with lesser long term sequelae to the First Plaintiff if:
(a)The First Plaintiff had been delivered by caesarean [section] prior to about 0400 hours on 15 May 1997.
(b)The labour had not been induced with Prostin which may have accelerated the labour, reduced the time for moulding of the aftercoming head of the First Plaintiff to occur and/or increased the likelihood of incomplete head flexion and/or foot prolapse and thereby increased the likelihood of umbilical cord compression and the risks occurring.
(c)The First Defendant had ordered more frequent manual and/or electronic monitoring that would have detected any decelerations in the First Plaintiff's heart rate due to the risks.
(d)The Second Defendant's employees and agents had asked the First Defendant to attend the Hospital after rupture of the membranes, and the First Plaintiff been thereafter delivered by caesarean section prior to about 0400 hours on 14 May 1997.
(e)The Second Defendant's employees and agents had monitored the First Plaintiff's heart rate manually and/or electronically during the Second Plaintiff's labour which would have detected decelerations of the First Plaintiff's heart rate, and subsequent earlier delivery of the First Plaintiff.
(f)The First Defendant had given adequate instructions to the employees and agents of the Second Defendant as pleaded in paragraph 32(e) which instructions would have been followed.
(g)Pursuant to those instructions, or otherwise as it should have done as pleaded in paragraph 33(b), the Second Defendant's employees and agents had notified the First Defendant of the unexpected change in the Second Plaintiff's labour pleaded in paragraph 20 and the First Defendant had managed the unexpectedly rapid labour in which case the events pleaded in paragraph 22 would have been avoided.
The proposed par 34(g) refers to pars 20 and 22 of the statement of claim, which read:
20.At about 0400 hours on 15 May 1997 midwife Gilks:
(a)Noted the Second Plaintiff was contracting more strongly.
(b)Took the Second Plaintiff to the labour ward.
(c)Noted the First Plaintiffs' heart rate was 128 beats per minute.
…
22.At about 0430 hours on 15 May 1997:
(a)The Second Plaintiff attended the toilet to void and felt something between her legs.
(b)The Second Plaintiff returned to bed and was placed in the lithotomy position.
(c)The First Plaintiff's foot was noted to be on view, that is, there was a foot prolapse ('the foot prolapse').
(d)The First Defendant was not contacted by an employee or agent of the Second Defendant.
At the hearing of the appeal, this court reserved its decision on the appellant's application to re‑amend the statement of claim.

The appellant's proposed re‑amended orders wanted

The appellant's amended orders wanted include, relevantly, that the appeal be allowed, the judgment of the trial judge be set aside, and judgment be entered for the appellant against Dr McCallum and the Minister in the sum of $8,000,000 plus interest thereon calculated from 6 November 2006.
However, remarkably, the appellant's counsel made application, in his oral submissions in reply, to re‑amend the orders wanted by abandoning the claim for judgment to be entered for the appellant and, instead, claiming 'a retrial generally before a different judge of the District Court, subject to costs'.

Dr McCallum and the Minister oppose the appellant's application to re‑amend.
At the hearing of the appeal, this court reserved its decision on the application.

The appellant's proposed new case in the appeal

The appellant proposes in substance to advance a new case in the appeal. The new case involves four critical elements.
First, the appellant seeks to contend that the Hospital's nursing staff should have informed Dr McCallum immediately of the events which occurred at about 0400 hours on 15 May 1997, namely, the mother was 'contracting more strongly' and she had been transferred to the labour ward.
Secondly, the appellant seeks to contend that Dr McCallum should previously have given instructions to the nursing staff which would have resulted in their informing him immediately of these events.
Thirdly, the appellant seeks to contend that if Dr McCallum had been informed immediately of the events in question, he would have managed the appellant's labour in a manner that would have prevented an alleged prolapse of the appellant's foot at about 0415 hours. This prolapse was said to have involved the foot passing through the mother's vagina before full dilation of her cervix. As to this third element, two alternatives are put. The first alternative alleges that Dr McCallum would have attended the Hospital between 0400 hours and 0415 hours and prevented the prolapse of the foot. The second alternative alleges that it was a matter for Dr McCallum as to whether he should have attended the Hospital or not and, if he did not attend the Hospital, he would have given instructions to the nursing staff by telephone to monitor the mother continuously and to keep her in bed.
Fourthly, the appellant seeks to contend that Dr McCallum's failure to give these instructions, and the failure of Dr McCallum and the nursing staff to manage the labour in accordance with instructions he would have given if the nursing staff had informed him immediately of the events that occurred at about 0400 hours, caused the alleged prolapse of the appellant's foot at 0415 hours which, so the appellant contends, resulted in compression of the cord which, so the appellant contends, resulted in bradycardia and an hypoxic event after 0430 hours which, so the appellant contends, resulted in his cerebral palsy.
Before this court, counsel for the appellant claimed that the 'evidentiary foundations' of the proposed new case were laid at trial but, unfortunately, trial counsel became 'distracted' and 'the edifice was not built upon the evidentiary foundation that had been laid' (app ts 61).
Later in his submissions, counsel for the appellant conceded that the proposed new case had not been 'fully litigated' at trial (app ts 87).
At the hearing of the appeal, this court reserved its decision on whether the appellant should be permitted to advance his proposed new case.

The general principles of appellate review

Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.
The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:
The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].
The requirements and limitations of a rehearing of the kind which occurs before this court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:
The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact‑finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'.
The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] ‑ [17] (footnotes omitted).
It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [88]. As Kirby J observed in CSR:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] ‑ [22] (footnotes omitted).
Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [23]. In Dearman, Isaacs J said:
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).
In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).

The principles relating to the advancing of a new case on appeal

The principles relating to the advancing of a new case on appeal are well‑established.
An appellant is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 158 CLR 447, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483). (emphasis added)
The substance of this statement was reiterated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 by Gibbs CJ, Wilson, Brennan and Dawson JJ (7 ‑ 8):
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)
The High Court returned to this issue in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added). Their Honours allowed only these limited exceptions:
Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (see Suttor v Gundowda Pty Ltd (1950), 81 CLR 418, at p 438; University of Wollongong v Metwally[No 2] (1985), 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v Holcombe (1986), 162 CLR 1, at pp 7 ‑ 8; O'Brien v Komesaroff (1982), 150 CLR 310, at p 319) (497).
Their Honours then explained the correct approach to deciding whether or not a point sought to be advanced on appeal was raised at trial:
In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (see Dare v Pulham (1982), 148 CLR 658). In Leotta v Public Transport Commission (NSW) ((1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) ((1978) 52 ALJR 291, at p 294; 18 ALR 147, at pp 151 ‑ 152), Jacobs J, with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.
It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal (497).
Usually, the reasons of the trial judge are the best indication of what matters were in issue between the parties at the trial. See Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [50] (Gleeson CJ, McHugh & Gummow JJ).
In Whisprun, Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale [51] ‑ [52]:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe (1986) 162 CLR 1 at 8 ‑ 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas (1988) 180 CLR 491 at 496 ‑ 497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 ‑ 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
As Water Board v Moustakas ((1988) 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas (1988) 180 CLR 491 at 497) (emphasis added).
The juridical basis of the principles I have been discussing appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).
Finally, in this context, if an appellate court is satisfied that the appellant is seeking to advance a new case on appeal, there is no residual discretion under which the court may permit the new case to be run 'in the interests of justice'. See Findlay v State of Victoria [2009] VSCA 294 [169] (Ashley JA & Hollingworth AJA, Maxwell P agreeing). The interests of justice are embodied within the principles formulated by the High Court in the authorities I have discussed. See Findlay [169].

The principles governing the amendment on appeal of a statement of claim or defence at trial

This court has power to allow an amendment to a pleading if the case sought to be made on appeal by the party applying to amend is not materially different from the case that was litigated at the trial. See Bell v Lever Brothers Ltd [1932] AC 161, 216 (Lord Atkin); Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409, 416 (Lee J, Black CJ agreeing); Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58 [48] ‑ [49] (Hunt AJA, Mason P & Santow JA agreeing); Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; (2007) Aust Torts Reports 81-891 [194] (Buss JA, Steytler P agreeing).

The principles governing whether an appellate court should order a re‑trial

Section 58(1)(a) and s 59(1) of the Supreme Court Act 1935 (WA) confer on this court the power to hear and determine an application for a new trial.
The exercise of the court's power to order a re‑trial depends upon the demands of justice. See Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 39, where Mason CJ, Deane, Toohey & McHugh JJ said:
[T]here is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction: see Burston v Melbourne and Metropolitan Tramways Board (1948) 78 CLR 143, per Starke J at 158-159; Dixon J at 167; General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, per Barwick CJ at 242-243; Taylor J at 245; Menzies J at 257; Windeyer J at 259-260. See also University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, at 483; 60 ALR 68, at 71; Coulton v Holcombe (1986) 162 CLR 1, at pp 7-8; Water Board v Moustakas (1988) 62 ALJR 209, at 211; 77 ALR 193, at 196.
See also Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134, 141 ‑ 142 (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ).

The organisation of the balance of these reasons

I will examine the merits of each of the grounds of appeal in the context of the trial judge's findings of fact, the evidence at trial, the proposed new case and the proposed amendments to the statement of claim. I will then determine whether the appellant should be permitted to advance the proposed new case in the appeal. Finally, I will deal with the application to re‑amend the statement of claim and the application to re‑amend the orders wanted.

Ground 1 of the appeal: the appellant's submissions

Counsel for the appellant asserted that the trial judge erred in failing to find that Dr McCallum had breached his duty of care to the appellant in that, as alleged in par 32(e) of the statement of claim, he had failed to leave any or any adequate instructions with the Minister's nursing staff as to when he should be contacted during the mother's labour. According to counsel, his Honour should have found that Dr McCallum was negligent in failing to give an express instruction that he was to be notified 'when the mother came into established labour with strong and regular contractions'. This instruction should have been given, at the latest, to midwife Gilks at about 0330 hours on 15 May 1997 when Dr McCallum had a telephone conversation with her.

As I have mentioned, the trial judge found that the appellant did not present as a footling breech on 7 or 14 May 1997 and that the presentation immediately before birth was a flexed or complete breech [239]. I am satisfied that this conclusion was the most reasonable finding available on the evidence.
There was no reason, before the sudden incident of bradycardia, to alter the management of the appellant's delivery. The evidence did not establish that any change in management after 0400 hours, and before the sudden incident of bradycardia, would have prevented the alleged foot prolapse, the sudden incident of bradycardia or the appellant's cerebral palsy.
As I have mentioned, a foot prolapse involves a foot passing through the mother's vagina before full dilation of her cervix. The point about the appellant's foot being 'on view' arose at trial only in the context of whether he was presenting as a footling breech. The trial judge therefore did not make a finding of fact about the alleged foot prolapse. Although the trial judge found that the mother's cervix was fully dilated at 0400 hours, his Honour did not make a finding as to, and the evidence does not reveal, when it became fully dilated. For example, it may have been fully dilated at about 0415 hours. These issues were not explored at the trial in the context of an alleged foot prolapse. It is apparent that whether there was a foot prolapse and, if there was, when it occurred were not fairly litigated between the parties at trial.
Ground 3 fails.

Ground 4 of the appeal: the appellant's submissions

Counsel for the appellant submitted that the trial judge's findings regarding causation [274] were obiter dicta.
Before this court, counsel for the appellant initially asserted that if grounds 1 and 2 or either of them were made out then this court should determine whether causation had been proven. Counsel referred extensively to the evidence adduced at trial.
However, counsel's initial submission in relation to ground 4 was overtaken by counsel's application, in reply, to re‑amend the orders wanted by abandoning the claim for judgment to be entered for the appellant and, instead, claiming 'a retrial generally before a different judge of the District Court, subject to costs'. By adopting this course, counsel acknowledged implicitly that making out one or more of the grounds of appeal would not, of itself, entitle the appellant to judgment.
Although it is strictly unnecessary to deal with ground 4 of the appeal, in view of the appellant's failure to make out grounds 1 and 2 and his counsel's abandonment of the original order wanted that this court enter judgment for the appellant, I will nevertheless, for completeness, deal with the merits of ground 4.

The merits of ground 4 of the appeal: general

The appellant's contention that the trial judge should have found that the alleged breaches of duty by Dr McCallum and the Minister caused the appellant's cerebral palsy is based on the following:
(a)there was a period of bradycardia during delivery of sufficient length to cause permanent brain damage;
(b)the bradycardia occurred because of cord compression;
(c)the cord compression was caused by the prolapsing of the appellant's foot at about 0415 hours; and
(d)the appellant's cerebral palsy was not caused by antenatal neuropathology.
I will consider each of these propositions.

The merits of ground 4: the period of bradycardia

There was no delay in the appellant being born after the sudden incident of bradycardia commenced. In particular, there was no delay caused by head entrapment or cord entanglement. See Dr McCallum's evidence at ts 355; midwife Jones' evidence at ts 854; and trainee midwife Freeman's evidence at ts 867. Midwife Jones described the delivery as a 'quick delivery' (ts 854) and trainee midwife Freeman as a 'fast delivery' (ts 867). Notes made contemporaneously with the birth describe the appellant as being 'born unexpectedly flat' and the delivery as being quick/rapid. See exhibits 10.48, 10.51. Professor MacLennan said in his report (exhibit 16.2, page 11):
[T]here is no theoretical explanation that can be validated to explain why an intact healthy foetal brain would have become acutely and severely ischaemic or hypoxic during this short labour.
The trial judge found that the maximum period of foetal bradycardia would have been no more than 15 or 20 minutes [206]. This period of bradycardia did not establish that a hypoxic ischaemic event had occurred which caused the appellant's cerebral palsy. Professor Colditz said in his report (exhibit 12.1, page 20) that a foetus can withstand 15 minutes of total hypoxia (not 15 minutes of bradycardia as contended by the appellant) without suffering injury. See also Professor Colditz' evidence at ts 236. According to Professor MacLennan, a recording of a FHR down to 90 bpm, which does not increase after contractions, does not establish total hypoxia (ts 685).

The merits of ground 4: cord compression causing bradycardia

The evidence of Dr Molloy and Professor Colditz that the sudden incident of bradycardia was caused by cord compression was based on supposition. See Dr Molloy's evidence at ts 430 and Professor Colditz' evidence at exhibit 12.1, page 19 and at ts 248 ‑ 249. See also the evidence of Dr Korda at ts 292 ‑ 293.
Cord compression was not the only possible cause of the sudden incident of bradycardia. Dr MacLennan said that the bradycardia could have been caused by pressure on the appellant's head (ts 386 ‑ 387). And Professor MacLennan said that many of the signs of foetal distress or problems during labour are in fact signs of a baby who has been compromised at a much earlier stage in the pregnancy. See exhibit 16.2, page 6 and ts 645, 730. The trial judge found that Dr McCallum did not identify any clinical evidence of cord compression. He expressed this finding as follows:
[Dr McCallum] did not identify any clinical evidence of cord compression, and having regard to the speed of the delivery, if such there was, it would have been of short duration and would not have been expected to have resulted in brain damage [292].
This finding was supported by Dr McCallum's evidence that he had used ultrasound to check the location of the cord (ts 322, 384) and that upon the appellant being delivered the cord was not tangled with the feet or arms but came out with the appellant (ts 335 ‑ 337).
The trial judge's finding as to the absence of any prior indication of problems with the cord was relevant in determining whether or not to infer that the sudden incident of bradycardia was caused by cord compression of sufficient magnitude to cause brain damage. Professor MacLennan gave evidence that this usually requires the cord to be around the baby's neck (ts 678 ‑ 679, 730 ‑ 733).

The merits of ground 4: the prolapsed foot at 0415 hours caused the cord compression

As I have mentioned, in the course of examining ground 3:
(a)The trial judge did not find that the appellant's foot prolapsed at about 0415 hours.
(b)A finding that the foot prolapsed at 0415 hours is not consistent with his Honour's findings.
(c)The only evidence which suggested that the appellant's foot was in the mother's vagina at about 0415 hours came from the mother, and she was regarded generally by the trial judge as an unreliable witness.
(d)The allegation that the appellant's foot prolapsed at 0415 hours does not reflect the appellant's pleaded case that at about 0430 hours the appellant's foot was noted to be 'on view'.
(e)The evidence does not establish that the appellant's foot was in the mother's vagina before her cervix was fully dilated.
(f)The issues as to whether there was a foot prolapse and, if there was, when it occurred were not fairly litigated between the parties at trial.
The appellant's trial counsel did not open or close his case on the basis that a prolapse of the appellant's foot caused cord compression. This issue was not fairly litigated between the parties. Anyway, the evidence at trial did not establish a causal relationship between the alleged prolapse on the one hand and cord compression on the other. In particular, there was no evidence explaining why a foot prolapse of itself (disregarding whether there was a footling breech presentation) could have caused cord compression.
Further, the mechanism of the appellant's delivery (that is, complete or flexed breech) does not establish that he was in a footling breech presentation before delivery.
Mr MacKay's evidence concerning the spontaneous rupture of the mother's membranes indicates that this is more likely to occur if the presenting part is not fitting well into the pelvis (exhibit 14.1, page 7). This evidence does not, however, establish that if the presenting part is not fitting well into the pelvis, then the presentation is or is likely to be as a footling breech. In any event, Dr McCallum's evidence was that the breech was well into the pelvis (ts 308, 322, 374, 379, 380, 383).
The trial judge found that the appellant did not present as a footling breech on 7 or 14 May 1997 and that his presentation immediately before birth was a flexed or complete breech [239]. This finding was reasonably open on the evidence.

The merits of ground 4: the appellant's cerebral palsy was not caused by antenatal neuropathology

At trial there was evidence that the consensus of current scientific opinion is that the neuropathy of cerebral palsy is established, in the large majority of cases, silently during pregnancy (with the exception of childhood causes). The signs of foetal neurological compromise often do not appear until the stresses of labour with increased monitoring or until after delivery. See Professor MacLennan's evidence, exhibit 16.2, page 6. The Professor gave evidence that less than 1% of cerebral palsy is caused by an acute de novo primary asphyxial event in labour (ts 645). Also, Professor Colditz confirmed that intrapartum events were an uncommon cause of cerebral palsy (ts 200, 246). The trial judge found that an acute intrapartum hypoxic event is a relatively rare cause of the condition [298].
In 1999, 'A template for defining a causal relation between acute intrapartum events and cerebral palsy: international consensus statement' (the Consensus Statement) (exhibit 16.2, first attachment) was published. This represented an international consensus statement on the cause of cerebral palsy. Professor MacLennan gave evidence that the Consensus Statement had a broader consensus than almost any other document he had seen in the medical field (ts 663). The document sets out the essential criteria to establish the presence of hypoxia at birth and the non‑specific criteria that collectively point towards acute or chronic causes of hypoxia.
The essential criteria are these:
1.a metabolic acidosis around birth (pH<7.00 and base deficit > 12 mmol/1);
2.early moderate to severe neonatal encephalopathy; and
3.cerebral palsy of the spastic quadriplegic or dyskinetic type.
The non‑specific criteria are as follows:
1.a sentinel (signal) hypoxic event sufficient to cause sudden severe hypoxia in a healthy foetus, for example, a cord prolapse, antepartum haemorrhage, ruptured uterus etc.
2.sudden sustained foetal heart rate bradycardia from that event;
3.an Apgar score under 7 after 5 minutes;
4.signs of multi‑system failure in the neonate; and
5.neuro imaging signs of early oedema and intracranial haemorrhage.
In 2003, the American College of Obstetricians and Gynaecologists/American Academy of Paediatrics issued a publication, 'Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology' (exhibit 16.2, second attachment). This document altered the essential criteria embodied in the Consensus Statement by adding a fourth essential criterion, namely, 'Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders'. The essential criteria are accompanied by the words 'must meet all four'. Further, the task force altered non‑specific criterion 3. They decided that an acute de novo intrapartum event severe enough to be associated with cerebral palsy would cause the Apgar score to remain at 3 or under after 5 minutes from birth. The 2003 document also made a minor variation to the criteria that collectively suggest intrapartum timing (defined as within close proximity to labour and delivery, for example, 0 ‑ 48 hours).
Professor Colditz gave evidence that the Consensus Statement and the 2003 document were widely accepted as being a useful synthesis of available evidence that may be relevant in establishing whether, in a particular case, intrapartum events may have been the cause of cerebral palsy as a result of a hypoxic ischaemic event (exhibit 12.1, page 14). The Professor was a member of the working party (exhibit 12.1, page 15).
At trial, the appellant was unable to establish the existence of all of the four essential criteria in the Consensus Statement as altered by the 2003 document.
Essential criterion 1 could not be established because of a lack of data. A sample of the appellant's cord blood was not taken by Dr McCallum or the nursing staff. A sample of the cord blood should have been taken, but there was no exploration at trial of the reasons for, or an explanation of, this failure. As a result, the presence of a severe hypoxia/metabolic acidosis at birth could not be proved or disproved. See Professor MacLennan's evidence at exhibit 16.2, page 10 and ts 692 ‑ 695. Professor Colditz could only speculate as to whether it was established or not (exhibit 12.1, pages 15 ‑ 16).
The appellant established essential criterion 3 as a result of his having spastic quadriplegia. See the evidence of Professor MacLennan at exhibit 16.2, page 10 and the evidence of Dr Spencer at exhibit 10.92. Spastic quadriplegia is not, however, specific to intrapartum hypoxia. It is apparent from the Consensus Statement that only 24% of a population‑based series of children with moderate or severe spastic quadriplegia were thought possibly or very likely to have been affected by intrapartum hypoxia.
Essential criterion 4 could not be established because of the existence of intrauterine growth restriction.
The trial judge noted, correctly, that the Consensus Statement examined causation from a scientific rather than a legal perspective [289]. His Honour elaborated:
Considerable attention was directed during the trial to the Consensus Statement and the factors which it requires to be established before it can be asserted that cerebral palsy is the result of an acute intrapartum hypoxic event. Clearly the Statement is looking at causation from a scientific rather than legal perspective. The Court's task is to determine whether 'as a matter of common sense' on the balance of probabilities [the appellant's] condition can be attributed to an acute intrapartum hypoxic event. The Consensus Statement is significant however in that it is an acknowledgment by a substantial international body of medical expertise in this area that cerebral palsy is rarely the consequence of an acute intrapartum hypoxic event. Also that intrauterine growth restriction appears to have a reasonable association with the condition (it is a risk factor). Further that there is doubt as to the efficacy of electronic foetal monitoring [289].
There is no basis for the appellant's assertion that his Honour was 'distracted' by the Consensus Statement.
It is true that there was evidence at the trial, including the opinions of Professor Colditz and Dr Thonell, which formed a foundation for a finding of causation in favour of the appellant. Dr Thonell gave evidence that the CT scans and ultrasound examinations of the appellant's head after birth revealed damage to the basal ganglia and that this was consistent with a sudden hypoxic episode and oedema consistent with recent insult (exhibit 11.5); that is, with an injury occurring in the last three days (ts 176 ‑ 177). Professor Colditz inferred the existence of a sentinel hypoxic event from the period of bradycardia combined with the appellant's condition at birth.
But, on the other hand, there was evidence which suggested an alternative, although unspecified, cause of the appellant's cerebral palsy. This evidence included:
(a)The appellant had asymmetrical growth restriction. See Professor MacLennan's evidence at exhibit 16.8, page 7 and ts 653 ‑ 666 where he explains the significance of this characteristic and see also Professor Colditz' evidence on this point at ts 255.
(b)Dr Walpole, a consultant geneticist, who examined the appellant shortly after birth, noted the existence of very deep hand and feet creases which were probably indicative of an unsound intrauterine environment. See Dr Walpole's evidence at exhibit 10.16, page 2. See also Professor MacLennan's evidence at exhibit 16.8, page 8. Compare the other causes postulated by Dr Walpole, but not established with testing.
(c)Professor MacLennan's evidence that a foetal heart rate of 90 was not indicative of total hypoxia and existed in about one‑third of all second stage labours (ts 685).
(d)Professor MacLennan's evidence that signs of existing foetal neurological compromise often do not appear until the onset of the stresses of labour (ts 645, 730).
See also the trial judge's reasons at [284].
Further, in addition to the evidence noted by his Honour in his reasons, there was other evidence which indicated that the appellant's cerebral palsy was caused by circumstances other than hypoxia resulting from prolonged cord compression during delivery. For example:
(a)The appellant's birth weight was at about the third percentile. His birth weight was 2700 gm and 97% of babies are born with a heavier weight. His sibling, Zachary, weighed 3356 gm (exhibit 10.103 but compare the record of his birth weight as 3100 gm in exhibit 10.35) and his sibling, Taylor, weighed 3205 gm (exhibit 10.100).
(b)Dr McCallum said that when he performed an ultrasound examination of the appellant on 14 May 1997 there was no indication that the cord was around his legs (ts 384).
(c)Dr McCallum said that the cord came out with the baby at delivery. In particular, the cord was at the side, and was not tangled with the arms or feet (ts 335 ‑ 336). That is, there was no clinical sign that the cord had been in a position to be compressed during delivery.
(d)The condition of the cord affects the nutrition provided to the baby. The appellant's cord was skinny. If a baby is undernourished, the cord will invariably be thin and the blood vessels more exposed to trauma or pressure. See Dr McCallum's evidence at ts 337.

The merits of ground 4: conclusion

It is well‑established that a trial judge has an advantage over an appellate court in that the trial judge has the considerable advantage of seeing and hearing expert witnesses present their opinions and the manner in which they deal with competing opinions in cross‑examination.
In the present case, the trial judge was required to consider the conflicting expert evidence presented at trial. It is apparent from his Honour's reasons, considered as a whole, that he engaged in this task and made findings supported by the evidence and consistent with his assessment of the experts. I am not persuaded that his Honour made any material error of law or fact in his examination and weighing of the expert evidence or in his selection of the evidence which he preferred. It was reasonably open to his Honour not to be satisfied that the appellant's cerebral palsy arose out of any particular event in the course of labour.
Ground 4 fails.

The appeal generally: should the appellant be permitted to advance his proposed new case?

In my opinion, the appellant should not be permitted to advance his proposed new case in the appeal.
For the reasons I have given, in the course of dealing with the grounds of appeal, I am satisfied that the proposed new case was not fairly litigated between the parties at trial.
The appellant is bound by the conduct of his case at trial. It is immaterial whether the failure to run the proposed new case at trial was a deliberate decision or due to inadvertence. It is plain that if the proposed new case had been run at trial then Dr McCallum and the Minister would have been able to adduce additional evidence in their defence of the appellant's claim. The existence of this additional evidence is apparent from affidavits sworn on their behalf in opposition to the application to re‑amend the statement of claim. See the affidavit of Ms Fiona Seaward sworn 30 October 2008 and the affidavits of Mr Enore Panetta sworn 5 November 2008 and 18 November 2008. Dr McCallum and the Minister could possibly have met the proposed new case by calling additional evidence at trial.
In any event, as is apparent from my consideration of the grounds of appeal in the context of the trial judge's findings of fact, the evidence at trial, the proposed new case and the proposed amendments to the statement of claim, the appeal must fail on the state of the record at trial.

The application to re‑amend the statement of claim

The proposed new case in the appeal is materially different from the case that was litigated at trial. For that reason, and for the reasons I have given in the course of deciding that the appellant should not be permitted to advance his proposed new case, the application to re‑amend the statement of claim should be dismissed.

The application to re‑amend the orders wanted

The appellant seeks a re‑trial to enable him to emphasise an aspect of Dr McCallum's and the Minister's alleged breach of duty that was not pursued at trial and to re‑litigate facts determined against him by the trial judge.
The evidence adduced at trial does not support the allegations that Dr McCallum was negligent in failing to give express instructions to the Hospital's nursing staff to notify him when the mother came into established labour with strong and regular contractions or that the nursing staff were negligent in failing to notify Dr McCallum of the increased contractions at 0400 hours. The appellant has not produced any fresh evidence on these issues.
Also, the appellant seeks to re‑litigate the nature and timing of events between 0400 hours and 0500 hours. The trial judge's findings of fact in relation to these events depended, to a significant degree, on his rejection of the mother's evidence.
The appellant has not made out any of his grounds of appeal. No material error of law or fact on the part of the trial judge has been established. These conclusions are, in themselves, fatal to any claim for a re‑trial.
The facts on which the appellant's case was based occurred in May 1997. The District Court action was not commenced until 2003. The trial

occurred in November 2006. After the appellant filed his appeal notice, he was given substantial extensions of time within which to file the first version of the appellant's case. He changed his solicitors and obtained leave to amend his grounds of appeal and his written submissions. These circumstances caused a material delay in the listing of the appeal for hearing.

There is no 'imperative demand of justice' (Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 640 (Dixon J)) or 'insistent demand of justice' (Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435, 444 (Dixon CJ)) which justifies this court ordering a re‑trial. The appellant was represented at trial by senior and junior counsel, and the appellant called extensive expert evidence. No miscarriage of justice has occurred.
Further, there would be significant prejudice to Dr McCallum and the Minister if a new trial was ordered. The appellant has no present capacity to meet costs thrown away. This was conceded by his counsel at the hearing of the appeal. It would be unfair to subject Dr McCallum and the Minister to the expense, uncertainty and inconvenience of a re‑trial merely because the appellant now wishes, apparently on the basis of new advice from different counsel and different solicitors and without any fault on the part of Dr McCallum or the Minister, to re‑agitate his claim in a different manner with a view to achieving a different outcome.
Considerations of public interest also support the rejection of the application for a re‑trial. It is desirable that there be finality in litigation, except in the truly exceptional case, and the present case does not, in my view, answer that description.
The appellant's application to re‑amend the orders wanted should be dismissed.

Result of the appeal

I would dismiss the appeal.
NEWNES JA: I agree with Buss JA.