Simpson v Diamond

[2001] NSWSC 925

CITATION:	Simpson v Diamond & Anor [2001] NSWSC 925
FILE NUMBER(S):	SC 12791/87
HEARING DATE(S):	05/03/01, 06/03/01, 07/03/01, 08/03/01, 09/03/01, 12/03/01, 13/03/01, 14/03/01, 15/03/01, 16/03/01, 19/03/01, 20/03/01, 21/03/01, 22/03/01, 23/03/01, 26/03/01, 27/03/01, 28/03/01, 29/03/01, 30/03/01, 02/04/01, 03/04/01, 04/04/01, 05/04/01, 06/04/01, 10/04/01, 11/04/01, 12/04/01, 17/04/01, 18/04/01, 19/04/01, 20/04/01, 23/04/01, 24/04/01, 26/04/01, 27/04/01, 30/04/01, 01/05/01, 02/05/01, 03/05/01, 04/05/01, 07/05/01, 08/05/01, 09/05/01, 10/05/01, 11/05/01, 14/05/01, 15/05/01, 16/05/01, 17/05/01, 18/05/01, 21/05/01, 22/05/01, 23/05/01, 24/05/01, 25/05/01, 29/05/01, 30/05/01, 01/06/01, 04/06/01, 05/06/01, 06/06/01, 07/06/01, 08/06/01, 14/06/01
JUDGMENT DATE:	5 November 2001
PARTIES :	Calandre Simpson by her tutor William Charles Simpson v Robert Diamond & Anor
JUDGMENT OF:	Whealy J at 1

COUNSEL :	Mr L. Levy SC; Miss J. Lonergan - Plaintiff Mr P. Brereton SC; Mr I. Butcher - 1st Defendant Mr P. Hall QC; Mr S. Woods - 2nd Defendant/Cross Defendant
SOLICITORS:	Turtons - Plaintiff Blake Dawson Waldron - 1st Defendant Makinson & d'Apice - 2nd Defendant/Cross Defendant
LEGISLATION CITED:	Long Service Leave Act 1955 Minors (Property & Contracts) Act 1970 Superannuation (Guarantee Administration) Act 1992
CASES CITED:	Allen v Walters (1935) 1 KB 200 Beck v State of New South Wales & Anor [2001] NSWSC 278 Bennett v Minister of Community Services (1992) 176 CLR 408 Blundell v Musgrave (1956) 96 CLR 73 Briginshaw v Briginshaw (1938) 60 CLR 336 Burnicle v Cutelli (1982) 2 NSWLR 26 Chappel v Hart (1998) 195 CLR 232 Commercial Union Insurance Co Australia Limited v Pelosi (unreported NSWSC Barr AJ 28 February 1995; NSWCA 2 February 1996 Cotton v Big River Timbers Pty Ltd (NSWSC 12 June 1998, Grove J) Cunningham v Harrison (1973) QB 942 Dallas v Morrison (NSWSC 3 December 1996, James J) Dixon v Bell (1816) 1 Spark 287 Donnelly v Joyce (1974) QB 454 East v King (1999) NSWSC 314 Grove J Garling v Manufacturer's Mutual Insurance Co (1980) 24 SASR 321 GIO (NSW) v Mackie (NSWCA (1990) ATR 81-053 at 68) Griffiths v Kerkemeyer (1997) 139 CLR 161 Grincelis v House (2000) 74 ALJR 1247 at 1252 para 20) Hines v The Commonwealth of Australia (1995) ATR 81-338 Kars v Kars (1997) 187 CLR 354 Lindhe v Royal Children's Hospital SCV Eames J 28 August 1992 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 at 639 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449 Norris v Blake (No2) (1997) 41 NSWLR 49 Nguyen v Nguyen (1990) 169 CLR 245 G.T. Pettersen v Bacha (NSWCA unreported, 9 March 1995) Ren v Mukerjee (ACT Supreme Court unreported 12 December 1996, Miles J) Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Rosniak v GIO (1997) 41 NSWLR 608 Rotumah v NSW Insurance Ministerial Corporation (6 April 1998, unreported) Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sharman v Evans (1977) 138 CLR 563 State of NSW v Moss (2000) NSWCA 133, 31 May 2000 Sturch v Willmott (1997) 2 Qd R 310 Sullivan v Gordon (1999) 47 NSWLR 319 Taylor v Bristol Omnibus Company Limited (1975) 2 All ER 1107 Thomas v Eyles NSWCA unreported 10 September 1998 The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Todorovic v Waller (1981) 150 CLR 403 Van Gervan v Fenton (1992) 175 CLR 327 Zammitt v Pasminco Australia Limited (NSWSC 8 May 1996, Badgery-Parker J
DECISION:	DAMAGES: See Paragraph 921 CROSS-CLAIM: See Paragraphs 1458 and 1459

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

WHEALY J

MONDAY 5 November 2001

12791/87 - Calandre SIMPSON by her tutor William Charles SIMPSON v Robert DIAMOND & Anor

JUDGMENT

1    HIS HONOUR: The plaintiff was born damaged at about 2.17pm on the afternoon of 5 July 1979. She was barely alive. She was taken to intensive care immediately for urgent treatment. Her mother, Gail Simpson was roused from the anaesthetic following caesarean section and given the grim news that she had a daughter but that the Sisters were “praying for her” in the Hospital Chapel. By a “miracle”, according to her mother, the child survived but she has, since birth, been severely disabled by athetoid cerebral palsy. This is a rare type of cerebral palsy characterised by changing tone (dystonia) and abnormal movements which are induced by attempts at normal movement or maintaining posture. Athetoid cerebral palsy typically occurs after a very severe acute hypoxic insult to the mature term brain. A consequence of the resultant loss of oxygen is damage to parts of the deep grey areas of the brain. One characteristic of this type of cerebral palsy is that intelligence is often preserved. The plaintiff has normal intelligence. At the time of the hearing, she was twenty one years of age, about to turn 22. She was able, with great difficulty and considerable effort on her part, to give evidence by way of a communication board and an interpreter. She is unable to speak, is confined to a wheelchair and is totally dependent on others for all her needs. She described herself as “a person inside a body which does not work” (T 451 line 55). Miss Janet Crowe, an Occupational Therapist who first saw the plaintiff in May 1995, described her, during the hearing as “a person locked inside a body” (T 346).

2    The first defendant was Mrs Simpson’s obstetrician. He was, in 1979, a regular visiting obstetrician at St Margaret’s Private Hospital. At about 1.45pm on 5 July 1979, the first defendant attempted to deliver the plaintiff’s mother of the plaintiff by forceps delivery. These attempts were unsuccessful and subsequently the first defendant delivered the plaintiff by caesarean section. The plaintiff’s charge is that as a result of the methods adopted by the first defendant, the plaintiff suffered hypoxia and was born with a damaged brain which resulted in cerebral palsy and her present substantial disabilities. The second defendant at that time, managed and conducted St Margaret’s Private Hospital, although it has since closed.

3    At the commencement of the hearing on 5 March 2001, it was announced that the first defendant had admitted liability to the plaintiff. There was then filed in court “Notice of Grounds of Defence” of the first defendant to the Amended Statement of Claim. This document contained the following paragraphs: -

“1. In answer to paragraphs 9 and 10 of the statement of claim the first defendant admits that the plaintiff’s cerebral palsy was caused by his negligence in the manner, timing and circumstances of his use of forceps and the negligence of the second defendant.
2. In answer to paragraph 11 of the statement of claim the first defendant admits that the plaintiff’s injury, loss and damage were caused by the negligence specified in paragraph 1.”

4    Thereupon the plaintiff, having secured this late admission of liability from the first defendant, discontinued against the second defendant. The second defendant had at an earlier point of time lodged a cross-claim against the first defendant and this was also discontinued. The original Statement of Claim, alleging negligence and breach of duty against each of the defendants had been filed in the Supreme Court on 3 April 1987. There was an additional defendant at that time namely, Dr Hakim, who had been the assistant surgeon at the caesarean, although proceedings had been discontinued against him on 6 October 1992.

5    The first defendant had filed a cross-claim against the second defendant on 27 February 1991. This sought contribution or indemnity from the cross-defendant without disclosing any specific matters. Correspondence first emerged between the first and second defendants relating to a substantial amendment to this cross-claim in September 1999. This, together with the exchange of expert reports, continued throughout 2000 and early 2001. On 2 March 2001, shortly before the proceedings came to hearing, the first defendant, after substantial argument, was granted leave to file an amended cross-claim which, in its final form, had been served on the solicitors for the cross-defendant on 26 February 2001. The essence of the Amended Cross-Claim was that the hospital nursing staff had given an excessive dose of Syntocinon - the drug used for induction of labour - to Mrs Simpson; and had failed in and about their task of monitoring the well-being of the foetus and attending to the progress of Mrs Simpson’s labour.

6    The tasks confronting the Court are these: First, to assess damages. Secondly, to determine the validity of the cross-claim, and, in the event that the cross-claim is made good, to determine contribution between the parties to the amended cross-claim.

The Proceedings

7    The case proceeded over some 65 sitting days, a time period which spanned over three and a half months. There were some 3,500 pages of transcript, 283 exhibits, including a great number of extensive reports from experts of many persuasions. The parties were represented by counsel of experience and ability who represented their client’s interests with diligence and persistence. My Levy SC and Ms Lonergan appeared for the plaintiff; Mr Brereton SC and Mr Butcher appeared for the first defendant, and Mr Hall QC and Mr Woods for the second defendant. On 14 June I reserved my decision. Further written submissions were received after judgment was reserved, during June, July and August 2001.

Assessment of Plaintiff’s damages

8    For the sake of convenience, unless formality or context requires otherwise, I will refer to the plaintiff “as “Calandre”, the first defendant as “Dr Diamond” or “the Doctor”. Similarly, I shall refer to the cross-defendant as “the hospital” or “St Margaret’s Private Hospital”.

9    I shall begin with a brief statement of the events of 5 July 1979. As will be seen when the cross-claim comes to be examined, there are a number of contentious issues of fact arising between Dr Diamond and the hospital in relation to those events. As a result of the Doctor’s admission of liability, it is not necessary, at this stage, to recite or explore any of those contentious matters in connection with the assessment of damages.

The Events of 5 July 1979

10    Mrs Simpson had in fact arrived at the hospital the evening before at about 8.30pm. After a quite night she was taken to the labour ward at about 8.10am where Dr Diamond performed an artificial rupture of membranes. Syntocinon was administered to help induce labour and Mrs Simpson, according to the hospital records, went into labour at about 10.30am. Dr Diamond, who had gone to a nearby hospital at Randwick to conduct a surgical list, was called to the hospital by a telephone call about 12.30pm. He arrived about 1.25pm or 1.30pm and determined upon a course of delivering the baby by forceps. According to Dr Diamond’s evidence, there were three different types of forceps used. They were first, Wrigleys forceps, (a short forceps used for “quick and easy” delivery), a longer curved forceps with an optional traction handle, known as Neville Barnes forceps and a straight forceps used for rotational purposes known as Kiellands forceps. In all, there were some five attempts, at least, to deliver the baby but no descent was achieved. During the final attempt with the Kiellands forceps, Dr Diamond rotated the baby’s head, applied traction with no success, and re-rotated the head back to its previous position. During these manoeuvres, the baby’s heart dropped down to between 60 to 80 beats per minute whereupon the instrumental attempts at delivery were ceased immediately. These attempts had taken place over a period of between 15 to 20 minutes. Then it was decided, as an emergency, to deliver the baby by caesarean section. Because the instrumental attempts had taken place in the labour ward, it was necessary to take Mrs Simpson to the fourth floor where the operating theatre was located. In addition, there was a further delay in commencing the caesarean section because of the need to obtain an anaesthetist, to prepare Mrs Simpson for the operation and to obtain her husband’s consent to the proposed surgical procedure. The first caesarean cut was made at approximately 2.15pm and the baby was delivered at 2.17pm. Accordingly, there was a total delay of about 27 minutes between the conclusion of the attempts at instrumental delivery and the moment when the baby was born. On the balance of probabilities, it was, during this time she sustained her asphyxial injury.

11    Present at the operation, in addition to the nursing staff, were Dr Williams the anaesthetist, Dr Hakim who assisted, and Dr Van Vliet a neo-natal specialist.

Neo-natal History

12    Calandre was in extremely poor condition at delivery weighing 3.3 kilos with a head circumference of 33cms. She was a normally grown female infant. She was given an Apgar score of 1 at 1 minute, 1 at 5 minutes and 1 at 10 minutes (see paediatric notes, Exhibit “A”). According to this scoring system, she was barely alive. Dr Van Vliet noted a “persistent bradycardia” and arranged for immediate intubation and ventilation. According to one of the notes, the baby took 10 to 15 minutes “to pink up”, then took occasional gasps. She was admitted to the nursery where she was “very cold” with a temperature of 34 degrees. A blood glucose reading was satisfactory. She was extubated shortly after 5pm.

13    On 6 July 1979, Calandre developed convulsions. She had at least eight convulsions on this day. She was described as lethargic and irritable and had a very bad night between 6 and 7 July. It appears she had continuous episodes of generalised fitting during this evening. She was treated with Valium and Phenobarbitone. These epileptic seizures continued for about three days, and they became easier to control only after the dosage of anti-convulsant Phenobarbitone was increased. Calandre continued to be lethargic and jaundiced in the days following her birth. Feeding was slow for many days.

14    By 12 July 1979, Calandre was more alert and was opening her eyes a little. She was tolerating feeds by now but she had a very weak cry and a weak response to pain. By 14 July, she was taking some oral feeds albeit, slowly. On 19 July the Phenobarbitone dose was decreased to 3mgs three times a day and antibiotics were stopped. On 26 July, Calandre was discharged home.

15    On 19 September 1979 the hospital RMO, Dr Cooper wrote to Dr Diamond and summarised the various treatments given and the progress of the baby. The final diagnosis was “cerebral hypoxia resulting in convulsions”. Dr Cooper summarised the various matters I have already set out and concluded that: -

“There was a gradual improvement of lethargy and there were no further convulsions. Dosage of Phenobarbitone was reduced. … She was discharged well on 26 July 1979 on oral Phenobarbitone 3mgs tds.”

History after discharge.

16    Upon discharge, Calandre was a restless and difficult baby. Mrs Simpson gave evidence that Calandre cried a lot, and it was necessary to buy a papoose and walk Calandre around in it in order to placate her (T 10). Caring for her was time consuming, and it required patience in a number of ways. Feeding Calandre was always difficult as she could not suck from the bottle, and Mrs Simpson had to hold her mouth in a particular way so that she could swallow the milk (T 10). Mrs Simpson also had to administer the Phenobarbitone medication for Calandre’s epilepsy every eight hours. This medication was administered by way of a syringe placed in Calandre’s mouth, and again Mrs Simpson had to be especially careful to ensure that the fluid was ingested by Calandre because Calandre could not swallow easily (T 11). Mrs Simpson was vigilant in watching Calandre for signs of epileptic episodes, and she had been instructed by medical practitioners as to what she should do in the event of such an emergency.

17    Shortly after her discharge from hospital, Calandre was again examined by Dr Van Vliet. The hospital paediatrician referred her to Dr Feller, a Consultant Paediatrician, in November 1979. He continued to treat her until at least 1990. In turn, Dr Feller referred Calandre to Dr Graham Wise, a Clinical Child Neurologist, shortly after she had turned one in about August 1980. Dr Wise saw Calandre regularly from that time until April 1987 in the context of overseeing her neurological development and monitoring and treating her seizures (T 526-527). Calandre’s development is conveyed in evidence by correspondence between Drs Feller and Wise especially (Exhibits “M” and “O”) and through the records of the Spastic Centre dating from September 1981 (Exhibit 10).

18    Calandre ceased taking Phenobarbitone medication when she was around the age of five to six months. On 9 August 1980, however, she was admitted to the Prince of Wales Children’s Hospital for “convulsions associated with fever” and remained there until 12 August 1980. Dr Wise had seen her for the first time just prior to this, and had found at that time, as reported in his letter of 5 August 1980, that Calandre was at the stage of a six months old in a motor sense, though he thought she may have been more developed intellectually. She could wriggle forward a little when placed prone and could get up to an all fours position (letter from Dr Wise to Dr Feller, part of Exhibit “O”, dated 5 August 1980). Following the 1980 hospitalisation for convulsion, Calandre was placed on the anti-convulsant drug Prominal, in December 1980.

19    It is convenient at this stage to mention a number of later hospitalisations for Calandre and to trace her treatment for epilepsy. She was hospitalised on 3 August 1980 for treatment of an upper respiratory tract infection, and discharged on 2 November 1980. Some years later, on 18 July 1983, she was admitted into hospital for an epileptic fit but she was discharged the following day. It appears that she has not suffered from any epileptic seizures since 1984 (T 531) and anti-convulsant medication was discontinued when she was around twelve years of age (T 11). Many years later, Calandre was admitted into the Prince of Wales Children’s Hospital for surgery for the relocation of the submandibular gland ducts to avoid excessive drooling. Calandre then attended hospital on 27 October 1994 for treatment of abdominal pain, the cause of which was unknown. In 2000 Calandre had her appendix removed and was in hospital for five days (T 49).

Therapy and General Development

20    Mrs Simpson said that she knew Calandre was “not normal” from birth. She said that she watched the child carefully and compared her with children of similar age and “the pattern certainly wasn’t that of a normal child”. It seems the true situation regarding Calandre was brought home to her in 1980 when she was referred to a physiotherapist at the Prince of Wales Hospital. The therapist examined Calandre and said “This child is grossly damaged”. Mrs Simpson said that no one had really said that to her before. She rang Dr Feller and discussed the matter with him and it was at this time she was “officially” informed that there was “gross damage”.

21    For the first three years of Calandre’s life, Calandre received therapy treatment at the Prince of Wales Children’s Hospital. She attended physiotherapy every day, though between the ages of three and four, physiotherapy treatment was cut to about three times a week because of funding cuts (T 12-13). Mrs Simpson would take Calandre to these therapy sessions and would help her participate in them. She would also help Calandre with the exercises developed in physiotherapy at home. Often physiotherapy sessions were followed with occupational therapy treatment or speech therapy, though often occupational therapy was conducted on different days (T 13).

22    Mrs Simpson’s description of the degree to which she became involved in the physiotherapy, speech therapy and occupational therapy sessions showed outstanding devotion to her daughter’s care. Mrs Simpson said it was very difficult to assess how many hours she spent looking after Calandre in this way over and above “normal mothering”. She said it was constant. She looked after Calandre’s needs at night and, when she had carers in the home, she attended to Calandre on the days the carers had off. Her estimate of hours actually involved in looking after her daughter in this way was somewhere between six and ten hours for a period of about four years until Calandre went to school at the age of four and a half.

23    In September 1981 Calandre gained admission for treatment at the Spastic Centre at Mosman. From May/June 1982 she attended the centre as an outpatient for a combined speech and occupational therapy session each week. These assessments yielded significant information about Calandre. For example, the assessments noted:

· She appeared to comprehend all that was said to her and much of what was discussed around her. She had a head gesture - a “Yes and No” - which was consistently and appropriately used. Calandre used facial expression and eye glance to indicate her wishes (Speech Therapy Report 24 September 1982 by Dr P. Baldwin, part of Exhibit “T”, page 495 of the plaintiff’s bundle volume 2).

· She had fluctuating tone, overlaid by an ATNR to both sides (greater on the right hand side than the left). With effort, Calandre had associated reactions in her lower limbs and trunk. She could roll, her only independent sitting position was “W” and her only method of independent locomotion was “combat crawling”.

· She had gross reach, grasp and release and required verbal prompt and facilitation to be achieved. She could point in a gross manner using her left upper limb.

· She had very limited fine motor skills. She could match red, blue and yellow, knew most body parts, though she did not consistently match shapes. It appeared that she was functioning at that time between two and half to three years level regarding developmental concepts (Occupational Therapy Assessment by Dr M Llewelyn, September 1982 part of Exhibit “T”, Vol 2 of the plaintiff’s bundle 496-497).

24    As I mentioned earlier, Calandre commenced school at the Spastic Centre School at Mosman at about the age of four and a half years. Concurrently with this schooling, she participated in a comprehensive program of physiotherapy, occupational therapy and speech therapy.

25    At this time, Calandre had been able to walk slowly when supported under the arms. Mrs Simpson gave evidence that between the ages of three and seven, Calandre could take some weight bearing on her legs, if she was assisted in this way (T 16-17). A review report prepared by the Spastic Centre in September 1987 notified improvements in Calandre’s walking ability, as indicated by her promotion from a walking frame with forearm support to a Rollator frame which provided less support. Her trunk stability had improved to the degree that she could usually maintain trunk elongation on the weight bearing side when she took a step with her other leg. Further, it was reported that the plaintiff had been successfully fitted with orthotics following one set of leg plasters, and these were worn when standing and walking in physio (Physiotherapy Report by L. Bonella, 25 June 1987 part of Exhibit “T”, plaintiff’s bundle Vol 2 page 465).

26    Mrs Simpson said that, in fact, Calandre did walk, albeit with a lot of help. She had to be held up under the arms but she could move her legs slowly.

27    As Calandre has grown, however, her ability to maintain such movements has decreased as her muscle tone has become tighter. Today, with help, she can still move by moving her legs in a scissor movement (T 29). She is unable, however, to walk at all now (T 74). Calandre obtained her first wheelchair at the age of eight and she operated this by way of a chin switch. She graduated to an adult electric wheelchair, controlled by a joy stick when she was twelve. She obtained her current electric wheelchair about the age of nineteen which is more suitable to her present stature in that it has a higher back than the previous one. It also gives her some support for her head because of the height of the chair’s back.

28    Calandre transferred to the Allambie School for specific purposes in February 1988. It is significant to note, however, that a gap occurred in her schooling because of the extent of the therapy she was receiving. This was between the age of nine and fifteen years. It is for this reason that Calandre, now an adult in her twenties, attends as a senior student studying for her HSC. She continues to receive Spastic Centre services which include physiotherapy, occupational therapy, speech therapy, hydrotherapy and social work intervention.

29    Calandre has in the past attempted other drastic therapies to reduce the level of her disability, but these have not always been successful. For example, at the age of sixteen, she entered upon Japanese Isowgai Therapy. This therapy involved plastering Calandre with a type of wooden splinting from the waist down in an attempt to change the pattern of her hips (T 18). She would be placed in this type of plaster for a week, have it taken off for a night, and then be replaced in the splinting after this temporary respite. This process was maintained for a period of three months but was ultimately abandoned. This was because Calandre was not eating well and had become very thin and because there had been no improvement. Mrs Simpson had said that she had looked at the condition of her child during this time and had taken the view that she “would die if the treatment continued” (T 18).

Calandre’s current position

30    The plaintiff is a severely and multiply disabled young woman, and impairments caused by her athetoid cerebral palsy have been so severe and so sweeping that she requires assistance with every aspect of her daily life. It is common ground she needs care 24 hours a day, seven days a week. Despite her profound physical injuries, she has preserved intelligence and presented as an insightful young woman. She has abundant “grit and determination” (T 348 lines 40-50).

31    Athetoid cerebral palsy affects Calandre’s muscle tone in limbs, trunk, head control, the muscles controlling her oral motor functions (eating, drinking, speaking and saliva control). There is also a capacity for an affect on her bladder and bowel control, although this is generally manageable. Abnormal muscle tone, spasticity and the retention of primitive reflexes limit her ability to move or attain normal patterns of movement and positioning, and inhibit her ability to undertake functional tasks or activities and to interact independently with others (Ms French’s report June 2000, page 8 - Exhibit “EE”, Vol 2 of plaintiff’s bundle, page 717).

32    Calandre is confined to a wheelchair for mobility. She has no functional movement in her right arm or hand. When in her wheelchair, her right hand is strapped inside a Velcro cuff so that the right arm is stabilised. This effectively anchors her trunk and allows her increased function in her left arm and hand. If her right hand is not strapped in, she flings her arms around a lot more (T 28). The right thumb fits between her forefinger and middle finger, and her right hand cramps because it is impossible for her to keep that hand open (T 28). In these circumstances, Calandre is able to use her left hand to point, and she is able to manoeuvre her wheelchair with the interaction between her left hand and the joystick.

33    Calandre is unable to stand without the assistance of two or more people. As I noted earlier, she can no longer walk (Mrs Simpson T 74). If she is assisted and held up under her arms, “she can put her feet down but the toes go up” (T 74), and can help a little bit through the performance of scissor like movements with her legs (T 29). Generally, she has to be moved in and out of her bed by means of a mobile hoist or sling apparatus. She is placed on a “goanna” chair on wheels for toileting and showering. Movements in her legs are affected by head movements due to the lack of trunk stability and balance. If Calandre flexes her head, her legs also flex, if she extends her head, her trunk and legs are extended with an associated retraction of her arms at the shoulders (Michelle French’s report pages 12-13, Exhibit EE plaintiff’s bundle Vol 2 pages 721-722).

34    Calandre can roll, but does not crawl as such (T 30). She is, surprisingly, able to push herself along the floor with her legs and her torso (T 74) but it is a fairly tortuous process. She is also able to move herself on her waterbed. Mrs Simpson gave evidence that recently Calandre has learnt to roll to the end of her bed and throw her legs over the side of the bed and pull herself up into a sitting position where she places her legs apart and puts her hands between her legs on the bed (T 30). However, when asked whether Calandre could sit without support, Mrs Simpson said “No” (T 81), and she stated that Calandre could sit on a couch or armchair for a reasonable amount of time, though she had to keep propping Calandre up because she would slide down (T 81). It is appropriate to mention at this stage that the evidence concerning the plaintiff’s ability to sit unsupported was refined later in the evidence. It became necessary to examine the plaintiff’s abilities in this area in relation to her place, if any, in the statistical material available on life expectancy. Somewhat to her mother’s surprise, Calandre was able to sit unsupported on a lounge for in excess of thirty minutes (Video - Exhibit “PPP“).

35    The plaintiff is non-speaking and has never been able to articulate predicably intelligent speech. She can indicate “Yes” and “No” with head movements and is able to make sounds to express pleasure or displeasure (T 19). She screams quite frequently, though these sounds are very similar and can indicate singing or laughing or screaming in the usual sense (T 19). Her own evidence indicated that because of the distortion of these sounds, people often become afraid of her when they first meet her, and this upsets her. In a telling phrase, she said she is still “a person inside a body which does not work” (T 451).

36    More than this, her difficulties in communicating her thoughts and feelings have had unpleasant consequences in the past. She related the experience when, while in hospital last year for the removal of her appendix, she attempted to convey to the nurse that she would like her bed lowered so she could sleep. The nurse thought she was in pain and gave Calandre an enema. The plaintiff kicked around to try and resist but the nurse held her down and gave her the enema. Afterwards, Calandre cried in frustration because she had just wanted to sleep (T 451).

37    Calandre communicates through the use of a communication board, positioned on her wheelchair tray, which displays over 640 words, phrases and letters. Calandre accesses the words, phrases and letters on the board either manually (she points with her left thumb) or via a small laser light pointer mounted on the peak of her baseball cap. The laser light is activated by a switch at the back of her cap and Calandre hits her head against the back of a chair to activate the switch (T 23). Communicating with her takes a lot of time and requires concentration and focus from Calandre and the person with whom she is communicating (T 22). At times, when Calandre needs to spell out a word and is unsure of the spelling, she points to the phrase “I am not sure of the spelling”, alerting the other person that they will have to deduce what she trying to say, and then attempts to spell the word by pointing to individual letters.

38    She has abnormal muscle tone in the muscles associated with swallowing and chewing. She has a tongue thrust (the tongue is projected forward instead of retracted during the act of swallowing) (Report of Michelle French, June 2000 page 26, Exhibit “EE” plaintiff’s bundle Vol 2, page 735). This creates considerable problems in feeding her. Mrs Simpson gave evidence that feeding can be a messy and troublesome process. Food needs to be cut up into small pieces, and feeding her is slow because if she thrusts her tongue while she is being fed the food will fall out of her mouth (T 31). Care must be taken to position the plaintiff’s head correctly, and she has to be fed while her tongue is in her mouth (T 31).

39    Calandre recalled an incident when she had been fed too much pizza at once, and she began to choke. Her carer took her out of her chair, put her on the floor and called Calandre’s father. This occurred about four years ago, and a similar incident has not happened since because Calandre choses to stay away from food with which she knows she will have trouble (T 455). The incident is very instructive in emphasising the importance of properly trained carers and the need for empathy between carer and client.

40    Calandre’s difficulty in swallowing entails that she has poor saliva control. In August 1992, as I have already mentioned, the plaintiff had surgery for salivary gland diversion and her drooling improved markedly (Letter from Dr Peter Carter, Surgeon, to R B Monteith and Co Lawyers, dated 21 July 1999, Exhibit “U”, plaintiff’s bundle Vol 2 page 453), however she still encounters problems when she is excited. When she needs to concentrate, for example when she is communicating through use of the communication board, she forgets to swallow and she has to be reminded (T 51). This causes an accumulation of saliva (Mrs Simpson described it as “foaming in the mouth”) and so Calandre needs her face to be wiped (T 51). It is important to note that this distresses the plaintiff more for the fact that it is unsightly than for any other reason (Mrs Simpson T 51). Indeed, the main risk associated with poor swallowing - that saliva and liquids will be aspirated into the lungs and cause pneumonia - has not eventuated as a problem in Calandre’s medical history. Calandre has not, since 1980, been hospitalised for chest infections, nor has she ever suffered from pneumonia. These matters became the subject of intense scrutiny as part of the issues concerning the vexed question of life expectancy.

41    In spite of the profound impairments Calandre has suffered as a result of the circumstances of her birth, in communicating her evidence in court she presented as an alert young woman of some awareness and perception. She has been assessed, by a number of experts, to possess average intelligence. Indeed, Dr Phillips, a Consultant Psychiatrist, gave evidence that he had been confirmed in his belief that the plaintiff’s intelligence was in the average to high end of average range by observing her evidence in court. He said: -

“I don’t have any doubt that Miss Simpson’s intelligence, particularly in terms of verbal matters, is well into the average range and probably at the high end of the average range. I state that principally watching her in action this afternoon; her ability to grasp concepts, to think about matters and to respond in a most difficult situation in a very articulate manner.” (T 717).

42    I should add my own observations to this: The transcript does not adequately reveal the determination, effort and difficulty involved in Calandre’s decision to give evidence. The energy, both emotional and physical, involved in this courageous effort was prodigious, not only did she give evidence, she endured the trauma of sustained cross-examination. It must have been an exhausting and difficult experience for Calandre, but it was clearly a journey she was determined to make. There was revealed for all to see, humour, tears, resolve and an acceptance of her lot that was truly inspirational and informative.

43    Professor Reid, a Neuropsychologist, has assessed Calandre on a number of occasions. He has substantially altered his views over time. Following her first attendance on him, in August 1994, (she was fourteen at the time) he concluded that she would not progress academically much beyond the level of functioning she had already attained (Report by Dr Reid 8 September 1994, part of Exhibit “X”, plaintiff’s bundle Vol 2, page 634). In assessments he made this year, he found that she showed at least average verbal and non-verbal reasoning skills and verbal memory (she had no problems in learning and retaining new verbal information) (Supplementary Report dated 13 March 2001, part of Exhibit “X”). Dr Reid believes that Calandre’s abilities have significantly improved, and that this highlights the benefits of mental stimulation received through continuous education (T 988-989). With further stimulation, the prospect is that her intellectual and cognitive abilities will continue to improve, though it is hard to know when this maturation will cease (T 1186). However, Calandre continues to possess deficits in arithmetical skills, general knowledge and visual integration. Some of these were poignantly exposed during her cross-examination. It must be said, however, that given the substantial gap in her education between ages nine and fifteen, and her almost complete lack of exposure to the general world, especially in the light of her limited ability to communicate, her progress in educational matters has been quite remarkable in recent years. I have little doubt that her “grit and determination” will see a degree of improvement in these deficit areas.

44    Dr Wise, Calandre’s Neurologist since she was a year old, has maintained for years that Calandre is of normal intelligence, and has become increasingly convinced of it (T 530). He has been especially impressed by what he has considered to be “her lively intelligence and sense of humour” (T 530).

45    On the other hand, Calandre has displayed some particular weaknesses in her psychological development. As recently as 1999, she was observed by Dr Phillips (Consultant Psychiatrist) to possess “nihilistic thoughts”, explained by reference to mid-adolescent years, where she had found herself falling in love (or having considerable affection for boys of a not dissimilar age group) and where she felt that the feelings were not properly reciprocated (T 716). Calandre, at this time, felt that the future did not offer her much, and that there was not a great deal of reason to live (T 716). She was also observed to have an inability to delay gratification - when she wanted something and was told that it was impossible, she had trouble accepting this (T 718). Further, there was some “stickiness” in her communication in that, when the interviewer wished to move on to a different topic of conversation, and gave the plaintiff every indication of this, she wanted to stay with the topic which was important to her and had trouble making the mental shift (T 718).

46    However, her improvement in maturity over the past eighteen months, as noted by Dr Phillips, has ameliorated the consequence of these issues. He has noted, in his oral evidence and his second report dated 19 February 2001, that Calandre had matured significantly since her first attendance on him in June 1999 (T 718-719, report 19 February 2001, page 3 plaintiff’s bundle Vol 2 page 629).

47    Dr Phillips described Calandre’s improvement in maturity in the eighteen months since that first consultation as something that “he had not anticipated” (T 718-719). It is said to demonstrate that Calandre is developing psychologically in an age-appropriate manner, and that “she looks at her world very similarly to other sensible intelligent women of her age group” (T 719). Like other women of her age group, Dr Phillips has suggested that Calandre is somewhat naive about the complexities of child rearing (T 718).

48    Certainly, the plaintiff’s “substantial insight into her problems, particularly in relation to her degree of handicap” (T 718), noted even at the time of the first consultation, (see first report 2 August 1999, page 4, plaintiff’s bundle Vol 2 page 622) reflects a significant degree of psychological development and maturity.

Calandre’s Major Achievements

49    Calandre has displayed considerable determination and strong resolve in pursuing her goals. She appreciates her level of disability acutely and refuses to accept it as a reason for not pursuing activities which she sees as desirable and enjoyable. Calandre displays a conviction that, even within the level of dependency that frames her world, she can achieve fulfilment and success through participation in a wide range of activities.

50    Calandre has displayed, for example, an enormous amount of tenacity and diligence in her school studies, in circumstances where her schooling has been interrupted by intensive and wide ranging therapy. She started school, at The Spastic Centre, when she was about four and half years old (T 15). She left primary school when she was about nine years old because she had found primary school very difficult due to the level of therapy she was receiving at the time (T 456), and this created a gap in her schooling which continued until Calandre was fifteen years old and started High School.

51    Calandre completed her Year 10 School Certificate in 1999. In all of her subjects- English, Mathematics Standard, Science, Commerce, and in Technology/Applied Studies (Life Skills) and Language (Life Skills)- she achieved a grade of D (Satisfactory achievement). Three courses are externally assessed in the School Certificate- English-literacy (Calandre gained a mark of 59/100), Mathematics (42/100) and Science (36/100) (Exhibit “FFF”).

52    She is now participating in a program to complete her HSC at Allambie Special School, and hopes to complete her HSC in September 2002 (T 453). She currently studies the HSC subjects of English, Personal Development Health and Physical Education (PDHPE) and Legal Studies. As part of her pathway to her Higher School Certificate, Calandre has satisfactorily completed the Preliminary (Year 11) courses of 2 unit English Standard, 2 unit Legal Studies and 2 unit Personal Development, Health and Physical Education, as recorded by a Record of Achievement from the Board of Studies (Exhibit “FFF”).

53    It should be said that Calandre is unhappy at school at the moment. This is because she is frustrated that she is 21 years of age and still at school (T 452-3). Despite this sense of frustration, she is determined to complete her Higher School Certificate because she would like to attend university (T 456-457). Her motivation is evidenced through the considerable amount of hours she devotes to her study. She completes about three hours of homework every night. She commences her homework before the evening meal, and finishes it afterwards if necessary. She also has homework on weekends and during school holidays (T 27). For the last three years, she has had extra help from a tutor and she has described this as “fantastic” in that she has been able to catch up on her work (T 457).

54    In September of last year, Calandre received an achievement award recognising her entry into Year 7 (in cross examination it emerged that the school had been “slow” in giving this award, because Calandre had in fact started Year 7 years ago- T 699). On this occasion, Calandre prepared a speech. It is instructive to quote it:-

“Ladies and Gentlemen and fellow recipients. I’m honoured to except this award and would like to thank my teacher’s for nominating me. I had to work very hard to get to this point in my schooling.
I had many obstacles to overcome. My biggest obstacle was catching up in Maths as this was my weakness, then I had this good teacher who made me work very hard each afternoon. I was as tired as anything and would fall asleep in class, but my teacher soon put a stop to that. She told me to get my goal which was to get the school certificate I had to get my act together, which luckily I did last year.

I reached my biggest goal, I got my higher school certificate (sic) with a good mark

Now I am working towards my higher school certificate which is a big challenge. I have one big thing going for me, my determination comes from mum and dad.”

55    The plaintiff’s effort and perseverance in her school studies, in circumstances where impediments resulting from her disabilities have served to delay the progress of her education and create obstacles to learning even on a daily basis, is quite extraordinary; and the level of achievement that she has reached is, in all the circumstances, remarkable.

56    Calandre’s belief in her own capabilities, and her desire to experience in her own life similar moments to those experienced by her sisters, is perhaps best presented through the journey towards, and her celebration of, her Bar Mitzvah in February 1992. Calandre’s older sister Bianca had made her Bar Mitzvah when she was thirteen years old, and it had been a significant event in the Simpson family. A few years later, Calandre expressed to her parents that she would also like to make her Bar Mitzvah, and her mother’s immediate reaction was that this was impossible because she could not speak (T 61). Calandre persevered and confided in a teacher at her school, who rang the Jewish Board of Deputies on her behalf. When they were unable to assist, more inquiries were made and a Rabbi who was willing to instruct Calandre (Rabbi Lampert of the Temple in Chatswood) was found. Calandre was able to take a very active part in the ceremony through the use of a device called the light talker (T 62). In her evidence, Calandre said: -

“It was so special because at first mother and father said, ‘no, you can’t have this’, but like everything in my life I had to fight for.” (T 696).

57    After Calandre had made her Bar Mitzvah, she felt “fantastic” and proud (T 696).

58    Another significant event in Calandre’s life was the occasion of a party for her 21st birthday, which she marked with a speech that had taken her four days to write, and which her older sister Bianca read on her behalf (T 696). Calandre identified this occasion as a major achievement in her life (T 696). The speech, which is Exhibit “CCC”, expresses gratitude to her family and friends for their support, and resonates with a bright sense of humour and an affectionate recollection of family moments. It is worth setting out some of the speech at length: -

“Welcome family and friends to my very special night, it’s hard to believe how many people are here and I didn’t even have to pay anyone to come (so you think Cals).

Over my 21 years like everybody in this room I’ve had to face a lot of hardships, but I always had the support of the Simpson’s and family friends. In my life, people have asked me on numerous occasions if my parents treat me differently to the other children. My answer is always “no”. I still got a mouthful (especially from mum, and try hard mum Jade) when I gave cheek. However, like they say the good times outweigh the bad.”

59    And later: -

“When I was a little kid my mum use to take me from therapist to therapist each day. She always trys do what she sees is best for me and she’s 99.9% right. For that I am greatful. I have to say that I don’t know a mother who has been through the kind of things that she has been through and still has the energy to love each of us.

As for dad, well what can I say! He has always been the best father that anybody could hope for, well almost. He’s just like a big brother only he acts younger. Always willing to let me tag along to the snow, and occasionally to the movies with him. Oh yeah and dad next time we go to the pup can you wear a t-shirt stating that you are my father, so the older people don’t mistake you for a dirty pervert trying to get a handicap child drunk and ask ‘and what do you plan to do with her after this’.

To my three sisters, Biancha Jade and Cloe. We have always given each other hell! But anyone else with sisters would understand. I constantly find myself saying things like ‘what is my dress doing on you’.”

60    Calandre also thanked her carers, friends who had travelled from interstate, and her closest school friend, Angie.

61    While these impressive milestone achievements are indicative of the extent of the plaintiff’s determination, it is her pursuit of her own interests and activities on a daily basis, and her possession of similar likes and dislikes to those of able-bodied girls of her own age, that perhaps best reveals her desire to be as unexceptional as possible.

62    She loves watching television (especially the soapies at night) (T 24), has enjoyed horse riding with the help of two people on each side (T 23), and has participated in snow sports (through the use of specially made toboggans) (T 25). Calandre loves music, and has met her favourite performer, John Farnham, three times (T 459). She has also been to the ballet (T 459), and she enjoys playing chess (T 80). Above all, it seems, she delights in the company of people her own age, whether able-bodied or disabled, in social settings such as the pub where she likes to drink alcohol (sometimes) (T 458).

Calandre’s Hopes and Aspirations

63    Calandre has envisioned, in detail, what she would like her future to hold for her. Her desire to make certain experiences part of her future is strongly felt and expressed with a sense of conviction.

64    First, Calandre has given evidence that she would like to live independently. Mrs Simpson stated that Calandre has been adamant for a few years that she would like to live independently of her family (T 43). Calandre said “I really want to move out of home into my own house with carers” (T 605). She thinks that her home should be “all special for me”, and that it should always meet her needs (T 605).

65    Secondly, Calandre would like to attend University. When asked why she wants this, she responded: “I have a brain and I want to use it. Why should I sit around?” (T457).

66    Calandre hopes to study social work so she can assist people with special needs. Her first choice had been to study law, because she wanted to help people get the “right justice”, but she came to the realisation that she had to be realistic. She knows she will not get the mark required for entry into this course (T 458). With support (help from an educational tutor), Calandre does not see any problems with attending university (T 458).

67    Calandre also hopes to compete in the next Paralympic Games (in 2004) in Bocce (T 694). Calandre enjoys playing Bocce and became involved in this sport through school. She plays this game with the help of an assistant, she tells the assistant where to position a ramp and the ball is thrown down the ramp (T 24, T 694). The assistant follows Calandre’s instructions, they cannot watch the game (T 694).

68    Bocce is an example of an activity that she has pursued independently and with determination. When Calandre’s ramp assistant left, she was told that she couldn’t participate any longer because another ramp assistant could not be found, and so Calandre found her own ramp assistant through her own “begging and pleading and finding” (T 62).

69    Calandre’s hopes to marry one day and have children. She has had a boyfriend, and he asked her to marry him about a year ago, at first she accepted the proposal but she later changed her mind (T 697). Calandre believes that she would not like to marry before she is 28 years old, because there are many things, like travel and getting a university degree, that she would like to do first (T 698).

70    Calandre hopes to have two children, two years apart. She does not envisage that she would have difficulties in raising children if she had the right help (T 698). When asked in cross examination whether there was a risk that her children might bond or attach to their carer, she replied “No, because I will give them all love as a mother should”, though she agreed that if this did happen, she would find that distressing, “but carers come and go and the mother will always be around” (T 710).

The Issues

71    Despite an early prospect that there might be a measure of agreement between the parties in relation to a number of the heads of damages, this was not to be. This is regrettable since it requires the court, following an extended hearing, to determine 31 heads of damage in relation to the overall assessment. Many, if not most, of these were hard fought. This extended not only to major items such as the cost of future attendant care but to relatively minor items as well such as pharmaceutical costs and the selection of a motor vehicle for modification to enable the plaintiff’s transport.

72    In these circumstances, it is necessary for the court to start, as is conventionally done, with an assessment of general damages and then to work its way through 31 contested heads of damage.

73    The first matter to be determined however, is that which occupied the bulk of the time devoted to the assessment of the plaintiff’s damages. This is the issue of the plaintiff’s life expectancy.

Life Expectancy

74    The plaintiff’s life expectancy is an issue which bears upon all those heads of damage which have been claimed by the plaintiff on a continuing basis for the whole of her life. In the general run of cases, the conventional basis upon which such an issue has been resolved is by resort to the Australian Life Tables, which provide the life expectancy for Australian males and females. There is then applied to those tables, where appropriate, expert medical opinion focusing on those aspects of the plaintiff’s condition and individual circumstances which may yield a variant to normalcy. These opinions may affect the averages reflected in the life tables. In most cases, the conventional situation is that the different estimates in those expert opinions provide the court with a range from which the court itself may make an assessment of the likely or probable extent of the plaintiff’s remaining years. Once this finding has been made, a plaintiff is entitled to the discounted capitalised value of the continuing loss for the length of years so determined. This is often a practical assessment but it is also, for the reasons stated by Handley JA in G. T. Pettersen v Bacha (NSWCA unreported, 9 March 1995) a most critical and important one. A significant underestimate, for example, could leave a plaintiff without adequate care at a critical later point in his or her life. A significant over estimate, on the other hand, could result in a windfall for others.

75    The issue of life expectancy in this case has been most complicated. At one level, it tended to develop into an all out battle between the clinicians on the one hand and the statisticians on the other. On the plaintiff’s side there has been an array of medical evidence (Drs Wise, Buckley, and Professor Breslin) plus bio-statistical, epidemiological, and actuarial evidence (Professor Berry, Dr Staines and Mr Cumpston). In turn the defendants called a Rehabilitation Specialist, Dr Bowers, Dr Antony a Paediatric Neurologist, and an American Researcher and Statistician, Dr Shavelle. In reply, the plaintiff called Professor Yeo, a well known spinal injury Rehabilitation Physician.

76    The presence of this impressive body of expert evidence has resulted in, a virtual avalanche of evidence and submissions from the contesting parties. Despite this, the issue poses a simple and stark question: What is the probable span of the plaintiff’s remaining years?

77    The first defendant’s position starts with the recognition that Calandre has cerebral palsy - a non-progressive condition attended by a range of disabilities which, in turn, carry a number of risk factors predisposing the plaintiff to death at an earlier than normal age. One such risk factor, for example, is the risk of respiratory tract infections as a result of aspiration, leading to pneumonia.

78    Mr Brereton SC’s principal submission is that the primary question is best answered - indeed can only be answered - by an examination of acceptable relevant statistical material, if available, which will reveal whether Calandre is at an elevated risk of mortality. If there be such material and she is shown thereby to be at risk, this material will also reveal the incidence of the mortality risk. Alternatively, at the very least, an examination of this kind of statistical material will provide an appropriate starting point for the necessary examination.

79    The second step in senior counsel’s argument was to identify, through Dr Shavelle, a customised life table for Calandre based on a well recognised Californian database. This is a routine data system known as the “Californian Mental Retardation Database”. The system derives from information regarding patients who have developed mental disabilities and received health services from the State of California. It is one of the largest studies of people with disabilities and contains a large number of people who have cerebral palsy.

80    Dr Shavelle provided a number of progressive reports containing his estimates of the plaintiff’s life expectancy. Essentially, the estimates progressed upwards as more accurate information was provided to Dr Shavelle. His final estimate, which corrected a coding error in his previous reports, concluded that Calandre’s life expectancy was an additional 40 years (to age 61) or, making some assumptions in her favour about her hand function, an additional 42.9 years to age 62. The third and final step taken by Mr Brereton SC in his submissions involved the making of some further assumptions in the plaintiff’ s favour. These in essence depended upon the possible acceptance of views which had been expressed by Professor Berry who gave statistical evidence for the plaintiff. Senior counsel urged that the statistical evidence supported a life expectancy, on the most optimistic reasonable view, of 45 additional years at age 20. He submitted that, on the probabilities, Calandre would survive to age 65 (a further 44 years from judgment if given at age 21).

81    Mr Levy SC took quite a different approach. He argued that the fundamental inquiry required an examination of a further question: Is there any specific reason to suppose that the plaintiff will die early and, if so, how early? This was the question which had been posed by Dr Staines. The answer to this question, Mr Levy maintained, was not to be found in the statistics. It was to be found essentially by having regard to the body of expert clinical evidence especially that assembled on the plaintiff’s behalf. This included the evidence of a Neurologist of long standing, Dr Wise; Dr Buckley a rehabilitation expert and Professor Breslin, an eminent respiratory physician. Regard could also be had, albeit with reservation, to the clinical views expressed by Dr Antony, an experience child neurologist and Dr Bowers, a rehabilitation physician, each called on behalf of the first defendant. The range of views of these experts varied from no reduction at all from the norm reflected in the Australian life tables (60.25 years) (Dr Wise); a two per cent reduction from normal (Dr Buckley and Professor Breslin) down to the possibility of death at age 55 (Dr Antony). The views of Dr Bowers and Dr Antony purported to take into account statistical material, but, at least in the case of Dr Antony, not in a particularly precise manner. It must also be said that Dr Bowers, while purporting to rely on scientific statistical material, rejected Dr Shavelle’s estimate because it was “not correct”.

82    Mr Levy’s preferred position was that the best of this clinical evidence ought prompt a finding that there was no sound medical basis upon which to found a justifiable argument that Calandre would die earlier than normal. That is, he urged a finding that the plaintiff’s remaining years should be assessed at an additional 60.25 years. The absence of any negative medical factors in her particular circumstances and the presence of positive individual factors, combined with the likely life prolonging effect of proper and adequate care, eclipsed, he submitted, any risk of an earlier than normal death.

83    The fundamental point of difference between Mr Levy and Mr Brereton on this issue was the plaintiff’s assertion that statistics do not provide the appropriate measure for estimating survival in the plaintiff’s case and do not substitute for sound clinical assessment. This assertion was founded on the proposition that it is important that an individual such as Calandre “not be buried in the statistics”. Secondly, it was pointed out that, in this case, there was no one in the Californian database who had the plaintiff’s precise characteristics and very few who closely resembled the plaintiff. Thirdly, there was extensive criticism of the systems employed in the compilation of the database and of the data itself. Fourthly, there was the possibility that mistakes could be made by the statistician either through the supply of incorrect information as to the variable characteristics of the plaintiff or by the inadequacy of the characterisation or definition of the variables themselves. All these matters were likely to affect the accuracy, precision, and hence reliability of any estimate of the plaintiff’s life expectancy.

84    Although Mr Levy’s preferred position was as I have stated it, the plaintiff’s side itself had itself assembled a volume of statistical and epidemiological evidence to answer Dr Shavelle’s assertions. Mr Cumpston, an experienced actuary, had estimated a life expectancy of a further 55 years (or 58.6 with allowances for improvement in mortality) based on material from an unpublished study in Western Australia. (Exhibit “NNN” in its revised form). Professor Berry, employing the same techniques as Dr Shavelle had used, and in reliance upon the Californian database, allowed a further 45.8 years depending on the assumptions made about the functionality of the plaintiff’s hand use and capacity to sit (or 47 to 48 years taking into account differences between the mortality experience in Australia and America). Mr Levy SC, while insistent that the statistical material was not to be preferred to sound clinical judgment, acknowledged the force of Dr Staines’ concession that Dr Shavelle’s methodology and statistical analysis (using the Californian database) might provide a starting point for the necessary analysis. He maintained, however, that a clinical assessment had to be made as to whether the group estimate applied to the individual. For example, as Dr Staines had said, the categorisation of the plaintiff for the purpose of fitting her within a statistical model was a medical matter, not a matter for debate amongst statisticians.

85    Mr Levy SC’s alternative position, if his primary and preferred position were not upheld, was that the evidence did not justify a discount from the norm to an estimate lower than 55 remaining years.

A General Commentary on the Life Expectancy Submissions

86    It will be apparent from this brief statement of the conflicting opinions on the issue of life expectancy that this case potentially involved “a head on” conflict between scientific statistical methods on the one hand and expert clinical assessment on the other. Dr Shavelle was rather scathing in his opinion of medical practitioners who purported to pass judgment on life expectancy issues without regard to the statistical studies (or at least adequate understanding of them ) and in circumstances where clinicians could call on only limited numbers of previous or existing patients with characteristics similar to the person whose life span was to be assessed. Some of the medical experts were equally scathing about the statistical approach. Dr Wise referred to it as “ticking boxes”. He argued that the statistical method ignored the individual characteristics of a person such as the plaintiff.

87    I have come to the conclusion that it will not be necessary for me to resolve, in any definitive way, this potential conflict in the present case. Indeed, this is not a suitable case for resolving the potential battle between statisticians and clinicians. In my opinion, it is possible and appropriate to assess the plaintiff’s remaining years by having regard to the whole of the evidence both statistical and medical in the particular circumstances of this case. In coming to this decision I have been especially assisted by the evidence of Dr Staines whose careful and analytic approach has made it clear to me that a holistic approach is to be preferred rather than one which focuses either on statistics or medical judgments alone.

Dr Staines’ Evidence

88    Dr Anthony Staines is the College Lecturer in Epidemiology at University College Dublin. He is a qualified medical doctor with degrees from both Trinity College and London. He obtained his Phd in Epidemiology from the University of Leeds. He has a background in paediatrics as well as a scholarly history in epidemiology. The latter field he defined as the study of factors which influence the health of people, particularly in population groups. It is the study of the factors that lead to particular causes of death and the acquisition of particular diseases.

89    Dr Staines had been provided with two reports from Dr Shavelle. These had been compiled in December 2000. In his first report of 7 December 2000 Dr Shavelle, a Researcher with the Department of Statistics at University of California, had expressed various estimates of the plaintiff’s life expectancy. The information on which he had based his estimates was taken from a document known as a “Patient Evaluation Questionnaire” (PEQ) which had been completed on 21 November 2000 in Australia by Dr Jayne Antony who had, on the first defendant’s behalf, seen and examined the plaintiff. Dr Shavelle also had the benefit of other materials sent to him by the solicitors for the first defendant. There were varying estimates provided in the first of these two early reports because Dr Shavelle, who is not a medical doctor, considered that some of the facts he had been given about the plaintiff were not clear. The most favourable of his estimates was a further 33.3 years.

90    (For completeness, and in order to understand the ensuing sequence, it is necessary to say that Dr Shavelle provided a further estimate on 26 February 2001 in which he computed the plaintiff’s life expectancy to be 34 additional years. This was following additional information provided to him by Dr Bowers, the Rehabilitation Physician retained on behalf of the first defendant. On 26 March 2001 he provided the defendant’s solicitors with a new report in which he said that the life expectancy in his report of 26 February 2001 (an additional 34 years) was incorrect. There was a coding error in his computation and, in addition, the model he had used was arguably inappropriate. Because of these errors, he revised his estimate and computed the plaintiff’s life expectancy, on a revised basis, at 40 additional years. He also noted that, based on Dr Bowers evaluation, he had assumed that the plaintiff had no functional use of her hand. He was asked to provide a revised estimate which assumed that the plaintiff “uses raking motion or grasp with hand”. On this assumption he gave an alternative computation of life expectancy at 42.9 additional years.

91    On 28 March 2001, he provided a final report which, inter alia, gave details of the manner in which the coding error had been made in the earlier report and why it was that the model chosen in that report was considered inappropriate. Although it appears that the two March reports were in the possession of the first defendant’s solicitors when Dr Staines gave his evidence on 28 and 29 March 2001, it appears, presumably for reasons of forensic advantage, they were not provided to the plaintiff’s solicitors until after Dr Staines had completed his evidence and returned to Ireland. For this reason, Dr Staines did not have the opportunity in examination in-chief to comment on the errors which had been made by Dr Shavelle, nor was he asked directly about such matters in cross-examination.

92    Dr Staines had been asked to comment on Dr Shavelle’s December reports. He was asked, essentially, whether they were a reasonable or reliable method of estimating the plaintiff’s remaining life expectancy. He was also asked to consider whether Dr Shavelle’s statistical approach to estimating future life expectancy was methodologically sound from “an epidemiological point of view”. Dr Staines was retained and instructed on 4 January 2001 and provided a succinct but thorough report on 24 February 2001.

93    First, Dr Staines explained the methods used by Dr Shavelle. He described these as “sophisticated and appropriate statistical methods” in the analysis of the survival of people with cerebral palsy in California. These methods estimate a quantity known as “the hazard rate”. This can most simply be thought of as the risk of dying immediately after having lived to a given age. He gave as an example a twenty year old woman. What is estimated for her, as an example, can be thought of as the risk of her dying before the age of twenty one. This estimate is based on the actual survival of twenty year old women in the population under study. More precisely, what is estimated is the instantaneous hazard rate - that is the risk of dying immediately upon reaching the age of twenty. For practical purposes, the hazard is usually calculated over a period of time, typically a single year, for the hazard of dying between age twenty and twenty one.

94    Dr Staines explained that, given a set of estimates of hazard, it is straight forward to calculate a life expectancy. At this point, he made an important distinction. He said that it was very important to be clear as to what an estimated life expectancy is. It is the expected duration of life from a specified age, for a hypothetical person who experiences the estimated hazard rates in question. Life expectancies are usually calculated for entire populations not for individuals. He said that it was important to emphasise that no real person experiences this set of risks of death.

95    Dr Staines developed this point in his oral evidence. First, he said that individuals do not have life expectancies. Life expectancies are properties of groups of individuals only. It only makes sense to talk about the life expectancy of a large number of people. When one comes to examine the likely remaining years for an individual, it is not a straight forward process and it cannot be simply done by taking the number shown as life expectancy for the group and applying it to the individual. The second point made by Dr Staines in this context is that epidemiologists normally would not be concerned to estimate the remaining years of an individual within a group possessing particular characteristics. Epidemiologists study populations the whole time. As a rule, they do not have a clinical background, although in his case he did have a clinical background in paediatrics. He expected that a treating clinician would be able to estimate the remaining years of an individual patient. A clinician would take the life expectancy of a large group of people with similar characteristics as background. He would then apply that knowledge, and the other knowledge generally inherent in the clinician’s experience, to the individual characteristics of the person and, based on all those matters, anticipate the likely number of years left for that person to live.

96    The third point he made in connection with this introduction was that “calculated life expectancies are not exactly what a non statistician might expect. They are not estimates of how long an individual can expect to live, rather they are convenient summaries of a set of hazards”. He went on to explain that this does not invalidate their use. For example, calculating life expectancies in this way permits the profitable operation of Life Assurance Companies. While life expectancies are tools for summarising sets of hazards rates for populations, the application of the method to an individual, he cautioned, was “fraught with difficulty” (Report page 10 section 5.1).

97    (I interrupt this summary of Dr Staines’ discussion to state that, I shall from this point endeavour to refrain, unless the context requires it, from using the expression “the plaintiff’s life expectancy” but rather speak of “the plaintiff’s remaining years”. It must be said that when examining the various medical and statistical reports, the two expressions are often used without the necessary and relevant distinction. This applies also to the entirety of the transcript where the subject is discussed).

98    The second matter discussed at length by Dr Staines in his report is an examination of the caution which needs to be applied to the database itself and to the method of prescribing a life table for Ms Simpson, as Dr Shavelle had done. These matters were discussed to make points regarding the possibility that statistical errors might arise; and to examine the precision of the estimates. First, he pointed to the quality of the Californian Mental Retardation Database itself. Dr Staines made the point that cerebral palsy is not a diagnosis. It has a range of different origins. This fact, in itself, may result in a source of statistical difference. Secondly, he pointed to the methods used to gain the information which is contained within the database. The data comes from forms completed as part of the routine activities by people from many different professional backgrounds. More importantly, Dr Staines pointed to his own experience with large scale epidemiological studies. This experience suggested that, without suitable training and the most scrupulous supervision of the participants, the quality of data recorded may well be variable. Some will be of good quality and some will be of poor quality. Thirdly, he pointed to the PEQ which Dr Antony had given to Dr Shavelle. Dr Shavelle had calculated an estimated life table for the plaintiff using this PEQ. It was quite apparent to Dr Staines that the information which Dr Antony had obtained was, in a number of important respects, inaccurate in so far as it purported to give details of the plaintiff’s characteristics. There were clear discrepancies. These included an estimate of the plaintiff’s mental condition, and the report that she suffered epilepsy (although she has had no seizures for years). Also of importance was the statement that she “had no functional use of her hand” when in fact she can use the thumb of her left hand to point to her communication board; she has increased function in her left hand and can control the wheelchair with her left hand and has some voluntary control of her left upper limb. There were other matters as well including the PEQ information that she “does not crawl, creep or scoot” whereas the plaintiff was able to move around in her bed; she could roll over in the bed and on the ground, and was able to pull herself forward by use of her limbs when lying prone on the floor.

99    The point that Dr Staines made was that any discrepancy between the plaintiff’s actual condition and the data provided to Dr Shavelle through the PEQ was likely to lead to errors in the estimation that he gave. The statistical result achieved would be rendered less precise. The greater the errors, so too would be the extent of the imprecision. The potential magnitude of such errors was illustrated by the various estimates given by Dr Shavelle in his first report which varied between 15.5 and 33.3 for further years of life. No doubt, had Dr Staines been given the two March reports of Dr Shavelle, he might well have made an equally telling point that the coding error and inappropriate modelling contained in the earlier report of Dr Shavelle also demonstrated tellingly the potential for error arising out of inherent imprecisions in the process.

100    A related potential imprecision was the document which enabled the collation of material in the Californian Database. This was known as the California Client Development Evaluation Report (CDER). Although Dr Staines had not seen a copy of this document at the time, the point he was making was that, for one reason or another, inaccuracies or ambiguities could arise in the completion of this document which might further lead to less precision in the final estimate.

101    (I should interrupt to say that Dr Antony herself gave evidence in the proceedings. She explained how it was that the discrepancies had occurred when the PEQ form was completed. She confirmed that she would perhaps have answered some of the questions in the form differently if she had seen the videos of the plaintiff’s physical abilities (Exhibits “EEE” and “PPP”) which were shown to her in court. Of more importance, she agreed that there were a number of problems with the PEQ classification system itself. She gave examples of this: For example, she was not given any definitions which aided her completion of the form and she said she had to make “her own interpretations” (T 2385 lines 35-53). She agreed that there were some confusing aspects of the form which “confounded” the examiner when it came to filling in detail (T 2388 lines 15-18)).

102    Dr Staines was also concerned that there may be room for confusion in relation to the completion and interpretation of forms occurring in different countries. He said that doctors and health care professionals in different countries use the same terms with systematically different meanings. This is a further source of potential error.

103    Another matter which required considerable caution was this: The plaintiff was, by any standards, an unusual person. She had severe motor difficulties but essentially normal intellectual ability. The implication of Dr Shavelle’s comments in his report as to the small number of people in the database who were comparable to the plaintiff meant that the estimate made by Dr Shavelle would be “less precise” than his estimates for people with more common patterns of cerebral palsy. Dr Staines was at pains to say that this was no criticism of Dr Shavelle’s professional competence but, “an inevitable limitation of epidemiological methods when applied to sparse or limited data”.

104    The next matter discussed related to the precision of the estimates themselves. This introduced first, the difficult concept of confidence intervals. Differences in confidence intervals, however, might affect the precision of the statistical estimates. Dr Staines turned then to another complicated issue. This related to the fact that there had been a need to include two different components in the life table prepared for the plaintiff. First, Dr Shavelle had calculated life expectancy from age 20 to age 35 directly from the Californian database. Secondly, he calculated life expectancy from age 35 onwards with reference to the Australian Life Table for the years 1996-1998. In other words, he made an assumption that the plaintiff had an elevated risk of death at age 35 equal to the ratio of mortality amongst 35 year old Australian females and that among 35 years females with cerebral palsy in the Californian Database. The assumption was then made that the extra risk of death experienced by the plaintiff, as compared to other Australian women, would decline smoothly towards a zero excess risk by the time the plaintiff reached the age of 100. From a statistical point of view, this assumption of a linear decline in the log of the relative risk of death with age, was reasonable. However, as no other studies had documented survival among people with cerebral palsy born much before 1960, the assumption was both untested and untestable.

105    There was a further area which raised issues of precision particularly in the light of a recent unpublished Western Australian study which suggested that the population of people with cerebral palsy born before the 1960’s in Australia was quite different from populations born in the later decades of the century.

Further reasons for rejecting the Syntocinon argument

1424    There are further reasons which support and confirm my belief that there was no hyperstimulation in this case and no depletion of the foetal reserves consequent upon the excessive dose of Syntocinon. These are, first, the conviction that Dr Diamond’s negligent acts were plainly sufficient of themselves to have occasioned Calandre’s injuries without the need to resort to an additional or contributory cause. This conviction, in turn, is based upon the acceptance of the hospital’s argument that there is, notwithstanding the rarity of the situation, an acceptable and well understood mechanism involved in the plaintiff’s injury; and the rejection of the first defendant’s argument that the injury is inexplicable or unlikely without the existence of a contributory cause.

1425    Secondly, there is my satisfaction with the proposition advanced on the hospital’s behalf that, despite the poor record keeping involved, there was adequate monitoring by the nursing staff of the baby’s foetal heart and that there was, throughout the entire period, no abnormality detected. This, in turn, persuades me that the nursing staff’s acceptance of normality was entirely justified. I am also satisfied that Dr Diamond was entitled to be satisfied, based on his own observations, that the FHR and contraction patterns were normal. These matters provide additional reasons negating the presence of any depletion of the foetal metabolic reserves. There is further support in the expert opinions of Dr Rennie, Dr Hinde and Mr Clements. Although the first defendant's case adverted to a possibility that there may have been present a depletion of foetal reserves but that this may not have been detectable or in fact detected especially between 1240 and 1350, I am not persuaded that this is so.

Dr Diamond’s negligence

1426    The starting point is Dr Diamond’s admission of liability. It must not be overlooked that, although the issues in the cross-claim have made it necessary to identify precisely the negligence involved, the plain fact is that the negligent “manner, timing and circumstances of use of forceps” have been admitted. The next step is to recall the findings made in relation to the manner and use of the forceps in this case and to relate them to the circumstances of the injury.

1427    The essential features were these: first, Dr Diamond misdiagnosed the position of the baby’s head. This occurred either as a result of inadequate examinations or inaccurate examinations. Secondly, he made a decision to commence the instrumental delivery in circumstances where he had made a mistaken diagnosis as to the position of the baby’s head. Thirdly, he had mistakenly assumed or decided that the maternal cervix was fully dilated when it was not. Fourthly, the decision to go forward with an instrumental delivery was a negligent decision: the circumstances were not appropriate for an instrumental delivery. Fifthly, after the failure with the first Wrigley’s application, Dr Diamond should not have persisted with attempts at instrumental delivery. He did not know the true position of the baby’s head, a position which, on the probabilities, was that of deep transverse arrest. One thing is clear: the head was not low down distending the perineum as Dr Diamond had claimed in his evidence. Sixthly, Dr Diamond was again negligent when he persisted with his decision to attempt instrumental delivery after the second failure had occurred. He had achieved no descent and he did not know why this was so. Seventhly, his further examination did not reveal his continued misdiagnosis in relation to either the question of the extent of cervical dilitation or the correct position of the baby’s head. Eighthly, in the circumstances, Dr Diamond should have then made a decision to go to caesarean before embarking on the Neville Barnes forceps. He applied the traction handle and, on the balance of probabilities, made two pulls with this instrument. The purpose of the traction handle was to enable more force to be applied. Whether it was excessive force or not is not to the point. There is no doubt that significant force would have been applied. Dr Diamond gave the appearance during his evidence that he was a well-built powerful and athletic man. There is no reason to suppose that he would not have been of similar stature and strength in 1979. His description of the force he applied - “sparingly and gently” (T 1817) - was a clear exaggeration. (See Mrs Simpson’s evidence (T 136 lines 5-20).

1428    Ninthly, Dr Diamond was negligent in deciding to use and apply the Kiellands forceps after all previous attempts at forceps had failed to produce any descent. This was especially so in circumstances where he did not know why this was so. He was, in effect, “flying blind”. Tenthly, Dr Diamond was at fault in not conducting the instrumental attempts in the operating theatre as a trial of forceps.

1429    What then are likely to have been the consequences of the numerous attempts at instrumental delivery with three different sets of instruments culminating in the rotational use of the Kiellands forceps and the application of further traction followed by a re-rotation? The plaintiff has argued that failed forceps is a very serious situation. It bespeaks error and misjudgment. Moreover, the hospital has argued that forceps, when misused, are inherently dangerous. Dr Diamond has taken issue with this concept. The submissions on his behalf address that forceps delivery have been a routine part of obstetrical practice for most of this century. Although it is true that with the advent of safe caesarean section, difficult forceps deliveries have become progressively less popular, it remains the situation that forceps are still often used in modern obstetric practice. Whatever be the position currently, the first defendant points out that the use of Kiellands in 1970 was quite widespread. This is shown, for example, on the St Margaret’s Obstetrics Register (Exhibit 142).

1430    The issue however is not whether forceps are dangerous but whether, having regard to the way in which they were negligently used by Dr Diamond in the present situation, they were likely to have caused the type of injury sustained by the plaintiff. The evidence is overwhelmingly against Dr Diamond in this regard. Professor Fisk described the instrumental attempts as an instance of “repeated and prolonged instrumentation” (Exhibit 126, par 118). Mr Clements described it as “an unprecedented catalogue of attempts” (T 214 line 35-40) and Dr Rennie described as “an exceptional sequence” (T 473 line 47). In a further reference, Mr Clements had said that it was “a very unusual experience with five attempts with forceps, with the early forceps apparently being applied to a head which was not rotated”. He said that this would explain why the outcome was uncommon and serious (T 1375 L 48 and following). Dr Hinde said that five different attempts at forceps delivery made this “an unusual circumstance” (T 2689 line 10).

1431    As a matter of commonsense, it seems perfectly explicable to me that the use of multiple forceps with a significant number of applications and pulls including rotation, traction and re-rotation was highly likely, in the circumstances, to cause serious injury. True it is that the baby’s head was not crushed in the instrumental attempts, yet, as I have explained, significant force was likely to have been used and this occurred over a significant length of time. Moreover, there was force involved in the application, the manipulation and the use of traction after application (T 3012 lines 30-50). The rotation, traction and re-rotation involved significant pressure on the baby. As well, Dr Diamond was pulling between as well as during contractions (T 1818). The critical feature was that the head was in the wrong position and that no descent at all was ever achieved. This was so despite the various applications and the use of traction. The foetal head was relatively small and was, in the nature of things, relatively unformed.

1432    Moreover, the expert evidence shows quite clearly that damage of the kind that occurred was likely to have occurred. The evidence of Dr Rennie was especially important in this regard. She was the only neonatalogist called to give evidence on the cross-claim. Her speciality was in diseases of the newborn with particular expertise on brain injury in new born infants (T 465 line 10). I have, much earlier in these reasons, set out the full detail of her evidence. In short, she said that the application of forceps can cause head compression and/or cord compression resulting in bradycardia from which a foetus may not recover. She said that the plaintiff’s cerebral palsy was characteristic of an acute profound hypoxic ischaemic event lasting between 10 and 25 minutes to the mature foetal brain. It was Dr Rennie’s opinion that the plaintiff’s brain injury was caused by an acute, profound collapse of foetal circulation. Dr Rennie conceded that, in general, removal of the blades of the forceps allowed the bradycardia caused by head compression to recover. She conceded also that babies born after failed forceps are generally not brain damaged. In this case, however, it was her opinion that because of the repeated head compression, the final attempt resulted in a bradycardia which did not recover (T 481 lines 5-15). Finally, Dr Rennie stated that the number of attempts with forceps was unusual in this case. She considered it probable that it was the continued number of attempts that ultimately produced a bradycardia when the Kiellands were used (T 501 line 15).

1433    The course of events in the labour ward and operating theatre on 5 July 1979 supports this interpretation. There emerges the clearest picture that regular foetal heart rate monitoring took place during the attempts at instrumental delivery. There is a considerable body of evidence regarding this in the transcript. In short, it shows that from the very commencement of the instrumental attempts, the nursing staff had been using the Pinnards stethoscope to monitor the heart rate. Dr Diamond himself stated that prior to the first application of forceps there was no evidence of foetal distress (T 1607 lines 14-21). He also confirmed that, following the abandonment of Wrigley’s forceps, the foetal heart rate was in the normal range and there was no evidence of foetal distress (T 1607 lines 23-29). Further, Dr Diamond said he was satisfied on the data from all the various types of examination that it was safe to proceed to Neville Barnes forceps after Wrigley’s (T 1629 lines 1-5). He was wrong in his diagnosis of the head position but there is no valid suggestion that he was wrong regarding the condition of the foetus.

1434    A circumstance then occurred that was important. The Doppler was applied probably about the time of the second pull with the Neville Barnes although it may have happened a little earlier. It appears that, following the second Neville Barnes application, there was a drop in the foetal heart. But this recovered immediately. This fact is important for two reasons: first, it shows, for the first time, an adverse reaction to the instrumental attempts. Secondly, the recovery of the heart rate almost immediately points very strongly against any suggestion of depletion of foetal reserves. This was the point made with considerable effect by Dr Hinde whose evidence in this regard I found compelling. He had said that if there had been embarrassment of the foetus over the preceding two or three hours as a consequence of hyperstimulation, there would have been a fall in the foetal heart rate as soon as the forceps were used, rather than only after the third or fourth attempt at forceps delivery (T 2694 lines 38-55; see also T 2874 lines 10-15 and 45; T 2875 line 5; T 3037 lines 5-15). This was the “side step” to which Dr Hinde had made reference in his evidence. To my mind it was a compelling observation. If there were this substantial depletion of metabolic reserves within the foetus, why was its displeasure not shown as soon as the instrumental attempts commenced? In my opinion, this was a telling point against the Syntocinon argument.

1435    Mr Brereton responded to these suggestions by arguing that it was “utterly implausible” that the drop in the foetal heart rate observed on the Doppler was in fact the first foetal heart rate abnormality. He said that the probabilities were that there had been “undetected abnormalities” before that time.

1436    The simple answer to this is that there is absolutely no evidence that this was so. In fact, the probabilities are all the other way. Regular monitoring was taking place and the heart beat was being checked in accordance with the usual practice between contractions. Dr Diamond said he saw the nursing staff checking the heart rate. They told him they had been checking and the heart rate was normal (T 1843 lines 5-15). The first abnormality detected was the drop which recovered immediately. The second and more serious abnormality was then heard either during or after the Kiellands attempt when the foetal heart rate fell from 60 to 80 bpm and remained there. This was a true indication that the unremitting bradycardia had at that moment set in. Dr Diamond said this was the first indication of “true foetal distress” (T 1806). It was a bradycardia which, on all the evidence, persisted until after caesarean delivery. This continuing and unremitting bradycardia caused the acute profound hypoxic ischaemic event referred to by Dr Rennie in her evidence. This in turn caused the plaintiff’s brain injury which led to her cerebral palsy. In my opinion, the bradycardia was brought about by the negligent use of forceps in the manner I have described.

The Mechanism

1437    The first defendant has submitted that the failed forceps are insufficient explanation for the prolonged profound bradycardia which preceded Calandre’s birth. It is argued that the failed forceps attempts on their own are insufficient to explain the outcome. This of course was the argument advanced by Professor Fisk, Dr Lyneham and Dr Keogh.

1438    All the experts called in the hospital case - Mr Clements, Dr Rennie, Dr Hinde and Professor Ellwood took the opposite view , although in the case of Professor Ellwood, it was his view as a foetal physiologist that an additional hypoxic element was necessary. He thought, however, that the combination of the forceps attempts and the possibility of cord impingement or occlusion by way of the forceps, provided a satisfactory explanation for the likely mechanism.

1439    Dr Pennington, who had been called to address Dr Diamond’s standards of care, conceded that persistence with attempts at forceps could give rise to an unremitting bradycardia (T 3092 line 50 to T 3093; T 3096 lines 25-35).

1440    In relation to the circumstances of this case, I am quite satisfied that the views expressed by the experts called on behalf of the hospital are correct. The views expressed by Mr Clements and Dr Rennie were very compelling. They were views derived from their own experience applied to the very unusual circumstances of the forceps applications and attempts in this case. Mr Clements was branded as an advocate in the first defendant’s submissions. I did not find him to be so. I thought his evidence was carefully considered and well-balanced. Moreover, he brought to bear considerable experience and a high degree of intellectual rigour. Although Mr Brereton was critical in a number of respects in relation to the views of Mr Clements and Dr Hinde, a careful consideration of their evidence leads me to the conclusion that their evidence supports entirely the hospital’s case.

1441    Dr Hinde, in particular, brought to bear on the issue a lifelong breadth of clinical experience. He conceded that bradycardia of the vagal type was commonly noticed in forceps applications but that generally speaking the bradycardia terminated when the forceps were removed. Usually, he said where the bradycardia continues it will remit after a couple of minutes. It was his clear experience, however, that in some cases the intervention process appeared to have set in train an unremitting bradycardia that was deleterious for the foetus (T 3014 lines 15-20). Again, quite fairly, Dr Hinde conceded that this was a rare situation. In most cases it was his observation that the bradycardia would remit. But in some it did not. He also stated, that there were occasions where, although no signs of external trauma were noticeable on the foetus, the manipulation had induced a quite marked bradycardia and hypoxia in the foetus (T 3014 lines 35-40).

1442    Mr Brereton SC endeavoured to confound Dr Hinde with the literature. Quite fairly, Dr Hinde conceded that other experts had examined the literature and he had no quarrel with their statements in that regard. Notwithstanding this, he repeated that, based on his clinical experience, on rare occasions in circumstances where there had been a failed forceps, he had observed that despite the fact there was no trauma to the foetus the intervention appeared to have set up a persisting bradycardia. Dr Hinde made a further concession that there may have been an unidentified hypoxic element involved but it was his view that “this would not be so in every case” (T 3020 lines 40-50).

1443    I was very much persuaded by the evidence of Dr Hinde. He came to the witness box with impeccable credentials and a long history of clinical experience. Mr Brereton did not seek to brand Dr Hinde as an advocate. Rather, he suggested that his views were outweighed by the evidence of the foetal physiologists.

1444    Professors Fisk and Ellwood were the two foetal physiologists called to address the issue. I prefer Professor Ellwood’s views to those expressed by Professor Fisk. Although I gained considerable assistance from Professor Fisk’s excellent report, I cannot say the same for his evidence. It was he, of all the expert witnesses, that I would brand as obdurate. A reading of his extensive cross-examination would, I think, convince the reader that he was not prepared to make the most reasonable of concessions even when it was plainly the case that such a concession was called for.

1445    On the other hand, I found Professor Ellwood’s approach to be both reasonable and convincing. It is true that he believed it was necessary to find a hypoxic element as well as the presence of vagal bradycardia. To that extent, he differed from Mr Clements and Dr Hinde. As a foetal physiologist, he was no doubt searching for scientific certitude. To the extent that a hypoxic element was necessary, he had no difficulty in accepting that it may well have arisen from the forceps impinging on or occluding the cord. After all,, Dr Diamond’s notes had suggested the cord was wrapped around the baby’s neck. Dr Diamond’s evidence confirmed that the cord was not only around the body but around the neck. It was perfectly possible, indeed quite likely, that, during the instrumental attempts, a hypoxic element was set in force in addition to the bradycardia caused by the forceps applications.

1446    Importantly, Professor Ellwood said he had no difficulty with the proposition that there were two concepts operating at the same time but both related to the forceps use. In fact, he said that there was no way of drawing a distinction between the two mechanisms. I have earlier set out and quoted the relevant transcript extracts. One bears repetition At transcript 2983 he said: -

“There is no way of drawing a distinction between the two mechanisms. If you deliver a baby that has a degree of hypoxia and there has been a Kielland’s rotation and there has been a prolonged foetal bradycardia it is impossible to draw a line and say this component is vagul, this is hypoxia, there are two at the same time”.

1447    Professor Ellwood was attacked on the time frame involved in each of these elements. As he said, it was impossible to treat each mechanism as if it were a separate function. It was the combined operation that brought about the result, in his view. He said that he had seen vagal responses continue for ten minutes after removal of the forceps. This allowed time for the hypoxic mechanism to operate and continue to cause the bradycardia (T 2981, 35-55).

1448    In my opinion, Professor Ellwood and Dr Hinde were really describing the same thing. From the perspective of the foetal physiologist however, there was a need to be satisfied, as I have said, with a degree of scientific certitude. The experienced clinician is not necessarily as concerned with such niceties of precision. He knows what he has seen. Dr Hinde as an experienced obstetrician simply based his observations on his lifelong professional experience. He did not seek scientific certitude he simply knew as a matter of experience that failed forceps were sufficient to explain the mechanism. Dr Rennie had observed the same thing in clinical situations. She said, quite sensibly that the precise mechanism might never be known.

1449    It remains only to mention two further matters on this topic: first, Dr Diamond’s use of the forceps in the present circumstances was accurately described as unique and exceptional. It was not necessary, as Mr Clements said, to have a second pathology, when there was “softening up” with four prior forceps attempts (T 278 lines 20-30). Secondly, it is clearly the position that Calandre’s situation is not well-represented in the medical and scientific literature. As I have said earlier, this is hardly surprising. “Rare events occur rarely” (T 282 line 21). The important point is that a range of highly qualified medical practitioners recognised that Calandre’s plight in the labour ward had been consistent with their own clinical and professional experiences.

Conclusion

1450    Calandre was not harmed by Syntocinon. Until the end stage of the instrumental attempts, her heart rate remained within normal limits. There was no tachycardia preceding an onset of bradycardia. At the time the Keillands forceps were employed, there occurred “the first real sign of foetal distress”. The recovery of the heart rate following the drop during the Neville Barnes applications reinforced that this was so.

1451    I am satisfied that, had there been any real indication of foetal distress at an earlier point of time, it would have been picked up by Dr Diamond or the nursing staff. To the contrary, the reports were that there was no foetal distress. There is no reason to suppose that the nursing staff were not diligently monitoring the mother and baby. They would have been alert for any sign of distress. There simply was none.

1452    The secondary argument that there may have been a level of foetal distress simply not detectable nor capable of being revealed by manual auscultation has no substance to it. It was of course a possibility but there is simply no evidence that this was so. In fact, all the evidence points the other way - there was no meconium staining, there were high glucose levels and there was no requirement for additional glucose post-natally. These latter matters, admittedly inconclusive in themselves, very clearly indicate, when taken together with the absence of any signs of foetal distress, that it was unlikely that the baby’s reserves were depleted in any way prior to the commencement of instrumental delivery. This is further reinforced by the recovery after the brief drop in heart rate during the Neville Barnes attempts.

1453    When there is factored in the negligent use of the forceps, the absence of full dilitation and the misdiagnosed position of the baby’s head, the fate of the Syntocinon argument is inevitable. When it is recognised there was in operation a clear and known mechanism for the relevant damage without the need to find an adjutant or contributing cause, the position becomes overwhelming.

Miscellaneous matters

1454    There a number of arguments on each side which it has been unnecessary for me to determine. The first defendant had argued that the Syntocinon overdosage greatly increased the risk of hyperstimulation and consequent depletion of the foetal metabolic reserves followed by foetal compromise. It was argued that foetal compromise in fact occurred. Consequently the result was within the scope of the risk which the hospital’s negligence created as a result of which the hospital should therefore be taken to be responsible (Chappel v Hart (1998) 195 CLR 232 at 239, 257 and 273-4.) In view of my finding that hyperstimulation did not occur and that there was no foetal compromise as a consequence of the Syntocinon administration, it is unnecessary to consider this argument further.

1455    The hospital argued that Dr Diamond’s negligence included a failure to warn and a failure in relation to Dr Diamond’s assessment of gestational age. I have fully dealt with the latter at an earlier point in these reasons. As to the former I am quite satisfied that the hospital has failed to make out a case that Dr Diamond failed to warn Mrs Simpson appropriately in relation to the risks of induction. The evidence simply fell short of enabling this aspect of the case to succeed. I should add that it was not part of the case advanced by the plaintiff against Dr Diamond.

1456    Another matter which occupied a considerable portion of the hospital’s submissions arose out of a brief reference in Dr Diamond’s evidence to his Synotocinon regime. There was a disparity between the regime he described in his evidence and the rate of administration referred to in the partogram. I agree with the first defendant’s submissions that this was in the nature of “a red herring”. Whether Dr Diamond’s usual regime was as he described in his evidence or not - the first defendant argued it was simply a slip on his part - the only relevant matter is the dosage and administration rate set out in the instructions in the partogram. A comparison between these instructions and the regime to which Dr Diamond referred to in his evidence does not, in my opinion, advance the hospital’s case one way or the other.

1457    The findings I have made also make it unnecessary to consider the further issues of novus actus intervieniens and apportionment. In view of the fact that I have found against the first defendant in relation to all the allegations made against the hospital, it is undesirable that these matters be considered against an assumed hypothetical background.

Orders

1458    I propose, when the matter is finally disposed of, to direct that verdict and judgment be entered for the cross-defendant on the cross-claim.

1459    I will hear the parties on the question of costs and the final form of the orders to be made. I stand the matter over for mention on a date to be agreed between the parties.

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Last Modified: 11/09/2001