Trustees of the Sisters of St Joseph v Diamond

[2004] HCATrans 505

[2004] HCATrans 505

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 2004

B e t w e e n -

THE TRUSTEES OF THE SISTERS OF ST JOSEPH

Applicant

and

ROBERT DIAMOND

First Respondent

CALANDRE SIMPSON BY HER TUTOR WILLIAM CHARLES SIMPSON

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 1.45 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S. WOODS, for the applicants.  (instructed by Makinson & d’Apice)

MR P.L. BRERETON, SC:   May it please the Court, I appear with my learned friend, MR I.F. BUTCHER, for the first respondent.  (instructed by Blake Dawson Waldron)

HAYNE J:   Yes.  I have a certificate from the Deputy Registrar that she has been informed by the solicitor for the second respondent that the second respondent submits to any order of the Court save as to costs.  Yes, Mr Walker.

MR WALKER:   As your Honours appreciate, that is because this is an application arising out of adjudication of a contest, relevantly, between two defendants, in which the plaintiff will not be financially interested.  In that contest, what was at stake was the sharing of, including whether there should be any sharing at all, by way of apportionment as well as, obviously, consequential costs orders of about $11 million damages.  There is, for clients such as mine, obviously, financial consequences of real moment in this case.

May I start with a point of general importance.  Your Honours have seen that the way in which his Honour Justice Young, making the findings and conclusions for the Court of Appeal, quoted from Chief Justice Latham in relation to what I will call a 50‑50 default position as to the just and equitable apportionment of liability measured in the damages and the contribution to damages between the relevant tortfeasors.

Your Honours have been given, I think, a copy of the old case of BHP v Duffy, argued in Melbourne in 1943 and apparently delivered ex tempore. It is mis‑cited in our list as being in the Australian Law Journal Reports. It is in fact in 16 ALJ 374 and it is reported, as your Honours see, in the old newspaper fashion in indirect speech. We do not suggest that that in itself casts any doubt on the authority it deserves.

At page 376, in a level crossing case, where the bus driver knowing of the railway line – being very familiar with it, in fact – never looked to see whether there was a train and had been at trial apportioned only one third liable, or his employer apportioned only one third liable, and BHP, the train, with the locomotive at the back of the wagons, and the guard being too late to call out for the brakes to be applied, those facts produced in the High Court the conclusion – a successful appeal by BHP – that instead of one third, two thirds, it should be 50‑50, in the course of which the critical statements relied upon by the Court of Appeal in this case emerged as follows.  In the right‑hand column on page 376, the Chief Justice said:

It was impossible to reach any solution of the problem of contribution by reasoning of the degree of precision ordinarily associated with mathematical subjects.

Interpolating there, leaving aside causation, the simple quantification or the measure of damages in the common law system has never required that.  Rather, in the next sentence, the Chief Justice said:

The Court had to determine, though in a rough and ready manner, whether one party was more responsible than the other for the damage, and, if so, to what extent.  It was very difficult to say that either party was more responsible than the other –

And on the facts of that case that is clearly not a position of default, but rather a position of cogitation and consideration.  That being so, and now follows what we say carried into authority in New South Wales, there is the germ of error, because Sir John then went on to say:

there was no reason why –

then by a reference – incorporation by reference – to a statute emanating from an international Maritime Convention, he described or enunciated a 50‑50 rule.  He paraphrased it as follows:

that where it is impossible to assign the precise degree of fault –

and I emphasise the word “precise” –

the responsibility shall be apportioned equally –

Mr Justice Williams, at the end of the reasons for judgment, is noted as referring to in that case:

not see[ing] how the blame could be equitably apportioned other than equally with any mathematical certainty.

In our submission, those were understandable comments by way of emphasis in the particular case before their Honours, but it is of great danger to have introduced that as what Justice Young treated as a binding gloss in relation to the just and equitable command, which otherwise, in this Court and generally, one would have thought, attracted more the rough and ready and quasi‑discretionary approach, rather than a search for mathematical certainty.

HAYNE J:   Let it be assumed for the purposes of argument that that point is good and that either no or very little assistance is to be derived from Duffy.  On the hypothesis that your client was rightly found to have contributed to what occurred, what evidentiary base was there that would have permitted anything other than half‑half division?

MR WALKER:   It was a very strong evidentiary base, which, not surprisingly, spills into the second point to which I want to come, that is, the individual injustice in the appellate overturning of Justice Whealy’s findings.  It has to do with what I will call the admitted liability and found gross negligence of inappropriate forceps intervention by the doctor, on the one hand, and, on the other hand, the far more tenuous connection, as a matter of medical causation, between the excess of Syntocinon for which the hospital had been found liable ‑ ‑ ‑

HAYNE J:   That is the point to which I wanted to direct your attention.  If once you take the step of saying that the over‑administration of Syntocinon was causally relevant, causally effected, was a cause of the injuries, where do you go other than half‑half?

MR WALKER:   Your Honour does appreciate by your questions, obviously, that I am now being asked to assume the correctness of the factual findings in the Court of Appeal.

HAYNE J:   Of the second point you seek to challenge, yes.

MR WALKER:   And, of course, this is a special leave application where I am bound to say that the first point would not have as much foundation of worthiness for special leave if the second point were not also accepted.  I have to accept that because, if we were right on our second point, then, of course, there is either no apportionment at all or extremely modest in our favour.

The same facts which would say no liability at all are facts which, by reason of the timing of the foetal distress, by reason of that timing and by reason of what I will call the frank scientific ordinariness of the causation of inappropriate forceps intervention by the doctor, on the one hand, and the relatively speculative notion of fatiguing of the foetus before the forceps intervention even started, in our submission ‑ ‑ ‑

HAYNE J:   There you have this clash between what is, I think, rather crudely described as the “clinicians versus scientists” approach.

MR WALKER:   I am not suggesting any joust of that kind should attract this Court’s special leave intervention at all.

HAYNE J:   No.

MR WALKER:   One would not have that in this Court, that is, we would not be arguing other than the way in which we have tried to put in our special leave application, namely, that the Court of Appeal simply got it wrong in relation to the Syntocinon implication.  May I just finish off what I wanted to say about that first point by simply showing your Honours that which I am sure your Honours already appreciate, that the paraphrase by Sir John Latham which has now been treated, as it were, as a rule in substance by the approach of the Court of Appeal that becomes the law in New South Wales for the meaning of the phrase “just and equitable” comes from a statute itself emanating not from parliamentary choice of just and equitable and as a test, but from an international convention binding sovereign nations from a number of different legal cultures.  The word “precise”, not surprisingly, does not appear, in any event, in the particular provisions. 

So, in our submission, that is a short point of real moment for the day to day running plus the appellate interference with contribution in cases where there is real financial implication to the matter, and there is real financial implication to this matter. 

Can I then come directly to the second point, because I have made it clear, I hope, that the second point would be a centrepiece, we accept, of the case offered for special leave.  The second point came down to whether or not in a case where the doctor had admitted negligence in relation to highly inappropriate forceps intervention and there was no question about what I will call mundane medical scientific thinking – forget expert clinician division – about how that could cause the horrific consequences for the plaintiff, in a case like that, what could one say about the trial judge’s findings, once it came to the Court of Appeal, concerning the hospital’s punitive liability for this excess of Syntocinon? 

Now, Syntocinon bringing on labour, supposedly causing, by its normal mechanism, in an inappropriately large dose, hyperstimulation so that, to use lay expressions, the baby was too tired to withstand what, with forceps or otherwise, was going to be the climatic moment of birth, the stress of the actual final phase.  Hyperstimulation leading to fatiguing, with it being clear brachycardia, pathologically slowed heartbeat being the telltale.

The case the hospital successfully put at trial partook of this reasoning.  If Syntocinon had had this hyperstimulating and therefore excessively fatiguing effect, then it would have been apparent upon the first of the stressful events in the last act, being the first or earliest application of forceps, and that that would have been apparent by the foetal heart rate, the FHR, being depressed pathologically – and “pathologically” includes without bouncing back.  As your Honours appreciate, stress can either increase tachycardia or reduce brachycardia, the heart rate, but it is the speed of resumption back to the normal that is really significant. 

On that, in fact, at trial, his Honour Justice Whealy examined the evidence not only of the defendant doctor, which was all our way on the point, but also of an expert, at least one expert, who was also in support of our position, as well as the information to be gleaned from the reports of the expert nursing staff throughout the relevant phases of labour to the doctor.

Could I take your Honours to volume 2 of application book, page 354, paragraphs 155 and following.  Unfortunately, the paragraph numbering of Justice Young’s reasons is intermittent.  I can tell your Honours that 157 is at line 40 and 157 is the critical one.  His Honour quotes from paragraph 1434 of the trial judge’s reasons, which is indeed an important passage, where a number of matters talked about throughout Justice Whealy’s reasons are pulled together.

At paragraph 156, line 35, on application book 354, Justice Young says, and correctly, that this finding was critical.  It is a finding of what I will call the telltale of the Syntocinon effect referred to by Justice Whealy.  Justice Young was also correct, with respect, in saying that it was a foundation of the hospital’s case and we cannot possibly complain, Warren v Coombes, about it being closely examined.

However, what then happens, for the reasons we have put in our written submissions in this Court, which can be summarised as follows, there was an entirely inadequate and, frankly, wrong examination of the matter by Justice Young to such an extent that in this hotly contested case in the written submissions by the respondent before your Honours there is at least this concession, that paragraph 157 is not elegantly expressed.  That is, with respect, a major litotes.  Paragraph 157 puts the point, Warren v Coombes appellate duty and function, very plainly:

The only evidence that there was not “a fall in the foetal heart rate as soon as the forceps were used” is that of the partogram which showed a constant foetal heart rate of 140 bpm.

As we have put in writing, that was no part of the hospital’s case at all, that the partogram was either the evidence that excluded a pathological drop in heart rate at the first use of forceps, nor did we say it was the only evidence.  The partogram in question was for a different phase, an earlier phase altogether.  There was no recognition of that in this paragraph.  There is, thus, a misunderstanding of the hospital’s case, a misunderstanding of the hospital’s argument in the Court of Appeal and frank error in relation to the record.

The 140 beats per minute there referred to is then, as it were, criticised by his Honour, and fairly, in one respect, by reference to the evidence, not truly contested, that 140 should be treated as a conventional indication, by reason of it being a midpoint, of a normal range, 120 to 160.  That is what explains Dr Hinde’s important expert comment noted at the foot of page 354 up to the top of page 355.  It is important to note that there is then a reference to that being so until the third or fourth attempts to deliver the baby by use of forceps.

Indirectly and by silence Justice Young is casting doubt on whether it was not until the third or fourth attempts that there was a drop.  At paragraph 158, the silence is not filled.  His Honour simply says:

there is a significant weakness in the evidence that there was in fact a constant foetal heart rate of 140 bpm –

and if that is meant to be taken literally, that was nobody’s case –

and that there was no fall in foetal heart rate as soon as the forceps were used.

In other words, a weakness in the case of “No fall” in FHR meaning, presumably, therefore some strength in an opposite case “There was a fall”.  If there was a fall, Syntocinon can be implicated.  If Syntocinon can be implicated, the hospital can be liable.  In paragraph 159, the reasoning is emphasised and finished:

Accordingly, in my view the force of the point which Whealy J regarded as “telling” against “the Syntocinon argument” is very much diminished.

Paragraph 160 adds nothing else to that.  That is a pivotal point in the finding of liability against the hospital.  I have already pointed out that the reliance on the partogram was simply incorrect, but the major defect in it just simply did not do justice to the reasons of Justice Whealy – leave aside the efforts of counsel. 

The reasons of Justice Whealy, if I may give your Honour simply four selections which falsify without any doubt – beyond argument – the proposition that there was no other evidence other than the irrelevant partogram.  One could start, for example – this is all volume 1 – at application book 107, paragraph 1118:

The second attempt with the Neville Barnes –

the Neville Barnes is the second in order of gravity and interference of the kind of forceps used –

During the attempt with the Neville Barnes forceps, Dr Diamond said that he could hear the foetal heart rate being monitored.  This was because, at his instructions, a Doppler had been applied . . . Dr Diamond heard a deceleration after the Neville Barnes had been applied.  That is, he heard the heart beat drop down.  It dropped down to approximately a hundred beats a minute.  However, it recovered immediately –

So that was not the sign of a fatigued, hyperstimulated baby.  Then can I take your Honours to application book 129, paragraph 1153.  There we have evidence conveyed to Dr Diamond when he arrived, from the nursing staff, about the foetal heart rate having been monitored – nothing adverse.  At the foot of that page:

Manual auscultation continued during the application of the Wrigley's forceps –

they were the least drastic – they were the first, therefore, the one where you would expect to see the drop if Syntocinon had caused hyperstimulation and fatiguing –

and the heart rate was reported to him as normal –

Now, Justice Young simply does not deal with that at all.  The whole of that paragraph shows that Dr Diamond himself had a case about normality at that point, which was critical as an indicator of Syntocinon implication. 

Finally, one can go to pages 251 and 252, paragraphs 1402 to 1404, which pull together the rejection of the Syntocinon argument by reference to that very kind of material, namely, nursing staff and Dr Diamond’s own reports, which had nothing to do with the irrelevant partogram, the graphing of which had ceased before the periods in question.

That is why the paragraph which was quoted in Justice Young’s reasons, which really starts at page 266 and goes over to the bottom of page 267, paragraphs 1433 and 1434 – your Honours have already seen the latter – were findings with which the Court of Appeal had to engage, by way of their Warren v Coombes appeal by way of rehearing, in order to depart from his Honour’s conclusion, clear, well reasoned, with detailed reference to particular evidence.

HAYNE J:   The answer made against you, as I understand it, focuses on what appears at page 370, paragraphs 220, 221, thereabouts, the answer being, as I would understand it, there was an acceptance in the Court of Appeal that you needed both vagal and hypoxic causes, no evidence of any interference with the cord, therefore Syntocinon and hyperstimulation.

MR WALKER:   The difficulty is that you would first have to have evidence of hyperstimulation, and that is what this contest was about, your Honour.  What we were deprived of in the Court of Appeal was any dealing with the evidence.  There is frank error by his Honour’s statement, “There was no evidence”.  Your Honour does raise what might be called an alternative mode of reasoning, but it is a mode of reasoning which was rejected by Justice Whealy without any error being detected in that rejection in the Court of Appeal.  It is for those reasons, in our submission, that there was the individual injustice.

HAYNE J:   Yes, thank you, Mr Walker.  Yes, Mr Brereton.

MR BRERETON:   May it please the Court, if I may, I will deal with the second point that my learned friend has argued first, and then deal shortly with the first point.  So far as the second point is concerned, there is simply nothing special about this case on that point which warrants ‑ ‑ ‑

HAYNE J:   It is not argued as anything other than individual justice of the case.

MR BRERETON:   That, in itself, is one powerful reason why special leave should not be granted.  The second reason is that this is a most inappropriate vehicle to engage this Court’s attention for that purpose.  In fact, and as I will seek to show in a moment, this will involve the extensive examination of vast tracts of evidence to see whether or not the Court of Appeal performing its Warren v Coombes function of re‑examining the evidence did so correctly or incorrectly.

HAYNE J:   I understand the in terrorem argument, Mr Brereton.  I take its full force.  I do not say it is without force or merit.  What is the answer to the points made against you?

MR BRERETON:   I shall come to that directly and may I begin by coming to the three passages to which my learned friend referred.  It needs to be remembered that in this case there were five attempts with forceps, two with the Wrigley’s, the small forceps, two with the Neville Barnes and then one with the Kielland’s.  The Doppler, which made the foetal hearts audible to those listening, rather than the Pinnard’s stethoscope listened to by the nurses, was applied during the Neville Barnes attempts and not during the Wrigley’s attempts.

If we go to page 107 and the passage which my learned friend referred to there at paragraph 1118, what is being described there is the second attempt with the Neville Barnes.  It was during that attempt, the second attempt with the Neville Barnes, that Dr Diamond could hear the foetal heart rate being monitored, and line 49, during that attempt:

Dr Diamond heard a deceleration –

Dr Diamond could not hear what was going on before the Doppler was applied and was reliant on information from the nursing staff for that purpose.  That passage does not show that there was no drop before the second Neville Barnes attempt at all.  If we go to page 129 and the passage referred to there, all that shows is that during the earlier attempts the reports from the nursing staff were of normality.  They showed no observation by Dr Diamond, just what he was told by the nursing staff.

As to the passages at page 251 and 252, they do nothing more than summarise what has gone before.  In short, there was this evidence as to the condition of the foetal heart before the second Neville Barnes attempt.  There was a partogram which showed no departure from abnormality before 12.45.  There was hearsay evidence of the nurses that the nurses had not reported abnormality and had said when Dr Diamond arrived at the scene at 13.30 that it was normal.  Dr Diamond persistently said he did not himself check the foetal heart before the deliveries, he relied on what the nurses said.  The first time he heard it was when the Doppler was put on, and, as soon as the Doppler was put on, the first attempt that followed it resulted in a drop.

Now, you take those matters together and then you add the fact that all of these nurses, some of whom it was shown were still alive and some of whom it was shown had been interviewed by the hospital, were not called.  So the nurses, the hospital staff, were not called to give evidence about their observations.  That then left the position of a partogram which expired at 12.45 and Dr Diamond’s evidence that the first he heard was a drop after the second Neville Barnes attempt.

Contrary to the single observation on which so much attention is put, at paragraph 157 of the judgment is clear that Justice Young and with him the Court of Appeal did not misunderstand the significance of the partogram and was fully aware that the partogram’s record expired at 12.45 and did not speak of the position at 13.30.  At volume 2, page 324, at paragraph 77(6):

There was no record of any observation of the FHR after 12.45 pm.

So his Honour was clearly aware of the fact that the partogram did not extend beyond 12.45.  At subparagraph (7) his Honour illustrated that his Honour was aware that the source of the information about the alleged normality of the foetal heart after 12.45 was other than the partogram:

The doctor was informed by nursing staff that there were no abnormalities and that the FHR was normal.

So his Honour was clearly aware that the source of information for that was other than the partogram.  At subparagraph (9):

From the nursing staff’s assessment using the Pinnards stethoscope, the foetal heart rate appeared to be in the normal range.

Again, clearly aware that the source of information was other than the partogram.  Then, if we go over to page 328 at paragraph 90, once again his Honour is aware that the last thing that the partogram said about the foetal heart rate was at 12.45.  What that goes to show is that while his Honour may have infelicitously said at paragraph 157 that the only evidence was the partogram, it is clear that in the extensive review of the evidence his Honour was well and truly aware that it was not.

The way that paragraph 157 is to be understood is in the context in which it appears.  If we go to paragraph 155, it was argued in the Court of Appeal that paragraph 155 was the crux of Justice Whealy’s judgment in rejecting the Syntocinon theory.  At line 17 his Honour advanced two important reasons for rejecting the Syntocinon theory, first, the idea that the first adverse reaction was after the second Neville Barnes, and, secondly, the idea that the heart rate recovered rapidly thereafter.

What his Honour was saying in paragraph 157, in substance, was that “Well, when one looks at the basis for that reasoning, it is really extraordinarily weak, because the only evidence that shows that there was not an earlier adverse reaction boils down to that of the nurses who were not called”.  That is the crux or the essence of what his Honour is saying, that the only evidence that there was not a fall in the foetal heart rate was that of the partogram.

It is not perfectly expressed and we have accepted that from the outset, but, when one sees the judgment as a whole, his Honour was clearly not under the impression that the partogram showed a constant foetal heart continuing until 13.30, or thereafter, of 140 beats per minute.  That, in my submission, is the answer to the complaint that is made about the finding in paragraph 157.  Against that, one has to look at the positive way in which the Court of Appeal reasoned, and your Honour the presiding judge articulated that towards the end of my learned friend’s submission.

The Court of Appeal started from the point of view that when one examined the expert evidence correctly, it was on the probabilities, on the high probabilities, necessary that there be two mechanisms to cause this outcome and his Honour was wrong in rejecting that thesis.  Once one accepted that thesis – that there had to be a hypoxic mechanism as well as a vagal mechanism – then we had evidence of negligence, namely, excessive administration of Syntocinon and evidence of a result, the condition in which Calandre was born, which was not only most unexpected from five pulls of forceps – indeed, on the literature, unprecedented from five pulls of forceps – but exactly the sort of result to be expected from depletion of foetal reserves by excessive Syntocinon. 

When you took those things together, the unlikelihood of the result from excessive use of forceps alone, the likelihood of the result from excessive Syntocinon, proof that there was excessive Syntocinon, then the conclusion that both of those contributed to the outcome was inescapable.

In my submission, that leads to at least these conclusions, other than the submission that there is nothing special about this.  First, a seriously arguable case of error is not demonstrated in respect of paragraph 157 when seen in the context of the judgment as a whole.  But even if there is error in paragraph 157, given the true basis on which the Court of Appeal rested its decision, there are insufficient prospects, ultimately, that a further examination of the evidence will produce the reverse result.

Can I then come to the point of principle sought to be made about the argument on contribution.  To do that may I take your Honours back to where the Court of Appeal deals with that at page 371.  The principle which the Court of Appeal applied is to be found between lines 9 and 20 on page 371.  There his Honour says:

the statutory mandate is that the contribution is to be what is just and equitable –

His Honour goes on to recognise that there are exceptions:

where one tortfeasor owes a higher duty than the other –

and concludes:

the percentage of contribution has been dealt with broadly and upon common sense principles –

That summarises the principles which his Honour has applied.  Then in the reference to Broken Hill Pty Co Ltd v Duffy, what his Honour is doing is

using that as an illustration of a case which has some similarities, at least in terms of outcome.  Just as it was difficult to say in that case that one party was more responsible than the other, so it is in this case.  His Honour is not purporting to lay down, at line 25 and following, a principle or to apply a principle; his Honour is merely using that as an illustration of a like outcome in a like case against the principles stated in the preceding paragraph.

The applicant in this Court argues, in essence, that what was required was a detailed examination of the relative causative potency of the negligence of each of the parties and their relative culpability.  In the Court of Appeal, the present respondents did just that.  In the first respondent’s supplementary application book, what was put on behalf of the respondent is set out at pages 88 to 92, involving an analysis – and particularly at page 89 – of the fact that each of the tortious acts was a concurrent operative cause, that the hospital’s conduct involved greater risk potential because the outcome was just what was expected to flow from that, that the hospital’s culpability was, if anything, greater, and that those considerations taken together justified nothing less than a 50 per cent contribution.

The hospital’s submissions never grappled with that, never presented an alternative analysis of that sort, yet the hospital now says that is the sort of analysis that was required, one which they never offered to the Court of Appeal and one which makes this an entirely inappropriate vehicle for this Court now to be asked to undertake that exercise. 

Unless there are any other matters on which I can give assistance, those are my submissions.

HAYNE J:   Thank you, Mr Brereton.  Yes, Mr Walker.

MR WALKER:   Your Honours, the first thing to say is that paragraph 157 of Justice Young’s reasons says nothing about departing from the way in which the doctor himself had dealt with the evidence about the nurses’ reports.  The doctor had used them in his own testimony.  He relied upon them in order to give his own narrative of what had happened.  There is nothing in paragraph 157 at all to say that after the event, of the way in which a trial had been conducted in the Court of Appeal, certain ladies’ reports relayed to the court were going to be doubted.

There is nothing about that at all.  That was not the ground upon which Justice Young proceeded.  He proceeded on the basis that there was no evidence other than the partogram whose time had expired, and, as we have shown, there was a deal of evidence.  Indeed, I have taken your Honours already – at application book 266, paragraph 1433, line 43, Justice Whealy described it as:

a considerable body of evidence regarding this in the transcript.  In short, it shows that from the very commencement of the instrumental attempts –

that is the Wrigley’s –

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.  He also confirmed that, following the abandonment of Wrigley’s forceps – 

that is the first –

the foetal heart rate was in the normal range –

Et cetera.  That is why 1434 is so important and why Dr Hinde’s evidence was so compelling.  Justice Young uses Dr Hinde’s evidence only in order to doubt the proposition which was not, in fact, in contest between the parties, that 140 is simply midpoint of normal range.  The doctor was saying that.  The hospital was saying that. 

Dr Hinde’s evidence, which appears to be accepted in the Court of Appeal – that is, there is no adverse finding about it – is that for the Syntocinon theory – and that is what it was – for the Syntocinon theory to get anywhere, on the balance of probabilities, it had to have been shown that the excessive dose led to that which might have caused one of the gas exchange problems.  That meant hyperstimulation leading to what Dr Hinde called “embarrassment” – I have called fatigue – of the foetus.  And the reasoning by which one says you would look in the narrative for the signs of that fatigue at the first of these artificial interventions causing great stress, and it was not there, is why, on the balance of probabilities, Justice Whealy, as clearly as he did, made the findings rejecting the Syntocinon theory, which had to be proved on the balance of probabilities. 

That is why it is not to the point, as Justice Young said at page 369, paragraph probably 218, that:

All the plaintiff has to show is that the defendant’s negligence could have been the cause of the plaintiff’s injury.

HEYDON J:   But he said the correct things at page 357, 361 and 363.

MR WALKER:   I was about to say that is only one of the ways in which he frames the issue and it would certainly appear that mostly he applies the

correct probabilities test.  However, in my submission, that slip certainly points up the danger of slipping down into treating a theory as demonstrated simply because it was a theory; hence the spurious contest between clinicians and scientists.

In our submission, firmly keeping one’s eye on the factual contest between the parties, on the balance of probabilities, Justice Whealy’s approach was not shown to have been wrong and the evidence treated by Justice Young is simply misrepresented in Justice Young’s reasons.  There was a deal of other evidence apart from the partogram, not to mention the doctor himself.  That is why, in our submission, it is of absolutely no moment to remark that there were these nurses’ material supplied to the Court, among other people, by the doctor.

In relation to the first attempt at Neville Barnes, with the Doppler, that is, the better monitoring device, showing a drop, it is to be recalled that Dr Hinde said that the fact that it showed a drop, entirely normal, again, according to Dr Diamond himself, correctly, and a rapid bounce back showed that there was not the fatiguing at that third or fourth – depending how you are counting – attempt.  That is strengthening the inference against Syntocinon having led to hyperstimulation and fatiguing.  That is why there is individual injustice.  May it please your Honours.

HAYNE J:   We are not persuaded that an appeal against the orders made by the Court of Appeal would enjoy sufficient prospects of success to warrant a grant of special leave.  That said, however, we are not to be taken as endorsing the reasons given by the Court of Appeal for its conclusions in relation to the equal apportionment of liability.  Nonetheless, special leave to appeal is refused with costs.

AT 2.26 PM THE MATTER WAS CONCLUDED