Zipser v Kaled Elayoubi bhnf Taman Kolled & Anor

[2009] HCATrans 88

[2009] HCATrans 088

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S575 of 2008

B e t w e e n -

GABRIEL ZIPSER

First Applicant

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE

Second Applicant

and

KALED ELAYOUBI BHNF TAMAN KOLLED

First Respondent

NORTHERN HEALTH

Second Respondent

Office of the Registry
  Sydney  No S3 of 2009

B e t w e e n -

NORTHERN HEALTH

Applicant

and

KALED ELAYOUBI BHNF TAMAN KOLLED

First Respondent

DR GABRIEL ZIPSER

Second Respondent

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE

Third Respondent

Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 11.32 AM

Copyright in the High Court of Australia

__________________

MR D.J. HIGGS, SC:   If it please the Court, I appear for the applicant with my learned friend, MS J.L.A. LONERGAN.  (instructed by HWL Ebsworth Lawyers) 

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR A.D. CAMPBELL, for the first respondent in both matters.  (instructed by Gerard Malouf & Partners)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR I.F. BUTCHER, for Northern Health, the second respondent on the first application and applicant on the second application.  (instructed by DLA Phillips Fox)

FRENCH CJ:   Yes, Mr Higgs.

MR HIGGS:   Your Honour, there are two findings of fact that we seek leave to appeal from.  The first finding of fact that we seek leave in respect of is to be found at page 89 of the application book, and that is when the Court of Appeal overturned the trial judge’s finding that the mother was unlikely to have come so quickly from her home that was near Bankstown Hospital within 15 minutes, consistent with the midwife’s note that recorded that her first contraction was at 10.45 and she arrived at 11.00 pm.

There is a detailed consideration of this issue by Justice Basten in his judgment but, in our respectful submission, it seems to come down to what is to be found in paragraph 114 of his Honour’s judgment, where, in effect, his Honour found that it was inherently implausible that the mother would come to the hospital so quickly.  In our respectful submission, there are four reasons as to why that is clearly wrong. 

First, that is precisely what the mother was told to do.  It was uncontested at the appeal that Dr Zipser during the course of the antenatal consultations in the context of the mother coming to the hospital upon the basis that she was to be treated as a lady that was to undergo a trial of labour, that she should come to the hospital as quickly as possible.  Secondly, it was an uncontested finding of the trial judge that she understood English well enough to follow directions of that sort.

Thirdly, it was an uncontested finding of fact – of the judgment at first instance that she was a conscientious mother and that she would follow directions of that sort in respect of the welfare of the child that was about to be born.  Fourthly, this was the first trial of labour that this lady had ever undergone.  Her first three children were vaginal deliveries that occurred naturally.  The fourth child was by way of caesarean section and hence it seems to us, with respect, that it is clearly wrong to say that it is implausible that this conscientious mother would not have followed the very directions that she was told to follow and to come in as soon as possible in the way that she did. 

FRENCH CJ:   In this respect you invoke the visitorial jurisdiction.

MR HIGGS:   That is so, your Honour.  Now, your Honour, the error seems to have arisen from the fact that the Court of Appeal did not take into account either the fact of the mother having no trouble understanding English, or for that matter her being a conscientious mother who would follow directions given to her.

If I can take your Honours to pages 56 and 57 of the application book.  The warning that she undeniably was given by Dr Zipser was almost identical with the warning that she would have received in any event had the hospital been aware of her previous caesarean section involving a surgical incision into her uterus that encroached into the upper segment.  The warning that she would have been given is to be found at line 19:

She would have been warned that she should attend hospital as soon as possible should she come into labour, feel contractions, rupture her membranes or bleed –

The only additional warning compared to what was found to have been provided –

and that she should inform subsequent treating doctors of her history in regard to the previous operation.

Now, at line 40 it was described at first instance that the warning that she was given was identical to that warning, save for the rider that I pointed out.  But in addition to that, if I can take your Honours to page 18 of the application book, the warning went beyond that.  At first instance the trial judge found at paragraph 94 that Dr Zipser, according to his usual practice, advised such ladies that they should come in as soon as possible should the mother:

come into labour, feel contractions, or rupture her membranes and that if anything unusual occurs in her late pregnancy she should report to the labour ward to check it out with nursing staff.  I accept that evidence.

That was in the face of a denial by the mother that she had been given such a warning.  If I can then take your Honours back to page 57 of the appeal book to make good the submission that it would appear that not only when this finding was made by Justice Basten, that other parts of the evidence seemed to have been overlooked.  In paragraph 35 on page 57 of the application book, that part of the trial judge’s reasoning where he considers as to why the mother may not have come in as quickly as possible is in part set out but there is no reference to, we would say, two important parts of his Honour’s reasoning to be found at page 10, about line 40(c), the mother: 

may have been given an appropriate warning, understood and remembered it, but have been afraid to speak up when she saw the first defendant or on other visits to the hospital’s antenatal clinic.

This of course is in the context of the issue as to whether or not she in fact was given the warning by the doctors at Northern, the previous hospital, about the unusual nature of her caesarean section that gave rise to the need that she should have told future obstetricians, that is if she was advised, about the unusual nature of that operation.

FRENCH CJ:   This is not a finding, this is a possible explanation?

MR HIGGS:   It was, your Honour.  But he then went on, “TK” – that is the mother:

did not appear to me to be the type of woman who would be shy where the welfare of her children was concerned and particularly where what was being contemplated was a vaginal delivery, the very matter against which she would have been most strongly warned had a warning been given -

Likewise in (d) he finds that if the warning had been given by the doctor at Northern she would have “understood it” and that was not a finding that was overturned on appeal, nor was it challenged.

At the bottom of page 9, line 50, in respect of the conversations that passed between the doctors at Northern – that is the former hospital and the mother - clearly his Honour accepted the doctor’s usual practice about giving the warning had she known about the nature of the operation, that is the surgical incision encroaching into the upper segment of the uterus.  But he also accepted the mother’s evidence:

that she did not have problems understanding what was said to her in English.

Then just to make good the other part of the submission that I summarised up front, we can then take your Honours back to page – I am sorry I was going to give your Honours the reference to the fact that her first three children were delivered vaginally, but if I can just come back to that later on.

Your Honours, in our respectful submission, there was no warrant for the Court of Appeal to overturn the findings by the trial judge.  There was no basis upon which he should have been criticised in having disbelieved the mother in relation to her recollection of the events of that night.

It was a difficult trial for all parties.  The hearing occurred some 23 years after the events about which evidence was being given.  It is clearly a case, if there is to be a fair trial, that impressions formed by the judge seeing the witnesses giving evidence be properly respected and followed.  He did not believe the mother.  It is set out in the judgment that there were very cogent reasons as to why she should not be believed.  It is understandable in her situation that although she may very well – and we do not advance the contrary proposition – have believed the various versions that she put forward, but nonetheless there was every reason as to why his Honour was in a position where he, as he did, did not accept those explanations.

It is, we would submit, terribly unfair for findings of that type to be overturned, particularly when the Court of Appeal found that it was available to the trial judge not to accept what she said.  But when it all boils down to it, the real reason as to why she was accepted in part was firstly because of the possibility of Sister Shipley’s note, that is the midwife who made the contemporaneous record of the first contraction being at 10.45, that that being something that should not be accepted or was in some way in doubt for the reason that it was unclear as to what it was that she was asking questions about. 

BELL J:   Sister Shipley’s evidence was also of the interval between contractions and the circumstance that they were mild, I think. 

MR HIGGS:   Precisely.

BELL J:   Was there any evidence about the significance of that in terms of the likelihood or otherwise of the point of commencement being, as Sister Shipley ‑ ‑ ‑

MR HIGGS:   Yes, from memory it was touched upon, but if your Honour goes to pages 82 and 83, part of the evidence of Sister Shipley is there set out.  One of the criticisms that is made of Sister Shipley’s evidence by the Court of Appeal that is said to give rise to the doubt about it was that she was really looking for the commencement of the timing of painful regular contractions.  But if one goes to the extract of evidence that sets out in paragraph 95, the contrary is put.  She is there, giving evidence about - in plain speak to a lady whose first language is not English as to whether the pain was regular, whether it was light, whether it was heavy, whether it was often, those sorts of things.  Her inquiry was not directed to when the mother first felt hard or strong regular contractions.

The other thing about it is this, that if one goes to paragraph 98 on page 83 of the application book, it is plain there that what Sister Shipley was doing, as best as one could, is that she was giving evidence about her usual practice in the context of asking about pain and I hasten to add that the mother accepted – as is accepted by the Court of Appeal in cross‑examination ‑ that she equated pain with contraction.  There was some controversy about that in other parts of the evidence that she did not agree with that proposition, but there was sufficient there and it seems to be acknowledged by the Court of Appeal that there was enough there given the difficulty of cross‑examining this lady that there was a sufficient concession there to equate pain with contractions.

What she was giving evidence about was – this is Sister Shipley – her usual practice of starting off asking about pain and then having an exchange, as one would expect, with the mother dependent upon what she said as would normally occur with any conversation.  I mean, after 23 years or so what can not be better evidence than the contemporaneous note that set out in the judgment at first instance – and which cannot be and is not in contest – that the note recorded by Sister Shipley was not “10.45 ‑ first regular pain” or anything of that nature.  It was commencement of contractions.

To say that her note in some way should not have the same weight - or not as much weight should be placed on it because it was uncertain as to what the inquiry was directed to, in our respectful submission, is simply unfair.  It is unfair because ‑ ‑ ‑

FRENCH CJ:   The primary thrust of this point is that there is no basis for saying that the trial judge had misused his advantage?

MR HIGGS:   Yes, and it was unfair to do so.  I am sorry, your Honour ‑ ‑ ‑

FRENCH CJ:   I think we need to move on to the ‑ ‑ ‑

MR HIGGS:   Yes.  Your Honour, the second issue is the overturning of the trial judge’s finding that he was not satisfied in view of the paucity of documents and no direct evidence being available about the surgeon, Dr Dawson, having recorded the true nature of the incision, that is going from the lower segment into the upper segment and if I can take your Honours ‑ ‑ ‑

FRENCH CJ:   But your primary complaint about this goes to the application of the onus of proof in the Court of Appeal, does it not?

MR HIGGS:   That is so.  Your Honour, that is one of the grounds.  Later on in the judgment his Honour does say that we bore the onus of proof, but I must say that I read that in truth to mean when you read the whole judgment in context that his Honour was acknowledging that the plaintiff bore the onus of the proof but the whole thrust of his reasons appears to be that the evidentiary burden in his view shifted to the defendant because of the assumption – or the inference that the Court of Appeal said should be made because it would have been negligent for Dr Dawson not to have recorded that incision going into the upper segment ‑ ‑ ‑

FRENCH CJ:   Justice Basten had regard to positive factors in favour of such a finding, did he not - the importance of the question and what one would expect normal practice to have been.

MR HIGGS:   Well, your Honour, no.  Your Honour, can I just take you to page 68 of the application book at about the fifth line down where he says:

The second limb of the contention falls with the first –

Sorry, I should start – go to the previous page - paragraph 63 questions are posed.  Does your Honour see that?

FRENCH CJ:   Yes.

MR HIGGS:   In particular that “the evidence was insufficient to establish that Dr Dawson was aware”, et cetera.

FRENCH CJ:   Yes.

MR HIGGS:   Then over the page about four or five lines down:

The second limb of the contention falls with the first, because the obligation to warn was engaged by awareness of the nature of the incision.

Then his Honour goes on to say if he did not record it he would have been negligent and all things being equal if there is no evidence to the contrary the natural inference is that he would do what he should have done, namely record in the operation sheet the nature of the operation.  What is overlooked, in our respectful submission, entirely is that he did not give evidence – he was available to give evidence – and what inference should be drawn from that.

FRENCH CJ:   There is a reference to him not being called to give evidence, is there not, at paragraph 66?

MR HIGGS:   Yes, and at first instance there is a concession that he was available.

FRENCH CJ:   Yes.

MR HIGGS:   Your Honour, this was an unusual operation.  He either had a memory of the operation and the way in which he would record it – and the inference is in that event you would infer that he could not give any evidence that would help.  The second alternative is that he had a usual practice about how he would describe the operation and the operation note.  He was not called – one would infer that he could not give any evidence of that type.

The third alternative is that he had no usual practice and that again means that he could give no evidence that would help and certainly when you couple that finding with the fact that he had overlooked to do what he ought to have done – warn the mother about the nature of this operation - it is all very well he knew – and we cannot contest the trial judge’s finding that the incision went into the upper segment.  What we do contest is that when the three questions were posed, what the Court of Appeal overlooked was that it is one thing to say that he knew that the incision went into the upper segment.  It is another thing to say that he understood the importance of that incision going into the upper segment.  The fact of him not warning the mother about the dangers of the operation would suggest that he did not.

Again we say, with respect, that it is unfair that the trial judge was criticised in finding that in those circumstances there was insufficient evidence to make the finding that was made in that regard.

FRENCH CJ:   A critical part of the Court of Appeal reasoning here seems to be at paragraph 73 on page 73:

Once it was accepted that Dr Dawson would have been aware of the fact that his incision encroached on the upper segment, there was no evidence to support the conclusion that he would not have recorded that fact in the operation notes. 

MR HIGGS:   That is so, but there is evidence, we say ‑ ‑ ‑

FRENCH CJ:   Yes, but that is your onus of proof complaint is it –in relation to that approach?

MR HIGGS:   Yes.

FRENCH CJ:   You need to break through that finding in order to get into normative causation territory.

MR HIGGS:   Yes, which is a special leave point.

FRENCH CJ:   Which you put up the front if you want special leave – everything else is visitorial?

MR HIGGS:   No, that is so. and we have sought to plainly concede that in the later submissions, there is no getting away from it.  There is one obstacle to coming to that special leave point.  It is obviously a point that would be appropriate to come to this Court.  I mean the House of Lords thinks it is an important enough matter to look at and I suppose that your Honours would feel the same way.  It would be surprising if it were not otherwise.

FRENCH CJ:   I do not know - what is important in other places does not ‑ ‑ ‑

MR HIGGS:   Well, we would urge upon – and of course we have given your Honours the reference to the most recent word by the Court of Appeal last week and there are the other matters that we have put in our application book.  We simply rely on the written submissions, thank you, your Honour.

FRENCH CJ:   Thank you Mr Higgs.  Mr Morrison. 

MR MORRISON:   Thank you, your Honours. Your Honours, my learned friend concedes correctly that he has a series of factual findings to overturn before we get to his, in effect, special leave point.  We say for that reason this is not a suitable vehicle, the Court of Appeal having conducted, as it is required to do, a real review of the facts under the Supreme Court Act and having reached conclusions which in some respects only differ from those of the trial judge.

It is to be noted at this point that one of the matters in respect of which my learned friend is seeking to challenge would overturn the views of the trial judge, namely in respect of whether or not there was a need to record the incision to the upper segment.  But, we say ultimately these questions are essentially factual.  Justice Basten in a very carefully reasoned decision dealt with the factual issues.  He gave cogent reasons for concluding that the trial judge was in error, having found fault on the part of all defendants in concluding that there was no causation because in particular telling someone to come in quickly for a trial of vaginal labour is very different from telling them that they have to come in for an emergency caesarean because of a life‑threatening risk to both mother and child because of a significant chance of rupture, the rupture which in fact occurred.  A very different matter ‑ ‑ ‑

BELL J:   That is putting it a little higher, is it not, than the warning that the Court of Appeal considered a ‑ ‑ ‑

MR MORRISON:   No, that is exactly – if your Honour goes to 59, paragraph 41 of Justice Basten’s judgment.  I am really paraphrasing his words.  In fact, immediately above that, page 59 at about line 20.  I will start a little earlier:

it was one thing to advise Mrs Kolled to attend as soon as possible should she come into labour, feel contractions, rupture her membranes or bleed; in order that there might be a “trial of labour”, with the intention of allowing her to progress to a vaginal delivery if thought appropriate.  It was quite another to advise her to come in when such symptoms were identified, so as to avoid serious risks to her and the child –

What I have said really, very much what Justice Basten relied on, and was undoubtedly right on the evidence of all of the experts at first instance.  The risk was very real and imminent in respect of both mother and child, no place for a trial of labour and no place for a “Come in and we will see what we are going to do”. 

BELL J:   There is no contest about that.  The issue though factually in that respect was the matter that Mr Higgs opened with concerning the findings made in the Court of Appeal with respect to the commencement of labour and the significance or otherwise of overturning the primary judge who had the benefit of seeing the plaintiff and Sister Shipley and her contemporaneous note. 

MR MORRISON:   There are a number of points we made and we make them in our written submissions.  First of all, his Honour made no adverse finding on credit about the mother at first instance so in those circumstances – particularly when the mother set out a detailed chronology not in terms of timing, because for the reasons given by Justice Basten it is likely those timings were not accurate, but in terms of the sequence of events where was the basis for overturning them.

There was a challenge to one of that sequence in the sense that there was a suggestion in cross‑examination that she might have been at home when contractions first occurred.  Apart from that it was never put to her in cross‑examination that “You did not put your child to bed, you did not pack up the shop, you did not speak to your husband”, all of the things which she said she recalled doing and which one would have thought were the very thing you would expect in those circumstances.

Then you compare that with what Sister Shipley recorded, and this was not a demeanour case.  This was not a case where Sister Shipley’s credit was in issue in the usual way because Sister Shipley had no relevant memory.  She was simply going on her interpretation of what she had written many years earlier and her usual practice.

FRENCH CJ:   It is not just a matter of demeanour though, is it, in terms of the trial judge’s advantage?  One is immersed in the detail of evidence and the nuances and so forth and the way that the Court of Appeal on the papers can really never reconstruct. 

MR MORRISON:   Except that what his Honour at first instance did not do was to address that question as to whether or not the mother had been truthful about the sequence of events and he failed to deal with that issue, just does not address it.  You then come down to weighing up in the light of the possibility that based upon usual practice evidence from Dr Zipser he would have told her to come in quickly.  That would have brought her in from first contraction within 15 minutes.  How likely is that, in circumstances where the risk would not have been life threatening, where this is not her first child, where she has had previous caesareans?

In all those circumstances Justice Basten’s weighting of these matters reflected a much more considered approach to the issue and he was entitled to review it, having regard to the fact that the judge at first instance did not consider all of these matters and in particular the fact that Sister Shipley on the evidence never asked when the first contraction occurred.  She asked about pain and that was her evidence.  From there she assumes that pain means first contraction and that is the basis of her record.  That is not a credit in finding, that is a conclusion on her part.

Whether that conclusion is correct depends upon the questions which she asked and when we examine the questions in detail in the way Justice Basten did and in the way Justice Hislop did not, Justice Basten was well and truly entitled to conclude as he did that the judge at first instance had misunderstood the evidence and given that note much greater cogency than it was entitled to be given having regard to the fact that she did not ask or get an answer to the question, “When was your first contraction?”.  It was her conclusion.  That does not give rise to demeanour or credit issues.  The question though is whether her conclusion was correct and her own answers suggest otherwise. 

Could I then come, your Honours, to the question which gives rise to the onus issue, the overturning of the finding that the surgeon, Dr Dawson, in the first place, in Northern Health, would have recorded – or would not have recorded correctly the intrusion into the upper segment.  We simply say this.  Why would it, as the judge at first instance found, be negligent for Dr Zipser to fail to inquire of Northern Health when the reason was, was a possibility of an intrusion into the upper segment giving rise to all of these risks if there was no requirement upon the surgeon who actually did intrude and who the judge found at first instance would have known about it to record it.  It beggars belief.  It is manifestly inconsistent.  It justified Justice Basten, who pointed to that inconsistency, in saying in those circumstances the reasonable approach is to say it is very likely he would have recorded it.

In respect of the onus, can we just say his Honour’s approach was perfectly correct.  In cases such as Watts v Rake, Purkess v Crittenden, this Court has long since held that where a defendant says that the unfortunate calamity would have occurred regardless, the defendant bears a heavy evidentiary onus to show that the same event would have occurred in any event.  His Honour was entitled to find there was an evidentiary onus on them.

The suggestion that is made in the submissions that we should have called Dr Dawson, the very person we were suggesting had failed to warn us of the imminent risk in respect of entering the upper segment really beggars belief, because how could we both attack and call him as our witness. 

Finally, your Honours, on the point which is said to be a special leave point, we say that March v Stramare is a clear and considered answer to it.  March v Stramare deals with multiple causation.  It deals with what occurs when one event, which could be causative in itself, occurs prior to another.  You will recall in March v Stramare the parking long preceded the drunken driving.  Each could have been causative.  The fact that that was so did not mean that, as it appears to be suggested here, because either could have caused it neither is at fault.  Justice Basten’s reasoning in that regard is cogent and we would say it does not raise a point which is not already determined on a common sense basis by this Court’s decision in March v Stramare.

The only other matter I wish to draw to the attention of the Court is that in the papers we provided we put in a draft notice of contention.  That notice of contention relates to an issue which the Court of Appeal did not determine which was squarely argued in the Court of Appeal, namely if Dr Zipser had, as he should have, known of the intrusion into the upper segment and had given the appropriate advice, namely to come in on an emergency basis not for a trial of labour but for an emergency caesarean, what would have been said to the mother in respect of telephoning the hospital, keeping the operating theatre open, not requiring a vaginal examination and in having the staff available, not still being telephoned 35 minutes later to see if they will come in on a non-urgent basis, but having the staff available and on the way in anticipation for her arrival, the Court of Appeal did not need to address that and did not address it but it does arise squarely if the High Court grants special leave and we get into

the factual issues because that issue has not been determined by the Court of Appeal although submissions were made on it.  We say, however, that given that the questions are essentially factual, this is not a matter which is ultimately suitable for special leave.

FRENCH CJ:   Thank you, Mr Morrison.  Mr Walker.

MR WALKER:   Your Honours, on only the special leave point as described by the applicant, we adopt what Dr Morrison has
just put.  With great respect we would add only this, that the way in which it has been put is heavily over‑abstracted and that questions of causation, whether or not they should appropriately simply be seen as ultimately matters of common sense are necessarily rooted in matters of fact and that the criticism which has been made of the resolution that Justice Basten thought cases of this kind plainly required is not one which raises any doubt about the meaning, interpretation or continued appropriateness of any of the previous statements of this Court in that area.

However, one does not even get to that matter – over‑abstracted as it is – in relation to my client unless there is overcome something which, in our submission, is nothing other than a common or garden question, whether there was evidence fit to discharge an onus, the placement of which could not possibly be in doubt.  This has nothing to do with Dr Dawson not being called.  It requires no imagination to supply a number of credible and completely non‑blameworthy explanations for why 23 years after an event, an event which on everybody’s case needed to be recorded, that human recollection unassisted would be of no use.

FRENCH CJ:   The notes were destroyed in 1994, were they not?

MR WALKER:   Yes.  It is not suggested that that ‑ ‑ ‑

FRENCH CJ:   No.

MR WALKER:   ‑ ‑ ‑ that of course is not a particular relevantly.  On the case which is raised against us in the special leave application as an obstacle that has to be cleared in order to get to the thing which is transcendent beyond this case, it is clear to demonstration – we do not think it is contested, that it was for the later doctor to say of the earlier doctor that he had either not noticed or not recorded what he had assuredly done.  One does not need anything more than he who asserts must prove.

There was no shift of evidentiary burden by anything which was put in play in this case.  In our submission, it was appropriate even at shorthand for Justice Basten to approach that among other ways as he did by saying, “But that amounts to saying he would be negligent”.  In our submission,

once that is seen then there is no prospect whatever of this Court departing from either the placement of the onus or a finding the evidence that could not be found and cannot be pointed to by the applicant now to show that there would not have been recording.  That is the end of what might have been the moot interesting question of causation. 

FRENCH CJ:   Yes, thank you Mr Walker.  Yes, Mr Higgs.

MR HIGGS:   Firstly, it is unfair, in our respectful submission, to describe this as a garden‑type variety appeal just on the facts.  It is more than that.  It is probably best illustrated by the attack upon Mrs Shipley’s evidence in respect of the way in which he went about speaking with the mother at the time she presented at the hospital.  Twenty‑three years after the event what else could she credibly do but to rely on usual practice.  Thereafter how in the world could she ever be expected to remember, and she never purported to remember how the conversation then went and to say otherwise would beggar belief.

This is 23 years after the event and the normal course of applications for extension of the limitation periods and the like, it is notorious that when there is such a huge gap between events and people coming to give evidence, how there is a real question as to even whether parties can have a fair trial.  Our point is that here the overturning of these findings of fact on appeal is tantamount to an unfair trial, particularly when there is no real regard or not sufficient regard had to the advantage that the trial judge had.  So that is why we say it is more, but I can see that it is still part of the visitorial jurisdiction.  I cannot get away from that. 

The second point is that my learned friend, Mr Walker, says that Dr Dawson most assuredly would have recorded the nature of the operation so that an inquiry by Bankstown Hospital would have revealed that fact had it occurred and that we cannot point to any evidence as to why there would be any possible explanation to the contrary.  The evidence that we do point to – and it is part of the evidence that his Honour relied upon in saying that he was not satisfied that the recording would have been made - was mainly to do with the fact that in other respects Dr Dawson in relation to duties so closely associated with the duty of making a proper record had so patently failed in discharging that duty, that is the more important, we would say, duty of warning the mother about the consequences of a future pregnancy if she was not made aware of the nature of the operation.

It is clear that in the way in which this case was run, even though the plaintiff did not allege that Dr Dawson did not make the note, in the cross‑claims that was a live issue.  The plaintiff had the power to plead his case as he wished.  He did not make the allegation against the hospital because, for the very reason pointed to by Justice Basten, that on a

conventional approach, if he was to have a cause of action against Bankstown Hospital it would defeat that claim on a conventional approach to causation ‑ which is the special leave point – if in fact Dr Dawson had not made the note.

They decided to run the case in respect of that if it were to become alive as it did by relying on Northern to either call or not call Dr Dawson.  Dr Dawson was not called so it cannot be said that he most assuredly did what he was supposed to have done when he was so egregiously negligent in relation to his failure to warn the mother about what he had done.  It suggests that he knew that the incision went into the upper segment but he did not know that it was dangerous or that it was important enough to record.

It is in that respect that we say that the onus was not discharged by the plaintiff and that in the overall way in which the case was run, particularly given the cross‑claims, it was a live issue.  It is for that reason that it was unfair for that finding to be made by the Court of Appeal overturning both the approach of the trial judge in respect of onus and overturning his finding that he was not satisfied. 

In respect of the special leave point if we get to it, when you look at the Bankstown Hospital’s breach it was a failure to inquire that could never in the very confined way that Justice Basten expressed his views as to the – if hypothetically both of them had been negligent.  That proceeded upon the basis that Dr Dawson had not recorded the operation properly, that increases the risk of injury.  That is not now in New South Wales a relevant consideration that can comprise damage in a medical negligence case.

But in that event, there being nothing to be found out if we, Bankstown Hospital, had made the inquiry it can never be said that that even increased the risk of damage to the mother, let alone what is now the law in New South Wales that it in fact caused the damage.  All of those other cases that are now exceptional in the UK such as Fairchild and Barker v Corus and those matters all proceed upon the basis at the very least as a minimum the conduct of one of the defendants increased the risk.  But here on the hypothetical that was put forward by Justice Basten, even that never applies.  They are our submissions, your Honour.

FRENCH CJ:   Thank you, Mr Higgs.

The decision of the Court of Appeal in this matter turned upon a different view of the facts from that of the trial judge, particularly in relation to the question of the time of which the mother’s contractions commenced and whether the doctor who performed a caesarean operation upon her in 1978 recorded relevant details of that operation.

The special leave point relating to so‑called normative causation is not reached without an overturning of the latter finding.  While the Court of Appeal’s intervention on the first issue may be open to question it is not, in our view, attended by sufficient doubt to warrant a grant of special leave.  Special leave will be refused.

MR WALKER:   We do not wish to continue with our application in that event.

FRENCH CJ:   So you just seek a dismissal by consent?

MR WALKER:   May it please the Court.

FRENCH CJ:   Yes, all right.  Is that acceded to?

MR MORRISON:   Yes, subject to costs, your Honour.  We seek costs of those applications.

FRENCH CJ:   Can those orders be resisted?

MR MORRISON:   No, your Honour.

FRENCH CJ:   There will be an order for costs in each case.  Yes, thank you.

AT 12.23 PM THE MATTERS WERE CONCLUDED