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Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Negligence - child sues obstetrician and hospital for injury sustained before birth - time of injury does not affect right to sue.
Negligence - medical negligence - child born with cerebral palsy - mother under care of obstetrician in public hospital - decision by obstetrician to deliver by Kielland's forceps in labour ward - failure to deliver - transfer to surgical theatre for caesarean section - delay in preparing theatre - whether use of forceps causative of damage to foetus - whether delay causative of damage - whether obstetrician or hospital or both responsible for delay - whether decision to carry out delivery negligent - whether Kielland's forceps negligently applied - whether delay in preparing theatre negligent - no issue of principle.
Evidence - expert evidence - child born with cerebral palsy - conflicting medical views on causation and on standard of conduct of obstetrician in deciding to proceed to delivery by Kielland's forceps and in application of forceps - whether breach of proper standard and whether breach caused injury to be decided by Court and not by medical practitioner or preponderance of medical opinion - Rogers v. Whitaker applied with reservation.
Damages - child born with cerebral palsy - gross physical disablement but no intellectual impairment - difficulty of assessment under various heads of damage - cost of management of fund until child turns 18 years claimed and awarded - total loss of earning capacity of young child - whether reference to comparable awards permissible or appropriate.
X and Y (By Her Tutor X) v. PAL (1991) 23 NSWLR 26 Lynch v. Lynch (1991) 25 NSWLR 411 Watt v. Rama [1972] VR 353 R v. F (unreported, Court of Criminal Appeal of New South Wales, Grove J, 4 October 1996) Whitehouse v. Jordan [1980] UKHL 12; [1981] 1 All ER 267 Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479 Miletic v. ACT Health Commission [1995] HCA 13; (1995) 69 ALJR 675 Colonel Clints Bargain Stores Pty Limited v. Molero (unreported, Full Court of the Federal Court of Australia, 8 November 1996) Lowns v. Woods (unreported, New South Wales Court of Appeal, 5 February 1996) Robert Forrester v. Harris Farm Pty Limited and Others (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 2 February 1996) Luntz, Assessment of Damages for Personal Injury and Death (3rd ed.) D'Ambrosio v. De Souza Lima (1985) 60 ACTR 18 at 25 Planet Fisheries Pty Limited v. La Rosa [1968] HCA 62; (1968) 119 CLR 118 Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 GIO of New South Wales v. Bordiuk (1988) Aust. Torts Reports 80-190 Moore v. The Canberra Dutch Club Incorp. (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 26 September 1991,) Pollock (an infant) bhnf Allan Pollock v. Robinson (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 7 May 1993) Lipovac bhnf Maria Lipovac v. Hamilton Holdings Pty Ltd and Others (unreported, Supreme Court of the Australian Capital Territory, Higgins J, 13 September 1996) Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Browne v. Dunn (1894) 6 R. 67 Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 Van Gervan v. Fenton [1992] HCA 54; (1992) 175 CLR 327 McKindley v. M.J. Campbell Nominees Pty Limited (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 5 December 1994) Campbell v. Nangle (1985) 40 SASR 161 especially at p.193 Nominal Defendant v. Gardikiotis (1996) 136 ALR 1 Grincelis bhnf Tadas Grincelis v. House (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 8 December 1995)
HEARING
CANBERRA, 22-23 May 1996, 9-12, 16-20, 23-26 September 1996, 2-4 and 8 October 1996 12:12:1996
Counsel for the plaintiff: Mr. P.J. Galbally, QC with Mr. F.D. Saccardo
Solicitors for the plaintiff: Bernard Collaery & Associates
Counsel for the first defendant: Mr. R.J. Stanley, QC with Mr. J. Ruskin
Solicitors for the first defendant: Blake Dawson Waldron
Counsel for the second defendant: Mr. B.D. Bongiorno, QC with Ms. P.M. Burton
Solicitors for the second defendant: ACT Government Solicitor
ORDER
Orders made.DECISION
MILES CJ
2. However, by the time the evidence was concluded, the plaintiff's claim was cast somewhat differently. Many of the allegations in the amended statement of claim were abandoned. In a written outline of submissions it was alleged that the first defendant was negligent in that - 1. in the light of the acknowledged clinical findings, he failed to appreciate that a successful forceps delivery was doubtful; 2. through inadequate assessment or examination he failed to recognize the risk of failure of an attempt at forceps delivery; 3. in the knowledge that there was a real risk of failure, he undertook the procedure in the labour ward (and not in an operating theatre) regardless of that risk; 4. he failed to recognize the risks that would have been recognized by an experienced consultant obstetrician; 5. he failed to ensure that an operating theatre would be made available in the event of a failed forceps procedure and, further, that he failed to ensure that an operating theatre was made available when the attempted forceps delivery in fact failed; 6. in undertaking the forceps procedure, he used excessive force; 7. he made a second attempt at a forceps delivery;
3. As against the second defendant it was alleged that, as an institution providing specialist obstetric care and 24 hour emergency facilities, it failed to provide facilities whereby an emergency caesarean section could be carried out within 30 minutes of request, and that it failed to provide appropriate and immediate operating facilities in respect of the plaintiff's birth. It is also alleged that the second defendant is responsible in law (whether vicariously or otherwise) for the negligence of the first defendant.
4. I propose to approach the plaintiff's claim in the light of the submissions made at the end of the evidence.
5. The case involves a number of difficult issues of fact. Some of these difficulties arise from the need to establish with precision what it was that occurred over ten years ago in the period of some two hours before Samuel's birth. There are some records which were made more or less contemporaneously with events and are likely to be accurate. There are other records which were made after the events and their accuracy needs closer attention. Some witnesses have had access to at least some of the records. Having seen and heard the witnesses as to the events, I have concluded that none of them has a completely independent recollection of matters which are or may be crucial and that all witnesses as to the events have to some extent reconstructed the events in their minds.
6. Apart from the question of determining what happened at the relevant time, there are other difficulties which arise from the imperfect understanding in medical science of the nature of cerebral palsy and its cause or causes and from differing practices and views about attempted delivery by Kielland's forceps.
7. There was no evidence that relevant medical professional standards in Australia have changed between 1986 and the present.
Right of action for pre-birth injury 8. No point was taken by the defendants that the plaintiff had no right to sue in respect of a cause of action arising out of injury before birth. It is now established in Australia that there is no bar to such proceedings. In X and Y (By Her Tutor X) v. PAL (1991) 23 NSWLR 26, the New South Wales Court of Appeal held that a doctor owed a duty of care to the mother and to any children born of her, which duty was breached by failure to submit the mother as a patient to testing for syphilis. As Clarke JA observed at p.37, that was a case in which the child was conceived and born after the omission complained of and did not focus on the injury to a foetus. In Lynch v. Lynch (1991) 25 NSWLR 411, the same Court upheld the decision of Grove J at trial to award damages to a child born with cerebral palsy as a consequence of the mother's negligent driving of a motor vehicle. There appears to have been no issue that there was a causal link between injury to the foetus occurring in the motor vehicle collision and the condition of cerebral palsy (see: (1991) Aust. Torts Reports 81-117). There was a similar issue raised in Watt v. Rama [1972] VR 353 where the Supreme Court of Victoria held (on a preliminary point of law and assuming, as it was alleged, that the pregnant mother and the foetus had suffered injury as a result of the defendant's negligent driving) that the plaintiff child had a cause of action against the defendant.
9. Recently, on 4 October 1996, the Court of Criminal Appeal of New South Wales in the unreported case of R v. F (Grove J again, with whom the other members of the Court agreed) held that a child in utero, injured through impact of a motor vehicle, who is born and then subsequently dies of those injuries, is a person for the purposes of a charge of culpable driving.
10. In Whitehouse v. Jordan [1980] UKHL 12; [1981] 1 All ER 267 (a case of true trial of forceps in the labour ward followed by caesarean section in theatre, with consequent asphyxia and cerebral palsy) the plaintiff child succeeded on the issue of causation but failed on the allegation that the surgeon had acted negligently by pulling on the forceps too hard and too long. There does not appear to have been any argument about whether the child had a cause of action in respect of an injury received before birth.
11. These decisions, although not binding on this Court, are all highly persuasive and favour the plaintiff's claim, whatever be the theoretical basis. It is unnecessary to decide whether the plaintiff was a member of a class to whom a duty was owed at the time of injury and that the rights "crystallised" at birth (Watt v. Rama) or whether the foetus had a personality separate from that of the mother (Lynch v. Lynch).
12. It is suggested in the Commonwealth Report into Compensation and Professional Indemnity in Health Care in Australia (1995) para.2.64, that there has never been a case in Australia successfully pursued to judgment in which it has been alleged and denied that a condition of cerebral palsy was causally related to treatment by an obstetrician or other medical practitioner.
Outline of events 13. First, it is desirable to set out in narrative form the facts leading up to the plaintiff's birth which are either not seriously in issue or which are so plainly established that it is not necessary to discuss the evidence by which they are established.
14. Dr Mukerjee was born in India on 5 January 1937. After graduating in medicine in Calcutta and working in a hospital there for three years, he went to the United Kingdom in 1963 in order to further his experience and qualifications. There he gained his fellowship and eventually his membership of the Royal College of Obstetricians and Gynaecologists and licentiate membership of the Royal College of Physicians. He worked and trained in leading teaching hospitals. He interrupted his career in the United Kingdom to work for some two years back in Calcutta where he was in charge of an obstetrics department with a staggering workload. By 1979 he was well qualified to be appointed Director of the Department of Obstetrics and Gynaecology at the Alice Springs Hospital. Under his directorship that hospital introduced the teaching of obstetrics and became a training centre for postgraduate students from other parts of Australia and for midwives. Dr Mukerjee was the supervisor for the training of medical staff undergoing the diploma course with the Royal Australian College of Obstetricians and Gynaecologists of which he became a member. In 1985 he moved to Canberra and took up private practice, accepting a position as a visiting obstetrician and gynaecologist at the Royal Canberra Hospital and Woden Valley Hospital.
15. His duties at the hospitals included organizing the teaching of the diploma course for the College and clinical scientific sessions for colleagues and other consultants. By the time of the hearing, Dr Mukerjee had published papers in his specialised field. He was experienced and skilled in the use of Kielland's forceps.
16. Like Dr Mukerjee, the plaintiff's parents were born outside Australia. The plaintiff's father was born on 15 October 1956 and his mother on 16 February 1958. They spent their early years in Central China and married in 1983.
17. Their education was disrupted because of the excesses of the Cultural Revolution, but by the time Dr Mukerjee was directing the obstetrics department in Alice Springs, the plaintiff's father was working towards the successful completion of a degree in science at a leading university in China, specialising in geochemistry. In 1981 he gained admission to postgraduate studies and was given the opportunity to apply to continue those studies overseas. Unsuccessful in his preferred application to study in the United States, he accepted a scholarship to the Australian National University and arrived in Canberra in June 1983. He was awarded his doctorate in 1988 and it is convenient to refer to him as Dr Ren.
18. The plaintiff's mother, who had some experience or qualifications in accountancy, arrived in Australia in 1984. During that year or next, she had a miscarriage and became pregnant again in 1985. She consulted a general practitioner and came under the care of a Canberra obstetrician, Dr Trethewey, who saw her at appropriate intervals until 30 March 1986. Until then, there was nothing of particular note in her pregnancy or in her medical care. Neither she nor Dr Mukerjee were acquainted with each other and, as far as the evidence goes, she had never been a patient in the Royal Canberra Hospital.
19. At the time, Royal Canberra Hospital was situated on the shores of Lake Burley Griffin at Acton. It was a hospital of some 443 beds, including a labour ward with about 56 beds, delivering about 1,500 babies a year. It was administered by the Commonwealth and promoted as "a general medical, surgical and obstetric hospital ..... the regional centre for accident and emergency patients, paediatric and neonatal care........ and provides specialty services in cardiology, dermatology, neurology, respiratory medicine and urology [with] modern diagnostic facilities". The labour ward was staffed by resident doctors, registrars and nurses. In addition, consultant specialists including obstetricians were rostered for duty within the areas of their specialities.
20. The labour ward included eight delivery rooms situated on the ground floor. The operating theatres were situated a floor below. It was necessary to use a lift to go between the two floors. Normally it took five to ten minutes to cover the distance between the labour ward and the operating theatres.
21. In the early hours of the morning of Easter Sunday, 30 March 1986, Weiping Shuang Ren began to exhibit the signs of labour and, by arrangement through her general practitioner, she was taken by her husband to the hospital. (Note: I use 24 hour clock time in order to avoid some of the confusion that might arise from direct use of the entries in some of the records.) At about 0605 hours she was admitted to the labour ward as a public patient. This meant that an obstetrician would be assigned to her according to the hospital roster. The only obstetrician rostered was Dr Mukerjee.
22. The midwife assigned to the case was Sr Collins. (Note: Sr Collins has since become Sr Kingsley, but it is convenient to continue to refer to her as Sr Collins.) It was part of her duty to record matters relating to the progress of labour in a document called Labour Ward Progress Record (Progress Record). The Progress Record is an important base for fact-finding in the present case.
23. At admission Weiping Shuang Ren was given a bed in a delivery room. Dr Ren remained with her more or less continuously until she was taken from the delivery room during the events about to be described.
24. Dr Mukerjee first conducted an examination of Weiping Shuang Ren at about 1105 hours. He found her to be at term with nothing abnormal about her labour at that stage. The signs indicated that the baby would be of average size. Dr Mukerjee gave instructions for a Syntocinon drip to be administered (in order to induce contractions) and that was commenced at 1145 hours. There was a further examination by Dr Mukerjee at 1500 hours and another at 1710 hours. Because progress was considered somewhat slow, Dr Mukerjee ruptured the membranes shortly after 1710 hours. In the meantime Weiping Shuang Ren received injections for pain control. The foetal heart rate was monitored regularly by Sr Collins by means of a device called Sonicaid and was found to be within normal limits, that is, between 120 and 160.
25. At about 2100 hours, elsewhere in the hospital, there was a change of shift for the nurses rostered to staff the operating theatre. At that stage it was not contemplated that the use of the theatre would be necessary for what was expected to be a normal delivery in the labour ward for Weiping Shuang Ren. Whether it was routine or whether it was because of the Easter holidays, arrangements had been made to staff one operating theatre only during the night, with one nurse to assist the surgeon (the scrub nurse), one to assist the anaesthetist and a third to assist generally as the scout nurse. One of the nurses on the rostered incoming shift did not attend and the incoming scrub nurse, Sr Lyons, was told (the evidence does not reveal by whom) that Sr Sharpe of the outgoing shift could be called in if necessary from her home to act as scout nurse. In fact, Sr Sharpe lived at Chisholm, an outlying suburb then on the southern outskirts of Canberra.
26. At 2230 hours an examination was carried out by Dr Crozier, a resident, with the assistance of Sr Collins. According to the findings recorded by Sr Collins, the cervix was noted as fully effaced and the os fully dilated, indicating that the second stage of labour had been reached. The foetus was found to be in a position noted as "ROP to ROT" which meant that the sagittal suture line of the skull (which separates the two hemispheres) was between occipital posterior and occipital transverse on the right side. The head was noted to have descended to a position approximately level with the ischial spines. It was about to enter, if it had not already entered, the area known as mid-cavity. (The significance of these later findings will be discussed later.)
27. Dr Mukerjee was notified of these findings. He advised that the mother should be encouraged to begin active pushing. This was commenced at 2240 hours and at 2300 hours Sr Collins noted "no progress seen".
28. Dr Mukerjee attended and carried out an examination at 2305 hours. The nature and adequacy of this examination was the subject of close attention in the trial and I will return to it. It revealed to Dr Mukerjee that the position of the foetal skull at mid-cavity and the slow rate of progress of labour was such that if the labour was allowed to continue to take its course unaided, there would be a risk of obstruction and a consequent risk to the health and safety of the mother and the foetus. There were essentially only two options available to avoid those risks, either to proceed straight to caesarean section or to attempt a delivery by means of Kielland's forceps. A delivery by Kielland's forceps in the labour ward is a less radical procedure than caesarean section, which is necessarily carried out under general anaesthetic in an operating theatre. However, it is and was established medical practice that if an obstetrician entertains doubt as to the prospect of success of a Kielland's forceps procedure, then the procedure should be carried out not in the delivery room but in an operating theatre equipped to proceed immediately to caesarean section in the event of a failed attempt at delivery by Kielland's forceps. Dr Mukerjee chose to proceed in the delivery room. The mother was prepared for delivery. The paediatric resident, Dr Derek Leslie Johns, was notified.
29. Until this time, at about 2330 hours, a normal foetal heart rate continued to be heard when the Sonicaid instrument was placed on the mother's stomach by Sr Collins. From 2330 hours onward, however, Sr Collins had difficulty monitoring the foetal heart rate because the activity of Dr Mukerjee in relation to the Kielland's forceps procedure prevented her getting free access to the mother. At this time, and on several occasions after that, Sr Collins simply noted the entry "FHH" in the progress record. This showed that she had heard the foetal heart rate and that she considered that there was nothing abnormal about it.
30. Shortly after 2340 hours Dr Mukerjee performed an episiotomy, a procedure commonly performed in order to facilitate entry of the blades of the forceps. By that time Dr Johns was in attendance as an observer.
31. What happened over the next ten minutes or so is crucial and the subject of dispute. It will be necessary to examine the evidence in detail in order to make essential findings. For the present it is sufficient to say that at 2343 hours Dr Mukerjee applied the Kielland's forceps in an attempt to rotate the foetal head in a clockwise direction towards the anterior position. The attempt was unsuccessful and he removed the forceps at 2350 hours. At that stage Sr Collins recorded that the foetal heart rate was slow and difficult to count. At 2351 hours Dr Mukerjee, to use the term recorded in the Progress Record, "re-applied" the Kielland's forceps but with similar lack of success. At that time Sr Collins, still having difficulty getting access to the mother, was unable to hear a foetal heart rate at all. At 2356 hours Dr Mukerjee removed the forceps and announced that it was necessary to carry out a caesarean section.
32. Sr Collins of her own initiative proceeded swiftly and immediately to a telephone nearby and spoke to Sr Lyons in the operating theatre and also to Dr Allam, the rostered anaesthetist, who was at his home in Macquarie. Sr Collins informed each of them of the need to prepare for the caesarean section. Dr Allam left for the hospital without delay. However, Sr Lyons informed Sr Collins that there would be a delay in preparing the operating theatre because it was necessary to call in a nurse from Chisholm.
33. Sr Collins returned to the delivery room and informed Dr Mukerjee that she had been told there would be a delay. She proceeded to apply the foetal heart monitor to the mother and was still unable to hear a beat. Over the next few minutes she began to hear the foetal heartbeat again, but it was abnormally slow at 80 beats per minute. An abnormally slow heart beat (brachycardia) continued at least until 0005 hours by which time the rate had increased to 90. By 0007 hours it had increased to 160 and an abnormally high foetal heart rate (tachycardia) continued at least until 0050 hours.
34. In the interim, and in the first few minutes after Dr Mukerjee announced the need for caesarean section, Dr Mukerjee handed Dr Ren a form of consent which Dr Ren signed. Also at some stage in the period following removal of the forceps and 0007 hours, Sr Lyons called Sr Staniforth, another midwife, from a nearby room in the labour ward and told Sr Staniforth of her concern about the lack of a foetal heart beat.
35. Dr Mukerjee became concerned about the continuing delay. At some stage at about this time he spoke to Sr Lyons and expressed his concern.
36. Dr Ren also became concerned and spoke to Dr Mukerjee, who said that the theatre was not ready but "it won't be long". Whilst waiting for the theatre to be made ready, Dr Mukerjee proceeded to repair the episiotomy in the delivery room, something which had to be done in any event, although not necessarily before the caesarean section. That repair took a few minutes. It did not contribute to the delay in preparing the theatre.
37. Dr Allam, the anaesthetist, took some 20 to 27 minutes to get from his home to the hospital and prepare himself for theatre. Almost immediately after Dr Allam arrived in the theatre, Sr Lyons entered and told him that the procedure would not commence until the scout nurse arrived. Dr Allam then went to a tearoom. Soon afterwards he was joined by Dr Mukerjee who was apologetic and concerned about the delay. It was a further 20 minutes at least before Dr Allam was called into the operating theatre.
38. The senior nurse on duty that night was Sr de Britt. At some stage during the events just described, she was told by someone on a telephone that theatre was required. Sr de Britt and Sr Lyons spoke to each other on the telephone about Sr Lyons' authority to call in Sr Sharpe. Sr Lyons then arranged through the hospital reception for Sr Sharpe to be brought in by taxi. Sr Sharpe in fact arrived, but the evidence does not reveal at what time. (Sr Sharpe was not called to give evidence nor was any statement by her tendered in evidence. However, I draw no inferences from those circumstances.)
39. The Progress Record records that the mother was transferred from the labour ward to the operating theatre at 0050 hours.
40. In the meantime, Dr Walters, a consultant paediatrician, had been called to attend for the caesarean section. It is not clear who made the decision or what time the call was made but it appears that it was Dr Johns who made the call to Dr Walters. It was the practice for a paediatrician to be present in situations when problems were anticipated at a birth, and a caesarean section following failed attempt at forceps delivery was regarded as such a situation. Dr Walters was present for the commencement of the operation. He estimated that it was at least an hour between the time he was called to the hospital and the time the operation commenced. Present also were Dr Mukerjee, Dr Allam, Dr Johns, Sr Collins, Sr Lyons, Sr Sharpe, and Sr Leyland, assisting the anaesthetist. Dr Crozier may or may not have been present. The caesarean section was commenced and delivery took place within about fifteen minutes at 0116 hours.
41. It was apparent upon the birth of Samuel Ren that he was very seriously ill. He was pale and his fingers and lips were blue. The heartbeat was very slow, below 100. Dr Walters considered that the prime objective was to get oxygen into the baby as soon as possible. He did this by means of a mask and ventilating bag. The baby's first gasp was after four to five minutes. First breathing began at about seven minutes with assistance and at eight to ten minutes independently. Tests for what is called Apgar evaluation made over the first nine minutes showed the baby functioning very poorly at first but a little better at the end of that period. The baby began to suffer fits within twenty minutes. Blood in the urine indicated damage to the kidneys. An ECG showed damage to the heart consistent with anoxia (lack of oxygen) at birth, and that was confirmed by the presence of blood in the lungs. Over the ensuing four to six weeks it became apparent that Samuel Ren had been born with cerebral palsy.
Nature and causes of cerebral palsy 42. The term cerebral palsy is used to cover a range of conditions involving impaired control of movement or posture, or both, in which the impairment is linked to neurological abnormality. The neurological abnormality manifests lack of development or damage to parts of the brain. It is non-progressive in that the cerebral condition is constant, although muscular control can be improved through learning. Cerebral palsy does not affect intellectual capacity, but the physical limitations which the condition imposes restrict both the ordinary learning process and the capacity of the person to speak or otherwise engage in communication or self-expression. Hence, it seems that persons affected by cerebral palsy are often, but mistakenly, regarded as intellectually retarded.
43. According to a Consensus Statement on the Origin of Cerebral Palsy, adopted at a conference of the Australian and New Zealand Perinatal Societies on 26 August 1994 and published in (1995) 35 Aust & NZ Journal of Obstetrics and Gynaecology 126, cerebral palsy is the most common physical disability in childhood, occurring in about 2-2.5 per 1,000 children born. The incidence of cerebral palsy has not changed in the last 40 years despite improvements in ante-natal care and a heavy reduction in deaths associated with childbirth. The continuing incidence of cerebral palsy is attributed to the increased survival rate of babies born with that condition.
44. In the current state of medical opinion it is considered that cerebral palsy is rarely caused after birth and in the present case it is accepted by all parties that Samuel's condition was not so caused.
45. Accordingly, it is in the antenatal or perinatal stages (some doctors prefer the term perinatal although that term encompasses the period immediately after birth) that the causes of cerebral palsy are sought. Whilst genetic factors, infection, poisoning and trauma are considered to be antenatal causes of cerebral palsy, none were relied upon on behalf of the defendants in the present case and I am satisfied that they may be excluded. It is known that hypoxia (reduction in the amount of oxygen in the blood) and ischaemia (reduction in the amount of blood reaching the brain) occur during the birth process, and if sufficient, cause death of the foetus. Short of death, the foetus may be born in an observable state of extreme hypoxia or virtual anoxia (absence of oxygen in the blood). A baby born in that condition requires immediate resuscitation. There are methods of assessing the duration of hypoxia prior to birth. Assessment of the duration of hypoxia may assist in attributing the condition to a given antenatal event or providing a hypothesis in relation to antenatal events still to be determined. Although the reasons are not clear, the weight of current medical opinion supports the proposition that brain dysfunction which manifests itself soon after birth (encephalopathy), with consequent cerebral palsy, can by caused by hypoxia occurring shortly before birth and that if an antenatal hypoxic event (that is, an event likely to cause hypoxia) can be identified then that event may be considered to be a cause of the cerebral palsy. According to one approach, notably that of Dr Harbord, these are the classic conditions for a diagnosis of birth asphyxia. Other witnesses used the term birth asphyxia in a less technical sense.
46. Unless brain damage is gross, which is not the case here, it cannot be detected at the antenatal stage by scanning or other means. Hence, unless death of the foetus occurs before birth or shortly after birth and the brain is examined at autopsy, the extent and nature of injury to the brain cannot be determined pathologically. Further, as cerebral palsy is not usually a firm diagnosis until some weeks or longer after birth, any attempt to relate the condition to hypoxia brought about by an antenatal or perinatal event is fraught with difficulty, especially if it is accepted, as asserted in the Consensus Statement (p.129), that "most infants who develop cerebral palsy are born from uncomplicated pregnancies and deliveries" with no signs of neurological abnormality, that "lesions causing cerebral palsy are rarely initiated in labour", and that studies show that over 90 percent of cerebral palsy cases "could not be related to intrapartum hypoxia". The medical evidence in the present case generally accords with these statements. In other words, in most cases, the cause of cerebral palsy in a child cannot be identified. Therefore the plaintiff in the present case undertakes a substantial task in seeking to establish, by proof consistent with modern medical science, that his condition was brought about by hypoxia for which the conduct of one or other of the defendants is responsible.
47. The term cerebral palsy itself would seem to be something of a misnomer, since the palsy (another word for paralysis or simply impaired control) is not of the brain but of other parts of the body to which the brain ordinarily sends messages and over which it exercises control. The significance of the adjective "cerebral" is that physical impairment derives from the abnormality of a recognized area of the brain. The impairment manifested in the movements of the person concerned may be classified typically as either spastic, or athetoid. In the former category the area of the brain affected is the cortex leading to the spinal column. In the latter category the basal ganglia on both sides of the brain are affected. Samuel's condition is predominantly athetoid with some spastic characteristics. One witness, Dr Harbord, described it as chorea athetosis. Others refer to it as dystonic athetosis. Nothing turns on this. However, the distinction between a condition of athetosis and a spastic condition may be of importance because injury to the cortex is likely to occur in circumstances different from those in which injury to the basal ganglia occurs.
Causation and foetal distress 48. The events immediately following Samuel's birth provide some of the clues as to what happened immediately before. Because the postnatal events are relatively easily established (not least because they are well recorded) they provide some foundation on which to try to establish the earlier events, particularly during the attempt at forceps delivery.
49. The weight of evidence establishes that foetal hypoxia is associated with and may be caused by what is called foetal distress. What exactly it is that constitutes foetal distress and whether foetal distress occasioned hypoxia in the present case are matters which need to be determined. (The terms "anoxia" and "anoxic episode" have also been used. I take these to mean situations of extreme hypoxia. An anoxic child is presumably on the verge of death.)
50. The term foetal distress is not precise. In lay terms it has connotations of the subjective pain and discomfort to which human beings are subject. Although, as some of the medical witnesses said, it is impossible to know exactly what a foetus experiences, it is generally believed that a foetus is capable of and does experience such symptoms. On the other hand, the term foetal distress is sometimes used to mean no more than an objectively measured abnormality in the foetal heart rate during labour. Whatever be the exact nature of foetal distress, however, it is established that the foetus reacts to trauma and adverse stimuli in such a way that its heartbeat is affected and, further, it is accepted that an abnormal heartbeat indicates that the foetus is undergoing distress which is akin to that of ordinary human experience.
51. On such an approach, it is established in the present case that the foetus was beginning to exhibit signs of distress at 2343 hours through to about 0005 hours when the foetal heartbeat was difficult to hear or was abnormally slow (brachycardiac), and continued from about 0007 to at least 0050 hours when it was abnormally high (tachycardiac). (There does not appear to have been any record taken of foetal heart beat after that time.) Dr Roberton's view, which I accept, was that there was a degree of cardiovascular resuscitation between 0030 hours and the time of birth at 0116 hours, and that resuscitation may be significant particularly with regard to causation.
52. The significance of these times and time periods is that the Progress Record shows that it was at 2343 that the Kielland's forceps were applied and the signs of foetal distress first exhibited. (I reject the view of Professor Shearman, alone of the witnesses, that a decision to perform Kielland's forceps is not usually taken in the early part of the second stage of labour unless there are signs of foetal distress.) By 0007, immediately after the forceps had been removed, and whilst arrangements were being made to have the operating theatre made ready, the mother was put at relative ease by the cessation of Syntocinon and by being placed on her back after the episiotomy repair. There was, accordingly, consequent relief to her and to the foetus, which, on the medical evidence, explains the commencement of the recovery of the foetal heart rate from brachycardia, although its significance in relation to the increase to a tachycardiac rate was not made clear.
53. Hence, according to the plaintiff's case, it should be inferred that the insertion of the forceps was the event that precipitated the foetal distress and, further, that it was the foetal distress which caused or signified the hypoxia which resulted in damage to the foetal brain. If the Court accepts that those are proper inferences to be drawn, then they fix the act of Dr Mukerjee in introducing the forceps as a cause of the condition for which the plaintiff sues (assuming that there was no subsequent cause which displaced whatever damage was caused by the introduction of the forceps). However, the further issue then arises whether it should be accepted that all the damage to the foetus was done at that stage, for if this was so, then there was no further damage which could have been caused or contributed to by any delay in performing a caesarean section and any such delay was thus not causally connected with the plaintiff's condition. It is part of the case for the second defendant that even if the caesarean section had been carried out immediately after the removal of forceps, it would have made minimal difference to Samuel's condition because the damage was already and irreversibly done. If that is correct, then it cannot be that there is any causal connection between the plaintiff's condition and the delay in performing the caesarean section, and the issue of whoever it was that was responsible for the delay would not arise. It would not be necessary to make any findings as to the alleged negligence on the part of either Dr Mukerjee or of the hospital staff in failing to arrange for the operating theatre to be made ready in proper time after the failure of the Kielland's forceps procedure. It would also dispose of the allegation that Dr Mukerjee was negligent in failing to carry out the Kielland's forceps procedure in the operating theatre. An alternative case is put for the second defendant that if delay caused damage, then it was additional damage only.
54. It is, therefore, necessary to deal with the precise issue of exactly when it was that damage to the foetal brain occurred and to what extent.
55. Dr Walters described Samuel's condition as being the most serious of any baby he had seen delivered in 26 years of practice as a consultant paediatrician. His evidence was that symptoms of an anoxic episode, or hypoxic event, were the delayed breathing, the low heart rate, the damage to the heart, kidneys and lungs and the fits commencing within 20 to 30 minutes after delivery. There were also retinal haemorrhages seen by an ophthalmologist. The general weight of the medical evidence accepts the opinion of Dr Walters which is in turn consistent with a diagnosis of severe birth asphyxia.
56. Dr Roberton, a distinguished and experienced neo-natologist in the United Kingdom, now practising chiefly in the medico-legal area, was the chief witness for the second defendant on this issue. He gave evidence early in the trial and his attention was not directed to the hypothesis that Samuel's condition at birth might have been significantly more serious than he assumed. Dr Roberton thought that if a caesarean section had been done within ten to fifteen minutes of the first insertion of the forceps, the baby would have been born unharmed but that by 0005 hours, that is within ten minutes of the reversal of the forceps, irreversible harm was done. According to Dr Roberton, the added stress of the further use of forceps and the subsequent delay "converted a baby with reserves to protect its central nervous system to a baby that had no reserves to protect its nervous system, and caused the damage".
57. Dr Walters did not disagree that "the most possible point of compromise" was between 2345 and 0005 hours, that is from the commencement of the forceps procedure until the time the mother was taken down from the lithotomy position, but he did not agree that delay in performing the caesarean section did not contribute to the damage. In any event, he conceded that these were matters outside his area of expertise as a paediatrician. I do not consider that his evidence is strong support for that of Dr Roberton.
58. Dr Pridmore, Director of the Unit of Obstetrics and Gynaecology at the Queen Elizabeth Hospital in Adelaide, agreed that unless the baby was delivered within half an hour of the time of withdrawal of forceps, it would have suffered "irreversible cerebral palsy". He considered that the damage "would have been maintained up until the time of delivery". His views, though not of a specialist in neonatology, were based on his considerable experience.
59. Dr Harbord, a paediatric neurologist, also of Adelaide, dealt particularly with the matter of birth asphyxia and made clear the important relationship between foetal distress and birth asphyxia. In the field of neo-natology, a diagnosis of birth asphyxia is made in the presence of three factors, that is to say, signs of foetal distress during labour, the need for resuscitation at delivery and acute encephalopathy. On the material which Dr Harbord had before him, all three factors were observed to have occurred. According to his evidence, studies show that eight percent of children with cerebral palsy have gone through birth asphyxia. In the vast majority of those so affected, no acute definable event (such as cord prolapse or interuterine haemorrhage) is observed to have occurred. Further, according to Dr Harbord, recent research in Canada has shown that brain damage does not result from birth asphyxia unless there is a minimum of one hour of abnormal foetal heart rate. He thought it probable therefore that if asphyxia had been terminated shortly after birth by the administration of oxygen in less than one hour following the termination of the forceps procedure, then in all probability Samuel would have been born without disability.
60. I accept the evidence of Dr Harbord. Although not as experienced as Dr Roberton either in neo-natological practice, or in giving evidence, he is extremely well qualified in this narrow specialty. In any event, his evidence on close analysis is not entirely inconsistent with that of Dr Roberton. Dr Roberton's view, as expressed in his report, was somewhat tentative, although it appeared to firm up during his oral evidence. It is significant that one of the several assumptions upon which his opinion was based was that little was needed to resuscitate the baby and that the baby was in relatively "good shape" at the moment of birth. The evidence of Dr Walters clearly negates these assumptions. Dr Roberton seems also to have placed importance on the evidence of damage to the heart and describes that damage as "a marker of a severe asphyxial insult". However, that description is in the context of a discussion during his evidence of whether there was any "hypoxic insult" at all just prior to delivery. In that context he said that spastic quadriplegia is characteristically associated with chronic partial asphyxia over a period of more than an hour whereas athetosis is widely accepted to be the result of an acute short-lived asphyxia of less than 30 minutes late in labour. As I have already indicated, the plaintiff's condition is predominantly athetosic but there are some spastic characteristics.
61. I think that the better view is, as Dr Pridmore put it, that the forceps did not do damage in the sense of irreversible harm, but triggered asphyxial changes as indicated in the foetal heart readings. I accept further the effect of the evidence of both Dr Harbord and Dr Pridmore that if birth had occurred within 30 to 60 minutes of the cessation of forceps, the plaintiff's condition at birth would not have been as severe. However, I do not accept that it was likely that the child would have been born without damage had delivery taken place within this time. In short, I find that damage was initiated by the forceps attempt and was continued and aggravated by the delay until birth. These findings on causation do not limit the issues on liability. The issues that remain are, with regard to the forceps procedure, whether Dr Mukerjee was negligent, and with regard to the delay, whether either defendant was responsible and, if so, whether the responsible defendant was negligent.
Negligence of first defendant: failure to proceed direct to caesarean section 62. At its highest, the plaintiff relies on an allegation that Dr Mukerjee should not have performed a Kielland's forceps procedure at all but should have gone straight to caesarean section.
63. The allegation was supported, so it was submitted, by Professor Stirrat, Dr MacGillivray and Professor Shearman.
64. However, I do not think that Professor Stirrat expressed any such view. He wrote in his report that "a serious question" arises as to whether vaginal delivery should have been attempted. In his evidence he said that the decision to use forceps was justified if cephalo pelvic disproportion was excluded. The matter of cephalo pelvic disproportion is somewhat complex and I deal with it later.
65. The only real support for the view that Kielland's forceps should have been avoided altogether came from Dr MacGillivray, an English obstetrician now in retirement and from a report of Professor Shearman, now deceased.
66. Professor Shearman, Professor of Obstetrics and Gynaecology at the University of Sydney and Director of Obstetrics and Gynaecological Services at the King George V Memorial Hospital, said in his report that it was unusual to attempt a forceps delivery in the first two hours of the second stage of labour in the absence of signs of foetal distress and that the signs of posterior position in mid-cavity, caput and subpubic angle suggested strongly that Dr Mukerjee should have proceeded direct to caesarean section. Professor Shearman also considered that failed forceps in the hands of an experienced obstetrician was so rare that the event itself suggested failure to meet accepted standards. He also thought that the error was compounded by substantial delay which was due to the failure by Dr Mukerjee to recognize the potential for severe compromise.
67. The opinions of Professor Shearman, who could not be cross- examined, are so far out of step with those of the other medical witnesses that I have to reject them, despite his eminence.
68. Dr. MacGillivray was of the view initially that the shape of the pelvis was non-gynacoid and thus incapable of delivery, although he retreated from this position later, stating that the gynacoid shape and the narrowness of the pubic arch should have led to a decision to perform a Kielland's forceps delivery in theatre. He added that the foetal heart rate had gone unrecorded for half an hour and that that was another reason that the initial decision should have been to go straight to caesarean section.
69. The evidence of Professor Stirrat clearly contains the premise that an obstetrician in the position of Dr Mukerjee should have given serious consideration to proceeding direct to caesarean section, but does not go so far as to lay down that caesarean section was the only reasonable option open. Professor Stirrat's evidence does not justify a conclusion that, having considered the options (there were only two), it was a breach of the standards of the ordinary obstetrician to choose the option of Kielland's forceps. In any event, the overwhelming weight of the rest of the medical evidence is that in attempting a delivery by Kielland's forceps, Dr Mukerjee was, on the findings as recorded in the progress record, acting in accordance with the standards of the ordinary obstetrician. Dr O'Loughlin went further and said that, on the history and findings recorded on the Progress Record, for Dr Mukerjee to have proceeded to caesarean section rather than to an attempt at Kielland's forceps delivery would have been "malpractice". I accept that opinion. I reject the opinion of Dr MacGillivray.
Negligence of first defendant: failure to perform Kielland's forceps in operating theatre 70. Over 90 percent of Kielland's forceps deliveries in Australia are carried out in a labour ward. The reasons for not carrying out a forceps delivery in every case in an operating theatre ready for caesarean section are that to do so would be unduly stressful for the mother and the foetus, and unduly demanding on hospital and medical resources. Clearly once a decision is made that there should be a forceps delivery, a choice has to be made as to where the procedure has to be carried out. The fact that nearly ten percent of Kielland's forceps deliveries are carried out or attempted in the operating theatre, is sufficient indication that there is in fact a risk associated with the procedure which sometimes necessitates (or at least justifies) a choice of theatre and that the risk is not fanciful. Any obstetrician who carries out a delivery in the labour ward as a matter of routine would be failing in a proper standard of care, because the statistics show that in that ten percent of cases obstetricians have insufficient confidence to carry out the procedure without the facilities of an operative theatre in the event of failure. On the other hand, the choice to proceed in the labour ward is not of itself negligent and even the fact that an attempted delivery by Kielland's forceps in the labour ward fails does not of itself prove negligence on the part of the obstetrician.
71. The evidence about how the obstetrician is to make the choice has been expressed in a number of ways. The plaintiff relied heavily on various statements by the witnesses and in the literature to the effect that where the obstetrician entertains doubt at all (or where an obstetrician should entertain any doubt at all) as to the success of an attempt at delivery by Kielland's forceps, then the procedure should be carried out in the operating theatre.
72. However, it seems to me that as a matter of common sense these statements should not be applied too literally. Any competent obstetrician would be aware that there is a failure rate involved in an attempted forceps delivery (as there surely is in any serious medical intervention) and that success can never be guaranteed absolutely. In that sense it could hardly be said that an obstetrician should not embark upon the Kielland's forceps procedure by reason only of awareness of the possibility of failure. If simple awareness of the possibility of failure were sufficient to require a trial of forceps in theatre, there could never be justification for Kielland's forceps procedures to be carried out in the labour ward.
73. The solution to this sort of problem must be in the recognition that the correct choice between labour ward and theatre is dependent upon circumstances. If the obstetrician is sufficiently confident of success after weighing up all the factors, then not only is Kielland's forceps in the labour ward justified, but to require the procedure to be carried out in theatre puts the patient under unnecessary stress and makes unnecessary demands upon hospital and medical resources. On the other hand, it must be accepted that however optimistic the individual obstetrician may in fact be about a successful outcome, if a proper professional judgment, based on the clinical data available, does not justify a sufficient degree of confidence, then the proper course is to proceed in an operating theatre.
74. These two aspects of the issue need to be addressed in the present case. On the one hand, it is submitted on behalf of the plaintiff that no reasonably competent obstetrician in the position of Dr Mukerjee would have contemplated the forceps procedure with sufficient confidence to justify carrying it out in the labour ward, and conversely that on that objective standard there must have been sufficient doubt about the outcome to require the use of theatre. On the other hand, it is submitted that the evidence requires a conclusion that Dr Mukerjee did not entertain the confidence he claims he had, and that in fact, he simply proceeded recklessly, regardless of the prospect of failure or otherwise.
75. As to the first aspect, there is a considerable amount of expert opinion from obstetricians in Australia that as they understood and evaluated the data available to Dr Mukerjee (chiefly what appeared on the Progress Record), an experienced obstetrician in his position would have been sufficiently confident of success to justify carrying out the Kielland's forceps procedure in the labour ward. At the same time there is a contrary body of opinion that there were factors which should have put Dr Mukerjee on notice of sufficient prospect of failure as to require a decision to proceed only by way of a trial of forceps in theatre.
76. In general these opinions have been based on assumptions or data which, ultimately, I am not able to distinguish in any relevant way from the data upon which Dr Mukerjee acted.
77. The majority expressed the opinion that the decision to attempt the forceps delivery in the labour ward instead of proceeding to a trial of forceps was in accordance with accepted standards of obstetric care and management and some proffered the view that they would have done the same had they been in the same situation as Dr Mukerjee. Views to the contrary were expressed by certain doctors called in the plaintiff's case and reliance was also placed on a number of articles in medical journals admitted into evidence. Bearing in mind that volume of evidence is not to be equated with weight of evidence, it is nevertheless inescapable that the preponderance of opinion in the case favoured the course taken by Dr Mukerjee.
78. It is now a well-established principle in Australia that in an action for negligence, the measure of the standard of reasonable care is to be decided by the court and not by a body of professional opinion, and that the court's duty in this regard is not to be delegated: Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479.
79. Although the facts in Rogers v. Whitaker required a decision about the duty of a doctor to disclose to a patient the degree of risk associated with a proposed operative procedure, the majority High Court Justices stated at p.487 that the principle extends into diagnosis and treatment, the "heartland" of medicine. Gaudron J said at p. 493 that even in the area of diagnosis and treatment the reasonableness of a doctor's conduct is not a matter exclusively within the province of medical knowledge or expertise and "at least in some situations" is a matter of common sense. The principle laid down is of course binding on this Court.
80. Nevertheless it is only the principle of law that is binding and each case has to be decided on the facts established by the evidence. Furthermore, for the purposes of the present case, all parties accepted that there is significance in the skill and expertise of the obstetrician in relation to matters of choice and judgment. On behalf of the plaintiff, it was submitted that an obstetrician can no more hide behind skill and experience than an experienced driver charged with negligent driving. It was submitted on behalf of Dr Mukerjee that the clinical judgment of an experienced obstetrician is a crucial factor in evaluating the prospects of a successful mid-cavity forceps delivery. Both submissions have a certain attraction. However, I think that the experienced driver analogy is of little assistance, because these days a large proportion of the community is skilled and experienced in the driving of motor vehicles and a tribunal of fact has little difficulty in applying appropriate standards to charges of failure to drive without due care. In what I consider to be in stark contrast, where judgment and choice are dependent upon knowledge, skill and experience in a highly specialised field of medical practice, a court must rely heavily on expert evidence. Whilst it is true, as Rogers v. Whitaker indicates, that the days are gone when a defendant could rely upon an "error of judgment" to a charge of negligence, if such an error involves lack of due care and skill, the defendant is liable. Nevertheless, in my view, when the alleged negligence is associated with making a choice which can be made only by the exercise of judgment based on particular knowledge, skills and experience which lie outside those of the tribunal of fact, then the opinion of persons with such knowledge, skills and experience is of considerable weight. Where such opinion is divided as to what is a proper judgment in the circumstances, a plaintiff does not discharge the onus by simply asking the court to substitute its own view for those with the expertise and experience in the field.
81. It is also necessary, in my view, to say clearly what many would consider obvious, namely, that in actions for professional negligence the plaintiff still retains the onus of proving that the relevant act or omission on the part of the defendant was unreasonable. This may be in contrast to actions for negligence for personal injuries sustained in the workplace or in a traffic accident, where, so long as there is a practicable means of minimizing the risk of foreseeable injury, there is, in practical terms although not in theory, an onus on the defendant to show that it was reasonable not to take that means in order to minimise the risk: see Miletic v. ACT Health Commission [1995] HCA 13; (1995) 69 ALJR 675; Colonel Clints Bargain Stores Pty Limited v. Molero (unreported, Full Court of the Federal Court of Australia, 8 November 1996). However, until instructed otherwise, I do not accept that the demise of the requirement of positive proof of unreasonableness on the part of the defendant has spread to actions for damages for professional negligence. The need to prove that the defendant's act or omission was unreasonable, and not simply avoidable, lies at the heart of the action.
82. The present case is very much within the heartland of medicine. The bulk of the medical opinion that Dr Mukerjee was justified in the confidence that they assumed he had that the delivery by Kielland's forceps could be safely achieved, places a substantial obstacle in the way of the plaintiff proving that no reasonable obstetrician could have had the degree of confidence that so many qualified and eminent medical practitioners considered to be justified.
83. As Mahoney JA observed in Lowns v. Woods (unreported, New South Wales Court of Appeal, 5 February 1996): ".... the courts should be slow to intervene where what is involved is the weighing up of advantages and disadvantages, medical necessities and the like by the profession and then by the courts the mere substitution of the latter for the former. There are, of course, extreme cases. But there must, I think, be strong reasons why a clinical judgment properly arrived at is to be put aside as wrong and, a fortiori, as negligent."
84. Nevertheless, the decision in Rogers v. Whitaker must be applied. In practical terms it seems that, in accordance with that decision, once there is evidence of a medical opinion which supports the plaintiff's case that the medical practitioner acted without reasonable care, then it is incumbent upon the Court, difficult as the exercise may be, to pass judgment on the various medical issues raised. In the present proceedings the judgment of the fact-finding tribunal does not attract the inscrutability of a jury's verdict. The Court's reasons for preferring one medical or scientific opinion to another must be revealed for scrutiny and analysis in the same way as the opinions of the doctors themselves.
85. Despite the preponderance of medical opinion against the plaintiff, it is necessary to examine the evidence presented on behalf of the plaintiff which goes to support the proposition that no competent obstetrician in the position of Dr Mukerjee would have made the decision to proceed to Kielland's forceps delivery in the labour ward.
86. That proposition itself follows from the premise that a competent obstetrician who entertains sufficient doubt about the prospects of success should require or insist upon a trial of forceps in the theatre. The premise is relevant also to the alternative claim made by the plaintiff, namely, that Dr Mukerjee actually knew that there was a significant prospect of failure.
87. But first it is desirable to consider some issues of credit as they may affect the finding of facts relating to Dr Mukerjee's decision and the circumstances in which he made it.
Excursus: did Dr Mukerjee lack confidence in a successful Kielland's forceps delivery?: Dr Mukerjee as a witness of truth 88. I turn now to the claim made on behalf of the plaintiff that Dr Mukerjee, contrary to his own evidence, actually lacked confidence as to the prospect of success. All the expert opinion seems to have assumed that he did not lack that confidence. As the expert opinion evidence relies on assumptions as to what actually happened, chiefly from the findings in the Progress Record, any such assumption not made out on the evidence affects the validity of the opinion reached. The resolution of this issue requires an assessment of the credit of Dr Mukerjee as a witness of truth. That assessment cannot be made without having regard to what Dr Mukerjee had to say in his evidence in the light of the evidence of other witnesses and in the light of facts otherwise established. Where his evidence conflicts with that of other witnesses, it is necessary to make an assessment of their credit as well as his.
89. It is probably as a result of the adversary system that when a defendant in an action for negligence gives evidence which conflicts with that of some of the plaintiff's witnesses, then the opportunity will be taken by way of cross-examination to show not only that the defendant's evidence is unreliable, but worse, that the defendant is deliberately untruthful. Sometimes too, the opportunity may be taken to use cross-examination to show that the negligence relied upon is more extreme than that demonstrated in the plaintiff's case. In the present proceedings it was submitted on behalf of the plaintiff that Dr Mukerjee has been shown to be a liar and an obstetrician of recklessness.
90. Some general remarks with regard to Dr Mukerjee's credit as a witness should be made. It has to be said that there are parts of Dr Mukerjee's evidence that have to be rejected either because they conflict with evidence which is to be accepted or because they are inherently unacceptable. It does not follow, however, as was submitted on behalf of the plaintiff, that Dr Mukerjee was so discredited that no weight can be given to his evidence as a whole unless independent corroboration exists. On the contrary, subject to some remarks which follow, I found Dr Mukerjee to be a witness of no more than ordinary frailty. It needs to be said clearly in the light of trial experience that to expect witnesses to remember with precision and objectivity events which occurred so long ago, over so short a period, in circumstances of such stress for some of them and, in certain instances, where some of them have an interest in the eventual findings of the Court, is to expect the humanly impossible. Some of the witnesses were asked to recall the events only recently. Others, including Dr Mukerjee, have almost certainly had the events in their minds over the years more or less continuously, with the virtual inevitability that reflection has built upon perception and that what now passes for recollection may be indistinguishable from belief. Eventually, mistaken belief which is nonetheless genuine may displace accurate data recorded in the mind by way of observation or fill gaps in the mind where no data was ever recorded.
91. It also needs to be said that allowances may have to be made for what a witness says during long and stringent cross-examination. When a cross-examiner succeeds in confusing or exhausting a witness, with the result that the witness can be induced to give answers which are self-contradictory or against established facts or otherwise plainly wrong, it does not necessarily follow that the rest of the evidence of the witness needs to be rejected. For instance, I have in mind the answers given by Dr Mukerjee whilst under cross-examination in the late afternoon of 20 September 1996. My observation of Dr Mukerjee at that time was that he was clearly tired and confused and that the puzzling nature of some of the answers he gave is explicable on that basis. It is true that little weight can be placed on the answers given by him at that stage of the proceedings, to lend positive support to his case. On the other hand, I do not think that the unsatisfactory evidence he gave at that time has any significant impact on the extent to which his evidence is otherwise acceptable to the Court. In summary, I think that on some issues as to the events, the evidence of Dr Mukerjee is to be preferred to that of other witnesses and on some other issues, the evidence of other witnesses is to be preferred to his. Unfortunately, some of the central issues in the case revolve around what was going on in his mind immediately before, during and immediately after the attempt at Kielland's forceps delivery. Nobody but Dr Mukerjee could testify directly as to that. Apart from what he himself was heard to say or has had to say, the evidence on those issues is circumstantial.
92. I deal now with some of these matters which, it is submitted, impeach Dr Mukerjee's credit and upon which I have reached firm conclusions. Those conclusions may then be of assistance in reaching conclusions on other issues as I consider them in turn and as they fall to be decided. 1. Dr Mukerjee said in his evidence-in-chief that at the vaginal examination at 2305 hours, he observed the vertex to be two to three centimetres below the ischial spines. I reject that evidence to the extent that I do not accept that at the time of giving his evidence he would have been able to remember that he made such an observation. The abundant documentary material in the case shows that he had never previously stated that he had made such an observation. I think that the most likely explanation for his evidence on this point (which was given well on into the trial) is that he was re-constructing events in the light of the case that he saw being made out against him. 2. Dr Mukerjee also said in his evidence-in-chief that at the same vaginal examination he found upon palpation one-fifth of the head of the foetus to be above the pelvic rim. Again I reject the evidence to the extent that I do not accept that he would have been able at the time of giving his evidence to remember that he made an observation of such precision. The most likely explanation for his evidence again is that he was re-constructing evidence in the light of the case he saw being made out against him. 3. Dr Mukerjee claimed that Sr Collins did not tell him, and he was not aware, that the foetal heart rate was slow and difficult to count after the Kielland's forceps were removed for the first time and before they were re-inserted. I do not accept this evidence. It conflicts with the evidence of Sr Collins, which is inherently more credible on the point. The evidence of Sr Collins is also consistent with the evidence of Sr Staniforth, who said that she was in a nearby room in the labour ward when Sr Collins in a state of distress rushed in and told her that she was unable to hear a foetal heart beat. (For completion I should say that I think that this incident occurred after the forceps had been removed for the second time.) 4. Dr Mukerjee stated on 20 September 1996, the thirteenth day of the case, that he did not believe at any time before the delivery that there was any foetal distress and that he still believed that there was no foetal distress. Why he should have asserted that lack of belief and why he should continue to reject the proposition that there was foetal distress is difficult to understand, no matter what definition of foetal distress is accepted. His professed belief is entirely against the rest of the medical evidence. 5. It is also difficult, perhaps a little less difficult, to understand why Dr Mukerjee did not form the opinion, prior to delivery, that there was foetal distress, given the evidence of Sr Collins to which I have just referred. However, I am not prepared to reject his evidence on this precise issue. I am not prepared to go beyond saying that, accepting that he must have been aware of the low foetal heart rate during the Kielland's forceps procedure, I am not convinced that Dr Mukerjee consciously turned his mind to the matter of foetal distress, probably being preoccupied with the attempt to rotate the foetal head by means of the forceps. However, his lack of recognition then, or now, that there was foetal distress hardly assists his case that his conduct at the time was that of an experienced obstetrician dealing competently with the situation facing him. 6. I take into account Dr Ren's evidence about what Dr Mukerjee said to him in the hospital after the birth and in his surgery a fortnight or so later. That does not affect Dr Mukerjee's credit or culpability in any way.
93. In stark contrast to the evidence of Dr Mukerjee on some important matters was the evidence of Dr Johns, who was present both at the attempt at the Kielland's forceps delivery and at the caesarean section.
94. Dr Johns said that he was called by the midwife to the labour ward some time after 2330 hours. When asked whether Dr Mukerjee said anything about delivery by forceps, Dr Johns replied: ".... he made reference to the fact that he would try forceps delivery and if it wasn't successful then they would have to proceed to a caesarean section .... I remember Dr Mukerjee suggesting that the head might be a bit - the foetal head might be a bit high and that it may not be possible to use forceps and therefore it may be necessary to go to a caesarean."
95. In relation to the forceps procedure itself, Dr Johns said that Dr Mukerjee "certainly used traction and I would say forceful traction on the forceps" and that Dr Mukerjee was sweating a lot in what was a tense situation.
96. If Dr Johns' evidence is accepted, particularly on what he alleges was said by Dr Mukerjee prior to the forceps delivery, then it not only destroys Dr Mukerjee's credit as a witness on these matters but it would have to follow that the plaintiff has successfully established that Dr Mukerjee went into the Kielland's forceps procedure aware of a substantial risk of failure and a substantial possibility of having to go to caesarean section.
97. However, Dr Johns' evidence needs to be examined with care. After his period as a resident he has not pursued practice in obstetrics or in paediatrics. He practices in radiology. Although he made some notes at about 2 a.m. in relation to the delivery, he did not record any of these matters now in dispute. In fact, he was not asked to recall the events in question until some nine years later. He had no memory at all of several matters, for instance whether Dr Crozier was present or not, whether the forceps were applied once or twice or whether there was any monitoring of the foetal heart rate. He did not recall whether after the unsuccessful attempt at delivery by forceps, Dr Mukerjee indicated that there was anything urgent about the need to proceed to caesarean section. Dr Johns said that he himself went to attend to other duties between the time of the failed forceps and the commencement of the caesarean section. He was not able to recall whether he had ever witnessed a Kielland's forceps procedure previously.
98. In a written statement to the second defendant's solicitors on 3 April 1995, Dr Johns made no mention of Dr Mukerjee saying anything at all prior to the attempted forceps. The written statement, in fact, suggests that what Dr Mukerjee had to say about proceeding to caesarean section was after the failure of forceps.
99. Dr Johns' evidence is sufficiently in contrast to that of Sr Collins to cloud it with significant doubt. Although it is possible that Dr Mukerjee could have spoken to Dr Johns in the absence of Sr Collins, it is more likely that anything said by Dr Mukerjee would have been heard by Sr Collins and more likely again that she would have remembered and even noted in her statement recorded soon after the events that Dr Mukerjee had mentioned the possibility of caesarean section before he attempted the Kielland's forceps delivery.
100. Dr Johns eventually conceded that he could have been mistaken about when Dr Mukerjee mentioned the possibility of caesarean section and whether it was before or after the failed forceps. Bearing in mind the importance of the issue, I am not prepared to accept Dr John's evidence on these matters. It is too fine a thread on which the case against Dr Mukerjee should be allowed to hang.
101. The attack on Dr Mukerjee's credit is not so successful that it results in a conclusion that he embarked upon the attempted forceps delivery without confidence that it would be successful. The charge that he did so is one of extreme seriousness and not to be made out lightly. It involves a conclusion that not only was Dr Mukerjee lying to the Court but that he embarked upon a course of gross recklessness that could hardly be entertained by even a junior or inexperienced practitioner. On this particular issue I think that Dr Mukerjee's long experience and standing in the profession, particularly his active participation in the teaching and training of obstetrics within the established Australian medical education system, is to be taken into account. The charge is one of more than negligent error. Dr Mukerjee had known and practised and taught the rules for a long time. It was unlikely that he would have ignored them and recklessly proceeded to a Kielland's forceps delivery without confidence in likely success.
Negligence of first defendant: failure to perform Kielland's forceps in theatre (continued) 102. In medical terminology the term "trial of forceps" is usually given a precise meaning. It does not mean any attempt at delivery by means of forceps. It means specifically a procedure whereby the obstetrician, aware of a risk sufficient to justify the course to be taken, attempts a delivery by means of forceps in a theatre prepared, equipped and staffed to go immediately to caesarean section should there be a failure to deliver by forceps.
103. A decision to proceed to assist delivery by means of Kielland's forceps is an intervention with the natural course of birth and, according to ordinary medical practice, should not be undertaken unless there is reason for it. There is no dispute in the present case that intervention of one kind or another was justified. Indeed if Dr Mukerjee had decided not to intervene at all, the consequences are likely to have been all the more serious for the condition of the mother and the foetus and for the nature of the charges brought against Dr Mukerjee. The signs that intervention was required shortly after 2300 hours were that the mother had been in labour for at least 18 hours and that whilst progress of the foetus had been recorded between 1115 hours and 2215 hours, no further progress was seen on examination by the midwife at 2300 hours. In addition, at 2315 the position of the head at a posterior position was one that needed correction to the anterior position.
104. It was sought to be established by cross-examination of Dr Mukerjee that no examination by him took place at all at 2305 hours, or that if it did, it was a cursory and inadequate examination. I am quite satisfied that such an examination did take place. Indeed, it was recorded by Sr Collins in the Progress Record.
105. As I have already indicated, I do not accept Dr Mukerjee's evidence that he remembers that at the examination at 2305 hours he observed the head to be below the ischial spines or that he felt the head on palpation to be four-fifths below the pelvic rim. I think he has reconstructed those observations. Nevertheless, it is likely that his reconstruction accords with the actual situation and that the head was approximately in mid-cavity position. It is notoriously difficult to be precise about the exact position of the head when it is near the ischial spines. The record of the inexperienced Dr Crozier and the midwife, Sr Collins, that the head was "at" spines at 2230 hours, is likely to be approximate only and it is possible that at that time the head had progressed slightly below the ischial spines. It is also likely that the head was sufficiently into the pelvic cavity to justify an assessment at 2305 that a mid-cavity forceps delivery could be safely performed.
106. Subject to those observations, I am satisfied that the findings recorded in the Progress Record are accurate and, although the record of the examination carried out at 2305 hours is incomplete, I am not satisfied either that the examination itself was inadequate or that anything was apparent at that examination that disclosed to Dr Mukerjee or would have disclosed to a competent obstetrician that the risks of carrying out delivery by Kielland's forceps were greater than the risks disclosed by the findings recorded in the Progress Record.
107. Professor Stirrat considered that there were signs during pregnancy and early labour that should have put the obstetrician on notice of the possibility of cephalo pelvic disproportion. They included the size of the baby, which was bigger than average for a woman of 150 cms height, failure of labour to progress normally, and hypotension following epidural block. However, the weight and size of the baby was not easily established until after birth. The significance of hypotension was, even on Professor Stirrat's view, of only marginal significance and was not taken up by any other witness. The rest of the medical evidence, in my view, indicates that whilst slow labour is consistent with cephalo pelvic disproportion, it is not a firm indicator of significant disproportion.
108. However, by the time of the completion of the examination at 2305 hours, the situation was such, according to Professor Stirrat, that, as he said in his report, "whether or not any part of the foetal head was palpable per abdomen ..... the combination of dysfunctional labour, occipito-posterior position of the baby's head, the presence of caput succadeneum and the narrow sub-pubic angle, should have warned Dr Mukerjee of the possibility, if not the likelihood, of relative cephalo pelvic disproportion and that accordingly a decision to have attempted delivery by Kielland's forceps other than in theatre fell below accepted standards of care". In his evidence, Professor Stirrat expressed himself more strongly. He said that at 2305 hours he "certainly" would have had in mind that cephalo pelvic disproportion was "a likely diagnosis".
109. In any event, cephalo pelvic disproportion is a relative term and not a firm diagnosis. It simply means that the foetal head is large in proportion to the pelvis. "Absolute" cephalo pelvic disproportion presents when the head is so large that it cannot pass the ischial spines or for some other reason is too large to pass through the birth canal: in such a case caesarean section must be performed. On the other hand, the disproportion might be relatively slight and in some such circumstances a mid-cavity delivery by means of Kielland's forceps may be justified. Indeed, without some degree of disproportion it would seem that there would be no need for Kielland's forceps delivery.
110. Caput formation again is something of relative significance only since it commonly occurs when the foetal head is subject to pressure especially during a long period of labour.
111. Similarly, narrow sub-pubic angle, or narrow pubic arch is an indication there may be difficulty in the passage of the foetus particularly if the foetal head is not completely in the posterior position. But in itself it is not usually an indication of great difficulty. Furthermore, all these features of the foetus and the mother at mid-cavity or thereabouts are not susceptible to exact measurement and the assessment of the position of the foetus and the condition both of the foetus and mother and judgment as to their comparative importance in relation to each other are very much matters for the decision of the obstetrician, relying on knowledge, skill and experience.
112. In this context I accept Dr Mukerjee's evidence that he considered cephalo pelvic disproportion to be a possible diagnosis at 2305 hours and firm diagnosis at 2356 hours.
113. Professor Stirrat, when speaking about the trial of forceps in theatre, said that this was "justifiable when it is likely but not entirely certain that vaginal delivery by forceps will be successful". He added that "otherwise the patient should be delivered by caesarean section".
114. These words are somewhat ambiguous, but I take them to mean that Professor Stirrat adopts a somewhat stricter approach than the other medical witnesses. He appears to be saying that when delivery by forceps is less than likely to be successful, then it should not be entertained at all and caesarean section should proceed. Where success is "likely but not entirely certain", a trial of forceps in theatre should be carried out. An attempt of forceps in the labour ward it seems, on Professor Stirrat's view, should only be carried out when success is "entirely certain".
115. In addition, Professor Stirrat appears to have considered that Dr Mukerjee was responsible for the delay between the attempt and the delivery which was, according to him, an act of "gross negligence" and "the single most important fact which allowed the hypoxic brain damage to occur". In his evidence, Professor Stirrat described the crucial time as "during and following the forceps procedure, during the repair of episiotomy and the time taken to get to theatre". He was firm in his view that if forceps delivery fails, delivery must take place within ten to fifteen minutes in order to avoid damage to the foetus.
116. Dr MacGillivray retired from 40 years of obstetric practice in 1984 and, although no doubt a practitioner of great skill and experience, his views are more opposed to the use of Kielland's forceps than those of all the other witnesses. He considered that most Kielland's forceps deliveries are performed in theatre, which may be true in England, but is clearly contrary to the practice in Australia, and was so in 1986. He thought, contrary to Professor Stirrat, that Dr Mukerjee could have delayed a trial of forceps for an hour without necessarily damaging the foetus, provided that foetal heart rate was monitored in the meantime.
117. Dr Pridmore stated that the practice in the Queen Elizabeth Hospital in Adelaide is to carry out even moderately difficult forceps deliveries in the operating theatre in order to reduce the foetal distress to a minimum in the event of forceps procedure failing. He observed that once the foetus is manipulated, the heart rate is likely to become irregular and to exhibit the signs of distress, a condition which is not relieved until delivery.
118. All three doctors just mentioned seem to have assumed that the delay in delivery was lengthened by the time taken to do the episiotomy repair. This assumption is incorrect. In performing the repair in the labour ward, Dr Mukerjee was simply utilising the time whilst awaiting the arrival of the scout nurse. The episiotomy repair (which would otherwise have been performed after the caesarean section) in no way contributed to the delay in delivery.
119. It was also sought to establish on behalf of the plaintiff by cross-examination of defendants' witnesses that Kielland's forceps cannot be justified in the labour ward in circumstances where there is any doubt at all about the prospect of success. For instance, the following responses were elicited: that Kielland's forceps in the labour ward is justified if the obstetrician "feels he is about to embark upon a forceps delivery with an excellent chance of success" (Dr Stafford-Bell) or "before you attempt forceps in the ward you should have very close to a 100 percent degree of confidence" (Dr Barnes) and from Dr Mukerjee himself "if I had any doubt I would fail, I would have done her in the operating theatre".
120. In addition, some of the defendants' witnesses agreed in general, and none of them denied, that criteria for the use of Kielland's forceps as set out in an article written by Linda Cardozo and others and published in 1983, 287 British Medical Journal, p.315, should be accepted as guidelines. This article was not tendered in the plaintiff's case-in-chief. One of the guidelines was as follows: "(5) Where there is any doubt about the mode of delivery forceps should be used as a trial in the operating theatre with everything ready for an emergency caesarean section." As against these views, there are those of the following witnesses with their opinions briefly noted. Dr O'Loughlin: "You can never be sure .... if you are quite unlikely to effect delivery, you attempt it in theatre." ".... entirely reasonable given the circumstances. His management could not be considered to have been negligent." Dr Barnes: ".... attempt at forceps delivery was appropriate." "..... high degree of confidence." Dr Hinde: "I cannot identify strong prospective reasons during the labour to indicate that trial of forceps in theatre was the only acceptable approach." Dr Stafford-Bell: "It was the correct decision." "..... no reason to believe that there was significant cephalo pelvic disproportion." Professor Peperell: "When baby's head is in the occipito-posterior position .... in most instances the rotation can be performed satisfactorily, traction instituted, the diameters of the presenting head are then reduced and delivery can be effected satisfactorily. When this does not occur, one makes a diagnosis of cephalo pelvic disproportion due in part or wholly to the occipito-posterior position increasing the foetal head diameters. Delivery by caesarean section is then advisable." Professor Beischer: "Appropriate to attempt a forceps delivery at about the time it was performed. There is no evidence of absolute disproportion such as there being 2 cms or more of foetal head palpable. The mention of caput and moulding is consistent with cephalo pelvic disproportion which was undoubtedly present."
121. In support of the view of Professor Stirrat that Dr Mukerjee should have entertained doubt as to the prospective success of the Kielland's forceps procedure, reliance was placed on the evidence of Sr Collins that the foetal head was not visible when she conducted an examination at 2100 hours, nor during the attempted forceps delivery. Thus, so it was submitted, the conclusion should be drawn that the head had not yet passed the ischial spines at either stage. Clearly, it was the opinion of Sr Collins that the head would have been visible if it was two to three centimetres below the ischial spines. However, I do not think that Sr Collins' opinion, unsupported by the medical evidence, adds significant weight to the argument that Dr Mukerjee should have entertained a doubt as to the prospect of successful forceps delivery.
122. It is to be observed that Dr Pridmore allowed that, contrary to the practice in the Queen Elizabeth Hospital in Adelaide, a reasonable obstetrician in Dr Mukerjee's position might have chosen to proceed to attempt Kielland's forceps in the ward. It is also to be observed, in my view, that Professor Stirrat's opinion on this aspect was expressed in the context of examining the total picture of Dr Mukerjee's conduct in which Professor Stirrat saw the delay between the time of forceps and the time of delivery as constituting gross negligence and the major fact on causation. Professor Stirrat's view of the reasonableness or otherwise of Dr Mukerjee's confidence in his ability to successfully deliver by Kielland's forceps may well have been affected by the somewhat stern view he took of the delay and the role that he incorrectly ascribed to Dr Mukerjee in causing or contributing to that delay.
123. The evidence of Professor Stirrat and Dr MacGillivray reflects British practice in the light of British conditions. Dr Stafford-Bell said, and I accept his evidence, that in the United Kingdom, where the national health scheme avoids the use of visiting specialists, forceps deliveries are routinely carried out by hospital registrars. In those circumstances, the relevant decisions are made by doctors who lack the experience of specialist obstetricians and, in the interests of public health, a lower threshold of doubt (or higher threshold of confidence) is appropriate when assessing the prospects of success of a delivery by Kielland's forceps. In Australia where these decisions are made by specialist obstetricians, the decision is left very much to the individual obstetrician relying on skill and experience. There is, in particular, less need in Australia to rely upon the sorts of protocol and procedures that are laid down in the United Kingdom for the guidance of less experienced registrars. There is nothing in principle to prevent a court finding that an Australian practitioner is negligent if reasonableness requires the application in Australia of standards observed overseas. But the United Kingdom standards in relation to the degree of doubt which requires Kielland's forceps procedures to be carried out in theatre are applied in such a different context of medical and hospital administration and servicing that it would be wrong, in my view, to insist in 1996 on their application in the Australian Capital Territory in 1986.
124. There is another aspect of Professor Stirrat's opinion to which attention does not appear to have been given by any of the other witnesses. Professor Stirrat said that on the findings recorded in the Progress Record, the Kielland's forceps procedure could not have been safely postponed for a period of more than half an hour to one hour after 2305 hours. This raises the question whether the recommended trial of forceps in theatre could or would have taken place within that time period in the circumstances that existed in the Royal Canberra Hospital on the night in question. On the evidence I do not think that it was likely to have taken place within that period. If Dr Mukerjee had simply ordered a theatre to be made ready for the purpose of a trial of forceps (as indeed Sr de Britt thought was what was required), it was likely and indeed virtually inevitable, that events would have taken no swifter a course than those which in fact transpired from the time of withdrawal of the forceps. To proceed to a trial of forceps with possible caesarean section does not necessarily involve the same urgency as a caesarean section following failure of forceps delivery. It would not have done so in the present case. There would have been no need for Sr Collins to treat the matter with the same urgency that she displayed following the failed forceps. Although the evidence on this point is not very satisfactory, it tends to suggest that even if Dr Mukerjee had ordered a trial of forceps, the hospital would not have prepared the theatre in sufficient time to avoid damage to the foetus. If that is so, then failure to proceed by trial of forceps was not causative of the damage to the plaintiff.
125. In the light of the firm views already expressed supporting Dr Mukerjee's decision to proceed to Kielland's forceps in the labour ward, I conclude that it has not been established that Dr Mukerjee was negligent in that regard. In my opinion, the general situation is well summarised in the following passage appearing in the report of Professor Beischer. It coincides with my own conclusions based on the whole of the evidence: "It could have been wiser, especially with hindsight, that had forceps delivery been a trial forceps in theatre with the patient under a general anaesthetic, in which case it would have been possible when the forceps proved not possible, as was the case, for caesarean section to have been performed immediately. He made an error of judgment in that the forceps delivery under epidural analgesia would have been possible, which it proved not to be."
Negligence of first defendant: excessive use of force 126. It is alleged that Dr Mukerjee used excessive force in the application of the Kielland's forceps to the foetal skull, with the result that there was frank injury to the foetal skull and an interruption of the blood supply to the foetal brain.
127. The evidence to support this allegation is partly circumstantial and partly that of direct observation. There is medical evidence that the application of forceps to the foetal skull is a traumatic event for the foetus and involves some degree of insult to the foetal skull. Therefore, it follows that some degree of foetal distress to the extent that there is an abnormality of foetal heart rate is likely in any attempt at forceps delivery, and this will occur regardless of failure or success. The cold, hard metal blades of the forceps grip the skull over the ears and the greater the pressure the greater the insult. It may be inferred that the more resistant the foetal skull is to the attempt to rotate, the greater the pressure likely to be applied by the obstetrician. As Dr O'Loughlin acknowledged, there may be a temptation on the part of the obstetrician who has decided on a Kielland's forceps procedure to exert a little bit more pressure than is justified or safe in order to avoid failure and to justify the decision. But there was no evidence in the present case of bruising or haemorrhaging consistent with the use of excessive force.
128. Dr Ren, Sr Collins and Dr Johns, who were all watching Dr Mukerjee at the relevant time gave evidence that he was sweating. Dr Johns added that he observed that Dr Mukerjee used "forceful traction". Sr Collins said that he was using "a lot of force", and, at a latter stage, she said "a reasonable amount of force". Dr Mukerjee himself claims that he was "gentle, very gentle", a claim which is again inherently difficult to accept without reservation because it is simply unlikely that no force at all was used. Some force had to be used and was used. The weight of opinion of the medical witnesses is that there was no indication of excessive force.
129. I do not give great weight to the evidence that Dr Mukerjee was sweating (which I accept as an established fact). It is as consistent with stress and concentration as it is with significant force. That he appeared to the witnesses to be using force is a vague and subjective observation. Dr Mukerjee's position with regard to the allegation that he used force beyond that which a reasonable obstetrician would have used can be compared favourably with that of the obstetrician in Whitehouse v. Jordan.
130. I am not convinced that it has been established that Dr Mukerjee applied the forceps with a degree of force or pressure than was greater than would have been used by an ordinary competent obstetrician in the circumstances.
Negligence of first defendant: second application of forceps 131. It was alleged that Dr Mukerjee was negligent in inserting the Kielland's forceps on a second occasion after they had been withdrawn consequent upon the first insertion.
132. This allegation is sought to be made in two ways. First, it is said that a second application of Kielland's forceps is rarely, if ever, medically justified; alternatively, it is alleged that when the forceps were withdrawn for the first time it should have been obvious that the foetus was in a state of distress and that the decision should have been made there and then to abandon the attempt at forceps delivery and to proceed immediately to arrange for a theatre to be prepared for caesarean section following a failure of forceps delivery.
133. These two allegations are answered by the response on behalf of Dr Mukerjee that the second insertion was not a second attempt but a continuation of the initial attempt. This is more than a matter of playing with words. There was abundant medical evidence that where the obstetrician forms the view that the inability to rotate the foetal skull is due to inadequate application or misapplication of the blades, it is appropriate medical practice for the forceps to be withdrawn and to be re-inserted with the purpose of obtaining better or proper application. On this issue I accept the evidence of Dr Mukerjee that he did form the view that the failure to rotate may have been due to misapplication of the blades and that it was for that reason that he withdrew and, after a brief vaginal examination, applied them again as part of the same attempt.
134. I do not accept that Dr Mukerjee was so grossly negligent or reckless that having failed in one attempt he simply proceeded to make a second attempt. There is no evidence that it was not open to a competent obstetrician to decide that the failure to rotate on the initial insertion may have been due to misapplication of the blades. There is no evidence that misapplication of the blades is in itself negligent. On the contrary, the evidence suggests that the application and placement of the blades in the Kielland's forceps procedure is a highly sophisticated art, requiring considerable skill and judgment acquired over years of practice under supervision. It is not unlikely that from time to time even the most experienced obstetrician will encounter the situation where it is thought that application of the blades may not have taken place and that it is appropriate for them to be withdrawn and re-inserted. Dr Mukerjee had that skill and experience and capacity for judgment and I am not convinced that he failed to exercise it in relation to this aspect of the procedure.
135. Because the second insertion of the blades was properly regarded as a continuation of the initial attempt at forceps delivery, it was not reasonably necessary for Dr Mukerjee to abandon that attempt after the first withdrawal, and it was, in my view, in accordance with proper obstetric practice for him to continue in an effort to complete the single attempt.
Negligence of both defendants: failure to require or supply electronic foetal heart monitoring 136. There was a suggestion in the plaintiff's case that the hospital was negligent in not supplying equipment for electronic foetal monitoring and that Dr Mukerjee was negligent for not insisting upon it. This suggestion may be rejected on the simple basis that the medical evidence is overwhelming that even if electronic equipment had been supplied, it would have made no difference to the result. It would have made no difference to any of the decisions made by Dr Mukerjee and it would have made no difference to the delay in setting up theatre for the purpose of caesarean section. In other words, Samuel was likely to have been born in the same condition even if electronic foetal monitoring had been used. There is a body of opinion that electronic foetal monitoring amounts to over-servicing.
Negligence of both defendants: failure to provide operative facilities within time 137. For reasons already given, I have found that if delivery had taken place within five to ten minutes of the cessation of the attempted forceps procedure, it is likely that Samuel would have been born unharmed. Furthermore, if delivery had taken place within 30 to 60 minutes, it is likely that the effect of hypoxia and thus the severity of the damage would not have been as great as what was in fact sustained when the delay was some 80 minutes. Further, it is possible that if delivery had taken place within 30 to 60 minutes the damage would have been greatly reduced. It is therefore necessary to inquire whether either or both defendants were responsible for the delay and whether the delay involved a lack of reasonable care.
138. It would have been possible for caesarean section to be carried out as soon as five to ten minutes after the failure of forceps if a trial at forceps delivery had taken place in the operating theatre, for that is the very purpose of a trial of forceps; the hospital's surgical facilities will be set up to treat the case as of extreme urgency in the event of failure to deliver. The same degree of expedition is impossible when the attempt takes place in the labour ward. Once the decision was taken by Dr Mukerjee to attempt forceps delivery in the labour ward, it precluded delivery within five to ten minutes of failure. But because I am of the view that the decision to attempt forceps delivery in the labour ward involved no lack of reasonable care on the part of Dr Mukerjee, it follows that the failure to organize theatre and to carry out caesarean section within five to ten minutes after cessation of the attempted forceps involved no lack of reasonable care on the part of either defendant.
139. The next question is who was responsible for the delay going beyond 30 to 60 minutes.
140. It was submitted on behalf of the second defendant that Dr Mukerjee was "primarily responsible for the whole process". But it is obvious that this cannot be literally true and that there must have been limitations on the visiting obstetrician's authority to direct the affairs of the hospital. That accords with both common sense and the evidence. There was evidence that there were protocols on the functions and authority of various members of the hospital staff and the procedures to be followed in cases of emergency, but no such protocols were produced in evidence and nobody seemed to know their content. However, I accept that, when an emergency operation needed to be carried out, it was the function of the obstetrician to make the relevant and responsible members of the hospital staff aware of the degree of urgency and the exigencies of the situation. Even here there were limitations to the obstetrician's role. I do not see that the duty was absolute and, in my view, the obstetrician was required to do no more than take reasonable steps to make the need for urgency and the nature of what was required known to such members of the hospital staff as could be expected to respond adequately.
141. Mr. Bongiorno, for the second defendant, submitted that the obstetrician's duty was "non-delegable" in the same way that the High Court has described the duty of an employer: Kondis v. State Transport Authority [1984] HCA 61; (1983-1984) 154 CLR 672, or of a hospital authority (Kondis, per Mason J, obiter at 685), or of a school authority, or, formerly, of an invitor in occupation of premises. Mr. Bongiorno properly conceded that there was no direct authority to support his submission, but he relied upon an analogy with the factual situation in the High Court cases and upon an underlying principle that certain undertakings are so dangerous that those who undertake them are personally responsible to ensure that reasonable care is taken by whoever is recruited in order to participate in the undertaking, including independent contractors. I accept that submission for the purpose of delineating the duty of a medical practitioner to the extent that an obstetrician who undertakes diagnosis or treatment cannot escape liability by delegating the obstetric function to someone else. But the scope of the obstetrician's role has to be recognized. Although it does not need to be decided, I would doubt whether a surgeon would be responsible for the negligence of an anaesthetist which occurred during the course of an operation conducted by that surgeon. In the circumstances of the present case, I do not see that it was the obstetrician's function to perform the role of organizing the staff and facilities of the hospital for the purpose of preparing the operating theatre for surgery. Once the obstetrician made known to a responsible member of the nursing staff the need for surgery and the degree of urgency, it was, in my view, the responsibility of the hospital to respond appropriately to the demand. In the context of the duty of care owed to the plaintiff, it was the duty of the hospital to provide a theatre equipped for caesarean section as soon as it was reasonably possible having regard to the need for urgency.
142. I have already made the finding that medical practice accepts that in the event of a failed forceps delivery, caesarean section should be carried out within 30 minutes. I have made the further finding that in the events which occurred, damage to the foetus might have been minimised if not avoided if delivery had taken place within 30 to 60 minutes of the failure of forceps. The hospital was therefore in breach of its duty to take proper care unless it had in place a procedure for the preparation of theatre equipped for caesarean section within 30 to 60 minutes from the time of notification by the obstetrician.
143. Whether or not the hospital had an adequate system generally or for that particular Easter weekend or on other occasions does not need to be determined. Dr Stafford-Bell's evidence was eloquent of complaints made on previous occasions by doctors who had to wait for more than half an hour for theatre to be made ready following a request for urgent surgery. It was not suggested on behalf of the hospital that a request for urgent surgery or a failed forceps procedure was such a rare occurrence that the hospital did not need to be ready to meet such a request. What was submitted on behalf of the second defendant was that Dr Mukerjee did not take adequate steps to make the hospital staff aware of the urgency of the situation.
144. I reject that submission. As far as this aspect is concerned, I think that Dr Mukerjee's evidence is to be accepted and that he did all that could have been reasonably expected of an obstetrician in his position. It was obvious from the prompt action of Sr Collins that she was aware of the urgency when she left immediately upon the apparent failure of forceps delivery in order to make arrangements for caesarean section in theatre. She took the appropriate step of informing the nurse who was at that stage in charge of the theatre, Sr Lyons. According to Sr de Britt, the nursing supervisor, she spoke on the telephone to a female person at about this time and received information that the theatre was to be used in connection with a caesarean section and a forceps delivery. When Sr Collins returned to the labour ward and conveyed to Dr Mukerjee that there would be a delay, it did not, in my view, initiate a situation in which the obstetrician should have immediately taken further steps to inform persons further up the hospital hierarchy of the need to shorten the delay or to proceed to operation without a scout nurse. In the unsatisfactory nature of the evidence, I am unable to find exactly what was said by Sr Collins to Dr Mukerjee about the length of any expected delay, but I am not convinced that he was told anything to suggest that it would be more than 30 or 40 minutes. In other words, there was nothing to suggest to Dr Mukerjee initially that the expected delay would be greater than what had been experienced by other obstetricians from time to time, nor to suggest that, despite the anticipated delay, the caesarean section could not be performed within an acceptable time. It is clear that as time progressed Dr Mukerjee became increasingly concerned about the continuing delay. But as it was obvious that the scout nurse was on her way, it would have been expected that the moment of her arrival became increasingly imminent. I do not consider that it was negligent of Dr Mukerjee not to have done more than he did about the delay in the provision of a theatre.
145. As it turned out, there was something that Dr Mukerjee could have done. He could have gone to the top of the hospital hierarchy and impressed upon her the need for urgency. According to Sr de Britt's evidence, she would have responded immediately by organizing another scout nurse from amongst the other nurses then on duty or even gone along to theatre and performed the duties of scout nurse herself. However, the urgency at the time of the decision to proceed to caesarean section was not so great as to require Dr Mukerjee to request or insist upon that course. Indeed, there is no evidence that he even knew that it was available. Dr Mukerjee was entitled, as I have said, to expect the theatre to be ready within 30 or 40 minutes which was not an unusual delay in cases which were not life- threatening. There was no evidence that the hospital protocols laid down any rules or standards for surgeons to bypass the ordinary procedures that were being followed.
146. It is also clear that Sr Collins treated the matter as one of urgency and made that urgency known to Sr Lyons in the theatre. What exactly she said to Sr Lyons, however, is not so clear. Sr Collins claimed in her evidence that she said that "we needed an emergency caesar for failed forceps and foetal distress" and that the response came that they "needed to call someone in from Chisholm" which would take some 20 or 30 minutes. I accept that she mentioned failed forceps although I have reservations about whether she used the term "foetal distress". The evidence of Sr Lyons, however, was more limited. He said that all that he could remember was that a female midwife rang and told him "they need a caesarean section" and that he replied that it was necessary to call in a nurse from home who was 40 minutes from the hospital.
147. Sr Lyons further said in evidence that, although he could not remember doing so, normal procedure would have meant that he would have then rung the nursing supervisor to inform her "out of courtesy" that a caesarean section was to be performed and for confirmation that the nurse in question should be brought in. He also said in evidence that he would have arranged with the hospital reception section for a taxi to be arranged for transport of the scout nurse. He recalled in evidence Dr Mukerjee coming to the theatre prior to the caesarean section. Otherwise Sr Lyons remembers little else of the occasion.
148. Sr Lyons was not asked to turn his mind to these events until some eight years after they occurred, and it is not surprising that his memory is wanting. But he does have some recollection, and it is significant, in my view, that for him it was "just another night". In other words, although he recalls that a caesarean section was needed and that a nurse had to be brought in who was some 40 minutes away, there was nothing about the occasion which impressed upon him that the occasion was of particular urgency. Significantly, he said nothing in his evidence about being aware that the caesarean section which was required was one which followed upon a failed forceps delivery. If he was not so aware, he failed to understand what Sr Collins told him.
149. Sr Lyons also gave evidence that if Dr Mukerjee had impressed upon him that there was a particular emergency, or that the baby's life was at risk, he would have taken other steps. To this he added an important qualification, namely that even if he had been told that theatre was required following a failed forceps delivery, he "would still have got Sr Sharpe".
150. A failure on the part of Sr Lyons to understand the sense of urgency is confirmed by the evidence of Dr Mukerjee (which I accept) that after about 15 minutes following the termination of forceps, he spoke to Sr Lyons (whether this was in the theatre or on the telephone is not clear) and expressed his concern about the delay. However, I do not accept Dr Mukerjee's further evidence that he told Sr Lyons that the caesarean section could proceed without a scout nurse. If Dr Mukerjee had been so specific about that matter and in effect challenged Sr Lyons' authority to delay the operation until the arrival of the scout nurse, I think that Sr Lyons would have had some memory of it.
151. Sr de Britt's evidence is of particular significance on this issue. She said that she was paged and went to a telephone where she was told by a female that a patient was going to theatre "for query a trial of forceps and possible caesarean section", and that she was then paged by Sr Lyons whom she instructed to contact the labour ward in order to find out about the urgency and whether it was "okay" to call in Sr Sharpe. She said that she did this "because I was told it was a trial of forceps and possible caesarean section". She said that Sr Lyons paged her back and told her that "they said call in Sr Sharpe" and that she directed Sr Lyons to do just that.
152. There are some curious aspects of this evidence and I do not accept all of it. What is clear, however, is that Sr de Britt insists that she was told that the theatre was required, not for caesarean section following a failure of forceps, but for a trial of forceps with possible caesarean section. It is difficult to understand why anyone would have told her this and there is nothing from any other witness to suggest that anyone did so. But that is what Sr de Britt understood she was told, and what she understood she was told was of course utterly wrong.
153. Sr de Britt was the last witness to give evidence in a long trial. The last question and answer in cross-examination by Mr. Saccardo on behalf of the plaintiff were nevertheless of great importance and effect: "Would you agree that if you had understood that this was an emergency caesarean for a failed forceps with foetal distress, you would not have waited around for Sr Sharpe to come in? - That's right."
154. It is unlikely in the extreme that Sr Collins was the bearer of a message that the theatre was required for a trial of forceps and possible caesarean section. It is impossible to determine who, if anybody, would have delivered a message of such appalling inaccuracy. The scenario that Sr de Britt misunderstood an accurate message about the need for theatre is as likely as the scenario that she had an accurate understanding of an inaccurate message. The point is that whoever made the mistake, somewhere along the chain of communication among the hospital staff, someone got the message wrong. If Sr de Britt, the one person in the hospital who could have done anything effective about it, had understood that the theatre was needed for caesarean section following failed forceps and not for a trial of forceps with possible caesarean section, then the likelihood is that she would have put in train steps to avoid the delay involved in bringing in the scout nurse. It is likely that if Sr de Britt had properly understood that theatre was required following a failed forceps delivery, then birth and oxygenation would have been effected at a time when major damage to the foetal brain would have been avoided. Whether the error in communication was on the part of Sr de Britt or on the part of someone else on the hospital staff is not to the point. The error was not the error of Dr Mukerjee. It was an error that could have been avoided. It could have been avoided without changing the system and without expenditure of public money. It would have been avoided by the simple exercise of reasonable care in getting the message right. The error fixes liability on the second defendant.
Bias and failure to call witnesses 155. It was submitted on behalf of the plaintiff that inferences adverse to the defendants were to be drawn from the way in which the case had been conducted on their behalf. In general terms the suggestion was made of a virtual conspiracy amongst members of the medical profession (and perhaps with the defendants' solicitors) to conceal misconduct on the part of one of their own profession. A number of professionally qualified persons who were not called to give evidence or whose reports were not in evidence were shown to have been retained or as having given advice or opinions to one or other of the defendants. Counsel for the plaintiff took the course of calling the solicitor for Dr Mukerjee in order to identify some of these persons. It was submitted that in accordance with the principle in Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298 the Court should infer that the evidence of any such person, if called, would not have helped the case of the defendant with whom the person was associated and that the Court should therefore more readily accept the case and evidence presented on behalf of the plaintiff.
156. The principle in Jones v. Dunkel is to be borne in mind when the person concerned might be expected to be called by the party in question and the circumstances justify a conclusion that there has been a failure by that party to call the person to give evidence. But the principle does not have to be applied unless the circumstances warrant. The principle does not require or justify the fact-finding tribunal to speculate as to what the person might have said if called. Moreover, there are all sorts of reasons why a person in the category of an expert might not be called. I have referred in other cases to the desirability of keeping separate the role of professional advisers and that of professional expert witnesses: see Robert Forrester v. Harris Farm Pty Limited and Others (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 2 February 1996). A party to litigation is entitled to obtain professional advice and to the privilege of non-disclosure that it may attract. That advice and any document in which it may be contained is not necessarily admissible at the instance of the party obtaining the advice. If it comes to the knowledge of the opponent, professional advice to a party is not necessarily admissible in evidence at the instance of the opponent. It may be objectionable in substance or in form or both. Furthermore, it is a matter of notoriety that medical witnesses are sometimes simply not available to give evidence, and the absence of a medical witness does not necessarily prove a failure by the party who has consulted the witness. Finally, the time of the Court should not be taken up by calling evidence which simply does not add anything to the case. I prefer to decide the case on the abundant expert evidence before the Court and not to speculate about material which is not before the Court.
157. It was submitted that the report of Professor Beischer, which contains the word "we" more than once, reveals a common interest on the part of the writer and the solicitors to whom the report was directed. However, in my view, a reading of the report as a whole does not leave one with an impression of partiality at all.
158. Apart from the case of Dr Mukerjee himself, who as a party is in a special category, I have no hesitation in saying that I found all the medical experts who gave evidence to be frank and objective and in general the expert evidence on liability was refreshingly free from the special pleading and the elements of advocacy which sometimes creep into expert evidence.
Nature of disabilities 159. For the first two years or so after Samuel's birth the Ren family remained in Canberra. The plaintiff's father completed his doctoral thesis and then took a position as a geologist with a large mining company. In April 1989 the family moved to Parkes in connection with the father's employment and remained there until October 1991. In the interim there were frequent trips back to Canberra for therapy. That was followed by a period in Melbourne from October 1991 to August 1992.
160. Samuel needed total care from his parents during these years. He also received attention from physiotherapists, occupational therapists and paediatricians. Until he was 3 years of age his only independent gross motor skills were resting on his elbows, rolling on soft surfaces and limited walking in a frame. He required special supportive seating, a standing frame, callipers for the ankles and a walking frame for support at armpit level. By that time with considerable effort and the assistance of special therapists he was able to articulate a number of words and received a good deal of help from his parents both in the English and Chinese languages.
161. During this period Samuel's parents obtained permanent residence status which Dr Ren had sought by relying on his own qualifications and skills but also on compassionate grounds arising out of Samuel's condition and Australian citizenship.
162. In 1992 Dr Ren's work took him to Western Australia. Since then the family has been in Perth close to the Sir David Brand Centre, a facility run by the Spastic Welfare Association of Western Australia. At first Samuel attended a primary school which adjoined the Centre, but on advice in 1993 he changed to a mainstream primary school where he was given the assistance of an aide for most of the time. Transport has been supplied either at government expense or at the expense of the Spastic Welfare Association. He has also received physiotherapy weekly as well as occupational and speech therapy at less regular intervals. The cost appears to have been borne by sources outside the family, although his parents have had to pay for transport to and from some of the therapists.
163. Samuel was the subject of observation resulting in a long report by Ms. Sammons, a well qualified occupational therapist, dated 24 February 1993, and I accept the accuracy of her observations. It is not necessary to repeat them in detail. Dr Chauvel reported succinctly at about the same time that Samuel was talking in sentences with an athetoid quality, that his movements were frequent and involuntary, with a rotatory movement with tone variations. In her evidence to the Court, Ms. Sammons described Samuel's movements and disabilities in detail and it is not necessary to repeat it here. It should be noted, however, that she does not expect that he will improve in his ability to walk and that excessive mobility in his left shoulder is tending to reduce the function in his left arm, which up until now has been the better arm. He continues to wear ankle splints. In general terms he is about a year behind children of the same age at his school, but his fine motor skills are very limited indeed and assessed to be no higher than that of a child of 8 months.
164. According to his father, Samuel is improving both physically and intellectually, although as he gets bigger and heavier it becomes more difficult for the parents to lift him or to otherwise lend positive physical assistance.
165. Samuel is affected by considerable gross motor and fine motor disability. But he is not ill. Normally he should not be in pain and he is not basically lacking in intellectual capacity. Ms. Sammons eschewed the use of the term "suffer" in relation to persons with cerebral palsy, presumably in the belief that the use of the term encourages negative attitudes on the part of those persons and on the part of the general community. If that belief is correct, it is possible that persons with cerebral palsy might experience discrimination from others who mistakenly believe that the condition deprives the person of the capacity to engage in social intercourse and of the capacity to benefit from the opportunity to develop intellectual and physical skills. Furthermore, it may well be that uninformed pity fails to accord sufficient dignity to a person with cerebral palsy. Mr. Galbally submitted that for the whole of his life Samuel will live in the knowledge that many in the community will regard him as a "mental defective" and that as a consequence Samuel will be aware and hurt by their attitude and deprived of opportunities and facilities which he is entitled to expect.
166. The various descriptions of Samuel's limitations given in evidence were supplemented by a videotape taken in October 1994 of approximately an hour in length. The videotape records some of the events in a typical day of Samuel's life at the age of 8 years. I was also invited to meet and observe Samuel in the company of counsel in an informal environment in the court building but away from the courtroom and its formalities. Counsel for the parties agreed that the meeting should be treated as in the nature of a view. During that meeting Samuel indicated his willingness and ability to listen to conversational questions appropriate for a boy of his age in such a situation. Through his father he made appropriate responses to questions put. He was able to show how he understood instructions in relation to simple movements and he showed the extent to which he is physically able to carry out such movements. His restrictions are very great indeed. For instance, he is unable to walk unaided, or to crawl, but he can drag himself across a carpeted floor on his knees for a few metres. He has great difficulty in grasping simple objects and retaining control once grasped. He also has great difficulty in getting himself into a sitting position, but with assistance he can sit in a lounge chair or wheel chair and is learning to eat with a suitable utensil. He had great difficulty in using a writing implement, but he can read and with the use of a button switch can operate a computer with his head in order to spell out simple sentences.
167. There is no doubt that Samuel lives in an extraordinarily caring and warm family relationship. He has a young brother, Luke, who was born in May 1994 and the two boys appear to have positive attitudes towards each other. His aunt (a younger sister of his mother) came from China to help his mother in relation to her second pregnancy and she has returned to Australia on a special immigration permit in order to help look after Samuel.
Life expectancy 168. It was submitted that Samuel has ahead of him the ordinary life expectancy of an Australian male his age. According to tables submitted (Exhibit U), this expectancy is of 65.11 years. I note that Table 7 in Luntz, Assessment of Damages for Personal Injury and Death (3rd ed.), of which judicial notice is frequently taken in Australia, shows that the life expectancy of an Australian male aged 10 in 1980 to 1982 was then 62.35 years. The evidence relating to the life expectancy of people with cerebral palsy comes from Dr Harbord, who said that English and American studies of target groups show that children with cerebral palsy who survive to 12 years have an expected life span approaching that of the normal life span. Dr Hopkins, in a report of 5 January 1994, mentions almost in passing that Samuel's life expectancy is "essentially that of a normal individual".
169. However, the scientific basis for the evidence is not very strong. It is not clear whether any member of the target groups has yet died. The studies do not appear to have covered a period longer than 25 years. All that can be said with confidence is that cerebral palsy is not a medical reason for substantially reduced life expectancy. On the other hand, the inference must be open that the disabilities attendant upon cerebral palsy may lead to increased susceptibility to infection and accident. That was the view of Dr Walters. It is really a matter of common sense and I accept it.
170. It is notable that there is no evidence on this aspect from what might be regarded as the most obvious source, namely established life assurance underwriters, whose pragmatic approach might have provided a firm practical guide.
171. Table 3A in Luntz shows the present value of a regular loss of $1 per week to a male aged 10 years ceasing at death (based on the 1980- 1982 tables) and at ages 65 and 60 years. These values are shown at $1,453, $1,369 and $1,325 respectively. Table 2 shows the present value of a loss of $1 per week for 65 years at $1,507.
172. I think that it would be appropriate to use a multiplier of 1500 for every dollar lost for the whole of life when calculating the present value of a loss which has already accrued and which continues into the future, and then to discount for vicissitudes, bearing in mind the increased risk of reduced life expectancy. Conversely, damages for loss of enjoyment of life will be adjusted slightly upwards to allow for that risk.
173. The multipliers for losses which have not yet accrued (for instance the cost of assistance for the purposes of secondary and tertiary education) have to be determined according to when the loss will begin to accrue. They will be discussed as and when appropriate.
General damages 174. As already indicated, Samuel is not ill. His condition does not generally give him pain, although with the passage of time, pressure on particular joints and ligaments may give rise to problems of wear and tear occurring earlier than in persons not subject to the same abnormalities of posture. Psychologically Samuel appears to be bright and cheerful and strongly motivated. But, as Ms. Sammons says, it is for those very reasons that he is likely to feel the sorts of frustrations to which persons with athetosis are subject. If he does not already have considerable insight into his own situation and condition, he will achieve it in time.
175. There is a risk of shortening of expectation of life and exposure to infection and injury through accident, which will be taken into account in the assessment of general damages. That such damages are awarded, not only for pain and suffering, but for what is conventionally called the loss of enjoyment of life, is sufficient indication that money can never provide true compensation in a case where the plaintiff is subject to such severe disabilities. As Grove J said in Lynch v. Lynch (at p.69,101): "[T]here must be a disciplined response by an award within the ambit of current comparable evaluations."
176. I would award $250,000. Of that I would apportion $40,000 to the past for the purpose of interest, bearing in mind that this is an unusual case in which the loss of enjoyment of life lies predominantly in the future.
Loss of earning capacity 177. It was submitted that Samuel will be totally and permanently unemployable and without income earning capacity. That submission is not entirely consistent with the claim that Samuel's intelligence and residual physical skills are such that with appropriate assistance he might be able to complete tertiary education and that he should be awarded the cost of such assistance in order to give him the opportunity to undergo full tertiary education. However, it must follow that if Samuel successfully completes tertiary education, then there will be at least a chance that he will have some marketable income earning capacity. He may also be in a position to avoid some of the costs which would be incurred by other persons with disabilities similar to his but who have less intelligence and education. For instance, if he does successfully complete tertiary education, that in itself would show that he would then be able to take an intelligent and active interest in the investment of his substantial capital assets. Management of a share portfolio with professional guidance could be a worthwhile and interesting way of spending some of his time.
178. Another feature which must be taken into account is what might be called the "China factor". Samuel was born in Australia to parents who were in this country temporarily pursuant to the father's postgraduate scholarship at the Australian National University. The exact nature of the scholarship was not the subject of evidence. The visas issued to the parents were renewable annually and it is likely that their right to remain in Australia would have expired upon the father fulfilling the purpose of the visa by achieving his post-graduate qualifications. The parents may have obtained permission to stay longer (the events of Tiananmen Square were in June 1989) and the birth of Samuel in Australia prior to 20 August 1986 made him an Australian citizen (Australian Citizenship Act 1948, sub-ss.10(1) and (2)). Samuel's Australian citizenship might have enabled his parents to obtain permission to continue to remain in the country with their child even if the child had not been injured. There is evidence of a not very informative kind that various Chinese scholars have remained in Australia after obtaining doctoral qualifications. Ultimately, however, damages for the future must reflect the substantial possibility that, had not Samuel been injured, he and his parents would have returned to China when Samuel was only a few years old. Dr Ren also spoke about considering using his Australian qualifications in order to follow his career in some country other than Australia or China. What Samuel's income-earning capacity would have been but for injury is highly speculative. Whether Samuel's income-earning capacity might have been affected by his exercising his Australian citizenship by returning to live and work in Australia in later life is even more speculative.
179. The claim for loss of earning capacity is made based on annual average weekly earnings in Australia of $740 per week gross, with a margin claimed of 20 percent to allow for the likelihood that Samuel, but for injury, would have earned more than average Australian earnings. This margin is not strongly disputed on behalf of the defendants. It implies a finding of fact that as a child of obviously intelligent and industrious parents, Samuel was likely to have been a more than average income earner. Although the implication suggests, in my view, a somewhat distasteful assumption rather than a finding, that the lives of children of the clever and affluent are worth more than those of the poor and less distinguished, it is in accord with case law: see Luntz, par. 5.3.4.
180. An allowance of $258.40 per week for tax has been made in the plaintiff's figures, the net claim for weekly loss of earning capacity being $629.60. The plaintiff applies a multiplier of 1023.4, which produces a total claim of $644,332.64.
181. The defendants start with a slightly lower figure for gross average weekly wages ($881.40) less an estimate of tax of one-third, making a net weekly figure of about $588. They submit that the calculation should commence from age 24 rather than from age 18, as on the plaintiff's own case he would be undergoing tertiary education until then.
182. The matter is largely one of informed guesswork or discretion. Blackburn CJ called it a "social or value judgment" when awarding $100,000: D'Ambrosio v. De Souza Lima (1985) 60 ACTR 18 at 25, although the preferred approach nowadays appears to be to use figures like average weekly earnings at least as a guide. I propose to use a base figure of $600 net per week to represent Samuel's likely loss of earning capacity commencing between age 18 and 24. There must be a deduction of 25 percent for contingencies including the particular contingencies that I have mentioned.
183. According to the figures in Luntz, 1023.4 is a modest claim for the multiplier. I am unaware of how the plaintiff's advisers arrive at it. According to Luntz, Table 3A, the multiplier from age 18 to 60 is 1214 and from age 24 to age 60 it is 1119. It needs to be remembered that there must be an adjustment by way of reduction for payment now instead of payment when the loss will begin to be incurred, whether at age 18 or at age 24. Appropriate figures for this adjustment at a 3 percent discount rate are found in Luntz Table 1. On my approach the range for loss of earning capacity may be calculated as follows: Age 18 to 60 $600 x 1214 = $728,400 payable 31 March 2004 less 25 percent = $546,300. Present value approx. (Luntz, Table 1) $431,250 Age 24 to 60 $600 x 1119 = $671,400 payable 31 March 2010 less 25 percent = $503,550 Present value approx. (Luntz, Table 1) $332,900.
184. I arrive at a tentative conclusion based on these figures that $400,000 is an appropriate award for loss of earning capacity on the part of the present plaintiff.
185. In Planet Fisheries Pty Limited v. La Rosa [1968] HCA 62; (1968) 119 CLR 118 the High Court ruled that it was not appropriate to have reference to comparable verdicts in assessing damages for personal injuries. The decision in Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 has been regarded as relaxing that ruling, which in any event appears not to have been applied universally: see cases collected in Australian Torts Reporter at para.15-040 and in particular GIO of New South Wales v. Bordiuk (1988) Aust. Torts Reports 80-190 and Moore v. The Canberra Dutch Club Incorp. (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 26 September 1991,).
186. Accordingly, in order to check any provisional award for loss of earning capacity, I have had regard to recent awards of damages to young children who have suffered a total loss of earning capacity, or something close to a total loss. The circumstances as to the hypothetical future earning capacity of an Australian child totally and permanently disabled from birth are not likely to vary greatly from case to case and other awards should provide more than usual guidance to a proper figure. The actual awards, however, do vary. Examples include in this Territory, Pollock (an infant) bhnf Allan Pollock v. Robinson (unreported, Master Hogan, 7 May 1993) where $250,000 was awarded "in accordance with current ideas of fairness and moderation" (at p.23) and Lipovac bhnf Maria Lipovac v. Hamilton Holdings Pty Ltd and Others (unreported, Higgins J, 13 September 1996), where $560,000 was awarded on the assumption that the child would have worked to age 65. In New South Wales in Lynch v. Lynch, Grove J awarded $400,000. In all cases the child had at the time of injury a secure future in Australia. Overall, awards in other cases confirm my provisional assessment on the evidence in the present case of $400,000 for the plaintiff's loss of earning capacity.
Past domestic care 187. This claim for care given gratuitously by members of Samuel's family may be summarised as follows: 1. 30 September 1986 to 31 January 1992, that is from six months after birth to commencement of school. The plaintiff claims 12 hours a day at agreed commercial rates, the total being $264,474. 2. 1 February 1992 to 31 December 1994, a claim is made for eight hours a day during this period at agreed commercial rates. The total is $123,200. 3. 1 January 1995 to 3 September 1996. A claim is made for 7.75 hours increasing to 8.25 hours per week day and 16.25 to 16.75 hours per weekend day at agreed commercial rates. The total claim for the period is $101,346.
188. The aggregate claim then under Griffiths v. Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 to 3 September 1996 on the above figure is just over $489,000, according to the written submissions on behalf of the plaintiff. There is a separate claim for housekeeping. In broad terms, the claim for past care and housekeeping on the part of Samuel's family is in excess of half a million dollars.
189. The response by the defendants to the claim for past care is that from January 1989 to January 1991 the plaintiff's needs would have increased gradually, averaging 25 hours of care per week ($42,900), and that from then until now there has been a diminution of the need for childhood care, so that the proportion of need for care attributable to injury should be taken to have averaged six hours a day, weekends and holidays included ($190,000) with a total for past care of $232,900.
190. It is difficult to arrive at any conclusions of fact based on the evidence which go to support details of the plaintiff's claim, or indeed the defendants' response to it.
191. The plaintiff relies mainly on the evidence of Ms. Sammons. She said that at present Mrs. Ren should give at least five and a half hours of attendant care a day to attend to Samuel's actual needs, increasing to seven hours a day of attendant care after the commencement of school, with an extra allowance when Samuel is at home during school holidays and weekends. That is in addition to at least four hours a week which Ms. Sammons considers necessary for home help to assist with additional cleaning and heavier domestic jobs associated with Samuel's needs.
192. The evidence of Ms. Sammons is not the sort of evidence that has to be accepted simply because it is uncontradicted or because of Browne v. Dunn (1894) 6 R. 67 or Jones v. Dunkel. Well qualified as Ms. Sammons undoubtedly is in occupational therapy, she did not pretend to be a dispassionate observer and she frankly acknowledged that she regards Samuel as a well-deserving plaintiff. Dr Ren gave evidence on these matters after Ms. Sammons had given her evidence-in- chief, but his evidence did little more than to confirm, and even then only in a very cursory way, the figures advanced by Ms. Sammons. In cross-examination Ms. Sammons conceded that there is an "over-lap" of hours of care between those which would have been required in order to attend to the plaintiff even if he had not been injured, and those attributable to the injury, but she pointed out that the very nature of the care is different.
193. It is also appropriate, in my view, to reflect for a moment on the nature of a claim under Griffiths v. Kerkemeyer. Samuel, of course, has never spent or incurred liability for a single cent of the sum to be awarded, and his parents have no claim at law for a single cent of it. Whether the Public Trustee or, in due course, Samuel himself, will see fit to pay his parents out of the money he is to be awarded in respect of the notional cost of the care they provide to him, is not a question with which I need to be concerned at this stage.
194. Ultimately, the state of the evidence and the nature of the claim denies any real arithmetical accuracy to the Griffiths v. Kerkemeyer component. The award must be largely intuitive, but set within the parameters of the evidence, bearing in mind that the plaintiff, however deserving, still bears the onus of showing that what is claimed on his behalf is reasonable. I would award $350,000 under this head.
195. Ms. Sammons also claimed that the plaintiff ought to be awarded a sum to represent four hours per week for housekeeping services carried out by Mrs. Ren over and above the care given to Samuel himself, which she argued were necessitated by Samuel's disabilities. I am not convinced that a claim has been made out in this respect nor that whatever Ms. Sammons had in mind is not covered by the award made in respect of Griffiths v. Kerkemeyer care.
Future domestic and attendant care 196. The claim for future care begins as a claim under Griffiths v. Kerkemeyer and so continues whilst it is expected that the care will be given in the home by Samuel's parents. It becomes a claim for the cost of care provided by outsiders from the time Samuel may be expected to have left his parents' home and to require care which may be expected to be obtained entirely from commercial sources. Subject to the principle that damages are not to be awarded under Griffiths v. Kerkemeyer for mere re-adjustment of domestic arrangements in which household members are likely to assist each other anyway, it should not matter for the purpose of quantum of damages whether the services are rendered gratuitously or commercially. Damages have to be fixed based on commercial rates: Van Gervan v. Fenton [1992] HCA 54; (1992) 175 CLR 327. Although damages for cost of care are assessed in the expectation that the plaintiff will actually expend the damages in order to obtain and pay for the care, damages under Griffiths v. Kerkemeyer are awarded by way of an exercise in valuation and it is no concern of the Court whether the plaintiff is likely to retain the Griffiths v. Kerkemeyer component of his damages or to pay them to the carers. Although the result may be incongruous in some cases (see McKindley v. M.J. Campbell Nominees Pty Limited (unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 5 December 1994), it is the role of the Court to observe the principle in Griffiths v. Kerkemeyer and not to try to find ways to avoid or limit its operation.
197. Accordingly, it is necessary to fix the number of hours in which care is expected to be reasonably required and the commercial rate of remuneration to be applied to it. The defendants claim that it is reasonable to continue to use the rate of $17 per hour which is the agreed rate for past care. That rate does not include agency commission. Whether it is reasonable to expect Samuel's parents or in due course Samuel himself to recruit paid carers other than through an agency, is quite conjectural. The law is that commercial rates apply and Ms. Sammons said that $20 is a reasonable hourly charge for weekdays and $22 for weekends. I propose to apply the higher figures.
198. The plaintiff claims 8.25 hours per weekday and 14 hours per weekend day until 1999, presumably until he reaches high school age. The claim increases to 9.25 hours per weekday and 15 hours per weekend day from 1999 to 2003 (presumably until soon before he reaches 18 years on 31 March 2004). Thereafter, 16 hours per week day plus 16 hours per weekend day is claimed for the remainder of the plaintiff's expected life. In addition, a claim is made for "sleepovers" during the final period, that is, someone to be in the home during the remaining eight hours of the day when Samuel is asleep, in case positive care is required.
199. Sizeable amounts are claimed under this head. The claim for the final period is for 24 hours of care per day, requiring an expenditure of $3164 per week. The aggregate claim is for over $4 million.
200. The defendants concede nearly half the claim. They concede nearly $500,000 (at 60 hours per week at $17 per hour) until 2008. Thereafter they rely upon a scenario in which Samuel is likely to live in shared accommodation, thereby enabling some of the costs of care (particularly sleepovers) to be shared. Reliance was placed on the evidence that in Western Australia individual care supplied at public expense is costed at between $55,000 and $75,000 per annum. At the higher end of the range a loss of $1,346 per week is conceded and the present value of the loss, calculated from the year 2008 for the remaining years of expected life is, according to the defendants' calculation, $1.3 million.
201. As against the total claim on behalf of the plaintiff, allowance has to be made, in my view, for the likelihood that Samuel will not begin to live away from his parents as early as at 18 years of age. He is likely to be cared for by his parents for some years after that. Some of the care that he will receive, so long as he remains at his parents' home, is the sort of care which family members render to each other in any event and which Mrs. Ren in particular would have rendered even if Samuel had not been injured. It is trite to observe that parents who cook and keep house for each other continue to do so even when children who are members of the household become adults. Put at its most obvious, some reduction for the cost of future care would have to be made for the possibility that Samuel would have continued to live with his parents for some time, using the domestic facilities and services that they would no doubt have continued to provide for him even if he had not been injured. I note that Ms. Sammons does not accept this because she says that the nature of the care is radically different. It is different I agree, but not so different that some allowance should not be made. The evidence suggests that it is unlikely that Samuel will need to avail himself of institutional care until he reaches advanced years. However, the possibility that he will do so at an earlier age should be taken into account, with the consequence that care in an institution may not be as expensive as engaging carers whose time and efforts are devoted exclusively to Samuel.
202. A claim for some $17,000 is made in accordance with Ms. Sammons' observation that carers who accompany people like Samuel to the movies or to football matches and the like do not get in for free and that in effect Samuel will have to pay double every time he goes out. There are several comments that can be made with respect to this claim. First I am not convinced that it is true that every organization exacts a double toll in these circumstances, nor that substantial concessions as to the price of admission are not made. Nor is it unreasonable to expect a little give and take towards each other on the part of the carer and the cared. I take this claim into consideration only for the purpose of the following paragraph.
203. Again applying an intuitive approach to the figures and facts, I would award $2,000,000 for the total cost of future domestic and attendant care.
Future therapeutical services 204. What distinguishes the claim for future care from the claim for past care, is that it starts from a regime which is essentially domestically based (and to which Griffiths v. Kerkemeyer applies) to one which is increasingly based outside the home and for which professional persons are likely to be engaged in order to provide not only domestic care but therapeutical services and other assistance. As Ms. Sammons frankly conceded, the extent to which remedial therapy will be successful cannot be confidently predicted. What is claimed is the cost of providing Samuel with the opportunity of being placed as far as possible in the situation of a person without his disabilities. The opportunities that might have existed in the past in this regard have not all been taken mainly because the family lacks the financial means to do so. That lack of means will continue unless and until an award of damages can be the source of payment both for professional therapeutic services and domestic care. It is evident that, until now, Samuel has been receiving care in the community which is no more and no less than that received by other persons with cerebral palsy. If it is reasonable for Samuel to be compensated to the extent that he will be able to pay to engage therapeutic services in excess of what is provided by the community for him and other persons with similar disabilities, and to engage persons outside the family to provide domestic care, it would appear to follow that what the community does for other persons similarly affected by cerebral palsy is unreasonable. The difference appears to be explicable only on the basis that the capacity of the community to pay for such services is limited whereas the capacity of a defendant to pay is regarded as unlimited. Where, as in this case, the defendant which is responsible is in essence the community itself, there is a paradox which a trial judge is incapable of resolving.
205. The professional therapeutic services for which claim is made are as follows: Physiotherapy 1996 to 2003 multiplier 340.3 x 4 hours per $155,653 week at $115.90 per hour From 2004 to multiplier 1133.4 x 2 hours $65,680 $221,333 death per month at $115.90 per hour ($57.95 per week) Occupational therapy 1996 to 2003 multiplier 340.3 x 4 hours per $163,344 week at $120 per hour From 2004 to multiplier 1133.4 x 2 hours per $68,004 $231,348 death month at $120 per hour ($60 per week) Speech therapy 1996 to 2003 multiplier 340.3 x 4 hours per $155,653 week at $114.35 per hour From 2004 to multiplier 1133.4 x 2 hours per $65,680 $221,333 death month at $114.35 per hour ($57 per week) Total: $674,014
206. No challenge is made to the rates claimed nor to the arithmetic.
207. The defendants claim that four hours a week should be allowed until age 22 (the year 2008) for all three therapies combined and thereafter two hours a week until age 50 only. I do not see the basis for the defendants disputing that the plaintiff will reasonably require some sort of therapy for the rest of his life, although the degree of assistance required is likely to diminish in his adult years until the plaintiff reaches the stage of middle to old age. By then at least it may well be that the plaintiff's abnormalities in posture will produce early stiffness of joints, arthritic problems and the like.
208. I take into account a claim for cost of annual membership of the Western Australian Cerebral Palsy Association. The actual cost is by no means clear. I make allowance for it in the global sum awarded under this head.
209. Again, there must be a largely intuitive approach to the figures upon which reliance has been made. I propose to take the total sum claimed by the plaintiff and reduce it by approximately one third for reduced expectation of life and contingencies to $450,000.
Respite care 210. The plaintiff claims for a sum to pay for the cost of engaging care from commercial sources at such times as his parents need a break from continuing to have to attend to his needs. This is a reasonable claim but it can be made only in respect of long periods when the plaintiff is living with his parents. The need for respite care would not arise during such times as Samuel was living elsewhere. A sum of just over $20,000 is claimed for four weeks per year. Whilst I think that some allowance should be made for this factor, it does not seem to me to lie outside the general claim for future care and although the defendants are prepared to concede $32,000 ($66 x 489 in round figures) if this factor is to be the subject of a separate award, I do not propose to make it such.
Future home help 211. A claim is made for approximately $100,000 for home help not provided by a personal carer. I am not convinced that it is unreasonable to expect that a personal carer in the home would attend to ordinary matters of housekeeping, cooking, washing and the like, but to allow for such exigencies, I allow a modest sum of $10,000.
Educational assistance 212. A claim is made for a personal aide to be present to assist the plaintiff in communicating at school and during tertiary education from 1996 to 2003 for 6.5 hours per day for five days a week. I note that the plaintiff is at present receiving assistance of this nature for a substantial amount of time at school at public expense (as I understand it, he is regarded as receiving eight-tenths of the time of a full-time aide). There is no reason to believe that such assistance will be terminated or that his parents will have to start paying for it before he starts high school. No allowance appears to have been made for the lack of need during school holidays and university or college vacations. If the plaintiff is successful in his use of the information technology for which the cost is claimed and for which damages will put him in funds, then the technology may well reduce the need for a personal aide in the latter years of his education. A claim is made for $221,195. I award $100,000.
Initial capital cost of motor vehicle 213. A vehicle suited for transporting Samuel in a wheelchair will be necessary when his parents are no longer able to lift him in and out of the vehicle which the family presently uses. Evidence was given of the cost of purchasing such a vehicle with maximum adaptation to suit the plaintiff's need at 1996 values of $62,156. The acquisition of such a vehicle to suit Samuel would avoid the need for the family to acquire a second family vehicle such as a sedan of medium size costing about $33,400, which in the ordinary course of a middle-class Australian family life probably would have happened. On this approach the extra cost is about $29,000 for the initial purchase. This will be discounted to $25,000, as the evidence does not establish that the vehicle needs to be purchased immediately nor when it would have been that a second family vehicle would have been acquired if Samuel had not been injured.
Initial capital cost of remedial equipment 214. Ms. Sammons supplied a long and detailed shopping list of a large number of items of equipment and the like which she said were reasonably necessary to enable Samuel to minimise his disabilities and to maximise his enjoyment of life whilst recognizing that they would provide only an opportunity for Samuel in this regard and that no matter how successful the use of such equipment, Samuel's life would always be seriously affected. The equipment suggested ranged from special clothing to state-of-the-art information technology.
215. Ms. Sammons' evidence included broad details of pricing of the various items. The prices were not accompanied by manufacturers' or retailers' invoices or any documentation of that nature. Whilst I accept that Ms. Sammons' evidence was given in good faith, it is obvious that in general the prices given are in the nature of estimates.
216. It is difficult to know how to treat the evidence of Ms. Sammons either as to what is needed or what it will cost. However, the defendants were not able to put up any convincing arguments about why Ms. Sammons' evidence should be rejected generally and only some of the items were the subject of particular objection or criticism.
217. The total claim for the cost of the initial purchase of the remedial equipment is, according to the plaintiff's oral and written submissions, $89,345. The defendants in their written submissions state this figure as $87,747. I propose to take these figures as a guide, with a reduction for the likelihood that some of the items would never in fact be acquired. An example is the $20,000 claim for a ceiling hoist, which would enable the plaintiff to move from room to room in the house in which it was installed and enable him to be lowered in and out of the bath and bed. The price itself appears to be only a very rough estimate. A decision to purchase or install the item might never be made, for all sorts of reasons. The house may not be structurally sound enough or it may be found likely to add to the inconvenience of Samuel and those with whom he will be living rather than to reduce it. Further, the plaintiff claims the cost of a portable electric hoist at $1,895 in addition to the permanent installation. Some of the equipment is also likely to be supplied in any event at public expense. Some of the equipment is not likely to be required for several years in the future. The defendants concede that $50,000 is reasonable under this head and I am not persuaded that more is justified. I award $50,000 under this head.
218. The cost of a mobile telephone is claimed separately, but I include it under this head. As I am not convinced that a young man of Samuel's generation would not acquire a mobile telephone anyway, a modest allowance only is included.
Ongoing cost of equipment 219. For replacement and maintenance of the equipment, a total of $738,112 (including future equipment capital cost of $812 and future mobile telephone cost of $11,892, but not including future costs associated with the motor vehicle) is claimed. The defendants' written submissions list this figure as $820,406, but Mr. Bongiorno in evidence indicated that it may not be accurate.
220. I propose to deal with this aspect by allowing a depreciation factor of 12( percent per annum on the capital sum for initial cost of $50,000 for the rest of Samuel's expected life. Without going through the multitude of items in Ms. Sammons' list, it appears that the expected life of the various items of the equipment ranges from 1 to 10 years. The depreciation factor would allow for replacement at appropriate intervals.
221. A notional sum of $6,250 per annum or about $120 per week applied to a multiplier of 1500 gives a present value of $180,000. I would reduce this by 20 percent for contingencies (a lower reduction than in the case of assessing loss of earning capacity because the factors relevant to future needs are somewhat less uncertain than factors relevant to loss of earning capacity).
222. An allowance for depreciation in order to cover the need to replace the motor vehicle from time to time also needs to be made. I would allow $72,000 (12(% of $25,000 is $3,125 per annum or about $60 per week x multiplier of 1500, less 20 percent for contingencies) for replacement of the vehicle, which added to the sum of $144,000 for replacement of other equipment would give a total of $216,000.
223. The defendants concede that $233,000 is appropriate for replacement of equipment. I do not accept some of the figures on which they make that calculation (it appears to exclude future costs of the motor vehicle). However, it is close to my own provisional assessment, and the plaintiff has not shown that it is unreasonably low. I propose to award it.
Cost of management of fund 224. Application was made on behalf of the plaintiff that there be added to the conventional award of damages, for inclusion in the ultimate judgment sum, a component to represent the cost of management and investment of the aggregate of the sums awarded under the usual heads of damages. That aggregate is $4,069,462.53. In New South Wales allowance has been made for the cost of fund management, which represents the difference between, on the one hand, what is likely to be expended by a person whose incapacity to manage the fund results from the defendant's wrongdoing and, on the other hand, what a person of ordinary capacity would have been likely to spend in seeking expert advice on the management of the fund: Treonne Wholesale Meats Pty Ltd v. Shaheen (1988) 12 NSWLR 522. See also Campbell v. Nangle (1985) 40 SASR 161 especially at p.193.
225. In Nominal Defendant v. Gardikiotis (1996) 136 ALR 1 the High Court held that the Court of Appeal was in error in Treonne in restricting recovery to the difference between the actual expense of fund management and the expense that would be incurred by a person of unimpaired intelligence. The High Court emphasized that each case has to be decided on the principle that the defendant is liable only for expense which is the consequence of the physical or mental harm that has resulted from the defendant's negligence. In the short majority judgment it was acknowledged that the expenses of fund management were recoverable by a plaintiff intellectually impaired as a result of the defendant's wrongdoing "or by reason of some pre-existing disability" (p.3). In a separate judgment Gummow J at p.14 expressed a similar view in relation to a situation where the plaintiff's inability to manage his or her affairs results from the wrong or is antecedent to it, being the result of legal disability or some other cause.
226. In this jurisdiction a claim for the cost of fund management was allowed by the Master in Grincelis bhnf Tadas Grincelis v. House (unreported, Master Hogan, 8 December 1995) where the adult plaintiff's inability to manage the fund was directly due to brain injury caused by the defendant's negligence.
227. The claim in the present case is a modest one and does not seek to go beyond the age of 18 years when the plaintiff will achieve legal capacity. The need to have the fund managed during the interim period does not arise from any incapacity on the part of the plaintiff attributable to his injury but is recoverable in accordance with the dicta in Gardikiotis. The Public Trustee's charges are a once only 1 percent on capital received for investment and an annual charge of 5 percent on the gross income thereafter. Evidence of an alternative method of charging as used by a trustee subsidiary of a bank was also put forward. However, it was so complex that neither the witness nor the parties were able to suggest whether it was more or less expensive than the method used by the Public Trustee. In any event, the Public Trustee will in fact have the management of Samuel's money at least until he is 18 years old. I propose to apply the rates that the Public Trustee will charge, bearing in mind that the fund invested is likely to be depleted over the period because of necessary payments to be made by the Public Trustee for the cost of care, therapy, equipment and the like, and to the Public Trustee for annual management charges.
228. In Grincelis, Master Hogan allowed management fees on an expected investment of about $3.5 million at 8 percent per annum interest. The annual management fee to be charged was estimated to be about $14,000. That appears to me to be a proper start for the purposes of the present case, bearing in mind that complete mathematical accuracy is impossible. The present value of a loss of that measure for nearly 8 years into the future (about $270 per week x 372) is about $100,000. In the expectation that some of the fund would be depleted in the meantime, I think that $80,000 is appropriate for future fund management, with no adjustment for the fact that that amount itself must be included in the initial total fund which the Public Trustee will have to manage. In addition there is the 1 percent initial charge, still to be assessed, which I propose to be ordered to be deducted by the Public Trustee in order to avoid an application by the Public Trustee for payment to the Public Trustee upon receipt of the funds. The initial charge may therefore be excluded from calculation for the purpose of future fund management.
Damages summarised 229. In summary then, the damages proposed to be awarded are as follows: General damages $250,000.00 Loss of earning capacity $400,000.00 Past domestic care $350,000.00 Future domestic and attendant care $2,000,000.00 Future therapeutical services $450,000.00 Future home help $10,000.00 Educational assistance $100,000.00 Initial capital cost of motor vehicle $25,000.00 Initial capital cost of remedial equipment $50,000.00 Future cost of equipment $233,000.00 Past medical expenses, etc (agreed) $2,808.00 Past travel and accommodation (agreed) $22,710.00 Past remedial equipment (agreed) $3,600.00 Residential building costs (agreed) $110,000.00 Interest on past general damages $62,344.53 Cost of future fund management $80,000.00 Total: $4,149,462.53
230. This is, on the face of it, an appropriate sum of damages to award in all the circumstances. For the purpose of judgment, I propose to add the Public Trustee's initial charge for fund management. I propose that there be paid to the plaintiff's parents jointly the sum of $200,000 on account of the amount awarded under Griffiths v. Kerkemeyer and a further sum of $29,118 representing the total of the agreed amounts paid by them on Samuel's behalf for medical expenses and the like, travel and accommodation and remedial equipment. I propose that the remainder of $3,920,344.53 together with the Public Trustee's initial 1 percent management fee of $39,203.45 (total $3,959,547.98) be paid to the Public Trustee.
231. I propose therefore that the plaintiff be at liberty to enter judgment against the second defendant for $4,188,665.98 and that the judgment sum be dealt with as indicated.
232. I propose to order that the first defendant have judgment against the plaintiff. I propose to order that the second defendant pay the plaintiff's costs. I propose to order that the contribution proceedings brought by each defendant against the other be dismissed with no order as to costs. I adjourn until 18 December 1996 at 10 a.m. the question of the first defendant's costs in the action.
233. Before pronouncing formal orders I give the parties leave to apply on that date in respect of any suggested mathematical error and in respect of the terms of the orders.
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