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Supreme Court of the ACT Decisions |
Last Updated: 28 April 2004
[2004] ACTSC 9 (19 MARCH 2004)
NEGLIGENCE - medical negligence - care of mother prior to birth of child - failure to order a repeat ultrasound at 18-20 weeks of pregnancy - failure to inspect cervical suture - whether failure amounted to negligence
NEGLIGENCE - medical negligence - high risk pregnancy - whether medical practitioner was informed by nursing staff of large bleed of mother - whether condition of mother should have been ascertained by medical practitioner- whether medical practitioner should have attended hospital sooner
NEGLIGENCE - medical negligence - failure to ascertain history of event that brought mother into hospital -whether medical practitioner palpated mother's abdomen to ascertain engagement of baby's head before conducting a vaginal examination-whether medical practitioner was negligent
NEGLIGENCE - medical negligence - whether medical practitioner was justified in proceeding in the manner he did - delay in proceeding to Caesarean section after diagnosis of vasa praevia - whether negligent
NEGLIGENCE - medical negligence - high-risk pregnancy - risk of harm - foreseeability in the context of rarely occurring condition - association of rare condition of vasa praevia with placenta praevia
DAMAGES - child born with cerebral palsy - gross physical and mental impairment - life expectancy - expert evidence - lack of mobility affecting life expectancy - reduction from normal life expectancy - appropriate damages calculation
DAMAGES - loss of earning capacity - no work history - difficulty of assessment - statistical material used for average weekly earnings of adult workforce
DAMAGES - Griffiths v Kerkemeyer - commercial cost of services provided - provision of care by parents - no discount because parents would have given the care in any event - Black v Lipovac [1998] 699 FCA (Unreported) 4 June 1998 applied
DAMAGES - profoundly disabled plaintiff - provision of care when parents unable to provide present care - consideration as to appropriateness of government provided community living facilities - allowance made for time when parents unable to provide care
Supreme Court Act 1933 (ACT), s 69
Beischer N A and Mackay E V, Obstetrics and the New Born for Midwives and Medical
Students, Holt-Saunders Pty Ltd, 1976
MacGillivray, I, Combined Text Book of Obstetrics and Gynaecology, 1976
Llewellyn Jones, Fundamentals of Obstetrics and Gynaecology, 2nd ed, 1978
Donald, I, Practical Obstetric Problems, 5th ed, 1979
Dewhurst , CJ (Ed), Integrated Obstetrics and Gynaecology for Post Graduates, 1976
Kouyoumdjian A "Velamentous insertion of the umbilical cord" (1980) 56 Obstetrics and Gynecology 737
Strauss and Shavelle, Life Expectancy of Adults with Cerebral Palsy, Journal Of Developmental Medicine and Child Neurology, 1998, Vol 40 369
Eyman., Richard K, Crossman., Herbert J, Chaney., Robert H and Call., Thomas L, Survival of Profoundly Disabled People with Severe Mental Retardation, American Journal of the Disabled Child, March 1993, Vol 147
Long-Term Survival of Children and Adolescents after Traumatic Brain Injury, Archives of Physical Medicine and Rehabilitation, Vol 79, September 1998
Crichton, McKinnon and White, The Life Expectancy of People with Cerebral Palsy, Developmental Medicine and Child Neurology (1995) Vol 37 567
Strauss, Shavelle, Anderson Long-Term Survival of Children and Adolescents After Traumatic Brain Injury
Luntz Assessment of Damages and Personal Injury and Death, (4th ed) 2002
X and Y (by her tutor X v Pal and others (1991) 23 NSWLR 26
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Burnie Port Authorities v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520
Jolly v Sutton London Borough Council [2000] UKHL 31; [2000] 3 All ER 409
Nader v Urban Transit Authority of NSW [1985] 2 NSWLR 501
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
Bennet v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383
Simpson v Diamond [2001] NSWSC 925, 5 November 2001
Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94
Hawkins v Lindsley (1974) 4 ALR 697
D'Ambrosio v de Souza Lima (1985) 60 ACTR 18
MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Stewart v Jacobson (2000) 31 MVR 450
Osborne v Kelly (1993) 61 SASR 308
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Black v Lipovac [1998] FCA 699 (Unreported) 4 June 1998
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Kars v Kars [1996] HCA 37; (1996) 187 CLR 354
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
Rosniak v The Government Insurance Office (1997) 41 NSWLR 608
GIO (NSW) v Mackie (1990) ATR 81-053
Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518
Lainie Radovanovic bhnf Anton Radovanovic
Bryan Cutter and Ors [2001] ACTSC 16 (1 March 2001)
No. SC 1005 of 1985
Judge: Gray J
Supreme Court of the ACT
Date: 19 March 2004
IN THE SUPREME COURT OF THE )
) No. SC 1005 of 1985
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: LAINIE RADOVANOVIC by her next friend and father
ANTON RADOVANOVIC
Plaintiff
AND: BRYAN CUTTER
First Defendant
AND: AUSTRALIAN CAPITAL TERRITORY
Second Defendant
Judge: Gray J
Date of Judgment: 19 March 2004
Place: Canberra
THE COURT ORDERS THAT:
1. There be judgment for the plaintiff against the first defendant.
2. The plaintiff's claim against the second defendant be dismissed.
3. The first defendants cross claim against the second defendant be dismissed.
Heading Paragraph No.
Introduction [1]
The particulars of negligence [4]
The plaintiff's summary of allegations [7]
The factual issues [9]
The circumstances giving rise to the claim [10]
High risk pregnancy [12]
The ultrasound [13]
The Shirodkar suture [15]
The first bleed [16]
The admission to hospital [18]
The telephone call to Dr Cutter [19]
Dr Cutter's attendance at the hospital [22]
The events that gave rise to the plaintiff's injury [24]
Vasa praevia [26]
Timing of the events before the Caesarean section [27]
Dr Cutter's notes of the events [28]
Knowledge of the bleed at home [32]
Placenta praevia [39]
Expert evidence on management [41]
The engagement of the head [45]
The decision to rupture the membranes [49]
Abdominal palpation [52]
Duty of care on the hospital [58]
The duty to ascertain the fact of the large bleed at home [61]
Dr Cutter's position [68]
The possible diagnosis of placenta praevia [71]
Expected duration of labour [82]
Other aspects of alleged negligence before Mrs Radovanovic's
admission to hospital [84]
The cervical suture [85]
A repeat ultrasound [89]
After the decision to rupture the membranes; delay in proceeding
to Caesarean section [91]
The timing of the brain damage to the plaintiff [98]
Dr Harbord's initial view [100]
Dr Antony's view [101]
Discussion of views on the timing of the brain damage [103]
Resolution of the time at which brain damage occurred [111]
The duty of care [115]
The duty of care in this case [119]
Breach of duty of care [124]
The scope of the duty of care and issues of remoteness [128]
Association of vasa praevia and placenta praevia [132]
Foreseeability of the kind of damage [135]
Damages [142]
The injuries sustained [143]
The video [147]
Life expectancy [149]
Dr Harbord's evidence on life expectancy [154]
Dr Buckley [155]
Dr Bowers [156]
Professor Oakeshott [158]
Dr Antony's evidence on life expectancy [160]
The studies on life expectancies [166]
The conclusion as to life expectancy [170]
Relevant dates and interest calculations [175]
Delay [177]
General damages [179]
PAST COSTS
Past costs [181]
Medical and hospital expenses [182]
Podiatry [188]
Clothing, equipment and aids [190]
Home modifications [201]
Travelling expenses [211]
Respite care (not paid by the defendants) [212]
FUTURE COSTS
Medical and hospital expenses - [216]
Future pharmaceutical expenses [228]
Future physiotherapy [229]
Speech pathology [230]
Occupational therapy [231]
Music therapy [233]
Psychology [234]
Podiatry [235]
Dentistry [236]
Clothing equipment and aids [237]
Future home modifications [254]
Motor vehicle modifications and transport [263]
Increased holiday costs [268]
Past Griffiths and Kerkemeyer damages [271]
Future Care [277]
Loss of earning capacity [287]
Fund management [294]
Costs [295]
Proposed orders [298]
Introduction
1. Lainie Radovanovic, who is now 24 years of age, sues by her next friend, her father Anton Radovanovic. She was born with cerebral palsy. The first defendant, Dr Brian Cutter, was the specialist gynaecologist who attended the plaintiff's mother, Cherie Radovanovic. The second defendant was responsible for the Woden Valley Hospital where the plaintiff's mother attended for the birth. The plaintiff was born at the hospital on 28 January 1980.
2. It is not in contest that the plaintiff's cerebral palsy is attributable to the brain damage that she sustained at her birth. What is in contest is whether the first and second defendants were negligent in their management and treatment of the plaintiff and her mother and whether any failure by them of their duty of care caused that brain damage.
3. Proceedings were instituted in this matter in 1985. Over this considerable period of time since the proceedings were instituted the particulars of negligence alleged against the defendants have been extensively amended and many of the allegations that may have constituted negligence have not been pursued. The plaintiff's counsel now put their case in somewhat narrower terms than the particulars which remain, but I do not understand that the wider propositions involved in those particulars to have been abandoned but rather to still remain relevant to the way that the plaintiff's counsel summarise their allegations.
The particulars of negligence
4. As far as the first defendant, Dr Cutter, is concerned, the particulars are:
* Failing within a reasonable time or at all to diagnose foetal distress in the Plaintiff and hence to decide to deliver the Plaintiff immediately by Caesarean section (Statement of Claim 7(a)).
* Conducting an inadequate examination of the Plaintiff's mother shortly prior to the birth when he knew or ought to have known that emergency procedures would or might become necessary (7(i)).
* Given the mother's history, failing to arrange for admission of the mother for the Caesarean operation as soon as she suffered the first antepartum haemorrhage (7(k)).
* Failing to arrange for a Caesarean birth immediately upon the occurrence of the second antepartum haemorrhage (7(o)).
* Failing to ensure that there were available emergency facilities for operating, including blood transfusion at the time of conducting a per vaginum examination (7(q)).
* Failing to recognise the progressive dilation of the cervix to 2-3 centimetres by 27 January 1980 by regular examination during the later stages of pregnancy (7(aa)).
* Failing to order repeat ultrasound at 18-20 weeks gestation and thus failing to detect the possibility of placenta praevia (7(ab)).
* Failing to order or perform ultrasound examination of the mother late in pregnancy and/or following the mother's first antepartum haemorrhage (7(abb)).
* Failing to attend upon the mother immediately upon her admission to hospital (7(ac)).
* Failing to take a full and accurate history of the first antepartum per vaginum haemorrhage suffered by the mother (7(ad)).
* Failing to adequately consider the possibility of a placenta praevia which necessitated the access to an operating theatre at extremely short notice after the on-set of labour (7(af)).
* Failing to ensure that the mother was taken to an operating theatre upon the on-set of labour to carry out an immediate Caesarean and/or to carry out a vaginal examination to confirm or exclude the possibility of a placenta praevia as the cause of the first antepartum haemorrhage (7(ag)).
* Rupturing the mother's membranes when in labour in the absence of exploring the possibility of a placenta praevia and in the absence of having an operating theatre ready (7(ah)).
* Rupturing the mother's membranes and conducting a vaginal examination in the labour ward rather than the operating theatre (7(ai)).
* During the course of the mother's admission and particularly at the time of the rupture of the membranes, failing to consider the possibility of placenta praevia notwithstanding his belief that the Plaintiff's head was engaged (7(ak)).
* During the course of the mother's admission and particularly at the time of the rupture of the membranes, wrongly excluding, or failing to consider, a diagnosis of placenta praevia on the mistaken belief that the Plaintiff's head was permanently engaged (7(al)).
5. As far as the second defendant, the hospital, is concerned, the particulars relied upon are:
* Failing to alert the First Defendant that the first antepartum haemorrhage suffered by the mother was painless and significant (and thus putting the First Defendant on notice of possible placenta praevia) (7(ab)).
* Failing to accurately convey the mother's history of the first antepartum haemorrhage to the First Defendant (7(ac)).
6. The precipitating factor which caused the plaintiff's mother to attend the hospital was the antepartum haemorrhage that she sustained at home on the evening of 27 January 1980 which is referred to in the plaintiff's summary of allegations.
The plaintiff's summary of allegations
7. In the plaintiff's written submissions, the allegations against Dr Cutter are summarised as:
(a) Given the significant nature of the first antepartum haemorrhage (APH) and the consequent presumption of placenta praevia in the context of a high risk pregnancy, failing to arrange an immediate Caesarean section when notified of that bleed;
(b) Even if it were reasonable, in the context of a high risk pregnancy, to consider vaginal delivery and augmentation of labour with artificial rupture of membranes (AROM), failing first to exclude a placenta praevia by conducting a digital vaginal examination in an operating theatre set up to proceed, if required, to an immediate Caesarean section before then proceeding to vaginal delivery and AROM; and
(c) Unreasonably delaying the decision to proceed with the Caesarean section after rupturing the membranes at 11.55 pm on 27 January 1980.
8. Those allegations against the hospital are summarised as:
* Failure of midwives Alexander and Patacca to inform Dr Cutter fully about the first APH and, if it is accepted that all information was provided, failure of the midwives to provide the information in a way which would not mislead Dr Cutter into believing that the first APH was insignificant.
The factual issues
9. The passage of time has immensely complicated the factual issues in this case. The difficulties of imperfect memory and the deficiencies of the contemporaneous records, particularly those which Dr Cutter acknowledges he should have made, makes formidable the task of determining the factual matrix against which the duty of care and any causative effect of what might be argued to be a breach of that duty. If proper records were available, it may have been easier to support the customary practice which was so heavily relied upon to support Dr Cutter's actions. Without those records the resolution of this matter relies upon testimony that is unsupported by any external, evidence but rather requires a best estimate being made of whether the witness would have followed the usual practice that the witness customarily followed in such circumstances.
The circumstances giving rise to the claim
10. At an early stage in her pregnancy, Mrs Radovanovic was referred by her general practitioner to Dr Cutter. Dr Cutter had graduated with an MBBS in 1961 and had commenced practising as a specialist obstetrician/gynaecologist at the Crown Street Hospital for women in Sydney as a resident medical officer and later a Registrar from 1965 to 1968. He became a member of the Royal College of Obstetricians and Gynaecologists in London in 1968. He commenced private specialist practice in Canberra in December 1970. He was a visiting medical officer at each of the Canberra Hospitals from that time.
11. On 26 June 1979, Mrs Radovanovic first saw Dr Cutter. She had been referred by her general practitioner but she presented with a letter from Dr Deck, a specialist gynaecologist. Her past obstetric history included a premature birth in November 1970 after 46 hours of labour, and later a spontaneous miscarriage and then, consequent upon a bus accident, a very late miscarriage or early premature birth in respect of which she had complications and required a blood transfusion. In respect of her last pregnancy, she had a Shirodkar suture put in to deal with a suspected incompetent cervix after 16 weeks of pregnancy. A month later, Dr Deck had curetted her and diagnosed a missed abortion. Dr Cutter's notes made at the time of her visit also recorded a past history of pancreatitis which, if confirmed, showed an increased risk of diabetes developing in a subsequent pregnancy.
High risk pregnancy
12. It is common ground that Mrs Radovanovic's pregnancy was "high risk". That, at the least, meant that special care and attention should be given to anything untoward that occurred to her in the course of her pregnancy. On this aspect, there seemed general agreement by the parties and by all the experts called. This was acknowledged by Dr Cutter. One early circumstance that required attention was the suspected incompetent cervix and that was dealt with by Cr Cutter also inserting a suture to prevent dilation of the cervix during this pregnancy. However, no other untoward circumstance occurred until the occurrence which brought Mrs Radovanovic into the hospital. I will later discuss the high-risk pregnancy in that context.
The ultrasound
13. At an early stage, Dr Cutter ordered an ultrasound. That was performed in the first trimester of pregnancy on 5 July 1979. The Ultrasonographer, Dr Richard Picker, the Director of the Ultrasound Department, Royal North Shore Hospital in his report suggested a gestational age of seven weeks. The report stated, "Repeat study at 18-20 weeks may be advisable to follow foetal growth and more accurately assess foetal gestational age".
14. No subsequent ultrasound was, in fact, ordered by Dr Cutter. The plaintiff maintains, as a particular of negligence, the failure to do so either then or on Mrs Radovanovic's ultimate admission to hospital on the basis that such a test at that time had the capacity to indicate the position of the placenta. It is said that the presence of the placenta in the lower uterine sector of the uterus could have had significant consequences for the way that Mrs Radovanovic's pregnancy was to be managed.
The Shirodkar suture
15. On 30 August 1979 (although his notes record 29/8), Dr Cutter inserted a suture to prevent dilation of Mrs Radovanovic's cervix. The suture was described as a Shirodkar suture, although there was debate as to whether it fulfilled that description by the medical experts. What Dr Cutter did was described by him in detail. The suture actually inserted was of type less prone to failure than perhaps the type of one described as a MacDonald suture and that is a more important aspect than its classification. A very significant issue is whether the suture could have been the cause of the bleeding that precipitated Mrs Radovanovic's admission to the hospital. Another aspect is whether the suture should have been regularly examined in the later stages of the pregnancy and the consequences that might have ensued had it been.
The first bleed
16. On 27 January 1980, at about 10.00 pm, after finishing dinner with friends, Mrs Radovanovic laughed and felt a sudden gush of blood. She had blood seeping through her shorts and running down her legs onto the carpet. She got towels, showered and was taken to the hospital. Her evidence was that when she was in the shower she was still bleeding but it was more like a menstrual flow. She was still bleeding a little after the shower and she used a sanitary pad to contain it. Her friend, Mrs Corvo, confirmed that there was a lot of blood. She saw it and it was she who rinsed out the towel and Mrs Radovanovic's clothing.
17. I have no hesitation in accepting Mrs Radovanovic's evidence on this and the other topics upon which she gave evidence. She was an impressive witness and despite the passage of time, the nature of the event and the way that she gave her evidence indicated a clear and unmistaken recall of the events. The question of the extent of the blood loss plays a vitally important part in the resolution of this matter, not only because Dr Cutter says that he was not told of it, but also because the expert evidence of Professor Bennett and Dr Patterson, called for the defence, is largely dependent on the assessments that they made on the basis of their presumption that Dr Cutter knew the extent of the blood loss.
The admission to hospital
18. When Mrs Radovanovic was admitted to the Canberra Hospital at 10.30 pm on that night, she was attended by a trained experienced midwife, Sister Alexander. Sister Alexander now has no recollection at all of Mrs Radovanovic's admission. Her evidence was based solely on her usual practice and the notes she made in the hospital records on that night. That is hardly surprising as it seems that she was first asked to recall these events about 17 years after they had occurred and that she had ceased duty about half an hour after Mrs Radovanovic was admitted and before Mrs Radovanovic had commenced labour.
The telephone call to Dr Cutter
19. The notes that Sister Alexander made on the admission form indicate that she telephoned Dr Cutter at 10.45 pm. By reference to those notes and to her usual practice, she was able to say that she would have informed the doctor that Mrs Radovanovic had been admitted with bright blood on her sanitary pad, blood pressure 110/80, a pulse of 80, that foetal heart sounds were present with a foetal heart rate of 132 beats per minute and that there were no contractions. The notes also contain the notation "not palpated" and Sister Alexander said that she would not have told the doctor of the position of the baby because she did not palpate the patient. Palpation involves feeling the patient's abdomen with a view to ascertaining the position of the baby's head. Under the heading "History", this notation appears -
H/O L/A - (sudden gush) of blood loss @ homeOA - S/A bright blood on pad
Sister Alexander explained those notations as meaning -
History of large amount (sudden gush) of blood loss at home.On admission - small amount bright blood on pad.
Based upon that notation and her usual practice, Sister Alexander said that she would have told the doctor that the patient had a large blood loss at home and present on her pad at the moment there was a small amount of bright blood.
20. Dr Cutter, who had been in bed at the time he received the call, consistently maintains that he was never told of the large bleed at home. In the notes that he made after the events of that evening, he recorded an "APH" (antipartem haemorrhage) which he said could be taken to mean a bleed as little as a "show". Dr Cutter said that had he been told of a large blood loss, he would have immediately ordered cross-matching of blood and come into the hospital. Instead, his instruction to Sister Alexander was for him to be informed if any contractions occurred or there was any excessive bleeding and he also instructed that the patient's blood be cross-matched in the morning. There is a note in a red and blue biro to that effect in Sister Alexander's handwriting in the hospital notes. They are clearly the instructions that he gave.
21. Mrs Radovanovic gave evidence that she heard what Sister Alexander said to Dr Cutter in the course of that telephone call. Her recollection is that Sister Alexander told Dr Cutter that she (Mrs Radovanovic) was there, that she also said that Mrs Radovanovic had said that she had a heavy bleed at home, however there was only a slight bleed at the time and that she had no pain. Mrs Radovanovic further said that she felt put out because the tone that the nurse had used when she spoke to Dr Cutter was that she (Mrs Radovanovic) had said that she had had a heavy bleed at home as if she had imagined it. Although it was suggested that the set-up of the hospital would not have permitted Mrs Radovanovic to overhear the conversation that took place between Sister Alexander and Dr Cutter, I consider that I can rely upon this evidence from Mrs Radovanovic. There is a combination of factors at play here. What I suspect was the reticence of Sister Alexander to disturb Dr Cutter in relation to a patient who had presented without contractions and with no abnormal signs, taken with Dr Cutter's reliance upon and respect for the judgment of Sister Alexander as an experienced and competent midwife. It was put in argument that these factors may have minimised or did not register in Dr Cutter's mind the significance of the event which brought Mrs Radovanovic into the hospital and I am inclined to think that may have been the case. I consider that is significant that Sister Alexander did not, on Mrs Radovanovic's admission to the hospital, palpate her abdomen to ascertain the baby's position presumably because of the history of the bleed. That indicates positive consciousness of the information concerning the heavy bleed on Sister Alexander's part. Further, no evidence was given by either Sister Alexander or Dr Cutter as to the conversation that they had which indicated the position of the baby on admission although this information would normally be expected to be given and received. In the event, the consequence was that Dr Cutter did not know of or consider the significance of the bleed which had brought Mrs Radovanovic to the hospital, nor did he attend the hospital as a consequence of that telephone call.
Dr Cutter's attendance at the hospital
22. About half an hour after the telephone call that Sister Alexander had made to Dr Cutter, at about 11:15pm, Mrs Radovanovic commenced to feel contractions. Dr Cutter was again contacted by telephone and within a short time he attended at the hospital.
23. Sister Alexander had completed a hand-over to another midwife who had come on duty, Sister Patacca. In the course of that handover she said that she would have described to Sister Patacca the history of bleeding that had occurred. In the patient's progress notes, Sister Alexander had noted a history of a large PV (per vagina) bleed at home. Whether Sister Patacca had that information verbally from Sister Alexander, or as I think could have been the case, from the progress notes, I am satisfied that at the time Dr Cutter came to the hospital she had that information. That is important because at no stage does it appear that Dr Cutter sought from her that history, nor did he seek it from Mrs Radovanovic, nor did he consult the patient's progress notes which would have revealed that history. I accept that Dr Cutter's usual practice on attending the hospital was to make full enquiry of both the patient and the attending midwife, but in light of the fact that he maintains that he was unaware of the extent of Mrs Radovanovic's bleed, on this occasion, he could not have done so. I take this to be a failure to ascertain what he should have ascertained either from his patient, the attending midwifes or the hospital notes. The effect of this failure goes to the heart of the determination of liability in this case.
The events that gave rise to the plaintiff's injury
24. The practical effect was that Dr Cutter treated Mrs Radovanovic as a patient in labour in a standard pregnancy with the only complication being that she had a cervical suture in place. He took it as his duty to remove the suture and to proceed to delivery. Mrs Radovanovic had been placed on a table in the labour ward with her feet in stirrups. Having cut out the suture, Dr Cutter ruptured the membranes to facilitate the labour. That action led to disastrous consequences. When the membranes ruptured, there was a gush of liquor and blood which was Dr Cutter described as "bright, fresh and abnormally large and there was liquor with it". At this stage, Mrs Radovanovic was lying on her back with her feet in the stirrups. The midwife heard "very, very slow" foetal heart sounds. Mrs Radovanovic was taken down from the stirrups and the doctor and nurse attempted to listen again for foetal heart sounds. They were possibly assisted by a trainee nurse. There were two Sonicaids used and the foetal heart sounds were again heard, although described again as "very slow", and a decision was made to do a Caesarean section.
25. The diagnosis made by Dr Cutter immediately after he ruptured the membranes was that of a rupture of a vasa praevia. That rare condition occurs when the umbilical vessels insert into the foetal membranes. If they run in that part of the membranes which overlies the cervix, they tear at the time that the membranes are ruptured. The bleeding is from the foetus, not from the placenta, and places the foetus in great jeopardy.
Vasa praevia
26. All the experts called by both the plaintiff and the defendants agreed with Dr Cutter's diagnosis. Of the plaintiff's experts, Professor Beischer gave the most detailed description and he gave evidence that in about 1:1000 cases the foetal vessels, rather than inserting into the middle of the placenta, insert on the actual membranes around the placenta and run between the two membranes to lie in front of the presenting part (in this case the baby's head). Another of the plaintiff's witnesses, Dr Beavis' was of the view that the incidence of vasa praevia was 1:3000 but on any view he said that it was an uncommon complication. He described the condition as the insertion in a velamentous fashion (a veil-like spreading) by the foetal vessels spreading into the placenta. If the membranes are ruptured the vessels tear and the baby bleeds. As a generalisation Dr Beavis said that the amount of blood loss initially is difficult, if not impossible, to estimate because of the liquor that is mixed in with it. Professor Beischer was of the view that vasa praevia was almost invariably associated with placenta praevia and this is an issue which I deal with later. All of the experts were agreed that there is generally a very high mortality rate for the foetus. In this case, it became common ground that the exsanguination consequent upon the rupture had the disastrous consequence of causing the plaintiff's cerebral palsy.
Timing of the events before the Caesarean section
27. Dr Cutter performed the artificial rupture of the membranes at about 11.55 pm. Although in his evidence Dr Cutter thought that the time that he spent listening for foetal heart sounds before making a decision to perform the Caesarean operation was about 10 minutes, his notes and all the other indications seem to suggest that it was more like 20 minutes. The Caesarean section was commenced at 12.35 am on 28 January 1980 and the plaintiff was delivered within five minutes at 12.40 am. The plaintiff was born with cerebral palsy. It is accepted on all sides that the exsanguination which occurred consequent upon the rupture of the vasa praevia directly caused that condition. That is because the brain was deprived of blood. However, the question of whether the brain damage occurred within a relatively short time of the rupture of the vasa praevia or somewhat later, consequential upon the cardiac arrest which the plaintiff suffered shortly after her birth, was the subject of competing expert evidence from Doctors Harboard and Anthony and I shall later deal with the effect and significance of that circumstance.
Dr Cutter's notes of the events
28. Understandably, with the passage of time Dr Cutter and the two midwives, Sisters Alexander and Patacca, could only refer to their usual practice where their memory was unassisted by notes made at or near the time. I have referred to the notes made by Sister Alexander concerning Mrs Radovanovic's admission and based on those notes I consider it unlikely that Dr Cutter was not informed of the matters contained in those notes. Dr Cutter's contemporaneous note making was however woefully inadequate, especially having regard to the significance of the event. His relatively contemporaneous subsequent written explanations are also deficient in their lack of explanation of matters that I consider should have been addressed.
29. Dr Cutter's own clinical records, written up shortly after the event, record:
28.1.80 Admitted with APH [ante partem haemorrhage] Shirodkar Suture removed ARM [artificial rupture of membranes] [diagnosis] Vasa Praevia FHS [foetal heart sounds] [descending] 40 LSCS [lower Caesarean section] GA Major [the anaesthetist]. Baby exsanguinated and given transfusion in theatre Repeat ultrasound later by A Crawford. Apgar 1:1.3 Lippes loop had perforated thro fundus. Not confirmed on ultrasound left ovarian cyst, [therefore] left oophorectomy [excision]. Note IUCD [intro uterine contraceptive device] in situ.
30. On 24 March 1980 Dr Cutter had a consultation with Mrs Radovanovic as part of the post-natal check up. Mr Radovanovic also attended that consultation. Both Mr and Mrs Radovanovic raised matters that they said that the paediatrician had told them. Dr Cutter made notes of this conversation and those notes, inadequate though they still might said to be, were the most detailed recollection that exists as far as Dr Cutter is concerned concerning the events of the plaintiff's birth. These notes were said to have been compiled without reference to the hospital notes although some of the detail of what is set out as to what Dr Cutter was told on Mrs Radovanovic's admission would seem to indicate otherwise. I do not doubt that Dr Cutter now believes that he recalls that detail but I think it more likely that over time he has come to believe it rather than to recollect it. If he did access the hospital notes for the purposes of this note he conspicuously fails to account for why he did not know of the heavy bleed at home to which Mrs Radovanovic refers or acknowledge that he was unaware of it. I set out in full the notes that Dr Cutter made consequential upon that consultation:
24/3/80 Seen for post natal check where I was accused of negligence on the following grounds:1. Because Mrs Radovanovic was a high risk she should have been an inpatient near term.
Note ultrasound on 5.7.79 ~ 7/52 gestation.
2. That Mrs Radovanovic bled heavily at home on night of admission and that I should not have relied on a trained midwife's assessment but should have come immediately to the hospital on her admission. They stated that the paediatrician told them.
(a) that a heavy bleed could not have occurred from a cervical suture.
(b) that the long delay between the commencement of the haemorrhage from the baby and the caesarean section caused the brain damage to the child; and
(c) If he knew how bad the baby was he would not have resuscitated it.
My comments are made in retrospect and my recollections of the time prior to being called are hazy. Certainly I can recall the details after being called to see the patient in great detail because of the drama and tragedy of the event which followed.
The patient was admitted to the delivery suite at 10.30 pm on 27 January 1980 and I was notified at 10.45 pm and was told of her presence and that:
(1) her BP [blood pressure] was 110/80;
(2) pulse 80/min;
(3) FHS [foetal heart sounds] 132/min;
(4) bright blood on sanitary pad; and
(5) that there were no contractions.
I made the comment that if the blood loss increases or if the patient commences having contractions to notify me immediately. Some time later and I do not know what the time was I was notified that uterine contractions had recommenced.
I immediately got out of my bed and went to the delivery suite and proceeded to do what I normally do in patients who have Shirodkar sutures.
The patient was noted to be in no distress and the FHS were 130/min. After scrubbing up the patient's legs were placed in stirrups so that she was in the lithotomy position.
She was examined with a Cusco [speculum] position (sic) and the cervix was noted to be 2-3 cms in diameter, and there was some blood in the vagina, which I felt was coming from the cervix. The Shirodkar suture was cut out under vision and I proceeded to do a PV [vaginal examination]. At PV she had a bulging bag of membranes so I artificially ruptured them in an effort to get the patient into good labour. This is my routine management of such cases with a Shirodkar suture.
After rupture of the membranes there was a gush of bright blood. We immediately listened to the FHS [foetal heart sounds] and they were astoundingly at 40/min. We proceeded to lower the legs from the stirrups so that the patient was flat on her back and we relistened to the foetal heart sounds. We could not hear them despite using the sonic aid and the usual foetal stethoscope. After about twenty minutes we finally felt a movement and heard the foetal heart sound which once again was 40 beats/min. At this time we immediately proceeded to caesarean section without delay and delivered a female baby which appeared to be exanguinated and had an Apgar [Apgar score, a measurement of the condition of a newly born infant] rating of 1. The baby was resuscitated by the anaesthetist (Dr Major) until the paediatrician arrived 10 minutes later.
The caesarean section was commenced at 12.35 am and this was despite the fact that theatre staff and anaesthetist had to come to the hospital. Also at the Caesarean section it was noted that Mrs Radovanovic had an intrauterine device which had previously perforated the top of the uterus, and a left ovarian cystic mass.
The intrauterine device was removed and the left ovary was taken out for a dermoid cyst. Post operatively the mother's course was uneventful.
At the time I was obviously distressed and on analysis of the situation I considered that I would manage a similar case in the same way.
The diagnosis of Vasa Praevia was made as soon as the membranes were artificially ruptured. It was not considered before as it is not uncommon for Shirodkar suture to bleed and there was no recognisable foetal distress prior to the ARM. [artificial rupture of membranes].
Mr Radovanovic asked me why I did not proceed immediately from ARM to LSCS [lower Caesarean section]. I told him that as we could not hear foetal heart sounds despite every means available to us I did not feel that I could risk a possibly dangerous operation if I thought the baby was dead.
Mr Radovanovic persisted in saying that the bleeding seen at home came from the baby despite me saying that there was no foetal distress prior to rupturing the membranes and that there was a considerable bright haemorrhage on rupturing the membranes. Also prior to the ARM it was considered that the bleeding was coming from the cervix.
31. On 5 February 1980 he had written to Dr Deck, a specialist obstetrician, practising in the Australian Capital Territory who had referred Mrs Radovanovic to him. That letter said:
We have had a disaster with Mrs Radovanovic.
As you know she had a poor obstetrical history and I inserted a Shirodkar suture under general anaesthetic because of cervix dilating at 15 weeks gestation. The pregnancy was uneventful until she was admitted to hospital on the 28th January at 39 weeks gestation with an APH which I presumed to be coming from the suture as she was in early labour. We removed the suture, the bleeding continued, I ruptured the membranes and within 5 minutes the foetal heart sounds were down to 40 and the diagnosis of vasa praevia was made. Despite the fact that it was 1am on a Sunday morning there wasn't too much delay in getting to theatre but it wasn't without its hassles. We did a caesarean section and delivered an exsanguinated baby with an Apgar of 1. Tony Crawford was in the theatre and infused the baby at that time and although the baby is alive it appears to have severe neurological damage and frankly I hope it doesn't survive. I feel that I didn't do too much good last Sunday.
She had a Lippi's loop which had perforated the uterus and was sitting up like a single hair on a bald head and she also had a left ovarian cyst which seemed to be a mucinous cystadenoma.
Apart from the caesarection I did a left oophorectomy.
Mrs. Radovanovic is in Royal Canberra Hospital with the baby and will be transferred home in a couple of day's time.
At the time he wrote Dr Cutter had had access to the hospital notes yet there is no elaboration as to why he should have presumed the "APH" to be coming from the suture when as he now says, he was not considering a large blood loss. Nor is there any indication that such a presumption was made on the understanding of only a small blood loss. In his evidence he agreed that the reference to Mrs Radovanovic being in early labour was wrong. The letter also quite curiously refers to the bleeding continuing after he removed the suture when this is not the way Dr Cutter described the events in his evidence before me.
Knowledge of the bleed at home
32. I consider firstly whether either of the defendants breached their duty of care to the plaintiff in respect of the fact that Dr Cutter was unaware of the fact of the history of a significant antepartum haemorrhage as the precipitating factor that brought Mrs Radovanovic into the hospital. A central matter following on is whether Dr Cutter was entitled to proceed as he did in dealing with Mrs Radovanovic having regard to the fact that at the time that he dealt with her he says that he was unaware that she had a large bleed at home which was in fact painless.
33. As I have said, Dr Cutter proceeded on the basis that he had no knowledge of a large bleed at home. It was suggested by counsel, that the knowledge was not communicated to Dr Cutter by Sister Alexander in such a way as to perhaps necessarily bring it to his immediate attention. In considering that aspect I accept Dr Cutter's evidence that had he known of this bleed, he would have immediately come to the hospital and before doing so he would have ordered cross-matching of blood. He did neither and this is certainly consistent with this matter not having impacted upon him.
34. However, an aspect that points to Dr Cutter not paying the attention that he should have to Sister Alexander's report to him is the knowledge that he had of Mrs Radovanovic's obstetric history. He might have thought it justifiable for Mrs Radovanovic to attend the hospital on the first "show" of blood. But if so he could have been expected to inquire whether this in fact was the case or whether there was something, apart from the "show", that had brought her to the hospital. After all, in every other aspect there was no other reason for her to present herself at the hospital at that hour of night when she was clearly not experiencing contractions. Particularly having regard to Mrs Radovanovic's evidence of what she overheard of the telephone conversation between Sister Alexander and Dr Cutter I am satisfied that Sister Alexander did that which she was required to do and that is to report to Dr Cutter the history of the large bleed at home.
35. I am also satisfied that Sister Pattaca had obtained the information about the large bleed at home on hand-over from Sister Alexander, who had left the hospital before Mrs Radovanovic came into labour, and that the hospital notes to which she could have had regard, reflected the history of a large amount "(sudden gush) of blood loss" at home. Whilst Dr Cutter's usual practice was to talk to the midwife and to the patient to obtain the presenting history, he does not remember doing so in this case. I would not regard it as sister Pattaca's responsibility to bring that circumstance to Dr Cutter's attention unless she was asked about Mrs Radovanovic's condition. He maintains that whatever Sister Pattaca did tell him, she did not tell him anything about a large bleed at home. That may be so, but I am satisfied that that is because he did not seek the information, which could have been provided by either Sister Pattaca, Mrs Radovanovic or the hospital notes. It seems to me that that was his responsibility and in that he failed.
36. I have referred to Mr and Mrs Radovanovic seeing Dr Cutter on 24 March 1980, within a month of the event, to seek an explanation of what had happened on that night. Dr Cutter records in his notes on that consultation that the allegation was made that Mrs Radovanovic "bled heavily at home on night of admission". It is, in my view, significant that nowhere in his noted response to the allegations made (which forms the basis of all his subsequent statements of what took place on that night) does he deal with the consequence of this allegation as far as the duty of the midwives is concerned. At the end of his notes is this sentence, "Also prior to the ARM it was considered that the bleeding was coming from the cervix" which might be taken to be a reference to Dr Cutter's understanding of the course of the previous bleed which brought Mrs Radovanovic to the hospital. If that observation was predicated on Dr Cutter's understanding of a small bleed it, at least deserved some reconsideration on the basis of Mrs Radovanovic allegation on 24 March 1980 that it has been a large bleed. Whilst I would not necessarily expect a notation to the effect that Dr Cutter had been misled by the midwives, I would expect more justification or explanation responsive to Mrs Radovanovic's assertions than were recorded by Dr Cutter. As I have said those assertions were that "Mrs Radovanovic bled heavily at home on the night of admission" and his note also that the paediatrician had told Mr and Mrs Radovanovic that "a heavy bleed could not have occurred from a cervical suture". The notes that Dr Cutter then made do not justify or seek to explain Dr Cutter's view that he had proceeded that night on the basis of only a small loss of blood as the explanation for Mrs Radovanovic seeking admission to the hospital.
37. I have also noted that in the letter to the referring specialist, Dr Deck, written on 5 February 1980, Dr Cutter had referred to Mrs Radovanovic's admission to hospital "with an APH [antepartum haemorrhage] which I presumed to be coming from the suture as she was in early labour". As I have indicated that explanation also does not sit well with the description of the bleed in the hospital notes of "large PV [per vaginum] bleed at home" of which Dr Cutter says he was by then aware. It also does not sit well with Dr Cutter's own knowledge of bleeding from cervical sutures of the nature that he had inserted and which, he said, he had only experienced in circumstances where there had been an onset of labour which could be assigned to contractions putting pressure on the stitch. Mrs Radovanovic was admitted before her contractions had commenced. It seems to me that Dr Cutter has always closed his mind to the probability that he was informed of the large bleed and has chosen to reject such a possibility. I am satisfied that he was told of this fact by Sister Alexander.
38. I am satisfied that the large bleed at home suffered by Mrs Radovanovic was adequately drawn to Dr Cutter's attention and importantly, that Dr Cutter failed to make proper enquiry as to this aspect in respect of his patient and that factor had a direct bearing on his actions. The effect, as far as Dr Cutter was concerned, was to not give rise to the possibility of placenta praevia of any degree as a differential diagnosis in his management of Mrs Radovanovic.
Placenta praevia
39. The fact that Mrs Radovanovic had a large bleed was an important aspect for her diagnosis and management. The only concerning factor in Mrs Radovanovic's history when she presented to the hospital was the large blood loss. As far as diagnosis is concerned, as was stressed throughout the trial of this matter, it is axiomatic that, any painless bleeding in the second half of pregnancy is assumed to be due to placenta praevia until proved otherwise. Placenta praevia is a condition in which the placenta is abnormally located in the lower uterine segment of the uterus. The placenta encroaches upon the os (the opening in the vaginal part of the neck of the uterus). In a standard text book available at time of these events to which I was referred, Beischer N A and Mackay E V Obstetrics and the New Born for Midwives and Medical Students Holt-Saunders Pty Ltd, 1976, a book co-authored by Professor Norman Beischer, one of the expert witnesses called by the plaintiff, the types of placenta praevia are described at pages 119-120 as follows -
Types(i) First degree. Part of the placenta lies in the lower segment, but does not reach the internal os (lateral). (ii) Second degree. The lower margin of the placenta reaches the internal os, but does not cover it (marginal). (iii) Third degree. The placenta covers the os when closed, but not completely when it is dilated (partial). (iv) Fourth degree. The placenta lies centrally over the os (central).
The significance of the different types lies in the increasing morbidity and mortality to mother and foetus as the placenta becomes more centrally placed. As the lower segment of the uterus forms in the latter half of pregnancy, the placenta tends to become sheared off: the more centrally it is situated over the os, the earlier the haemorrhage and the greater the amount.
40. The placenta may be implanted on the front (anterior) surface of the uterus or the back (posterior) surface of the uterus. The position of the baby depends on the site of implantation of the placenta. Where a haemorrhage occurs referrable to this condition there may, at any stage, be a very profuse haemorrhage. The outstanding feature of placenta praevia is a haemorrhage without significant abdominal pain or tenderness.
Expert evidence on management
41. The steps taken by Dr Cutter in respect of his management of Mrs Radovanovic were the subject of detailed expert evidence from medical practitioners whose qualifications and experience, both in practice and academically in the field of obstetrics, were unchallenged. I also place the defendant, Dr Cutter, in that category although, for obvious reasons, his opinions and conclusions must be weighed in the context of him being a party to these proceedings. The plaintiff called Professor Norman Beischer, the present director and chairman of the Medical Research Foundation for Women and Babies and co-author of a standard text-book, Obstetrics and the New Born for Midwives and Medical Students (supra), a distinguished academic and teacher, Professor Ian MacGillivray, a visiting Professor of the Departments of Obstetrics and Child Health at the University of Bristol and who had been Regis Professor of Obstetrics and Gynaecology at the University of Aberdeen between 1965 and 1984 during which time he was visiting Professor at a number of universities and institutions including the Royal North Shore Hospital, Sydney. He too was a co-author of a textbook, Combined Text Book of Obstetrics and Gynaecology, published in 1976. In addition, the plaintiff relied upon reports of Dr Edward Beavis and the video cross-examination of Dr Beavis on those reports conducted when he was in hospital suffering from polyneurone disease, shortly before his death. Dr Beavis was a very experienced and well-renowned obstetrician.
42. On this aspect, the first defendant supported by the second defendant called Professor Michael Bennett, Professor of Obstetrics and Gynaecology, Head of the School of Obstetrics and Gynaecology, University of New South Wales, Royal Hospital for Women at Randwick. The first defendant also called Dr William Patterson, at present a consultant obstetrician and gynaecologist at the Royal North Shore Hospital in Sydney, who has had considerable practical experience as a specialist obstetrician and gynaecologist since 1962 and has been a clinical teacher with the University of New South Wales from that date.
43. The views as to the proper management of Mrs Radovanovic held by the plaintiff's witnesses are diametrically opposed to those held by the witnesses called by the first defendant. This would appear to substantially result from the stance that each took as to what they speculated as to Dr Cutter's state of mind and knowledge at the time of the events. That speculation was based upon the quite inadequate notes that Dr Cutter made at the time of the events and was compounded by the deficiencies in his responses when challenged a month or so after the event by Mrs Radovanovic. An important aspect is that those materials did not clearly indicate that at the time he was proceeding to attend to Mrs Radovanovic in the labour ward, he was completely unaware of the large bleed that had brought Mrs Radovanovic into the hospital. In addition, all of the relatively contemporaneous writings of Dr Cutter lack the detail that one might expect considering the catastrophic nature of the event.
44. The plaintiff's experts proceeded on the assumption that Dr Cutter had been informed about a large painless bleed at home and took the view that certain actions were required of him. In fact, Dr Cutter maintains (although, as I keep saying, his notes do not reflect this) that he was not told of the extent of that bleed and remained unaware of it until sometime after the events. The evidence given by Professor Bennett and Dr Patterson supporting his case as to the proper management and treatment was also predicated on an assumption that Dr Cutter had knowledge of a significant bleed having brought Mrs Radovanovic to the hospital and on it being entirely reasonable for Dr Cutter to have assumed that bleed came from the suture that he had inserted and to which he had made passing reference in the post-event letter that he wrote to Dr Deck and somewhat elliptically in the notes of the response that he made to Mrs Radovanovic in the consultation on 24 March 1980.
The engagement of the head
45. The other aspect which affected the approach of the experts to the management of Mrs Radovanovic was the question of whether the baby's head was engaged in the mother's pelvis before Dr Cutter examined her in the hospital. Again, Dr Cutter's notes are unhappily deficient on this aspect. Engagement of the head occurs when the greatest diameter of the baby's head has passed through the pelvic brim. The pelvic brim is the inlet of the pelvis and, when engaged, about two centimetres of the baby's head is able to be felt in the mother's abdomen. It is felt by gentle palpation of the abdomen. It is an important matter and is noted if it occurs in antenatal visits. It is not expected that the head will become engaged in a multiparous (having had more than one child) patient such as Mrs Radovanovic until labour occurs and even then, sometimes not until the second stage of labour or when birth is imminent.
46. In the present case, there is nothing in the notes made after the event which would indicate that the head was engaged at the time of Dr Cutter's examination of Mrs Radovanovic in the hospital. The antenatal notes, in respect of entries that were made on 7, 16 and 23 January 1980 indicate that Dr Cutter's locum, Dr Penny Roberts-Tompson, found engagement of the head on 7 January 1980. On 16 January 1980 Dr Cutter noted that the head was presenting and on 23 January that the head had engaged. There was general agreement amongst the experts that engagement of the baby's head would exclude a diagnosis of a major degree of placenta praevia (that is in the third and fourth degree described in para [39]).
47. Because it would appear to have arisen for the first time during the hearing of this matter, the question of whether, and in what circumstances, the head engagement would have excluded a diagnosis of a major degree of placenta praevia, although touched upon briefly in cross examination, was not really canvassed through the plaintiff's witnesses. That is probably attributable to the length of time that it has taken to bring these proceedings to hearing and the fact that it was not made clear that Dr Cutter maintained that he was unaware of the large bleed at home. At no stage was it suggested by Dr Cutter that the question played any part in his diagnostic approach. At no stage during the events did he assert that he was consciously aware of this circumstance although he now maintains that the presence of an engaged head justified his actions. Its relevance ultimately goes to questions of management rather than diagnosis. After the question became an issue, considerable time was spent concerning the question of whether or not the head may have disengaged given that the plaintiff was a small baby (with a small head), that Mrs Radovanovic was multiparous and that there was a "bulging bag of membranes" felt by Dr Cutter during his vaginal examination. It seems to me that for these purposes it is sufficient to accept the concessions made by witnesses called for the defence, Professor Bennett and Dr Patterson, that the engagement of the head did not, however, exclude a minor degree of placenta praevia.
48. The issue of the potential existence of any degree of placenta praevia becomes extremely relevant to how Dr Cutter should have proceeded in the absence of any suspicion in his mind of its possible presence. The question of the engagement of the baby's head is but one of the factors. In cross-examination, Dr Patterson was asked about the true engagement of the head in circumstances where it had been ascertained that there was a bulging bag of membranes and as to that circumstance being compatible with a head that is fitting snugly or a head that is engaged. He was asked, 2648-2649-
And I think that you have also said that the bulging bag of membranes would have had within it liquor? - - - Yes.And that liquor would have come from the uterus? - - - Come from the liquor pool, yes.
In which the foetus was floating? - - - Certainly.
And doesn't the appearance of a bulging bag of membranes in that situation suggest that there was some pressure from within the uterus to push out that bulging bag of membranes? - - - Yes.
And that indicates, does it not, that the foetal head was not either fully engaged in the pelvic area or there was sufficient of a gap between the foetal head and the cervix to enable the liquor to escape inside the bulging bag of membranes? - - - Fluid to pass between the pelvic wall and - well, on one side and the head, to allow for - fluid to get down, could seep down there, certainly.
And if fluid could get down then blood could get down, outside the membranes? - - - If there had been some sort of haemorrhage outside it's possible for blood to get down there too.
Right and that's what happens in a placental bleed, isn't it? - - - Yes.
So that even on all the assumptions you've made, then placental bleed was still possible for Mrs Radovanovic when she was in the labour ward being examined by Dr Cutter? - - - I would have to say yes but I would like to qualify that.
Please do? - - - At that stage of the clinical examination he would have got to the stage of examining because he felt there was a local cause, otherwise he wouldn't be justified in doing it.
Right? - - - And so I am only happy to clarify it for the court that ...
No, no doctor. I am not trying to stop you at any time from offering your opinion. So viewing the cervix, the gentle speculum examination that took place confirmed his diagnosis that the bleeding was coming from the cervix and the engaged head really precluded any significant contribution to the patient's hazard by any degree of placenta praevia. In other words, once he had looked at the cervix he saw the bleeding associated with the stitch and that validated the subsequent clinical steps. He saw the damage to the external surface of the cervix? - - - At that stage he saw that, yes.
And that's a necessary step in your reasoning, is it doctor? - - It is.
The decision to rupture the membranes
49. The importance of that exchange is to direct attention to how vital a role the bleeding that had brought Mrs Radovanovic into the hospital played in the decision making process. In Dr Patterson's view, in all the circumstances that justified Dr Cutter proceeding on the basis of a bleed attributable to the stitch cutting out. At that stage Dr Cutter was proceeding only on the basis of what he took to be a small blood loss and not the sort of haemorrhage that had been described to Sister Alexander. A further matter of moment is Mrs Radovanovic's assertion in her evidence that after Dr Cutter removed the stitch he told Mrs Radovanovic that he would wait until morning before rupturing the membranes. She felt disappointment at this. She then says that "he put his hand back inside me to examine me". That clearly indicates to me that Dr Cutter did not make a conscious decision to rupture the membranes before he commenced a vaginal examination of Mrs Radovanovic. It may also be taken as an indication that he had not ascertained that the baby's head was engaged before that vaginal examination, for his evidence was that his invariable practice was to not consider rupturing the membranes unless he had ascertained that the head was engaged. In any event, it is clear that he did conduct the digital vaginal examination that he regarded as routine in respect of women in labour and without any consideration given to any possible presence of placenta praevia. His evidence was that the purpose of the examination was to assess the state of the cervix, the state of the pelvis, the level of presentation of the head and the presence or absence of membranes. It was a procedure that he undertook in circumstances where there was no suspicion of the existence of a placenta praevia. It should also be noted, at no stage, has Dr Cutter asserted a recollection that he knew that the head was engaged before he conducted that examination and for reasons that I go on to express, I find that he did not palpate Mrs Radovanovic, which might have disclosed the engagement of the head upon him doing so. He relies upon his usual practice that he would not have ruptured the membranes unless he had satisfied himself that the head was engaged. I am prepared to accept that, but that begs the question of whether, in the circumstances of this case, he may have conducted a digital vaginal examination without ascertaining the fact that the head was engaged.
50. As I have said he was proceeding without any suspicion of any degree of placenta praevia and the question that must be asked is whether, in circumstances where there is a state of affairs which should have given rise to a suspicion of the presence of a placenta praevia of any degree, a digital vaginal examination in the labour ward as opposed to such an examination taking place in an operating theatre could ever be justified. The experts called by the plaintiff were firmly of the view that it could not.
51. Dr Cutter was adamant that he would not have artificially ruptured the membranes if he was not certain that he had ascertained that the baby's head was engaged. However, I just do not have any confidence in the fact that he ascertained the head engagement by abdominal palpation. His notes do not record that circumstance and one would have expected that they would have or, at least, that circumstance would have been raised at some stage before the hearing of this matter as a justification for the course that he in fact took. Mrs Radovanovic does not recall palpation and she gave clear evidence of her feet being placed in stirrups preparatory to delivery. On admission Sister Alexander specifically recorded in the notes "not palpated". Sister Patacca gave evidence that at no stage did she palpate Mrs Radovanovic and she gave no evidence that Dr Cutter did. Dr Cutter's first recollection on attendance at the hospital is removing the stitch and examining the cervix when Mrs Radovanovic had been draped and her feet placed in stirrups. It is apparent from the evidence that Mrs Radovanovic and Sister Patacca gave, that it was the nurses who placed her in the stirrups, in the lithotomy position, ready for Dr Cutter to remove the stitch. Neither Mrs Radovanovic nor Sister Patacca gave evidence of any form of examination conducted by Dr Cutter before Mrs Radovanovic was placed in that position.
Abdominal palpation
52. Dr Cutter was unable to recall at all what happened when he attended the hospital and before he commenced to remove the stitch he had inserted in the cervix except by reference to his "usual practice". Accordingly, he could not say from whom he had obtained his patient's history or what steps he had taken prior to removing the stitch. His evidence by reference to his usual practice of what he would have done was to this effect-
...What was your usual practice in relation to patients who had Shirodkar sutures in 1980 that you refer to in this note?--- I would talk to the patient, I would examine the patient to assess the uterus, the abdomen, the baby, where the baby was, how well the baby was, before deciding to go the next step, which is to go and scrub up and make arrangements to take the stitch out.
... Right. And when you say that you would have examined the patient, you've told us the purpose of the examination. Could you tell us what the examination involved you doing?---It involves palpation very similar to which I described at my antenatal visit.
When you've said, "examined the uterus," I think your note referred to wellbeing and where the baby was, can you just - in a situation such as this, at least by reference to your usual practice at the time, is where the baby is of any particular significance?---Yes, because I would want to know whether it was a head down, whether the baby's head was below the pelvic rim, whether it was engaged or not engaged.
All right. And by reference to your usual practice at the time, in circumstances such as this, are you able to tell us the difficulty or otherwise in ascertaining that fact, the fact of engagement or not?---I believe the head is either engaged or it isn't engaged, and it's usually very easy to tell.
And with the benefit of the hospital notes, and your own notes, is there anything there that would indicate any difficulty in ascertaining whether or not the head was engaged in the event of you following your usual practice as you've described? --- No.
53. He then gave evidence of his usual practice in scrubbing up, and being helped into a gown and gloves. It was then, he said, the patient would be put up in stirrups and in the lithotomy position. His evidence thereafter was that he recalled conducting a vaginal examination and he gave evidence of the rupture of the membranes and the consequences which followed upon that.
54. I am not satisfied that the events occurred in the way that Dr Cutter described as his usual practice. There is no doubt that Mrs Radovanovic having gone into labour, the removal of the stitch was a priority. Sister Pattacca had been told, by Dr Cutter, when she called him into the hospital or by another staff member, to set up for the removal of the suture and had done so. Although she said Dr Cutter spoke to Mrs Radovanovic when he came in she does not recall any examination taking place. There are no notes or any indication anywhere that Dr Cutter ascertained a history from Mrs Radovanovic. There is no evidence that Dr Cutter obtained such a history from any staff member on his attendance at the hospital. At that stage there was a clear priority with Mrs Radovanovic in labour to remove the stitch.
55. That priority is also significant in connection with Dr Cutter's usual practice to abdominally examine the patient before proceeding to "usual management", in this case the removal of the stitch. I am satisfied that the hospital staff had set Mrs Radovanovic up for the removal of stitch prior to Dr Cutter coming to the hospital. Although Sister Patacca was not clear as to whether this was occasioned by a request to her from Dr Cutter on her phoning him or by instruction from another staff member, but it seems the set up had been completed and Mrs Radovanovic placed in the delivery suite ready for the removal of the stitch before she was actually seen by Dr Cutter. Any clinical examination that Dr Cutter undertook would have had to have taken place then. However, on Mrs Radovanovic's evidence, which I accept, the nurses had already placed her in stirrups ready for the removal of the stitch to take place.
56. In these circumstances I am satisfied that Dr Cutter did not adopt his normal practice and either take or obtain a history from his patient or abdominally examine her. My conclusion is supported by Mrs Radovanovic's account of the events, the absence of any evidence to the contrary from the nursing staff and non-existence of any note of or consequent upon such an examination.
57. If I had accepted that Dr Cutter had palpated Mrs Radovanovic's abdomen and ascertained that the baby's head was in fact engaged then it was submitted that within the bounds of reasonable practice, he would have been justified in proceeding as he did even if he was unaware of the extent of the bleed that had brought Mrs Radovanovic into the hospital. In that event, although he would have proceeded without making a diagnosis that he should have made, in light of the engagement of the baby's head, he could have excluded a diagnosis of a major degree of placenta praevia. It was then said that he could have regarded the tamponading effect of the baby's head below the brim of the pelvis as preventing bleeding from the placenta. However, there would still remain the question of whether he could properly assign a local cause to the bleed of which he was not properly aware. I think that at that stage with the mother in labour and a stitch to be removed that his decision to proceed as he did could perhaps be justified but only if he had affirmatively ascertained before proceeding that the baby's head was engaged and that the explanation for the bleed that had brought Mrs Radovanovic into the hospital was caused by the stitch.
It was put that as the baby's head was almost certainly engaged that alone justified Dr Cutter proceeding as he did. As was pointed on behalf of the plaintiff that submission overlooks Dr Cutter not determining that which he should have determined, namely the exclusion of the possibility of placenta praevia before proceeding in any way. By his lack of awareness of the history that brought the mother into the hospital he was in no position to make that determination. In addition and in any event, I consider that he could not be justified in proceeding as he did without first ascertaining the position of the baby's head by abdominal palpation. He could only be justified in conducting a vaginal examination in a theatre where, if necessary, he could immediately resort to undertaking a Caesarean section.
Duty of care on the hospital
58. The onus is on the plaintiff to establish that the hospital was in breach of its duty of care through one of its employees not alerting Dr Cutter of the nature and extent of the bleed at home. On Dr Cutter's evidence the initial consequence of him not being informed of the nature and extent of the circumstance that brought Mrs Radovanovic into the hospital was that he did not proceed to the hospital but rather ordered the midwife to arrange for cross-matching of blood in the morning and request that he be notified immediately should the blood loss increase or contractions commence. Dr Cutter was adamant that had he been aware of the large blood loss he would have gone into the hospital immediately. I have accepted that this is so but it is clear that Dr Cutter, for whatever reason, was not consciously aware of that blood loss. All of the experts called on this aspect were of the view that the large painless bleed raised a presumptive diagnosis of placenta praevia which should be excluded before any further steps were taken in the management of the patient. There was, however, no agreement as to whether Dr Cutter should have come into the hospital at that stage. Unfortunately, the views of the experts were coloured by the weight that they gave to certain external factors about which they had formed a view during the protracted time that this matter had taken to come to trial. Both Professor Beischer and Professor MacGillivray took the view that there was in existence a placenta praevia and that event almost certainly indicated that the baby's head would not have been engaged. Professor Bennett and Dr Patterson, on the other hand, regarded it as a given that the head was engaged and that factor should be regarded in the diagnosis and the management of the patient. Further, all the experts in their pre-hearing reports took Dr Cutter as having knowledge of the heavy bleed at home and proceeded to give their opinions as to his management on that basis. The fact is that it is Dr Cutter's evidence that he did not know of the large bleed and, as I have found, did not ascertain that the baby's head was engaged before he conducted a vaginal examination of Mrs Radovanovic.
59. Professor Bennett was of the view that even if Dr Cutter had known of the large blood loss in the conversation with Sister Alexander, he would have been entitled to remain in bed and not come into the hospital. He could do so on the basis of the fact that the midwife was not concerned, having examined the patient and taken into account the foetal condition and the fact that the bleeding had ceased. That view seemed to be predicated on the fact that the engagement of the baby's head would have enabled Dr Cutter to conclude that he was not dealing with a major degree of placenta praevia. Dr Patterson's evidence was to a similar effect and therefore it would have been unnecessary to attend the hospital at that stage. That is not the approach that Dr Cutter himself says that he would have taken and I think that clearly indicates that the engagement of the baby's head was not a factor that he had under consideration at that stage.
60. On the evidence before me, I have concluded that Sister Alexander did inform Dr Cutter of the large bleed at home. It may have been put in such a way that led Dr Cutter to not give it the attention that he should have but if the information was clearly given, as I am satisfied that it was, then the hospital has discharged its duty. It seems to me that the burden of justifying Dr Cutter not coming into the hospital lies on him by his preparedness to rely on the midwife's assessment which included the information about the large bleed. It was Dr Cutter's view that had he appreciated the fact of the large bleed at home he would have immediately ordered cross matching of blood and gone immediately into the hospital. I consider that is what he should have done. However, I am not able to say that the fact that he did not do so relevantly caused the events which transpired or given what took place when Dr Cutter did attend the hospital that an earlier attendance would necessarily have altered what took place. It is enough that, on this aspect, I am satisfied that the hospital through its nursing staff was not in breach of its duty of care to the plaintiff.
The duty to ascertain the fact of the large bleed at home
61. Those conclusions leave the issue of Dr Cutter ascertaining for himself the fact of the large bleed at home. He did not do so either during the conversation with Sister Alexander or, critically, when he attended the hospital by obtaining that information from the midwife then on duty, Sister Patacca, the hospital notes or Mrs Radovanovic herself.
62. The importance of obtaining this history was stressed by all of the experts who gave evidence on this aspect. All of the experts also stressed the importance of proceeding to a diagnosis which excluded the possibility of placenta praevia of any degree. This seems to me to be the crux of the matter. The issue is whether Dr Cutter should have proceeded as he did without excluding that possibility as the cause of the bleeding. He could of course exclude it by ascertaining the cause as one not being referable to a placenta praevia but unless he did so, the possibility remained. Because he was unaware of the extent of the bleed at home, he never consciously reached a diagnostic conclusion predicated on a large blood loss.
63. Professor Beischer was quite clear and firm in his view that an obstetrician would ascertain the history of the antepartum haemorrhage either from the patient, the midwife or the hospital records.
64. Professor Bennett was of the view that upon the ascertainment of a history with the classic symptom of placenta praevia, there should be an investigation as to whether there was, in fact, that condition. He postulated the alternatives of an ultrasound examination, if there was time, or a vaginal examination if that was done in an operating theatre. He considered that in circumstances where that was that history, a vaginal examination created a risk of haemorrhage and that the happening of a haemorrhage could result in an injury to mother or foetus. Professor Bennett's opinion in this regard was qualified by the fact that in his opinion the cause of the large bleed at home in this case could be assigned to the stitch. His overall view was predicated on his understanding that there was not in fact a large vaginal haemorrhage at home but rather an ante partem haemorrhage the size of which was probably an over estimation on the part of the patient.
65. Similarly, Dr Patterson's views were based on the view that Dr Cutter could be of the opinion that the cause of the bleed at home could be assigned to the cervical suture cutting out. Dr Patterson was asked to assume a situation where a speculum examination did not indicate any injury to the external surface of the cervix. If that were so, in Dr Patterson's view, the only remaining diagnosis was one of placenta praevia. He agreed that in the absence of a local cause (eg, bleeding from the stitch), any attempt at digital examination of the cervix would be a very dangerous activity in the labour ward. He said that he would not resort to immediate Caesarean section but rather conduct an examination under anaesthetic. He said the patient should be taken as quickly as possible to theatre for further investigation under anaesthesia. The examination which would then take place would be a gentle digital examination to avoid, if possible, a provocation of bleeding. The usual routine being to feel through the vaginal fornices for sponginess. If that sensation is there, that is presumptive of placental tissue and a Caesarean section would ensue. If not, a further digital examination through the cervix could be made.
66. In light of this evidence, Dr Patterson was examined at length in respect of the matters that would have justified Dr Cutter concluding that the cause of the bleed could be assigned to the stitch cutting out. The crux of his opinion was that an ordinary skilled obstetrician, in the place of Dr Cutter, could discard the differential diagnosis of placenta praevia upon deciding that it was more likely than not that the bleed at home was attributable to the injury to the cervix. Although Dr Cutter observed in his speculum examination of Mrs Radovanovic a small amount of blood in the vagina, he gave no direct evidence of a diagnosis made as a result of that observation. He described it in this way -
And then what is the next thing you remember? - - - The - inserting the bi-valve speculum or Cusco's speculum to examine the cervix and to examine the stitch.And do you have a recollection of what you saw? - - - There is a small amount of blood in the vagina, not enough for me to swab the vagina out to remove it. I was - saw that the cervix was dilated to 2-3 cm, the knot was still in place with the tied ends of the stitch and then I grabbed the tied end of the stitch, put it under traction and cut the suture and withdrew the knot.
67. He then went on to describe the blood being on the posterior wall of the vagina coming from the external surface of the cervix and in relation to the knot of the stitch as being on the posterior aspect of the cervix. Although Dr Patterson, in re-examination, was of the view that these matters justified a diagnosis which would assign the cutting out of the stitch as the cause of the large bleed, it is apparent from the evidence given by Dr Cutter that he made no such diagnosis at the time of the removal of the stitch other than upon the assumption of a small bleed and no visible injury apparent at the time.
Dr Cutter's position
68. Because it has always been Dr Cutter's position that he did not know of the large blood loss at home, any diagnosis that he made could only have been that the small amount of blood which he might have assumed brought Mrs Radovanovic into the hospital could be assigned to the stitch. That circumstance is also fairly clear from the way he described the circumstances in his letter to Dr Deck on 5 February 1980 and in the notes he made when he saw Mrs Radovanovic on 24 March 1980 to which I have made reference earlier.
69. The point is that Dr Cutter did not turn his mind to the question of whether the cutting out of the stitch, causing an injury to the cervix as a consequence of the stitch being there, could have accounted for the large bleed. Dr Cutter's evidence in cross-examination was that he did not see any injury which could have accounted for the large bleed at home.
70. Dr Cutter took the view that it made no difference that he was not aware of the reason why Mrs Radovanovic came to the hospital. He was of the view that if he was satisfied that the baby's head was engaged, then it was appropriate to proceed as he did. He was, however, unable to say that except by reference to his usual practice, that the baby's head was in fact engaged. He also conceded that if the baby's head was not engaged, with the qualification that it was a high floating head, that he would have proceeded to Caesarean section. He also said that had he ascertained that the baby's head was in the brim, that is, not engaged, he would not have ruptured the membranes. Critical to that management is the examination of the patient's abdomen to ascertain the position of the baby's head and for the reasons that I have given I am not able to be satisfied that this in fact took place.
The possible diagnosis of placenta praevia
71. The textbooks and the experts that were called in this case were of the view that, in the case of a significant antepartum haemorrhage, it was essential that there be an initial diagnosis of whether there was a placenta praevia or not. Initially no distinction needed to be made about the grade to be assigned or whether it be major or minor. I was referred to the text of Obstetrics and the New Born written by Professor Beischer and Professor Mackay (supra), current at the time of Dr Cutter's treatment of Mrs Radovanovic. I also had the benefit of Professor Beischer's views. That view was that if there was the slightest suspicion of a bleed due to placenta praevia, both the vaginal examination and certainly any rupture of the membranes consequent upon that, should be done in theatre under anaesthesia. There is no doubt that part of this aspect, as the first defendant maintains, is to bring a baby's head into engagement so as to stop any potential bleeding. However, nothing of what is written in the textbook, or given by way of evidence by Professor Beischer, affects the fundamental proposition that an examination for the purposes of determining whether there is a placenta praevia, if done by way of vaginal examination, should take place in theatre. Another text book, the second edition of Fundamentals of Obstetrics and Gynaecology by Llewellyn Jones published in 1977 provided relevantly -
Confirmation of the diagnosis can only be made by seeing that the placenta is praevia at operation, or by feeling placenta tissue on vaginal examination. The latter examination should never be performed when placenta praevia is suspected except in a fully equipped operating theatre with everything in readiness for an immediate Caesarean section should torrential bleeding be provoked by the examination ...
72. It is the situation here that placenta praevia was not suspected because Dr Cutter had not made enquiries which would have engendered that suspicion. It is true that text goes on to leave open the method of delivery whether by amniotomy (rupture of the membranes) or Caesarean section, but in light of the examination being performed in theatre, that would not seem to matter.
73. Professor Donald's book Practical Obstetric Problems, the fifth edition of which was published in 1979, is very clear on the issue of any vaginal examination for the purposes of determining whether there is a placenta praevia being conducted in an operating theatre "where the instruments are all laid out in readiness for Caesarean section should that be necessary". He gives a detailed description of an examination that is not only to determine the third or fourth degrees of placenta praevia but also whether a placenta praevia is there to a minor extent.
74. I accept the plaintiff's submission, relying particularly on Professor Beischer's evidence, that it is necessary to exclude the possible fact of a placenta praevia before proceeding with the management of a patient. In cross examination it was put to Professor Beischer that on the basis that having knowledge of the history of the bleed and the full engagement of the baby's head it would be reasonable to exclude a diagnosis of placenta praevia. Although Professor Beischer agreed with this proposition it was not the case that Dr Cutter had in fact proceeded on that basis. Professor Beischer further qualified this proposition:
"Now, therefore, in those circumstances if you accept that the head was fully engaged when he saw the lady on 27 January 1980 as you've assumed he has after she went into labour, it was reasonable for him to proceed to vaginal delivery, wasn't it?---Under those circumstances yes.And it would have been reasonable for him to have ruptured the membranes in the way he did, as recorded in the notes?---No. I believe that in a patient who's had significant antepartum haemorrhage you should not rupture the membrane to initiate or enhance labour. And her labour's still very early if you take it when he came in. So no, I wouldn't agree with that.
I take Professor Beischer as only countenancing vaginal delivery where placenta praevia has been completely excluded on the basis of the factors that justified its exclusion. Most importantly I do not regard his evidence as considering it reasonable practice to either vaginally examine the patient in the labour ward or to rupture the membranes without having excluded the possibility of any degree of placenta praevia being present.
75. Professor Bennett, who regarded Professor Dewhurst's work Integrated Obstetrics and Gynaecology for Post Graduates, published in 1976, as the book that he taught from, had put to him the an excerpt from that text that -
If there is the slightest suspicion that the bleeding may be due to placenta praevia, the amniotomy should be done in theatre under anaesthesia, a blood transfusion should be running, and a full preparation made for an immediate Caesarean section should this be necessary.
76. Professor Bennett's qualification to this passage from the text (which was not tendered) was that it related to major degrees of placenta praevia but he accepted, in effect, that the reference to amniotomy was a reference to the rupturing of the membranes preceding vaginal delivery in theatre and sought to distinguish it by the more modern management technique of seeking an ultrasound. That is not a satisfactory distinction as far as the circumstances of this case are concerned and does not detract from the force of the observation which was not qualified in the way Professor Bennett would have it. In the circumstances of Dr Cutter's management of Mrs Radovanovic in this case, an ultrasound was not an option which any of the experts, including Professor Bennett, accepted as practicable.
77. Likewise, Dr Patterson accepted the authority of Professor Dewhurst on this topic with the only qualification that the diagnosis of placenta praevia could be excluded without resorting to a vaginal examination if there was some clear local cause to explain the antepartum haemorrhage that gave rise to the necessity for the diagnosis to be made.
78. Professor MacGillivray was one of the authors of a text book Combined Text Book of Obstetrics and Gynaecology (supra), which had a 1976 edition that provided -
The diagnosis of placenta praevia should be suspected in every case of an antepartum vaginal bleeding. The only sure way of making a diagnosis is by digital examination and this should never be performed unless the operating theatre with full facilities for a rapid Caesarean section [is] immediately available.
79. The text stresses that the diagnosis of placenta praevia is not to be made with any certainty until the placenta is felt or visualised. The text also cautions against any attempt to pass a finger through the cervix even after a speculum examination to see if blood is coming from the region of the vagina or the cervix.
80. Dr Beavis' evidence was also along those lines. He viewed vaginal examination as a very dangerous procedure. He accepted that digital examination was the mode of diagnosing placenta praevia prior to the advent of ultrasound and, in light of the impracticability of an ultrasound being available on the night of Mrs Radovanovic's admission to hospital, his comments about digital examination have considerable force. He regarded a digital vaginal examination as only being done in an operating theatre ready to proceed with Caesarean section.
81. I add that, Professor Bennett, who considered Dr Cutter's management of Mrs Radovanovic by the artificial rupture of her membranes to be reasonable practice in the circumstances, was (although he was unaware of it), reliant upon the results of Dr Cutter's vaginal examination of Mrs Radovanovic which ascertained the engagement of the baby's head. However, Professor Bennett was quite clear that such an examination should not have taken place unless, by abdominal palpation, the engagement of the baby's head had been ascertained. He expressed a view in his report dated 5 September 2000 that -
Dr Cutter was quite confident that there was no placenta praevia directly through the cervical os and chose to rupture the membranes. It would be my belief that this was perfectly reasonable clinical management.
There were a number of assumptions made by Professor Bennett for this view. They appear from the following passage of his evidence -
Well you say Dr Cutter was quite confident that there was no placenta praevia directly through the cervical os. That suggests, does it not, that you're saying, whether by way of belief or fact, that Dr Cutter made a digital examination of the internal aspect of the cervical os and found no placenta directly there, isn't that correct? - - - No, it isn't at all.I see. I'm sorry, then please tell me what you ...? - - - He knew from abdominal examination that the foetal head was engaged and that there was not a major degree of placenta praevia present. On removing the cervical suture he was faced with membranes, not placenta. He could be quite confident, therefore, that he wasn't dealing with a major degree of placenta praevia.
So you're not suggesting in that sentence that there was a digital examination by Dr Cutter of the internal ...? - - - No.
... cervical os? - - - No. And an ordinary practising obstetrician, I do not believe, would do such an examination in the labour ward as such.
Thank you. Now I don't think there's any reference in any of your reports, but please correct me if I'm wrong Professor, to a statement whether by belief or otherwise that Dr Cutter had made an examination, an internal examination of Mrs Radovanovic to determine the location of the head and had found it to be engaged whether fully or otherwise, on this evening, that's correct isn't it? - - - You don't determine engagement by doing an internal examination.
Well you determine engagement by an examination of the fornices, don't you? - - - Of the abdomen.
Of the abdomen, all right? - - - It's an external abdominal examination.
Is there any reference in any of your reports to such an examination ...? - - - Not that ...
...either by way of belief or otherwise? - - - Not that I recall.
And indeed there's no argument or discussion in any of your reports based upon the proposition that the foetus' head was engaged, is there? - - - Well we know from the ante-natal record that the head was engaged.
Well I'm just asking you about your reports Professor. There's nothing in any of them, is there, that contains any discussion whether by way of belief or assumptive material that Dr Cutter had made an examination of Mrs Radovanovic to determine the location of the head? - - - No, it was an assumption I made on the balance of probability. An ordinary obstetrician would not assault and insult a patient by doing a vaginal examination without doing an abdominal examination first.
On the findings that I have made, the assumptions underlying Professor Bennett's view as to "perfectly reasonable clinical management" have not been made out.
82. Mrs Radovanovic commenced contractions at about 11.15 pm. Although her previous labour had been 46 hours, Dr Cutter expected that her labour on this occasion would be of the order of six hours. This was a similar estimate to that given by Professor Beischer. Professor Bennett, on the other hand, considered that the labour would last two to three hours and Dr Patterson thought about eight hours. The important estimate was that of Dr Cutter. Dr Cutter had observed the dilation of Mrs Radovanovic's cervix and was aware of her pervious history as a multiparous patient. The fact that labour could be expected to continue for some hours meant that there was no immediate imperative to conduct a vaginal examination which, in view of the patient's history should not have taken place in the labour ward in the absence of excluding the possibility of the presence of a placenta praevia.
83. It seems to me that there is nothing to support Dr Cutter proceeding in the way that he did proceed, in view of the fact that he had not ascertained a vital aspect of his patient's history and had not conducted an abdominal examination both of which were critical to the way he should proceed.
Other aspects of alleged negligence before Mrs Radovanovic's admission to hospital
84. The plaintiff pointed to two other matters that occurred before Mrs Radovanovic's admission to hospital which were said to affect the duty of care owed to the plaintiff. Both were pleaded as separate particulars of negligence. The first was said to be Dr Cutter's failure to recognise the progressive dilation of the cervix to 2-3 cm by 27 January 1980 by regular examination during the later stages of pregnancy, and the second was said to be the failure to order or perform an ultrasound examination in late pregnancy. I do not consider that it was negligence on the part of Dr Cutter to not do either of these things. It is clear that there is a divergence between the experts concerning these aspects but even if there were the failures alleged, it is difficult, in any event, to see where they lead and their causative relationship with the events that occurred.
The cervical suture
85. Because of the gynaecological history of Mrs Radovanovic at the fifteenth week of her pregnancy, Dr Cutter inserted a stitch in Mrs Radovanovic's cervix in order to prevent the cervix dilating before term. Dr Cutter described the suture as a Shirodkar suture and as I have said, there was debate about its nature amongst the experts. The suture was inserted within the deep tissues of the cervix and a knot was tied on the posterior surface of the cervix. It was suggested that a consequence of the tape used for the stitch cutting into the cervix would permit the cervix to dilate to a certain extent and that that cutting in might have been the cause of the first bleed experienced by Mrs Radovanovic prior to her admission to hospital. The evidence, particularly that of Dr Cutter, was that such a stitch may cut into the cervix either during labour causing lacerations or tearing of the cervix or before labour over a period of weeks or months.
86. When Dr Cutter came to take out the suture on Mrs Radovanovic's admission to hospital, the cervix was dilated 2-3 cm. The cervix did not further dilate after the suture was removed nor did Dr Cutter see any damage to the surface of the cervix at the time he removed the stitch. All the indications are that any cutting in of the cervix caused by the stitch would have been gradual. Both Professor Bennett and Dr Patterson sought to support Dr Cutter by assigning the cause of the bleed at home as coming from the stitch. That, however, was not strictly his evidence. His evidence was that the cause of whatever slight bleed Mrs Radovanovic had could have come from the stitch. He did not turn his mind to the stitch causing the large bleed at home because, as he said, he was unaware of the extent of the bleed. In any event, Dr Cutter's evidence was that prior to 1980 he had never had a stitch bleed at term and he did not see any injury to the cervix on his speculum examination in the labour ward to account for a large bleed. As I have pointed out this evidence given by Dr Cutter undermines the very foundation of the opinions expressed by Professor Bennett and Dr Patterson that assign the cause of the bleed at home to the stitch suddenly cutting in and as the cause of Mrs Radovanovic's bleed at home. I accept the view of the experts called by the plaintiff that, in the circumstances, it would not be reasonable to assign the cause of the bleed at home to the stitch.
87. Dr Beavis, Professor Beischer and Professor MacGillivray were all of the view that the suture should have been inspected on a regular basis. The reason being that if failure of the suture occurs and the cervix commences to dilate, the suture can be replaced thereby reducing the risk of a miscarriage. The suggested mode of examination was by speculum. Dr Cutter, for his part, said that he did not have a practise of inspecting sutures as repeated vaginal examination ran the risk of introducing infection. Professor Bennett spoke of there being two schools of thought concerning vaginal examination of cervical sutures in 1980 and he referred to the examination stimulating the release of prostaglandins which might cause premature labour.
88. In the end, I do not think that I can say that Dr Cutter was negligent in adopting the view that he took concerning examination of the suture. In any event, the highest that the plaintiff can put it is that if Dr Cutter had regularly inspected the cervical suture, he would have known at the time of Mrs Radovanovic's admission to hospital that the suture had failed and that the cervix had dilated. It is said, that would have had the consequence that Dr Cutter should have known that the first antepartum haemorrhage could not in any way have been due to the suture traumatising the cervix. That may be so, but it is very speculative and not related to what Dr Cutter in fact did. Nor does it seem to me, as the plaintiff submits that it does, impact upon the degree of confidence that Dr Cutter could have in assuming the stitch to be responsible for the first antepartum haemorrhage as any such assumption was predicated upon Dr Cutter's belief that Mrs Radovanovic had had no more than a small bleed or show of blood.
A repeat ultrasound
89. At an early stage in the pregnancy, Dr Cutter ordered an ultrasound which was performed on 5 July 1979. The findings on that ultrasound were consistent with the gestational age of seven weeks. An advice was given on the ultrasound which was conducted by the Director of the Royal North Shore Ultrasound Department. That advice was given on the basis of its usefulness in following foetal growth and as means of more accurately assessing gestational age. However, I am satisfied that in 1980 it was accepted as satisfactory medical practice to make such assessment on the weight of the patient and the fundal height measurement (the relationship between the pubis and the top of the uterus).
90. No ultrasound was, in fact, ordered consequent upon the advice given on the ultrasound. Generally, there was agreement by the experts that earlier ultrasounds are the most accurate in assessing gestational age and that in 1980, it was not routine for an ultrasound examination to be performed at 18-20 weeks of pregnancy. It is clear that, certainly in 1980, ultrasounds were not necessarily regarded as particularly reliable and its only efficacy in this particular pregnancy would have been to follow foetal growth. There was no other aspect of this pregnancy which would warrant undertaking a further ultrasound. If there was no cause or expected duty to order a repeat ultrasound, then it becomes entirely speculative as to what might have happened had such a procedure been undertaken. I am satisfied that no breach of duty arises in respect of this matter.
After the decision to rupture the membranes: delay in proceeding to Caesarean section
91. A further particular of negligence that the plaintiff's counsel pressed was what was said to be an unreasonable delay to proceed with the Caesarean section immediately after Dr Cutter had ruptured the membranes.
92. Dr Cutter's evidence was that when the membranes were ruptured there was a gush of blood which was bright and fresh and abnormally large, that there was liquor with it, with no evidence of foetal distress in the form of meconium. At the time Mrs Radovanovic was still in the stirrups and it was the midwife who listened to the foetal heart sounds which were "very, very slow". Mrs Radovanovic was then taken down from the lithotomy position and Dr Cutter said that "we tried again to listen to the foetal heart sounds". He said this would have been 3 or 4 minutes after the rupture of the membranes. In his letter to Dr Deck, Dr Cutter said that "within 5 minutes the foetal heart sounds were down to 40". Mrs Radovanovic described the listening by Dr Cutter and Sister Patacca, the midwife, as trying to pick up a heartbeat which was coming and going. Dr Cutter said that it was not until he finally found a heartbeat after what he described as what seemed like an "eternity" that he made the decision to do a Caesarean section. Sister Patacca, who thought that the heartbeat was relocated by a student midwife who had come in to assist, seems to confirm that it wasn't until the heartbeat was found that a decision to perform the Caesarean section was made. Her evidence was that when the foetal heart sounds were detected they were still very slow and irregular but they were approximately 40 beats per minute. Dr Cutter's impression in giving his evidence was that the time spent was closer to 10 minutes rather than the 20 minutes that the hospital notes would indicate. I am inclined to think, particularly having regard to a later note made by Dr Cutter that the time was about 20 minutes, that estimate is more accurate than the recollection Dr Cutter deposed to in his evidence.
93. Plaintiff's counsel put an argument that there was no reason for Dr Cutter delaying the decision to proceed to emergency caesarean delivery. It was put that Mrs Radovanovic had already consented to a Caesarean section delivery. Dr Cutter had diagnosed very shortly after the rupture of the membranes that the bleed was from a ruptured vasa praevia and that there was a very high possibility of foetal death in such case. It was put that the plaintiff should therefore have been delivered as soon as possible by Caesarean section and that the theatre staff should have been immediately recalled for this to take place.
94. Dr Cutter for his part said that when he was unable to find the heartbeat after Mrs Radovanovic had been taken down from the stirrups he presumed that the baby was dead. He said that he did not consider that in the circumstances of labour proceeding that he should do a Caesarean section to remove a dead baby. In that regard he was supported by the expert opinion which would regard this as an inappropriate operation if that were the case. The real issue is whether, as was put on the plaintiff's behalf, Dr Cutter was proceeding on the belief that the plaintiff was still alive and should accordingly have proceeded forthwith to Caesarean section, or whether Dr Cutter held the belief that the plaintiff had died but wished to ascertain that fact. Generally a blood loss from a ruptured vasa praevia results in a slow, steady blood loss. It was suggested by plaintiff's counsel that in the present case Dr Cutter may have been misled by the amount of the blood loss particularly because of the liquor mixed with the blood. However, that does not make Dr Cutter's presumption unreasonable. The foetal bradycardia (slowing of the heart rate) of 40 beats per minute was described by Professor Bennett as so bizarre that it had to be checked. It must also be remembered that there was a gap of some minutes whilst Mrs Radovanovic's legs were being taken down from the stirrups in which they had been placed and before listening resumed for the foetal heart rate. Until a heartbeat was detected it was a perfectly reasonable assumption that the baby had died. The suggestion was also made on the plaintiff's behalf that an assumption could be made that there was something wrong with the Sonic Aid, the listening device that was being used. However, I regard the more reasonable assumption in the circumstances to be that there was no heartbeat to detect.
95. Professor Bennett in one of his reports was highly critical of a delay of 20 minutes in determining to do a Caesarean section in the event that the presence of a vasa praevia had been diagnosed at the time of the rupture of the membranes. However, I accept that criticism must be taken in the context that he did not understand that Dr Cutter had thought that the baby was dead. Although the plaintiff's counsel relied upon Professor Bennett's views that immediate delivery was required in the circumstances, those views were immediately qualified once Professor Bennett appreciated that Dr Cutter had taken the view of the baby's condition that he did. As I have said he was of the view that the heart rate was so bizarre that it had to be checked. He also considered that it was necessary to ascertain with certainty the fact of it being a foetal and not maternal heart rate.
96. I am not satisfied that Dr Cutter was in breach of his duty of care by not deciding to perform a Caesarean section as soon as the slowing of the heartbeat was detected and when he made his diagnosis of a ruptured vasa praevia. I accept the views of Professor Bennett as to what might have been reasonable in the circumstances of this unexpected event. Although it may have been quite reasonable for Dr Cutter to have proceeded immediately to Caesarean section on making his diagnosis of vasa praevia the fact that he did not do so is clearly defensible on the grounds that he gives. I am satisfied that Dr Cutter's actions in this regard did not depart from the reasonable care and skill expected of him.
97. From the time that Dr Cutter determined to conduct a Caesarean section to the time of the plaintiff's delivery was a period of 25 minutes. The actual Caesarean section operation and the delivery of the plaintiff took just 5 minutes. From the notes it appears that the decision to perform the Caesarean section took place at about 12.15 am on 28 January 1980 and the plaintiff was delivered at 12.40 am. Professor Beischer was of the view that in the context of an after hours emergency Caesarean section a delay of one hour for the operating team to be assembled was expected and reasonable. It is apparent that the operating staff were in fact assembled in this time frame, even with the delay occasioned by the listening for the foetal heart beat. Dr Beavis was of a similar view. He considered it to be speculative as to whether it could be said that there was any unreasonable delay in proceeding notwithstanding the material that he had that indicated that Dr Cutter waited for up to 20 minutes before he decided to proceed to the theatre. In light of my findings it is not really necessary to pursue this aspect any further except to note the promptness with which the theatre staff could be assembled and the actual time taken to effect a delivery by Caesarean section.
The timing of the brain damage to the plaintiff
98. My findings as to the requirement in the particular circumstances of this case that any vaginal examination should have taken place in an operating theatre make it strictly unnecessary to determine the issue of whether the 20 minute delay before Dr Cutter determined to proceed to delivery by Caesarean section would have avoided Lainie developing hypoxic ischaemic encephalopathy and consequential cerebral palsy. This was an issue hotly contested by the plaintiff and the defendants counsel. It was the subject of detailed expert evidence.
99. I have described the events immediately after the rupture of the membranes and the detected slowing of the heart rate. When Mrs Radovanovic was taken down from the stirrups she was rolled on her side, and it was some fifteen minutes later that a heart rate of approximately 40 beats per minute was again heard. It was at this stage that Dr Cutter determined to perform a Caesarean section. The assumption upon which evidence was given was that the foetal heart rate remained at that slow rate of 40 beats per minute. However the circumstance of a loss of blood sufficient to cause a bradycardia of 40 beats per minute caused the two paediatric neurologists that were called to differ as to the consequence.
Dr Harbord's initial view
100. The plaintiff called Dr Michael Harbord who for the past twelve years has been a visiting paediatric neurologist at the Flinders Medical Centre and at the Women's and Children's Hospital in Adelaide, South Australia, as well as conducting a private practice in paediatric neurology. He has impressive qualifications in his specialty. Dr Harbord was of the view that up to 30 minutes could have elapsed between the artificial rupture of the membranes and delivery without Lainie suffering any significant brain damage. He considered that the major component of the brain damage would have occurred when Lainie had a cardiac arrest (that is her heart stopped beating) some 5 minutes after being delivered.
Dr Antony's view
101. Dr Harbord's views were in stark contrast to the opinions expressed by Dr Antony, the paediatric neurologist called by the first defendant. Dr Antony is also eminently qualified and has been Head of the Department of Neurology and Neosurgery at the new Children's Hospital at Westmead for the past 8 years. In her initial report dated 28 August 1997 in respect of this matter Dr Antony commented -
The circumstances that caused Lainie's asphyxia [a total loss of oxygenated blood getting to the child's brain] are very unusual when one considers the common causes of perinatal asphyxia i.e. intermittent cord compression, placental abnormalities (abruptia, praevia etc) which would decrease the oxygen transport from the placenta to the foetus, or maternal problems such as hypotension [a fall in blood pressure below the normal range] or hypoxia [a lack of oxygen in the circulating blood]. Often events during the labour cause intermittent and repeated asphyxial episodes. In this particular case, there was a sudden loss of perhaps as much as half the babies blood volume which would have caused a marked drop in blood pressure, rapid reduction in cerebral blood flow and no time for the foetus to make the adaptations that the foetal brain is capable of when there are the more usual and gradual causes of perinatal asphyxia. I believe in this special situation that intervention in the form of expansion of the babies blood volume and restoration of oxygenation and circulation to the brain needed to occur within 10- 15 minutes in order to prevent a significant degree of brain damage. There was probably ongoing cerebral injury up to and beyond the delivery but this was caused by the cascade of events triggered by the severe early anoxia [total deprivation of oxygen in the blood] which exceeded the threshold beyond which oxygenation and perfusion could reverse the damage. Therefore, I do not consider this ongoing injury an important issue in this instance.
102. When Dr Antony came to give evidence it emerged that underlying the opinion that she had expressed in the passage quoted was that she considered that there being such a severe initial stress due to blood loss it immediately caused an asystole, (a condition where the heart stopped contracting, but which also might be described as a cardiac arrest) which resulted in the brain damage. No direct proposition in these terms had been put to Dr Harbord when he initially gave his evidence. I considered it appropriate that the plaintiff be given leave to reopen the plaintiff's case to call Dr Harbord to deal with this proposition from which I understood Dr Harbord strongly dissented. Dr Harbord and Dr Antony were subsequently recalled.
Discussion of views on the timing of the brain damage
103. It was fundamental to Dr Harbord's view that the blood loss was not of the magnitude assumed by Dr Antony. When Dr Harbord was recalled to give evidence he revised his view as to the amount of blood that might have been lost to cause the bradycardia that had been observed at 40 beats per minute. It remained his view that an overall blood loss of about 50 per cent of the baby's blood volume would cause a cardiac arrest. That being the quantity of blood that was lost was demonstrated by the amount of blood transfused, which was 160 mls of blood. His view also depended upon a continual loss of blood over the period of time prior to Lainie's birth. In his view it was at the point when up to 50 per cent of the blood had been lost that a cardiac arrest would occur. On the second occasion that he gave evidence Dr Harbord revised his views as to the amount of blood loss needed to explain the initial bradycardia. He did so on the basis of some articles showing studies that had been done on animals. He concluded that something in the order of 90 mls of blood loss would explain the bradycardia observed in this case.
104. Also fundamental to Dr Harbord's view was the fact that at delivery Lainie had a foetal heart rate of 40 beats per minute. In his view that meant that there could have been no cardiac arrest in utero. He considered that to be so when Lainie was delivered on the basis that the hospital notes recorded the Apgar scores at one minute of 1 and at five minutes at 1. The Apgar scores relate to the condition of a newly born infant and are given in respect of heart rate, respiratory effort, muscle tone, colour and reflex irritability. An Apgar score of 1 at least indicates that there is a heart rate.
105. Consequent upon the evidence that she gave before me on the first occasion Dr Antony provided a further report (11 March 2002) a portion of which I set out as summarising the issue:
This is an additional report on Lainie Radovanovic based upon further issues that have been brought up about how and when her irreversible brain damage occurred. There can be no doubt that there was a significant blood loss and, of course, the exact amount will never be known but it is fairly clear that she needed a significant blood transfusion post delivery and I presume the observations were that she was severely anaemic and hypovolemic. There has been some question whether there was ongoing blood loss between the artificial rupture of membranes and until the delivery. The contention that there could have been ongoing blood loss seems a reasonable possibility but in the situation of a vasa-praevia I would presume that any blood loss would be clearly visible since the ruptured vessels are near the cervical opening. I am not aware that there is any evidence that further blood was witnessed between the time of the initial gush of blood and the time of delivery. The sequence of events after the artificial rupture of membranes would indicate to me that there was severe asphyxia which was caused, most likely, by the loss of blood and, hence, the loss of blood pressure since I do not have any other explanation.As I stated in court I believe that the sudden and severe loss of blood pressure, as opposed to usual conditions where there is a slower loss of blood or else intermittent or gradual asphyxia, resulted in the usual coping mechanisms of the term infant to be overwhelmed. This resulted in the precipitous drop of pulse rate from normal down to forty beats per minute within two minutes and, subsequently, the heart rate was undetectable. The loss of a detectable heart rate has a number of possible explanations. It could be that the bradycardia was severe and the heart beat too weak to be detected but also in severe asphyxia or hypotension the sudden fall in the ventricular pressure of the heart can result in an asystole but the heart beat did recover as the shunting mechanisms and other coping mechanisms of the foetus come into action. I think that the latter has to be considered as a possibility and, again, points to this severe and overwhelming situation on the foetus.
I believe that because of the severe and precipitous events that not only the coping mechanisms of the circulation failed but also there was a lack of ability of the energy systems of the brain to compensate for the low oxygen and low circulation. This results in failure of energy mechanisms of the cell which, in turn, leads to brain swelling and destruction of the function of the brain, which happened in Lani[sic]. As you recall, there was evidence of generalised cerebral oedema after birth. The outline of what probably happened, in Lainie's case, is found in the reference I provided from the Clinics of Perinatology from June 1993, page 307, under the heading of "Response to Severe Asphyxia". I believe that Lani,[sic] obviously, was able to adjust with some adaptive mechanisms after the sudden blood loss but by that time there was irreversible brain damage and the reperfusion of the brain, not only the brainstem which obviously kept her alive, but the cortex, as well, resulted in further damage because of reperfusion injury.
106. The article to which Dr Antony refers considers the capacity of the adaptive or protective mechanisms that a body has to be overwhelmed. It postulates that if asphyxia is too severe the shunting of blood towards vital organs and the cerebral oxygen delivery will fail. The article also says " . . . blood pressure falls as cardiac output fails. This fall can often be precipitous and is thought to be, in part, due to failure of the peripheral vasoconstruction". The article also goes on to say "the fall in ventricular pressure culminates in mechanical asystole within a few minutes". The article also observes that brain injury is strongly associated with loss of blood pressure in the foetus and not the degree of hypoxia or acidosis. It is also said that "During severe asphyxia, cerebral blood flow is directed preferentially to the brain stem rather than the cerebrum; this, in part, accounts for greater susceptibility of the cerebrum including the cortex. The parasagittal parietal cortex of term and post-term infants is particularly susceptible to injury".
107. I have difficulty in seeing how this article really supports what Dr Antony postulates occurred in this case. I also accept the criticism made by counsel for the plaintiff as to the limitations to which this article may be helpful on this issue. The article deals with asphyxia. That is strictly the inability to breath, but in the circumstances of this case encompasses the total loss of oxygenated blood getting to the brain. The article does not deal with the physiological response of a foetus to haemorrhage. The cause of the asphyxia in this case was the unusual circumstances of the exsanguination consequent upon the rupture of the foetal vessels and the resulting haemorrhage. The article is descriptive of what occurs when the heart ceases to beat. The article does not describe what takes place before that comes about but rather sees the result as causing the failure of the shunting of blood toward the vital organs. In its terms the article also does not postulate or explain a revival of heartbeat after those adaptive or protective mechanisms are overwhelmed. Indeed, the article assumes that the mechanism which would compensate for the loss of blood volume has in fact completely overwhelmed them and they accordingly are unable to perform a resuscitative function. The implication is that any resuscitative function would be external to those mechanisms.
108. In further support of her views Dr Antony referred to other articles and passages from a textbook by Volpe. She placed reliance upon magnetic resonance imaging (MRI) scans showing damage to the plaintiff's thalamus. This damage she postulates by reference to these materials showed that there was a sudden insult to a brain that was previously normal. She argued that the plaintiff's condition at birth indicated brain damage before birth and that the articles and texts to which she referred showed that brain damage was probable from such an insult. She argued that the haemorrhage on the rupture of the vasa praevia was such an event and unless the plaintiff could have been very promptly delivered and resuscitated her brain damage was inevitable at that time.
109. None of the materials to which Dr Antony referred provided support for there being a transient overwhelming of what are recognised as being the body's defence mechanisms. Those defence mechanisms protect the vital organs (including the brain) where there is a sudden blood loss by redirecting the blood to those organs. That redirection of the blood ensures that those organs continue to function. In fact, after delivery, the plaintiff had a cardiac arrest at between 5 and 10 minutes of age, an intravenous line was inserted at 10 minutes of age and the mother's blood was infused. Transfusion commenced at 20 minutes of age and continued for 40 minutes. Those circumstances indicate to me that the cardiac arrest when the heart stopped beating and no blood was provided to the brain caused the brain damage sustained by the plaintiff. Nevertheless, Dr Antony held tenaciously to the view that she developed over the course of her reports and her evidence that this circumstance had occurred before the observed cardiac arrest.
110. Dr Harbord gave detailed evidence of the differences in the foetal physiological response to hypovolemia [low circulating blood volume which is caused by haemorrhage] or haemorrhage as compared to asphyxia. They are summarised in the plaintiff's written submissions and I adopt that summary.
Those differences are:(a) The remaining circulating blood remains well oxygenated: Hypovolaemia does not mean that there is necessarily any significant lack of oxygen: There can be a reduced blood volume but normal oxygen concentration in the reduced blood volume.
(b) Oxygen extraction through the placenta improves in relation to the remaining blood cf the case with birth asphyxia or an hypoxic insult where there is little or no oxygen in the circulating blood going to the brain:
(c) Blood pressure is restored quickly by vasoconstriction so that blood flow to non-essential parts of the body, in particular the legs, is constricted. This means there is more circulating blood volume to the heart and brain:
(d) Preferential shunting of oxygenated blood takes place via the dictus venosus directly to the heart from the umbilical vein, bypassing the liver. This leads to preferential shunting from the heart to the brain:
(e) Fluid outside the circulating blood (interstitial fluid) is mobilised into the circulatory system. This interstitial fluid can replace half of the total blood loss within half an hour:
(f) Through a process of auto-regulation, cerebral perfusion is able to be maintained notwithstanding a marked drop in blood pressure: It is this response that counters the effect of the hypotension Dr Antony said occurred. It is this response that counters the effect of the hypotension Dr Antony said occurred.
(g) A foetus is able to withstand low oxygenation in its blood because of the high proportion of haemoglobin F present in the circulation.
(h) There is an additional circulating volume of blood within the placenta:
(ii) A foetus can staunch the flow of blood through spasm of the bleeding vessels:
Resolution of the time at which brain damage occurred
111. This is a difficult, troubling issue in the context of what is said to be the delay in delivering the plaintiff. The difference lies in Dr Antony's opinion that the baby's defence mechanisms can be transiently overwhelmed. There is not, nor could there be, any studies that can establish this. The effect of the defence mechanisms being "overwhelmed" means the heart stops beating but there is then no known or previously observed mechanism by which it can start again. How it could start was not explained or even speculated about in the literature to which I was referred. Both Dr Antony and Dr Harbord attempt to apply first principles to what they both described as the unique circumstances of this case. Bleeds generally as a consequence of vasa praevia occur slowly. In the present case there appeared to be an abnormally large quantity of blood but the extent cannot be ascertained because of the admixture with liquor. The fact is that the baby did not suffer a cardiac arrest in utero and her heart was beating at birth. On the other hand a significant amount of foetal blood could have been lost on the rupture and that severe insult could have had the effect contended for by Dr Antony but if it did then I am unable to see that it would have resulted in anything other than a cardiac arrest. Both paediatricians gave detailed evidence related to the MRI scans and what might be drawn from them. Both claim that those scans supported their view but there is nothing that conclusively establishes the timing of the damage recorded on those scans. On balance I prefer to accept the views expressed by Dr Harbord. Although his original opinion did not seek to equate the quantity of foetal blood that might have been lost at the outset with a linear bleeding culminating in the cardiac arrest after birth, I prefer his view that the bradycardia did not mean that the quantity of blood that Dr Antony assumed was in fact lost at that time.
112. I also accept the distinction made by Dr Harbord in adjudging the foetal response to haemorrhage rather than the response to asphyxia. On that topic he was asked-
Could you answer the question. Does it mean anything more sinister other than a normal physiological response to haemorrhage?---No, no. It's a normal physiological response to haemorrhage and it's obviously very different to a hypoxic insult where we've got a birth asphyxia cord occlusion. A bradycardia in that situation has a much more sinister connotation. In the context of hypovolemia it's the body's way of compensating for that insult.
As I have said, Dr Antony postulates an initial blood loss of such a size that it would have caused a cardiac arrest. I am satisfied that there is no reason why, in that event, the defence mechanisms which protect, inter alia, the brain by shutting down the blood to the non essential parts of the body would operate to in some way re-start the heart. That, as I have observed, is a phenomenon which has no actual support from the scientific writings to which reference was made. If the blood loss was sufficient to result in the asphyxia that Dr Antony says would be consequential upon such a large blood loss this that leaves unexplained the heart beat detected at and after birth.
113. I accept the evidence of Dr Harbord that the plaintiff's brain injury occurred shortly after her birth and not earlier, I accept that if the delay in commencing the Caesarean section could be said to be negligent then that delay could be said to be the cause of the brain damage. However, I do not consider that Dr Cutter was in any position to conclude that the abnormal blood loss and the detection of a drop in the foetal heart rate from 132 beats per minute to 40 beats per minute otherwise than that there was every chance that the baby had died in utero. It follows, as I have said, that I do not regard the delay whilst he attempted to locate the foetal heart rate as a breach of his duty of care.
114. Dr Antony gave evidence that if there was any chance of saving Lainie it had to be in the first 10 to 15 minutes. She also said that it is possible that she would not have suffered permanent brain damage if an immediate Caesarean section could have been performed but she would not go to highly likely because she did not have enough information. I do not consider that this opinion affects the probability that had Lainie been delivered in that 10 to 15 minutes that she would not have suffered the brain damage that she did. Ultimately, when Mrs Radovanovic was taken to the operating theatre for Caesarean section her baby was delivered within 5 minutes. If Dr Cutter had performed his vaginal examination of Mrs Radovanovic in the operating theatre in a position where he could proceed to an immediate Caesarean section, then I am satisfied on the balance of probabilities that the brain damage suffered by Lainie would have been avoided.
The duty of care
115. Having regard to those findings the issues in this case then resolve themselves into identifying the duty of care owed to the plaintiff by Dr Cutter and whether any breach of that duty caused the plaintiff's injury.
116. Dr Cutter owed a duty to take reasonable care and skill in the provision of specialist medical advice and treatment to the plaintiff's mother. The standard expected is that of the ordinary skilled obstetrician. It was not in issue in this case that, notwithstanding that the injury that she sustained occurred before the plaintiff was born that duty extended to her as a member of a class of persons to whom a duty to take care was owed (X and Y (By her tutor X) v Pal and others (1991) 23 NSWLR 26)
117. The duty owed is a single comprehensive duty to exercise reasonable care and skill Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 487, 489. The generalisation implicit in that duty was commented upon by Gaudron J in that case at 492-
The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practising in the area concerned (52). To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk.The matters to which reference has been made indicate that the evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment. However, even in cases of that kind, the nature of particular risks and their foreseeability are not matters exclusively within the province of medical knowledge or expertise. Indeed, and notwithstanding that these questions arise in a medical context they are often matters of simple commonsense.
118. On behalf of the plaintiff it was put that in view of the fact that Mrs Radovanovic's pregnancy was fairly described as a high-risk pregnancy this informed the content of the duty of care. I have some difficulty with this proposition if it suggests a standard of care other than that which is reasonable in the circumstances. I accept that as in Burnie Port Authorities v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 554 in the case of dangerous substances and activities a reasonably prudent person would exercise what is described as a higher degree of care. That is because those activities call for additional things to be considered and done because it is reasonable to consider or do them in the particular circumstances. It is in this light that I approach the duty owed by Dr Cutter to his patient.
The duty of care in this case
119. I have previously referred to Dr Cutter's failure to appreciate when he was telephoned on Mrs Radovanovic's admission to the hospital that Mr Radovanovic had a heavy bleed at home. In this context, that fact and the fact that Mrs Radovanovic was a high risk pregnancy means that Dr Cutter failed to do that which he should have done in the exercise of the reasonable care and skill that he should have exercised. He should have immediately ordered cross matching of blood and have attended the hospital. He says so himself, if he had appreciated that Mrs Radovanovic had had a heavy bleed at home.
120. The effect of that failure however did not mean that he should have immediately proceeded to Caesarean section as is contended on the plaintiff's behalf. The question of whether that should have been done was dependant upon whether it was ascertained that the baby's head was engaged and whether with knowledge of the large bleed he could safely exclude the presence of any degree of placenta praevia. The fact that Mrs Radovanovic's pregnancy can be classified as high risk does not require that such a procedure was immediately required. What, however, was required was for Dr Cutter to attend the hospital.
121. If he had attended the hospital, at that time, Mrs Radovanovic would not have been in labour. Dr Cutter says that if he had attended the hospital at that time he would have then waited until Mrs Radovanovic went into labour and then he would have proceeded in the manner that he did proceed. It is put on Dr Cutter's behalf that if he had attended the hospital at that time he would have ascertained that the baby's head was engaged and that he would have ascertained by speculum examination that the stitch was the cause of the bleed at home. I have considerable doubt about accepting that latter proposition, as I do not consider that the proposition is supported by Dr Cutter's assessment that he made when he in fact inspected Mrs Radovanovic's cervix on speculum examination. That examination disclosed no injury that could be attributed to the stitch "cutting out" and his assessment of blood that he observed in the cervix he could presume was the cause of what he, at that stage, believed to be a small antepartum haemorrhage.
122. It is not possible to speculate with any confidence what the situation would have been had Dr Cutter immediately gone to the hospital. In any event I consider that had Dr Cutter attended the hospital at that stage he was justified in waiting until Mrs Radovanovic went into labour and before that stage there was no immediate requirement to perform a Caesarean section. However, the fact that he had not appreciated an important aspect of his patient's history or the time of the telephone call increased the imperative that he apprise himself of it to enable him to properly manage his patient.
123. As I have said, he owed a duty to obtain a proper history to enable him to undertake her proper management. That history was available from the patient, the hospital staff and the hospital notes and it was his duty to obtain it. Because he did not obtain that history, at no stage during the course of the events that night did he consider the possibility of placenta praevia because he was not aware, and did not make himself aware of the extent of the bleed that Mrs Radovanovic had at home.
Breach of duty of care
124. Accordingly, in view of the large bleed at home Dr Cutter owed the mother and baby a duty to ascertain and exclude the presence of a placenta praevia. This he could have done by abdominal palpation to ascertain the engagement of the baby's head. By his failure to be or make himself aware of the history of the large bleed which had brought Mrs Radovanovic into the hospital and by not conducting the abdominal palpation, he was in breach of his duty of care.
125. On Dr Cutter's behalf it was put that he could not be held liable in negligence in circumstances where he was acting reasonably at the time when those acts or omissions which immediately caused the damage complained of fell within the bounds of reasonable care.
126. That submission assumes that there was no breach of the duty of care at the time Dr Cutter artificially ruptured the membranes. However, I have found the artificial rupture of the membranes should not have taken place at that time and place.
127. That conclusion is also an answer to the submission that was put that, even if it were found that Dr Cutter did not ascertain whether the head was engaged by abdominal palpation prior to a vaginal examination and accepting that the head was in fact engaged, the failure to perform that examination would have caused no damage. It was agreed by all the experts and by Dr Cutter that, in the absence of ascertaining the engagement of the baby's head, a vaginal examination in the absence of a finding whether the baby's head was engaged or not, could not be justified in any place other than an operating theatre where there was an ability to proceed immediately to caesarean section.
The scope of the duty of care and issues of remoteness
128. It was then put on the issue of causation a plaintiff would ultimately fail unless it could be established that the relevant negligent acts and omissions of the defendant materially contributed to the harm or damage of which complaint is made. In that regard it was said that attention needed to be paid to the scope of the duty of care. Emphasis was placed on the diagnosis in respect of a suspected placenta praevia having consequences for the mother not for the foetus. It was said the foreseeable injury was an injury by haemorrhage of maternal blood endangering the mother not the foetus.
129. The issue of whether this aspect should be considered as a reasonably foreseeable injury as being "outside the scope of the duty" or "too remote" was described by Lord Hoffman in Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 3 All ER 409 as a matter of taste. His Lordship went on to say [at 418]-
It is also agreed that what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk which ought to have been foreseen.
130. It was put that, in this case, the harm in fact caused was quite outside any risk foreseeably attributable to Dr Cutter's conduct. The submission relied heavily upon the case of Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518. In that case an asbestos cement cover fell into a bath of acid and it was foreseeable that workmen nearby might be burned by the splash as it fell. The cement cover fell into the acid but rather than a splash, the acid reacted chemically with the cover and caused an explosion splashing and burning the plaintiff. It was held that although this was damage of the same kind it was not damage of such a kind as could reasonably have been foreseen.
131. The reasoning in that case was discussed by McHugh in Nader v Urban Transit Authority of NSW [1985] 2 NSWLR 501 at 533-
When the plaintiff depends upon proof of some damage to complete his cause of action, his case may fail for one of two reasons. First, the damage suffered may not be of the same kind as that which could be reasonably foreseen as a possible result of the defendant's careless act or omission. Damage by the ignition of furnace oil is not the same as damage by fouling by furnace oil: The Wagon Mound (No 1). Secondly, according to the decision in Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518, even when the damage is of the same kind as that which was reasonably foreseeable as a result of the defendant's negligence, the action may still fail. It will fail if the manner in which the damage occurred was not reasonably foreseeable in a general way. This is because the damage which occurred is not within the ambit of the risk of harm arising from the defendant's careless act or omission. In Doughty the Court of Appeal held that, if the foreseeable risk of injury from allowing a cover to fall into a cauldron of hot molten liquid was burning by splashing, the defendant was not liable for burning by splashing by an unforeseeable explosion caused by the cover falling into the liquid. Nevertheless, it is only when the damage can be said to be the result of a completely different "accident" that it will be outside the foreseeable risk of harm.
It is the last sentence which qualifies the effect of Doughty and its possible application to this case. I am not able to say that manner in which the damage occurred in this case was not reasonably foreseeable in a general way. It was not a completely different "accident" even if a distinction can be made as to the kind of damage suffered.
Association of vasa praevia and placenta praevia
132. Dr Patterson gave evidence of only an occasional association of vasa praevia with placenta praevia. That evidence was at odds with evidence given by Professor Beischer that there was an almost invariable association for vasa praevia to be associated with a placenta praevia. Dr Beavis was of the view that you would expect there to be a placenta praevia if there was a vasa praevia. Professor MacGillivray was of the view that vasa praevia is commonly associated with placenta praevia. In cross examination he gave a somewhat confusing answer on this issue. He was asked-
You've said that in your opinion vasa praevia - I think I got this right - you're saying that when there is a vasa praevia, you commonly have a placenta praevia?---That is correct.And vasa praevias are - you don't normally have a vasa praevia when there's a placenta praevia? ---No.
And I'd suggest to you that there was a respectable body of medical literature and publications in 1980 that suggested that the association if any, between vas praevia and placenta praevia was uncommon?---Yes. Can I add to that velamentous insertion of the cord is common with placenta praevia. Sorry, yes, with placenta praevia. Not necessarily vasa praevia, but with placenta praevia velamentous insertion of the cord is common.
The matter was not taken any further.
It was Professor Bennett's understanding that about half of vasa praevias were associated with placenta praevia.
133. Dr Patterson, on the other hand, in evidence said that he had revised a view that he had formerly held that 50 per cent of vasa praevias were associated with placenta praevia. He restricted the association to an occasional association in reliance upon an article that he regarded as the most relevant. He was extensively and exhaustively cross examined as to this change in his view and a number of text books and articles were put to him. The point of the association was not so much to assist in a diagnosis of the condition as to the extent of the contemplation that might be had of it arising from a suspicion of a placenta praevia. The article upon which Dr Patterson relied (Kouyoumdjian A, "Velamentous Insertion of the Umbilical Cord" (1980) 56 Obstetrics and Gynecology 737) was concerned with the velamentous insertion of the umbilical cord and contained this statement under the heading "Prognosis"-
Vasa previa is a unique obstetric complication in which the fetus [sic] is a maximum risk while the mother is at no risk at all (except for the occasional association of vasa previa with placenta previa [sic] ).
In the result, it may be a matter of semantics, as Dr Patterson seemed to be saying at the conclusion of his cross examination, when he was asked-
Doctor, after all the evidence last week about the literature and text views about the connection between placenta praevia and vasa praevia, what is now your view about the frequency of the incidence of the two conditions? Is it still occasional association or have you reverted to your original view of 50%?Right through the last 5 days I've had trouble quantifying this figure. In order to try and be helpful, I felt that a fair assessment would be about 50/50. Whether that construes as occasional or frequent or infrequent is in anyone's mind. In my mind they're synonymous.
The important point to my mind is that none of the above establishes that contemplation of the condition in its association with placenta praevia can be said to be farfetched or fanciful.
134. It may be noted that Professor Bennett, as a generalisation, regarded the contemplation of placenta praevia involving in the mind of the ordinary skilled obstetrician, the possibility of risks to the health of the mother and the foetus from bleeding associated with the placenta praevia as well as the risks associated with the vasa praevia. In addition, his evidence as to an examination to exclude placenta praevia by way of a vaginal examination in the operating theatre was to this effect-
All right. Now making the assumption that - sorry, I withdraw that. If such a vaginal examination took place otherwise than in an operating theatre, that created a risk of haemorrhage, did it not?---Yes, it might have done.And that's at least one if not the major reason for carrying out this examination in an operating theatre?---It would be prudent to do it in an operating theatre, yes.
And the risk of haemorrhage - I'm sorry. The happening of a haemorrhage could result in an injury to mother or foetus?---Yes, if it was a very big bleed.
And that injury could involve brain damage of the foetus?---Yes, it's exceedingly rare, but yes.
And in this instance - I'm sorry, I withdraw that. And if there was a vasa praevia and that vaginal examination took place, then it was at least possible that the vaginal examination would result in the rupture of the velamentous insertion - the vasa praevia vessels?---Its distinctly improbable but it's possible.
And if this investigation had taken place in a theatre then you're suggesting, aren't you, that it was a theatre set up for immediate caesarean section if that were necessary?---If the consideration was a placenta praevia, then yes.
So that if there was a rupture of a vasa praevia in these circumstances, immediate delivery by caesarean section could have taken place?---In theory, yes.
Foreseeability of the kind of damage
135. This aspect is relevant to whether Dr Cutter's breach of duty caused damage to the plaintiff' within the area of foreseeable risk. After citing Mason J (as he then was) in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 467 to the effect that "where there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing, or materially contributing to that damage, should it occur, subject to the question whether performance of the duty would have averted the harm," Gaudron J in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 420-1 said-
...generally speaking, if any injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.
136. In my view there is considerable force in the observation in Luntz (2002) 4th ed at para 2.1.14 that-
Where reasonable care would require the defendant to take precautions to reduce the risk of harm of one kind, it will seldom be held that there is not a similar obligation in respect of a less likely risk, as long as it is not far fetched or fanciful.
In the present case, the risk has been shown to be, at the least on Professor Bennet's evidence, a circumstance to be taken into account. If the duty is regarded, as I do regard it, as a duty to exclude the possibility of a placenta praevia of any degree consequential upon the history of the large bleed at home and until such exclusion to not conduct a vaginal examination in any place other then in an operating theatre then it is not possible to say that the breach of the duty had no effect.
137. Where what is in issue is foreseeability in the context of a breach of duty it is not really a question of probability or improbability of occurrence. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Mason J (with Stephen and Aitken J J expressly agreeing) said (at 47)-
A risk of injury which is quite unlikely to occur, such as that which happened in Boston v Stone [1951] UKHL 2; [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to b a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
138. In Chapman v Hearse and Anor [1961] HCA 46; (1961) 106 CLR 112 at 120-121 the High Court said-
But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.
The evidence, to which I have referred of the association of vasa praevia with placenta praevia, shows the possibility of injury not only to the mother but also the plaintiff in the management of the possible existence of a placenta praevia.
139. On Dr Cutter's behalf specific reference was made to the High Court's decision in Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383. But that case is authority for the proposition that it is not necessary for the precise harm to have been foreseeable, if harm of the same kind, class, character or type as that which was reasonable occurred. As Barwick C J said in that case at page 390-
But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established.
To a similar effect see Windeyer J at 402-405 and Walsh J at 413-414. In light of the evidence I am satisfied that the relevant risk cannot be regarded as too small or too remote and is of class of injury, namely damage sustained by reason of precipitation of bleeding which ought to have been foreseen as a possible consequence of Dr Cutter's conduct.
140. The argument was put on the basis that injury, mainly to the mother but possibly to the foetus, could have occurred by the detachment of the placenta praevia and the consequential maternal bleeding. What was said to be not foreseeable was the injury to the foetus by the loss of foetal blood consequent upon the rupture of the vasa praevia. However, once it can be said that there is a possible association of the comparatively rarely encountered vasa praevia with a placenta praevia the question is not one of foreseeability of risk but rather foreseeability of harm of the kind caused by the defendant's negligent act.
141. Accordingly, I am satisfied that Dr Cutter's breach of his duty of care to the plaintiff caused the injuries which she sustained at birth.
Damages
142. The case in respect of liability in this matter extended from October 2000 until April 2002. During that time, I was told that the parties were separately working upon a Schedule of Damages. I was also told that it was hoped that there would be some large measure of agreement between the parties as to these damages. That was not to be and, ultimately, I heard detailed submissions on the Schedule that had been prepared comprising some 151 paragraphs. There were two very fundamental points of difference that required determination on evidence called before me. They were the questions of the plaintiff's life expectancy and the appropriateness of private home care for the plaintiff. Although evidence was called in the course of the trial with respect to the issue of life expectancy, no oral evidence was called in respect to any of the other contested matters in damages. I refer later to the difficulties that this causes both as to the contest over the appropriateness of home care as well as the costing of a considerable number of major and minor items detailed in the Schedule. Actual expenditure in a number of instances is not provided but is replaced by advice on what expenditure could be expected. Most costings were made in about 1996 when presumably the matter was expected to go to trial within a short time. The resolution of the difficulties occasioned by this approach has contributed greatly to the length of time in giving judgment in this matter.
The injuries sustained
143. Lainie is now 24 years of age. She was profoundly disabled from birth. She required treatment in the intensive care unit for six weeks from her birth. Her treatment included anti-convulsant therapy to control her fits. While I do not have the various reports and correspondence of Dr Crawford, the paediatrician who attended at her birth and who saw her at least for her first 13 years, I do have the description and explanations by Dr Harbord of her injuries. It is agreed that as a consequence of the asphyxia which Lainie sustained at birth, that caused cerebral palsy. Cerebral palsy is a chronic disability of the central nervous system characterised by aberrant control of movement or posture. Dr Harbord described Lainie's condition as that of cerebral palsy with spastic quadriparesis, an intellectual disability, a small head size, and a history of epilepsy. The consequence is that Lainie had a significant developmental delay and has developed the spastic quadriparesis accompanied by her intellectual disability and epilepsy. Over time, she has had aggressive behaviour outbursts. There have been no concerns about her hearing but she had astigmatism at birth and subsequently developed myopia in her left eye. This eyesight deficiency was not related to her brain damage, but she did develop a turn in her left eye to which some contributing cause could be a neuro-muscular paresis. Overall, it appears that her general health has been satisfactory with no episodes of aspiration pneumonia. Between 1984 and 1994 she has had a number of surgical operations to ease the spasticity in her legs and has been hospitalised on many occasions. In 1985 she underwent bilateral heel chord lengthening with a view to assisting her to be able to weight-bear and to walk. During this time she underwent considerable physiotherapy treatment. When she was 11 years old, she underwent an operation on her left and right thighs involving a period of hospitalisation with plaster cast and immobilisation for some six weeks. The procedure also involved the metal implants being removed some six months later. Generally she has had operations on her hips, legs and feet related to her spasticity.
144. On 15 June 1998, Lainie was involved in a motor vehicle accident. That accident resulted in severe behavioural and emotional disturbance and for the next two years she was treated with various medications, finally settling down to her pre-accident state at the start of 2000. It is plain from Mrs Radovanovic's evidence that the effects of the accident still provide obstacles to be overcome. Mrs Radovanovic described Lainie's behavioural regression brought about by the accident and her sleep disturbance as difficulties which she, her husband and the carers were working through. She has feeding problems and has some problems with constipation. In 1987 she had an epileptic seizure and thereafter she has been treated with the drug Tegretol. For a while she was able to walk using a walking frame.
145. Her developmental milestones have been delayed and she has always attended a special school up until the year 2000. She is mentally retarded. When she was examined by Dr Tom Sutton when she was 10 years old he concluded that her IQ was at a mental retardation level of 36 points placing her in the bottom .01 percentile group. He concluded that her average range of functioning across a range of abilities is around two to three years old and every day comprehension and common knowledge varies between two and six years of age. He was of the view that she would always remain at the approximate levels that she was then functioning. That is the view that the parties have accepted.
146. I take for present purposes the report that Professor Oakeshott made following a consultation with Lainie and her mother on 26 February 2000 -
GeneralShe presented as a pleasant happy person somewhat overweight for her age.
She could manouvre her electric wheelchair through the house without difficulty.
She spent a good deal of the time of this consultation in another room listening to music. She sang the songs and appeared to know the words. She demonstrated a good sense of humour.
She was aware of her surroundings and interacted with her mother and myself in an appropriate fashion. She did not demonstrate an ability to participate in meaningful conversation.
Mobility
She cannot stand.
She has a spastic quadriparesis. This is a partial paralysis of her arms and legs. She has difficulty bending her knees.
Her arm movements are associated with tremor. She has virtually no useful movement of her legs. She cannot transfer herself from her chair. She has been provided with a special hoist for standing and transfers which I was shown in use.
She has good control of her electric wheelchair and uses a hand control. She is unable to propel herself in an ordinary chair.
Transfers
She requires one person and a special hoist for transfers from her chair to the toilet.
Two people are required to lift her and toilet her when she is away from home and the special hoist is not available.
Activities of Daily Living
She is unable to dress herself. Two people are required.
She cannot cut up her food or prepare meals.
She can feed herself slowly with a special spoon, fork and plate. She requires a bib.
She can hold a cup but her drinking has to be supervised as she `gulps' quickly and tends to choke.
She is unable to groom herself or clean her teeth properly.
Bladder/Bowel Management
She is continent. However, she requires total assistance with toileting (either 2 people or one person and a special hoist as described above).
Behaviour
She was happy and showed no signs of aggression whilst I was with her. Her behaviour was a little inappropriate in that she spent a good deal of time in another room singing whilst I was at her home.
She requested that her mother take her to the toilet during this consultation. This took approximately half an hour.
Medications
Her daily medications include:-
-Anti-epileptic medication to prevent seizures. This commenced shortly after birth. She has not had a significant seizure recently and her medications appear to be effective.
-Mediation for behaviour control. These appear to have become effective.
-Medication for control of her menstrual cycle.
Speech
She is often difficult to understand (dysarthria) and does not initiate conversation.
She is unable to read and write.
Activities
She has no hobbies.
She enjoys music.
She enjoys company of others, particularly of her own age. She enjoys going out to lunch with her carers, and enjoys outings.
She plays cards ("Snap") with her mother.
She has a good sense of fun.
OUTLINE OF DAILY ACTIVITIES
The routine of her average day during the week is as follows:-
7am-8am Carer attends. She is bathed, toileted and dressed. A special hoist is used.
8.am She feeds herself breakfast slowly with special equipment. Mother prepares breakfast.
9am-3pm She attends a special school (this is her last year). She travels in her electric wheelchair in a special bus.
There are no plans for her activity during this time from next year onwards.
3pm She leaves school on special transport for her wheelchair.
On Monday she attends a Drama Group for People with Disabilities (PWD). She is home by 6.00pm.
On Tuesday she attends a music program for PWD.
On Wednesday, Thursday and Friday she is home by 3.30pm. A Carer is available from 3.15pm to 5.15pm.
6.pm She is toileted by her mother and dinner is prepared for her.
6.45pm She is in bed. Her feet and legs are massaged and moved passively to prevent contractures, by her mother or a carer who attends on Tuesday and Thursday evenings.
10.30pm She is taken to the toilet by her father (hoist used).
Note. (1) Every second week-end she goes to Respite Care from Friday evening until Monday morning (ACT Society for Physically Handicapped).
She prefers being at home.
(2) On the other alternate week-end a carer arrives at 11.30am on Saturday and she travels by wheelchair accessible cab with the carer to Woden Shopping Centre. She is met by a second carer and has lunch with both carers.
Two carers are required for her to toilet. The additional carer leaves at 2.00pm and she is escorted home at 2.30pm. The carer remains until 5.00pm.
(3) When at home on the week-end a carer also comes for about one hour at about 9am for bathing, toileting and dressing.
(4) Her mother and father both have full time jobs.
(5) Prior to the motor vehicle accident in June 1998, she began to need two carers for transfers and toileting purposes when away from home because of her increasing weight. This need continues.
Since the accident the carers prefer to use a special pan for toileting rather than transfer her to an ordinary toilet which has become extremely difficult.
(6) She finishes attending her special school this year and no plans have been developed for her daily activities next year.
The Video
147. In addition, tendered in evidence was a video taken over the course of part of a day showing Lainie's activities in respect of what were described as some typical episodes in her life. That video largely confirmed the observations of Professor Oakeshott and certainly satisfied me of the frustration that the plaintiff suffers, and obviously knows she suffers, in her daily life by her inability to communicate and participate in daily life to the extent that others can.
148. The defendants provided me with a written summary of what was shown on the video, which was really a commentary from the defendants' perspective on what was depicted. It was then sought to rely upon some of the aspects as confirming, for example, Professor Oakeshott's observation that Lainie, when drinking, " `gulps' quickly and tends to choke". I do not regard the video as confirming that the problem that Lainie has with drinking is as nearly serious as the defendants would put it. The video did confirm the frustrations that manifested itself into the behavioural problems which also translated into Lainie biting her hand because of them. The video showed Lainie being put to bed and it was plain that the carer had to roll her onto her stomach for sleep. The video did demonstrate that Lainie could raise her head a little on the bed and turn it. The question of Lainie's ability to roll plays a significant part in the assessment of her life expectancy. Lainie's speech is difficult to understand but that would certainly demonstrate the need for on-going speech pathology. The video demonstrated the way in which Lainie was able to communicate her needs to her mother and her carers who were familiar with her idiosyncrasies. The video also demonstrated the high quality of care that Lainie receives as well as the need for it. The exceptional love, commitment and attention given by her parents appears as a marked feature contributing to the environment that she has been brought up in.
Life expectancy
149. A major issue in this matter is the question of Lainie's life expectancy. The importance of this issue cannot be underestimated because it bears upon all the heads of damage claimed by the plaintiff that will extend on a continuing basis for the remainder of her life. I was asked by the plaintiff to consider the reports and oral evidence of Dr Harbord and that of Dr Buckley, an experienced rehabilitation physician, together with the reports put in evidence, by consent, of Professor Oakeshott, also a very experienced rehabilitation physician. The defendants put before me the reports and oral evidence of Dr Bowers and Dr Antony. Each of the experts were not challenged as to their qualifications or expertise, although on behalf of the plaintiff it was suggested that Dr Bower's experience as a specialist rehabilitation physician had not exposed him to many cerebral palsy patients. However, Dr Bowers relied upon certain scientific papers and his extensive experience in respect of patients with traumatic spinal or brain injury. It was also put that Dr Antony's clinical experience was limited as she generally did not see such patients older than 15 or 16 years but I do not think that should cause me to discount her reasoned views.
150. I am mindful that life expectancy in the case of persons with cerebral palsy was an issue substantially canvassed by Justice Whealy in Simpson v Diamond [2001] NSWSC 925, 5 November 2001. In that case, Drs Buckley, Bowers and Antony were called together with certain other experts to assess the life expectancy of the plaintiff in that case who was born less than 12 months before the plaintiff in this case and who, like the plaintiff here, sustained cerebral palsy as a consequence of her birth.
151. While I am informed by the careful analysis made by Whealy J in that case, of the evidence put before him, I recognise the plaintiff's case must be determined on the evidence put before me. In that regard, although the three doctors adopted a similar approach with respect to the evidence as to life expectancy that they gave in that case, it differed markedly in detail and emphasis in this case.
152. Nevertheless, the debate which Whealy J identified in Simpson v Diamond (supra) between the statisticians on the one hand, and the clinicians on the other underlies the difference in the expert evidence presented to me. The evidence of Dr Bowers was fundamentally focussed upon the statistical material derived from an article by Strauss and Shavelle, Life Expectancy of Adults with Cerebral Palsy published in the Journal of Developmental Medicine and Child Neurology, 1998, Volume 40, 369-75 (the Strauss and Shavelle article), which provided the basis for his opinion that Lainie had a life expectancy to 57 years. Dr Antony, who examined Lainie, gave her assessment based upon her clinical examination and said that, in a broad sense, the article that Dr Bowers had relied upon supported her assessment but she did not elaborate on how it did so. I add that, in her evidence before me, she was prepared to increase her initial estimate of a life expectancy for Lainie which she first assessed as the early to mid fifties by an additional five or ten years to reflect expected medical advances in that time. By contrast, Dr Buckley's evidence before me was predicated on not finding any specific reason why Lainie's life expectancy should be reduced and in distinguishing her situation from the studies providing statistical material.
153. The plaintiff also relied upon Dr Harbord and Professor Oakeshott who together with Dr Buckley placed no weight on the Strauss and Shavelle article relied upon by Dr Bowers but rather concentrated on determining whether there were any factors that would reduce the plaintiff's normal life expectancy which was generally agreed to be 86 years (Life Tables Australia 1998).
Dr Harbord's evidence on life expectancy
154. Dr Harbord, in his original report, was of the view that the plaintiff had over a 95% chance of having a life span similar to other young adults her age. He revised that opinion in his oral evidence on subsequently learning that her intellectual disability was in the severe category. The plaintiff argued that the 90% chance referred to by Dr Harbord should be calculated on the remaining span of the plaintiff's years. That is, that at the agreed time of hearing (13 August 2001), Lainie was approximately 21.5 years of age and looked to a further 65 years. Accordingly, it was put that the plaintiff's life expectancy at 21.5 years of age was 90% of the additional 65 years, that is 80 years. I do not take his evidence to mean that. Although Dr Harbord was not asked to quantify in terms of years, I regard his reference to lifespan as the 86 years to which the Australian Life Tables, which were put in evidence, provide for and accordingly regard his revision to be to 76.4 years as the anticipated lifespan. Dr Harbord gave no further reason for this adjustment.
Dr Buckley
155. Dr Buckley gave evidence that in his view the plaintiff would have a normal life expectancy. He had conducted a clinical examination of Lainie and he gave his opinion on the basis that provided she received appropriate levels of care, the factors which impact upon life expectancy would not, in her case, reduce it. He said that his opinion was based upon his clinical experience and on studies of life expectancy in connection with which he relied upon an article by Richard K. Eyman, Herbert J. Crossman, Robert H. Chaney and Thomas L. Call, Survival of Profoundly Disabled People with Severe Mental Retardation, published in the American Journal of the Disabled Child, March 1993, Volume 147, (the Eyman article). He looked at the overall range of characteristics that the plaintiff has and sought to correlate that with the sub-groups in the article upon which he relied. He expressed the view that the plaintiff's overall pattern of characteristics was better than the grouping of characteristics described in the article and that her life expectancy was accordingly better than any of the subjects actually described in the article. That led him to the opinion that in the Australian context, her life expectancy was normal. He further qualified the article and its applicability to the plaintiff because it referred to the United States and he took the view that the level of care available to disabled people was significantly less in that country than that available in Australia, certainly between 1980 and 1992 being the time of the survey.
Dr Bowers
156. The reference by Dr Buckley in his oral evidence to the Eyman article, laid the foundation for the first defendant to produce evidence from Dr Bowers who, relied significantly upon statistical material contained in certain medical journal articles as evidencing a reduced life expectancy in persons with cerebral palsy. He did not examine Lainie. Dr Bowers referred generally to the effect that feeding and mobility problems might have on reducing life expectancy as well as the effect that severe mental retardation might have.
157. In his written report, Dr Bowers extrapolated from the tables set out in two of the articles and a graph in the other in order to arrive at an estimated life expectancy for Lainie of an additional 37 years to live. Those articles were the Eyman article and the article by Strauss and Shavelle to which I have earlier referred, together with a further article, Long-Term Survival of Children and Adolescents After Traumatic Brain Injury, published in the Journal, Archives of Physical Medicine and Rehabilitation, Vol 79, September 1998 which was also authored by Strauss and Shavelle, together with Terence W Anderson (the Strauss, Shavelle and Anderson article). These last two articles were specifically directed at survival based on classifications of functional levels as to feeding and mobility. They related to subjects who received disability services in California between 1980 and 1995 in the case of the Strauss and Shavelle article and between 1987 and 1995 in the case of the Strauss, Shavelle, Anderson article. The Eyman article was more broadly based but studied profoundly disabled people with mental retardation in an 11 year period between 1980 and 1991. In his evidence before me, Dr Bowers conceded, in effect, that it was not desirable to do a strict extrapolation from these various tables or, more particularly, the more detailed analysis that the authors of the Strauss and Shavelle article say would be achieved by a Cox proportional hazard survival model. This analysis, the authors say, would give more appropriate estimates of life expectancy and survival probabilities. Such an analysis could be expected to determine the risk and hence the excess risk relative to the general population. But nevertheless, Dr Bowers, rather than doing this, adjusted his estimates for life expectancy further on the basis of his clinical experience and not just in reliance on the paper. If that be an appropriate approach, I find it curious and unconvincing that in his original written report, Dr Bowers should derive estimates of life expectancy from each of the articles to which he refers and then adopts the average of them.
Professor Oakeshott
158. Dr Bowers' approach was specifically criticised by Professor Oakeshott, another well-respected rehabilitation physician, whose reports were tendered before me without Professor Oakeshott being called. Professor Oakeshott's criticism of Dr Bowers' review of the articles is not particularly satisfactory. Whilst he was referred to the three articles upon which Dr Bowers reports, he discusses in detail only one of them, the Eyman paper, and explains the reasons why it is less than satisfactory to rely upon it. He does not discuss at all the Strauss and Shavelle article upon which Dr Bowers primarily relied upon in his evidence before me. Professor Oakeshott's overall criticism is as follows -
* He [Dr Bowers] has based his estimate on dubious scientific calculations only without the benefit of a clinical examination.* Her [the plaintiff's] brain damage, in itself, is not life threatening or progressive. It can be considered stabilised (static).
* Her full cognisant and communication potential will be realised with skilled and appropriate management.
* Her awareness and ability to communicate will certainly be favourable factors to regard her life expectancy.
* Her physical disabilities require a high level of skilled supportive care and this is outlined in my report of 26 February 2000. With this level of care her physical disabilities will not be life threatening.
* She has no medical reason or condition at present that has been identified that would shorten her life span.
* Her early death in relation to her present brain injury and disability could only be caused by complications (such as pneumonia, septicaemia) and there is no evidence that she is at risk for such complications. Eyman et al in his article indicates that "prevention of complications" is the best approach. I agree. This is best achieved with skilled supportive care.
* Complications can be avoided by a high level life-time supportive care which is also necessary for her sustained quality of life which, I believe, is a reasonable management objective.
159. Part of Dr Bower's response to this criticism is that the Strauss and Shavelle article demonstrates a definite relationship between significant mobility problems and reduced life expectancy. I think that this may well be so but I agree generally with Professor Oakeshott's criticism that no real basis has been shown to extrapolate figures to arrive at life expectancy in the way that Dr Bowers has. It seems to me that Dr Bowers, and each of the other experts, on the basis of these articles would be justified making some allowance to reduce the plaintiff's life expectancy perhaps because of her intellectual disability and certainly because of her lack of mobility, but I cannot agree with the purported scientific basis of getting to that point that Dr Bowers adopts.
Dr Antony's evidence on life expectancy
160. Dr Antony also gave evidence of her estimate of the plaintiff's life expectancy. She saw Lainie in 1997 when Lainie was aged 17 years. She reported that Lainie could hold a cup and drink from it as well as feed herself with a fork and spoon using a bowl. She also reported that Lainie had a normal diet and had not suffered episodes of aspiration. She reported -
Despite her severe neurological handicaps, Lainie happens to be in excellent general health and has none of the potentially life threatening difficulties which can occur in children who have cerebral palsy. Her ability to chew and swallow is normal. She does not have problems with saliva nor with aspiration of food. She has had seizures in the past but they have been very infrequent and are well controlled on one anti-convulsant medication. She has mild scoliosis [curvature of spine] which I do not feel will become much worse since she has already gone through her adolescent growth spurt. Her poor circulation to the legs and her tendency to have pressure sores at the heel are a bit of a worry but I do not think that this problem is very likely to be life threatening.
161. Dr Antony concluded that she did not feel that it was very likely that Lainie would have a perfectly normal life span but did not foresee that she would die at an unusually early age. Her estimate for life span was that she would survive up to her early or mid 50s.
162. In her evidence before me, she referred to the paper by Strauss and Shavelle as being accepted in the profession as the study thought to be the best in respect of its statistical aspects. She did not profess reliance upon it but said that in a broad sense it agreed with her opinion that Lainie would live into her 50s and that she would not have a totally normal life span. She did not regard it as impacting on her opinion in a major way.
163. Dr Antony's reasoning as to the figure that she settled on appeared to be intuitive. She thought it possible that Lainie might live longer but was not really prepared to speculate upon the magnitude of that chance. She said that she would be extremely surprised if Lainie lived to 85, that she could be sure of 55 and conceded that surviving to age 75 would be a better chance than living to 85 as well as the chance that she could live to 65 but was unable to put a figure on what that chance would be. She eventually also said that a factor to take into account was that care improves with time and that was a factor that would tell against a low estimate of life expectancy. She was prepared to concede a further five to 10 years related to improvements in care if, in fact, there were those improvements.
164. Each of the problems that she identified in her evidence as relating to Lainie ultimately did not seem to impact on life expectancy. The fact that Lainie had no history of aspiration pneumonia meant that there was no objective reason for Dr Antony to conclude that problems with feeding would impact upon life expectancy. Dr Antony did not expect epilepsy at Lainie's age to become an issue again. Lainie's scoliosis was unlikely to worsen or impact upon life expectancy and she did not think it very likely that pressure sores would result in a problem that was going to become life threatening having regard to the care that Lainie gets. She did make the point that severe immobility is one of the factors which she said is "supposed" to affect life expectancy and that ageing will take its toll more on those who cannot exercise.
165. Allowing all these matters, I find it difficult to think that Lainie's life expectancy would be as low as Dr Antony would estimate even taking the higher of her estimates.
The studies on life expectancies
166. As I have said, each of the experts called, to a greater or lesser extent, referred to the papers that had appeared in medical journals to support their estimate of the plaintiff's life expectancy. There was no agreement as to the appropriateness of the particular articles to which reference was made, much less their application. Dr Harbord referred, in passing, to an article by Crichton, McKinnon and White The Life Expectancy of People with Cerebral Palsy, published in the Developmental Medicine and Child Neurology (1995) Vol. 37 pp 567-576. He referred to it generally for proposition that the presence of an intellectual disability would have the effect of reducing life expectancy in persons suffering from cerebral palsy. The article was not put in evidence before me, nor was he cross-examined on it. Nor was he cross-examined on the applicability of the later articles which were relied upon by the other experts and put in evidence before me. Dr Harbord's original report contained no reference to any articles and it was not until he gave his evidence before me on 30 October 2000 that reference was made to this article in response to a question in cross-examination.
167. Dr Buckley's report of 11 June 1996 also contained no references to any articles upon which he relied but when he came to give evidence before me on 1 November 2000, he made reference to a number of articles. He expressed the view that the article by Crichton, to which Dr Harbord had referred, was a study concerning life expectancy of persons living in institutions compared to those living in the community and that he did not regard it as relevant to the situation that he was here considering. For his part, he took as his reference point the Eyman article. He discounted the results published in that article of additional years of survival on the basis that Lainie performed better than the categories used to compile the tables in that paper. In particular, he regarded Lainie as performing better than a table which described as a category persons who were "immobile, were fed by others, could roll, were incontinent, had some arm/hand use and had severe, profound, or suspected mental retardation". Whilst he considered that Lainie did not fit the category of "could roll", in all other respects she could be regarded as better than that category. Accordingly, he expressed the view that the article did not impel him to consider that there would be a reduced life expectancy. He seemed fortified in his conclusion that his view that particularly the years from 1980 - 1992 he considered the standard of care provided in America to be inferior to that provided in Australia. He was also referred to the Strauss and Shavelle article. He discounted the force of that study as being a derivative one from the Eyman study that he had described as not containing the detail of the specific disabilities which caused reduced life expectancy. He saw the conclusion of the article as confirming that it is not the cerebral palsy that causes reduced life expectancy but the disabilities that result from it.
168. Dr Bowers, for his part, primarily relied upon the Strauss and Shavelle article. There was, however, some inconsistency in the way that he dealt with the article. The article's express purpose was to determine the predictors of mortality and to provide some basis for relating them to life expectancies of adults with cerebral palsy. The article proceeded by way of an assessment of life expectancies of people of a given age, gender and cohort by estimating the relative risk. Despite the article detailing characteristics of persons with cerebral palsy and considering other hazard ratios of such persons, the article ultimately categorised persons with cerebral palsy in broad situations of "cannot lift head, lifts head, rolls/sits" and to further divide such categories into those in the specified categories who require to be tube fed, fed by others without feeding tube and self feeding. Ultimately, the comparison was made between the 24,768 individuals aged 15 years and older who received services in California between January 1980 and December 1995 to be analysed against the general population. The effect was the production of a detailed table and it was this table that Dr Bowers used to extrapolate an additional life expectancy for Lainie "in the order of 40 years". In his report, Dr Bowers then extrapolates further figures from the Eyman paper and the paper by Strauss, Shavelle and Anderson to average out an estimated life expectancy and arrive at the conclusion that the plaintiff's life expectancy is an additional 37 years to age 57. I do not find this approach at all convincing. It seems to me that the point of the table in the primary article is to support the generalisation to which the article is directed that life expectancies for the highest functioning group with full motor and feeding abilities were, on average, only five years less than those of the general population, but that there was a much poorer prognosis for people with minimal functioning which had not previously been reported. If anything were to be made of the table then it should be made in the way that the authors of the paper suggest. They say (at p 375) -
A limitation of the life expectancy and survival analyses reported here ... and in other studies is that they are based on only a crude classification of functional level. More appropriate estimates of life expectancy and survival probabilities for a subject with a given profile of age, gender, functional skills, etc may be obtained using the methods described here. Specifically, a Cox hazards analysis may be used to determine the risk, and hence the excess risk relative to the general population, associated with the given profile of skills, and so on. This excess may then be applied to a standard life table, as described previously.
169. I consider that Dr Bowers' approach is fundamentally flawed. He did not consider it appropriate to adopt the analysis suggested by the authors of the paper but rather placed great store on what the authors themselves describe as a crude classification. Against this classification, Dr Bowers then adopted a clinical approach of referring in his report to the plaintiff's other medical problems such as her epilepsy, possible bladder problems and pressure areas balanced against her not having problems of aspiration pneumonia or major urinary tract infections. This, he then says, does not cause him to adjust his life expectancy for the plaintiff either upwards or downwards from the arbitrary figure he has plucked out of a "crude classification". I could understand a technique which performed a specific analysis recommended by the authors and balanced that with the clinical findings or observations with respect to the particular subject, but I am at a complete loss to understand the utility of taking the data based on crude classifications of functional level data in the way that Dr Bowers does and to then perform an inexplicable averaging exercise with data drawn from other articles. Having got a precise figure, he then seeks to adjust it for actual and possible medical problems that he identifies on the basis that they balance out so as to not require the figure to be adjusted. I have no confidence in that approach.
The conclusion as to life expectancy
170. On all of the material, I consider that it would be reasonable to assess Lainie's life expectancy at somewhere between the upper of the rough estimates given by Dr Antony which, when revised to allow for improvements in care, could mean a life expectancy to age 65 and Dr Harbord's view which, on a strict application of his 90% estimation of a normal life span, gives a life expectancy of 76 years. I do so because I am unable to completely accept any one of the processes of reasoning given by the experts called on this issue.
171. I see the force in Dr Buckley and Professor Oakeshott's views that it is the onset of medical complications that will cause the plaintiff's life to be shortened and that such an onset in the plaintiff's case should be preventible by skilled supportive care. However, I do not see how it can be ignored that studies have shown that lack of mobility is statistically shown to affect life expectancy. Dr Buckley was of the view that the medical literature was not sufficiently detailed to draw a conclusion that there is a reduced life expectancy but I cannot ignore the general thrust of the literature and the general acceptance by each of the other experts (with the exception of Professor Oakeshott whose views on this aspect I do not have) that the literature, in a general way, supports the view that there would be a reduction in life expectancy related to the functional disabilities attendant upon cerebral palsy.
172. The Strauss and Shavelle article makes the point that life expectancies for the highest functioning group of persons suffering from cerebral palsy who had full motor and feeding abilities were, on average, only five years less than those for the general population. The authors then report a much poorer prognosis for people with minimal functioning that has not previously been reported. The article makes the point that a number of risk factors previously reported in the literature proved not to contribute significantly when functional level was taken into account. These risk factors included lack of cognitive skills and the type, location and aetiology of cerebral palsy. That leads me to think that the life expectancy table contained in the article can only give a broad indication of where Lainie may fit.
173. Accordingly, I broadly adopt the approach taken by the two doctors who were prepared to reduce the plaintiff's life expectancy from normal, Doctors Harbord and Antony. I have not been assisted by the approach adopted by Dr Bowers as his approach seems to seek to give scientific verisimilitude and precision to a process which at best only permits a broad guidance. Except for lack of mobility, Dr Antony could not find anything objectively that would impact upon Lainie having a normal life expectancy. I have already referred to her discussion of the possibility that Lainie could live longer than in her mid fifties and her concession that she could be sure of her living to 55, but her view that it would be extremely unlikely that she would reach 85. Dr Antony was not prepared to put Lainie's chance of living to age 75 in percentage terms. I consider that, given all the other predictors referred to by Dr Antony of a normal life expectancy, I could be justified in regarding Lainie's life expectancy as one of another 49 years from her age of 21.5 years.
174. Dr Harbord was prepared to reduce Lainie's life expectancy on account of her intellectual disability from his original assessment of 95% of normal life expectancy to 90%. As the articles referred to by Dr Bowers point out, the significant factor is not so much the intellectual ability but the mobility issue which plays such a role in reduction of life expectancy. In any event, Lainie unfortunately suffers from both and if mobility is a predictor of a shortened life expectancy, then it supports an approach which reduces that expectancy by some assessable percentage. Again, the crude classification relied upon in the Strauss and Shavelle article would justify a greater reduction in that percentage than Dr Harbord was prepared to allow on his revised view of Lainie's mental retardation. That, too, points me in the direction of making allowance for Lainie to live to about age 70 or 71. I can do no more than estimate this age on a broad appreciation of all of the material that has been placed before me, appreciating that the material does not permit an allowance to be made really with any degree of precision or by way of mathematical calculation. Again, the material in conjunction with Dr Harbord's evidence seems to me to justify an assessment of life expectancy as one of another 49 years. The selection of this figure gives as much force as I am able to give to the proposition that not withstanding the absence of any life threatening medical condition and with the skilled and supportive care that Lainie will receive, her life expectancy can still be expected to be somewhat less than normal.
Relevant dates, multipliers and interest calculations
175. As I have said, at the start of the hearing of this matter, the parties spent some time working on a Schedule of Damages provided by the plaintiff. The hearing of this matter commenced on 23 October 2000. For various reasons, the hearing did not conclude until 26 July 2002. In order to provide some basis for the calculations that are needed in relation to the assessment of damages, it has been agreed to adopt as the date upon which those calculations are to be made, a date of 13 August 2001. That was a date when the Schedule of Damages had been modified from an earlier version to bring the calculations up to date at that time. It is not intended that there be any subsequent modifications to the Schedule that I was provided in respect of this date, although the submissions in the Schedule in respect of a number of the items were modified up to and beyond the final date for hearing. I have accordingly made the calculations on past and future damages by taking the agreed date as the point of reference for those calculations.
176. For the purpose of assessing damages, the plaintiff is to be taken as being 21.5 years old. The Plaintiff's life expectancy I assess as a further 49 years to 70.5 years. I take the multiplier for the present value of $1 per week at an interest rate of 3% for 49 years to be 1,351. ( Luntz Assessment of damages for personal injury and death, 4th Ed. Appendix Table 2 p. 683).
In calculating interest on past heads of damages the plaintiff and the defendants have generally agreed that half of the applicable interest rate over the relevant period be used because the losses were generally accruing. Supreme Court Practice Direction No 1 of 1993 provides for 12.64% up to judgment which for the purpose of these calculations is taken to be 21.5 years. One half of that rate is 6.32%. Interest is claimed on 25% of the past general damages calculated at 2%. The defendants accept this calculation as applicable.
Delay
177. The defendants submitted that the interest payable on past heads of damages be calculated from the date that the writ was issued in this matter. That date was some five years after the cause of action arose. The submission was originally based upon the misapprehension that interest ran from the date of the issue of the writ. Section 69 of the Supreme Court Act 1933 (ACT) provides that unless good cause is shown to the contrary, interest is to run from the date when the cause of action arose. Mr Meldrum QC, for the second defendant, nevertheless said that consequent upon the plaintiff's delay in prosecuting this matter, that it was appropriate that interest not run from the date of the cause of action. He put it that the period upon which interest should be calculated for past damages should be reduced by some five years. I find the reasoning for this difficult to follow. This is, after all, an action instituted by the plaintiff's next friend. The action was instituted when the plaintiff was not of full age or capacity. The situation stands quite differently to those occasions where the plaintiff has control of the proceedings and there can be said to be inexcusable and unreasonable delay in the proceedings being prosecuted. It follows that the question of delay does not really arise until after the institution of the proceedings. Given that the plaintiff in this case could have instituted these proceedings in the period after which she became legally competent to do so, it is difficult to see how the failure to pursue the proceedings (even if it could be shown to be unreasonable) would effect the plaintiff's right to be put into the same position as if payment of the damages had been made at some earlier time.
178. Mr Meldrum placed a great deal of reliance upon the decision of the Full Court of the Supreme Court of South Australia in the case of Stewart v Jacobson (2000) 31 MVR 450. That case, while expressing the view that courts should take a more active role with respect of failures to prosecute actions promptly, considered that courts might, in the cases of inexcusable delay and where appropriate, reduce the amount of interest to be awarded. It did not cast any doubt upon an earlier decision of the South Australian Full Court in Osborne v Kelly (1993) 61 SASR 308 in which the court considered the circumstance of a plaintiff being kept out of his money due to his own default which might cause interest not to be allowed on it. The defendants did not point to any particular aspect of the conduct of the proceedings to support the claim that there had been unreasonable delay and there was not, at any stage, any steps taken by the defendants to exercise any of the remedies that defendants have to ensure that a matter is brought promptly to trial. I can not say that there was any unreasonable failure on the part of the plaintiff to pursue these proceedings. I am not able to discern any basis upon which I might properly exercise my discretion and make an arbitrary deduction of the kind suggested by the defendants from the time upon which interest should run. I do not propose to make the reduction requested.
General Damages
179. The assessment of damages for pain and suffering and loss of the amenities of life are particularly difficult in this case. Whilst minimal weight is to be given to the objective element of the plaintiff's loss (see Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94), the subjective element is difficult to assess in the plaintiff's case. The defendants contend that the plaintiff's intellect and insight is such that she has a very blunted insight into her loss and damage. They refer to a passage in the judgment of Gibbs, Stephen and Mason JJ in Hawkins v Lindsley (1974) 4 ALR 697 at 703 and 704 where their Honours said -
One circumstance to be taken into account in accordance with the underlying reason for the decision in Skelton v Collins [supra] is that the assessment of damages for pain, suffering, and loss of amenities must take into account the awareness of the injured plaintiff of deprivation, so that if there be no awareness at all nothing but a small and more or less arbitrary sum should be awarded on account of such consequences.
180. However, this is not a case where it can be put that the plaintiff has little, if any, appreciation of her plight. It is true that the standard of care that she may receive for the rest of her life and the efforts of her parents and subsequent carers may ameliorate her condition but it is clear that she experiences frustration on a day to day basis, that throughout her childhood she sustained pain and suffering particularly in relation to the surgical procedures that she had undergone and that she has and will continue to have behavioural difficulties as a consequence of her condition. All those matters have an impact on her consciousness. The fact that the plaintiff will have understanding that she is abnormal and even having limited awareness of her condition should sound in damages (D'Ambrosio v de Souza Lima (1985) 60 ACTR 18 at 20). Taking into account the nature of Lainie's injuries and the long-standing disabilities and sufferings that she will have, an appropriate award for general damages is $320,000.00. I include in this sum damages for loss of expectation of life.
PAST COSTS
181. The Schedule of damages notes, and it is agreed by the parties, that the defendants have funded medical and allied health professional supplies or services (eg speech pathology, occupational therapy, physiotherapy and psychology) for the plaintiff to the value of $550,000.00 and the plaintiff acknowledges that this sum is refundable to the defendants.
Medical and hospital expenses
182. The plaintiff has been seen and treated by a large number of medical practitioners since her birth. She has also been hospitalised on a number of occasions. The plaintiff has been admitted to hospital for the following operations or treatment:
(a) Bilateral adductor myotomies with application of broomstick plaster of Paris splints at royal Canberra Hospital by Dr McNicol on 13 April 1984;
(b) Application of telescopic extensible metal rods to replace broomstick plaster of Paris splints at Royal Canberra Hospital by Dr McNicol on 16 April 1984;
(c) Bilateral lengthening of tendo-Achilles, peroneus longus and peroneus brevis tendons at Royal Canberra Hospital by Dr McNicol on 31 May 1985;
(d) CT scan of the brain under general anaesthetic at Royal Canberra Hospital on 12 June 1987;
(e) Examination under anaesthetic and retinoscopy at Royal Canberra Hospital by Dr Wong-See on 14 November 1980;
(f) Bilateral derotation sub-trochanteric femoral osteotomies at John James Memorial Hospital by Dr McNicol on 11 June 1991;
(g) Removal of plates from both hips with division of adductor hallicus insertions to right and left great toes at John James Memorial Hospital by Dr McNicol on 28 January 1992;
(h) Bilateral arthroscopies of the knees at John James Memorial Hospital by Dr McNicol on 26 May 1993;
(i) Bilateral flexor tenotomies of the second toes with fractional lengthening of the extensor hallicus longus tendons at John James Memorial Hospital by Dr McNicol on 15 March 1994.
183. The plaintiff's medical and hospital expenses have been paid by Medicare and by her private health fund. The amounts paid have been agreed:-
As to Medicare $12,120.85
As to MBF $34,718.19
These medical and hospital expenses amount to $46,839.04. These are agreed as refundable amounts and payment to the Health Insurance Commission will discharge the defendant's liability.
184. The plaintiff's parents have paid gaps between the charges made by treating doctors and the hospitals at which the plaintiff has been treated and the amounts recoverable from health funds. That amount has been agreed in the sum of $10,613.75.
185. Interest on the gap payments has been agreed at 6.32% to the date of judgment. The calculation for interest x 21.5 years is $14,422.00.
186. The plaintiff claims the past pharmaceutical expenses. The plaintiff has been on a variety of medication for epilepsy, her hip and knee pain, her tendency to become constipated and for suppression of menstruation. The defendants accept these expenses but dispute the expenditure. The matter is complicated by the fact that, as a result of the motor vehicle accident in which the plaintiff was involved on 15 June 1998, various drugs and treatments were provided to her as a result of changes in her condition and behaviour following that accident. She received a lump sum payment as a result of that accident and there must be some risk of double-counting in relation to the expenditure of drugs in the period of some two years, at least, after this accident. The matter is further complicated by the fact that the plaintiff relies upon medication costs of the drugs as at 1996 when Dr Buckley made some assessments following his examination of the plaintiff. In addition some undated costings from the Narrabundah Pharmacy are relied upon which I am not able to relate to the specific items claimed. Ultimately, the plaintiff's claim is for past weekly expenditure on pharmaceuticals at about $6.30 per week. The claim is, therefore, for $6,798.00. As the defendants point out, there is little to support the assessment of such a constant sum over the period of time. In some cases the referenced material provided in support of the claims does not support it, nor is there a period over which the rates might be applicable. In what purports to be the result of an analysis of the plaintiff's claim, the defendants suggest that the claim of $6.30 per week should be reduced to $5.30 per week. Then after making the point that this is based largely on expenditure costs as at 1996, they suggest an amount of $1,000.00 be allowed. I consider that the defendants' criticisms have some force and, particularly having regard to the lack of detail regarding the expenditure, I would allow $3,000.00.
187. I would also allow interest on the past pharmaceutical expenses over say 10 years and at 6.32% that amounts to $1,896.00.
Podiatry
188. The plaintiff was first seen by a podiatrist on 6 January 1993 and has been seeing a podiatrist since that time. The parties agree that the cost of past podiatry and orthotics is $376.00.
189. The plaintiff claims interest on this sum of $510.00 based on interest to the notional time of judgment. The defendants would allow interest for the period from 6 January 1993 (say 9 years). I agree with the defendants' approach and I allow $214.00.
Clothing, equipment and aids
190. The plaintiff has required a walking frame and a standing frame and this amount has been agreed at $300.00.
191. The plaintiff has required special boots and these are agreed at $3,720.00.
192. Special silicon socks have been required to avoid pressure sores. The past costs of these is agreed at $520.00.
193. The plaintiff claimed two hoists that had been installed in the plaintiff's parents' home at Red Hill. The claimed cost was $8,700.00. As the defendants pointed out, the video showed the plaintiff being lifted with a mobile hoist. As the plaintiff points out, in fact two hoists were used - one for standing transfers from the plaintiff's wheelchair to the toilet and the other for a full body transfer into and out of the bed and bath. Costings provided by an occupational therapist put the cost of such hoists at $3,995.00. The plaintiff's claim in this respect does not claim for maintenance. For the two hoists I allow $7,990.00.
194. The plaintiff claims for the use of a special spoon, fork and plate to feed herself. These items were costed as at February 1997 and, on the plaintiff's claim, they require yearly replacement. The past cost is asserted to be $2,222.00. That figure would appear to be derived by multiplying the claimed amount over the period of the plaintiff's life to date. There is no evidence when the plaintiff commenced using these utensils and apart from the occupational therapist's view that they should be replaced yearly, there is nothing to suggest that that was the case. In response, the defendants claim that the items, having been costed at February 1997, should be discounted as the expenditure has been claimed for the entire life of the plaintiff. The plaintiff responded by conceding a slight discount (from $2,222.00 to $2,000.00) and claims that the plaintiff will require these implements for the rest of her life. It is difficult to know what to make of all this, but I do not think that any more than $500.00, as the defendants say, should be allowed for this item.
195. The plaintiff's manual wheelchairs were paid by or funded by the defendants. The plaintiff's parents purchased an electric wheelchair on 7 September 1992 at a cost of $5,712.00. I allow $5,712.00.
196. The plaintiff claimed for incontinence pads that she required from age two to eight years (i.e. from 1982 to 1988). The pads were costed by the Narrabundah Pharmacy on costings at February 1996 at $1,742.00 per year, or $10,452.00 for a six year period. The defendants' response was to point out that the costing was as at February 1996 and to allow $2,000.00. The plaintiff's answer to this contention was to delete this item from their claim for interest in respect of the past expenditure on equipment and aids and to merely argue that the defendants' estimate is "unrealistic given that there would be interest on the sum from 1996". That response gives me precious little to work upon. Even at a relatively high inflationary rate the reduction by the defendants to one-fifth of the amount claimed would seem to be unduly conservative. On the other hand, even excluding the amount proposed by the plaintiff from the subsequent interest calculation does not seem to me to give effect to a realistic figure. If I adopt the plaintiff's approach and take into account what I regard as a realistic figure, together with interest thereon calculated roughly from the date that the expenditure was incurred, I arrive at a figure in excess of the $10,452.00 claimed. I allow the amount of $10,452.00. This figure must, accordingly, be deducted in the calculation for interest on these items of clothing, equipment and aids.
197. The plaintiff began using a commode in 1997. Because the costing was at 7 September 2000, the cost has been agreed at $650.00.
198. The plaintiff claims the past cost of electric toothbrushes at $99.00 per year. The claim is for $2,153.00 presumably on the basis that for each year of her life, the plaintiff has used an electric toothbrush. That cannot be a correct approach. For their part, the defendants say they are prepared to accept a total past cost of $20.00 per year for the past ten years which amounts to $200.00 and then they say that absent her injuries, the plaintiff may well have used an electric toothbrush in any event. In response, the plaintiff counters with the fact that it is impermissible to discount these damages on the basis of what the plaintiff may have used absent her injuries. It was then said that because of her injuries, she requires an electric toothbrush. It is unfortunate that the debate descends to this degree. The claim that the plaintiff makes is for the cost of an electric toothbrush used to clean her teeth. The claim is based on an assertion in an occupational therapy report that, at the date of assessment (3 February 1997), an electric toothbrush was used for brushing teeth. I have in fact no evidence of the past cost in providing electric toothbrushes. It would surprise me if an electric toothbrush was purchased each year of the plaintiff's life to date. Doing the best I can, I would allow $900.00.
199. It is agreed that the plaintiff would be compensated for the purchase of a Galah Audible Communicator at $650.00.
200. The plaintiff claimed interest on the past expenditure of clothing, equipment and aids, and having regard to the balance I have allowed thus far, upon which interest can be calculated, that sum is $20,942.00 (excluding the incontinence pads). The agreed interest rate of 6.32% can be calculated on that amount. The plaintiff seeks that it be calculated for the whole of the period from the cause of action, the defendants would allow interest for approximately 15 years on the basis of it being a reasonable average period over which the expenditure has been incurred. Having regard to the many different dates upon which the expenditure was incurred the fact that it was probably later rather than earlier incurred and the date of the costings, I consider this to be an appropriate approach and I adopt it. I allow interest on $20,942.00 for 15 years, $19,853.
Home modifications
201. The plaintiff has lived with her parents at two houses, one at Hawker and one at Red Hill, suburbs of Canberra in the ACT. Both houses were purpose built with modifications to cater for the plaintiff's needs. The plaintiff moved into the Hawker house in January 1985 and into the Red Hill house in March 1996. As evidence of the modifications to each of these premises that were made, a report from the architect, Mr Maiuto, of 20 September 1997 was tendered. The report purported to detail the specific design requirements and opinion of the probable cost incurred by the plaintiff's parents of the modification of the homes at Hawker and Red Hill to accommodate the plaintiff's needs. Mr Maiuto's expertise and ability to express the opinions that he expressed was not challenged by the defendants. No material was placed before me as to whether the costs were actually incurred, although I must assume that the defendants do not challenge the requirement to make the modifications to accommodate the plaintiff or the costings of them. There is no challenge either as to whether the modifications were reasonably necessary in the circumstances. No explanation was proffered to me as to why the plaintiff chose this method of proof of her loss rather than by proof of the actual costs of the modifications. As the plaintiff's father is a builder by occupation it is surprising that more detail of the expenditure was not provided but it appears that the defendants did not pursue this aspect. However, as I put in argument to Mr Meldrum QC, for the second defendant, the unchallenged material before me showed some evidence of cost. He made two points. The first was that the plaintiff had not established that there was any expenditure. The second was that the plaintiff had not shown that it was productive of any loss. As to the latter aspect, he pointed to there being no evidence of the price obtained on the sale of the Hawker house or no evidence of the value added to or detracted from the Red Hill house.
202. I am just not able to find that there has been no expenditure. After all it is implicit in the architect's report that both houses were built with the modifications. If that was the defendants' case, they should not have permitted the architect's report to be tendered before me. There is, of course, the video which showed the plaintiff's present accommodation in the Red Hill house which showed that the house had been constructed and its general layout. No matter how unsatisfactory it may be said to be proceeding on estimates of probable costs, I cannot say that it has not been established that there was no expenditure.
203. The fact that I am satisfied that there was some expenditure on the matters claimed really then means that I have to do the best I can in those circumstances. I take the approach to this matter as that described in Luntz, Assessment of Damages and Personal Injury and Death, (4th ed) 2002 -
Numerous cases in the High Court and elsewhere have held that where it is clear that the plaintiff has suffered some real loss, the court must do its best to place a value on that loss, despite the paucity or even absence of evidence on the point. It depends to some extent on the availability of such evidence to the plaintiff. Failure to lead evidence that might have been expected from the plaintiff could throw doubt on the reality of the loss or its extent. If the loss itself is satisfactorily proved, the consequences of failure to lead evidence as to its quantification, which should have been readily available is that the plaintiff cannot complain if the damages as assessed are too small to cover the actual situation. But if satisfied of the loss the court is not precluded from making a substantial award because evidence that the plaintiff might have been expected to lead as to its value in money terms has not been forthcoming.
204. It was not in contest in this matter that it was necessary for provision to be made for the plaintiff in modifying both houses and that this resulted in additional expenditure in the building of both houses. The defendants say "in each case the additional expenditure may well be offset by additional value equal to, less than or in excess of the expenditure". The defendants further complain that no material was discovered to assist in any such calculation. No application for further or better discovery was made and the material upon which the plaintiff relies, the report of the architect Mr Maiuto was made back in September 1997. When suggested that there may be some evidential onus on the defendants, the response from the defendants was that it was for the plaintiff to prove the loss. The plaintiff says that this has been done by the report of Mr Maiuto in reporting upon his design of the houses and providing estimates of the additional cost as well as providing costings for additional maintenance. Technically, that does not show that the monies were, in fact expended but it does show the necessity for and the expected quantum of such expenditure. In other words, it establishes the probability of expenditure and in the total absence of anything else, I consider that I can act on this material. However, that does not necessarily incline me to allow interest on amounts claimed in the absence of evidence that they had been actually expended at any particular point in time.
205. Nevertheless, the evidence is, I think, just sufficient, albeit quite unsatisfactory, to enable me to assess that the plaintiff has a requirement, that the meeting of that requirement is a loss and the plaintiff should be compensated for that loss.
206. Although the matter is not clear cut, in a situation where monies are expended yet a capital increase may be expected, I take it as being for the defendants to establish if they wish to or at least point to some evidentiary basis for any setoff against the expenditure that the court might conclude has been necessarily incurred. There must be something more than mere supposition or uninformed speculation. In the circumstances of this case, it was clearly open to the defendants to challenge the material put in by Mr Maiuto by requiring him for cross-examination and calling whatever evidence they might be minded to call to challenge his evidence of what he said was required and to establish the effect of the modifications on the capital value of the property. This they did not do.
207. It is claimed in respect of the house at Hawker, in respect of both internal and external works, that an extra $40,000.00 was incurred. In providing his quote for costs, Mr Maiuto did not indicate at what point in time he was assessing these costs although it appears fairly clear that he was applying the costs at the time (September 1997). That is so because of a subsequent note that he provided which was admitted in evidence of 19 September 2000 in which he expressed the view that the building costs estimated in his initial report to reflect current costs would have increased in the order of 20-25% for the house in Hawker and 12-15% for the house in Red Hill. That would seem to indicate that the costs, if they were paid at the time of the construction of the Hawker property, should be reduced by at least 10% and I propose to do so. Accordingly, I would allow the modifications on the house at Hawker at $36,000.00.
208. In respect of the Red Hill property, the estimated costs were made shortly after the construction and those costs comprised $35,000.00 for the extra area and special fit out requirements in independent quarters for the plaintiff, $60,000.00 for the self-contained carer's quarters and $40,000.00 for extra area and fit out requirements in the main house. The sum of $15,000.00 was spent on additional external provisions. The total is $150,000.00 and in absence of anything else to the contrary I allow that sum.
209. In respect of both the Hawker house and the Red Hill house, an amount of $5,000.00 per annum was estimated for maintenance. Given the uncertainty as to the time the costings were applied and what appears to be a static amount for what one would have thought to be a fluctuating requirement, I am not prepared to simply multiply that amount over the period of time for which it might be required particularly in the absence of any evidence of actual expenditure. If averaging is appropriate, I would only be prepared to allow $3,000.00 per annum over the 16 year period, that sum takes into account the fact that the estimate of costs was made in September 1997. I would therefore allow $48,000.00 for this item.
210. The plaintiff claimed interest on these sums at a rate of 12.64%. That was said to be the rate of return for a property investment. That seems to me to be wrong in principle. As I have earlier said, interest is to compensate a plaintiff for the loss or detriment in being kept out of his or her money during the relevant period. It is not to compensate a plaintiff for being deprived of the opportunity to invest his or her money (MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 at 666). I disallow the plaintiff's claim for interest at the rate claimed. I go further and say that in the absence of evidence of the expenditure incurred, there does not seem to me to be justification to apply interest to that expenditure. Nor can I ignore the fact that the claimed expenditure was, in fact, by way of capital improvements to real estate. That seems a very good reason for not awarding interest in a case other than when the monies are simply expended and lost and where I have evidence to that effect. Accordingly, I am not prepared to allow the claim for interest on the sums claimed for the house modifications and maintenance.
Travelling expenses
211. Since July 1993 the plaintiff has travelled to medical appointments and respite care in a wheelchair accessible cab. The cost of cab fares is agreed at $15,200.00. Interest on that sum at 6.32% for 8 years is $7,685.00.
Respite care (not paid by the defendants)
212. The plaintiff has been receiving respite care at Hartley House and Hartley Court since 1983. The amount paid in respect of that care has been agreed at $28,363.00. Interest on past Hartley House and Hartley Court costs $28,363.00 x 6.32% x 18 years is $32,266.00.
213. Family based respite care service provision of a carer two afternoons a week and carer for five hours on a Saturday provided since 1992 is agreed at $4,763.52. Interest on family based respite care since 1992 is $4,763.52 x 6.32% x 9 = $2,709.00.
214. Since 1994 the plaintiff has been attending community supported respite. Total cost of that care has been agreed at $8,000.00. Interest on the expenditure at community supported respite since 1994 is $8,000.00 x 6.32% x 7 = $3,539.00.
215. The Home Help Service ACT Inc has been providing personal care for the plaintiff. Total payments for that service since 26 July 1990 has been agreed at $5,260.18. Interest on these payments is $5,260.18 x 6.32% x 11 = $3,657.00.
FUTURE COSTS
Medical and hospital expenses -
216. The plaintiff requires home visits by her general practitioner for the purposes of prescribing her on-going medications and for medical review. Those visits are at a cost of $70.00 per visit. The defendants accept the requirement for home visits. Her specialist rehabilitation consultants differ as to the number. Dr Buckley says that she will require 12 per year, and Professor Oakeshott says that she will require six visits per year. Dr Buckley's report was in 1996 and Professor Oakeshott's in 2001. The defendants say that I should accept the latter report. Given that I have not had the opportunity of this difference being tested before me and that I have no reason to doubt the expertise and competence of each of these experts, I incline to that view. The plaintiff submits that I should take a mid point and regard the requirement as nine home visits per year. I see no reason, in law or logic, why I should do so. I consider that I should allow for six visits per year at an annual cost of $420.00 which equates to a weekly amount of $8.08 per week which, using the multiplier of 1,351, amounts to $10,916.00.
217. The plaintiff requires medical specialist consultation at a rate of two consultations every five years for the rest of her life. It is agreed that the cost of such a consultation is $80.00. This is an annual cost of $32.00 and, using the multiplier that I have adopted, $831.00.
218. The plaintiff requires annual review by a neurologist and three visits every third year for loss of epilepsy control. The cost of consultations is $80.00. This amounts to an annual cost of $160.00 or $3.08 per week which, using the multiplier, amounts to $4,161.08.
219. The plaintiff will require on-going and regular assessment and treatment by orthopaedic surgeons. This is an annual cost of $80.00 equating to $1.54 per week and using the multiplier amounts to $2,081.00.
220. The defendants accept that the plaintiff will need about three weeks hospitalisation every ten years for the rest of her life. That estimate is reliant upon a report by Professor Oakeshott of 26 February 2000. The projected costing of this is extraordinarily difficult. The plaintiff has relied upon a November 1995 rate for hospital beds of costing $450.00 a day and then asserts that the John James Memorial Hospital currently charges $535.00 per day for a hospital bed. From that figure, they derive a sum of $11,235.00 every ten years. Originally, eight episodes of hospitalisation were claimed but that was reduced by one, presumably because on their calculations the plaintiff would have been 95 years old at the time of the eighth episode. Having regard to my assessment of the plaintiff's life expectancy, the number of episodes needs to be reduced to six. The defendants would seek to have the first episode of hospitalisation disallowed as not having occurred. The plaintiff counters by saying that the last episode of hospitalisation was on 15 March 1994 and on that basis, the first episode can still be claimed. The defendants disagreed that the rate should be allowed at the asserted rate of $535.00 per day. I agree that there is much force in that. There is no evidence at all as to what the current (or then current) rate was per day. The figures quoted relied upon a rate costed in 1995. The defendants also sought a reduction of 30% upon the basis that older people go to hospital more often and for longer than younger people and that this is more likely to be towards the end than the beginning (I take this to mean of a person's life). There is said, therefore, to be the requirement for a reduction for these vicissitudes and that that ought to be 30%. The plaintiff did not seek to respond to this argument, but I find it difficult to accept as an appropriate deduction in respect of possible changes that might or might not occur. After all the episode assessment has, I presume, an averaging element to it. The whole matter is plagued with uncertainty. In the end, I am prepared to allow the hospital charges at the rate evidenced by the plaintiff at $450.00 per day, to consider the first episode as not requiring deferral (as likely to occur in the decade between 1995 and 2005), and to apply the deferred tables at an interest rate of 3% for the second to fifth episodes of hospitalisation. That results -
first episode $9,450.00
second episode $9,450.00 x .744 $7,030.80
third episode $9,450.00 x .554 $5,235.30
fourth episode $9,450.00 x .412 $3,893.40
fifth episode $9,450.00 x .307 $2,901.15
Total $28,510.65
221. The plaintiff requires periodical blood tests for liver and renal function because she takes the drug Tegretol for her epilepsy. That is $116.00 per annum which is $2.23 per week and by the multiplier, $3, 012.73.
222. The defendants accept that it may be necessary to consider bony surgery to the plaintiff's limbs in the form of fusion or osteotomy. The plaintiff has allowed for costs related to those provided by Dr Buckley in 1996 for other procedures and concedes that there is no evidence of the cost of such surgery. The plaintiff accepts a discount for the possibility of such surgery although not to the extent that the defendants suggest. I would allow the $1,000.00 that the defendants suggest.
223. Similarly, the plaintiff's upper limbs may require surgery on the fingers or thumbs for an "in palm" deformity. Similar comments may be made to those made in the preceding paragraph and I would allow a similar sum of $1,000.00.
224. The plaintiff claims that she may need a brace or spinal fusing in the future because of her tendency to develop kyphoscoliosis. The claim is based upon a report of Dr David McNicol of 31 October 1990. In that report, Dr McNicol said this -
Spine. During the adolescent growing spurt some children with cerebral palsy will develop kyphoscoliosis. From time to time this needs to be treated either in a brace or surgically by spinal fusion and appropriate spinal instrumentation. There is no sign of a scoliosis developing in this patient at this point in time.
225. The defendants say that as the plaintiff is now fully grown, the requirement for surgery was confined to the adolescent growing spurt and that there is no evidence that the condition has developed. The plaintiff's response is that the defendants have conceded that the surgery is probable. I do not take their response as being so. In fact, it is the plaintiff who has not provided any evidence upon which I could allow or quantify this claim. I disallow it.
226. It is said that further orthopaedic surgery may be required because of the lower limbs developing flexion contractures of the knee or equinus deformities of the foot. Although it is Dr McNicol who refers to the possibility of the development of these conditions, it seems that Professor Oakeshott has allowed for this in his specialist medical consultations and hospital admissions that he has averaged out over the plaintiff's lifetime. I disallow the claim.
227. The plaintiff requires review by an ophthalmologist every two or three years. The annual cost is agreed at $65.00, that is $1.25 per week with a multiplier of 1,351 is $1,689.00. The defendants say that I should discount this for the possibility that, in any event, the plaintiff would have ophthalmic expenses. In the absence of any evidence that the plaintiff may have, in any event, incurred some expenses I do not regard myself as having a basis to make such a discount. I allow $1,689.00.
Future pharmaceutical expenses
228. The plaintiff will require to take medication for her epilepsy and medication for her hip and knee pain. As she tends to become constipated, she requires medication for this condition as well as injections every three months to suppress menstruation. Evidence of cost for these medications was provided by Dr Buckley in 1996. The plaintiff makes assumptions of costs and arrives at a future weekly expenditure of approximately $6.30 per week. In dealing with the claim for past pharmaceutical expenses I referred to difficulties in the referenced materials to support expenditure to the extent claimed. In addition, the defendants say that some discounts for the likely use of contraceptive and possible use of anti-depressants should be allowed. The plaintiff counters by saying that the prices used are 1996 prices. I allow the sum of $4.00 per week which, with the multiplier of 1,351 is $5,404.00.
Future physiotherapy
229. The plaintiff's reduced ability to voluntarily move her arms and legs and the risk of joint contractures requires passive movements of all joints and supervised movements of them by attendant carers. In addition, rehabilitation specialists are agreed that the plaintiff should have physiotherapist sessions. The extent and cost of these sessions was disputed by the defendants by taking the reports on this aspect that the plaintiff had placed in evidence and arguing that, as there were contradictions, I should not allow what the plaintiff sought. Of course I did not have before me any explanation for what were said to be the contradictions, but I consider that if the reports can be fairly read together, and there is no necessary contradiction then I should allow what is sought. Dr Buckley, in his report in 1996, was of the view that Lainie should see a professional physiotherapist for one hour every month for the rest of her life and proposed five standard sessions of physiotherapy to be provided each year because of the likelihood of sprains and strains requiring acute management. Professor Oakeshott, in his report of 2000, estimated that a physiotherapist would be required to undertake appropriate exercise programs and to educate attendant carers requiring two hours each month. I understand this to be additional to what Dr Buckley proposes. I do not consider that there is any conflict in these recommendations and that the result is a requirement for 29 hours of physiotherapy each year. Dr Buckley's estimate of costs recommended by the Australian Physiotherapy Association is $42.00. A schedule of costs prepared by an occupational therapist in 1997 contains a cost calculation for therapy at $96.00 per hour. I am not prepared to accept this latter estimate as it is unsourced. I would therefore allow for the future cost of physiotherapy for 29 hours at $42.00 per hour, a weekly rate of $23.42 by the multiplier 1,351 is $31,640.42.
Speech pathology
230. This item provoked a completely negative response from the defendants who would disallow all of the items claimed. What the plaintiff sought to claim were devices in the nature of an alphabet board or a Cannon communicator, which she had previously been using at school or the use of an electronic device known as a Macaw 3. The only costing for a device of this nature is for the Macaw 3. That relates to a costing provided by an occupational therapist in 1997 which costs the Macaw 3 device at $3,115.00 with a replacement requirement every five years. The occupational therapist would also allow maintenance on this equipment at the rate of $100.00 per year. There is a report of Lainie's speech pathologists in 1991 which contains an estimate for a future simple electronic device but that is not claimed by the plaintiff. There is a report from the speech pathologist in 1997 which recommends, in a general way, speech pathology consultation and intervention. I was then referred to a report of Dr Rosemary Crossley, an expert in facilitated communications. Her report of 29 September 2000 recommends a portable communication device either a Lightwriter, DynaMyte or Vanguard ranging in cost between $6,800.00 and $15,000.00 and she recommends rental for a short period for trial. The defendants say that this overlaps with the recommendation of the speech pathologist in respect of the portable communication devices. I think that the defendants may be right in this aspect, but that does not mean that there is a distinction still to be made between the plaintiff's needs in respect of speech pathology, the need for assistance in whatever augmented communication devices are provided and the need for further education to foster literacy skills and communication aid use. On the material before me, ranging as it does from reports in 1991 to 2001, it is very difficult to sort out the equipment that might be required, the training and assistance that should be given to Lainie in respect of it, as well as providing a tutoring function to foster Lainie's literacy and communication aid use. In framing the plaintiff's claim in relation to these matters, pieces have been picked out of each of the respective reports and, in some cases, the costings in one report translated into the recommendations in another. I am satisfied that there is not so much an overlap in relation to the plaintiff's claims, but rather requirements at different points in time. I generally accept what the speech pathologists saw as Lainie's speech pathology and communication needs as being applicable up to the time that she was seen by Dr Crossley, and I accept that Dr Crossley's material projects Lainie's needs, in that regard, from that time on and expands, to some extent, the nature of the support Lainie is entitled to have in respect of these aspects. Accordingly, I allow for a simple electronic voice device being a Macaw 3 which, with its mounting, is at a cost of $4,128.00. I accept that it needs to be replaced every five years and would expect it to be replaced by some system that Dr Crossley recommends. I will come to that item later. There is then the difficult task of attempting to assess the support and training that Lainie should have from a professional person experienced in augmentative communication to set up and monitor a program designed to reduce Lainie's perseverative speech, program the communication aid and set up her computer programming. It was Dr Crossley's recommendation that this be four hours of therapy a week directly after the equipment is purchased with the allocation to be reviewed in six months with a reduction to two hours per week for at least the next two years. Although Dr Crossley suggested the appropriate rate for this as between $80.00 and $100.00 per hour, Mrs Crouch, the occupational therapist, costs speech pathology out at $96.00 per hour. That is a rate that I would be prepared to allow. Dr Crossley also recommended that a tutor be employed for two two hour sessions per week, a total of four hours a week, to enable Lainie to catch up on some of the work she has missed and to foster her literary skills and communications aid use. She suggested that arrangement should be reviewed every six months but envisaged that Lainie would benefit from this input for at least the next two years. She went on to say that the tutor's role may effectively be combined with that of carer, if a person with the right skills can be found, and she made the point that Lainie does not need a tutor and a carer at the same time. Nevertheless, the plaintiff seeks this cost. The plaintiff's response, to the defendants putting that this should not be a separately charged tutorial service but part of the supervised attendant caring, is to say that if the requirement for tutoring could be satisfied by an attendant carer, then one would expect the plaintiff to have already received such tutoring and to not have any need for additional tutoring to improve her education or to foster her literacy. That does not seem to me to answer the point that Lainie does not need both, rather to stress the need for an appropriate qualified carer and perhaps some need for additional financial compensation for such a carer. The plaintiff goes on to claim that speech pathology intervention is required for approximately 12 hours twice a year. That was a recommendation that was made by the speech pathologists in 1991 and it is difficult to see how it fits into the regime proposed by Dr Crossley. On the other hand, it is apparent that if the portable communication devices recommended by Dr Crossley are adopted, they will require the period of support and training that Dr Crossley recommends and presumably further support and training when there is a review and replacement or upgrade after three years. It is Dr Crossley's opinion that there is a need for that review and upgrade. In light of the uncertainties about the additional tutoring, but recognising the strength of this component in Lainie's claim, that may best be met by accepting the claim for speech pathology intervention of approximately 12 hours twice a year recommended back in 1991 and accepting the hourly rate of $96.00 at an annual cost of $2,304.00, a weekly cost of $44.30 by the multiplier 1,351, as a cost of $59,849.00. I would allow this sum.
Occupational therapy
231. The plaintiff claims for an occupational therapy review for ten hours per annum for the rest of her life and four hours annual review. It seems that the plaintiff originally miscalculated the annual cost and there must be some doubt as to how the plaintiff treated the four hours annual review. The plaintiff revised the calculation to claim $36,221.00. The defendants' calculation, based on ten hours per annum using their multiplier, resulted in a sum of $27,122.00. The plaintiff now accepts this amount. I allow the sum of $27,122.00 for occupational therapy review.
232. The plaintiff claimed a review by an occupational therapist of her wheelchair seating. The defendants contested that a separate allowance should be provided and this was accepted by the plaintiff particularly in light of the overlap that this claim has with the plaintiff's claim for wheelchair maintenance which I deal with later.
Music therapy
233. The defendants accept that the plaintiff would benefit from music therapy to improve her motor control and range of expressive movement and her motivation and scope of participation in music. The report of Mr Thompson of 26 September 2000, a music therapist, recommends a program for at least 18 months which could be evaluated at three monthly intervals, at a rate of $90-100.00 per hour. The report does not specify the frequency and also refers to an excellent community music program which has a music therapist on its staff. The defendants would allow only ten hours for this therapy. On Mr Thompson's report, I do not consider this allowance to be sufficient and I would allow $3,900.00.
Psychology
234. In his report of 26 February 2000, Professor Oakeshott referred to Lainie's awareness of her situation and trouble in establishing and maintaining friendships with her own peer group, that sexuality issues need addressing and her psychological responses to everyday events needed monitoring and professional report. He estimated that she would benefit from counselling sessions with a clinical psychologist for at least one hour per month for the rest of her life. It is clear from Professor Oakeshott's report that he is not recommending this counselling as a consequence of the motor vehicle accident in which Lainie was involved in 1998 as he takes Lainie as having settled down to her pre-accident state prior to his consultation with her. Mr Sutton, who prepared a report on the psychological aspects of Lainie's condition after the accident and after Professor Oakeshott had made his report, specifically recommended psychological counselling for Lainie's current behaviour for 20 intensive sessions over two months with support and review sessions fortnightly for four months and then monthly over two years. He also added that crisis management sessions will be required, probably six annually for the duration of Lainie's life. As he took the view that Lainie was not amenable to counselling in a psychotherapeutic sense and required specialist behavioural programs, the defendants took the view that he was at odds with Professor Oakeshott. I do not think that this is so. It seems to me that Mr Sutton is stressing the requirement for Lainie's psychologist to be thoroughly trained and experienced in modern applications of behaviour theory to therapy. The latter part of his report, which envisaged on-going counselling for stimulation and supervision of routines, developmental issues and separation issues, all point to the counselling recommended by Professor Oakeshott as being required on an on-going basis irrespective of the accident. My biggest difficulty is in determining whether Mr Sutton's reference to the requirement for crisis management sessions being required which he expresses as being in addition to the sessions that he recommends as a consequence of the accident. In the end, I consider that the crisis management sessions would have been taken into account in the settlement of Lainie's accident claim and I should not allow for them. As for the sessions that I do allow at $155.00 per session that amounts to $1,860.00 per annum or $35.77 per week, at the multiplier of 1,351 that amounts to $48,325.00.
Podiatry
235. There is some contest about Lainie's future podiatry needs. Professor Oakeshott reported that Lainie was unable to cut her toenails and that a podiatrist should visit her for one hour every six weeks for the rest of her life. Mr Eric Sutherland, a podiatrist who had attended Lainie, reported that she had received something like only five treatments in six years. He considered that if this status quo continued, her requirements would be minimal at about $40.00 per annum. He does report, however, that if routine nail cutting and foot care were to be undertaken by a podiatrist, it would be reasonable to receive treatment every six to eight weeks costing between $350.00 and $450.00 per annum. A cost of $350.00 per annum is $6.73 per week by the multiplier of 1,351 is $9,093.00 which I allow.
Dentistry
236. Professor Oakeshott reports that Lainie requires a general anaesthetic for any dental examination and work. At a minimum, he estimates her requirements to be one hour per year for the rest of her life. Even so, Dr Gordon, her treating dentist, indicates that in the past some home visits in May 1993, March 1994 and February 1995, took place apparently without the requirement for general anaesthesia, but that general anaesthetic was required in April 1995. In December 1987 Lainie suffered a complex fracture to her upper right central incisor tooth as a result of a fall out of her wheel chair. There was a need to treat this under general anaesthetic in August 1996 and treatment may be required in the future in respect of this tooth which could include root canal therapy, porcelain crown or should the tooth become unrestoreable, implant replacement therapy. The defendants' response to these matters is to allow costs based on Dr Gordon's report of the treatments that he has carried out on what the defendants say is 11 occasions or once every 66 weeks. That does not accord with Professor Oakeshott's estimate and does not assist me in determining what I should allow for the future. The plaintiff's submission goes on to suggest that based upon the plaintiff's previous dental treatment, the plaintiff will require one hour of dental treatment in a hospital every second year for the rest of her life. That includes the hospitalisations related to the fracture of her incisor tooth. On the other hand, I note Dr Gordon's comment that Lainie will require a general anaesthetic for any future dental treatment. I also note his comment that she has a high standard of oral hygiene, very few dental restorations that will require future maintenance and very supportive parents who value preventative dental care. I would allow the home visits at a cost of $111.95 or $1.70 per week by the multiplier of 1,351 in the sum of $2,297.00. I accept that Lainie may have the need for hospital admissions in the future but have some difficulty in accepting that they will occur every second year. On the other hand, I consider a frequency greater than once every seven years as proposed by the defendants as also not being justified. Merely because Dr Gordon makes the comment that his estimate of future dental costs does not account for any future unforeseen circumstances does not indicate that the plaintiff is at risk of damaging her teeth from wheelchair falls in the future as the plaintiff contends. The comment is really fairly directed at the difficulty of accurately estimating future dental costs. Doing the best that I can with the figures that I have been given, I would allow for dental treatment under anaesthetic once every three years. The fee for dental costs at a 30% loading is $145.54. Theatre and facility fees are $515.00. I allow $220.18 per annum or $4.23 per week by the multiplier 1,351 which is $5,715.00. A claim is also made for future treatment of her fractured incisor tooth. Depending upon whether root canal therapy, porcelain crown or implant replacement might be required, there is a cost ranging from $1,500.00 to $3,696.00. The defendants say that whatever sum is fixed upon, there should be a high discount for contingencies. I am inclined to agree. I would allow a sum of $1,875.00 which includes a discount for contingencies of about 25%.
Clothing equipment and aids
237. The defendants disputed the plaintiff's claim and method of calculation for the replacement of wheelchairs. The plaintiff initially claimed a requirement to have two electric wheelchairs, one to be in reserve when the other chair has broken down or is receiving maintenance. The plaintiff claimed an inflationary cost in respect of the price of future wheelchairs. Working on a life span of four to five years, the plaintiff maintained that one electric wheelchair every four years commencing in four years time was required and a second wheelchair every eight years. This reflected the view that a second wheelchair was likely to have twice the longevity as the first wheelchair because it was not used as often. The defendants disputed each of these aspects. The defendants make the point, and I accept it, that there is no reason why, if the chairs are replaced every five years, that the chair that is replaced is not capable of serving as the reserve chair. The defendants also disputed that an allowance be made for the increased cost of wheelchairs as the result of inflation, relying on Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. The plaintiff has responded by accepting that there is not an entitlement to an increased cost of wheelchairs on this basis. As I understand it, the plaintiff also now accepts the defendants' calculations as to the present cost of a wheelchair with a modified footplate at $8,125.00. The plaintiff also now accepts the defendants' suggestion of the provision of a power tilt seat at $1,650.00 and a modified footplate at $500.00. In addition, the plaintiff seeks a modified backrest for an additional cost of $500.00. That is a sum of $10,775.00. The defendants' response to the initial claim allowed for the costing that the plaintiff now claims other than for the modified backrest, and the plaintiff now accepts those costings and includes the modified backrest. The need for the modified backrest was accepted in the defendants' submissions before me. On that basis, and accepting the defendants' argument that the replaced wheelchair will serve as the reserve chair, there does not appear to me to be the need to make the adjustment as to the cost of the wheelchair that the plaintiff makes to increase the replacement cost by 50% on the basis of requiring a reserve chair every ten years. The cost of replacing wheelchairs, taking into account a compound interest rate of 3% every five years commencing in 5 years time is:
2006 10,775 x 0.8626 = 9294.52
2011 10,775 x 0.7441 = 8017.68
2016 10,775 x 0.6419 = 6916.47
2021 10.775 x 0.5537 = 5966.12
2026 10,775 x 0.4776 = 5146.14
2031 10,775 x 0.4120 = 4439.30
2036 10,775 x 0.3554 = 3829.44
2041 10,775 x 0.3066 = 3303.62
2046 10,775 x 0.2644 = 2848.91
TOTAL $ 49,762.20
I allow $49,762.00
238. The defendants pointed out the need for ongoing maintenance costs and the plaintiff accepts the defendants' figure of ongoing maintenance costs of $15.66 per week which, by the multiplier 1,351 is $21,157.00.
239. There is a need for postural inserts for the wheelchair. The plaintiff and defendants agree on an allowance of $1,400.00 being made for this and a requirement for postural inserts every five years. This is a weekly cost of $5.38, by the multiplier 1,351 is $7,268.00. In addition, there should be an allowance for a sheep skin cover which requires replacement every 18 months. It is agreed that the value of the sheep skin cover is $500.00 and over 18 months that is $6.41 per week, by the multiplier is $8,660.00. The total for these items is $15,928.00.
240. The plaintiff requires high-top boots for ankle support with lambs wool linings for winter. The defendants accept this but challenge the cost claimed by the plaintiff as well as the estimate that they would require replacement every two years. The defendants' estimate for the time for replacement is based on the fact that the plaintiff is now no longer ambulant. The plaintiff counters with the fact that Dr Buckley, who recommended the boots, saw her when she was not ambulant but nonetheless recommended replacement every two years. This is the estimate also of Ms Crouch, the occupational therapist. The plaintiff has taken the mid-point of the costings of Dr Buckley and Ms Crouch, and I see no reason why that should not be accepted. That amounts to a cost of $1,000.00 every second year or $500.00 per annum, $9.62 per week, by the multiplier 1,351 is $12,997.00.
241. In order to avoid the development of pressure sores, the plaintiff requires silicon socks to relieve the pressure on her feet. The cost of these special socks is not challenged by the defendants. They cost approximately $130.00 and should be purchased yearly. The annual weekly cost is $2.50 per week which, applying the multiplier of 1,351 is a cost of $3,378.00. The defendants say that this sum should not be allowed because, absent her injuries, the plaintiff would have incurred expenses for socks, stockings and pantihose at least equal to $2.50 per week. At the time it was put to me, I was unable to see the justification for this proposition and I am still unable to do so. But for the plaintiff's injuries and disabilities, the plaintiff would not have required this item. Mr Meldrum spent some considerable time arguing this proposition on the basis of the principle that he derived from Luntz (supra) at p4 [1.1.4]:
The fundamental principle of compensation means that the damages to be recovered are in money terms no more and no less than the plaintiff's actual loss.
I am quite unable to see how the provision of this special item does not constitute part of the plaintiff's actual loss. I allow the item at $3,378.00.
242. The plaintiff requires the use of a special spoon, fork and plate. These cost $102.20 per year and require annual replacement. This is accepted by the defendants. The sum of $102.20 is $1.97 per week and by the multiplier 1,351 is $2,661.00.
243. The reports of the occupational therapist indicate a requirement for adjustable beds and pressure mattresses. This is yet another instance where the defendants sought to quibble about evidence that had been admitted by consent and in respect of which no cross-examination was undertaken. An assessment was made in respect of a cost of a particular type of bed at plus or minus $5,000.00. Ultimately, a report was put in that the plaintiff preferred a particular type of bed at a cost of $5,860.00. The report of the occupational therapist was examined by Mr Meldrum QC as though it were a legislative prescription. Because the occupational therapist had, in other parts of her report spoken of requirements, and in the part of the report related to this bed had spoken of a preference, Mr Meldrum's submission was that the cost of the bed should not exceed $5,000.00. I cannot accept this approach. I take it that the occupational therapist, as an expert witness, is of the view that the appropriate cost of the bed for Lainie is the amount that she designated. This then was the subject of a further proposition by the defendants that, absent this special requirement, the plaintiff would have required a bed and mattress in any event and I should make some form of deduction for that. I have already rejected that as an appropriate approach in considering the issue of the provision of silicon sox. However, the plaintiff seeks this as a recurring cost every ten years because the bed is accompanied by a ten year warranty on the motor and mattress. The bed is also accompanied with a 25 year warranty on the frame work. I think that the best I can do with this is, rather than annualise a cost, provide the plaintiff with one bed at today's prices with a view that another bed might be purchased in the future and to allow today's price for that. Accordingly, I allow $11,720.00.
244. The plaintiff claims for the future cost of electric toothbrushes. I have already been reluctant to allow a past annual replacement of electric toothbrushes. The defendants' answer is to say that the plaintiff might, in any event, have had an electric toothbrush. That is no answer to what is said to be a requirement for an electric rather than a manual toothbrush. I cannot ignore the fact that an electric toothbrush is comprised of two components, one of which is the electric motor that runs the toothbrush, the other is the brushes. The plaintiff is claiming the full cost of an electric toothbrush at $99.00 per year. I would allow $1,200.00.
245. The plaintiff claims for a portable communication device such as a Lightwriter DynaMyte or Vanguard costing between $6,800.00 and $15,000.00. This is a matter referable back to what was claimed in respect of the plaintiff's needs for speech pathology [para. 229]. The devices, such as an alphabet board and Cannon communicator that Lainie had used at school, were costed as well as a simple electronic device known as a Macaw 3. The defendants did not dispute this costing but claim that there is no necessity for a portable communication device to supplant that. The plaintiff says in relation to these matters, that the portable electronic voice devices enable communication by pressing a button that contains an electronic voice response. The devices claimed as portable communication devices under this paragraph enable the plaintiff to use keyboards to spell words and to communicate more fully. There is no evidence of this distinction. I have earlier opined that Dr Crossley's recommendations would be appropriate to supplement the simple electronic device and I would allow a replacement on this basis. I propose to adopt the cheapest alternative at a cost of $6,800.00 requiring replacement every three years and annual insurance and repairs of $250.00. The annual cost of such a device is $2,517.00 which is a weekly cost of $48.40, by the multiplier of 1,351, a cost of $65,388.00.
246. The issue of a provision of a computer for Lainie was the subject of considerable argument on the part of the defendants. It proceeded from the premise that she would have a computer in any event. That is not a premise that I accept, but even if it were so, I consider that the need for a computer has been occasioned by her injuries. Dr Buckley, in his report of 11 June 1996, refers to the use of computer facilities for disabled people, both as communication aids and sources of information and diversional or avocational therapy. Mr Smith of the Ability Research Centre, who assessed Lainie's need for technology of this kind, made what I regard as a very valid point. He said -
A proper evaluation of a benefit such as this requires some attention to the context in which it applies. Lainie has very little else in her life except what we call recreational activities. To us a recreational activity is something optional and of less importance than the other activities in our lives. But in Lainie's case it is her life. She has no other options available to her. She cannot write, read, study or work. Her oral communication is limited. She cannot access information or pursue creative activities.
247. As I see the provision of this technology as a need arising from the injuries that Lainie sustained, I cannot accept the defendants' proposition that no provision should be made for Lainie having to acquire computer hardware. It was suggested that as Lainie's parents had a computer (derived from an inference from a report assessing Lainie's communication needs) that satisfied the need. As a continuing thread running through the submissions of the defendants was the proposition that the defendants were asking me to draw inferences, make assumptions and take "judicial notice" of matters that could and should have been clarified by cross-examination or have been the subject of direct evidence to which the defendants could point. In the end, there was a belated concession by Mr Meldrum QC that because Lainie cannot access a standard computer, there needed to be modification of a computer for her needs and that those modifications (presumably of her parents' computer) related to different software be applied to that computer and hardware in the form of a different mouse and keyboard. The other concession was that there should be some provision for a computer should Lainie leave home. That too was not dealt with by the defendants but they conceded that it should have been. In any event, I reject the defendants' premise that provision for a computer is not necessary. I accept the unchallenged evidence of Mr Smith of what those requirements might be.
248. The defendants also pointed to some of the difficulties that Mr Smith reported upon concerning Lainie's ability to use the computer during the time that he spent with her. I do not regard these observations as justifying the denial to Lainie of the obvious benefits that she would gain from having such a device. It was certainly not Mr Smith's view that those initial difficulties that Lainie experienced would be a bar to her use of the computer and I accept his view that it is reasonable for her to have her own computer system customised to her needs. Mr Smith costed the hardware at $4,548.00, the adjustable table at $720.00, software at $1,060.00 and set up and training as $2,120.00. Dr Crossley also recommended a talking word processor such as Write Out Loud at $185.00 and Word Prediction Software such as Co:Writer at $535.00. The plaintiff claims a total initial cost for the technology system as $9,168.00. In addition, the plaintiff claims that the technology system will lead to recurring expenses of $2,000.00 per annum at a weekly cost of $38.46 by a multiplier of 1,351, which amounts to $51,959.00. As I understand it, the defendants do not dispute these costings but rather say she would, in any event, have had a home computer or the benefits to be obtained are not compelling and to provide her with an item at this sort of cost would not be reasonable. I reject both those submissions and I would allow the items.
249. The plaintiff has a requirement for portable ramps. The defendants accept the cost of these ramps at $610.00 requiring a replacement every ten years. The annual cost of these ramps is $61.00 or $1.17 per week by the multiplier 1,351, is a sum of $1,581.00.
250. The plaintiff requires a cushioned toilet seat at an annual cost of $90.00 or $1.73 per week by the multiplier 1,351 is $2,337.00.
251. The plaintiff requires a portable bedpan at a cost of $47.50 to be replaced every five years. The defendants' written response to this claim was -
"Despite the evidence, the rate of use and the material from which such bed pans are constructed, suggest one only for a life-time".
The basis, as it emerged in submissions, was that bed pans would be made of a durable material and presumably would therefore not require replacement. In the absence of any evidence to the contrary, I do not see why I should not accept the unchallenged costings and basis provided to me. The defendants, in a number of other items, have accepted the same costings and assessments provided by the same occupational therapist and, absent anything to suggest to the contrary, I do not see why I should not equally accept what is put to me about this item. The annual cost of bed pans is $9.50 or $0.18 per week, by the multiplier 1,351 is $243.00.
252. The plaintiff claims for over-bed tables and specially designed bread boards costing $174.00 and $39.50 respectively with a replacement every five years. Again, the defendants' written response to this claim is to say -
The poverty of intellect, mobility and dexterity dictate that whilst required, the over-bed table and bread board are not likely to be heavily utilised. Thus it is reasonable to allow for the purchase of one each of these items ...
Again, all that I have before me are the costings of the occupational therapist. I was given these costings on the basis presumably that the occupational therapist had regard to Lainie's mobility, dexterity and intellect that the defendants seem to suggest might have some effect on the utilisation of these items. Absent any evidence to the contrary, I do not accept the defendants' argument. The annual cost of these items is $42.70 or $0.82 per week, by the multiplier 1,351 is $1,108.00.
253. The plaintiff also claims for a portable folding commode for use on holidays at a cost of $1,164.00 and on a basis that they be replaced every ten years. Again, the defendants' response is unsupported by any evidence but is an assertion that in any event some holiday resorts will be equipped in a manner that will provide disabled access to toilet facilities. Absent anything else, I see no reason to question the advice of the expert as to the requirement for this item. The annual cost is $116.40. A weekly cost of $2.24 by the multiplier of 1,351 is $3,026.00.
Future home modifications
254. In paragraphs 201 to 210 I discussed the compensation for the modifications that had been made to the two homes that Lainie's parents have had. A claim was made for future modifications of any house Lainie might require should her parents be unable to care for her in the present modified house in which she lives. The plaintiff simply seeks to base such future home modifications on what was said to be the cost of modifying the present house although I was not provided with evidence of the actual expenditure. It was said that the cost associated with the modifications to this house had increased by 12-15% since 1977, the date when the construction of the present house was completed. That was an estimate made by the architect who estimated the costs of the modifications to both the houses. The justification underlying the claim made is to assess the present value of such modifications and to apply it to an estimated time in the future when Lainie would require a home to be modified. Claim is accordingly made for the cost of these home modifications deferred for 15 years. The defendants' response is to agree that it is unlikely that Lainie will require her own home until her mother is unable to care for her. The defendants say that this is unlikely to occur at least until her mother turns 65 years. However, the defendants strongly submit that if the occasion comes for Lainie to leave her parents' home, the only appropriate accommodation that should be allowed is the proposed community living arrangement that is conducted by the ACT Health and Community Care Service. The first defendant put in evidence a statement of Lynette Grayson, the Director of the Disability Program of that Service. There was no supplementary oral evidence or cross-examination.
255. The Disability Program that Ms Grayson runs includes accommodation support services with multidisciplinary support teams providing allied health services including psychology, physiotherapy, occupational therapy and speech therapy and community access services as activity programs together with centre based respite. At the present time accommodation support services relate to 70 group houses with a mix of residents that have been assessed according to their intellectual capacity, physical needs and personality to ensure compatibility and companionship for the residents. Those services are not provided to Lainie at the present time because she resides with her parents although she has been assessed for participation in a community access service (daily activities) program. Although assessed as suitable for some activities, that aspect had not been taken any further at the time of Ms Grayson's statement. Lainie does not receive any accommodation support service which would require a request from her. If that were to happen, Ms Grayson would put forward her circumstances before a Placement Committee which would consider her case on its merits and make a recommendation. If the Placement Committee made such a recommendation, she would be accepted into the program as soon as suitable accommodation became available. The program currently provides support for disabled people who are in receipt of private funds and the timing of their placement depends upon fitting the person's needs with available and suitable accommodation. This is dependent upon there being a vacancy and the compatibility of their needs with other residents. In her statement Ms Grayson gave three examples of the costings that would apply should that eventuate. The first related to four clients with a sleep over with an annual cost of $97,526.00, six clients with active night duty at an annual cost each of $77,805.67 and four clients with active night duty at an annual cost of $108,156.00. The costings were as at November 2000. I have nothing before me to say which of those alternatives (or indeed any other permutation) might be suitable for Lainie. Nor do I have any idea of what might be the position 12 or 15 years hence. The best I could do with that aspect is to speculate that there might not be any great change. If so, I might be satisfied that the criteria, policy, general intent would be available to accommodate someone in Lainie's position. However, I was not provided with any material directed to this aspect. Rather, on behalf of the defendants, it was put that it was for the plaintiff to mitigate her loss and the plaintiff had not presented herself for assessment. Accordingly, I should regard the services as being available to her. I am not prepared to accept this approach. In the absence of some greater assurance of the criteria and policy of the Placement Committee which would give me confidence in a place for Lainie being available when she required it, I do not consider that I am able to regard the service as necessarily available to her. I note, however, the availability of the service and the possibility that Lainie might take up such a service in the event of losing her parents support as a possible contingency.
256. I do, however, have regard to what Ms Grayson says about the daily activities that the Disability Program provides. These particular activities are decided upon as part of an individual plan and include access to swimming pools and transport to and from the pools with hoists provided. I understand from Ms Grayson's statement that should Lainie remain in the care of her family home, those activities are available at a cost of $32,000.00 per year. This amount covers four and a half days of activities per week for 48 weeks of the year. The amount covers staffing and transport costs but not the incidental costs of the activities. No claim is made in respect of this aspect.
257. The other thing that I need to balance, although it was not the subject of addresses, is the prospect that Lainie will never leave her present home. The house has been modified for her requirements and I have assessed compensation for those requirements. Given her parents' attitude and wish to care for her in her own home for as long as they are physically and emotionally able to, I think I must allow for the very real possibility Lainie will not leave her present home and reflect that contingency in my overall assessment. Overall, I consider that I should allow $80,000.00 for future home modifications on the basis that Lainie will not and should not be expected to take up the services of the disability program but also reflecting its availability as a contingency in my assessment.
258. Not only does the plaintiff seek the deferred value of modifications to a home in the future in the sum of $110,745.00, but other items are sought under this heading. Maintenance on either a future home or the present house is claimed at $5,750.00 per annum. I assume this figure is the $5,000.00 cost of maintenance estimated by the architect brought "up to date" by the application of the 15% increase said to have incurred since 1997. I previously thought that a fair and reasonable cost for past maintenance was no more than $3,000.00 per annum or $57.69 per week. Assessing that cost by the multiplier I would allow this item at the multiplier of 1351, a sum of $77,939.00. I have see no real reason to revise, up date or discount that cost.
259. A claim is made for a heated pool for hydrotherapy. Dr Buckley, in his report in 1996, said that Lainie would benefit significantly from the use of a heated pool for both exercise and for the easing of the stiffness and spasticity in her arms and legs. He referred to a pool of a "small domestic size". I agree with this claim, particularly as the plaintiff only seeks it on a one-off basis and makes no claim for maintenance, which the architect's report estimated, on an on-going basis, at $1,000.00 per annum. Taking the architect's cost, an amount of $10,000.00 can be allowed. The defendants admitted the reasonableness of the cost of a spa and maintained that I could find that the video demonstrated that the plaintiff had such a bath. I accept the plaintiff's contention that the bath shown in the video is an ordinary bath.
260. The plaintiff also claims an air-conditioning unit for downstairs at the Red Hill property in the sum of $19,550.00. Professor Oakeshott expressed the view that there was no medical need for a temperature controlled environment as far as Lainie was concerned. Absent some evidence the plaintiff suffers discomfort in not having an air conditioned environment, I am not prepared to accept this claim.
261. The plaintiff goes on to seek maintenance costs in respect of the hydrotherapy pool (and the air conditioning unit which I would disallow). The architect suggests $1,000.00 per year in respect of such costs. Although it is tolerably clear from the architect's report that a separate allowance of $1,100.00 per year maintenance is allowed, so too are maintenance costs allowed generally with respect to all of the modifications, I just do not know whether there is any overlap as a consequence. I have already demonstrated a reluctance to allow the full maintenance costs suggested by the architect but I am inclined in the case of the hydrotherapy pool or spa to provide a limited lump sum for future maintenance of $5,000.00.
262. The question of the allowance for a hydrotherapy pool raises an issue of whether an additional hoist is needed for that pool. I have earlier allowed for two hoists, one for standing transfers from wheelchair to toilet and one for full body transfer into and out of the bed and bath. The plaintiff asserts that these hoists are not appropriate for outdoor use with a hydrotherapy pool or heated spa. However I have no evidence to that effect. The requirement for the hoist is contained in an occupational therapist's report which contains a recommendation for one other hoist in the general context of "transfers". There is no discussion of whether one hoist could fulfil both requirements. I would only allow for two hoists but accept the plaintiff may claim for replacement hoists every eight years, with battery replacement every two years. The cost of two hoists at $3,995.00 and each two slings at $335.00 amounts to $8,660.00, an annual cost of $1,082.50, a weekly cost of $20.82 by the multiplier 1,351 amounts to $28,127.82. The future cost of batteries is a weekly cost of $1.88 by the multiplier 1,351 amounts to $2,539.00 a total amount of $30,667.00.
Motor vehicle modifications and transport
263. The defendants accept that the plaintiff requires a wheelchair accessible motor vehicle and it is reasonable to allow the costs of it, additional to a motor vehicle which the plaintiff would have required in her adult years. The defendants argue that I should allow for only one such vehicle. They submit that the vehicle should last at least ten years by which time the plaintiff's mother will be 65, and the plaintiff may elect to live in community housing where the defendants say a vehicle will be available for her use. The difficulty with this submission is that I have no evidence as to whether a vehicle would in fact be available for Lainies use, other than the vehicle used for transportation of the group involved in group activities. In addition I have previously explained why I have not made my assessment on the basis of community housing being an appropriate option in the circumstances. The defendants, it seems, accept the costing of a comparative vehicle suggested by Mr Wood of the NRMA who provided the difference between the standing and the running costs of the vehicles as $163.91. The point that the defendants do dispute is the estimate of the annual distance that such a vehicle would travel. The evidence in relation to this is the report prepared by Mr Wood of the NRMA. He provides calculations of distances covered at 10,000, 15,000 and 20,000 kilometres per year and relates that to the vehicle ownership and maintenance periods for the purposes of standing and running costs. The distance covered in each year is significant because it alters the changeover period. The view being that if a car does 10,000 km per year, it should be changed over every seven years, if it does 15,000 km every year, it should be changed every six years and if it does 20,000 km every year, it should be changed every five years. I am obliged to consider this evidence in a virtual vacuum. There is just no evidence of the plaintiff's needs in respect of the use of a motor vehicle. Nor was any argument addressed as to why the plaintiff would require to use a vehicle to cover 15,000 kilometres which is the figure selected by the plaintiff. The plaintiff in the past has been a regular user of taxis. Annual costs in the past were estimated at between $1,800.00 and $2,000.00 but that does not assist me in this exercise.
264. Ultimately, the plaintiff claims for 11 vehicles over her lifetime and claims the capital costs of such vehicles at $71,224.00 on the basis that as at the time the figures were provided, a suitable vehicle, a 2000 Chrysler Voyager automatic wagon with wheelchair conversions, would cost $88,231.00 with weekly standing and running costs of the vehicle of $263.14 compared to a 1995 Holden Acclaim, which it is suggested by Mr Wood the plaintiff would otherwise drive, at a cost of $17,007.00 with weekly standing and running costs of $99.23. The difference is accepted by the defendants at $163.91 but they say this provision should only be made for the 10 years when it might be expected that the plaintiff go into community housing.
265. The defendants would only allow for one vehicle although they seem to accept the cost difference based on the 15,000 kilometre, six year changeover of vehicles and calculate the value by using a 10 year multiplier. The plaintiff seeks not only the lifetime standing and running costs together also with the access fee for a telephone system, but also the capital cost for replacing the vehicle and what is said to be a necessary mobile telephone system every six years. The defendants say that this latter cost does not allow for the trade-in component of the vehicle which they opine would be relatively high having regard to the initial cost of the vehicle. I accept the force of this submission. Absent evidence of the additional capital costs that might be involved in a vehicle changeover where allowance is made for the trade-in value of the vehicle being changed over, I think that I must regard there being no additional capital cost. The standing charge includes a substantial depreciation factor. Presumably the residual value of the vehicle will represent at the least the trade-in value which can be obtained. That, taken with the depreciation allowed, should account for there being no additional capital cost. If it does not, then I have no evidence upon which to act. The depreciation allowed seems to take into account the modifications to the vehicle but I have no evidence that the trade-in value would be effected by the modifications. In the end, the defendant, having accepted that the difference in the standing and running costs to the vehicle that the plaintiff would have had, amount to $163.91 per week, I use this sum to calculate on my assessment of the plaintiff's life expectancy, using the 1,351 multiplier, as $221,442.00 to be the cost of vehicle modifications. In addition I would allow as the difference in capital cost the sum of $71,224.00 for the purchase of the first vehicle.
266. In addition, the plaintiff seeks provision for a hands free mobile telephone to be fitted into the vehicle. Both the rehabilitation specialists recommend this for use in an emergency, particularly if Lainie were to have a seizure or other difficulty. The defendants say that given the usage of mobile phones and hands free kits fitted to cars in the community, it should not be accepted that the plaintiff's requirement for such a device is required as a consequence of her injuries. In light of the unchallenged evidence on this topic by the rehabilitation specialists, I reject the submission.
267. The only evidence of the cost of such a system is that provided by Mr Wood. The initial purchase and installation cost is costed at $900.00 and a connection fee of $65.00. Although an annual access fee of $420.00 per annum is quoted by Mr Wood, that seems to me to be a cost participation in a phone system that the plaintiff would have borne in any event. Mr Wood considered that it would not be impracticable that the system would be replaced due to wear and tear and technology changes when each vehicle is replaced. As I have accepted a vehicle changeover every six years, that amounts to a cost of $3.09 per week which by the multiplier 1,351 is an amount of $4,175.00.
Increased holiday costs
268. Both rehabilitation specialists were of the view that there would be increased costs for any holiday that Lainie might take. Both pointed out that she would, of course, require attendant carers for those holidays. I deal with the costs of attendant carers subsequently and I propose to provide for attendant carers over the whole of any one year. It really means that the additional costs that the plaintiff claims in respect of holidays is limited to the costs of the carers' travelling with Lainie and their accommodation for the period of the holiday.
269. There is no material before me as to the length of an annual vacation period but the plaintiff's claim is for three weeks. The defendants' response is that the plaintiff's lack of cognition and mobility "would make it reasonable that for her own well-being, one week per year would be appropriate". Again there is no evidence for this assertion, nor is there any evidence of the sort of holidays that Lainie has had in the past or what might be required in the future. The plaintiff has based costings on the cost of three weeks accommodation at the Gold Coast with airfares to that destination. The defendants put the real possibility of obtaining discount airfares and accommodation when travelling to holiday destinations. Once again, apart from the assertion and the material put in by the plaintiff showing differential airfares, there is no other material to support this submission, although there is force in the fact that the plaintiff has the ability to have holidays planned well in advance and to take account of conditions favourable to discounting. However, I also cannot ignore that the cost provided for airfares in economy class differ as to the sum of $709.94 with no restrictions on the usage, to $280.94 where conditions apply.
270. The plaintiff responds to the discounting argument saying that I can take account of the fact that there have been "likely" increases in airfares between the year 2000 and 2002, the quote for airfares being provided on 4 September 2000. I was asked to take this into account in relation to the obtaining of cheaper fares and I do so, but I cannot ignore the marked disparity in the airfares quoted. It was also put that no claim is made for an overseas vacation. These are all matters for me to weigh. In the result, I favour making an allowance for a two week holiday at a destination like the Gold Coast. Because of the possibility of savings on discounted airfares, I think that I can only approach this issue in a very broad and generalised way and I propose to allow $130,000.00 for this item.
Past Griffiths and Kerkemeyer damages
271. The plaintiff claims damages for the value of the services rendered by her mother and, to a more limited extent, by her father. The principle upon which these damages are founded is the decision of the High Court in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. An exhibit was tendered through the plaintiff's mother, which she adopted as an accurate reflection of the hours attending upon the plaintiff and providing care. Those hours are not disputed. Nor, as I understand it, is the hourly rate of $28.00 as the commercial cost of services provided. The rate is said by the plaintiff to be in present value terms and the plaintiff makes no claim for interest. I understand that these matters are accepted by the defendants but the defendants argue for a reduction in the damages claimed because Lainie would have received many hours of care as a normal child even if she did not have her injuries and disabilities. Accordingly, the defendants argue for the application of a broad brush discount of say 25% on what would otherwise be these damages.
272. The defendants recognise that the Full Federal Court decision of Black v Lipovac [1998] FCA 699 (Unreported) 4 June 1998 is contrary to their submission and binding upon me. That case dealt with a claim by the parents for their care of a child, then aged 14 months who suffered injuries resulting in permanent and profound disablement. Miles, Heerey and Madgwick JJ said at [165] -
We agree with the trial judge that the reasoning of a majority of the High Court in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 338, 350 compels rejection of any discount because the parents and particularly the mother would have given Tom [the plaintiff] much care even if he had not been injured. Indeed the reasoning of the minority judges on this point probably leads to no different conclusion: this child was rendered by his injuries quite incapable of providing the help around the house that children, once of a certain age, usually do.
273. The defendants' contention finds its basis in the observations in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 of domestic arrangements resulting in a give and take situation that would satisfy any need arising from the event which caused the injury. It is contended that insofar as the court in Black v Lipovac (supra) tried to equate the relationship of parent and child to that of husband and wife, it should not have done so.
274. The contention ignores the basis and the principle for the award of such damages. As the majority in Van Gervan v Fenton (supra) explain, the claim is not one of special damages but one to compensate the plaintiff for the plaintiff's need for services arising from the defendants' wrong. In Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, Toohey, McHugh, Gummow and Kirby JJ at 379 said -
The starting point to explain our conclusion is a clear recollection of the principle that the Court is not concerned, as such, to quantify a plaintiff's loss or even to explore the moral or legal obligations to a care provider. It is, as has been repeatedly stated, to provide the injured plaintiff with damages as compensation for his or her need, as established by the evidence. The fact that a defendant fulfils the function of providing services does not, as such, decrease in the slightest the plaintiff's need.
275. Further, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ commented in Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, at 327 -
In Van Gervan v Fenton, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Accordingly, it was held in that case that a plaintiff's damages on this account are not to be determined by reference to the actual cost to the plaintiff or having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them. Neither party sought to reopen the decision in Van Gervan.
276. I see no justification to accede to the argument put by the defendants or to discount this head of damages in the manner suggested. I allow the plaintiff's claim for past care to the date of the trial of 40,877 hours at $28.00 per hour, a sum of $1,144,556.00.
Future Care
277. I have already referred under the heading of "Future Home Modifications" to the argument put by the defendants that when the plaintiff's parents become unable to care for her, she should enter the group housing program conducted by ACT Community Services. The defendants do not provide any alternative or comments to their submission that the only appropriate course for the plaintiff to undertake when her parents are unable to care for her (by which they take her mother reaching the age of 65 years as being that time) that the plaintiff should go into a community home. I have already pointed out the uncertainty with respect to this aspect and I refer particularly to the plaintiff's intellectual capacity and the difficulties that she may have with respect to her compatibility in finding a suitable community home placement. The fact that the plaintiff's parents would wish to care for her as long as they are physically and emotionally able to do so is another factor which mitigates against an arbitrary cut off of this option. It is also a matter of reasonable speculation that her parents would do everything that they could to ensure that she remained in the family home with such assistance as could be provided for the care that they might be physically unable to provide for her.
278. A big issue in this debate is whether a carer should always be of the standard of a registered nurse or residential care worker. It is Professor Oakeshott's view that Lainie will require a trained attendant carer to be present for 24 hours each day for the rest of her life. He advises against frequently changing rosters and different people as such an arrangement he says could easily upset her and would likely cause aberrant behaviour. He recommends either a house couple or a roster of carers working shifts, one of such persons needing to be trained at an equivalent level to an assistant in nursing or a residential care worker. He points out that her mother provides part of this need at present. Dr Buckley, in his report and in his evidence before me considered that care should be provided in Lainie's own home by a house couple on a 24 hour a day basis with the training of one member of the couple to be at least at the standard of a registered nurse. He considered that the requirement for a professional standard of that nature was because Lainie will always be unable to make appropriate decisions for herself and will be morally vulnerable to the decisions of her carers. He was cross-examined at some length with respect to this proposition but did not resile from it. He did not, however, suggest that Lainie's parents were unable to provide this but rather directed his attention to the time when Lainie's parents were no longer able to do so. He also made the point that account should be taken for the fact that Lainie's parents may not always be available to do this for reasons of intervening illness and even marital disharmony. He also made the point as to the institutional care suggested by the defendants that the current governmental policy did not favour institutional care. This latter point did not seem to be directed at the community living arrangements suggested by the defendants as being appropriate for Lainie when her parents were no longer able to provide their support. It is a difficult question to determine what resources should be provided to Lainie to provide for her own care having regard to what might be projected as to it. In Dr Buckley's view, whilst Lainie's parents are involved, supervision of any house couple would ordinarily be by them but there would be a requirement for assistance for at least one hour per month of supervision by a local community team or developmental disability service. Such a team would provide a case manager who would assist in the decision-making process regarding vocational activities and other professional requirements as they arose. Professor Oakeshott was of the view that a case manager should be provided being a person skilled in the care and needs assessment of people with brain injury and to be of a registered nurse standard or a training equivalent. Such a person, he considered, would have responsibilities with the selection and training of carers, ensuring that they are rostered appropriately and that backup can be provided. He estimated that this person would be required for at least four hours per month for the rest of her life. I am inclined to accept the regime that Professor Oakeshott proposes concerning the provision of such a case manager irrespective of the parent's role. I consider that contrary to Dr Buckley's views, the lesser standard required by Professor Oakeshott of the carer can be met not necessarily by the standard that Dr Buckley requires of that of professional nurse, but rather that of an assistant in nursing or residential care worker.
279. I accept the plaintiff's submission that it matters not how much of this assistance is provided by the plaintiff's parents, the ascertainment of needs relates to the provision of the requirements that I have outlined.
280. It is the defendants' submission, based upon a report by Dr Bowers, that a registered nurse is not required in all situations to care to all aspects of personal care for patients such as Lainie, particularly with respect to ethical standards. I accept this but consider that the regime proposed by Professor Oakeshott satisfactorily meets the concerns expressed by Dr Buckley. The defendants further submit that it is presumed that the plaintiff will continue to reside with her parents and receive many services from them. They point to the fact that no evidence has been given of the provision of the services recommended by the two rehabilitation specialists supporting the plaintiff's case. It is then submitted that the absence of such evidence of these services being provided permits a conclusion that significantly lesser services adequately meet the plaintiff's needs. I do not follow the argument. The evidence, which the defendants do not challenge, show what the plaintiff's needs are. I am not prepared to assent to a proposition that some arbitrary percentage be applied to reduce the amount claimed on the supposition that lesser services cold be provided to meet the plaintiff's needs.
281. As to the cost of care, the plaintiff puts a case for 24 hour care by two carers either as a house couple or as an attendant carer with her parents. It is put that a live-in house couple costs $1,750.00 per week for a five day week plus keep of $21.25 per person per day plus an allowance for superannuation at eight percent. This is an amount of $1,962.50 plus $157.00 superannuation per week, a total of $2,119.50. (The plaintiff's figures have been adjusted to include an additional $21.25 being the keep for the second person). To that is added relief assistance for the weekends costing $625.00 per day plus keep of $21.25 per person per day and superannuation at eight percent. Relief care per weekend is claimed at $1,441.80 (as adjusted). This amounts to a total cost of care per week of $3,561.30. These figures are not disputed by the defendants nor in making a case that significantly lesser services would adequately meet the plaintiff's need, do the defendants attempt to itemise the details of such care. They provide a calculation suggesting a figure of approximately 75 percent of the "claimed amount" being allowed at $2,500.00 per week for 10 years and amounting to $1,130,000.00 together with their estimate based on their expectation of the plaintiff's life to age 57 of the cost of community housing which they put forward as $996,450.00. The total of these sums is rounded out to $2,500,000.00. That results in approximately a 50 percent reduction on the figures that the plaintiff puts forward. On my calculation of a weekly cost of care of $3,516.00 by the multiplier of 1,351 is $4,750,116.00.
282. In addition, the plaintiff points out that there will be a need for replacement care when a house couple take their four weeks annual leave. They cost that replacement care at $625.00 per day plus keep of $21.25 per person and superannuation at eight percent. The total relief care on a weekly basis is $5,023.00 at an annual cost of $20,092.00. However, their calculations are on a seven day week, not the five day week which would be required. On that basis the total relief care on a weekly basis is $3,604.50 at an annual cost of $14,418.00. Which on my calculations is a weekly cost of $277.27 by the multiplier of 1,351 is a cost of $374,591.77. The total cost for carers on this basis is therefore $5,124,708.00.
283. There, is however, a great degree of uncertainty about the requirement for carers based at this optimum level. It is in this regard that I must give some effect to the paucity of material before me as to the plaintiff's present care requirements. I know that the parties have drawn a cut-off line as at 13 August 2001 for the assessment of this matter but it would be unrealistic of me not to regard the claim put forward, certainly in this regard, as satisfying the optimum requirements of the plaintiff. At the time of the start of this hearing, the plaintiff had just left school and the effect that this might have on her future life and her needs is very speculative. I must consider that there is a chance that at some time in the future Lainie or her parents might regard the option of being accommodated in community housing as appropriate. Despite the unsatisfactory nature of the material which might make this a more viable proposition, I cannot reject it entirely. I am therefore prepared to apply a contingency factor to the amount that I have assessed as the optimum amount for the provision of carers for her. Accordingly, I reduce the figure that I have assessed at $5,124,708.00 by 15 percent. Accordingly, I would allow $4,356,002.00 under this head.
284. Nevertheless, I still consider that a house couple would require assistance and professional supervision. That seems to me to accord with the view of Professor Oakeshott and to provide something of the control mechanism of professional standards that Dr Buckley alludes to. The defendants have a simplistic response to this matter. They say that Lainie's parents have supervised her carers to date, that they have the capacity and are likely to perform as part of their ordinary parental functions the supervision which would otherwise be performed by a case manager. Thereafter they say when Mrs Radovanovic reaches the age of 65, Lainie will go into group housing which includes the services of a case manager. I am satisfied that as a consequence of her injuries, Lainie requires the services of a case manager and that her parents effectively provide this function. However, when her parents are unable to do so, I do not see any reason why an allowance should not be made for the four hours per month suggested by Professor Oakeshott for the provision of this service. However, I do not regard her parents' performance of this function as necessarily requiring compensation at anything other than the ordinary carer's rate. The costs of a case manager accepted for the purposes of these proceedings is $120.00 per hour. On the plaintiff's figures this is an annual cost of $6,240.00 per annum or $120.00 per week which, by the multiplier of 1,351 is $162,120.00. If Lainie's parents perform this function I would expect them to do so for at least 15 years or so (I do not accept that upon Mrs Radovanovic turning 65 she would abdicate her responsibilities in that respect). I would allow $130,000.00 in respect of this item.
285. An associated claim is made for the services of a professional handyman for minor repair jobs, gardening and lawn mowing. This is a recommendation of Dr Buckley, the rehabilitation specialist, and also of Ms Flanagan, the occupational therapist. Dr Buckley made his recommendation in his report in 1996 when he recommended four hours of handyman assistance per week. Ms Flanagan, in her report in 2000, suggested that part of a carer's duties would include indoor household maintenance activities but considered an additional two hours per week assistance should be provided for outdoor household maintenance tasks such as gardening and general repairs. Professor Oakeshott, in his report, also in 2000, commented that Lainie was unable to perform heavy housework or handyman activities and estimates support required of an average of two hours each week for the rest of her life. The plaintiff's claim based upon what is said to be the current rate in September 2000 of between $25.00 and $30.00 per hour is for four hours per week at $30.00 per hour. The defendant's response is to say that while the plaintiff lived at home with her parents, the plaintiff's father would, regardless of her presence, have attended to these items, that there may be some doubling up with respect to the maintenance allowed in respect of the home modifications and that the quoted amount of $30.00 per hour over the whole range of work is not a reasonable sum. As to the last point, no other rates were put to me. The plaintiff's response to the point about the plaintiff's father undertaking the work is to reiterate the need argument to which I have earlier referred.
286. Having regard to the view that there is some inter-relationship between the maintenance related to the household modifications which have allowed for some outdoor work as well as the internal alterations and involvement of the carers in aspect of the internal household maintenance, I would allow two hours per week for this service. Although the plaintiff claims that $30.00 per hour does not include agency fees, GST or a claimed rate based upon a minimum call out period of two hours, I am not inclined to accept any more than $25.00 per hour as the appropriate rate. At $50.00 per week by the multiplier 1,351 that amounts to $67,550.00 and I allow that sum.
Loss of earning capacity
287. The nature of the plaintiff's disabilities means that the plaintiff cannot, and will never be able to participate in the work force. She is entitled to compensation for this loss of her capacity to earn income. It is particularly difficult in a case such as Lainie's where there is no work history or indeed any real idea of what Lainie's capacity would have been for work had the injuries that she sustained not occurred. There was no attempt in this case to provide evidence of what matters could have caused the assessment of a loss of capacity for a higher rather than a lower degree of economic participation in the work force. The plaintiff chose the approach of looking at the statistical material provided by the average weekly earnings of the adult work force. No suggestion to the contrary was put by the defendants although they attacked the plaintiff's application of this material to the whole of the plaintiff's working life arguing that some lesser weekly sum would have been earned in the early years of the plaintiff's participation in the workforce.
288. In theory, I would have to accept this criticism of the plaintiff's methodology. However, I do not understand that the plaintiff puts this in other than a broad averaging factor because of the difficulty of predicting what would have been the situation as far as the plaintiff's participation in the work force is concerned. As best I understand the defendants' response to the plaintiff's claim to entitlement over the whole of her participation in the work force of being entitled to average weekly earnings, it is a response that challenges that being applicable to the time when adult wages are not commonly paid until the age of 21, arriving at a lesser amount and then extrapolating that lesser amount for the period of time that they say would apply to the plaintiff for the whole of her working life.
289. The only material that was placed before me was material obtained from the Australian Bureau of Statistics (ABS) of a full-time adult ordinary time earnings and total earnings for females in three monthly periods from February 1998 to May 2000. The ABS qualification to those average weekly earnings is that they represent average gross (before tax) earnings of employees and do not relate to average award rates nor to the earnings of the "average person". Notwithstanding that, the defendants ultimately assert that the plaintiff's adult earning capacity is approximately $400.00 per week net of tax. I am uncertain as to how the defendants arrive at this figure. The suggestions seems to be that, because the plaintiff, on the scenario put forward of leaving school at year 12, the defendants are entitled to extrapolate in respect of her future loss of earning capacity at the rate that the defendants suggest. I think that the defendants' argument boiled down to a concern about allowing, as past loss of earning capacity, the amount of average weekly earnings for the 3.5 years between when it was said the plaintiff would have left school and 13 August 2001 agreed as the date from which future loss would be calculated. Put that way, I also think that there is force in that argument. The average weekly earnings used relate to adult employment and those employed in it. Any average takes into account those persons who have spent their years before becoming an adult (and after) in achieving tertiary qualifications often without obtaining very much by way of remunerative employment. Ultimately, of course, such persons may earn more than the average. Equally, persons who immediately enter the work force will earn less than what is regarded as adult average weekly earnings at least until the time they qualify as adults. What the plaintiff suggests here is a very broad brush approach and in light of no particular profile established as to why the plaintiff should earn more or less than average adult weekly earnings, I also think that there is force in their submission.
290. I am conscious of and prepared to apply the observations made by Clarke A-JA in Rosniak v The Government Insurance Office (1997) 41 NSWLR 608 at 627 when he said -
I would, however, like to add some short observations on the question of the appropriate tables to adopt in assessing economic loss. At the outset it must be said that a court faced with the task of assessing economic loss for a plaintiff who is injured as a young child must be accorded a very wide discretion. Clearly enough, precision is impossible. The exercise is one which in many ways involves guesswork.Nonetheless a practice has developed which has been followed for many years in this State, pursuant to which the plaintiff's loss is calculated by adopting an average wage and making appropriate adjustments to fit any factual vicissitudes. That does not, of course, mean that a court should not prefer to adopt a median wage as a basis for assessing the economic loss in a particular case. There are, however consequences which will, or may, flow from adopting a median figure. That is because, as Badgery-Parker J explained, that figure is the amount which divides the distribution of employees into two equal groups, one having earnings below and the other earning above that figure, whereas the average wage is influenced to a degree by the earnings of a small group of high income earners. In these circumstances it would seem to me that unless there is no reasonable possibility exposed on the evidence that the person under consideration may have become a high income earner it is appropriate to adopt a figure which takes account of the higher earnings, viz, an average figure. It may be that in a given case the facts strongly support the conclusion that there was no realistic possibility that the injured plaintiff would become a high earner. If so, a proper exercise of judgment may support the adoption of the median figure.
It should not, however, be overlooked that in the case of the type under discussion the court is necessarily dealing with possibilities and is doing so with very little information on which to assess those possibilities. It should also be borne in mind that, where propitious possibilities are disregarded in fixing the primary figure for the loss, care needs to be taken in dealing with the vicissitudes to ensure that there is not something in the nature of a double deduction. In my view, where little is known beyond that the child is an average child from a family with no background of tertiary education, broad justice is better accommodated by adopting an average wage and taking account of all the possibilities in fixing an allowance for vicissitudes.
It is that approach that I am minded to adopt in this case.
291. For this reason I am not in favour of assessing for these purposes any past loss up to the time that the plaintiff could arbitrarily be said to enter the work force at 13 August 2001. It is only speculation that cannot be quantified that she might have had no employment at all whilst completing tertiary studies, casual employment during the course of those studies or being employed as a full-time, part-time or casual employee in the work force. Each of those possibilities may well have effected whether she ultimately earned above or below female average weekly earnings. Absent in this case the sort of speculation that is often made on the occupations of parents and siblings, attitudes to life and work and other historical factors, I consider that the very broad approach taken by the plaintiff can be adopted. Given that all that was really put before me on this topic were the average weekly earnings and the fact that no argument is really advanced as to why this should not be appropriate for the future, I accede to the claim that the plaintiff's loss of earning capacity should be assessed on this basis but with no allowance being made for past loss. That means that I should accept the plaintiff's calculation of a net loss of $639.00 per week calculated from 13 August 2001 to cease when the plaintiff reaches 65 years of age. I do not accept the defendants' argument that I should adopt an age of 57 because "such an age is more representative of the working life of females". There is no material before me to suggest or support that proposition. That is a period of 43.5 years and using the tables in Luntz Assessment of Damages and Personal Injury and Death, (4th ed), Appendix Table 2, I apply a multiplier of 1,277. That results in an amount of $816,003.00. Both the plaintiff and the defendants accept a deduction from this amount of 15% for the vicissitudes of life. That results in a figure of $693,603.00 which I allow.
292. The plaintiff also claims a loss of 9% in respect of employer contributions to her gross weekly wage to age 65. The defendants point out that this rate of 9% is applicable only from 1 July 2003 and prior to that date it was 8%. The defendants would only allow this on their estimate of the plaintiff's earning capacity at $400.00 per week ceasing at age 57. I have not accepted that approach. On the plaintiff's figures the weekly loss is $75.15 and a working lifetime loss of $96,530.00. I deduct $850.00 for the 1% difference before 1 July 2003. Both parties are agreed that this sum should contain the contingency for vicissitudes of 15%. The amount calculated, accordingly, is $62,419.00.
293. It is also put that the plaintiff is entitled to the economic benefit of the likelihood of her marriage. This question is quite controversial given its speculative nature and modern mores which does not necessarily countenance the economic dependency or economic advantages of matrimonial union. Having allowed for the prospect of the plaintiff having a uninterrupted working life, the difficulty of adjusting that assessment on the basis that the plaintiff might marry and derive an economic advantage from her partner and the interruptions that might cause to her working life, is, I think, impossible to quantify. In a case like this where the plaintiff is injured at birth, there is just no measure one can apply to the plaintiff's circumstances. As Clarke A-JA said in GIO (NSW) v Mackie (1990) ATR 81-053 at 68,215 -
Bearing in mind the possibilities that [the plaintiff] may never have married, may have left the work force on marriage, or the birth of a child, may have had a short or disastrous marriage and had to support her husband or, on the other hand, may of worked continuously in a successful partnership with her husband and thereby enjoyed a very high standard of living, the approach would recognise a vicissitude which worked in her favour.
In that case, his Honour thought that any adjustment would need to be small to avoid a risk of over-compensation. In this case, I do not think that there is anything to suggest an adjustment either way. As I have accepted that the plaintiff would have an uninterrupted working life at average weekly earnings I am not persuaded that I should make any allowance for any factor related to the possibility that the plaintiff might have married.
Fund management
294. The nature of the plaintiff's disabilities mean that she will always be unable to make decisions concerning her financial affairs. The defendants accept that there is a requirement for professional financial advice and management in relation to any sums of money awarded to the plaintiff. The plaintiff puts forward the fees and charges charged by the Public Trustee for the Australian Capital Territory as indicative of the costs of professional financial management. Those costs are 1.1% of the monies received as a once only charge, 5.5% charged on the income earned, and in turn, an annual audit fee of $40.00 and fees for the preparation of income tax returns as required at $100.00 per hour with a minimum fee of $55.00. I understood the defendants as accepting these figures with a quibble about the charge for the income tax return on the basis that it would be a simple return at a preparation cost that might have been incurred in any event by a person on average weekly earnings. I do not accept this would necessarily be so. If the tax return is indeed "simple", presumably it would attract the minimum fee. However, I do not regard it as a matter about which I can make an assessment on the material provided to me other than at this stage, to allow the minimum fee. I would allow the amounts claimed for fund management, those amounts are to be calculated once the other heads of damages have been finally determined and the sum to be administered ascertained. I would hope that a fair amount allowable for income tax return preparation can be agreed.
Costs
295. I will hear the parties on the question of costs. A discrete matter was the application by the plaintiff and the second defendant in respect of costs occasioned by my ruling that the first defendant discover certain reports and file notes concerning the evidence of Professor Bennett (see Lainie Radovanovic bhnf Anton Radovanovic v Bryan Cutter & ors [2001] ACTSC 16 (1 March 2001). The plaintiffs sought the costs of the Notice of Motion which gave rise to the ruling and subsequent loss of 4.5 hearing days on an indemnity basis, the second defendant sought costs on a more generous basis than the party to party, basis but did not seek the full scope of an order or an indemnity basis. The plaintiff's application was predicated on the view that the first defendant had made a deliberate forensic decision to defer the production of Professor Bennett's documents until well into the hearing. I do not share that view. The first defendant took the view that the documents concerned attracted a claim of legal professional privilege and was not an "expert report" for the purposes of Supreme Court rules Order 39. Whilst I rejected that view I do not consider that it was a view unreasonably held or that the first defendant sought to obtain an unfair advantage as a consequence of holding that view.
296. In such circumstances I do not consider that an award of indemnity costs would be appropriate. The second defendant argued that as far as it was concerned if the application had been made before trial, it may not have been involved and should not have inevitably wasted all the costs incurred in the application and "it should receive an order that will adequately compensate it". I consider this to be speculative, but in any event I do not regard it as a sufficiently compelling circumstance to make the award of costs in those terms.
297. It is true that the plaintiff was not completely successful in the application and I maintained the privilege claimed in respect of those parts of the documents that dealt with particulars of negligence that were subsequently abandoned. Nevertheless the plaintiff was substantially successful and I see no good reason why the costs of the application should not be awarded against the first defendant in respect of the plaintiff and second defendant on the ordinary basis.
Orders
298. I enter judgment for plaintiff against the first defendant.
299. I dismiss the plaintiff's claim against the second defendant.
300. I dismiss the first defendants cross claim against the second defendant.
301. The heads of damage that I would award and the quantum with respect of each of these heads I set out -
HEADS OF DAMAGES
1. General damages [179] (including damages for
loss of expectation of life) $320,000.00
2. Past expenses
Medical and hospital expenses paid [183] -
Medicare 12,120.85
MBF 34,718.19
Gap paid by parents [184] 10,613.75
Interest on gap payments [185] 14,422.00
Past pharmaceutical expenses [186] 3,000.00
Interest 1,896.00
Past podiatry [188] 376.00
Interest 214.00
Sub-total $77,361.00
Clothing, equipment and aids
Walking frame and standing frame [190] 300.00
Special boots [191]) 3,720.00
Special silicon sox [192] 520.00
Hoists x 2 [193] 7,990.00
Special spoon, fork and plate [194] 500.00
Electric wheelchair [195] 5,712.00
Incontinence pads [196] 10,452.00
Commode [197] 650.00
Electric toothbrushes [199] 900.00
Galah Audible Communicator [199] 650.00
Sub-total $20,942.00
Interest 19,853.00
Sub-total $51,247.00
Home modifications
Hawker House [207] 36,000.00
Red Hill house [208] 150,000.00
Maintenance [209] 48,000.00
Interest Disallowed
Sub-total $234,000.00
Travelling expenses (agreed [211]) 15,200.00
Interest 7,685.00
Sub-total $22,885.00
Respite care -
Hartley House and Hartley Court [212] 28,363.00
Interest 32,266.00
Carer [213] 4,763.52
Interest 2,709.00
Community supported respite [214]) 8,000.00
Interest 3,539.00
Home Help Service ACT Inc [215]) 5,260.18
Interest 3,657.00
Sub-total $88,557.70
TOTAL Past Expenses $ 474,050.00
3. FUTURE COSTS
Medical and Hospital expenses
Home visits by General Practitioner [216] 10,916.00
Medical specialist consultations [217] 831.00
Neurologist [218] 4,161.08
Orthopaedic surgeons [219] 2,081.00
Hospitalisation [220] 28,510.65
Blood tests [221] 3,012.73
Bony limb surgery [222] 1,000.00
Upper limb surgery [223] 1,000.00
Spinal fusion [225] Disallowed
Orthopaedic surgery [226] Disallowed
Ophthalmologist view [227] 1,689.00
Pharmaceutical expenses [228] 5,404.00
Physiotherapy [229] 31,640.00
Speech pathology [230] 59,849.00
Occupational therapy [231] 27,122.00
Music therapy [233] 3,900.00
Psychology [234] 48,325.00
Podiatry [235] 9,093.00
Dentistry [236] -
Home visits 2,297.00
Theatre and facility fees 5,715.00
Future treatment of fractured incisor tooth 1,875.00
Sub-total $248,420.00
Clothing, equipment and aids
Replacement wheelchairs [237] 49,762.00
Maintenance costs [238] 21,157.00
Postural inserts and sheep skin cover [239] 15,928.00
High-top boots [240] 12,997.00
Silicon sox [241] 3,378.00
Special spoon, fork and plate [242] 2,661.00
Adjustable beds and pressure mattresses [243] 11,720.00
Electric toothbrushes [244] 1,200.00
Portable communication device [245] 65,388.00
Computer (including recurring costs) [248] 61,127.00
Portable ramps [249] 1,581.00
Cushioned toilet seat [250] 2,337.00
Portable bed pan [251] 243.00
Over-bed tables [252] 1,108.00
Portable folding commode [253] 3,026.00
Sub-total $253,613.00
Future Home Modifications
Deferred value of modifications to present or
future home [257] 80,000.00
Maintenance [258] 77,939.00
Heated pool [259] 10,000.00
Air-conditioning unit [260] Disallowed
Future maintenance of heated pool [261] 5,000.00
Hoists [262] 30,667.00
Sub-total $203,606.00
TOTAL Future Costs $705,639.00
Cost of initial vehicle [265] 71,224.00
Standing and running costs [265] 221,442.00
Hands-free mobile phone [267] 4,175.00
Increased holiday costs [270] 130,000.00
Past Griffiths v Kerkemeyer damages [276] 1,144,556.00
Future care [283] 4,356,002.00
Professional supervision of carers [284] 130,000.00
Professional handyman [286] 67,550.00
Loss of earning capacity [291] 693,603.00
Loss of 9% employer superannuation contributions [292] 62,419.00
Economic benefit of likelihood of marriage [293] Disallowed
Fund management [294] To be determined
Sub-total $6,880,971.00
TOTAL $ 8,380,660.00
302. The present calculation of these damages is in a sum not less than $8,380,660.00. That calculation does not include the sum of $550,000.00 for medical and allied health professional supplies funded by the defendants. It also does not include the costs of fund management upon which matter I indicate that I will further hear the parties when, as a result of whatever orders I am asked to make, the final sum to be administered has been determined.
303. The sum awarded is a very significant figure. On the other hand, there is no doubting the magnitude of the plaintiff's disabilities and her losses. The purpose of damages is to award such sum of money as will, as nearly as possible, put the plaintiff in the same position as if she had not been injured by the defendants' negligence. It follows that the amount that I propose to award I regard as just and proper compensation.
304. I anticipate the need in some cases to make arithmetical corrections and adjustments to the amounts awarded in this judgment and the parties have leave to apply for that purpose.
305. I will hear the parties on costs and the final form of the orders to be made and I stand the matter over to a date to be agreed between the parties.
I certify that the preceding three hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 19 March 2004
Counsel for the plaintiff: Mr P Webb QC with Mr D Graham
Solicitor for the plaintiff: McClellands
Counsel for the first defendant: Mr D Higgs SC
Solicitor for the first defendant: Tress Cocks & Maddox
Counsel for the second defendant: Mr P Donohoe QC and then
Mr R Meldrum QC with Ms P Burton
Solicitor for the second defendant: ACT Government Solicitor
Dates of hearing: 23, 24, 25, 26, 27, 30, 31 October 2000,
1, 2, 6, 8, 9, 10, 13, 15, 16, 17 November 2000
27, 28 February, 2001
1, 2, 6, 7, 8, 9, 13, 14, 15, March 2001
13, 14, 15, 16, 20, 21, 22, 23, 24, 27, 28 August 2001
12, 13, 14,19, 20, 21, 22 March 2002
2, 3, 4, 5, 8, 9, 11 April 2002
22, 23, 24, 25, 26 July 2002
Date of judgment: 19 March 2004
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