BRUCE v KAYE

Court of Appeal (NSW)|2005-06-21|Before: Handley JA, Santow JA, Bryson JA, Grove J

JUDGMENT OF: Handley JA at 1; Santow JA at 2; Bryson JA at 3

CATCHWORDS: NEGLIGENCE - Professional Negligence, Medical (Obstetrician) - appellant challenged findings of Grove J which led to judgment for defendant on claim of medical negligence where plaintiff born in emergency Caesarian with catastrophic injuries and cerebral palsy - alleged negligence in permitting pregnancy to continue beyond 42 weeks - review of factual findings and events in management of plaintiff's mother including EDC (estimate date of confinement) - factual findings confirmed, appeal dismissed.

KRISTY JANE BRUCE (BY HER TUTOR JODY COLLEEN WINBANK)- APPELLANT PARTIES: DR ALAN KAYE - RESPONDENT

S G Campbell SC - Appellant COUNSEL: D Higgs SC- Respondent

Maurice Blackburn Cashman Lawyers - Appellant SOLICITORS: Tresscox - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40340/2004

HANDLEY JA SANTOW JA BRYSON JA

TUESDAY 21 JUNE 2005 KRISTY JANE BRUCE v DR ALAN KAYE Judgment 1 HANDLEY JA: I agree with Bryson JA. 2 SANTOW JA: I agree with Bryson JA. The meticulous reasons of Grove J and now on appeal of Bryson JA demonstrate why this appeal could not succeed. It is not to diminish the tragic outcome for the appellant, to whose care her mother has been devoted, to acknowledge that the respondent's impeccable management of the confinement was, on the evidence, in no way responsible for what occurred. 3 BRYSON JA: The appellant appeals against judgment for the defendant given by Grove J on 8 April 2004 [2004] NSWSC 277 on her claim as plaintiff for damages for catastrophic injuries which she suffered at birth. The appellant is a minor and her elder sister conducts these proceedings as tutor. The respondent, defendant in the Common Law Division, is a Specialist Obstetrician who attended the appellant's mother Ms Chevelle (hereinafter "the patient") as his patient on and from 17 October 1988, attended her at the delivery of the appellant and performed a Caesarean section for the delivery. 4 The appellant was born on 21 March 1989 at 13 minutes past mid-night at the Royal Hospital for Women. When born she was in a terrible condition as reflected in early APGAR scores, and at 11.35am she was transferred to the Prince of Wales Children's Hospital. Grove J found: (RED 9) In due course it was discovered that she was suffering from cerebral palsy. She is profoundly incapacitated. Her palsy is described as being of the spastic quadriplegia type. She is wheelchair bound although she can be exercised by taking a few halting steps if she is fully supported by an adult person. She is non-verbal but is sentient and can make known various feelings such as joy and irritation. She has some capacity for communication by activating an electronic board with her forehead. She is totally dependent upon others to perform the ordinary activities of daily living. 5 Events associated with the birth and the management of the patient were complex and the crisis was extreme. By 20 March 1989 the pregnancy was at an advanced stage, and was (as Grove J found) approaching or (as the appellant contended) beyond 42 weeks of gestation. On the evening of 20 March 1989 the patient became afflicted with pains which she described as excruciating, niggly pains. She was taken to the Royal Hospital for Women with great urgency by Mr Bruce, who was her domestic partner. She reached the hospital at some time between 10.30pm to 11.15pm, which is shown as the admission time on a hospital note. The respondent arrived at 11.35pm in response to telephone conversations with a hospital staff midwife. 6 After an examination of the patient and seeing a record of the foetal scalp electrode (FSE) showing type 2 deceleration with variable dips, the respondent decided to conduct an immediate Lower Segment Caesarean Section (LSCS). This required preparation of an operating room and obtaining the attendance of an anaesthetist who was engaged in another operation. After delivery of the appellant the respondent manually extracted the placenta. He observed that an earlier LSCS scar was intact and that there was a posterior uterine rupture extending laterally to the left broad ligament; he estimated the length of the rupture as 10cm; and there was blood in the peritoneal cavity. Uterine rupture is very rare. Separation of the residual scar of an earlier Caesarean section, referred to as dehiscence, is a known risk and complication of LSCS; but did not occur in this instance. It was extraordinarily rare that there was a previous LSCS scar which remained entirely intact while there was a major rupture elsewhere in the uterus. A senior consultant surgeon Dr Harris attended and performed a hysterectomy; this was life-saving surgery for the patient. The allegations of negligence do not relate to the respondent's management of the crisis on 20 and 21 March 1989.

7 The particulars of breach of duty of care alleged in the Statement of Claim are somewhat diffuse. Grove J said: (Red 10 [4]) It is important at the outset to identify the relatively narrow basis upon which negligence is alleged. In opening the case, senior counsel for the plaintiff specified that it was based upon the defendant's blameworthiness for permitting the term of Ms Chevelle's pregnancy to continue beyond forty two weeks. As the evidence has emerged, there is no real dispute that a prudent obstetrician in 1989 would have intervened to seek to induce birth if a mother had not come into spontaneous labour once that point had been reached. It was emphasized that no allegation was made against the defendant concerning his actions in the emergency situation which had developed on the night of 20/21 March 1989. . . . Thus, the allegation of breach of duty was almost entirely focussed upon the term of pregnancy and what the defendant knew or ought to have known about it.

8 The appellant's case required it to be shown not only that the respondent was negligent in what he knew or ought to have known about the term of the pregnancy, but also that objectively the term of the pregnancy was beyond 42 weeks by 20 March 1989, and that the birth injury was caused by the respondent's not having intervened by that date to bring about delivery of the foetus by induction or by surgery. There was no allegation of negligence, and no support in expert evidence, for a contention that the respondent acting reasonably should have intervened before completion of 42 weeks gestation. 9 The principal finding on which the allegation of breach of duty was disposed of by Grove J is his finding (Red 40[97]) to the effect that there was not a reasonable basis upon which the respondent ought to have thought that the gestation was at 42 weeks on 16 March 1989, when the last consultation between the respondent and the patient took place. Grove J further found that on the probabilities the gestation was not at 42 weeks on 16 March 1989. In the course of summarising his findings and disposing of the issues Grove J said: 97 The defendant did recognize the risk of injury should the foetus remain in utero for longer than forty two weeks. He did not "select" an EDC but calculated one on the basis of all the information that was reasonably available to him. That calculation resulted in a date of 9 March 1989. He did not fail to adhere to that date. On the probabilities Ms Chevelle was not at forty two weeks on 16 March 1989 nor was there any reasonable basis upon which the defendant ought to have thought that she was. The plan to proceed to induce birth in the week following consultation on 16 March 1989, if Ms Chevelle did not come into spontaneous labour (as she did) was reasonable and in accord with good obstetrical practice. The defendant had no opportunity to have regard to the ultrasound reported on 22 August 1988 as, for reasons of her own, Ms Chevelle withheld from him any knowledge that it had been performed. There was no reason why he should have made enquiries or searches as she also withheld from him information that she had previously consulted other medical practitioners (with the exception of Dr Lum) about her pregnancy. The date of plus or minus 2 March 1989 on the antenatal cooperation card was of neither clinical nor legal significance. 10 Senior Counsel for the appellant in opening his submissions said that central to success in the appeal is that it was an appealable error of fact that the Trial Judge determined that as at 20 March 1989 the term of the gestation did not exceed 42 weeks. Counsel contended that it should have been found that the gestation had progressed beyond 42 weeks and that intervention was already required before 20 March 1989. Relevant to this submission is a challenge to the finding that there was no reasonable basis upon which the respondent ought to have thought that the gestation was at 42 weeks on 16 March 1989. If this attack is not well founded, a finding that the gestation was at 42 weeks on 16 March 1989 would not lead to the appellant's success. 11 The respondent first saw the patient on 17 October 1988. He made notes of that attendance and of medical history given by the patient, and his notes were in evidence (Blue 6-9). History noted includes, extending abbreviations, "last menstrual period May 1st." Grove J found that the specification of this date was unreliable, and referred to "reasons detailed by the various experts" as a basis for this view. His Honour also referred to the Statement of Claim which alleges "the date of [the patient's] last menstrual period was uncertain." The finding that the history specifying 1 May 1988 was unreliable is not challenged on appeal, and the history is inherently highly improbable; it would suggest an estimated date of confinement (EDC) at or about 8 February 1989, and that would be inconsistent with every other observation. 12 There were other respects in which what the respondent was told about the patient's reproductive history was not complete or accurate. He was not told of the termination of an earlier pregnancy on 3 March 1988. There being no reference to the termination in the history given by the patient meant that it was not drawn to the respondent's attention that there had not been a series, at least three, of regular menstrual cycles before the pregnancy. The history given to the respondent was incomplete in other ways as well. The respondent was not given a complete history of earlier pregnancies, nor was he told of all her attendances on medical practitioners during the current pregnancy. Most importantly, he was not told that an ultrasound report on the patient had been prepared at the Royal Hospital for Women on 22 August 1988. The report by Dr Warren included "single foetus corresponding in size to the usual measurements at 12-13 weeks amenorrhea…" Although the facts were disputed at the trial, Grove J found that the respondent was not informed of this ultrasound and report. The finding of facts that the respondent did not know of and did not see the first ultrasound report is not challenged on appeal. 13 The reference to 12 weeks in the ultrasound report of 22 August 1988 suggests an EDC at or about 6 March 1989, and the reference to 13 weeks suggests an EDC at or about 27 February 1989. It is unfortunate that the respondent was not told of this ultrasound report; a record of it would probably have been accessible to him at the Royal Hospital for Women had he known of it, and expert evidence makes it clear that a more confident EDC can be made on the basis of an ultrasound made in the first trimester than of one made in the second trimester. The respondent arranged for and obtained an ultrasound report of 19 October 1988, and the report (Blue 13) includes the statement: "Single foetus corresponding in size to the usual measurements at 20 weeks amenorrhea…" The patient underwent another ultrasound examination at Woden Valley Hospital on 8 November 1988: the respondent was not told of this examination and did not see the report.

14 The appellant's contention that Grove J's finding should be overturned is based on what was said to be the cumulative effect of a number of indications in the evidence which taken together show that it should have been found that 40 weeks gestation was reached at 2 March 1989, and that it was wrong in fact to find that 40 weeks gestation was reached at 9 March 1989. The appellant further contended that the finding that the respondent adopted an EDC of 9 March 1989 was glaringly improbable, that it was not a reasonable estimate to make, and that the finding should be set aside. 15 The passage (Black 3/741J) in which the respondent appeared to accept that the calculation was made on 9 February 1989 began with counsel introducing, purportedly as a recapitulation of earlier evidence, this suggestion "Q. By 9 February you have made your rounding up and rounding down? A. Yes." There does not in fact appear to be any earlier evidence to the effect that the respondent carried out that exercise on or by 9 February 1989, and a few questions later counsel said (at 741T), in relation to recording 38 weeks on 23 February 1989 "Q. That was based on a recalculation you say you made on that day? A. That's correct." In the circumstances it is not surprising that Grove J was not influenced by the reference to 9 February 1989 when disposing of the facts.

16 Whether or not the respondent did so earlier, findings of Grove J establish that in March 1989 the respondent managed treatment of the patient on the view that the EDC was 9 March 1989, an estimate which accommodated the possibility of several days variation earlier or later. Grove J found that the respondent recorded this estimate in a note which he made on his own clinical record on 23 February 1989. The note said (Blue 6D) "E.D.C. 9.3-89." The respondent's evidence about when he made the note is not completely uniform; at one point his evidence appears to mean that he made the note (or might have made the note) on 9 February 1989, but Grove J found that this was a slip, not consistent with the respondent's evidence at earlier and later points. If the note had been made on 9 February 1989 there would have been some apparent anomalies between that fact and the account given by the respondent in evidence of the circumstances in which he wrote the estimate on his clinical record. 17 Some matters in evidence tend to show that at earlier times the respondent made a different EDC. There are anomalies in succeeding estimates of the length of gestation noted on the respondent's clinical record. No estimate was recorded in the notes relating to the first consultation on Monday 17 October 1988. After obtaining the ultrasound report of Wednesday 19 October 1988 the respondent next saw the patient on Monday 14 November 1988; and was then able to examine the patient and assess the fundal height of the foetus. At this consultation he recorded the view that gestation was at 24 weeks, and also estimated 24 weeks on the basis of assessment of fundal height. 18 The respondent's record shows his observations and views on eight further consultations before 20 March 1989, the last being on 16 March 1989. On Thursday 15 December 1988, which was four weeks and three days after the consultation on 14 November 1988, the respondent estimated the period of gestation at 29 weeks, which was 5 weeks longer than the estimate noted on 14 November 1988; and made an estimate of 29 weeks based on the assessment of fundal height; other observations were recorded, none of which indicates any anomaly. 19 On Thursday 12 January 1989, after a further 28 days, the clinical record shows an estimate of 33 weeks gestation and also an estimate of 33 weeks based on observation of fundal height; and other observations. On Thursday 9 February 1989, after a further 28 days, the record shows an estimate of 37 weeks gestation and the note "T" meaning term, at which assessment based on fundal height was no longer available. The note made on Thursday 16 February 1989 after a further 7 days includes, consistently, an estimated gestational length of 38 weeks. After a further 7 days the record of the consultation on Thursday 23 February 1989 shows the same gestational length of 38 weeks; this estimate would produce an estimated gestation of 40 weeks on 9 March 1989, and that is the EDC which, as Grove J found, the respondent recorded on 23 February 1989. 20 The clinical record continued, including, in relation to the consultation of Thursday 16 March 1989, an estimate of gestational length at 41 weeks and the note "induce next week." At each consultation from 15 December 1988 the respondent observed and noted that the head of the foetus was above the pelvic brim and was not engaged (or on 2 March 1989 one-fifth engaged); these observations continued until 16 March 1989; and they were indications tending against an induction. There are substantial reasons for not intervening too early. Induction is not free from hazard, nor is Caesarean section. Among the factors against intervention was the patient's wish for a spontaneous delivery. At many places evidence dealt with considerations bearing on decisions to proceed by induction, or by surgery, and the risk factors affecting decisions to proceed in some such way, or to await a natural vaginal delivery. 21 The crisis which developed on the night of Monday 20 March 1989 and the birth of the appellant in the first minutes of Tuesday 21 March 1989 occurred before the decision "induce next week" was acted on, and fewer than 14 days after the respondent's EDC of 9 March 1989. There is no substantial ground, in the findings of Grove J or in any of the material to which counsel for the appellant referred, for a view that reasonable care and skill required intervention to induce labour, or surgical intervention, at an earlier time than the respondent decided and intended. 22 There appear to be internal anomalies in the series of estimates in the respondent's clinical record. Although 31 days elapsed from 14 November 1988 to 15 December 1988, the estimated gestation was increased by five weeks, suggesting 35 days. (I refer to this as the four-day anomaly.) From 15 December 1988 until 16 February 1989 the notes are consistent with an EDC at 40 weeks at or about 2 March 1989, although none of them records precisely that. The four-day anomaly means that the note of 14 November 1988 suggests a later EDC. Seven days elapsed between the consultations on 16 February 1989 and 23 February 1989, but the estimate at both dates was 38 weeks. The appearance of anomaly at this stage is greatly blunted when it is recalled that no adjustment was earlier made to rectify the four-day anomaly. 23 Obstetric practice is not a science but a human art upon which a great deal of science is brought to bear, and there are few complete certainties. EDCs and estimates of the length of a gestation are not susceptible of certainty and the actual outcome may well be several days different to a well-considered estimate. Estimation should not be infused with a precision which it does not have. 24 If I adopt 20 weeks as the period of gestation at the time of the ultrasound report of 19 October 1988 and add a further 20 weeks the product of this calculation is a gestation of 40 weeks at 8 March 1989; to add 16 weeks to the estimate of 24 weeks at 14 November 1988, the first consultation after the ultrasound report became available, produces a gestation of 40 weeks at 6 March 1989. The crude calculations I have made give no more than a general indication; the ultrasound report and the clinical notes speak in terms of numbers of weeks, not numbers of days, and they cannot be treated as attempted precise observations in terms of numbers of days. Obstetric skill and clinical observation dominate over arithmetic. My calculations lead me to the view that, given the nature of the subject, an EDC at 9 March 1989 as recorded on 23 February 1989 and acted on in March 1989 is quite close to the estimated gestational length recorded by the respondent on 14 November 1988 and indicated in the ultrasound report of 19 October 1988; there is no marked anomaly, not really any anomaly at all. My calculations are only crudely similar to methods used by obstetricians, who have the advantage of medical skill and experience and clinical observations. 25 It was the respondent's evidence that on 14 November 1988, when the ultrasound report was available and he made observations of the patient and estimated the fundal height, he calculated an EDC of 9 March 1989, although he did not then record it. The respondent further contended that he did not depart from that estimate, and that apparent departures in his clinical notes were a result of the four-day anomaly. Grove J was of the view that the respondent's evidence that he always had in mind an EDC of 9 March 1989 was not discordant with his clinical record, and his Honour accepted the respondent's explanation of the circumstances in which the record of 38 weeks appears twice. 26 Expert evidence makes it clear that it is good practice to adopt an EDC and then adhere to it, for reasons which include ensuring avoidance of the consequences of going past 42 weeks, and for other reasons relating to managing obstetric issues as they arise. In evidence the respondent stated clearly (Black 3/742) that he believed that a recalculation that made the gestation of the patient 38 weeks again on 23 February 1989 was the correct thing to do based on the information he had. In view of the information which evidence shows that he did have, this recalculation altogether outweighs the significance of its being good practice to make an EDC and adhere to the estimate.

27 On 9 February 1989 the respondent wrote some information on an Ante-Natal Co-operation Card issued to the patient by the Royal Hospital for Women, possibly on or in association with her booking herself in for confinement there. The Card bears a printed sticker with the indication "[Feb/89 Gyn A1]." The origin of this is not explained and is not related to any estimate given by the respondent. When entering information based on his clinical record, the respondent filled in a space on the Card calling for an EDC by writing "+_ 2/3/89." Another space on the Card called for "calc duration preg" and on 9 February 1989 he wrote "37" there. On 2 March 1989 when the patient showed the Card to him again he wrote "39" for "calc duration preg;" this was consistent with the EDC on his clinical record, but inconsistent by one week with the note he had made on the Card on 9 February 1989. 28 Senior Counsel for the appellant contended that as a matter of objective fact it should be found that the EDC at 2 March 1989 appearing on the Antenatal Co-operation Card which the respondent gave to the patient on 9 February 1989 was correct, and that Grove J was in error in not finding the facts accordingly. If the facts were found as so contended, 42 weeks gestation was reached on or about 16 March 1989. It was further contended that there should have been an intervention, by induction or Caesarean section, on or about that date and well before 20 March 1989; and that by 20 March 1989 the time when intervention should reasonably have occurred had passed.

29 The series of entries on the clinical record, and the date "+_ 2/3/89" written on the Ante-Natal Co-operation Card tend to show that, when the entry on the Card was made, the respondent nominated 2 March 1989 as the EDC when there was a need to nominate a date rather than to make entries in terms of weeks of confinement. Although much attention was given in evidence and submissions to this Card I am unable to see it as in any way supporting an allegation that it was not reasonable to make and act on the estimate of 9 March 1989 as the EDC, or an allegation that the respondent did not actually make that estimate. The respondent's entries on the Card in March 1989 are consistent with the dates on the respondent's clinical record on and after 23 February 1989. 30 Grove J considered the significance of the reference to 2 March 1989 on the Ante-Natal Co-operation Card, and found that no clinical action was taken on the basis of the date 2 March 1989 written on that Card, whether at the hospital or anywhere else. Grove J gave extended consideration to the entry on the Card but did not regard it as more than unfortunate: it had no influence on treatment and was not an indication that any record had ever been falsified.

31 In addition to the respondent's clinical record and the Ante-Natal Co-operation Card, evidence was directed to information recorded in the respondent's diary. The respondent made notes in his diary recording names of patients whose confinements were expected to occur in each succeeding month. The diary assisted the respondent to know and control his workload and the numbers of his patients who were admitted to particular hospitals; there were quotas on his access to hospitals. The respondent did not rely on the notes in the diary for treatment purposes, for which he had the clinical record. He entered the patient's name in a list for February 1989 in his 1988 diary soon after the first consultation with her, and gave the EDC as "?8.W"; and he transcribed this list into his 1989 diary. "W" refers to the Royal Hospital for Women. The reference to 8 February and the question mark showing that that date was doubtful could only have been based on the history of the last menstrual period at 1 May 1988 which was given at the first consultation: it does not and could not represent any opinion the respondent could have held once the ultrasound report was available. It was not and could not reasonably be maintained that the respondent adopted the EDC of 8 February 1989 or a date in February 1989 at all for any purpose of treating the patient, or for any purpose other than a general check of his workload. 32 The diary list shows that, for the limited purposes for which the list was made, the respondent adopted at an early stage and continued to have notes made on the basis that there was to be a confinement in February 1989. Counsel for the appellant contended that the diary list supported the view that the respondent in fact had 2 March 1989 in mind as the EDC, and that the EDC of 9 March 1989 was the product of a change of opinion. In my opinion the diary list has no real relation to the disposition of the question of breach of duty of care. 33 In my opinion the information on the Ante-Natal Co-operation Card and in the diary, and the alleged internal anomalies of the respondent's clinical record, when taken together, do not make it improbable that in fact 40 weeks gestation was reached at or about 9 March 1989, and do not make it glaringly improbable that the respondent truly made an EDC at 9 March 1989, and acted on that estimate. Whether or not the respondent had that estimate in mind before 23 February 1989 is not the central issue, and what is important is the estimate on which he acted in managing the patient during March 1989. It is clear that in the period of approximately 4 weeks leading up to the appellant's birth the respondent was of the opinion that the EDC was 9 March 1989 and that he managed the patient accordingly; if it were established that he held a different opinion earlier, that would have no discernible connection with any view of the causation of the appellant's birth injury. 34 In a further attempt to support the claim that gestation had passed 42 weeks after 16 March 1989 Senior Counsel for the appellant relied on clinical notes of postnatal or perinatal examinations of the appellant herself in the hours after her birth. Professor Colditz whose evidence was called by the appellant expressed the opinion that notes made by Dr Chong at the Prince of Wales Children's Hospital were indicators of post-maturity. 35 Dr Chong examined the appellant on admission to the Prince of Wales Children's Hospital. The relevant part of the notes is as follows: (RED 30) Dry, parched skin Palmar + sole creases ++ Meconium + blood stained skin No dysmorphic features.

Grove J gave extended consideration to what might be meant and also what might be implied by these notes. No extension or explanation of the notes and of what they mean or imply is available as Dr Chong was not called to give evidence by either party. If significance is to be accorded to his observations there were a number of things to be explained, including the nature of the staining, and whether the appellant (who required and received resuscitation immediately after birth) had been washed and when. Although Grove J gave extended and careful consideration to Dr Chong's notes his Honour did not make any finding on the basis of the notes to the effect that the appellant when born showed any indications of post-maturity; I do not think that any such finding was reasonably available. In the absence of evidence of Dr Chong and of any account by him of the observations which underlie the notes, I do not think they provide a basis for any findings upon which decision could be based.

36 In disposing of issues related to breach of duty of care Grove J said: (Red 22-23) 39. I accept the defendant's evidence that he endorsed the EDC as plus or minus 2 March 1989 simply by adding three weeks to the calculated duration of pregnancy statement of thirty seven weeks, thus fixing what on that arithmetic was a forty week point. As I have earlier found, this endorsement made on 9 February antedated the recalculation of pregnancy duration which allowed for the nearer rounding made appropriate by the change in day of the week of Ms Chevelle's appointments. That this had happened after 9 February is detectable from the next endorsement of examination findings on the card which is dated 2 March. 2 March is in fact three weeks after 9 February but the duration of the pregnancy is marked to increase only by two weeks, that is, from thirty seven to thirty nine weeks. What the defendant did not do was alter the EDC marked on the card to coordinate with the calculated duration entries. 40. It was vigorously asserted to and through witnesses that it was a principle of good obstetric practice that once an EDC had been calculated, the obstetrician should adhere to it. I accept that, as a general principle, that is so. I do not accept that it is necessarily bad practice to depart from the principle if there is a good reason for so doing. 41. However, the evidence does not persuade me that Dr Kaye made such a change. What was referred to as a change in questions put to him, was a change, not in calculated date, but in his records to which he would have reference if need be. He would not himself be using the unaltered date on the antenatal cooperation card as a reference. 42. The use of rounded weeks and the change in the day of visit upon which consultations recurred combined to make it appropriate to make the repeat entry of "38" to give a truer picture upon the information available. In the background of keeping figures is a consciousness, I would expect, of the statistical certainty that nineteen out of twenty infants will not arrive on the EDC. 37 In my opinion these findings and observations are plainly correct.

38 The contention on causation of the appellant's injury made at the trial was principally directed to alternative explanations put forward in terms of brain damage resulting either from an intrapartum event or from a developmental deficiency at an earlier stage of pregnancy. It was further contended that with progression of the gestation beyond 42 weeks without intervention, there was placental insufficiency probably involving a separation of the placenta from the wall of the uterus; and that placental insufficiency or failing placental function was responsible for lack or insufficiency of oxygen bringing about deficiency of oxygen through inadequate blood supply to the foetus, referred to as hypoxia and as asphyxia, through reduced placental function and consequent growth restriction and brain damage. (In the appellant's case it was not necessary that there be an entire separation of the placenta from the wall of the uterus, referred to as abruption: the case contended for extended to partial separation sufficient to cause placental insufficiency of blood supply, deprivation of oxygen and brain damage.) Concerns to reduce or avoid outcomes of these kinds are among the considerations which have made it good obstetric practice not to allow a pregnancy to proceed beyond 42 weeks gestation; after that period the incidence of complications increases markedly. It was contended that placental abruption or placental insufficiency is a well recognised and increasing risk after gestation has passed 42 weeks. 39 In relation to the issue of causation Grove J found: 73. Placental insufficiency is not something which occurs as a sudden event. Other evidence, which I accept is that, if it is present, it will affect the nutrition of the foetus before other consequences. There is no evidence that [the appellant] was seen to be malnourished on examination of her after birth. 40 "Placental abruption" is referred to in the history relating to the appellant in a record of the Royal Hospital for Women, which was passed to the Prince of Wales Children's Hospital when the appellant was transferred there on the morning of 21 March 1989. The record shows that at the Caesarean section a "posterior uterine rupture with placental abruption" was found. However the evidence of the respondent was that at the time when he organised the emergency Caesarean section, one of the possibilities he considered was that there might have been placental abruption but on operating he became aware that there had not been. Grove J found: (Red 30 [65]) 65. It is common ground and consistent with all opinion, that there had been no placental abruption, which is a description of a particular occurrence and the statement of the letter was erroneous. This led to the acquisition of some unnecessary opinion but, in the event, nothing turns upon the error. 41 In my understanding, to establish that there was not a placental abruption in the sense of the placenta being completely abrupted is not to establish that there was no placental insufficiency. In my view this subject was disposed of by the finding of Grove J: (Red 32) 71. Pathological examination of the placenta was undertaken and reported on by Dr Bierre, a histopathologist at the Royal Hospital for Women. His report is contained in exhibit D. His findings do not support the proposition advanced on behalf of the plaintiff that hypoxia caused or contributed to by placental perfusion was causative of the plaintiff's cerebral palsy.

This finding is not challenged on appeal. 42 Counsel also and alternatively contended that the Court of Appeal should consider and make findings on another possible chain or net of causation which was not advanced at the trial, in which hypoxia was a consequence of uterine rupture; although it was not contended that the uterine rupture was caused by an act or omission of the respondent, it was contended that if the respondent had actively intervened by induction, the uterine rupture would, as a matter of probability, have happened in a controlled environment in a hospital setting, and there would have been the opportunity to proceed with great urgency to Caesarean section and to avoid or minimise hypoxia and its catastrophic consequences. It was contended that if labour came on and serious bleeding began, indicating a problem of the nature of uterine rupture, an interval of 18 minutes was available before the occurrence of catastrophic consequences, and if that had happened in a hospital setting the probabilities favoured a successful surgical intervention within the time available. 43 This chain of causation is not put forward on appeal as the appellant's preferred theory of causation. As this chain of causation was not alleged at the trial before Grove J the evidence which would support the finding did not deal with the subject comprehensively and was not tested or fully considered. Indeed this chain of causation was expressly disavowed at the trial, and particulars in the Statement of Claim which perhaps alluded to it were amended at the trial so as to exclude the reference. In my opinion it would not be right to allow the issue to be raised on appeal when the trial was conducted in a way which turned attention away from uterine rupture as part of the chain or net of causation connecting the alleged negligence with the appellant's injury. In my opinion a full examination of this subject is not required. 44 None of the views of causation contended for calls for consideration unless it is first decided that 42 weeks gestation was in fact reached before 20 March 1989 and also that the respondent was negligent in adopting and acting on 9 March 1989 as the EDC, an estimate which implies that 42 weeks would have been reached at or about 23 March 1989.

45 Overall the respondent presented a strong and clear case negating the alleged negligence on the basis of his own evidence, and that case was supported almost uniformly by other expert evidence, including indeed the evidence of a witness called on behalf of the appellant. Professor Ellwood, who is highly qualified, Professor of Obstetrics and Gynaecology and Associate Dean of the Canberra Clinical School of the Australian National University, and practises as Specialist in Obstetrics and Gynaecology, gave evidence in support of the appellant's case on causation, but when taken to the ultrasound report of 19 October 1988 made the interpretation that on 20 March 1989 the gestation would have been at 41 weeks and 5 days, implying 40 weeks gestation at 8 March 1989 (Black 2/490). His evidence elsewhere (Black 2/491) shows that he was not critical of an EDC of 9 March 1989 and that he affirmed (Black 2/492) that the view that a pregnancy should continue until 42 weeks was commonly held in 1989, and that it was the practice at the hospital in which he then worked not to intervene by induction until 42 weeks had been reached; although another body of opinion supported intervention after 41 weeks. Professor Ellwood's evidence relating to the alleged negligence is supportive of the respondent's case and contains no significantly adverse material against the respondent. 46 Doctor Caldwell, whose evidence was also called on behalf of the appellant, is highly qualified and long experienced in obstetric practice. Doctor Caldwell's evidence is lengthy but towards the conclusion of the cross-examination he agreed (Black 1/333Q) to the effect that it was reasonable for the respondent to adhere to the EDC of 9 March 1989 on 23 February 1989 and to recalculate the period of gestation as being at 38 weeks (Black 334B). Further, upon the respondent's recalculation, it was reasonable for the respondent to believe on 9 March 1989 that the period of gestation was 40 weeks (Black 334K). Doctor Caldwell also agreed that, again on the basis of that recalculation, it was reasonable to plan an induction by 22 or 23 March 1989. In view of these opinions it is not surprising that Grove J did not act on Dr Caldwell's criticism of the respondent's management of the patient. Taken in whole, Dr Caldwell's evidence does not provide any real support for the case of negligence put forward. 47 There is strong support for the view that the respondent acted reasonably in adopting an EDC of 9 March 1989 in an analysis of the implications of the available information in the report of Dr Lyneham whose report was tendered and who gave oral evidence for the respondent (Blue 164-165). A number of other obstetricians gave expert evidence which supports the respondent's case. What I have written does not convey the full strength of the respondent's case, because I have given my attention to the criticisms offered of Grove J's findings and I have not embarked on finding the facts anew (and it would be outside the appellate function to do so). Grove J acted on full and clear proofs that the respondent was not negligent, and accepted a strong defence case. The considerations put forward on behalf of the appellant do not in my opinion show any grounds on which it should be held that the findings of Grove J were erroneous. As it should not be found that the respondent was negligent, disposition of issues of causation would not be conclusive. The findings of fact on which it was contended that the Court of Appeal should reach a conclusion on negligence different to that of Grove J should not be made and the appeal should be dismissed for that reason. 48 At the conclusions of his submissions Senior Counsel for the respondent contended that a Wasted Costs Order should be made against the legal representatives of the appellant. It was not appropriate to deal with a claim for a Wasted Costs Order in that way; if there is to be such a claim it should be made by a Notice of Motion to which the persons against whom the order is sought should be parties. 49 In my opinion the order of the Court of Appeal should be:

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