Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service

Supreme Court of NSW|2018-11-29|Before: Harrison J

Judgment

HIS HONOUR: James Coffey was born at the Wagga Wagga Base Hospital on 19 January 2004. At that time his mother, Kathleen Coffey, had been pregnant for only 27 weeks and 2 days. His extreme prematurity would have compromised his prospects of a satisfactory perinatal outcome in any circumstances. It is contended in these proceedings, however, that those prospects were significantly diminished even further by the hospital's failings in a number of different respects. In short, but by no means comprehensively, the plaintiff says that from approximately 6am on 5 January 2004, when Ms Coffey was admitted to the hospital, it should have been apparent that his mother was likely to deliver before 32 weeks and that she should have been referred to a tertiary facility for management well in advance of her confinement and his delivery. Principal among the allegations of negligence is that the Wagga Wagga Base Hospital was at that time not accredited to deliver a baby of less than 32 weeks gestation or to manage a neonate of less than 34 weeks gestation. The plaintiff maintains that such limitations emphatically informed what should have been done in the circumstances and that the hospital's disregard for these imperatives caused him loss and damage. These and other allegations are examined in detail in what follows.
Kathleen Coffey also sues the hospital for damages for nervous shock arising out of her reaction to the circumstances surrounding James' birth and subsequent events.

The pleaded case

It was in these circumstances that Ms Coffey and her son commenced the present proceedings. Although the pleadings have undergone substantial revision over time, the alleged breaches ultimately pleaded against the hospital were as follows.
It is alleged that Ms Coffey should have been transferred to the Canberra Hospital on 5 January 2004 in anticipation of her confinement. Alternatively, it is alleged that this should have occurred by no later than some time during the period between 5 January 2004 and 19 January 2004. In the event that neither of these things occurred, it is alleged that Celestone should have been administered to Ms Coffey at 7 day intervals after its initial administration on 5 January 2004. In the further alternative, in circumstances where no transfer to Canberra Hospital occurred at any time before James' delivery, it is alleged that steps should have been taken to ensure that a neonatologist or paediatrician was present at the point of delivery.
In a slightly different context it is alleged that someone at the hospital should have discussed the terms of Circulars 2002/49 and 99/71 with Ms Coffey and also discussed with her the comparative services available to her and her then unborn child between Wagga Wagga Base Hospital and the Canberra Hospital. It is also alleged that Ms Coffey should have been given the benefit of a discussion about the reasons for the administration of Celestone on 5 January 2004 and its further administration thereafter. It is alleged that Ms Coffey should have been informed that the hospital could have requested advice concerning her transfer to the Canberra Hospital and should have informed her that if she became a patient at the Canberra Hospital on or about 5 January 2004 then her pregnancy would be managed by that hospital's "High Risk Pregnancy" team.
It is further alleged that the defendant should not have assessed Ms Coffey's pregnancy as no longer being a high risk pregnancy upon the basis of a negative foetal fibronectin test carried out on 10 January 2004.
So far as concerns the events that in fact occurred at the delivery, it is alleged that a paediatrician should immediately have been notified of Ms Coffey's admission to the hospital on the morning of 19 January 2004 and should have been present at the birth. It is also alleged that James Coffey should have been intubated without delay following his birth that day and that the resuscitation process should have begun immediately thereafter. There is a related allegation that the defendant should have ensured that the resuscitation process was adequate immediately following James' birth and that a resuscitation plan was then in place and that his respiratory distress was properly managed. Finally there is an allegation that immediate action should have been taken to stabilise James' cardiorespiratory instability as soon as he was delivered and on a continuing basis.
The defendant's response to these allegations is as follows. The defendant concedes that Ms Coffey's pregnancy was a high risk pregnancy by reason of her obstetric history. It also admits that if James Coffey were to have been born prematurely, there was a not insignificant risk that he would suffer from hyaline membrane disease and that the defendant was aware of this.
With respect to the circulars, the defendant says that as at January 2004, it was required to adhere to them, subject to the exercise of clinical judgment and consideration of the particular individual circumstances of patients. The defendant admits that Circular 2002/49 applied to it and that it provided for the administration of Nifedipine (that is, Adelat) as a tocolytic agent and that it was customarily used by the defendant to suppress uterine contractions.
The defendant also admitted that the circular provided for the administration of Celestone, a corticosteroid, and that it administered it to Ms Coffey to try to reduce the risk of lung disease in the event that James were born prematurely. The defendant admitted that as at January 2004 it was aware that one of the aims of using tocolysis was to delay preterm delivery in order to allow time for the administration of corticosteroids and the in-utero transfer of the mother to a tertiary perinatal centre with a view to reducing neonatal morbidity and mortality. This was subject to the exercise of clinical judgment and the particular needs of individual patients.
The defendant also admitted that as at January 2004, the Canberra Hospital was one of the perinatal referral centres from which Wagga Wagga Base Hospital staff were able to seek advice and that they did not do so.
The defendant admitted that Adelat was first administered to Ms Coffey at 1940 hours on 4 January 2004 and then at 2010 hours and 2040 hours. It was continued thereafter four times daily until Ms Coffey's discharge on 10 January 2010. The defendant admitted that Celestone was administered on 4 January 2004 at 1940 hours and on 5 January 2004 at 0840 hours.

Precautions that should have been taken

It is convenient at this point to record the way in which Ms Coffey and her son characterise the precautions that they contend should have been taken by the defendant in the circumstances.
It is contended that Ms Coffey's pregnancy should have been managed between 5 January 2004 and 19 January 2004 by a specialist obstetrician rather than by a resident medical officer. They submit that a plan of management should have been put in place prior to 26 weeks gestation to arrange for Ms Coffey to reside in Canberra from 26 weeks to 32 weeks into her pregnancy and to attend the Canberra Hospital for the birth. That plan should have included a recommendation for this approach being given to Ms Coffey together with advice about the benefits of delivering James at the Canberra Hospital rather than in Wagga. It is asserted that a discussion ought to have taken place with Ms Coffey shortly after her admission on 4 January 2004 in relation to these matters and the implications of Circular 2002/49, the use of tocolytic agents and corticosteroids and the need to be transferred to Canberra when not in preterm labour. It is contended that the Obstetric Team at Wagga Wagga Base Hospital should have contacted the High Risk Team at Canberra Hospital and discussed Ms Coffey's presentation with them. Ms Coffey should have been transferred to Canberra Hospital. Circular 2002/49 "ought to have been adhered to".
In a similar vein, it is alleged that Ms Coffey ought not to have been discharged from Wagga Wagga Base Hospital on 10 January 2004 but that instead the prospect of transfer to Canberra Hospital should then have been discussed with her and she should in fact have been transferred. Alternatively, these things should have all occurred by 14 January 2004.
It is submitted that a second course of corticosteroids should have been administered on 14 January 2004. The defendant should have realised that Ms Coffey was in labour on 19 January 2004 when she was admitted. She should have been transferred immediately to the labour ward and a resuscitation trolley should have been present at the birth. It is contended that a paediatrician skilled in the resuscitation and intubation of babies of less than 34 weeks gestation ought to have been notified when Ms Coffey arrived at the hospital and ought to have been present at the birth.
James Coffey's case is therefore that the harm from which he suffered substantially arose from the fact that he was born in a clinical setting where the standard of his immediate and subsequent post-natal care was inadequate to manage his gestational age. The risk was that he would be born prematurely. The defendant knew of that risk and it was not insignificant.
It should be observed that, framed in this way, the case against the defendant does not include a pleaded allegation that some precaution or combination of precautions was available to it that could or should have been taken to avoid or reduce the risk that James might be born prematurely, whether at 27 weeks and 2 days gestation as occurred or at some other time. In other words, even though the defendant had the means, through the administration of appropriate drugs, possibly to forestall the onset of labour for as much as 48 hours, the apparent high likelihood of James' premature birth is not in issue, once Ms Coffey's presentation at the hospital on 4 January 2004 is accepted on both sides. There is correspondingly no suggestion of any want of care on the defendant's part before that date. Indeed, the high likelihood of a premature delivery is central to the way in which the plaintiffs propound their case. It was the spectre under the shadow of which the plaintiffs contend the defendant should have acted differently.

Summary of the plaintiffs' case

James Coffey was at risk of premature birth. Prior to 4 January 2004, his mother should have been advised to reside in Canberra for the period of 24 to 32 weeks gestation because it was clinically appropriate to do so. Ms Coffey would have acted upon such advice and gone to Canberra for care at Canberra Hospital.
When Ms Coffey was admitted to Wagga Wagga Base Hospital on 4 January 2004, she was in threatened premature labour. She ought to have been given advice then or on the following day about the transfer of her care and the care of the baby, should he be born prematurely, to Canberra Hospital. This was also clinically appropriate.
Moreover, Circular 2002/49 warranted the transfer of Ms Coffey once she had been placed on Nifedipine, a tocolytic agent, and once cover with corticosteroids had commenced. James Coffey should have been transferred to Canberra Hospital in utero.
Dr Currie was of the view that it would be unlikely that she would reach 30 weeks gestation before delivery. Dr Stewart was of the view that once she went into labour she would deliver quickly. In those circumstances, transfer ought to have taken place because Wagga Wagga Base Hospital was not accredited either to deliver babies of less than 32 weeks gestation or to look after them.
It was too late to transfer once labour had commenced.
Dr Bunting's plan was to deliver James in Wagga Wagga. This was inappropriate because the hospital was not accredited to do so and there were well-established benefits to being born in a tertiary care centre.
As at both 10 January 2004 and 14 January 2004, despite the foetal fibronectin test being negative, advice about transfer should have been given and the transfer arranged. This is because on both dates there was still a significant risk of preterm birth. The negative foetal fibronectin test did not negate that risk. It pointed to a safe time to transfer in-utero.
A second course of corticosteroids ought to have been commenced on 14 January 2004, which was when Ms Coffey next returned to the antenatal clinic after her discharge from hospital on 10 January 2004.
Transfer to Canberra Hospital was a precaution against the risks of harm to James that should have been taken. Corticosteroids were an additional precaution against the risks of harm to him.
When Ms Coffey came into hospital on 19 January 2004, she was in labour. Her symptoms were consistent with labour and an earlier vaginal examination would have confirmed this. That is what would have happened at Canberra Hospital. The Court should assume that Canberra Hospital would have acted competently.
At Wagga Wagga Base Hospital Ms Coffey ought then have been transferred to the delivery suite, a partogram should have been commenced, a resuscitation trolley should have been made available for the delivery and a paediatrician experienced in preterm delivery, resuscitation and intubation ought to have been present when that occurred. The Wagga Wagga Base Hospital's own guidelines mandated the presence of a paediatrician with appropriate experience as well as a resuscitation trolley.
The events that occurred in James Coffey's resuscitation at Wagga Wagga Base Hospital would not have occurred and the factors identified as contributing to an intraventricular haemorrhage would not have happened.
Resuscitation included a period of six minutes of cardiac massage. This was inappropriate. There was also cardiorespiratory instability and James was fighting against the ventilator. These things each caused or were material contributing factors to his intraventricular haemorrhage.
Had Ms Coffey given birth at the Canberra Hospital, it would have been in the delivery suite with a resuscitation trolley available and a neonatologist or neonatal registrar in attendance. Those doctors would have had experience in resuscitating babies of 27 weeks gestation. Neonatal intensive care nurses would have been present to assist in that resuscitation.
James Coffey would have been resuscitated properly. The cardiorespiratory instability would not have occurred. The cardiac massage would not have occurred. Fighting against the ventilator would not have occurred because James would probably not have needed intubation.
Following immediate resuscitation, James would have been moved to the Neonatal Intensive Care Unit where there were greater skills and facilities for the continuation of resuscitation and proper care immediately thereafter. This would have prevented cardiorespiratory instability. Surfactant would have been given earlier.
The failure to take precautions against the identified risks of harm was a material contributing factor to the causation of the intraventricular haemorrhage.
James Coffey sustained either a grade 3 or a grade 2 intraventricular haemorrhage which in either case contributed to or caused his neuro-developmental impairment. It is unlikely that the intraventricular haemorrhage was due to prematurity per se. It is also unlikely that the 17q12 micro duplication caused all of James Coffey's neuro-developmental impairment, if any.
James Coffey alleges a contract between his mother and the Wagga Wagga Base Hospital for the provision of medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital. He alleges that it was a condition of that contract that the hospital would comply with policy directives and circulars issued to it by the NSW Department of Health, in particular Circular 2009/49 and Circular 99/71, and to provide medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital.
Further, James Coffey pleads exceptional circumstances in relation to the failure to transfer his mother to Canberra Hospital prior to his delivery and repeat the administration of Celestone.

Section 5O

Section 5O of the Civil Liability Act 2005 provides as follows: "5O Standard of care for professionals (1) A person practising a profession ('a professional') does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."
It is now established that in cases in which a defendant raises this provision in response to a plaintiff's claim, evidence of peer professional opinion as to competent professional practice, if accepted, establishes the standard of care to be applied in the instant case. That is to be distinguished from cases in which, where negligence is alleged, the standard of care is established by application of the elements set forth in s 5B of the Act.
In Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335, Giles JA pointed out the manner in which s 5O works an important change to the situation under the common law as it was pronounced in Rogers v Whitaker: "[59] … Section 5O … was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. …Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he 'acted in a manner that…was widely accepted…by peer professional opinion as competent professional practice'), then subject to rationality that professional practice sets the standard of care."
The proposition that s 5O dictates a departure from the common law principle that judges determine the standard of care was later re-emphasised in Dobler as follows: "[61]…the standard of care will be that determined by the Court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion…".
Allsop P, in Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343 at [51], cited Dobler with approval saying: "It [s 5O] transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal."
The defendant contended that this "must be correct". That is because the assessment of the conduct of a defendant professional cannot occur in the context of s 5B of the Act without reference to s 5O. Section 5B, subject to causation, determines liability in negligence. Section 5O qualifies the operation of s 5B, in cases to which s 5O applies, by determining the standard of care.
Some provisions in the Civil Liability Act operate as a defence to "civil liability" and are thus invoked after a finding of negligence. Section 43A is said to be an example. The application of that section involves a "two-stepped approach", requiring a plaintiff to make out negligence and then satisfy a further, not inconsistent, statutory test. However, that construction cannot be accommodated where s 5O applies because that would require separate, but potentially inconsistent, findings of negligence: first, an assessment under s 5B (applying Rogers v Whitaker) and secondly, an assessment under s 5O (applying its terms).
It follows that, where a professional adduces evidence that establishes that he or she acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, then, subject to the court not finding that the opinion is irrational, that practice establishes the standard of care, conformity with which by the defendant will mean he or she "does not incur a liability in negligence". That should be so even in cases where the judge is of the opinion that a different or higher standard, of which the defendant fell short, should obtain.
This approach was recently endorsed in Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 and South West Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69. In Sparks, Basten JA said this: "[16] The section envisages a conflict in the evidence as to whether the defendant's conduct was accepted by his or her peers as 'competent professional practice.' In order to establish negligence, there will usually need to be expert evidence called by the plaintiff to the effect that the defendant failed to exercise reasonable care and skill in providing a relevant service. Under the general law, the defendant would seek to challenge that evidence by calling expert opinion to a contrary effect. For the plaintiff to succeed, the court would need to be satisfied on the probabilities that the appropriate standard was that for which the plaintiff's experts contended. That position has been varied by s 5O(1); although expressed in the passive voice ('if it is established that …'), it has been broadly accepted that the section provides a defence. [17] Despite the common acceptance of the provision as a 'defence', that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to 'competent professional practice' in the terms of s 5O(1). The heading of the section ('Standard of care for professionals') indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent. [18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff's evidence in isolation that a two-stage process, involving the assessment of the plaintiff's claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. This approach is consistent with Dobler and is not to say that a plaintiff must seek out and negative opinions inconsistent with those of the experts on whom he or she relies. Beyond that proposition, Dobler did not turn upon the onus of proof… … [24] In Dobler, Giles JA stated: 'Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.' Ipp JA and I agreed. On reflection, this passage may be open to misunderstanding. It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant's conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case."
His Honour then concluded: "[69] For reasons set out above, the proper course in a case where s 5O has been pleaded and has been the subject of evidence is to determine first the standard of care to be applied, before assessing the alleged negligence against that standard…"
Wagga Wagga Base Hospital submitted that this clarification supports its reasoning to the effect that s 5O evidence, if accepted, establishes the standard of care, and leaves no room for the different test, under s 5B, applying Rogers v Whitaker.
The approach was reiterated and endorsed in Gould, where Leeming JA, cited Giles JA's decision in Dobler: "[121] Giles JA, with whom Ipp and Basten JJA agreed, rejected the bald submission that the plaintiff bore the onus of proof. His Honour traced the history of the 'Bolam principle', its rejection by the High Court in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 and its partial reinstatement in s 5O. His Honour said that apart from s 5O, the Court would have regard to evidence as to acceptable professional practice, but would not be obliged to accept that evidence. In particular, his Honour said that a court 'would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others': at [59]. Giles JA then stated that, in contrast: 'Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care.' [122] Returning to the imprecise way in which the issue of whether s 5O 'operated as a defence' had been framed, Giles JA said at [60]-[61]: 'In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.' It follows that I do not accept the appellant's submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.' [Emphasis added.] [123] Read in proper context, it may be seen that Dobler was a very precise statement of the operation of s 5O. Only if the preconditions of the section - namely, that the defendant was 'practising a profession' and was doing so 'in a manner that ... was widely accepted in Australia by peer professional opinion as competent professional practice' - are established does the section apply. The defendant bears the onus of establishing those preconditions, and if they are not established, then ss 5B and 5C are to be applied. However, if the preconditions are established, then the standard of care against which the defendant's conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational. [124] In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what Giles JA said at [59]: 'then subject to rationality that professional practice sets the standard of care'. That is also what his Honour said at [61]: 'Section 5O may end up operating so as to determine the defendant's standard of care'. [125] That is what Basten JA and Simpson JA separately suggested in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29…".
Paragraphs 85 and 85A of the defence to the second further amended statement of claim plead a reliance on s 5O of the Act. It is instructive to note these paragraphs here: "85. Further, in answer to the whole of the second further amended statement of claim, the defendant states that it, by its servants or agents, acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice in all material aspects of its management and care of the plaintiff, including in: (i) admitting Kathleen Coffey to Wagga Wagga Base Hospital between 4 and 10 January 2004 and managing her there, rather than transferring her to Canberra Hospital for antenatal care; (ii) treating her during the 4-10 January 2004 admission with tocolytics, corticosteroids and antibiotics; (iii) monitoring her uterine contractions and recording them during the 4-10 January 2004 admission; (iv) performing vaginal examinations on 4 and 10 January 2004; (v) performing a foetal fibronectin test on 10 January 2004; (vi) discharging her on 10 January 2004 (while continuing Aldomet and Adalat and antibiotics) with advice to return to the antenatal clinic on 14 January 2004; and (vii) reviewing her in the antenatal clinic on 14 January 2004, at which time standard observations were done and urinalysis was performed and she was advised to return to the antenatal clinic for follow up in two weeks' time or earlier if she was concerned, and, pursuant to section 5O of the Act, it does not incur a liability in negligence to the plaintiff. 85A. Further, if, which is denied, section 5O of the Act requires that the defendant establish that it acted pursuant to a practice that was in existence at the relevant time, then the defendant says that the manner in which it acted, including in doing the things referred to in paragraph 85 above, accorded with, or was pursuant to, a practice in existence at that time."
The significant and over-arching allegation pleaded against the defendant is the failure to transfer Ms Coffey to the Canberra Hospital prior to James' delivery. The defendant maintains that in the circumstances of this case, the decision not to transfer, as well as the treatment provided while still at Wagga Wagga Base Hospital and following delivery, conformed to competent professional practice. Several opinions were expressed by experts in different fields of specialty concerning the question of whether or not the treatment provided to Ms Coffey and her foetus and later to her newborn son was in accordance with competent professional practice at the relevant time. These opinions were expressed both with respect to the overriding decision concerning the transfer of Ms Coffey to a tertiary hospital such as Canberra Hospital as well as with respect to the discrete individual questions such as the administration of steroids or the quality of neonatal intubation and resuscitation. Plainly the views expressed on the general issue of transfer will not necessarily accommodate the views expressed about the particular issue of care or treatment. To the extent, therefore, that the defendant has raised the existence of an accepted professional practice in existence at the time with which the Wagga Wagga Base Hospital complied, attention always needs to be given to the precise practice that is being considered.
That somewhat uncontroversial proposition was given recognition in Sparks, as the following paragraphs from the judgment of Basten JA make clear: "[26] More importantly, the provision raises the possibility of a negative inference, namely that the court may not reject an opinion even though satisfied that it is unreasonable (though not irrational), or otherwise not one the court would itself adopt. Such a general negative inference should not be inferred; there will be other questions which will arise. [27] First, there will be a question as to whether the evidence of one or two experts can satisfactorily establish opinions which are 'widely accepted' in circumstances where such a view is contradicted by other evidence. No doubt evidence of 'general professional opinion', in addition to the personal opinion of the expert, is admissible in such circumstances. [28] Secondly, it will be a matter for the court to assess the significance of particular evidence. Evidence may be at a greater or lesser level of generality. At a high level of generality it may readily be accepted that an opinion is widely held amongst peers of the practitioner. However, the standard so identified may not assist greatly in resolving the particular case. On the other hand, the more particular the opinion, based on the specific circumstances of the case, the more difficult it may be to establish an opinion which can be described as 'widely accepted' among fellow practitioners. Accordingly, whether or not evidence of medical opinion is properly described as conclusive in a particular case will depend upon a range of factors and not merely the fact that it can properly be described as not irrational."
As indicated earlier, the predominant setting or context for all of the allegations raised against the Wagga Wagga Base Hospital is the decision not to transfer Ms Coffey to a tertiary facility. As will shortly be explained, the other alleged deficiencies appear in my opinion ultimately to assume only subsidiary significance or merge in the wisdom or otherwise of the decision to continue to treat Ms Coffey in Wagga Wagga.
The defendant relied on the following evidence to support the existence of compliance with accepted competent professional practice at the time.
Dr Robert Lyneham prepared a report dated 14 November 2011. Dealing specifically with the failure to transfer Ms Coffey to a tertiary hospital once contractions commenced on 4 January 2004, he said this: "Transfer to a tertiary hospital would have been indicated if there was evidence that delivery was imminent, or even likely. Following the mother's admission to the hospital and the commencement of treatment her contractions all but disappeared, there was no change in the cervix over a period of six days, and it was quite clear that delivery was neither imminent nor likely. Had the mother been transferred to a tertiary hospital on 4 January 2004, I could say with some confidence that treatment there would have been very similar and the mother would have been discharged home probably before 10 January 2004. There was [sic] no specific treatments that were available to the mother in a tertiary hospital, other than the care of a very preterm infant. Although it is true that the hospital did fail to transfer the mother to a tertiary hospital once the contractions commenced on 4 January 2004, on my analysis of the records there was no indication for such a transfer."
Dr Lyneham's conclusion was stated thus: "On the basis of my analysis of the records that you have provided, and in contemplation of both the scientific literature at the time and accepted medical practice, in my opinion Wagga Wagga Base Hospital acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. Indeed, I would go as far as saying that the mother's management was of the highest standard."
With particular reference to the question of transfer to a tertiary hospital, Dr Lyneham's evidence was that "at no time during the admission on 4-10 January was Ms Coffey's clinical condition consistent with a diagnosis of preterm labour". Nor in his view was there any "indication to transfer, and no indication to contact Canberra Hospital staff". Dr Lyneham said that he was "unaware of any policies or guidelines from 2004, or now, which recommend or advise transfer to a tertiary centre of a woman who is not in threatened or actual preterm labour but rather experiencing a few contractions a day, and with no history of spontaneous labour before 32 weeks". Dr Lyneham also said this: "My recollection of practice in 2004 is that transfer was arranged when preterm delivery was at least likely to occur, if not inevitable. This was not the situation on the relevant dates. I therefore do not agree with A/Prof Bryce, either with respect to 4-10 or 14 January 2004. Viewed prospectively, management of her pregnancy in Wagga Wagga was entirely appropriate."
With respect to the NSW Health Circular 99/71 entitled "Policy for Emergency Obstetric and Neonatal Referrals", Dr Lyneham said this: "I have read the NSW Health Circular 99/71 'Policy for Emergency Obstetric and Neonatal Referrals'. I do not read it as suggesting that all high risk obstetric patients who presented to hospital must, without more, be the subject of telephone contact with or transfer to a tertiary referral centre. Rather, the document contemplates, consistently with my experience of the practice followed in New South Wales in 1999 and continuing in 2004, that such contact would occur where there was evidence of fetal compromise or the patient was less than 33 weeks and in preterm labour. Neither of these conditions was present during the 4-10 January admission or the antenatal visit on 14 January, and so there was no indication to have contacted Canberra Hospital staff or to have requested transfer, and I do not read the Circular 99/71 as requiring that there be telephone contact with or transfer to a tertiary referral centre. Ms Coffey was under the care of very experienced, senior specialist obstetricians who had most capably cared for her in the past and arranged transfer without delay when indicated."
Dr Lyneham was not challenged on these opinions.
Dr Andrew Child provided his report on 28 November 2011. He said that "the antenatal care provided at the clinic at Wagga Wagga Base Hospital was in accordance with acceptable practice at that time for a complicated pregnancy such as this one". In answer to the question concerning transfer, he said this: "Dr Currie was involved in the assessment of this patient at the time of her admission and during her stay in hospital and it would have been his call as to whether transfer was required. It would be my impression that the contractions were not very well advanced at the time of admission as the cervix was still long and closed and posterior. The cervix remained unchanged over the following 6 days and the fetal fibronectin test was negative. Also, there was an underlying potential cause for the episode of contractions and the urinary tract infection was treated with antibiotics and the contractions did appear to settle with this combination of medication and bed rest over the 6 days. It would therefore be my impression that it was reasonable to keep the mother in Wagga pending further developments as of 4 January 2004."
Dr Child expressed his conclusions in the following relevant terms: "The question is how to manage such a problem and whether it is helpful to transfer all such patients to a major centre until they get to 34 to 36 weeks at which time they could be safely delivered in Wagga…Even by doing such a transfer there would be no guarantee that the preterm birth would be prevented and also there would be no guarantee that the baby would not be born without any complication. Invariably some babies born at around 26 to 30 weeks, even in a major obstetric centre, will suffer from significant ongoing major complications and merely the fact that they are born in a major teaching hospital does not prevent all complications. This would therefore be a very difficult decision from the point of view of Dr Currie in view of all the complexities surrounding the pregnancy in this mother. It would be my impression that there were no clear indications to transfer this mother at the time of her admission to hospital from 4 to 10 January or at the time of the consultation on 14 January particularly as the labour did not in fact start until 19 January."
Dr Child was asked to provide a written opinion on the following question: "In your opinion, did those attending on Kathleen Coffey at Wagga Wagga Base Hospital act in a manner that was (at the time) widely accepted in Australia by peer professional opinion as competent professional practice in: (i) admitting her to Wagga Wagga Base Hospital between 4 and 10 January 2004 and managing her there, rather than transferring her to Canberra Hospital for antenatal care or admission; (ii) treating her during the 4-10 January 2004 admission with tocolytics, corticosteroids and antibiotics; (iii) monitoring uterine contractions and recording them during the 4-10 January 2004 admission; (iv) performing vaginal examinations on 4 and 10 January 2004 and performing a foetal fibronectin test on 10 January 2004; (v) discharging Kathleen Coffey on 10 January 2004 (while continuing Aldomet and Adalat and antibiotics) with advice to return to the Antenatal Clinic on 14 January 2004 or earlier if she was concerned; (vi) reviewing Kathleen Coffey in the antenatal clinic on 14 January 2004, at which time standard observations were done and urinalysis was performed and advising Kathleen Coffey to return to the Antenatal Clinic for follow up in two weeks' time or earlier if she was concerned?"
Dr Child answered this as follows: "My overall impression is that the care provided by those attending on Ms Coffey at Wagga Hospital was in a manner that (at that time) was widely accepted in Australia by peer professional opinion as competent professional practice. In my opinion the 6 items listed were appropriate and in accordance with the capabilities of the staff at Wagga Hospital at that time. Wagga serviced a high population of pregnant mothers and provided level 5 care as well as training for junior obstetrics medical staff and midwives."
Specifically with reference to the issue of transfer, Dr Child said that "there were no clear indications to transfer this mother at the time of her admission…from 4 to 10 January or at the time of consultation on 14 January particularly as the labour did not in fact start until 19 January". He agreed with Dr Lyneham that Ms Coffey's treatment on discharge on 10 January 2004 "was entirely appropriate" and that "there was no necessity for transfer to a tertiary hospital" between 4 and 10 January or on 14 January 2004. Dr Child said that he could "not see any clinical evidence to suggest that she should have been transferred to Canberra Hospital" on 14 January 2004 and that "it was reasonable to advise her to return to the clinic in two weeks time with the proviso that she return urgently to the hospital if any symptoms were causing her concern".
Dr Child was not cross-examined on these opinions.
A/Prof Nick Evans provided a report dated 9 October 2013. With respect to the issue of antenatal transfer to a tertiary centre, he said this: "It is preferable for preterm babies to be born in hospitals with an NCIU. Sometimes, mainly due to precipitant delivery, such antenatal transfer is not possible and ex-utero transfer has to occur after birth. The indications for antenatal transfer are dictated by the risk of imminent preterm delivery. This is more an area for obstetric opinion but I would concur with Dr Lyneham that there were no indications for antenatal transfer either during admission from 4 January or at the routine follow up appointment on 14 January. There are a limited number of antenatal beds in most of the tertiary perinatal centres and it is unlikely that transfer would have been accepted even if it had been requested on 4 or 14 January. Overall I would rate the standard of care that James received while at Wagga Hospital as high."
Dr Evans' conclusion was expressed in these terms: "I would concur with Dr Lyneham that Kathleen Coffey's antenatal management was within a standard of care. She was given the treatments which we know reduce the risks of premature birth and the risk of prematurity, that is antenatal steroids and tocolytics in the form of Nifedipine. These treatments reduce the risks but do not eliminate the risks. There is no evidence of benefit from bed rest and, viewed prospectively, there were no indications for transfer to a tertiary perinatal unit until her presentation on 19 January, when the delivery was too imminent."
Dr Ian Barraclough was qualified as an expert by Ms Coffey. He provided a report dated 4 July 2006 to her solicitors Messrs Commins Hendriks. Dr Barraclough proceeded in some considerable detail to outline Ms Coffey's obstetric history and her presentation and treatment at the Wagga Wagga Base Hospital in January 2004. He described it in these terms: "When Mr [sic] Coffey was admitted on January 4 at 25 weeks gestation, she was given Adalat (Nifedipine) to suppress the contractions and a course of Celestone (Betamethasone), a steroid to help mature the foetal lungs and so prevent respiratory distress. This was good and competent management, which would have been followed by any reasonable obstetrician. The antenatal care of Mrs Coffey cannot be faulted."
Professor Paul Colditz provided a report to Ms Coffey's solicitors dated 10 October 2005. Dr Colditz was then the Director of the University of Queensland Perinatal Research Centre. He records that he was asked to report in relation to the care afforded to Ms Coffey by the Wagga Wagga Base Hospital and to comment upon whether an earlier examination would have benefited her and James and whether attendance by a paediatrician would also have been warranted. Dr Colditz was also asked to comment upon the incidence of cranial bleeds and to offer an opinion upon whether in James' case they were due to prematurity because of the rapid birth or because of any problem with James' resuscitation. Dr Colditz' report included the following: "Translating this information to your client's situation does not assist a great deal with respect to determining whether the IVH may have been caused by or contributed to by either the rapid delivery or the resuscitation. However, I have already indicated above that there is no evidence of any departures from standard practice in the management of your client, the delivery or the resuscitation. In relation to the resuscitation, it is not described in great detail, but it is described in sufficient and adequate detail to establish that standard practice appears to have been followed. Even if a contrary view were taken, namely that an inadequate detailed description was provided, the facts are that the baby was in reasonable condition at the time of delivery. This is established by the Apgar score recorded at 1 minute. At 5 minutes the Apgar score was the same rather than higher, but this would be common in babies of 27 weeks gestation and does not imply any deficiency in the provision of resuscitation. Despite the baby being quite sick with immature lungs and hyaline membrane disease, he was provided with adequate treatment and at the time of the first arterial blood gas at about 1030, all of the values were within the appropriate range. In particular, the base excess was -1.4 which confirms that the baby had been provided with appropriate amounts of oxygen and general care after birth and also was more likely than not in a good metabolic state at the time of birth. My opinion is that the general risk of intraventricular haemorrhage is ever present after birth at 27 weeks gestation and that there were no particular issues in the management of your client or her foetus or baby that are likely to have been the cause of, or a material contributor to, the intraventricular haemorrhage that did occur."
Dr Colditz earlier commented that "the care provided was within standard practice."
Dr John Currie worked as a specialist obstetrician and gynaecologist at Wagga Wagga Base Hospital in January 2004 and was involved in Ms Coffey's care. He provided a statement in which he said that it was his assessment that she did not require a transfer to a tertiary hospital on 4 January 2004. He gave evidence and was not challenged on that opinion. He said that he would have done so if he had been concerned. So far as concerns Ms Coffey's condition at the antenatal clinic on 14 January 2004, Dr Currie gave the following unchallenged evidence: "Based on the information contained in the entry Dr Bunting made in the Antenatal Record for Kathleen Coffey for 14 January 2004, my experience in managing obstetric patients at Wagga Wagga Base Hospital over many years and in organising the transfer of obstetric patients to tertiary hospitals such as Canberra Hospital, I don't believe Kathleen Coffey would have been regarded as requiring transfer had one been sought on 14 January 2004. On my assessment, the clinical evidence and test results were against Kathleen Coffey being in labour or labour being impending at the time."
Dr Ian Stewart was a part-time staff specialist obstetrician and gynaecologist at the Wagga Wagga Base Hospital in 2004. He provided statements and gave evidence in the proceedings. He was not cross-examined upon the following evidence: "CHENEY: In paragraph 16 you refer to certain aspects of Ms Coffey's history and observations made of her during the 4 to 10 January 2004 admission and the 14 January 2004 presentation to the clinic? A. Yep. HIS HONOUR: If it had been up to you, what would you have done in the same circumstances? A. The summary of the clinical findings at the time of her discharge after the five or six days in hospital that I think is in the paragraph 16 of my statement, represents to me that this is a situation of contractions that have settled, that an additional condition had been treated, that is the urinary tract infection which are, and the observations and the indeed, the foetal fibronectin test, which was negative, and the observation that with the speculum and I believe it says that the cervix was closed, all leads me to believe that I would have sent had I been asked what I would do at that time, I would have said, 'This lady is suitable for discharge with review in the clinic at the next available high risk clinic,' which was the 14th."
Dr Michael Bunting is currently a specialist gynaecological oncologist. He commenced as a Registrar at the Wagga Wagga Base Hospital in February 2004 and had previously been a resident medical officer at the hospital in January 2004 when Ms Coffey came under his care. He provided a statement dated 11 August 2015. Paragraph 49 and 64 were as follows: "49. My view as at 10 January 2004 was that there was no basis upon which to seek a transfer of Ms Coffey to a tertiary centre, such as Canberra Hospital. At that point, she had a long closed cervix and the FFN test was negative. I did not believe her uterine contractions/tightenings were actually evidence of labour. Rather, I believed that they were explained by her urinary tract infection. Further, she had only very sporadic tightenings over the six days she had been in hospital. … 64. On 14 January 2004, I did not believe that there was any basis on which to seek Kathleen Coffey's transfer to a tertiary hospital such as Canberra Hospital. There was no evidence that she was in premature labour, nor were there any signs of impending labour...".
Dr Bunting was cross-examined in the following terms: "Q. So, was it your plan to wait until she went into labour to look at the question of whether she and the baby in utero should be transferred to a tertiary system tertiary centre; was that your plan? A. No, that wasn't my plan. Q. What was your plan, in the event that she did go into labour, as she did indeed on the 19th? A. My plan, after I saw her on the 14th and discussed her with my consultant, was that we'd review her in the next fortnight, and we didn't anticipate her going into labour within that time. Q. So does that mean, if I may put it bluntly, that there was no plan in place to deal with the events of the 19th? A. There was no specific plan for Ms Coffey herself, but dealing with preterm labour is something that obstetricians deal with every day, including in places like Wagga Wagga Base Hospital, regardless of the patient history. Q. Sorry, what was the first part of that answer, Doctor, dealing with? HIS HONOUR: There was no plan specifically for Ms Coffey, but there was a general plan in order to cope with… BARTLEY: And what was the general plan? A. So, going back 14 years, you, well, the consultant obstetrician would be there, the consultant paediatrician would be, the registrar, obstetric registrar would be there, the paediatric registrar would be there, there would be a number of midwives that would be there, they would be prepared, there would be an anaesthetist who was available to intubate a premature baby if intubation was necessary, all of those factors were in place, including being able to give surfactant to help a neonate breathe, and I think in fact that actually happened, if I remember reading the notes. So the baby received the same care that it would have received at a tertiary hospital, and it was transferred and in a tertiary hospital within eight hours, having received the same care, having already received steroids."
Dr Bunting was of the view that Ms Coffey was not at any time in preterm or premature labour. He specifically said in his cross-examination that "we had no evidence and none during the entire admission that she was in premature labour". However, he acknowledged that she was a high risk obstetric patient, as his following answers make plain: "HIS HONOUR: Just out of interest, what does high risk pregnancy mean, or what in your understanding did it mean at the time? A. You have to ask an obstetrician for a definition because there are innumerable … reasons for a pregnancy to be deemed a high risk. Q. Did you have an understanding in January 2004 of why Ms Coffey was assessed as a high risk pregnancy? A. Yes. Q. What was your understanding? A. There'd be a number of factors. One, that she'd had previous caesarean sections, one that she'd had previous pre-eclampsia, one that she'd had previous pulmonary embolus, one that she had previous preterm labour, one that she had impaired glucose tolerance looking at the glucose tolerance tests going back through the notes, one that she had a body mass index of 40 at booking in, which puts it in the morbidly obese category, a number of different factors. All of those converge to by definition make it a high risk, a higher risk pregnancy. And those were recorded on the antenatal charts at the Wagga Wagga Base Hospital, and those were actually kept in a high risk pregnancy area of charts at the Wagga Wagga Base Hospital. Everyone at the Wagga Wagga Base Hospital who had anything to do with the antenatal clinic, the delivery suite, or the antenatal ward was aware of that."
Although Dr Bunting was cross-examined at some length, it was not suggested to him that the opinions he expressed in paragraphs 49 or 64 of his statement were incorrect or not in accordance with widely accepted practice at the time or that they were irrational.
Dr Andrea Follett currently works as a general practitioner in Hobart. In January 2004 she was working under a number of visiting medical officer obstetricians and gynaecologists at Wagga Wagga Base Hospital. She provided a statement dated 10 June 2015. Paragraph 33 of that statement is in the following terms: "I don't recall at any time during the 4-10 January 2004 admission of Ms Coffey forming the view that she was appropriate to be transferred to a tertiary hospital (with the Canberra Hospital being the nearest tertiary hospital to Wagga Wagga). Based on the information Kathleen Coffey gave me each time I saw her and the information contained in her clinical records, I did not believe that she was in premature labour or that her labour was impending. If I had thought it appropriate to transfer Kathleen Coffey to a tertiary hospital, as a RMO1, I would have discussed the issue with Dr Currie. I can't now recall having any such discussion with Dr Currie."
Dr Follett was cross-examined about paragraph 33 of her statement. However, it was not put to her that her views that Ms Coffey was not in premature labour or that her labour was not impending were not honestly held, or that they were incorrect or irrational.
A/Prof Bryce gave evidence concurrently with Drs Child, Lyneham and Lynch. Part of his evidence was as follows: "BARTLEY: In terms of threatened pre term labour, what's your view about the period between the 5th and when she actually went into labour on the morning of the 19th? The 4th and 5th? WITNESS BRYCE: Okay. If I can start by saying I think what we're looking at is the decision making process and what was the basis for the decision making process to keep her in Wagga rather than to send her to Canberra, and those decisions were made based on her past history which made her a high risk pregnancy, in particular her three previous pre term births and the gestation of these births wasn't disputed at the time. It's only being disputed now about the gestation of these births, so the doctors looking after her were working on those diagnoses as being three previous pre term births, and as well as that she had a history of severe hypertension in her first pregnancy, she had obesity, she had a previous pulmonary embolus, she had depression, she had asthma, so I don't think anyone would dispute that this was a high risk pregnancy and I can't imagine anyone would dispute that she is at significantly increased risk of pre term birth, having had three previous pre term births, even irrespective of what happened in the first pregnancy. Since then she's had two pre term births. So with respect to threatened pre term labour, that was the diagnosis that was made at the time so the decision making was based on that diagnosis, made to the best of the ability of the people who were looking after her, so I don't think really it's our job to subsequently question that decision making at this stage, because that's the decision that had been made on which the basis for the treatment occurred. However, she did fulfil the criteria that are generally accepted for threatened pre term labour and that is regular painful contractions probably less than ten minutes apart. For a definition of if you like this word established labour or of labour, you might also expect to have cervical dilatation occurring, but for threatened pre term labour you don't need to have that criterion, it would be sufficient to have regular painful contractions, and furthermore, in such a high risk patient with such a high risk of pre term birth occurring, one would always err on the side of over diagnosis and over treatment rather than under diagnosis and under treatment otherwise you're taking unacceptable risks on behalf of the patient."
A/Prof Bryce had earlier given evidence of his opinion of the quantification of the risk that Ms Coffey might deliver prematurely: "WITNESS BRYCE: I would this would be just my estimate, but if a woman had had three previous babies and none of them had been pre term they would confer on her a lower risk of pre term birth than there is in the general population. So, I would imagine if the risk in the general population is 8 to 9% this maybe something in the area of maybe 5%. So, if you talk about a relative risk of ten, we're talking about 50%, so further evidence to support those actual risk figures that I have been able to come across. With respect to your other question about indicator pre term birth, because I didn't give you an answer to that question, when there has been a previous indicated pre term birth that also confers a risk of subsequent spontaneous or indicated pre term birth slightly lower risk than there is with a previous spontaneous pre term birth but only slightly. There seems to be something about pre term birth of any nature that confers a risk of pre term birth subsequently."
As the Wagga Wagga Base Hospital's submissions emphasise, not only did Drs Child and Lyneham disagree with that assessment, putting the risk at closer to 10 percent, and "nowhere near 50 percent", so too did the neonatologists, between whom the only disagreement was whether the risk of delivery before 32 weeks was five percent, as A/Prof Evans would have it, or 10 percent, as Dr McPhee believed. It was in this context that the defendant's submission described A/Prof Bryce's opinions about the state of Ms Coffey's pregnancy and the need to transfer her to Canberra Hospital as "outlier" opinions. So far as concerned that issue, A/Prof Bryce was alone among the six obstetricians who expressed a view upon it in suggesting that an antenatal transfer to Canberra Hospital was indicated.
In describing A/Prof Bryce's position in that way, the Wagga Wagga Base Hospital made the following written submissions: "60. In weighing the merits of A/P Bryce's outlier opinion, and in considering whether it exposes a want of reasonable care on the part of the defendant, the court should have regard to the unchallenged evidence of each of Drs Bunting, Follett, Currie, and Stewart, to the effect that Mrs Coffey's management accorded with the practice regarding transfer decisions that was followed at the hospital in 2004. In other words, given the evidence that the management decisions made here were, as all deposed (again, unchallenged), the product of adherence to such a practice, a finding that there was a breach of duty in failing to seek Mrs Coffey's transfer here would carry with it the conclusion that a long-established, widely supported practice followed by every experienced consultant obstetricians at a level 5 maternity hospital in New South Wales betrayed negligent failings on the part of those who devised and those who followed it. Such a conclusion…ought not to be made on the basis of a single outlier opinion from a South Australian clinician that is, seemingly, based solely on his own approach at the Flinders medical centre, within a State system populated by lower level maternity hospitals that Dr McPhee described as 'Adelaide centric'. A/P Bryce was unable to cite a single policy directive or peer reviewed article in support of his position. 61. As to this last point, it is telling that the plaintiff does not contend, in answer to the defendant's defence [sic] under section 5O… that the practice, or opinion supportive of it, is irrational. That circumstance…bears out how unsafe it would be to impugn the conduct of a cohort of independent experts, including Dr Barraclough and Prof Colditz, commissioned by the plaintiff's solicitor, on the basis of a single dissenting voice of A/P Bryce. 62. The joint report of the three obstetric experts and Dr Lynch, including the agreed assumptions, the list of materials briefed and the questions asked, are at [Court Book] vol 7 pp1163-1219. It is notable that A/P Bryce's contributions in the joint report simply do not engage with the fact that on a proper understanding of [Ms Coffey's] obstetric history and January 2004 presenting signs and symptoms, including the 10 January observation of a long, posterior and closed cervix and a negative foetal fibronectin test that confirmed that there was a less than one percent chance of delivery within the next 14 days…there was no indication for transfer at any time prior to 19 January 2004 when she delivered James. 63. Although A/P Bryce asserted that Mrs Coffey was a greater than 50 percent chance of delivering before 32 weeks, that was apparently predicated on his mistaken perception that her obstetric history involved three preterm births, features that, he contended, contributed to her 'background risk'. The folly in that analysis…is borne out by the fact, as A/P Bryce eventually conceded, Mrs Coffey had no history of spontaneous preterm births prior to 32 weeks, and [her son] Robert's birth at 26 weeks was an emergency intervention necessitated by concerns for Mrs Coffey's welfare, so could not be a strong predictor of subsequent spontaneous preterm birth…The upshot is that the relevant risk figure for the purpose of the clinicians at the hospital considering transfer was somewhere in the range 5-10 percent delivery before 32 weeks. It was not 'greater than 50 percent' as A/P Bryce wrongly asserts. 64. In any event, the data on which A/P Bryce based his 'greater than 50 percent risk' conclusion was a study published in 2014. There is no evidence that, even if sound, the findings of that study were known in 2004, and to the contrary, Dr Child's evidence, again unchallenged, was it was not the received wisdom in 2004…". [Emphasis in original.]
In summary, the case for the Wagga Wagga Base Hospital on the transfer issue was that Ms Coffey's high risk pregnancy did not as a matter of practice, policy or medical necessity, warrant her being removed to Canberra Hospital prior to 19 January 2004. As at 10 January 2004, the clinical finding, including the absence of contractions, the condition of her cervix, the fact that a possible urinary tract infection was being treated with antibiotics and the negative foetal fibronectin test, which A/Prof Bryce considered to be "a significant finding", all indicated discharge home as a reasonable response. Ms Coffey was not in preterm labour prior to 19 January 2004. At no time between 4 and 10 January 2004 was Ms Coffey in threatened preterm labour. There were no material changes to her condition by 14 January 2004 and she was not then in threatened preterm labour. The only relevant difference between Wagga Wagga Base Hospital and Canberra Hospital was that the latter had a Neonatal Intensive Care Unit. The facilities were otherwise effectively identical.
In Gould, Leeming JA said this: "[30] I shall return below to the construction of s 5O and how that section interacts with s 5B. For present, it suffices to note the following propositions, which I regard as uncontroversial: (1) it is settled that the defendant bears the onus of establishing the elements of s 5O(1) (namely, he or she was a 'professional' and acted in a manner which, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice): Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]-[61] and Sydney South West Area Health Services v MD [2009] NSWCA 343 at [20]-[21], [51] and [58]; (2) it is clear from s 5O(3) that there may be inconsistent bodies of peer professional opinion each of which is widely accepted; (3) it is clear from s 5O(4) that peer professional opinion may be widely accepted without being universally accepted; (4) subject to s 5O(2), when the elements of s 5O(1) are made out, the defendant does not incur a liability in negligence; (5) if the court considers that the opinion is irrational, then the section does not to that extent apply; (6) the test of 'irrational' in s 5O(2) is not otherwise defined, but in light of s 5O(3) and (4) it cannot be sufficient for peer professional opinion to be irrational merely because one peer, or a body of peers, does not share that opinion."
In the particular circumstances of this case, Ms Coffey did not plead that the Wagga Wagga Base Hospital did not act "in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice". Ms Coffey's submissions were to the following effect.
Ms Coffey contended that it was "unsustainable" in the present case to argue that the failure to transfer her to Canberra was widely accepted in Australia by peer professional opinion as competent professional practice. She contended that the opinions of Drs Child and Lyneham were "clearly irrational" in relation to this particular pregnancy. That is said to be so because the opinions proceed on the basis that transfer need only have been considered once Ms Coffey went into labour, for which proposition Ms Coffey contended there was no evidence.
Ms Coffey submitted further that s 5O seems "faintly" to have been called in aid of the management of the labour and subsequent delivery. She submitted that there could be no rational explanation for the failures relating to no vaginal examination, the birth taking place in the maternity ward, the absence of a paediatrician at the birth and an excessive period of cardiac massage. Finally, Ms Coffey submitted that there was a need to transfer her to Canberra because she was at the relevant time in threatened preterm labour.
The Wagga Wagga Base Hospital responded as follows.
Insofar as irrationality is raised in Ms Coffey's submissions, the defendant contended that she should not be permitted to rely on s 5O(2) when raised for the first time in those submissions. The proposition appears to be that delaying delivery until 32 weeks gestation was irrational. The defendant contended that I should reject a submission that it was irrational for it to approach Ms Coffey's antenatal management on the basis that delivery might be delayed until then because Dr Currie's evidence does not suggest that such a belief would be irrational and that proposition was never put to any of the experts. Moreover, to the extent that Ms Coffey now wishes to contend that the defendant's expert evidence as to peer professional practice is irrational, it would be procedurally unfair to receive or to consider such a submission having regard to the fact that it has never been pleaded or supported by opposing expert evidence: see Gould at [68]-[75].
The defendant maintained that it conducted its defence on the basis that the rationality of the expert opinions it relied on was not in issue. Ms Coffey was given leave during the trial to file a reply, yet even then raised no issue as to s 5O(2).
Further, the defendant submitted in any event that it is a mischaracterisation of the evidence of Drs Child and Lyneham to suggest that they stated that transfer need only have been considered once Kathleen Coffey went into labour.
With respect to the scope of the widely accepted practice contended for, the defendant submitted that, far from "faintly" suggesting that it extended to the events of 19 January 2004, the defendant specifically relies on s 5O in defence of its management of the labour and delivery on that date. In short, there was no vaginal examination and the delivery occurred in the maternity ward because in Ms Coffey's circumstances, it was difficult to palpate contractions and determine whether she was actually in established labour.
The defendant submitted that Ms Coffey's submission that she was in threatened preterm labour and should have been transferred or advised as to transfer after her 4 January 2004 presentation goes to the heart of her case. The defendant contended that that proposition should be rejected.
It was A/Prof Bryce's opinion that, even absent contractions or any indication of threatened preterm labour, Ms Coffey should have been transferred to Canberra at 26 weeks' gestation and remained there until 32 weeks' gestation. In effect, he relied solely on her obstetric history, which included no spontaneous delivery before 32 weeks.
The defendant did not dispute that on Ms Coffey's admission to Wagga Wagga Base Hospital on 4 January 2004, the working diagnosis was threatened premature labour or that under Dr Currie's guidance she was initially managed on the basis of such a diagnosis.
Dr Lyneham quoted a specific definition of threatened preterm labour contained in a 2011 NSW Health Policy Directive, being "uterine contractions that are painful, palpable, last more than 30 seconds and occur with a frequency of at least 2 every 10 minutes …".
He explained that in 2004, clinicians generally regarded threatened preterm labour as comprising the features contained in the Policy Directive definition and indicated that accordingly, Ms Coffey was neither in preterm labour nor threatened preterm labour. Dr Lyneham was not challenged on that evidence in cross-examination.
A/Prof Bryce proposed a different definition for threatened preterm labour: "However, she did fulfil the criteria that are generally accepted for threatened preterm labour and that is regular painful contractions probably less than 10 minutes apart".
Beyond the lack of any source or reference for that definition and the fact A/Prof Bryce seemed to be speaking of a 2018 definition, Ms Coffey did not in fact meet A/Prof Bryce's own definition of preterm labour during the period in which on his view the determination whether transfer was appropriate should have occurred following the 4 January 2004 admission.
A/Prof Bryce also stated that after Ms Coffey's presentation at 1930 hours on 4 January 2004, she needed to be observed for a minimum of 4 hours, and up to 24 hours, before making any decision as to transfer. That was to avoid delivery occurring while she was en route to Canberra. Importantly, in the initial nursing entry after presentation, Ms Coffey's contractions were recorded as previously being 20 minutely and then being 10 minutely, lasting 30 seconds. The pattern was then of contractions decreasing in frequency and regularity, with them being described as "irregular" at 2120 hours, with one in the last 45 minutes and then one contraction having occurred at 0130 hours since 2130 hours. After the 0130 hours contraction, none was recorded at all on 5 January 2004.
The defendant therefore emphasised that during the very period when Ms Coffey should on her case have been considered for transfer, she did not even meet A/Prof Bryce's undemanding definition of threatened preterm labour, let alone the NSW Health definition, cited by Dr Lyneham. On any view, she was not in threatened preterm labour, let alone actual preterm labour. Her contractions were infrequent and irregular. According to the defendant, the expert evidence justified a watch and wait approach, rather than bringing about transfer or providing Ms Coffey with advice to the effect that she should be transferred. The position was the same upon her discharge on 14 January 2004.
In my opinion, the evidence led by the hospital with respect to the s 5O issue ultimately spoke with one voice. There was no evidence from Ms Coffey to the contrary.
The standard with which the Wagga Wagga Base Hospital was required to comply was the standard described by the experts as one that was widely accepted in Australia by peer professional opinion as competent professional practice. Those experts established the standard of care for the purposes of this litigation. That standard was met by the hospital. The hospital does not incur a liability in negligence either to Ms Coffey or James Coffey. That is so in my opinion having regard to the whole of the evidence, both with respect to the allegation of a failure to transfer Ms Coffey to Canberra Hospital before James was born as well as with respect to the individual allegations of want of proper care at Wagga Wagga Base Hospital leading up to the time of his delivery and immediately thereafter.
Importantly, it is not in my view open to Ms Coffey lately to contend that the opinions on which the s 5O contentions are based do not extend to the events of 19 January 2004. It was never put by counsel for Ms Coffey to a single witness in the proceedings on either side of the debate that the opinions expressed by them concerning widely accepted practice were wrong or that the practice identified was irrational or that they had not, in expressing their respective opinions, intended to include in their assessment the events that occurred on 19 January 2004. Even if the scope of the practice relied on by the defendant and particularised in paragraph 85 of the defence to the second further amended statement of claim on one view did not in terms extend so far, it seems apparent that the opinions concerning the relevant practice were intended to incorporate the events of that day. For example, Dr Child's answer to the question directed at precisely that paragraph spoke of the fact that the hospital serviced a high population of pregnant mothers and provided level 5 care as well as training for junior obstetrics medical staff and midwives. At no point in the course of the trial was it ever pleaded or suggested to the experts or raised in any way at all before the evidence had concluded that the experts were constraining or limiting their views about widely accepted practice to the point when Ms Coffey was discharged on 14 January 2004 with advice to return if necessary but not beyond. Moreover, there was no evidence to the contrary called by Ms Coffey, her principal attack being the unsupported contention that the opinions were irrational.

Further consideration

It becomes strictly unnecessary in these circumstances to consider the separately pleaded individual allegations of breach of duty by the hospital. However, despite my earlier conclusion about Ms Coffey's contention that the evidence of a widely accepted peer professional practice with which the hospital complied did not extend to include the events of 19 January 2004 and in particular the care and treatment of James from the moment of his birth should be rejected, it is prudent that some further examination of that contention should be undertaken. In particular, it is appropriate to consider at least the evidence of the neonatologists concerning that treatment in the brief period that James was at the Wagga Wagga Base Hospital on 19 January 2004.
In their joint report following the experts' conclave, A/Prof Evans and Dr McPhee expressed a number of opinions in answer to a series of questions on notice. It is instructive to record some of those here, as follows: "9. Based on your review of the clinical records for James Coffey and Kathleen Coffey, please describe the nature and extent of any cardiorespiratory instability James suffered at birth. A/Prof Evans The description of cardiorespiratory instability is not the correct term, it is really a question of resuscitation. A/Prof Evans observes that some clarification is required from the hospital as to the meaning of the clinical notes. There is a very real question as to whether there was one minute of cardio pulmonary resuscitation (CPR) or six minutes of CPR. On the assumption there was one minute of CPR, it is my assessment that the hospital did pretty well. The first thing that you are trying to do with the newborn premature baby is to ensure oxygenation and, whether or not in a tertiary setting the hospital, they did pretty well achieving 86 percent oxygenation at five minutes and 100 percent oxygenation at seven minutes. This is in keeping with oxygen saturation targets delineated by national resuscitation guidelines (80-85% at 5 mins, 95-98% at 10 mins). Once oxygenation is achieved, the next step is maintaining respiration through ventilation. The surfactant sufficiency syndrome present in James at birth might properly be characterised as moderate. Dr McPhee If it is assumed that there were six minutes of CPR, I would consider this to be highly unusual and likely to have imposed a degree of circulatory stress. Also, the clinical record refers to ongoing instability once intubated and ventilated with episodes of desaturation and the need for hand ventilation. In my view, it was not until the morphine was administered at 10.30 (and surfactant was given soon after) that James was stabilised. James recorded an APGAR score for heart rate of 1 at five minutes, meaning he had a heart rate of under 100 beats per minute. If he was receiving CPR at this time, then this implies that the heart rate was in fact < 60 beats per minute. If six minutes of CPR were actually employed, I would characterise the degree of cardiorespiratory instability to be moderate. If only one minute of CPR was employed, I would characterise the degree of cardiorespiratory instability to be mild. 10. Based on your review of the clinical records for James Coffey and Kathleen Coffey, please describe the manner in which James Coffey was resuscitated and ventilated at or soon after his birth and how that affected any cardiorespiratory instability he was suffering from. A/Prof Evans Please see answer to question 9 above. Because of the ambiguity in the clinical record it is difficult to be definitive about the manner in which James was resuscitated and ventilated. However, on the whole, I think the hospital did quite well. If one looks at the APGAR scores, they are really pretty good and consistent with expected range for one and five minute Apgars for babies born at this gestation in a tertiary setting. The hospital achieved independent breathing by seven minutes of age, which is pretty good. Dr McPhee The ambiguity in the clinical record makes the question difficult to answer, however I would not be critical of what the hospital did. However, if Dr Preddy had been present, I expect that things would have gone more smoothly. Bag and mask ventilation requires skill, and I think it would be more likely that Dr Preddy would have been better at bag and mask ventilation and James would have been stabilised earlier perhaps without the need for CPR. 11. Would: (ii) having Dr Preddy present at the point of delivery at 08.10 hours rather than at 08.25 hours have lessened James Coffey's: a. cardiorespiratory instability; and b. intraventricular haemorrhage(s). A/Prof Evans Again, this is really a question about resuscitation and not cardiorespiratory instability. However, prospectively it would be desirable to have had Dr Preddy present, as it is always desirable to have the most skilled practitioners on hand. However, retrospectively, it does not appear it would have made much of a difference and that is certainly the conclusion Dr Preddy came to in his own statement. Dr McPhee The answer is yes to (ii)a and (ii)b. (iii) immediate intubation and treatment with surfactant after delivery have lessened James Coffey's: a. cardiorespiratory instability; and b. intraventricular haemorrhage(s). A/Prof Evans First addressing the question of immediate intubation, in my view, James' presentation did not warrant immediate intubation. A review within my hospital showed that the average time to perform an intubation in the 85% of babies born at 27 weeks who were intubated within the first hour, was 23 minutes with a range of 1 to 51 minutes. Over a third of those were intubated later than Dr Preddy's intubation of James at 25-27 minutes. On average, it takes an experienced operator 45 seconds to achieve intubation and can take longer in very premature babies. In my view, bag and mask to achieve ventilation is desirable before making any determination as to whether intubation is required. In respect of surfactant, early surfactant is given because of respiratory benefits, not because of evidence of improved neurological outcome. In 2004, it was common practice not to immediately administer surfactant. There is no evidence that immediate intubation and treatment with surfactant reduce the risk of grade 1 or 2 IVH. Dr McPhee In my view, James' presentation did not warrant immediate intubation. In my view, if Dr Preddy had been available earlier, I believe intubation would have been achieved earlier. In point of fact, neither A/Prof Evans nor I are critical of the conduct of the Wagga Wagga Hospital, but rather are attempting to compare what was done with what would occur at a tertiary centre. It is essential to first stabilise with a bag and mask before moving to the question of whether intubation is required. An available option would have been to maintain ventilation initially until heart rate and saturation improved. The question of intubation has to be balanced against the risks of intubation, such as bradycardia and desaturation: it is known that some babies can deteriorate significantly during episodes of attempted endotracheal intubation. At the present time, the administration of surfactant typically occurs at the time of intubation. I acknowledge however that in 2004, the practice was not to administer surfactant until imaging in the form of a chest x-ray had been obtained and reviewed. 12. What, if any, difference would it have made to James Coffey's developmental outcome had: (ii) Dr Preddy been present at the point of delivery at 08.10 hours rather than at 08.25 hours; A/Prof Evans None. Dr McPhee Minor. (iii) he been immediately intubated and treated with surfactant after delivery. A/Prof Evans No evidence on which to base an opinion. Dr McPhee I agree there is limited evidence on which to base an opinion regarding this issue. 13. What difference, if any, would it have made to James Coffey's; a. intraventricular haemorrhage(s); b. neurodevelopmental outcome; had Kathleen Coffey been treated with a repeat dose of corticosteroids after the course given on 4-5 January 2004 (including on 14 January 2004 when she attended the Antenatal Clinic as set out in the Joint Assumptions). A/Prof Evans Administration of a first single course of corticosteroids is important to reduce the risk of IVH but there is no evidence that repeat administration has any effect on incidence of IVH or disability. There is [sic] very good data in the form of large randomised trials, which provides evidence that repeat administration has no effect. Dr McPhee I agree with A/Prof Evans. The available evidence (Cochrane review) suggests little benefit, though there is limited information regarding this issue in extreme prematurity (< 29 weeks)."
At the point at which A/Prof Evans and Dr McPhee were about to give evidence in joint session, the following interchange between me and Mr Bartley SC occurred: "HIS HONOUR: 1253. Close to the very bottom, Dr McPhee agrees with Professor Evans that James' presentation did not warrant immediate intubation, so there seems to be agreement about that. Then Dr McPhee goes on to say, 'In point of fact, neither Professor Evans nor I are critical of the conduct of the Wagga Hospital, but rather attempting to compare what was done with what would occur at the tertiary centre.' Is that a position that you embrace in this case? BARTLEY: Your Honour, that was going to be one of the more specific areas. My instructions are that at the time that certainly Dr McPhee made that statement, and your Honour will see that it is to some extent reflected on the previous page where Dr McPhee said, 'I would not be critical of [what] the hospital did.' Those opinions were based on his state of knowledge at that time about the events starting at 6.00am on the morning of 19 January. He made some assumptions, your Honour, which have in fact been, in respectful submission, refuted by the evidence. HIS HONOUR: What I need to know is, the case that the plaintiff presents, in the events that have occurred, the significant alleged mistake made by the hospital was the failure to anticipate the need to transfer [to Canberra], rather than any mistakes it made in the management of the pregnancy and the delivery once it occurred at Wagga. In other words, does the plaintiff embrace the proposition expounded by Dr McPhee that if you just take Wagga Base Hospital alone, and accept the fact that the child was born there, the conduct of the hospital in managing the way in which that happened can't be criticised? BARTLEY: No, your Honour, for two reasons. Dr McPhee, I think, would now wish to express the view that the nurses did what they could, confronted with the situation that arose, but that the situation that arose was indicative of some degree of systemic failure, that is being born in the maternity suite, born without the resuscitation trolley being present, perhaps a period when the mother and the newly born were unattended. That is, to put it into that context, in addition Dr McPhee would wish to qualify that opinion based on the additional material that he has. HIS HONOUR: That is a very critical area. If you want to explore that because you say information has come to light since the joint report, then I would personally be interested in it. Is there objection to that?"
The cross-examination of A/Prof Evans and Dr McPhee proceeded for a while without to my perception any attempt being made to suggest that the hospital made a mistake. So much is probably apparent from my comments at the time in the course of the following exchange: "HIS HONOUR: Mr Bartley, I don't want to stop you, but you would appreciate that your case is, and I am interested to understand the ways in which either of these doctors is able to discuss your contentions, that the hospital made a mistake, to use the vernacular. Your claims are in negligence. These theoretical discussions about progress from placental support to ventilating in the real world - if either of these doctors is able to support your contentions about what went wrong, what should have been done that wasn't done, I would like hear a bit more about that, if that's all right. BARTLEY: Your Honour, the intention of this evidence is to demonstrate the more favourable outcomes in general, but also for this plaintiff, had he been born in a tertiary centre rather than at Wagga? HIS HONOUR: Well hold on, we were talking about the evidence that Mr Downing objected to about the ventilation trolley, and all the rest of it; can we stick with Wagga at the moment, and I asked these questions at the start of the day, what is said from a neonatal specialty that wasn't to a proper standard in Wagga at the time? If we think of referring, or might have been a better outcome in Canberra, what is the allegation that went wrong there, if there is one? You can ask some questions if you think you want to explore that, but I would like to know. BARTLEY: I understand, that your Honour."
The following passage of evidence then ensued: "BARTLEY: Would you be critical of any delay in the immediate ventilation of this baby, if it didn't commence at the point of birth? WITNESS MCPHEE: Well, soon after birth. As I said already, I think that is the crux thing in the resuscitation of newborn. HIS HONOUR: Could I just ask a different question? BARTLEY: Yes, your Honour. HIS HONOUR: It may be the question you intended to ask. Having regard to the information you have available to you from the notes at the time, are you critical of the timing or extent of the delivery of any form of resuscitation at this hospital on the 19th? WITNESS MCPHEE: There is this dilemma about, there's two entries there, one that says that there was a minute's worth of compressions between five to six minutes, but elsewhere that is a comment that CPR was provided from birth for the first six minutes. So compressions for six minutes is a lot different than a brief period of over a minute or so. So I can only criticise on which of those things I interpret. But am I critical of six minutes of compressions? That would indicate to me that the heart rate must have been under 60 for that time. I would like to think that the first two minutes people would have been concentrating on ventilation and not doing compressions. HIS HONOUR: Is that because compression increases venous pressure with the risk of intraventricular haemorrhage? WITNESS MCPHEE: It certainly increases venous pressures, and that, in my mind, plausibly can contribute to haemorrhage or can contribute to injury to the germinal matrix, yes. HIS HONOUR: Is there a cascading level of intervention modalities, start with ventilation, move to compression, or is it all dependent upon the presentation where one might supersede the other? WITNESS MCPHEE: Always start with ventilation, always start with ventilation, and then if that's not achieving oxygenation and getting the heart rate up, then you proceed to compressions once the heart rate is under 60. HIS HONOUR: Again, forgive me if this is a silly question, is that then followed as a third possibility with intubation? WITNESS MCPHEE: Yes, you can intubate, and that is certainly a step along the pathway, and then beyond that, we will start to give medications that would help to kick start the heart. HIS HONOUR: Adrenaline? WITNESS MCPHEE: Adrenaline."
At this point, Mr Bartley proceeded to ask a series of questions based upon assumptions that were never agreed between the parties. I allowed these questions over objection as a matter of convenience, with a view to determining their admissibility later.
In my assessment of the evidence that followed, despite this exchange, with one exception, no attempt was made by Mr Bartley to suggest to either A/Prof Evans or Dr McPhee that the Wagga Wagga Base Hospital in fact failed to meet an appropriate standard of care on 19 January 2004. That material is as follows: "BARTLEY: Just one last area, just going back to the events immediately post birth, I'd like you to assume two different scenarios. The first scenario is this, born in the ward, no resuscitation trolley present, cardiac massage when picked up by the midwife and then taken to the special care nursery where ventilation started. Assuming that on that scenario ventilation did not start immediately after the point of birth, would that degree of delay in your opinion increase the risk of an intraventricular haemorrhage? WITNESS MCPHEE: I think the inappropriateness of the compressions would be my greatest concern. BARTLEY: And then if the second scenario is that the baby had been born for three or four minutes before the same scenario applied, would that three or four minutes then allow you to express a view about the increased risk of intraventricular haemorrhage flowing from that delay? WITNESS MCPHEE: It may have slightly increased it; I wouldn't say it's a dramatic increase, particularly given, and as has come up in our written evidence, the initial blood gas was really pretty impressive impressively comfortable arguing against a significant preceding hypoxic ischaemic process."
Three things can be said about these questions and answers. First, the assumptions have not otherwise been proved and are not supported by the evidence. Secondly, they do not accord with the Agreed Facts. Thirdly, they elicit a response from Dr McPhee directed to the elevated risk of intraventricular haemorrhage, and do not deal with or elucidate the issue of breach of duty on 19 January 2004 or whether the hospital failed to conform to accepted practice on that day.
As the joint report of A/Prof Evans and Dr McPhee makes clear, neither practitioner was critical of the conduct of the Wagga Wagga Base Hospital with respect to James' delivery. Cross-examination of these doctors with a view to extracting answers or concessions that limited or restricted the force of their joint report were either directed to different issues or were not successful. It becomes in such circumstances difficult to make sense of a submission that the hospital breached its duty concerning the events of 19 January 2004 in any of the ways contended for by Ms Coffey. I remain in any event of the view that the hospital's performance on 19 January 2004 is properly to be assessed by reference to the evidence of the experts in relation to s 5O of the Act.

The Wagga Wagga Base Hospital's submissions

The proceedings were commenced by statement of claim filed 31 March 2011, some 7 years and 2 months after the events giving rise to the cause of action. The hospital has pleaded that the proceedings are not maintainable as they were commenced more than three years after the date upon which the cause of action was discoverable pursuant to section 50C and 50D of the Limitation Act.
James Coffey's reply filed 7 November 2018 contends that the action was not discoverable pursuant to ss 50C and 50D until 21 March 2011. James Coffey further pleads that his tutor Ms Coffey was at all material times up to and before 31 March 2011 under a disability pursuant to s 50F of the Limitation Act.
That Act provides relevantly as follows: Division 6 - Personal injury actions 50A Application of Division-kinds of causes of action (1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002). (3) … 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the '3 year post discoverability limitation period', which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the '12 year long-stop limitation period', which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. (2) … 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is 'discoverable' by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person 'ought to know' of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. 50F Effect of disability on limitation period (1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is 'under a disability' while the person: (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. (3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person. (4) In this section: 'capable parent or guardian' of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)) 'guardian' of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor. 'incapacitated person' means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (a) any disease or any impairment of his or her physical or mental condition, or (b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or (c) war or warlike operations or circumstances arising out of war or operations. 'protected person' means: (a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or (b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009. (5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies."
In the present case, Ms Coffey saw her solicitor Mr Potter within a couple of months of James' birth, on 3 March 2004. She wished to investigate the cause of the damage that her son had sustained. She provided a statement to Mr Potter and continued to talk to her solicitor regarding the merits of a claim against the hospital. That contact continued in each of the years following 2004.
Ms Coffey was told by Mr Potter that there was a time limit for bringing the claim, although she was not sure, at the trial, whether she was told of a three year limitation period. Mr Potter was aware at the first conference that, subject to any discoverability issues, time would expire in January 2007. He told Ms Coffey that it would be necessary to obtain expert opinion as to breach and causation.
Mr Ingram of counsel was briefed by 8 March 2005. An unfavourable report was obtained from Professor Colditz on 10 October 2005. A similarly unfavourable report was obtained from Dr Barraclough on 4 July 2006. Mr Potter concluded in the circumstances that there was no point pursuing the matter. He said that he believed he would have told Ms Coffey that in conference with her in July 2006.
There is no evidence of any activity on the matter, by either Ms Coffey or her solicitor, after July 2006 until the events of 18 May 2010. On that day, according to Mr Potter, but denied by Ms Coffey, she instructed him to close the file. Those instructions were given by telephone. The file was closed and archived that day. Mr Potter said he would not have closed the file without instructions, and he would have discussed the merits of the case with Ms Coffey in May 2010 before obtaining those instructions.
Mr Potter recommenced the search for an expert on 15 February 2011 when requested to do so by Ms Coffey, a request that was motivated, as he perceived it, by the difficulty she was having looking after and managing James, and the distress that that was causing her.
On 21 March 2011, Mr Potter conferred with Professor Fliegner, an obstetrician in Melbourne, and formed the view that there was an arguable case. He filed a statement of claim on 31 March 2011.
Resolution of the disagreement between Mr Potter and Ms Coffey concerning whether she instructed him to close the file requires reference to their evidence.
Ms Coffey gave the following evidence: "Q. Who asked you to prepare the statement? A. Who asked me to give a statement? I think it was John Potter. Q. You mean John Potter? A. Yeah. Q. Your solicitor in these proceedings? A. Yes. Q. That was because I take it you went to see Mr Potter after James' birth? A. Yes. Q. And you went there for the purpose of exploring whether there was a case to be made against the hospital? A. Yes. Q. And he gave you advice about whether you could bring a claim against the hospital? A. Not at first. Q. You provided a statement for him at first, did you, a couple of months after the birth? A. Yes. Q. And then subsequently did you speak to Mr Potter about the merits of bringing a claim against the hospital? BARTLEY: I object to that your Honour. Just the term the merits your Honour. Feeds into s 50C and the witness wouldn't know what it means. HIS HONOUR: Well that's a separate issue but if the question is directed to asking her whether or not she might have had cause to have a claim against the hospital was discussed that would the same thing wouldn't it? BARTLEY: If that's HIS HONOUR: All right if it's only a question that might be right, I don't think it's an objection but it might be of prudent course to ask the question in lay terms rather than what might otherwise be slightly technical terms. CHENEY: Yes. Q. Did you at some point after the time that you provided the statement to Mr Potter discuss with him what his views were about whether you could bring a claim against the hospital in connection with James' birth? A. I really don't remember. Q. Well it must follow mustn't it Ms Coffey that at some point after giving Mr Potter the statement you and he discussed what he might do with that statement? BARTLEY: I object to that your Honour. That's the must follow is not answerable. HIS HONOUR: Well I don't think it's objectionable Mr Bartley. I think it's being put as BARTLEY: It did happen your Honour rather than it must follow. HIS HONOUR: It's not necessarily an inevitability Mr Cheney, that's the objection. We want to know whether it did or it didn't, not whether or not it was inevitable or not. CHENEY Q. May we get some better precision on the timing of when it was you gave the statement to Mr Potter; it was a couple of months after James' birth? A. Yes. Q. And you stayed in touch with Mr Potter after that time? A. Yes. Q. Because you wanted to see whether you had a case to be brought against the hospital? A. No. Q. You stayed in touch with Mr Potter for other reasons did you? A. They weren't sure if they had a case. Q. Who's they? A. Commins and Hendriks. Q. And in order to determine whether to bring a claim they must have continued to talk to you? A. Yes. Q. About what happened? A. Yes. Q. And can you remember when it was that you were discussing those matters with Commins Hendriks Mr Potter? A. I don't really remember dates and times. Q. Well years perhaps? Can you remember the years? A. No. Q. Well we know don't we that you commenced the proceedings, these proceedings, in March 2011? A. Yes. Q. So sometime between a couple of months after January 2004 and March 2011 you must have been speaking with Mr Potter about whether to bring the claim against the hospital? A. Yes. Q. And may we take it that those discussions occurred in each of the years following 2004 leading up to the date? A. Yes. Q. That you continued to be his client? A. Yes. Q. And did Mr Potter advise you that it would be necessary to obtain expert medical opinion about the handling of James' birth? A. Yes. Q. And can you recall who it was that Mr Potter recommended you obtain a report from? A. No. Q. Was it Professor Fliegner in Adelaide? A. Sounds about right, yep. Q. I'm sorry, in Melbourne? A. Yep. Q. At some point in your discussions with Mr Potter about the prospect of bringing these proceedings did he tell you that there was a time limit within which it would be necessary to bring the claim? A. Yes I think so. Q. And he would have told you that it would be necessary to bring it within three years of James' delivery? A. Not 100% sure. Q. Do you recall at any point being told by Mr Potter that it would be necessary to commence proceedings by January 2007? A. I don't remember."
Mr Potter swore an affidavit on 7 November 2018 and was cross-examined upon it at some length, as the following portion of the transcript reveals: "Q. Mr Potter, you've attempted in your affidavit to include anything that you regard as relevant to explaining why these proceedings were not commenced prior to 31 March 2011? A. Including other things, yes. Q. Including other things? A. The affidavit seeks to set out a brief history of the matter prior to the commencement of proceedings. Q. But part of your objective was to explain why it was that proceedings were not commenced until 31 March 2011? A. That's correct, yes. Q. So we know you've been practising in personal injury and medical negligence law for many years. How many years? A. Thirty four. Q. And in that time the majority of your work has been on behalf of plaintiffs, would that be fair? A. Yes. Q. And you are, in your practice of personal injuries law and medical negligence law, I take it throughout your career you've been conscious of limitation periods? A. Yes. Q. And was it your practice in 2004 to mark a file somewhere prominently to record the date of the injury or the accident and the date three years from that date? A. Yes, it was. Q. Did you do so in respect of Mrs Coffey's matter? A. Yes, I would have. Q. You, I gather, are frequently, if not or at least from time to time consulted by prospective plaintiffs who have left things quite late to come and see you? A. Yes. Q. With the result that you've got to kick proceedings off in a hurry? A. Yes. Q. And that reflects, I take it, a concern, or your understanding of the implications of limitation periods? A. Yes. Q. And that was not the case here, though, was it, in that Mrs Coffey came to see you quite early in the period? A. That's correct. Q. You first saw her on 3 March 2004, as you tell us? A. Yes. Q. At a time when James, her son, was still in the neonatal intensive care unit at the Canberra Hospital? A. That's correct. Q. That first conference that you tell us about in paragraph 2 of your affidavit, did that occur in the offices of Commins Hendriks? A. Yes. Q. In Wagga? A. Yes. Q. Do you recall the circumstances that saw Mrs Coffey come to see you, as opposed to any other firm of solicitors? A. I don't know the precise circumstances, however, I had acted for Mr Coffey's parents for many years. Q. Did Mrs Coffey tell you whether, prior to coming to see you on 3 March 2004, she had sought any legal advice from anywhere else? A. No, she did not. Q. Do you know now whether she did? A. No, I do not. Q. She would have told you, I gather, that James had been born on 19 January 2004, during this March 2004 conference? A. Yes, I believe she told me that. Q. And I take it you would have quite quickly worked out that the limitation period, subject to any discoverability issues, could expire as early as January 2007? A. Correct. Q. And you were aware I take it that you needed to obtain a favourable report about breach and causation? A. Yes. Q. You had no difficulty accepting that James was damaged in March 2004 based on what Ms Coffey had told you? A. Based on what Ms Coffey had told me that would be correct but I had no material to support that. Q. But did you tell Ms Coffey as you recall it on 3 March 2004 that it would be necessary to get expert opinion on whether the hospital was at fault and whether that fault caused James to be injured? A. Yes. Q. And can you recall what advice you gave her during the first conference in March 2004 about whether she could bring a case against the hospital alleging that it negligently managed her pregnancy and the delivery and early care of James? A. I would have told her that whether she had any entitlement to bring a case would depend on expert evidence to support what she had told me or what she believed may have occurred. Q. One outcome of the conference I gather is that you decided you should ask the hospital for a copy of the medical records? A. Correct. Q. And that subsequently happened? A. Correct. Q. And then the next conference that you deposed to in your affidavit was one occurring on 18 November 2004? A. Correct. Q. Conducted by an employed solicitor at the firm, Julianne Carrol? A. Correct. Q. Did you participate at all in that conference? A. No I did not. Q. May we take it that what you know about that conference is what's recorded in Ms Carrol's file note? A. That would be correct at this point. Ms Carrol may well have spoken to me about matters after that conference but if she did I don't recall it. Q. In that eight month period between your first conference with Ms Coffey and the conference with Carrol, with Julianne Carrol were there phone calls between Ms Coffey and you in which the prospects of a claim against the hospital were discussed? A. Not that I can recall, no. Q. If a telephone call did take place between you and Ms Coffey in which advice was given would you expect it to be recorded in a file note? A. Generally yes, not always at that point. We have a different system these days but generally yes. Q. In paragraph 5 you tell us that you deliver a brief to counsel on 8 March 2005? A. Yes. Q. Was that counsel Mr Ingram? A. Yes. Q. And a week later you had a conference with Ms Coffey and Mr Ingram is that right? A. Correct. Q. Was that conference conducted in Wagga or in Sydney do you recall? A. I believe it was conducted in Wagga. Q. Do you have any independent recollection of that conference? A. No I do not. Q. But you'd agree that your file note that you annex at page 14 annexure D of your affidavit records that the conference was with Mr Ingram with the plaintiff and mother, do you see that? A. Correct. Q. The reference to mother is a reference to Ms Coffey's mother? A. That's correct. Q. Lyn Reid? A. Correct. Q. Did they, that is Ms Reid and Ms Coffey, participate in the conference with you and Mr Ingram together? A. I believe not; generally we would not do that. Q. Do you agree the note doesn't suggest that either left the room while the other was conferring? A. I agree that the note does not reflect that but routinely we would not do that. Q. You or Mr Ingram I suggest asked questions of Ms Coffey about the time at the Wagga Hospital in January 2004 in that conference? A. I have no independent recollection of that but I believe he would have asked her some questions in relation to the clinical records. That was the purpose of the conference. Q. Can you see on the file note on page 14 of the affidavit there's in three places a circled asterisk in the left hand margin? A. Correct. Q. To the left of the top most asterisks is the word 'records' is it? A. Correct. Q. And that is you reminding yourself by way of the asterisk that you need to chase the records is that right? A. I believe so. Q. Can you read what the first entry is beside the first asterisk? A. That entry reads 'Dr Knowles, (Kooringal Road Surgery) saw him week five to 13.' Q. Do you know whether Dr Knowles is an obstetrician or GP? A. The Kooringal Road Surgery is a practice of general practitioners so I believe he would be a general practitioner. Q. That's Kooringal Road Wagga? A. Correct. Q. And there's a reference to having also seen Dr Smee? A. Correct. Q. Is that regarding clotting, is that what that word? A. Correct. Q. Then a reference to 'then to clinic Wagga Wagga Base Hospital'? A. Yes. Q. And then a reference, 'Admitted to Wagga Wagga Base Hospital one week'? A. Yes. Q. Is that a shorthand collection of the events that occurred in late 2003 and in the period 4 to 10 January 2004? A. I believe it is yes. Q. And you see you've asterisked Canberra notes and Westmead notes? A. Correct. Q. Can you recall why you would have had an interest in Westmead notes in March 2005? A. I have no independent recollection of that now, no. Q. The note does not record any advice being given by you or Mr Ingram to the plaintiff or her mother? A. Correct. Q. May we take it from your earlier answers that you are unable to recall whether any advice was proffered during that? A. Correct. Q. The entries at the bottom of the page numbered 1 and 2, can you help us with whether they reflect your musings about what might be in issue or whether they reflect something said by Ms Coffey? A. I believe that they reflect something said by Ms Coffey. Q. You would accept would you not sir accepting that you can't recall what if any advice was given in this conference you'd accept that those issues having been raised by Ms Coffey you would have hatched a plan for investigating those things? A. I don't know whether that is the expression that I would use. That information would have prompted me to take some further action. Q. By way of exploring the topics with experts? A. Correct. Q. May we take it that you were looking for expert support for your client's case at least from 14 March 2005? A. I think as at 14 March 2005 I was still trying to identify whether there were issues that warranted investigation. Q. Can you recall when it was after March 2005 that you next saw Ms Coffey? … Q. Have you got an independent recollection Mr Potter? A. No I don't have an independent recollecting of when I next saw her, no. Q. Would you have had a system at the time of a regular catch up with clients such as Ms Coffey? A. No. Q. Would you routinely at the conclusion of any conference such as the one conducted on 14 March 2005 fix a date for the next one? A. No. Q. And you're not able to help us with what practical pursuits occurred after 14 March 2005 as a consequence of the discussion on 14 March 2005? A. Not other than those that are set out in the affidavit. Q. You commissioned the report of Professor Colditz in about September, October 2005? A. Correct. Q. You asked for it in September and he delivered it in October? A. Correct. Q. And did you send a copy of it, that is the Colditz report that we see at page 15 of the bundle, did you send a copy of that to Ms Coffey? A. I don't believe I did, no. Q. But nevertheless you brought her in or had her come into your offices to discuss it that's right? A. Correct. Q. Can you recall how it was that you determined that you should seek a report from Professor Colditz? A. Professor Colditz is an expert witness that I'd used in other matters not dissimilar to what had occurred in relation to this child. Q. Including in respect of alleged IVH's? A. Not specifically I don't recall the previous cases in which I'd used Professor Colditz related to generally cerebral palsy type cases. Q. Because at one point I think there was a query either by Ms Coffey or yourself as to whether James had indeed suffered cerebral palsy, is that right? A. I don't recall that. Q. Is the note made, the notes that commence on page 1 of the annexures Mr Potter, the very first conference you had, you see on page 3 about the middle of the page you've written the words 'James may have cerebral palsy'? A. Yes. Q. Is that Ms Coffey's speculation that you've recorded do you know? A. I believe so. Q. You received the Colditz report as you've told us and asked to confer with Ms Coffey? A. Correct. Q. And that conference is recorded, is it not, on page 23 of your affidavit, in the file note? A. That's correct. Q. And, again, you see it records that you saw Mrs Kathleen or that you saw Kathleen and Mrs Reid in conference? A. Correct. Q. And is it possible you saw both of them together on that occasion? A. It's possible. I can't recall. Q. You would accept it's an undesirable thing to be doing if it ultimately is to turn out that the two of them are to be lay witnesses in the proceedings? A. I take great care to ensure that if the circumstances of the factual circumstances of what occurred are being discussed, we always see witnesses separately. There are occasions when things like reports are discussed that it may be appropriate to see people together. Mrs Coffey was having great difficulty coping with life generally at that time and she required a deal of support from her mother. I think her mother attended most conferences with her. If there were issues discussed about factual events, I would have always seen them separately. Q. By the way, when you saw Mrs Coffey on the first occasion, in March of 2004, she attended on her own; is that right? A. I can't recall whether she attended on her own or not, although it appears that I did take a note in relation to her mother's details at that conference. Q. From which you'd infer the mother was not there; is that right? A. No, I can't infer that at all. Q. Because in paragraph 2 of your affidavit you certainly suggest, don't you, that the conference was with Kathleen? A. Yes, I do. Q. You make no reference to anyone else being present? A. That's correct. Q. And you had no difficulties understanding the instructions that were coming from Mrs Coffey on that first attendance on her that you recorded in some ten pages of conference notes, did you? A. I don't understand that question. Q. Well, she was able to articulate to you the facts as she understood them? A. She gave me some information responsive to some questions I asked her, yes. Q. She was able to understand your question and respond to it? A. I believe she was, yes. Q. She was perfectly lucid, wasn't she, Mr Potter? A. I can't say that. Q. Well, she was able to give you sufficient information that it took some 11 pages of notes on your part to record? A. Correct. She was able to give me a history. Q. And this was a conference happening while her child is still in the Canberra Neonatal Intensive Care Unit; correct? A. Correct. Q. So she is sufficiently concerned about what had happened to be able to come to you in March of 2004 and articulate A. At that very first conference she was very concerned about what had occurred at the hospital, yes. Q. If it was the case that Mrs Coffey's mother, Lynette Reid, was present at the first conference, or indeed at any conferences, would that fact be recorded in your invoicing system? A. No. Q. You convened the conference with Kathleen to discuss the Colditz report on 15 November 2005, as recorded on page 23 of the bundle? A. That's correct. Q. And you recorded or at least you recorded in the notes that, 'Colditz was not supportive on liability or causation.' A. Correct. Q. And did you tell Mrs Coffey that? A. Yes. Q. Do you see a couple of lines above that you've got the word, 'Reid in conference,' immediately below the date, on 15/11/05? You've got, 'Reid in conference: [1 hour]'? A. Yes. Q. Then underneath that there's something, 'Re' 'Re James,' is it? A. 'Re James.' Q. You must have discussed, I gather, on 15 November 2005, what should be done in light of the fact that Professor Colditz was unsupportive? A. Yes. Q. And one of the things you must have discussed, I gather, is the potential for there to be other medico legal experts that might assist? A. Yes. Q. And you discussed particular medico legal experts who might assist? A. Yes. Q. One of those was a Dr John Pardey? A. Correct. Q. Is he an obstetrician that you've previously obtained in matters? A. He is. Q. And do you see the words, 'Suggest Dr Pardey,' about the middle of the page? A. Correct. Q. Is that recording to your suggestion, that you see Dr Pardey? A. I believe so, yes. Q. Then you have an asterisk, question mark, something, 'doctor in Canberra (lady).' Can you read that line, sir? A. Yes, I can. Q. To the right of the question mark, what's the entry? … Q. Query, something, 'doctor in Canberra (lady).' A. I can't be sure what that means, or what that says. Q. Then the line below it reads, '? Dr Pardey in person.' A. Yes. Q. May we take it you were contemplating conferring with Dr Pardey in person about it? A. Correct. Q. Or dispatching Mrs Coffey to speak to him? A. I don't recall. It may have been either or both of those. Q. And was contact made with Dr Pardey about this case? A. I believe the answer is yes, but I have no record of it. Q. How can it be, sir, that you would not have a record of making contact with a medico legal expert in connection with a client's matter? A. Because when I made the inquiry, Dr Pardey had been suffering ill health about that time and had withdrawn from - he had actually withdrawn from practice at about that time. He was no longer doing medico legal work, so it couldn't be pursued. Q. And the lady doctor in Canberra that the note refers to, can you recall making contact with any female doctor? A. I can't, no. I don't I'm not sure what the meaning of that note is. Q. Did you have a female expert in Canberra that you had used in other matters for the firm? A. No. Q. Do you see the reference in the second last bullet point, the second last asterisk, 'Suggest phone review tomorrow.' A. Yes. Q. Can you help us with what that phone review is contemplating? A. My best recollection would be that I would make some inquiries with Dr Pardey and get back to Mrs Coffey the following day to see whether he would assist. Q. So in what respect is a review involved in that plan? A. I would review that position with her tomorrow. Q. And part of your plan, I gather, was to send a copy of the clinical notes to Kathleen? A. That's what my note records, yes. Q. May we take it that prior to 15 November 2005 she did not have a copy of the clinical notes? A. I had not sent her a copy of the clinical notes prior to that date, that's what that note suggests to me. Q. Did you discuss with Mr Ingram the implications of the Colditz report? A. I don't recall. Q. Because by this time that is, by November 2005 he had been briefed for some eight months, hadn't he? A. Correct. Q. It would be, you would expect, your usual practice to deliver the melancholy news that an expert report was unfavourable and what do we do next? A. Not always, no. Q. May it be that the 'doctor in Canberra (lady)' was somebody that Mr Ingram had mentioned to you as a possible assist? A. I don't recall, but I don't believe so. Q. Do you have any record of having sent the Colditz report to Mr Ingram? A. No. Q. Is that an answer you give having looked at the file for that purpose A. Yes. Q. …or from recollection? A. No, I reviewed the file for the purpose of preparing the affidavit. Q. Can you recall, after the conferences on 15 November 2005, when the next occasion was that you conferred with Mrs Coffey about her case? A. I can't recall without referring to the notes. Q. Would you please do so, sir. Does it follow from your answer that unless it's in the notes you can't help? A. Yes. Q. Given that you told us that the reference to suggesting a phone review tomorrow on page 23 records your intention to speak to Mrs Coffey after you have made inquiries of Dr Pardey, may we take it that you would have phoned her after you'd contacted Pardey, whenever that was? A. I believe I would have, yes. Q. You must have, I gather, whenever it was, discussed with Mrs Coffey what the next move is? A. I may have. I have no record of it, but I may have informed her that I would look for somebody else to review the matter. Q. Because all of the time that this is happening, you're conscious of the fact that the injury was suffered in January of 2004; correct? A. That's correct, yes. Q. And you're conscious of the fact that, on one view of the world, January 2007 might be the deadline? A. Correct. Q. You next refer in your affidavit to the report of Dr Barraclough. A. Yes. Q. I think you tell us in paragraph 10 that you retained him in mid-June 2006. A. Correct. Q. That was some seven months after you had the conference with Mrs Coffey in November of 2005? A. Correct. Q. Can you help us with what took place over that seven month period? A. Not from my records, I can't, no. Q. May we take it that, having reviewed the file last night for the purpose of swearing this affidavit, you're unable to find any record of any activity on the file in that seven month period relating to the procurement of expert evidence? A. That's correct. Q. And no record of any advice proffered to Mrs Coffey? A. Correct. Q. Did you find any record of any activity on the file in that seven month period, sir? HIS HONOUR: Just out of interest, Mr Cheney, does inactivity within the limitation period assume any relevance, given that the significant date is the expiration of the limitation period? I mean it's clear enough on the material that no favourable expert opinion was obtained within the period, I just wanted CHENEY: I have to confess your Honour HIS HONOUR: Certainly by the time Dr Fliegner's report arrives with a favourable content it was some years after the expiration of the limitation period in 2007. I just you maybe have more understanding of it than me but anterior delay but within the limitation period seems to be of little relevance, for example we often see proceedings commenced on the very last day but no criticism arises from that fact. Anyway, if I've interrupted a forensic line that has significance I apologise. Wouldn't the most significant issue be what happened between January 2007 and the arrival of Dr Fliegner on CHENEY: You would think so but no on the authorities your Honour. The relevant date is then when the action was discoverable and that is not answered solely by looking at when the report was first received, so the fact that Fliegner was received in HIS HONOUR: All right, well if it's discoverable sure. Well that raises the question why Dr Fliegner didn't turn up earlier I suppose. CHENEY: Which is where we're sort of headed your Honour. Q. You Mr Potter are unable to recall any activity, any relevant activity between November 2005 and the commissioning of the Barraclough Report? A. I'm unable to recall that activity yes. Q. If there were such activity you would expect it to be recorded in a file note or in some form in your file? A. Generally yes. Q. By July 2006 when you received the Barraclough report to which you refer in paragraph 11 and which you annexe at page 24 you would have been becoming increasingly anxious I gather about the need to find supportive expert evidence pronto? A. Yes. Q. What did you recommend to Ms Coffey should be done after you had read the Barraclough report, do you recall? A. I don't recall specifically other than I formed the view that Dr Barraclough's report was not sufficient to recommend the commencement of proceedings. Q. And you say as much in paragraph 11? A. Yes. Q. But then what's not said in your affidavit with respect sir is what if anything transpired in the nearly four year period between receipt of the Barraclough report and Ms Coffey instructing you to close your file sir? A. Yes. Q. When preparing your affidavit I think you told us you attempting to bring forward everything that you could advance on the issue of what activities there were A. I had Q. Can I just finish the question sir? A. Sure. Q. On the activities that you undertook to pursue Ms Coffey's claim? A. I had access to some material. This file has many volumes and in between 2004 and 2007 I did not have the electronic system that I have now. The physical files are still in going back to that time are still in Wagga and I've relied on staff to provide me with relevant information yesterday for the purpose of doing the affidavit. I do not have the physical file here. I have not physically reviewed it myself. Q. May we take it from that last answer that if you had that opportunity you may well turn up material bearing upon or occurring in the period July 2006 to May 2010? A. There may be, there may have been other things done but not in relation to obtaining expert reports. Q. Well how could there possibly be a higher priority in that circumstance than obtaining expert reports sir? What other things would be done? A. Without looking at the file I can't answer that question. Q. It was a completely redundant case unless you had the expert evidence to warrant commencing it? A. Correct. Q. So you wouldn't be incurring costs pursuing other activities until you'd nutted out whether you had a case wouldn't you? A. No I don't agree with that. Q. Well may we take it that you're unable to assist with what if anything occurred in the four year period between what you describe in paragraph 11 and what you describe in paragraph 12? A. Sorry could you repeat that question? Q. May we take it that you are unable to assist with what transpired on the client's file in the four year period between July 2006 and May 2010 that you refer to in paragraphs 11 and 12? BARTLEY: Your Honour I object to that whatever my friend may take it to be for example paragraph 10 of the paragraph 12 of the affidavit refers to one area of activity. CHENEY: That was the end date of the period I put. HIS HONOUR: I don't think the question's objectionable Mr Bartley. I'll allow the question. BARTLEY: Your Honour pleases. WITNESS: To answer that question with certainty I'd need access to my original file which is in Wagga. CHENEY Q. So do you think it would have been beholden on you to when swearing this affidavit to say that it was the product of an incomplete search on your part of your own file? A. No I don't believe there is any other relevant material but I am conscious of the fact that I do not physically have the file in Sydney with me. Q. See the period from 4 July 2006 and throughout 2007 is the period where it was very likely that it might later be said the limitation period had expired correct? A. Correct. Q. And you would have had some anxiety or some clean interest in exhausting the expert evidence search in that period of all times I suggest? A. Correct. Q. And you're unable to help us with what was done after Barraclough's report was received by way of pursuing other experts who might lend a hand? A. My position was that I had two reports from experts who I had used previously who were not supportive of this case. Q. Had you used Professor Fliegner as an obstetrics expert in other matters prior to commissioning him in 2011 in connection with this matter? A. I have used Professor Fliegner in other matters; whether I had used him prior to 2011 I can't say. … Q. You would have a list would you not Mr Potter of expert obstetricians and neonatologists that you've used over the list? A. I have a group of experts who I use regularly. That list of course is not exhaustive. It depends on the case. Q. Well may we take it that in the period after the receipt of the Barraclough report logically the next step for you would be to trawl through that list to identify any other obstetrics expert who might lend a hand? A. No I don't believe that's correct. Q. Should we infer from the fact that you're unable to point to any other expert consulted that you had formed the view after receipt of the Barraclough report that there was no point pursuing the matter? A. Correct. Q. Did you tell Ms Coffey that in July 2006 when you conferred with her about the Barraclough report? A. I have no record of that but I believe I would have. Q. I'm sorry I think I put to you that you conferred with her about that report in July 2006 which isn't fair. Did you confer with Ms Coffey about the Barraclough report? A. I believe I did yes. Q. Sorry sir? A. I believe the answer is yes. Q. And did she tell you in July 2006 or whenever it was that you spoke to her about the Barraclough report that you should not pursue the matter? A. I can't recall that. I believe the conference would have been by telephone otherwise there would be a file note in relation to it. Q. And the instructions to which you refer in paragraph 12 were they given in conference or over the telephone? A. Over the telephone I believe. Q. And were you able in your research through the file last night to find some reference to those instructions were you to in order to be able to nominate the date of 18 May? A. I was able to identify that that's the date on which the file was closed. Q. Because of some notation on the file to that effect? A. No, because that was the date on which the file was archived. Q. So have you assumed from the fact it was archived that Ms Coffey must have instructed you to close the file? A. Yes. I wouldn't have done it without those instructions. Q. From which we can infer that there must have been a discussion with her about the merits of the case is that right? A. Yes. Q. In or about May 2010? A. Yes. Q. And then the next you heard from Ms Coffey was in February 2011? A. Yes. Q. Can you see in paragraph 13 you say you again conferred with her? A. Yes. Q. You don't annexe any notes of the 15 February 2011 conference do you? A. No I don't. Q. Were any taken as you recall? A. No they weren't otherwise they would have been annexed. Q. Sir can I ask you to have a look at these two pages? A. Yes. Q. Do you recognise those as notes of the conference you're referring to? A. I do. I do. Q. Do you have any explanation why you would have not included those in the affidavit? A. I think these notes may have been produced pursuant to a notice to produce and if that's the case I've overlooked them. Q. You see the notes record that the conference was with Kathleen and Mr Ingram? A. Correct. Q. And you don't mention Mr Ingram in your affidavit at paragraph 13 as being present at this conference do you? A. No I don't. Q. So what was it if you didn't have these notes that reminded you when you swore your affidavit that the conference occurred on that date? BARTLEY: Your Honour that with respect these notes were produced in answer to a notice, the first of the notices to produce. They were clearly in Mr Potter's mind at the time when he was swearing the affidavit; they've been omitted as an oversight. CHENEY: Perhaps the witness can answer the question. HIS HONOUR: Well that seems likely to me Mr Bartley. I don't think Mr Potter's being criticised; he's just being asked what the physical relationship is between those notes which were produced they're unavailable to him at the time that the swore the affidavit and his failure to mention it. BARTLEY: But they were produced before the affidavit, your Honour. HIS HONOUR: Yes, yes. BARTLEY: And with my friend before the affidavit. CHENEY: I'm not suggesting we've had some forensic triumph, your Honour. HIS HONOUR: No. CHENEY: Mr Potter, you were able to depose in paragraph 13 to the fact of a conference. A. Mm. Q. You didn't have the notes when you deposed it? A. Correct. Q. How did you bring it to mind? A. I think I had made a note when these notes were sent to me from Wagga of the dates of conferences. Q. But you go further, don't you, than the mere date. You volunteer in paragraph 13 that Mrs Coffey was having difficulty in dealing with her son. A. Yes. That's what prompted her to contact me again, I believe. Q. And so, as a consequence of that conference, you returned to prosecuting the matter; is that right? A. She requested me to review it. Q. But when she came to you on 15 February 2011, she had no new material to impart, did she, than she had previously had in the previous conferences? BARTLEY: Your Honour, that question should be limited to no new opinion material. There's clearly other material, that is, the state of James. HIS HONOUR: Sure. I read the paragraph to say things were so bad at home with the boy that she was, if you like - my words - desperately trying to find out whether or not anything more could be done. Q. Is that the sense of it, Mr Potter? A. Yes, your Honour. CHENEY: But as to the burning question of whether there was a breach of duty and whether there was causation and whether you can prove it, no matter how pitiable was the condition of James and no matter how miserable things were from Mrs Coffey, the case was no better than it had been when you closed the file back when Barraclough's report had been received? A. As of that date, that is correct. Q. So what was it about that approach from her that caused you to reinvigorate the search for an expert? A. The cause was my response to her distress about the difficulty she was having in looking after and managing this boy. Q. So, in response to what you perceived was her distress, you were able to find Professor Fliegner, is that the upshot? A. Her condition and her request prompted me to make a further attempt to establish whether expert evidence was available that would support her case. Q. And I think you told us earlier that Professor Fliegner who is Melbourne based; is that right? A. Correct. Q. Was an expert that you had used in other matters prior to Mrs Coffey's A. No, I didn't say that. I have used Professor Fliegner in a number of cases. I can't say, without a review of other files, whether I had used him prior to that date. Q. Well, if it was the case that you had not used him prior to this date, can you help us with how it was that you became aware that he might be someone who would assist? A. He was an associate of my brother in law's. Q. And was an associate of your brother in law's in 2004 when Mrs Coffey first came to see you? A. Possibly. They had been to medical school together. Q. And can you help us with when it was that you first learned of that relationship? A. I can't, no." [Emphasis added.]
The hospital contended that any conflict in this evidence between Ms Coffey and Mr Potter concerning the question of whether he was instructed to close the file should be resolved by preferring Mr Potter's evidence. According to this submission, it accorded with logic and professional practice that a solicitor would not have closed or archived the file without instructions to do so. Although Ms Coffey ultimately denied that she instructed Mr Potter to do so, her initial response was to say that she did not remember.
The hospital maintained that it was significant that, on Mr Potter's evidence, within less than three weeks of being asked by Ms Coffey to re-activate the search for expert evidence, and with no material bearing on the facts additional to that which he had held since soon after his first conference with her, Mr Potter located and conferred with Professor Fliegner, on the basis of whose opinion Mr Potter concluded there was an arguable case. It follows, as a matter of logic, that the same enquiries made at any time prior to January 2007, including during the "dormant period" following July 2006, would likely have produced a similar result, yet there is no explanation proffered as to what transpired during that dormant period. The inadequacy of the explanation might reflect the incomplete nature of Mr Potter's search of his files, a task he delegated to others.
The hospital drew attention to two authorities said to establish that for the purposes of the discoverability provisions in s 50D, a plaintiff may fall into the category of persons who had the necessary constructive knowledge notwithstanding having been advised by lawyers on the basis of expert evidence that she did not have a cause of action.
In Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; Basten JA (with the agreement of Ipp and Macfarlan JJA) said: "The objective test - 'ought to know' [57] The next question was whether the plaintiff's mother ought to have known each of the facts identified in subs 50D(1). The answer to that question must depend upon the effect of subs (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. [58] In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.) [59] The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense) or that he or she should have been told of the fact (the passive sense). In this context, 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather, the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out, if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice. [60] It was not suggested that, in the 26-day period after the accident, the plaintiff's mother should reasonably have taken any step which she did not take. Accordingly, unless the plaintiff's mother in fact had the relevant knowledge, the defence must fail."
In Frizelle v Bauer [2009] NSWCA 239, Basten JA (McColl JA agreeing) held: "[27] There are circumstances in which s 50D may only be satisfied where the applicant has taken all reasonable steps to ascertain a fact which may involve medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed was conceded) that the mother whose child had been injured did not know either that the injury was caused by the 'fault' of the State or that it was sufficiently serious to justify bringing an action, if such knowledge required the application of any degree of professional expertise or assessment: at [24]. Nor was it established that there were any steps that she ought to have taken, but did not, within the period of 26 days following the accident, which was the period in issue in that case. [28] The present case falls into a different category. The period during which the necessary assessment had to be made was a period of some nine months after the date of the accident. The fact that further evidential material might need to be gathered was beside the point, so long as the seriousness of the injury could reasonably have been assessed within that period. Further, the issue was not the threshold in the Civil Liability Act with respect to non-economic loss, but the quantum of the applicant's economic loss. No doubt her prognosis remained somewhat uncertain in April 2004, but the primary judge was satisfied that the impairment of her earning capacity, and the likelihood that it would continue, was known to her at least by early 2004. On the evidence, that finding has not been shown to be open to significant doubt. [29] At the heart of the applicant's claim was the suggestion in the affidavit, not fully supported when taken into account with the cross-examination, that she did not believe that she had a cause of action in relation to an injury which was sufficiently serious to justify the bringing of the action because of advice received from her solicitors. His Honour found that the injury 'obviously was a serious one and the plaintiff conceded that in her evidence': Judgment, p 8. He then noted that there was a further question as to whether it was sufficiently serious to justify the bringing of an action, and continued (pp 8-14) to consider whether that was so. In the passages set out above, he concluded that it was sufficiently serious and that the applicant appreciated that fact. [30] There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending upon the advice of professional persons, but, having been given wrong advice, does not have the necessary state of mind. According to Baker-Morrison, the terms of s 50D(1) may not be engaged: see, Baker-Morrison at [59]. That, however, is not the present case and the correctness of that view does not arise. [31] In substance, his Honour's analysis of the evidence suggests that the delay in commencing proceedings was in part due to the dilatoriness of the applicant in maintaining contact with and providing information to her solicitors, and partly the dilatoriness of the solicitors. It is neither necessary nor appropriate to assess those elements further."
The hospital maintained that these extracts can be contrasted with the situation here, where the mere step of asking Mr Potter to resume the search was sufficient to have allowed Professor Fliegner to be retained within less than three weeks. The steps that Ms Coffey should reasonably have taken then, which she did not take until 2011, was to have continued to press, during the dormant years, for expert evidence to be sourced, rather than doing nothing for four years until instructing Mr Potter to close the file.
The hospital therefore submitted that for the purposes of s 50D, Ms Coffey is one who "ought to know" of the facts that informed the decision to commence the proceedings (i.e. the availability of expert evidence sufficiently corroborative to provide an arguable case), because the Fliegner opinion would, within the meaning of s 50D(2), "have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact." On any view, Ms Coffey ought to have known of that fact at a time prior to 31 March 2008 (i.e. that date 3 years before she commenced) and, for the purpose of s 50D, the cause of action was discoverable before 31 March 2008.
Ms Coffey in any event contends that she was relevantly under a disability. The onus lies on her to demonstrate that she was under a disability for the purposes of s 50F: New South Wales v Harlum [2007] NSWCA 120 at [73]; Kotulski v Attard [1981] 1 NSWLR 115 at 118D; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 478.
The applicable case law has focused on when a person is under disability as contained within s 11(3)(b) of the Act, which predominantly mirrors s 50F(2). In Kotulski v Attard, Slattery J said at 117F-118B: "As there were no competing contentions by the parties to this motion as to the intent of Parliament in respect of the extension of the limitation period where a disability under the Limitation Act is established, little assistance is gained from the Act being, in my view, a remedial one: see Bull v Attorney General for New South Wales (1913) 17 CLR 370 at p 384; Pearce, Statutory Interpretation in Australia, para [162], pp 105, 106. Section 11(3)(b) is concerned with two classes of person: One who is incapable (which conveys the concept of total inability) and the other substantially impeded in the management of his affairs in relation to the cause of action by reason … of disease or impairment or physical or mental condition. According to the Shorter Oxford Dictionary to 'impede' means to obstruct in progress or action; to hinder or to stand in the way of. 'Substantially', in my view, does not mean trivial or minimal, neither does it mean total: See R v Lloyd [1967] 1 QB 175. 'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. … I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action…"
The Court of Appeal in New South Wales v Harlum applied Kotulski, with Beazley JA (Tobias JA in agreement) specifying at [92] that the enquiry is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action.
In Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, the Court of Appeal from [125] to [168] assessed s 11(3)(b) in detail. Campbell JA emphasised at [141] that the sole concern of the Act is with the time within which an action must be commenced, as opposed to a party becoming substantially impeded after the action had been commenced. At [140] Campbell JA explains what "management of affairs" means in the context of the Act: "…the relevant 'affairs' are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action."
His Honour then restated the applicable test in Kotulski and Harlum: "[162] The question that must be answered, for the purpose of s 11(3)(b), is whether 'the person', i.e. the plaintiff, had been substantially impeded in the management of the relevant affairs by reason of one of the matters in subparas (i)-(iv) [(a)-(c) for s 50F]. The notion that a particular person, A, has been impeded in doing X by Y has within it the notion that that Y has got in the way of A doing X and made it more difficult for A to do X. In deciding that question, it might be of assistance to consider how a reasonable person, who did not have to deal with Y, would have acted in seeking to do X."
The hospital submits that Ms Coffey was not substantially impeded in the management of her affairs in relation to the cause of action by reason of any disease or impairment of her physical or mental condition. It submitted that Ms Coffey had not discharged her onus of establishing that she was under a disability for the purposes of s 50F of the Act. Her evidentiary statements barely touch upon her mental state, still less do they satisfy the requirements of the section as construed. The majority of Ms Coffey's statements concern events surrounding the birth of James, rather than any disability or mental illness she may have suffered.
Similarly, Mr Potter's affidavit does not refer to any disability or inability of Ms Coffey to give instructions or otherwise manage her affairs in relation to the cause of action. On the contrary, the affidavit bears out that she was able to give sufficient instructions for him to record some 10 pages of conference notes.
The evidence demonstrates that in many areas of Ms Coffey's life, she was able to manage her affairs without any substantial impairment. Ms Coffey makes clear in her statement at [50] and [58] that she has and continues to provide 1-2 hours per day of additional educational assistance to James after school and provides constant supervision for him when he is at home. Ms Coffey's oral evidence confirms that she has always been his primary carer. When James was transferred back to the hospital from Canberra, Ms Coffey continued to travel between the hospital, her children's school and home on a daily basis, with minimal or no assistance from her husband.
Ms Coffey was primarily responsible for managing the domestic affairs of not only her own life, but that of her four children and household. As Campbell JA noted at [178] in Guthrie v Spence, if a person is able to manage his or her affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. No such explanation has been provided by Ms Coffey in this case.
Further, the evidence also appears to indicate that Ms Coffey was under no substantial impairment in managing the prosecution of the cause of action itself. For example, Mr Potter refers in his affidavit to her several attendances upon him and with counsel.
Additionally, Ms Coffey was sufficiently in control of her affairs to be able, according to Mr Potter, to instruct him to close the file on 18 May 2010, after they discussed the merits of the case that month.
Nor do Dr Gertler's reports of 22 November 2011, 18 March 2014 and 21 July 2017 provide a basis for a finding that Ms Coffey was substantially impeded in managing any of her affairs in relation to the cause of action. Dr Gertler noted that Ms Coffey has been taking antidepressants since her third child (Caitlyn) was born in 2001. That history is consistent with her oral evidence, although Mr Coffey recalled that his wife had been taking antidepressants since August 1998, following the birth of Brianna. Ms Coffey gave evidence that the antidepressants alleviated the symptoms of her depression.
Despite Ms Coffey giving oral evidence that her mental state "now" is an "eight to a nine", Dr Gertler determined that there was no evidence that she suffered from significant depression or anxiety, and that her capacity for "insight" and "judgment" was appropriate. Overall, Dr Gertler concluded in his report that Ms Coffey was "mildly depressed" and suffering from an adjustment disorder that was chronic in duration. Dr Gertler noted in his report that this had had an impact on her "capacity to tolerate her day to day responsibilities, particularly as they relate to the care of her children and husband" but he did not provide any further details. The use of the word "tolerate", appears to indicate that Dr Gertler was of the view that Ms Coffey was unhappy with her day-to-day responsibilities, as opposed to being unable to manage or carry them out.
In Dr Gertler's 18 March 2014 report, he expressed the opinion that Ms Coffey was "mildly irritable but not significantly depressed". He concluded that she continued to suffer from an "adjustment disorder with mixed emotional features". In his 21 July 2017 report, Dr Gertler indicated that Ms Coffey described "normal concentration and memory" and "a fluctuating level of depression". He concluded that "there was no evidence of significant depression at the time of assessment".
In their joint report of 27 October 2017, Drs Gertler and Wilcox reached broad agreement about the nature and severity of Ms Coffey's mental illness. Dr Gertler stated that she suffered from an adjustment disorder with anxious and depressed mood which fluctuated in intensity but was generally mild. He found (and Dr Wilcox agreed) that it had never been severe enough to warrant domestic assistance, nor had it affected her capacity for work at any time after 19 January 2004.
No evidence has been adduced to indicate that Ms Coffey suffered from any disease or impairment so as substantially to impede or make her incapable of managing her affairs in relation to the cause of action. The evidence does not support a finding that Ms Coffey has been under a disability at any time since 19 January 2004 for the purposes of s 50F of the Act.

Ms Coffey's submissions

Ms Coffey drew attention to the same provisions of the Limitation Act to which the hospital referred.
The definition of "under a disability" is also found in s 11(3)(b). The definition was definitively discussed in State of New South Wales v Harlum. The headnote in relation to this issue contains the following: "(iv) The enquiry under s 11(3)(b) is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action: [92] Kotulski v Attard [1981] 1 NSWLR 115 (applied) (v) A fundamental aspect of bringing a claim is that it requires the exercise of willpower to initiate the claim. However, having the willpower is not the only question, in making a decision to commence an action, the person is also making a decision to continue with the claim: [94] Kotulski v Attard [1981] 1 NSWLR 115 (applied)"
The facts in Kotulski were similar to those in the present case. The uncontested evidence given by Mr Coffey as to his wife's ability to cope with James' substantial disabilities was uncontested and comfortably forms the foundation for a finding that Ms Coffey was "under a disability" at least up to the time when she gave instructions to commence the proceedings.
Further, s 50D provides strong support for the cause of action not being "discoverable" at any time up to when the action was commenced.
The decision of the Court of Appeal in Baker-Morrison v State of New South Wales is definitive in relation to the issue of discoverability and in particular, "the meaning of caused by default of the defendant".
To the extent that Mr Potter was cross-examined in relation to the steps he took to pursue the question of liability, this is irrelevant. The "reasonable steps" relate not to the solicitor but to Ms Coffey. It could not be said that she failed to take reasonable steps. The headnote to that report confirms that: "The 'fact' contemplated by s 50D(1)(b) is a relationship between the injury or death and the fault of the defendant. The relevant connection is one of causation. Since the primary particular of negligence on the statement of claim was a failure to provide 'a protective guard or covering along the area of operation of the … sliding glass doors', until the plaintiff's mother was aware or ought to have been aware of the availability and reasonable practicability of installation of a device to make the sliding door safer, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety."
Not only had Ms Coffey taken "reasonable steps", she had received advice to the effect that as at the date of the expiration of the limitation period there was insufficient expert evidence available to support the commencement of proceedings. This advice was based upon the report of Professor Colditz dated 10 October 2005 and the report of Dr Barraclough dated 4 July 2006.
It is clear that no further steps were taken in relation to obtaining an expert liability report until following the conference between Mr Potter and Ms Coffey on 15 February 2011: see paragraph 13 of Mr Potter's affidavit. It is also clear that Ms Coffey was unaware of the relationship between the injury and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 at which time instructions were provided to file a statement of claim: see paragraph 20 of Mr Potter's affidavit.
The statement of claim which was dated 29 March 2011 was filed on 31 March 2011. Thus, the Limitation Act has no application to the present case both because of discoverability and the fact that Ms Coffey was under a relevant disability.

Reply submissions

Kotulski directs attention to the ability to reason normally about the matters relevant to a potential cause of action. The hospital emphasised that that is very different to Ms Coffey's ability to cope with the day to day manifestations of her son's disabilities. Brian Coffey's evidence is of little or no relevance to the enquiry whether his wife was under a disability.

Limitation Act defence - consideration

Mr Potter told Ms Coffey on 3 March 2004 that it would be necessary to get expert opinion on whether the hospital was at fault and whether that fault caused James to be injured. A report from Professor Colditz was obtained and Mr Potter discussed it with Ms Coffey in conference on 15 November 2005. The report did not assist Ms Coffey's case and Mr Potter told her so.
Similarly, Dr Barraclough provided a report to Mr Potter in July 2006. Mr Potter formed the view that it was not sufficient to recommend the commencement of proceedings. I infer that Mr Potter shared his view to that effect with Ms Coffey: Mr Potter said in cross-examination that he had no record of telling Ms Coffey about that report when he conferred with her in July 2006 but said that he believed that he would have.
The suggestion that Ms Coffey was unaware of the relationship between the injury sustained by her son and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 in my view either misunderstands the applicable test or is not supported by the evidence. The issue is one of discoverability, not discovery in fact. The terms of s 50D of the Act make this clear. The fact that Ms Coffey did not "discover" Professor Fliegner's opinion until within a three year period before she commenced these proceedings ignores the significance of what she should have discovered and when she should have discovered it. All the steps that were taken and everything that occurred that led to the provision of Professor Fliegner's opinion could correspondingly have been taken or could have occurred well before the period of three years prior to the commencement of the proceedings. It is not open to Ms Coffey in this context to argue that the fact that a supportive opinion was only provided when it was, means that the same or an equivalent opinion was not always relevantly discoverable. It would be different, for example, if some novel medical test or diagnostic process had only been developed or come to her attention within three years of the date of commencement of the proceedings. The circumstances in which Professor Fliegner's opinion was obtained are not analogous to that example.
It is plain and I am satisfied that Ms Coffey sought Mr Potter's advice, opinion and assistance because she was aware of the possible connection between what afflicted her son and some act or neglect on the part of the hospital. In the events that occurred, Ms Coffey could in one sense never have discovered a connection between the injuries sustained by James and the fault of the hospital, having regard to my finding that the hospital was not ever at fault. The fault of the hospital must therefore be relevantly understood to be the existence and availability of an opinion that the relevant connection existed and that the hospital was at fault. There was nothing to prevent Ms Coffey having earlier discovered what she did discover in 2011. It is clear that she retained Mr Potter for precisely that purpose and that he undertook to search for the connection in accordance with his instructions. In the terms of the section, Ms Coffey ought to have discovered before 31 March 2008 what she did discover when Professor Fliegner's report arrived. Having regard to the fact that Ms Coffey consulted Mr Potter almost immediately after James' birth, and in the events that occurred, it is my opinion that she should have discovered all of the matters to which s 50D(1) refers by no later than three years thereafter. The fact that Ms Coffey discovered the connection when she did, in circumstances that were in all relevant respects identical to those existing long before that date, indicates that she ought to have discovered the relevant facts more than three years before the filing of her statement of claim and probably in fact no later than three years after the events that gave rise to these proceedings.
Nor am I satisfied that the limitation period was suspended for the reason that James Coffey was under a disability in the sense that Ms Coffey was an incapable parent for the purposes of s 50F(2)(a) of the Act. Ms Coffey was undoubtedly confronted with the awful difficulties associated with James' disabilities. Those difficulties were no doubt made even worse to deal with by reason of her family situation as it existed at the time of his birth. However, despite these things, Ms Coffey was commendably able to see Mr Potter with her story, to instruct him about what had happened and to arm him with the material information that he needed to make the necessary inquiries on her behalf. That is what occurred. Ms Coffey demonstrably was able to reason normally about the matters relevant to a potential cause of action, to understand Mr Potter's advice and to give appropriate instructions. In this respect I am also satisfied that Ms Coffey specifically instructed Mr Potter to close her file and that he did so in accordance with those instructions. I accept that dealing with the fact that her son had possibly been injured by the hospital would have been a terrible and frightening thing with which to come to terms. I am not satisfied that the effect of that realisation or appreciation substantially impeded Ms Coffey's management of the relevant affairs.

Conclusions and orders

It follows that there should in each case be judgment for the defendant. I will hear the parties if so required with respect to the question of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2019

Civil Liability Act 2005(NSW)

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Judgment (13 paragraphs)

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