Q. And is there any enquiry about the pain that the mother has felt?
A. I would ask them how the pain was and they usually told me whether, you know, it was strong or whether it was mild, how often it was.
Q. Now, in relation to this usual practice about enquiring of the mother about pain and strength of pain, is there also an enquiry about how often, the regularity of the pain?
A. Yes.
Q. Is that a practice? How long had you been observing that practice in 1984 when you saw this lady?
A. Since I trained."
95 Earlier evidence had ascertained that she had been a certified midwife from 1979. She was also asked about the commencement of labour and gave the following answers:
"Q. … And labour began. What does that imply? What does that mean?
A. The onset of regular painful contractions.
Q. Now, you have told us that you asked the mother about when the pain began as opposed to regular painful contractions. When you say that the usual practice was to say, 'When did you have your first pain', was there any elaboration on that or did it depend upon the reply or what?
A. It would depend on the reply that the mother actually gave, but if they gave a time you would then ask whether they have been regular or irregular and then if they were irregular you would write down they were irregular, becoming more regular at a certain time, whatever time that would be. So you would try and get an exact time that they noticed the pain."
96 There was some little elaboration in cross-examination, but not to significant effect: p 715.
97 The variation between the questions Sister Shipley asked and that recorded by his Honour might not be significant in some circumstances, because a pregnant woman would identify the question about pain as relating to contractions. However, there was scope for ambiguity and possible confusion with a woman who, through experience, knew the pain associated with normal contractions, but said she also experienced a sharp knife-like pain which she did not associate with normal contractions.
98 His Honour also said, in the passage set out above at [92], that she had denied putting a question in a form which allowed her to know when the contractions became regular. There was no such denial in the evidence in chief, given at [94]-[95] above. Further, in cross-examination, the following further evidence was elicited at p 715:
"Q. You have recorded 'Admitted with a history of contractions since 10.45'. Is that something that you immediately elicit from the mother as best you can?
A. Yes.
Q. And really what you are looking for I take it is a history of when labour became established?
A. When they started to feel pain.
Q. Yes. Well in some women they feel pain, significant pain early in their labour and others much later in their labour; is that right?
A. Some.
Q. Yes. So they may have … particularly with women who have had multiple children, as this woman has, experienced mums, they would often wait for the more significant pain of contractions to come on them before they would regard … the birthing process as being well in train?
A. Yes, but you would try and establish when they first got the first pain and then when it became more regular."
99 The evidence given by Mrs Kolled as to her pain was not succinctly stated. There were language difficulties which resulted in some of the evidence being given in English and some in Arabic and, in the course of her cross-examination, there were difficulties with interpretation: see, eg, Tcpt, 31/05/06, pp 125-130. It is also clear that she had difficulties in focusing on the question: see, eg, Tcpt, 01/06/06, pp 139-140. The explanation she gave in her evidence in chief as to the timing of the first contractions was that they commenced whilst she was at the shop in which she worked with her husband, at 9pm on the Thursday evening: Tcpt, 29/05/06, p 35. She said that she was not in a hurry to go to the hospital and continued with the ordinary routine of the shop until 10pm, which was closing time: p 36. She said that it took about 20 minutes to close the shop and that she made a short detour to her home before leaving for the hospital. She thought it took between 10 and 15 minutes to reach the hospital: pp 36-37.
100 This evidence was entirely consistent with her arrival at the hospital at 11pm, although she said did not know what the time was when she arrived: pp 38-39 and 124. In her evidence in chief she described having a pain "[l]ike a knife in my stomach" whilst at the hospital: p 40. She distinguished that from back pain which she associated with previous pregnancies: p 40 and, in cross-examination pp 138-139. She described the pain she felt at 9pm as that of a contraction: pp 135 and 137. She agreed that when she reached the hospital she was asked "when you first felt pain": p 136. She described being in pain and screaming whilst she was being examined by the nurse at the hospital. The following evidence was then given (p 138):
"Q. Do you remember the nurse during the examination asking you questions?
A. I remember she say to me the child beat Okay, and I was in pain and screaming.
Q. Well, I'd suggest to you, Mrs Kolled, that when you arrived at the hospital you were not in pain and screaming?
A. The pain start when I was going to the hospital. It did not stop.
Q. Now this is the, what, really bad pain when you were going to the hospital?
A. The pain begin to get stronger as I was going to the hospital on my way.
Q. And is this the pain that you say was unlike any other pain that you'd felt before?
A. In my life I've never felt this pain, it's like a knife cutting me, and I have no contraction in my inner stomach."
101 She was asked whether the nurse had asked her when the pain started, with which she agreed; denied that she had said it started at 10.45pm or that she had said it started 15 minutes before she arrived at the hospital; she also denied the proposition that she had at no time told the nurse that the pain started at 9pm, and the suggestion that the first person she had told that the pain occurred at about 9pm or 9.10pm was Mr Clements on 23 October 2003: Tcpt, pp 142-143.
102 Her recollection of when the pain started continued over a number of hours of cross-examination, parts of which focused on the proposition that she had described the time differently to her solicitors and medical advisors over the years during which the plaintiff had pursued his claim. Her evidence became more emphatic over time. She stated, Tcpt, p 165:
"Q. Right. So your evidence about the pain being at 9 o'clock, that is a precise time because you were looking at the clock?
A. I was looking at the clock. Not because of my birth or giving birth, I was looking at the clock that I am expecting the customer to come and buy the things.
Q. Yes, I understand, but what you are saying is that because you were looking at the clock for the reason that you were worried about the customers, because you were looking at the clock when the pain happened you know that it was at precisely 9 o'clock you felt this pain; is that what you are saying?
A. Yes. A mild contraction.
Q. Right. And so it wasn't five past 9 that this happened or it wasn't 10 past 9; it was 9 o'clock that you say with certainty that this pain happened?
A. Yes. 9 o'clock exactly because I was looking at them because they were going to come.
Q. And you are certain about that, are you, that it was 9 o'clock, not 5 past 9 or 10 past 9?
A. Impossible. I am a hundred percent sure because I am waiting for these people to come.
Q. You see, do you remember that when you spoke to Mr Clements about this you told him that you had felt a contraction, not at 9 o'clock, but at 10 past 9?
A. I might have said that 10, 9 past 10, 10 past 9, but if he didn't understood what I mean, but I'm sure it was 9 o'clock."
103 She reiterated her insistence on the fact that the pain started at 9pm towards the end of her cross-examination by counsel for Bankstown Hospital: Tcpt, 01/06/06, p 183.
104 Dr Harbord was a paediatric neurologist and not an obstetrician. He was provided with notes from Bankstown Hospital, notes prepared by Mrs Kolled and obtained a further oral history from Mrs Kolled on 26 November 2002. He had no particular interest in the labour or delivery, except to the extent that it assisted in understanding the plaintiff's condition. His report of 17 December 2002, at p 2, referring to Mrs Kolled by her first name, stated:
"Tamam was admitted to the Labour Ward at the Bankstown Hospital at 2230 on 12th October, 1984 in labour with abdominal pain. The contractions had occurred from 2200 that evening, and the foetal heart rate on admission [sic] at 2330 was 140 beats per minute."
105 Dr Harbord was not cross-examined and the source of his information is unclear. It was assumed that the times were not taken from the hospital notes, because they did not correlate with the hospital notes. It is possible that they were provided by Mrs Kolled at the consultation, but it is also possible that they were obtained from notes supplied by the plaintiff's solicitors. They appear to have accorded with the first version of the statement of claim, filed on 30 March 2001. How the solicitors identified the times for the purpose of inclusion in the statement of claim is unknown; a reasonable inference might be that they were provided by Mrs Kolled, although the circumstances by which the times were elicited is unknown.
106 Mr Roger Clements gave an opinion on 31 October 2003, having had access to numerous documents then available, including the statement of claim and Dr Harbord's report. Mr Clements spoke with Mrs Kolled on the telephone, with the help of an interpreter on 23 October 2003. His report stated (p 9):
"Mrs [Kolled] was admitted to hospital as an emergency … on Friday 12th October. Mrs [Kolled] recalls that on this day she had a contraction at 2110. She knew it was a contraction because she had experience of previous labours. She waited to see whether another contraction would follow and at 2120 she had a second contraction. The contractions then began to come every ten minutes and she decided to go to hospital. She and her husband ran a grocery store at that time and generally closed the shop some time between 2100 and 2200 hrs. She remembers asking her husband to close the shop and take her to the hospital. She believes that she arrived at the hospital at about 2200. The midwife's first notes however are timed at 2300."
107 Mr Clements did give evidence at the trial, and in some respects reference was made to his telephone conversation with Mrs Kolled, but there was no helpful elucidation of how he obtained the information recorded above.
108 The weight to be given to the inconsistencies depended upon an analysis of where error might have arisen. From Mrs Kolled's point of view, there was one fixed point in time of which she was conscious, namely the time of the first contraction. The other fixed point, of which Mrs Kolled was not conscious, was the time of her arrival at hospital, which was accepted as being 11pm as recorded in the hospital notes. Between those times there was ample opportunity for miscalculation and confusion. For example, if Mrs Kolled believed, as she appears to have done at some time, that she arrived at the hospital at approximately 10pm, her understanding must have been that there was approximately one hour between the earliest contraction and her arrival at hospital. If she were right about the time of the first contraction, the period which elapsed was in fact closer to two hours.
109 What happened prior to 11pm was to be identified entirely by reference to her evidence and prior statements made to other persons. No doubt it was appropriate to give weight to the time recorded by Sister Shipley, as evidence of what Mrs Kolled had told her, almost contemporaneously. The difficulty in relying solely upon that evidence is that there is a degree of doubt as to what Sister Shipley was recording. Because it would have taken Mrs Kolled between 10 and 15 minutes to reach the hospital, because she had previous experience of labour and was unlikely to assume that she was about to give birth soon after the first contraction, and because she had no reason to suppose that she should not undergo a trial of labour as she had been advised, it is possible, but highly unlikely, that she set out for the hospital the minute she felt the first contraction. Nor was it put to her in cross-examination that she, a woman who had already delivered four babies, felt any need to get to the hospital immediately the contractions started.
110 Sister Shipley's evidence was not consistent with the proposition that she was anxious to record the time of the very first contraction. Rather, she asked about "pain" and, contrary to his Honour's finding, was concerned about regular contractions. The inference drawn by his Honour at [136] was erroneous. The probability is that the contractions commenced at an earlier point in time than 10.45pm, though there is significant difficulty in establishing when they commenced.
111 It must be inferred from his Honour's findings that he disbelieved Mrs Kolled's evidence as to the reason why she was able to fix the time of 9pm with some precision. He did not find that was a conscious fabrication, but there were reasons why he was entitled not to be satisfied on the balance of probabilities as to that evidence.
112 Rejection of that evidence was not, however, an end of the matter. It did not follow that Mrs Kolled's first contraction occurred at 10.45pm. As indicated above, Sister Shipley's evidence was not necessarily inconsistent with the proposition that contractions had occurred at an earlier time. The cross-examination of Mrs Kolled focused squarely on the proposition that she had looked at the clock when she felt her first contraction and that the time was 9pm. There was also an attempt to establish that, like Sister Shipley, she identified contractions as "pain" and hence to tie the first contraction, as she understood it, to a time approximately 15 minutes before she arrived at the hospital. However, there were other aspects of Mrs Kolled's testimony which were not directly challenged. She gave evidence that the first contraction occurred whilst she was working at the family grocery shop. She stated that closing time was between 9pm and 10pm: Tcpt, 29/05/06, pp 35-36. She further gave evidence that it took "about 20 minutes" to shut up the shop. She went home after shutting up the shop; home was "just a block or so away": p 36. At home she said that she helped Wosif wash and put on his pyjamas, checked her bag and then went with her husband and Wosif in the car to the hospital: pp 36-37. She said that it took between 10 and 15 minutes to get to the hospital.
113 On the evidence referred to above, the likely inference is that the first contraction occurred after 9pm, but significantly before 10.45pm. No doubt, in hearing a trial some 22 years after the event occurred, there is some attraction in accepting the only documentary evidence as to timing. However, for reasons already given, there is significant doubt as to what precise event was recorded.
114 In assessing Mrs Kolled's evidence, it must be accepted that the cross-examination was difficult to control or assess, as a result of the manner in which she answered questions. Given the tragic consequences of the birth, a degree of incoherence is understandable. Nevertheless, no reason was presented by the defendants as to why her evidence in respect of the various events which occurred on the night in question, following the first contraction, should be rejected. They were not inherently implausible: the proposition that she went to hospital immediately she felt the first contraction was, to a degree, implausible. It also required rejection of her evidence that at first contractions were coming at 10 minute intervals.
115 On the basis that she felt the first contraction at the shop, before the usual closing time and that she thereafter took the steps recounted above, it is likely that contractions commenced no later than 10pm. In this connection, the term "contraction" should be understood to mean an indication to the mother that she might be in or approaching labour, being a sign which (if properly advised) she should have assessed with the knowledge that she and her child would be at serious risk if she went into labour and should attend for a caesarean section before that happened.
116 On the basis that the first contractions occurred not later than 10pm, even assuming that it would have been necessary to close the shop, return home and collect her bag and then drive to the hospital, in circumstances where there was understood to be a degree of urgency involved, it was likely that she would have reached the hospital no later than 10.30pm. Whatever happened thereafter, the timing of the procedure would have come forward 30 minutes, by reason solely of her earlier arrival at the hospital.
117 Although it was accepted by the medical experts that it was appropriate for her to be assessed, both by Sister Shipley and Dr Booth, to check she was in established labour, there was no suggestion that their conclusions would have been different if reached half an hour earlier. The labour ward report indicated that blood was taken for cross-matching and a consent form signed at 11.20pm, 20 minutes after her admission. That was accepted as the time by which a decision had been made to proceed by way of caesarean section. Dr Booth gave evidence in chief that, had she known of the prior classical caesarean, the breech presentation would have been irrelevant and she would not have needed to undertake her own vaginal examination of Mrs Kolled: Tcpt, 16/06/06, p 741. If the necessary examinations had commenced at 10.30pm, the decision would have been taken before the operating theatres closed at 11pm and the staff went off duty.
118 His Honour accepted that Dr Booth called both the surgeon and the anaesthetist between 11.25 and 11.30pm. They arrived at the operating theatre at 12.10am, a delay of approximately 45 minutes. If the operating theatres had remained open and the staff had remained at the hospital, that delay should have been reduced. That conclusion follows from a consideration of the only evidence directly relevant to the attendance of on-call medical staff at Bankstown Hospital in the relevant period.
119 Dr Booth gave evidence of making four telephone calls. The first was to her consultant, Dr Simpson, to confirm that her decision to proceed with a caesarean section was correct: p 731. She then rang the on-call anaesthetist to explain that there was a patient needing an emergency caesarean section who had had a previous caesarean and a breech presentation. The anaesthetist, Dr Hines, "didn't feel happy going ahead - coming in, if I was just the only person present": p 732. As a result, Dr Booth rang Dr Simpson again to obtain his agreement to come in to the hospital: p 732. She then rang the anaesthetist back and obtained his agreement to come in as soon as possible. She was asked in chief, after noting that there would have been no need for a vaginal examination of Mrs Kolled (p 741):
"Q. And what else in terms of time would be saved in your view in the course of events?
A. I think we probably would have only had two phone calls to make. I think Dr Hines would have come in on my first call because he would have been coming in. In actual fact, Dr Simpson would have been coming probably with the previous classical history.
Q. Right, and in the event of you knowing it was a previous caesarean section is that the sort of thing you would have offered to do by yourself or …
A. I probably in that situation would have asked Dr Simpson to come in on my first call because I have done plenty of lower segment caesarean sections, but I haven't had a lot of experience in previous classic sections. So on my first call I would have said I prefer him to come and I am sure he would have and I would have rung Dr Hines and he would have come straight in."
120 In cross-examination, Dr Booth was pressed with the evidence of Dr Zipser that, when on call, he would take 35 minutes to reach the hospital and that everything would be set up and ready to go when he arrived. She did not disagree with that assessment of time, but noted that "it would depend on which anaesthetist was on call, and where they lived": p 757. She then gave the following evidence:
"Q. … I take it, then, that you do not regard it as at all out of the ordinary that it would take something like 40 plus minutes for your various consultants to arrive at the hospital; is that right?
A. In the middle of the night, they have to get out of bed. They have to get dressed, and drive in. I was hoping they would make it in 30, but I didn't think it was untoward that they took 40.
…
Q. You would have impressed upon them a greater degree of urgency if, in fact, you had known that there was a classical Caesar?
A. Yes.
…
Q. Do you know where Dr Hines lived?
A. No."
121 There is force in Dr Booth's evidence. How long the anaesthetist and surgeon would have taken to reach the hospital would have undoubtedly depended upon the distance of their homes from the hospital, their circumstances when they received the call and the sense of urgency in respect of the proposed procedure. It could be inferred from Dr Booth's evidence that the anaesthetist at least did not consider the matter urgent or indeed one requiring his attendance at all, on receiving the first call. Dr Booth hypothesised that they may have been in bed when the calls came, but there was no evidence of that. Even if they had been, it was less likely that they would have been had the calls come 30 minutes earlier. It is likely that, had the critical information been available at Bankstown Hospital on the night in question, there would not have been a need for four telephone calls by Dr Booth, both surgeon and anaesthetist would have treated the matter with a degree of urgency which was not in fact displayed on the night in question, with the result that, taken cumulatively with the absence of need for a vaginal examination by Dr Booth, the delay would have been reduced by at least 10 minutes. This inference can more comfortably be drawn in the circumstance of neither Dr Hines nor Dr Simpson being called, nor there being any evidence as to their unavailability.
Consequences for plaintiff
122 There was evidence of a dramatic decline in the plaintiff's foetal heart rate in the course of the evening. His Honour summarised the evidence in the following passage at [124]:
"The foetal heart rate was recorded at 11pm. It was within the normal range at 140. A note made by Dr Booth and timed at 11.30pm refers to a foetal heart rate of 140. It was accepted in the conduct of the plaintiff's case that this was a foetal heart rate measured by Dr Booth between 11.20pm and 11.30pm and not a reference back to the foetal heart rate measured at 11pm. At 11.40pm the foetal heart rate was monitored by Sister Shipley. It was found to be 80. This was below the normal range. Dr Booth then listened to the heart rate and concluded it evidenced a prolonged bradycardia (slowness of the heart rate)."
123 His Honour noted that after 11.40pm the foetal heart rate was monitored and dropped to 40: at [125]. That event was not recorded but was recalled by Dr Booth, who placed the time at about 12.10am, being the time of arrival of the surgeon and anaesthetist. When born, the plaintiff had no heart rate, was not breathing and required resuscitation: at [146]. His Honour then noted the following evidence:
"[147] Mr Clements gave evidence that, where there was a total or near total lack of oxygen, a foetus at 36 weeks gestation could survive 10 minutes without suffering permanent harm, would suffer irretrievable brain damage at 10-20 minutes and would be dead at 30 minutes. He accepted that foetal bradycardia of less than 20 minutes could be associated with significant brain damage.
[148] Dr Booth gave evidence that with a bradycardia of 80, brain damage would be beginning after 10 minutes and after 20 minutes there would probably be very severe damage."
124 There was an issue as to when rupture occurred and as to whether it was an event or a process. It may be accompanied by a sudden severe pain: at [149]. Mrs Kolled made consistent complaints about feeling "knife-like pains in the abdomen" although her evidence varied significantly as to when they occurred. There was no record of any such complaint in the hospital notes, but his Honour accepted Dr Booth's suggestion that they may have happened when the drop in foetal heart rate was noted and, as the matter then became urgent, were not noted: at [151]. There was no finding as to whether less severe pain in the abdomen could have preceded rupture.
125 His Honour concluded that rupture occurred at, or shortly before, 11.40pm. Because the plaintiff was alive when delivered some 50 minutes later, it seems likely, as Mr Clements hypothesised, that "initially there was only a partial rupture": at [152].
126 His Honour accepted that "by midnight or shortly thereafter the plaintiff was in all probability grossly and irretrievably brain damaged": at [152]. As the hospital records indicated, the plaintiff was delivered at 12.28am. On the conservative findings set out above, he would have been delivered no later than 11.48pm, namely 40 minutes earlier. On the accepted conclusion of the trial judge that the rupture occurred at 11.40pm, delivery would have taken place within 10 minutes of the rupture. That was a period within which it was likely that irreversible brain damage would be avoided. That likelihood may be accepted as more probable than not because the actual delivery of the plaintiff some 48 minutes later in a state permitting resuscitation indicated that the initial rupture was not complete and hence the period prior to irreversible brain damage would probably have exceeded 10 minutes.
127 It follows that the relevant causal connection was established with respect to each element of negligence found by his Honour and the harm suffered by the plaintiff. There was no challenge to the quantum of damages, which was largely agreed, subject to a small number of items which were assessed by the trial judge. Accordingly there should be judgment for the plaintiff in the amount of $7,281,319.
Apportionment
128 Because his Honour made findings in favour of the defendants at trial, he did not address the question of apportionment between them, as was required for disposal of their respective cross-claims. No written submissions were made in respect of apportionment and in the course of the appeal hearing, it appeared to be common ground between counsel for the respective respondents that the apportionment would be in the order of one-third:two-thirds, with each preferring the lower proportion. No respondent submitted that, if the Court were minded to give judgment for the plaintiff, the question of apportionment should be remitted.
129 On the findings reached above, Northern Health was responsible for a failure in 1978 on the part of the practitioners who undertook the first caesarean section to advise Mrs Kolled of its nature and give her clear warning as to the risks she would face with respect to a future pregnancy. Despite that failure, it should be inferred, on the probabilities, that critical information as to the nature of the procedure was recorded in the hospital operation notes.
130 The failure on the part of Bankstown Hospital was in not writing to the Preston Hospital in 1984 to inquire as to the nature of the procedure undertaken. Although it might well be sufficient to give a clear warning to a mother, the importance of accurate communication between professionals is of greater importance. This is recognised in the universal obligation for doctors to record information which may be material to future medical events. Because people tend to be mobile, it is both expected and required that inquiry and communication occur between those retaining records and those involved in future care and treatment. Because appropriate steps were taken at the Preston Hospital, but were not taken by Bankstown Hospital, Bankstown Hospital must bear primary responsibility for the loss. There is always a risk that communications with a lay person will be misunderstood to some degree and that recollections will fade over time. In these circumstances, communication with the patient should be taken as a necessary but lesser obligation.
131 The appropriate apportionment of responsibility is to attribute two-thirds to Bankstown Hospital and one-third to the Preston Hospital.
Orders
132 The amount of the judgment was calculated by the parties to include interest up to 28 June 2007, being the date of the trial judge's orders. It would be possible to backdate the present judgment to that date, and it seems preferable to take that course, rather than require the parties to up-date their calculations. The schedule of damages, as agreed between the parties and as further assessed by the trial judge, is for a reasonable amount and is approved.
133 Costs will normally follow the event, but the parties should have an opportunity to make submissions as to any variation of the costs order, dependent upon possible offers of compromise, by notice of motion filed within 14 days of the delivery of judgment.
134 The appropriate orders are as follows: