The question was objected to. Counsel for the respondent sought to justify it as going to the credibility of the appellant but said that perhaps it was better for submission but he did not want to be in the position where he could be accused of not having put it to the appellant. The trial judge did not formally rule on the question but it was not pressed.
39 During cross-examination it was put to the appellant that he had been unduly hasty in using traction at only seven minutes into the third stage. He denied this. In re-examination he said that the normal length of the third stage varied from five to fifteen to thirty minutes adding "So seven minutes is at the lower end of the normal range".
40 Further mention of Dr Hinde's report. The appellant's evidence ended towards the end of the sixth day. Then, in the absence of the jury, counsel for the appellant again raised the matter of Dr Hinde's report which had been earlier mentioned on the fourth day. He said that he understood counsel for the respondent still intended to object to his relying on it, although, in his contention it had been served within time. He said Dr Hinde was an obstetrician and that he had three obstetrician witnesses who all said substantially the same thing. Counsel for the respondent then said that although in his contention the report had not been served in accordance with the specific timetable laid down for the case, he thought the respondent was able to meet it. He said the only real prejudice was the possibility that the jury might do a head count of experts and ended by saying that subject to his respectful request that the judge would in the course of directing the jury enjoin them not to make any decision based upon a head count of experts, he did not object to the use of the report.
41 Dr Elliott. Dr Elliott was the first witness to give evidence on the seventh day of the trial. He had a very long experience and very high qualifications as a specialist obstetrician and gynaecologist. He estimated he had delivered 12,000 babies in the course of which he had had one incident of uterine inversion which he said had been a spontaneous occurrence which he had replaced immediately.
42 Dr Elliott had given a report based on the clinical notes of the Inverell Hospital. The report was not tendered. Counsel for the appellant took the witness through the report, in a way which makes it difficult to know when the witness was reading from it, when he was paraphrasing it or when he was adding to it.
43 A principal point of his evidence for present purposes was that the "authors ... of the more recent literature ... believe that spontaneous occurrence of inversion of the uterus is probably the cause in 50%." (Black AB 2/366). In the same answer he added "Cord traction is controlled, ... and it is not used until there is separation ... You can't use that method of delivering the placenta until there has been placental separation", and he added, shortly afterwards, in another answer, "... the afterbirth is beginning to separate as the baby is being delivered. So placental separation is occurring at that stage ..." (Black AB 2/367). A little later again, he said that in 99.999% of cases the placenta will have started to separate as the baby is coming through the entrance to the birth canal (Black AB 2/367).
44 His opinion was that on the materials available to him, the appellant had not been in any way deficient in his management of the respondent in his care of her on 25 September 1977. His conclusion (although it sometimes appears in fact to have been an assumption) was that the appellant carried out controlled cord traction in a way that would not have been the cause of the inversion of the uterus.
45 He was also asked, in his evidence in chief, about a number of articles in the medical literature. In answer to questions from counsel for the appellant he read out parts of some of the articles. When asked to quote from one particular article he said:
" I could quote on page - it is cut off but what they are saying is modern reports fail to show a direct association of inversion with mismanagement of the third stage, so what they are saying is that this rare occurrence doesn't happen because the doctor has mismanaged it. " (Black AB 2/370)
46 Simply from a reading of the witness's answer, and that is all that was before the jury, the witness's understanding of what the authors were saying as given at the end of his answer does not seem to follow from the earlier part of it; it seems to be an expansion of the text, not justified by so much of the text as was available to the jury through the witness's evidence, and an expansion in favour of the appellant's case.
47 However, the impression given by that answer of the witness must be qualified by what he said very shortly afterwards:
" Q. Now, I take it that you subscribe to the school of thought that you have just been telling the jury about?
A. Yes, I believe that you can't incriminate mismanagement as the cause with the exception of actually pulling on the cord, I mean, without control of the things and without knowing that the placenta has separated. " (Black AB 2/370)
48 Although this answer is not completely clear, it seems to me to mean that mismanagement can be incriminated as the cause of uterine inversion when there has been pulling on the cord "without control of the things and without knowing that the placenta has separated". Why I am not fully sure of the meaning of his answer is the presence of the words "without control of the things" which, in the context, I do not understand. However the answer as a whole seems to me to mean that the witness was recognising that even after delivery of the baby the placenta may not have separated and that there should not be any pulling on the cord until the attendant doctor is at least reasonably sure that that has happened.
49 The cross-examination of Dr Elliott began with a challenge to his impartiality. Based on his cross-examination, counsel for the respondent later said to the jury in his final address that Dr Elliott was "an appalling witness ... A bad record, and an appallingly evasive, biased witness". He contrasted him with Professor Crandon, Dr Cross and Dr Child (a witness called in the appellant's case, who gave evidence after Dr Elliott) who he said were prepared to make concessions that seemed to them to be reasonable. In the course of argument in the appeal. questions were raised whether counsel had been entitled to say these things to the jury about Dr Elliott. I think it is difficult for this court itself to form any opinion of Dr Elliott. The opinion it was open to the jury to form would be based not only on what appears in the transcript and is available to this court, but also upon the manner in which he answered questions. Pauses and hesitations do not appear in the transcript. They play a part in the formation of an observer's opinion of a witness. Just how efficient the part they play is has in recent years been a matter for argument, but, for better or for worse, they do play a part, and they are not available to this court. All that this court can do upon a reading of the record in this case is to try to assess whether the answers given by the witness to counsel were such as to enable counsel, without impropriety and unfairness to the witness, to make the observations that he did.
50 With that in mind I would say at this stage, that the answers given in cross-examination at Black AB 2/389, 390 (about not checking about the blood bank in 1977), 392, 395 lines 25 to 45, 397 lines 22 to 29, 398 to 399 line 5, 401 lines 45 to 49, and then the following sequence, seem to me to provide material upon which it was possible for counsel to make the submission to the jury that he did. It was a matter for the jury to decide whether it accepted the view put to them by counsel. I wish to make it clear that I am not myself adopting or approving counsel's view. For reasons already mentioned, I do not think I am in a position to do so. My comment goes no further than saying that the written record of the cross-examination of Dr Elliott provides material in the light of which I do not think that it can be said to have been improper of counsel to say what he did.
51 (I have gone into this in a little detail because in the course of the oral argument in the appeal there was some discussion about whether there was something improper or unfair in the submission made to the jury about Dr Elliott. As I have indicated I do not think, on the available materials, that there was. It also seems to me to be of some relevance that counsel for the appellant did not make such a submission.)
52 It also became clear in cross-examination that Dr Elliott's opinion that the appellant had not been negligent was based on the appellant's having said that he only used controlled traction as taught. His opinion was thus based on the assumption that controlled cord traction had been used which he defined as "a gentle thing with pushing the uterus away with your hand above the pubic bones and the placenta is already separated". This led to counsel asking whether or not he should not have said the placenta should be already separated to which Dr Elliott replied "You cannot use controlled cord traction if the placenta is not separated" (Black AB 2/397). The cross-examination proceeded:
" Q. You must never use it in order to separate it?
A. That is correct.
Q. So you don't use it in a situation where the placenta is not coming down, to drag it down, do you?
A. You can't drag it down if it is not separated. You can't use controlled cord traction unless the afterbirth has separated from the womb.
Q. Because you might the whole uterus inside out, mightn't you?
A. Exactly. That is why you don't do it. "
53 This part of his evidence was useful to the respondent in support of what I have called her primary case (depending, of course, on the meaning the jury would attribute to the appellant's reported statement that "the placenta wasn't coming away").
54 There were other questions asked of Dr Elliott in cross-examination which became the subject of submission in the oral argument in the appeal which I will not set out here but will deal with when dealing with the ground of appeal under which they were raised.
55 Dr Child. Dr Elliott's evidence finished not long before lunch on the seventh day of the trial. Dr Child was then called as a witness for the appellant. He was another highly qualified specialist obstetrician and gynaecologist. In more than thirty years of practice he had himself twice experienced an inverted uterus when in charge of a childbirth. (Not all of his years of practice involved him in the personal delivery of babies; for a number of years he had been in a supervisory position.) The standard method that he used for delivering the placenta was by controlled cord traction. He was asked whether he had been asked to prepare a report by Blake Dawson Waldron to which he answered yes. The report was not tendered. Dr Child was taken through it by counsel in examination in chief in such a way that parts of it seem to have got into the evidence verbatim. In part of his report he had said he did not think the placenta was being delivered with any undue haste by the appellant.
56 Dr Child said the cause of acute inversion of the uterus was not well understood. On the materials with which he had been supplied he saw no basis for criticism of the appellant. He was asked about "current thinking as to the most common cause of uterine inversion" (Black AB 2/415). His answer was
" Some of the articles and chapters now would suggest that approximately 50% may be due to excessive traction on the cord, pulling on the cord too hard before the placenta has completely separated. The other 50% seem to occur spontaneously and to be due to various factors. " (Black AB 2/415)
57 Dr Child then listed the factors. He stressed the need of separation of the placenta before the use of traction (Black AB 2/416). He said that the usual sign of separation is that the cord lengthens, accompanied by the fundus moving up (that is, away from the cervix). He said abdominally you can feel it move up as a hard ball in the abdominal cavity (Black AB 2/416). He went on to say that the most definitive sign of separation is the doing of an internal examination which enabled you to feel the placenta sitting in the cervix or the vagina; then, he added, "once you have established that it has separated or you are comfortable that it is separate then the normal practice is controlled cord traction" (Black AB 2/416).
58 Dr Child also later commented in his evidence in chief that the complication the appellant had encountered was extremely rare and with the sort of experience the appellant had he would expect to come across it once in every 200 years, so that to face it in the circumstances in which he did "must have been a most unnerving event" (Black AB 2/418).
59 Once again, the evidence concerning separation before traction lent weight to the respondent's case, if the jury took a view of the meaning of the words "the placenta wasn't coming away" favourable to the respondent. The evidence concerning the unnerving event would have been favourable to the appellant in one way, in suggesting that it may have been unreasonable to expect more of him in his circumstances at the time than he in fact did (although the unnerving event occurred after he had pulled on the cord) but again may well have caused the jury to wonder how he had come to forget about it so completely.
60 Dr Child's evidence in chief continued into the eighth day.
61 In cross-examination one question taken up with Dr Child was how the appellant's statement that the inverted uterus had reversed itself between the time when he first noticed it in the delivery room and when he made the perineal repair in the operating theatre could be reconciled with Dr Giblin's finding that the uterus was inverted in the following February in a way which he thought must be connected with its having been inverted at the time of the birth in September. Dr Child conceded that it was a possibility that at the time the respondent was discharged from the Inverell Hospital there was some degree of partial inversion of the uterus remaining. He also agreed, consistently with the evidence he had given in chief that if at the time the appellant had applied traction to the cord there was no sign of the placenta coming down it would have been inappropriate for him to apply traction (Black AB 2/441).
62 Dr Child was also asked in cross-examination about the basis of some of the modern literature concerning the causes of uterine inversion. He agreed that it was necessarily based on reports by attending doctors who had had to deal with the event. He also agreed that, in regard to the possibility they may have pulled too hard, "they wouldn't advertise that fact" in their reports of the case.
63 Dr Hinde. Dr Hinde was the last witness for the appellant. He was called between the morning and lunch adjournments on the eighth day of the hearing. He had prepared a report. Yet again, this was not tendered. He was without objection invited to read from it. Judging by the amount that found its way verbatim into the transcript it must have been quite lengthy. The reading was interspersed with comment and explanation. Counsel also raised with him in the course of the reading of the report various opinions expressed by Professor Crandon and Dr Cross and Dr Hinde gave his own opinion on those matters, sometimes differing from them. All this took up about twenty pages of transcript. Counsel for the appellant then said to the witness that he wanted to put to him another view expressed by Dr Crandon concerning the reasons for uterine inversion. This brought an objection from counsel for the respondent. The basis was that the matter was not dealt with in Dr Hinde's report. Counsel reminded the judge that the objection to the report's being out of time had not been persisted in.
64 After hearing argument, with which I deal in a little detail when considering the first ground of appeal, the judge refused to allow evidence on the topic to be given.
65 Dr Hinde was then cross-examined on the matters with which he had dealt in evidence in chief. He was also asked questions about the possibility that his expert evidence might not be completely objective. He maintained his belief in his own objectivity.
66 He also said in cross-examination that he believed that what had happened between 25 September 1977 and the respondent's consultation with Dr Giblin was that at the conclusion of the procedure on 25 September 1977 there was a first degree inversion of the respondent's uterus and then during the period until she was examined by Dr Giblin there was progressive change to what was a second degree inversion (Black AB 2/487). However he rejected completely the possibility that there could have been an inverted uterus to the vaginal opening, in light of the hospital notes.
67 Final preliminary remarks. Some of the oral argument in the appeal hearing seemed to me to stray outside the grounds of appeal. It is noteworthy that three grounds (1, 14 and 15) complain about events in the course of the giving of evidence and these complaints deal with exclusion or admissibility of evidence. The other four grounds deal with the respondent's counsel's address to the jury (ground 2) and errors allegedly made by the trial judge in his directions and summing up to the jury (grounds 3, 6 and 7). Except to the extent that ground 2's allegation of counsel's inflammatory address to the jury reflected things said in the course of presentation of evidence, no complaint was made in the appellant's submissions about the conduct, prior to his final address to the jury, of the respondent's counsel.
68 Before at last coming to the grounds of appeal I would like to make it clear that on reading the transcript more thoroughly after hearing oral argument in the appeal than I had done before it, I finished with quite a different impression of the course of the trial from that I had gained simply by attending to the argument on the particular grounds of appeal relied on by the appellant. It is against that fuller background that I now approach those particular grounds.