Freidin v St Laurent [2007] VSCA 16

1 I have had the considerable advantage of reading in draft the reasons for judgment prepared by Chernov JA. I agree with his Honour, for the reasons he gives, that the appeal should be dismissed, but there are two points I wish to add.

2 First, whether a direction in accordance with the dictum of Gaudron J in Naxakis v Western General Hospital[1] is appropriate depends on the facts of the case being tried. Where such a direction is appropriate, the position is that:

(a) the burden of proving that the negligence was a cause of the injury rests on the plaintiff; but

(b) the tribunal of fact is entitled[2] to conclude that that burden is discharged if -

(i) the plaintiff proves that the negligence resulted in an increased risk of the injury that occurred; and

(ii) the defendant does not point to evidence that suggests that no causal connection exists.

3 The wording I have adopted is not exactly that of Gaudron J or that of the learned trial judge in the present case. In particular I have referred, like McHugh J in Chappel v Hart[3], to an evidentiary onus on the defendant to "point to" other evidence that "suggests" that no causal connection exists, rather than the defendant's "establishing" that the failure had no effect or that the risk would have eventuated in any event. The problem in speaking of the defendant's "establishing" or "proving" something is that it risks imposing a legal burden on the defendant, when all that is involved in an evidentiary burden.

4 In most cases, in addition to using words like "entitled" and "may",[4] which may be clearer to lawyers than to jurors, a jury should be told expressly that they need not find the requisite causal connection even if the plaintiff does prove (b)(i) above and the defendant does not point to contrary evidence and that that is because, in the end, they have to be satisfied, on balance, that the negligence was in truth a cause of the injury. The legal burden is always on the plaintiff. An example of a case where the tribunal of fact may fail to be satisfied of the requisite causal connection is where the defendant's conduct increased the risk only very slightly and there is no other evidence.

5 The second point I wish to add is this. It was open to the jury to find that Dr Freidin was negligent in accordance with the law as it then stood. That was not a foregone conclusion. Moreover the law has since changed. Since 2003 s 59 of the Wrongs Act 1958 has provided that a professional person is not negligent in providing a professional service if he or she acted in a manner that, at the time the service was provided, was widely accepted in Australia by a significant number of respected practitioners as competent professional practice. Such peer professional opinion must not be unreasonable, but it does not have to be universally accepted in order to be widely accepted and the fact that there are differing peer professional opinions does not prevent one or more of them being relied on by a defendant.

6 Given the highly qualified expert witnesses called on both sides in this case, one cannot help but think that the result might have been different under the law as it now stands. It was changed to protect competent professionals acting in accordance with a widely accepted practice.

7 In my opinion the appeal should be dismissed for the reasons stated by Chernov JA.

8 The appellant, Dr David Freidin, who is an obstetrician and gynaecologist, appeals against the judgment for $32,000 entered in the Supreme Court in favour of the respondent, Marija St Laurent, in accordance with the jury's verdict given on 8 December 2005. After a trial that lasted six sitting days the jury found the appellant negligent in respect of personal injuries sustained by the respondent in the course of giving birth, and awarded her damages in the sum of $30,000. Damages in the nature of interest were agreed between the parties at $2,000. The appellant contends, essentially, that the learned judge erred in his directions to the jury on the issue of causation and that, in any event, no reasonable jury, properly instructed, could have reached the conclusion that the appellant was negligent or that his negligence caused the injury in question. He seeks an order that the judgment entered against him be set aside and consequential orders.

9 Before considering the issues raised on appeal it is necessary to set out briefly the relevant background circumstances. In the proceeding,[5] the respondent claimed damages in respect of an injury that she sustained in the course of giving birth to her child and subsequent recovery. The injury was described as a large right sided vulval haematoma, requiring evacuation of approximately 15 per cent of the respondent's total blood supply. It was said to have been caused by a shearing effect between the vaginal wall and paravaginal tissue that occurred during the delivery process. It was the respondent's case that the appellant was negligent in using Kielland forceps to deliver the baby on the evening of 24 December 1999 without performing an episiotomy and that this was a cause of her injury. In the event, the only issues at trial were whether the appellant was negligent in not performing an episiotomy and, if he was, whether the negligent omission was a cause of the respondent's injury.

10 The uncontentious facts were that the appellant was first consulted by the respondent, who was then aged 24 years, in August 1999. He continued to manage her throughout the course of her pregnancy which, it seems, progressed satisfactorily. On 23 December 1999, at approximately 7pm, the respondent went into labour and was admitted to hospital. The appellant examined her at 7.45am on the following morning and again at about 1.35pm on that day. The appellant gave evidence that he found that the position of the baby's head was right occipito-transverse, which meant that it had spontaneously rotated 45 degrees since the morning examination. This was said to be a promising sign indicating that, with continuing contractions, the head would continue to rotate to the anterior position. The baby's head continued to descend throughout that afternoon as the respondent was undergoing contractions. It was noted by the midwife that the head was palpable post anally, something that generally indicated, according to the appellant, that the head was low down in the pelvis. Shortly after 6pm, the midwife advised the appellant that the respondent had been pushing and that the baby's head had descended but that, in response to the respondent's contractions, there were decelerations in the foetal heart.

11 The appellant arrived to deliver the baby at approximately 6.35pm. He said that he found the baby's head well down in the lower part of the vagina but, upon examination, saw that that baby's head was not occipito-transverse as expected but in a posterior position. An attempt to rotate and deliver the baby by vacuum extraction was not successful. In the result, the appellant determined to rotate and deliver the baby using Keilland forceps. He said that he applied the forceps laterally on either side of the baby's head, dropped the blades of the handle down and rotated the blades. In the event, the baby was delivered in a healthy state. The appellant explained that, in the course of delivering the baby, he guarded the perineum with his right hand and, as the head came out of the vagina, he swept back the perineum over the baby's face and chin to release the head. He said that there was no need to perform an episiotomy because "the perineum was stretching and the vagina was stretching nicely". After the delivery the appellant sutured two superficial tears in the left and right wall of the respondent's vagina. He said that he presumed the cause of the tears to have been the passage of the baby's head through the introitus, although in cross-examination he agreed that it was possible that the tears may have been caused by the forceps as the baby's head was coming through or under the perineum. He was not able to say either way whether they could have been prevented had he performed an episiotomy. The appellant completed the sutures shortly after 7.00pm. Not long thereafter, however, the respondent commenced to feel pain on the right side of her vagina and her husband noted some swelling in that area. At about 8.20pm the midwife observed a large right labial haematoma. In the result, the appellant examined the respondent at 10.35pm. He observed a large right sided vulval haematoma that contained approximately 800mls of blood that had spread diffusely. The appellant evacuated the blood clot and sutured the defect which he estimated to be at least 10cm in length. Although the origin of the bleeding could not be identified precisely by the witnesses, it was apparent that it was from deep tissue "inside" and not from either of the two vaginal lacerations.

12 As I have said, at the trial, the respondent contended that the appellant was negligent in failing to perform an episiotomy during the course of the delivery and that this negligence was a cause of her injuries. The appellant, on the other hand, claimed that, in the circumstances, it was not negligent for him not to have performed an episiotomy and that, in any event, the respondent had failed to show that the omission was a cause of her injuries.

13 Both sides called expert evidence at the trial. The respondent called Dr John Richard Pogmore, an obstetrician and gynaecologist with considerable experience both in Australia and England. The respondent also called Professor Norman Albert Beischer AO, an experienced obstetrician and gynaecologist, who held a number of appointments at hospitals and had contributed extensively to the medical literature in this area, including having co-authored a widely used text book in the field of obstetrics in Australia.[6] The appellant, who gave evidence, called as independent experts Professors John Michael Holroyd Permezel and Alexander John Campbell, who are obstetricians and gynaecologists, and who have had extensive experience in this field. Unsurprisingly, none of the experts' qualifications was challenged during the trial.

14 The proceeding was heard, as I have said, over a period of six sitting days and, on the seventh day, 8 December 2005, the jury returned the verdict that I have summarised earlier. The appeal is limited to the claims that his Honour erred in directing the jury on the issue of causation and that the findings of negligence and causation were not open. There is no challenge to the quantum of the damages assessed by the jury. I now turn to consider each set of grounds on which the appellant relies.

Misdirection on causation - grounds 1 and 2

15 Before his Honour charged the jury on the issue of causation, he told counsel that he proposed to do so in accordance with what was said in that regard by Gaudron J,[7] in Naxakis v Western General Hospital[8], namely:

"There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases. For the purposes of the allocation of legal responsibility, '[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring'. And in that situation, the trier of fact - in this case, a jury - is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that risk would have eventuated and resulted in the damage in question in any event." (Citations omitted)[9]

The appellant's counsel submitted to his Honour that he should not charge the jury in accordance with Gaudron J's formulation but should direct that, before the jury could be satisfied that the appellant's wrongful conduct caused the respondent's injury, they had to be satisfied that "on the balance of probabilities an episiotomy would have obviated the risk of injury." His Honour did not accept the appellant's submission and said that he would charge the jury on the matter of causation in accordance with what McHugh J said in Chappel v Hart "as it was approved by a number of judges in Naxakis**.**" Relevantly, his Honour said this:

"The plaintiff must satisfy you on the balance of probabilities that if you find there was negligence of Dr Freidin it was a cause of her injuries loss and damage ... this is a question of fact for you, and it's to be resolved by you as a matter of common sense. One thing the law is not concerned about is some notion of causation in accordance with some philosophical or scientific theory of causation. The existence of the causal connection between the negligence and the injury is to be determined in accordance with common sense. It is necessary for the plaintiff to establish on the balance of probabilities that the failure to carry out the episiotomy caused or materially contributed to the cutting of the vaginal wall and the resulting haematoma. If you conclude that the wrongful omission to carry out an episiotomy results in an increased risk of injury to the plaintiff, and that risk eventuates, then you may come to the view that the defendant's conduct has materially contributed to the injuries that the plaintiff suffers, whether or not other factors also contributed to that injury occurring. If you reach that conclusion, then in that situation as members of the jury, you are entitled to conclude that the omission caused the injury in question, unless the defendant establishes that the failure had no effect at all, or that the risk would have eventuated and resulted in the injury in any event. Now this brings me back to the point about evidentiary burdens. The legal burden does rest upon the plaintiff. She must prove the duty of care, which I say she's established, she must prove negligence, and she must prove that the negligence was a cause of the injuries. But if she establishes that the wrongful omission to carry out an episiotomy resulted in an increased risk of injury to her and that risk eventuates, then you may come to the view that the defendant's conduct has materially contributed to the injuries. You are then entitled to conclude that that omission caused the injury in question unless the defendant establishes that the failure had no effect at all, or that the risk would have eventuated and result in the injury in any event. Now what that means is, as I've said, it involves the question of an evidentiary proof. In other words the fact that there is the risk and the injury occurs may then lead you to the conclusion that the omission caused the injury unless there's evidentiary matters which show that the failure, i.e. the failure to carry out an episiotomy had no effect at all, or that the risk would have eventuated and resulted in the injury in any event. That evidentiary burden rests upon the defendant. If that's not established, then you may more readily draw the conclusion that the omission, if you find it was negligent, was a cause. As I say the question of causation is to be determined on a common sense basis after carefully considering all the relevant circumstances ... if you're satisfied on the balance of probabilities that the plaintiff has proven that the defendant was negligent, and that the defendant's negligent omission to perform an episiotomy was a cause of the injuries that she suffered, then your answer to the first question will be yes." (My emphasis.)

16 Before us, Mr Beach, for the appellant, contended that his Honour's charge suffered from a number of material defects. It was first said that, the learned trial judge erred in treating the above statements of Gaudron and McHugh JJ as being of general application rather than confined to circumstances where the plaintiff has established that the injury not only followed the wrongdoing but occurred because of it. In support of the contention that each judgment is confined to particular facts proved, counsel referred by way of illustration to the following observation of the Earl of Halsbury LC, in LC, in Quinn v Leathem[10]:

"... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found."

17 It was then said that, in any event, his Honour erred in concluding that what was relevantly said in Naxakis and Chappel v Hart applied in the present case. It was argued that in those cases it was accepted that the injury was sustained because of the defendant's negligence whereas here, the evidence was not that the respondent suffered injury because of the appellant's failure to perform the episiotomy - rather the evidence was that the injury may or may not have occurred even if an episiotomy had been performed. In that regard, counsel referred to the observation of Spigelman CJ in Seltsam Pty Ltd v McGuiness[11] that in order to establish a causal link it must be shown, not only that the risk of injury was increased by reason of the wrongful act and that it materialised, but that this occurred because of the wrongdoing.[12] Mr Beach pointed in particular to the following passage in Seltsam[13]:

"The issue in the present case is whether an increased risk did cause or materially contribute to the injury actually suffered.

There is a tension between the suggestion that any increased risk is sufficient to constitute a 'material contribution', and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of reference is to be found in the fact that, as in Chappel v. Hart and in the cases that suggest the former, the actual risk had materialised. The 'possibility' or 'risk' that X might cause Y had in fact eventuated, not in the sense that X happed and Y also happed, but that it was undisputed that Y had happened because of X.'"

18 Mr Beach argued, as I have noted, that in Chappel v Hart and Naxakis the plaintiff's injury occurred because of the negligence of the defendant - in the former case, the plaintiff suffered injury because she underwent surgery performed by the defendant as a result of not having received appropriate warning, and in Naxakis the plaintiff suffered the injury because the doctor did not obtain an angiogram before discharging him and/or did not make alternative diagnoses and/or did not keep the plaintiff in hospital for a sufficient period. It was understandable, counsel said, that in those circumstances the question that fell to be resolved was whether there should be an allocation of responsibility as against the defendant. Here, it was argued, the evidence did not establish that the respondent suffered injury because of the appellant's failure to perform an episiotomy; it only established that the respondent may or may not have suffered the injury even if that procedure had been performed. Hence, it was claimed, his Honour should have directed the jury that before they could conclude that the appellant's failure to perform the episiotomy, if negligent, was causative of the respondent's injury, they had to be satisfied that the procedure would probably have averted the risk of injury.

19 It is plain enough that every judgment is to be read in the context of the facts on which it is based, so that the test stated in Naxakis and Chappel v Hart for the purpose of determining causation will not necessarily be relevant in every case where negligence has been alleged against a treating medical practitioner. It is necessary for the trial judge to mould the directions on causation so as to make them appropriate to the circumstances of the case and ensure that the jury understands that, even if they conclude that the defendant's impugned conduct was negligent, before they could consider the question of damages, they had to be satisfied that, as a matter of common sense, the wrongdoing was probably a cause of the injury in question.

20 It seems to me, however, that what Gaudron J relevantly said in Naxakis is generally apposite to the present case. I take her Honour to have been saying no more than that if the jury were satisfied that the defendant's wrongful conduct resulted in an increased risk of injury to the plaintiff and that risk occurred, ordinarily they were entitled (but not required) to infer from these circumstances that the wrongdoing materially contributed to the injury and was causative of it, unless the defendant persuaded them that the conduct had no effect at all or that it would have occurred in any event. As McHugh J effectively said in Chappel v Hart[14], upon establishing that the wrongful conduct increased the risk of injury to the plaintiff and the risk materialised, the plaintiff has "made out a prima facie case of causal connection" and the evidentiary onus then shifts to "the defendant to point to evidence that suggests that no causal connection exists... Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff." It should be borne in mind, however, that neither of their Honours indicated that a material increase in the risk of injury by reason of the wrongdoing necessarily involves a finding of causation, even if the risk has materialised. What Gaudron J said in that regard, as has been noted, is that in those circumstances the jury only becomes entitled to conclude that the wrongful act caused the injury, so that there might be circumstances where the increase in risk is so slight that, as a matter of "common sense", it could not be said that the wrongdoing was a cause of the injury.[15]

21 In Seltsam Spigelman CJ considered that, in the circumstances of that case, the causation test formulated in Naxakis was inappropriate to the situation before him. But, in my view, the circumstances in that case were materially different from those here and the observations of the Chief Justice on which Mr Beach relies are not determinative of what is the appropriate test of causation for present purposes. In Seltsam the essential question was whether the plaintiff's inhalation of asbestos dust and fibre at the defendant's factory caused or contributed to his renal cell carcinoma. The plaintiff's evidence, which consisted almost exclusively of epidemiological studies and medical opinions based thereon, showed that there was a statistical possibility that exposure to asbestos dust increased the risk of the person contracting renal cell carcinoma. There was no evidence, however, that connected, as a matter of probability, the possible increase in risk from exposure to asbestos with the injury that was suffered by the plaintiff and, as his Honour said[16], nothing in the studies or reports "turned in any way on the circumstances of the particular case." Thus, the plaintiff was compelled to rely on the statistical evidence that his exposure to asbestos may have been productive of his injury. Although Spigelman CJ considered[17] that such evidence was admissible, he said that it only established the possibility that the defendant's negligence increased the risk of that injury to the plaintiff but not that, as a matter of probability, the risk eventuated in his case. His Honour explained[18] that in Chappel v Hart (and in Naxakis) the inference could be drawn that the increased risk constituted a material contribution to the happening of the injury because the actual risk materialised and because the wrongdoing increased the risk of the injury. More particularly, the Chief Justice said that the starting point of the analysis by McHugh J was that "it had been established on the balance of probabilities that the conduct did create or increase the risk of injury 'and that risk' had eventuated." But, in the case before him, that starting point, said his Honour, was the very matter in issue: "[w]as there was evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had 'eventuated' in the specific disease of the [plaintiff]?" Spigelman CJ concluded that, although there was epidemiological evidence of "increased risk", for the purpose of determining causation in relation to the plaintiff's specific injury, it never rose above the level of possibility. The "quality of the underlying facts" said his Honour[19], was such that the inference could not properly be drawn that the plaintiff's exposure to the asbestos was causative of his injury. The basis of an inference of causation would have been different, said the Chief Justice, had there been evidence specific to the plaintiff such as the presence of asbestos in his kidney linking exposure to it to his renal carcinoma. Specifically his Honour said:

"The epidemiological evidence in the present case can be expressed in terms of 'increased risk'. However, in its application to determining causation in the specific case of the respondent that evidence never rises above the level of a possibility. Whether or not the increased risk 'eventuated', is the issue which must be determined. The respondent's reliance on the passage from McHugh J was, in my opinion, misplaced."

"Epidemiological studies and expert epidemiological opinion evidence on general causation go no further than establishing a possibility. Applying a commonsense test of causation to the evidence of possibility in the present case does not, in my opinion, justify an inference of causation on the balance of probabilities in the individual case."

22 In my view, as I have said, the relevant circumstances in the present case were materially different from those in Seltsam, so that what the learned Chief Justice there said about the lack of relevance of McHugh J's statement as to causation to the consideration of that issue in Seltsam, does not apply here. Importantly, I think, the evidence on causation in this case went beyond establishing a statistical or, for that matter, a mere possibility of a connection between the increase in the risk of injury by reason of the breach and its manifestation. The evidence that went to the jury was such that they could have properly found, notwithstanding contrary evidence,[23] that the failure by the appellant to perform the episiotomy increased the risk of the injury and that such failure was a material cause of it. Thus, for example, Professor Beischer said that the risk of a haematoma occurring during the birth process was increased by the failure to perform the episiotomy. More specifically, he said that failure to perform the procedure made the risk that there would be damage to the deeper blood vessels or the vessels outside the vagina greater. He explained that the episiotomy would have produced a "relaxation of the parts" and that the damage to the deep vessels that caused the haematoma "may not have" occurred (although he could not be conclusive). Similarly, Dr Pogmore's evidence was that an episiotomy would have lessened the risk of a shearing effect between the vagina wall and the paravaginal tissues. He explained that an episiotomy widens the vaginal exit and makes delivery, which is complex with Kielland forceps, easier and safer.

23 It is true that the respondent's expert witnesses agreed in cross-examination that they could not say that an episiotomy would have prevented the injury - it might or might not have done so. But Dr Pogmore did not agree with the contention put to him in cross-examination by counsel for the appellant that an episiotomy probably would not have made any difference to the occurrence of the haematoma - he said that it was only a possibility. And in re-examination, he said, as has been noted, that an episiotomy would have made the injury less likely. Moreover, the two witnesses did not deny the likelihood that the procedure may have prevented the injury.

24 It might be said that, given the circumstances of this case, it would have been helpful if his Honour had explained to the jury more fully the need for them to scrutinise the evidence carefully to ensure that they were satisfied that, as a matter of common sense, the failure by the appellant to perform an episiotomy was a probable cause of the respondent suffering the haematoma. But given the terms of his Honour's charge, I think that it cannot be said that he failed to make that obligation sufficiently clear to them. And in my view, the fact that his Honour did not tell the jury, as the appellant's counsel requested, that they had to be satisfied on the balance of probabilities that an episiotomy would have obviated the risk of the injury did not amount to relevant error. In the circumstances, I think that grounds 1 and 2 should fail.

Verdicts on negligence and causation not reasonably open: grounds 3 and 4

25 It was also contended for the appellant, as has been mentioned, that no reasonable jury, properly instructed, could have concluded that the appellant was negligent in not performing the episiotomy or, if he was negligent, that the breach was causative of the injury. The two issues - negligence and causation - were argued before us together and it is convenient to analyse them similarly here.[24] It is plain enough, as the respondent claimed, that in determining whether the verdict was reasonably open to the jury on the evidence it must be assumed that the jury "took the most favourable view to the respondent which a reasonable jury could take upon the evidence".[25] And it is also relevant to bear in mind that the Full Court in Zoukra also said this:[26]

"This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in the respondent's favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue would be interfered with upon appeal."

Approaching the matter in this way, it seems to me that, for the reasons I give below, the decision of the jury on the issues of breach and causation cannot be said to have been so unreasonable, or so against the weight of the evidence, such that no reasonable jury could have come to those conclusions.

26 On the issue of breach, it was open to the jury to accept the evidence of Dr Pogmore that it was the practice amongst obstetricians in December 1999 that whenever Kielland forceps were used, it was mandatory to perform an episiotomy, particularly during prolonged second stage labour as occurred here. He explained, that the principal reason for the requirement is that it facilitates better traction which is particularly important where the delivery is at a prolonged second stage. He said, as I have mentioned, that the procedure widens the vaginal exit and thus, makes delivery, which is complex with Kiellands, easier and safer such as to reduce the risk of a shearing effect and the consequent bleeding of the deeper vessels. Professor Beischer gave like evidence, saying that he had no doubt that an episiotomy should have been performed in this case. It was open to the jury to act on that evidence notwithstanding that there was evidence that was led to establish the contrary. Professor Campbell, for example, said that if the perineum was stretching adequately, as he said seemed to have been the case here, an episiotomy was not called for given that it is performed to protect the perineum. Similarly, Professor Permezel, who was also called by the appellant, said that he could not see how an episiotomy, which is intended to be performed at the lower end of the perineum (in order to protect it), was going to prevent a traction injury in a vessel "some distance up the vagina".

27 In my view, having regard to all the evidence that was before the jury as to the circumstances of this delivery and the practice of performing an episiotomy when Kielland forceps are used, it was open to the jury to conclude, as the law then stood[27], that failure to perform an episiotomy by the appellant rendered his standard of care below that expected of a competent, relevantly skilled, medical practitioner in his position.

28 On the question of causation, counsel emphasised the following matters in support of the submission that the jury could not properly have concluded on the evidence that the appellant's wrongful omission to perform the episiotomy was causative of the injury. First it was said that, even if an episiotomy should have been performed, the jury could not have concluded on the evidence that this should have been done before the haematoma developed because it could not be determined whether the bleeding occurred before the respondent's experts said the procedure should have been implemented. Thus, it was claimed that the jury could not have linked the haematoma to the non-performance of the procedure; it was at least as likely that the haematoma occurred at a time when it was not negligent not to have performed an episiotomy. In my view, however, there was evidence before the jury, to some of which I have referred, that would have entitled them to conclude that the bleeding in question probably occurred at the time of the rotation of the baby's head and the use of the Kielland forceps when more pressure was applied to the vaginal wall. The appellant's own evidence was that he rotated the baby by applying the forceps to each side of the baby's head. Given that Dr Pogmore said that an episiotomy was a mandatory procedure in the case of a delivery with Kielland forceps, it was open to the jury to conclude that the episiotomy should have been performed before the appellant used the forceps for the delivery.

29 It was next said that, in any event, the jury could not properly have found that causation was established because the respondent's own experts could not say whether an episiotomy would have prevented the occurrence of the haematoma. In that regard counsel pointed to Dr Pogmore's evidence:

"Is your position then, you really can't say one way or the other, it might have prevented it, it might not have prevented it, it gets no better than that? ... Yes".

Similarly, Professor Beischer's relevant evidence as to this was highlighted:

"Dr Freidin delivered this patient with Kielland forceps with skill but the fact remains that in my opinion he should have done an episiotomy before he made the forceps application and performed the delivery. This may or may not have avoided the complication and its sequelae."

But the witnesses did not say that an episiotomy would not have prevented the occurrence of a haematoma, and there was evidence on which the jury could have concluded that the failure to perform the procedure increased the risk of this injury and that the risk eventuated. It was open to them, therefore, to conclude that a reason for its materialisation was the appellant's negligence. In that regard, I refer in particular to the evidence, to which reference has been made earlier, that an episiotomy is an integral part of delivery with Kielland forceps, that it widens the area for the rotation and delivery to take place and if that had been performed it would have been less likely that there would have been a shearing effect and the bleeding of the deeper vessel. It was open to the jury to have accepted that evidence. Importantly, there was also evidence on which the jury could have concluded that the bleeding was likely to have occurred during the rotation or the forceps delivery when the pressure on the structures was at a higher level and was not relieved by an episiotomy.

30 I consider, therefore, that it was open to the jury to conclude on the evidence that the breach of duty by the appellant "was so significant that, as a matter of common sense, it should be regarded as a cause of the [respondent's injury]".[28]

31 Mr Beach further argued that even if the jury could have properly concluded that there was a physical connection between the failure to perform an episiotomy and the haematoma, there was no legal causal connection. That was because, it was said, the rationale behind the duty to perform an episiotomy was primarily to protect the baby and the perineum and not to prevent the occurrence of a haematoma. In those circumstances, it was claimed, the physical connection between the breach and the injury was to be disregarded for the purpose of determining if there was a causal connection. This case, said counsel, belongs to the first category of situations referred to by McHugh J in Henville v Walker[29] in the following passage, and falls within the principles recognised in Gorris v Scott[30] and Close v Steel Co of Wales Ltd[31] to which his Honour then referred:

"In some situations, the legal framework may require a finding that, despite a causal connection in a physical sense between the breach and damage, no causal connection exists for legal purposes. In other situations, the legal framework may require a finding that a causal connection exists even though no more appears than that the damage followed after breach of a legal norm.

In the first class of case, some act of the defendant may have set in train, or some omission of the defendant may have failed to set in train, a series of physical events that resulted in or could have avoided damage to another person or property. In this situation, the damage occurred because, given the act or omission, the laws of nature dictated the result. The physical connection between the defendant's act or omission and the damage suffered, and the materiality of the connection is usually apparent, although often enough it will require expert evidence to demonstrate the connection. In this situation, questions of causation usually present no difficulty, although questions of remoteness of damage may do so. Exceptionally, however, the policy or rationale of the legal norm that has been breached will require the court to disregard the physical connection and to make a finding of no causal connection."

32 It seems to me, however, that assuming it was open to the jury in this case to conclude that there was a physical connection between the appellant's failure to perform the episiotomy and the injury, as I think it was, the rationale for the duty of care that the appellant owed the respondent was not so narrow or unrelated to the injury as to be disregarded for the purposes of determining causation, as occurred in Gorris and Close. In my view, they are to be distinguished from the present case.

33 Gorris v Scott concerned an action to recover damages for the loss of sheep that were washed overboard by reason, it was said, of the breach of an order made pursuant to the Contagious Diseases (Animals) Act 1869 that required animals brought by sea to ports be contained in pens as specified. It was held that although there was a breach of duty, since the duty was aimed at preventing the spread of contagious diseases and not the harm that in fact occurred, the plaintiff could not recover for the loss. The relevant inquiry was into the legislative intent:[32]

"... looking at the Act, it is perfectly clear that its provisions were all enacted with a totally different view; there was no purpose, direct or indirectly to protect against such damage; ... the Act is directed against the possibility of sheep or cattle being exposed to the disease ..."

Thus, while an action may have been maintained in respect of this kind of damage, "the damage complained of here is something totally apart from the object of the Act ... and it is in accordance with all authorities to say that the action is not maintainable". Similarly, Close v Steel Company of Wales Ltd raised the question whether the defendant was liable for injury sustained by the plaintiff when the bit of an electric drill shattered and flew into his eye. It was argued that the defendant was liable for damages flowing from the injury because, it was said, it was in breach of its statutory duty pursuant to s 14 of the Factories Act 1937 which prescribed that every "dangerous part" of any machinery shall be securely fenced. It was held that, although the employer breached the legislation, the duty that was imposed on it by the provision was directed at the prevention of a worker coming into contact with moving parts of a machine and did not apprehend a duty to protect from projected pieces of the machine itself.[33] And for this reason the employer was held not to be liable for the injury.[34]

34 In those cases the narrow rationale for the duty was made plain by the terms of the statute in question, so that it is understandable that the damage suffered outside its ambit could not be regarded as having been caused by the breach. Here, on the other hand, the appellant owed the respondent a duty of care that was wide enough to include the duty to take all reasonable steps to preserve her health and wellbeing during the delivery procedure. In the circumstances, if failure to perform an episiotomy amounted to a breach of that duty - as it was open for the jury so to find on the evidence - then the physical injury flowing from it would not be outside the scope of that duty. It follows that if the jury considered that there was a physical nexus between the breach and the injury they were entitled to conclude that the breach was the cause of it.

35 For the reasons I have given, I consider that it was open to the jury to find on the evidence that the appellant's wrongful failure to perform the episiotomy was causative of her injury.

36 In the circumstances, I think grounds 3 and 4 should also fail and that the appeal should be dismissed.

[1] [1999] HCA 22; (1999) 197 CLR 269 at 278-279.

[2] The jury, where there is a jury, may still decide against the plaintiff. It is simply that they are entitled to find that causation has been established. They may, not must, do so.

[3] (1998) 195 CLR 232 at 247.

[4] See the passage from the charge set out at [15] below, not only the italicized part but the following sentences too.

[5] The proceeding, as instituted, also named the Women's and Children's Health and Mayne Group Ltd as defendants but, in the event, the respondent proceeded only against the appellant.

[6] Obstetrics and the Newborn (3rd ed 1997).

[7] The appellant's case that his Honour's formulation of the direction on causation was inappropriate in this case did not rely on the fact that the statement by Gaudron, J. was obiter or on the fact that McHugh J in Chappel v Hart was in dissent.

[8] [1999] HCA 22; (1999) 197 CLR 269 at 278-279.

[9] It is plain enough that, in making the above statement, her Honour was effectively adopting the well known dicta of McHugh J on this issue in his dissenting judgment in Chappel v Hart (1998) 195 CLR 232 at 244-245.

[10] [1901] UKHL 2; [1901] AC 495 at 506. This passage was cited with approval by Handley JA in Donellan v Watson (1990) 21 NSWLR 335 at 343.

[11] [2000] NSWCA 29; (2000) 49 NSWLR 262.

[12] It was noted by counsel that what the Chief Justice said has been approved in Shire of Wakool v Walters [2005] VSCA 216 at [43]-[54] per Nettle JA, Batiste v State of Queensland [2001] QCA 275; [2002] 2 Qd R 119 at 124-124 per Thomas JA and Van Den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512 at 531 per Doyle CJ and Duggan J.

[13] At 280.

[14] At 247. See also Basten JA in Elbourne v Gibbs [2006] NSWCA 127 at [69].

[15] See Seltsam at 279.

[16] At 270.

[17] At 274-275.

[18] At 279.

[19] At 287.

[20] At 289.

[21] At 280.

[22] At 291.

[23] See Naxakis at 274 [16] per Gaudron J and at 282 [41] per McHugh J.

[24] I note that there was no challenge by either party to his Honour's direction on the issue of breach of duty.

[25] Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594 at 595 per Herring CJ, O'Bryan and Dean JJ, cited with approval, amongst others, in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 872 per McHugh J.

[26] At 595.

[27] See now s 59 of the Wrongs Act 1958.

[28] Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 491-492 (citations omitted).

[29] [2001] HCA 52; (2001) 206 CLR 459 at 491-492.

[30] (1874) LR 9 Ex 125.

[31] [1962] AC 367.

[32] At 129-130 per Kelly CB.

[33] Per Lords Goddard, Morton of Henryton, and Guest and Denning and Morris of Borth-y-Gest.

[34] It was also held that, in the circumstances, because the projection or shattering of the drill bit was not reasonably foreseeable in the relevant sense, it was not a "dangerous part" of the machinery within the scope of the statutory duty.