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[2011] NSWSC 1143
Supreme Court of NSW
2011-08-05
Harrison J
Original judgment source is linked above.
Judgment 1HIS HONOUR : The plaintiff was born in October 1985. Her mother's attending obstetrician was Professor Robinson. The plaintiff sustained an injury to her right shoulder during the delivery, known as Erb's palsy, which was caused by shoulder dystocia. She alleges that her injury, and consequent disabilities, resulted from Professor Robinson's negligence or breach of duty. She claims damages. 2The plaintiff relies on two particulars of negligence. She alleges first that Professor Robinson failed to undertake a caesarean section on her mother despite requests to do so. She alleges secondly that he failed appropriately to consider her mother's prior pregnancy and birthing concerns. I dismissed an application made by the plaintiff on the first day of the hearing to adjourn the proceedings and to amend her statement of claim to allege that Professor Robinson failed to provide information and advice to her mother as to the options for her delivery in light of circumstances attending her mother's three previous pregnancies and the instant pregnancy. On 12 August 2011 I published my reasons for judgment in that application: see Gillett v Robinson [2011] NSWSC 863. Familiarity with that judgment is assumed. 3For the reasons that follow, I consider that the plaintiff has failed to establish her case against Professor Robinson and that there should be a verdict for the defendant.
Background 4The plaintiff alleges that Professor Robinson should have performed an elective caesarean section on her mother rather than proceeding to a vaginal birth. Her mother was a private patient who had attended Professor Robinson's rooms on 12 occasions up to and including 21 October 1985. Professor Robinson had arranged for her to be hospitalised on 22 October 1985 because of concerns about her blood pressure and a history suggesting pre-eclampsia in her previous three pregnancies. She was admitted for observation and an induced labour, which was commenced on the morning of 28 October 1985 in the 39 th week of her pregnancy. 5The labour proceeded well until indications emerged of foetal distress, namely "type 2 decelerations", indicating that the plaintiff's heart rate was slowing. In these circumstances Professor Robinson proceeded to a delivery using Neville Barnes forceps and an episiotomy. Shoulder dystocia was then encountered. This is a condition in which, after delivery of the head, the baby's anterior shoulder does not pass behind the pubic symphysis. In the present case, this occurred after the forceps had been used. The shoulder dystocia was managed by putting the plaintiff's mother into a position where suprapubic pressure could be applied enabling the anterior shoulder to be delivered during a strong contraction. 6In the events that occurred, the shoulder dystocia led to the plaintiff suffering a brachial plexus injury caused by a stretching of the nerve leading to an upper arm palsy known as Erb's palsy. It is not in dispute that this condition has substantially restricted the plaintiff's use of her right arm with consequent detrimental effects upon her life. 7It is critical at this stage to observe that the plaintiff's case is formulated in a particular and limited way. Despite earlier versions of the pleadings, the plaintiff makes no complaint relating to the management of the labour or the delivery itself beyond the decision to proceed to a vaginal delivery. It is convenient to refer to the history of the pleadings, which I set out in my previous judgment, in the following terms: "3. The plaintiff commenced these proceedings in 2006. I have been unable to locate the original statement of claim. However, by a notice of motion filed on 17 April 2008 the plaintiff sought to amend the particulars of negligence against Professor Robinson so that they read as follows: (a) Failed to take any or any proper care on the part of the plaintiff. (b) Failed to acknowledge that there was a heightened risk of shoulder dystocia as a result of the condition of the plaintiff's mother and her prior pregnancies. (c) Failed to perform obstetric services associated with the birth process in a proper and professional manner. (d) Failed to exercise due care and skill in the provision of obstetric services subject of the birth process. (e) Failed to undertake a caesarean section on the plaintiff's mother despite requests to do so. (f) Failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns. (g) Failed to provide obstetric services with any or any reasonable care. 4. Despite the extent of these proposed particulars of negligence in the second amended statement of claim annexed to the notice of motion, the final version of that document, which was filed on 19 June 2008, contained only particulars (e) and (f). They became particulars (a) and (b) in the plaintiff's statement of claim and remained in that form up to the commencement of the hearing of the action before me on 1 August 2011. However, by notice of motion filed on 28 July 2011 the plaintiff sought further to amend the pleadings by adding an additional particular of negligence as follows: (c) Failed to provide information and advice to the plaintiff's mother as to the options for delivery of the plaintiff in light of circumstances attending the mother's three previous pregnancies and this pregnancy. 5. The plaintiff sought other relief by this latest notice of motion. Some of this was procedural, dealing with abridgement of time for service and the like, and some of it was substantive. For present purposes the important claims for relief can be reduced to the following: 4. An order under UCPR 31.28(1)(a) and UCPR 2.1 extending time nunc pro tunc for the service of the report of Dr William Molloy, obstetrician, dated 27 July 2011, so that the plaintiff's provision of a copy of the report to the defendant on 27 July 2011 was service in accordance with UCPR 31.28(1). 5. Alternatively...leave be granted to the plaintiff under UCPR 31.28(3) to tender the report of Dr Molloy and to call [him] to give evidence at the hearing despite the plaintiff's non-compliance with UCPR 31.28(1). 6. Leave be granted to the plaintiff under UCPR 31.26(5) to adduce evidence from Dr Molloy at the hearing despite the Joint Experts' Report. 7. Further, if the defendant is not able to deal with the report and evidence of Dr Molloy at the hearing on 1 to 5 August 2011, the hearing of the expert evidence be postponed to a suitable date. 6. On 22 October 2008, the Court made an order that Professor Robinson serve any liability evidence upon which he intended to rely by 24 February 2009. In accordance with that order, reports from Dr Robert Lyneham and Dr Andrew Child were served under cover of a letter from Professor Robinson's solicitors dated 20 February 2009. 7. On 9 November 2010 Registrar Bradford listed the matter for hearing commencing 1 August 2011 with an estimate of 5 days. He made a final order in accordance with the Practice Note and made an order to enable the expert evidence to be given concurrently. He directed the experts in their respective areas of expertise to confer by 30 March 2011 and to provide a joint report on such matters where they agreed and where they disagreed. He directed that lay statements of evidence be served by 28 February 2011 and that reports from the experts should issue by 22 April 2011. 8. A directions hearing took place before the Registrar on 15 February 2011. Orders were made at that time that Professor Robinson forward a list of questions for the experts to the plaintiff for consideration by 22 February 2011 and that the plaintiff advise him of her attitude to the proposed questions by 29 February 2011. A joint conference of experts was ordered to take place on 29 April 2011 and the joint experts' report was to be provided to the Court by 20 May 2011. The matter was listed for further directions on 24 May 2011. 9. Professor Robinson's solicitors prepared and forwarded a list of proposed questions to the plaintiff's solicitors, together with a proposed index of documents to be provided to them on 17 February 2011. The accompanying email contained a request that they be informed whether or not the plaintiff was happy with the questions and the list of documents." 8The joint conference of experts went ahead, but not until 20 July 2011. In my earlier reasons for judgment I made reference to the questions that had been referred to the experts for consideration on the issue of Professor Robinson's liability. Those experts were Professor Chapman, Dr Lyneham and Dr Child. They unanimously answered all questions in the negative and therefore unfavourably to the plaintiff. It is convenient to record those questions in these reasons. They are as follows:
The experts 12Well before their joint conference, the experts had all provided written reports that were exchanged in the usual way. They were tendered in evidence before me. Some extracts from those reports are informative. They are set out below. 13Professor Michael Chapman provided two reports dated 29 November 2006 and 12 December 2007 upon instructions from the plaintiff's solicitors. The first report included the following paragraph: "9 Thus on the basis of the sketch information provided, it would be my view that this Erb's Palsy was the result of shoulder dystocia, that this shoulder dystocia was unpredicted and probably unpredictable as in most cases of shoulder dystocia. The management of the emergency in this case is unclear, but even in the most experienced hands there remains a low but significant incidence of neurological damage such as Erb's Palsy in such cases. On this basis, with the evidence available, I could not reach a conclusion of negligence or failure of duty on the part of [Professor Robinson]... Should we have access to the labour ward notes and Dr Robinson's own antenatal notes, it might be possible to be more specific in assessing whether the steps taken in dealing with this problem were in fact appropriate and whether there were any predisposing features that should have led him to contemplate a caesarean section. In 1985 a woman's request for caesarean section was usually greeted with a discussion which described the risks of caesarean section and its restricted use to true clinical indications." 14The second report was prepared later when Professor Chapman had been provided with further case notes of the plaintiff's mother's previous deliveries between 1972 and 1983. This second report included the following paragraphs: "12 In relation to the evidence that has been provided by the patient's mother that she wished to have a caesarean section, I find no documentation of this in the notes, either in the antenatal notes prior to admission to hospital nor in hospital notes during her stay. Had she made such a request I believe a discussion would have taken place, which would have been documented, and would probably have led to the final decision to proceed to vaginal delivery. The midwives have made no comment of any suggestion that she may have requested a caesarean section. If there was demonstrated to be proof that this conversation did occur, and the patient demanded that a caesarean be done, then I certainly believe that Professor Robinson should have agreed to that request. However I would reiterate there is no evidence that this conversation occurred with him or with any other member of the team, which is surprising given that she was in hospital for at least three days prior to her induction of labour. 13 Thus in summary this child has an Erb's Palsy as a result of shoulder dystocia which in 1985 was, in my view, managed appropriately. I would add that, despite all the manoeuvres that have been advocated for avoiding neurological injury with this obstetric emergency, neurological damage continues to occur in 2007. Shoulder dystocia also remains an unexpected complication of vaginal delivery despite improved ultrasound to assess foetal weight and an increasing number of caesarean sections being performed." 15Dr Robert Lyneham provided a report for Professor Robinson's solicitors on 30 January 2009. It concluded with his opinion expressed as follows: "You have asked me to provide an opinion as to whether or not any part of the treatment given by Professor Robinson departed from proper professional standards, in particular taking into account the allegations in the statement of claim. I will therefore consider the allegation[s] ...particularised in the statement of claim. (a) Failed to undertake a caesarean section on the plaintiff's mother despite requests to do so No particulars are provided by the plaintiff relating to the mother requesting a caesarean section. I can find no reference, either in the antenatal notes or the hospital records, to the mother making such a request. I also note that I am to assume that Professor Robinson has no recollections of such a request and if such a request had been made it would have been documented in the records. I should add that on my analysis of the records it is difficult to determine any reason why the mother may have requested a caesarean section. Her second baby weighed 4.1kg and delivered spontaneously after a six hour labour. She clearly had a roomy pelvis and in my opinion there would have been no evidence in 1985 that a woman who had delivered spontaneously a 4.1kg baby was likely to have shoulder dystocia in her next pregnancy. Nor can I detect any other reason why a caesarean section may have been requested. (b) Failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns In responding to this particular it would seem reasonable to review the problems that had occurred during the mother's previous and present pregnancy. [Dr Lyneham then referred to these in detail and continued] As discussed above...even today with increased awareness of the risk for shoulder dystocia, there is no recommendation by authorities that a caesarean section is indicated for macrosomia, even if the birth weight is anticipated to be 4600g. Of course there is nothing to suggest that Professor Robinson did anticipate, or should have anticipated, the plaintiff's birth weight. Rather he would have taken comfort from the mother's previous obstetric history and her roomy pelvis. The statement of claim does not particularise what the 'mother's birthing concerns' were but on my analysis of what they may have been, and in contemplation of the plaintiff's mother's prior pregnancies, in my view there is no evidence that Professor Robinson failed to appropriately consider the mother's prior pregnancies and birthing concerns. CONCLUSION In my opinion Professor Robinson acted in a manner that would have been widely accepted in Australia by peer professional opinion as competent professional practice in 1985." 16Professor Robinson's solicitors also retained Dr Andrew Child. He provided a report dated 2 February 2009. Part of his report is in these terms: "In the circumstances of this case I cannot see any justification for doing a caesarean section and the option of inducing labour and assessing progress closely as was done for this mother would seem entirely appropriate and consistent with obstetric care as practised in 1985 in Australia. This is based particularly on the recording of a normal birth of a 9 pound baby following the initial caesarean section. There would naturally be some concern by the mother relating to the stillbirth of the baby in the previous pregnancy at around 36 weeks gestation but I note that that baby was in fact quite small compared to her other babies and on this occasion in 1985 there was clearly good growth of the baby.
There were a number of positive features in relation to this case which allowed for the best possible outcome for this baby. I would imagine that the mother was in the lithotomy position as that was standard practice for a forceps delivery...as part of practice for the management of shoulder dystocia in 1985. Secondly, a very experienced and highly credentialed obstetrician was in attendance to manage the shoulder dystocia and undoubtedly this resulted in a very good outcome for the baby from the mental functioning point of view. For these reasons I do not feel there were any deficiencies in the management of this case of shoulder dystocia. My general impression is that I can find no evidence to support the second particular of negligence 6b 'failed to appropriately consider the plaintiff's mother's prior pregnancy and birthing concerns '. It would be my impression Prof Robinson's management of this patient as a private patient was meticulous and detailed well above the normally accepted standard of care in 1985." 17It should be noted that for the purpose of the joint conclave held on 20 July 2011, Professor Chapman, Dr Lyneham and Dr Child were each provided with copies of all hospital notes of all four of the plaintiff's mother's pregnancies, as well as the records of Professor Robinson himself. 18At [37] of my earlier decision I went on to say this: "[37] Whatever else may be drawn or inferred from these words [in paragraphs 68 to 73 inclusive of the plaintiff's mother's affidavit of 27 May 2011], it is clear that the plaintiff's mother was not demanding, or on one view even requesting, that a caesarean section delivery be arranged and performed. The evidence from the experts does not otherwise suggest that any indications for a caesarean had arisen in the antenatal period. That included the plaintiff's mother's obstetric history and the previous vaginal delivery of a baby over 4000 grams. The circumstances for a consideration of the relative merits of a vaginal delivery and caesarean section, and the simultaneous creation of a legal obligation, in the form of a duty to advise and explain them to the plaintiff's mother, simply do not arise. The fact that Professor Chapman answered all questions posed for the joint conference of experts alike with Doctors Lyneham and Child suggests unequivocally that he was by no later than 20 July 2011, and probably well before then, completely satisfied that it had not been, and would not be, "demonstrated [that there was] proof that [the relevant] conversation did occur and the [plaintiff's mother] demanded that a caesarean be done." 19In the events that occurred it did not, and it does not, become necessary to find as a fact whether or not the conversation that the plaintiff's mother said she had with Professor Robinson took place as she alleges. This is because the fourth question posed for the consideration of the experts proceeds upon the assumption that a conversation in precisely those terms did occur. Their answers to that question are based on that assumption. The plaintiff's mother was cross-examined about the conversation at some length but she adhered to the version of it set forth in her affidavit. This is revealed in part in the following extract: "Q. I suggest to you, Ms Benson Inglis, you don't actually have a clear recollection of this conversation twenty six years ago? A. Well, I do remember what I did say there. I do have a recollection of that. Q. I suggest to you that the conversation did not occur in the way that you have recorded it at paragraph 68? A. Yes. Q. You are disagreeing with me? A. No, I'm not disagreeing. I'm saying I do remember. I do recall." 20It was in that context of the conversation deposed to by the plaintiff's mother being assumed or accepted to be true and the experts' answers to the four questions considered by them in the joint conference on the same basis, that I attempted at some length and often to have Mr Coren, who appeared for the plaintiff, to confront the force of their answers, and the fundamental difficulty they appeared to produce for the plaintiff's case. This occurred during the running of the proceedings and during final submissions. So concerned was I at the conclusion of the evidence that this issue was not being addressed that I peremptorily truncated the final submissions and directed that Mr Coren provide me with a written outline dealing with the manner in which the plaintiff formulated her case in general and how he proposed to overcome the experts' answers to the questions arising out of the joint conference in particular. It is necessary at some length to review how this unfolded before me.
The hearing 21The matter proceeded over four days. On the first day of the hearing I asked Mr Connor of senior counsel, who appeared with Ms Avenell for the plaintiff on the limited issue of the application to amend and to adjourn, about the experts' answers. The relevant part of the transcript is in these terms: "HIS HONOUR: I appreciate you don't appear on the hearing, Mr Connor, but again on the theoretical assumption that Dr Molloy's report were not admitted into evidence and you may not have instructions to answer this question do the joint experts opinions on the breach issues dispose of the proceedings? CONNOR: I don't have instructions to answer that question." 22On the second day of the hearing Mr Coren was regrettably left to conduct the plaintiff's case by himself. The following exchange with him occurred: "HIS HONOUR: It may in due course become necessary to descend into the details of the joint decision. But I am doing the best I can in coming to terms with the manner in which the plaintiff's case is now put. I have had regard to, and will anticipate that, the answers to the questions given to the joint obstetric experts will in due course be put before me as part of the evidence. Having regard to the expectation we all have that the plaintiff's mother will give no evidence beyond that referred to and quoted in question 4 of the joint experts' opinion about the request, and having regard to the answer to question 4, what do you say is the significance of that answer, in the light of the way you are formulating the case now? COREN: I propose to object to any consideration by the experts of that. For instance, it is completely discordant with the law. Secondly, to say that Professor Robinson acted in accordance with reasonable conduct, the experts have to start at a different position. They have to find out what that request is; for instance, "Can I have?" Did the plaintiff's mother say, "Can I have? What difference would there be between a timid woman asking, "Can I have?" or an aggressive woman asking, "Can I have?" The defendant's experts, and also Dr Chapman, cannot be in a position to determine what the effect of the request was. It is not allowable position that the experts should be in. That is the problem in relation to this whole case. There has been a perception that what has been written on paper has got some minimal relation to anything. I have never quite grasped why that is the concept. There has been request made and it has been dismissed. In this context, this lady had twelve antenatal attendances. Her evidence is that she only saw Professor Robinson for comfort because of the horrific experiences she had. The prior pregnancies made arrangements for emergency caesarean if something had gone wrong. We come to the final antenatal attendance. A request is made. It is dismissed. A caesarean would have resulted in no problem and certainly not the injury complained of here. We have a situation where there has been a decision made, no doubt in the best interests. It is discordant with a person's ultimate human rights, as to what is to happen with their own body. That is where we are." [Emphasis added]. 23Later the same day there was some discussion about calling the experts to give concurrent evidence. There seemed to me to be limited, if any, benefit in them doing so, in light of their unanimous answers to the questions they considered. In due course the following discussion took place: "HIS HONOUR: Just out of interest: What utility is there to be in the evidence that the experts might give in joint session tomorrow, in the light of the answers to the joint questions? KIRK: That's a very good question. It's one I will have to discuss with my friend at lunchtime. HIS HONOUR: I note that Mr Coren says that he objects, and I don't want to invite argument about that now. I'm unfamiliar with the concept of the objection, or the right to object to which he's referred. If either of you is able at some stage to enlighten me about that I would be indebted.
KIRK: Can I seek to tender all of that at this stage... which is material relating to the joint expert report, only because, as I now understand it, my friend wishes to object to the joint report. It might be better to deal with that objection tomorrow morning, so I will postpone the tender of that till tomorrow morning, but I do propose to tender it. HIS HONOUR: Well, I'm not sure. Why can't we deal with the objection to that report now? KIRK: I am not sure how complicated it is. To be frank, I don't quite understand the objection, and I'm just apprehensive there might be something in there which might require a bit of legal research, or there may not. I'm certainly happy for my friend to articulate that objection. HIS HONOUR: I want to know a bit more about it, and I want to know about it sooner rather than later because, on one view, bringing experts at great cost, expense, in time and otherwise inconvenience to the court to give evidence on an issue upon which there seems to be no disagreement is not something I'm keen on." 24I then came to engage Mr Coren upon the reasons why he objected to the experts' joint answers. The following extract deals with that: "HIS HONOUR: All right. Well, let's deal with this. Mr Coren, how do you object to the joint experts' report? Do you object to the whole of it? COREN: Yes, your Honour. HIS HONOUR: Why? COREN: I object to the whole of it, your Honour, for various reasons. It will take a while. At this point, in relation to the potential confusion as to representation that existed this morning, there is a couple of issues, your Honour, as my notes on many things in relation to this, the defendant's evidence, are simply not with me at present. That's just the first thing. But I can assist in saying that, generally, your Honour, for instance, the issue that you addressed was raised, about the prior birthing concerns, so I think really HIS HONOUR: Mr Coren, I want you to tell me why you object to the joint experts' report. COREN: Yes. HIS HONOUR: Focus your mind on that. COREN: Yes, your Honour. HIS HONOUR: If you want a moment to think about it I will give you that moment, but I would have thought that by now, having foreshadowed your objections, you would have reasons to support the objections. COREN: I apologise, your Honour. HIS HONOUR: You don't have to apologise. I just want you to tell me why you object to it. COREN: I was going to go through each question, your Honour, that's all. HIS HONOUR: Well, you told me you objected to the whole of the report. COWEN: The global objection, your Honour, is, for instance, in relation to question 3. That's not a question that doctors can answer. It's simply not. HIS HONOUR: Question 3? COREN: Yes. HIS HONOUR: Pardon me. Well, let's put aside the question of whether I agree with you or not. COREN: Well, my HIS HONOUR: Would you just hold on. COREN: I thought you had finished, your Honour. I apologise. HIS HONOUR: Yes. You were sent the proposed questions, together with a proposed index of documents, to be provided to the joint conference of doctors on 17 February, and despite letters and telephone conversations, nothing transpired until your email of 13 July 2011, about five months later, when you asserted that a joint conference was not necessary. If there had been a question proposed that you thought was beyond the, either expertise or the range of questions that these experts could answer, because it was the ultimate issue or a legal matter, why didn't you answer a phone call about it or write a letter to say so? COREN: Your Honour, I submit that's probably not the fairest assessment of the evidence. I accept that is what's happened in respect to the letter of 13 July. There were, indeed, requests received and there were, indeed, requests made for that to be addressed. Whether or not, and irrespective of the issues at fault, for which I do apologise for, but the questions themselves have to be relevant, your Honour, and they have to be based on proper principles. HIS HONOUR: Well, all right. If that question was not relevant or not based upon proper principles, as you assert, one, why in those five months didn't you say so? COREN: Your Honour, the evidence on that was, well, it's not in this hearing, of course but, obviously, the requests were made for various counsel to consider issues, and so on, your Honour, but there is no response to that request. I accept that. I cannot say any more on that. I accept your statement on that to the court, yes. HIS HONOUR: All right. Now, why is it not a question that expert obstetric specialists could answer? COREN: Question 3, your Honour? HIS HONOUR: Yes. COREN: Well, assuming that the plaintiff's mother had requested that, it goes to the basic principles, is a doctor supposed to do what he's not told to do? That's why. HIS HONOUR: Hang on. Is a doctor allowed to do what he's not told to do? COREN: Yes. HIS HONOUR: The question is, giving the benefit of the doubt, I interpose, to the plaintiff's mother, having regard to the terms of the conversation in question 4, a request for a caesarean, would it have been a departure from professional practice to ignore that request? That's the question. Why aren't expert gynaecologists, or obstetricians entitled to express an opinion on that? COREN: That's question 4, your Honour? HIS HONOUR: Have you got a copy of the questions in front of you? COREN: Yes I do. Question 4 specifically deals with the conversation. Question 3 goes beyond. It must, the very reference, and I don't believe question 3 was in that letter of February. I can check that, your Honour, but I'm fairly certainly it wasn't. Or question 4 wasn't, one of them certainly wasn't, so that is not the actual request that was sent to me anyway. Or it was sent after yours. HIS HONOUR: Well, question 3 certainly ended up before the experts at the joint conference, didn't it? COREN: It has, yes, your Honour. HIS HONOUR: Was it in the letter? COREN: I'm sorry, your Honour, I will take advantage of that opportunity to have a look at this before I make that submission. Sorry, I didn't have the evidence before your Honour. I do have evidence, which has been put in some form, which is the actual document. If I could have five minutes it would be very much appreciated, and I will do that. SHORT ADJOURNMENT" 25Mr Coren contended that the joint conference of experts should not have gone ahead. His reasons for objecting to it were first adumbrated in his letter dated 13 July 2011 to which reference is made in my earlier judgment. Following the adjournment, that topic was returned to as the following extract reveals: "HIS HONOUR: Well, it went ahead. COREN: Yes, it did. HIS HONOUR: And the question was answered. COREN: It would be my respectful submission that the question itself is the issue. If indeed the question is to be asked and the experts are to give evidence on something which I would ultimately submit has no relevance, that's what has to happen, but I would submit that it wouldn't be necessarily of much benefit for it to occur. HIS HONOUR: You are dealing at a hundred miles an hour with a whole series of issues. Do you say the question is directed at an issue that is not relevant? COREN: I would submit first and foremost the question is so flawed that it just doesn't assist you. HIS HONOUR: It doesn't assist me? COREN: No. That is my first point. The question before your Honour, if indeed HIS HONOUR: Is question 4 okay? COREN: Well, I don't suggest it will be but I will not be pressing my objection to that for this afternoon because I hear what you say about it, but my objection HIS HONOUR: I haven't said anything about it. COREN: My objection is in relation to issue 3, that the experts have answered a question which is of a nature that shouldn't have been responded to, let alone HIS HONOUR: It could be said that question 3 is a general question seeking the experts' opinions on matters relating to a request by a person in the plaintiff's mother's position generally and question 4 is a particular question based upon the evidence given by the plaintiff's mother of the conversations she said she had in the antenatal period. If the fourth question is an appropriate one as a particular question, why is the third question not appropriate in terms of general practice? COREN: I didn't suggest your Honour, my position is they are simply both totally not appropriate at all. Both. I mean, that was set out in my letter." 26I then took Mr Coren back to his letter dated 13 July 2011 and the following exchange then occurred: "HIS HONOUR: You see, the third last paragraph on page 2 says this and I will read it out so my question to you in the transcript is juxtaposed to the terms of the paragraph you said: 'The issue is simply whether the request was made. If the request was not made, there is no breach of duty by the defendant. If the request was made, there is a failure of the defendant to comply with the extent of his duty of care to the plaintiff's mother, by reason of his own evidence.' COREN: Yes, your Honour. HIS HONOUR: Doesn't the third question deal in an hypothetical or theoretical way, that is to say not by reference to the specific terms of the request that the plaintiff's mother says she made to Professor Robinson, but generally, with the question of what the obligation of Professor Robinson would have been if a request in some other general terms had been made or, more particularly, what was the position of a professional obstetrician in the position of the defendant to whom such a request had been made. Doesn't question 3 fairly and squarely raise that as an issue? COREN: Yes, of course, your Honour. HIS HONOUR: And isn't that the very issue that you have identified as the simple issue in the third last paragraph on the second page of your letter? COREN: Your Honour, it is just not I accept what you say entirely. I hope I am not at cross-purposes with your Honour. It is just not evidence that they can give. It is not within their expertise. It is not something that would assist your Honour. HIS HONOUR: What do you mean it is not evidence that they can give? They are giving evidence, are they not, of what was or was not in their view proper professional obstetric practice in 1985? COREN: Well, I would hope not, your Honour. I don't understand that the question look, your Honour, I am more than happy if indeed I just address you on weight tomorrow. I don't wish to I don't think I can say much more than I have and say that the question itself does not assist you and indeed does not in any way relate to an issue that these experts can address. It doesn't result from a medical concern. It results from a request. "Can I? May I? Will you?". I don't see how they can possibly HIS HONOUR: You have identified in the third last paragraph of your letter the simple issue as whether the request was made. They are not dealing with whether a request was made. They, in question 3, have been asked hypothetically what ought the response by a professional obstetrician to have been to a request for a caesarean section if it had been made. Could they ignore it could such a professional ignore it consistently with performance of his professional duty. That is the issue. You have identified it. COREN: Yes, that's right. Yes, your Honour, absolutely. I agree. I am not disagreeing with you at all. I am happy for as I said to your Honour, if indeed if these experts propose to give that evidence then that is a matter for them, I just don't think it assists your Honour. I will leave it at that. I really will. I just don't think it assists you, that is all. HIS HONOUR: I have to say to you, Mr Coren, I know these three experts from my previous professional practice before I came here and I know of them from what I have seen of them since I have been here and that covers more years than we care to remember. They are generally accepted in this Court as having expertise on the practice of obstetrics in this State over the years to which they, by dint of their own experience, can refer. You keep saying you don't think it will help me. Why would not evidence from eminent professionals, including one qualified by you, be of assistance to me? Why wouldn't that-- COREN: Your Honour, they are giving evidence in breach of the ultimate proposition that a person can decide what their treatment is. That is where I am coming from, your Honour. They are giving evidence that they can do other than what they are told. That is what it is. In a nutshell. But your Honour, I don't wish to trouble your Honour I don't wish to say anything about of course I don't know the doctors and I hope it is not coming across as a criticism of those because it is certainly not. I am just saying HIS HONOUR: Is the burden of your proposition COREN: Yes, your Honour. HIS HONOUR:... that if a patient asks for a caesarean or demands a caesarean, that an obstetrician to whom such a request or of whom such a demand is made never has any cause other than to accede to that course. Is that your proposition? COREN: If there is no issue of emergency, if there is no issue of competence, yes. Absolutely. Absolutely. Or cease treatment, your Honour. HIS HONOUR: I am sorry? COREN: Or cease treatment of the patient, your Honour. HIS HONOUR: Well, if that is your view, then question 3 is directly on point, isn't it? COREN: Yes, it is, your Honour, yes. HIS HONOUR: And the answer that is given is inimical to your case, isn't it? COREN: It is. Yes, it is. HIS HONOUR: I have to say, I am considerably troubled by what is proposed to occur tomorrow with these three gentlemen. My anticipation is that Mr Kirk won't want to ask them a single question. Am I right about that, Mr Kirk? KIRK: Your Honour, so long as the joint report is in, our experts are in and I think in fairness Professor Chapman needs to be in as well, his two reports. HIS HONOUR: I understand that. KIRK: If all that is in, and subject to responsive questions, no, I currently have no questions I wish to ask the experts. HIS HONOUR: Do I anticipate that you have some questions you want to ask? COREN: I do, your Honour." 27The following day the experts assembled at court to give evidence concurrently, despite my misgivings about the utility of that course. Mr Coren had prepared and circulated a series of questions that he wished to direct to the experts. Before doing so, however, there was a further, short discussion about the experts' report, as follows: "COREN: Question 2, for instance, I'm not sure. My submission is that at the end of the day there was not a joint report. HIS HONOUR: Say again. COREN: The plaintiff's submission will be that there was not a joint report. It was not the plaintiff's desire to have this report, as a submission that is all." 28Later the following took place: "HIS HONOUR: Well, I think I said to you yesterday that I got the impression that it was your view of the case that this was always a request case, do you remember that? COREN: Yes. HIS HONOUR: I thought you said that this was something you had never said or you didn't agree with. COREN: Yes. HIS HONOUR: That arose at page 10 of the first day's transcript, and you had said to Mr Kirk in cross-examination: "My understanding was that it was always to be a request case. It was to be a consideration of whether or not the request was made." And that clearly is a reference as to whether or not the plaintiff's mother requested or, on another analysis, insisted upon a caesarean, right? COREN: Yes, your Honour. HIS HONOUR: I thought the questions that were directed to the experts dealt with the only evidence of a request that will appear in this case, that is, the three line intercourse between the plaintiff's mother and Professor Robinson, and that the experts had already turned their minds to that in the questions that were asked. COREN: Yes, in a way that was not permissible. I was against those questions being asked. My position was confirmed on 13 July that this is a request case. The evidence has been now put in a joint report form. I'm simply asking those questions based upon that report. It is not a situation where there has ever been a change in position, simply that that opinion has been given. HIS HONOUR: You must understand, Mr Coren, those questions were asked because you did not object to them. Or suggest alternatives. That report and those questions have been produced in accordance with an order of the court, and these doctors knew that they had an obligation to produce answers as a result of an order of the court. COREN: There was objection to the questions a week prior to the conference. HIS HONOUR: In your letter of the 13th? COREN: Yes. HIS HONOUR: You said you did not think a conference was necessary? COREN: Yes, your Honour. That is what the plaintiff's position was, that it was not necessary. HIS HONOUR: How can you say it is not necessary? COREN: Really, I have limited cross-examination on the report, to questions that I was happy to disclose. I do not really understand that I could do much more than that. I'm content with your rulings, and I am happy to move on." 29Both Mr Coren and Dr Kirk then asked the experts questions. No evidence given by any of the experts appears to alter the impact of their joint report. Professor Robinson was later called and cross-examined by Mr Coren. At the request of the parties I then adjourned the proceedings until the following Friday in order to enable the parties to prepare written submissions and to hear oral presentations in support of them at that time. When the matter resumed on that day I ultimately confronted Mr Coren with what I had been concerned was a troubling issue for the plaintiff's case. This arose as follows: "HIS HONOUR: Right. The question then comes as to whether or not Professor Robinson failed in breach of a duty to perform a caesarean because he was bound in clinical or therapeutic terms to do so having been confronted with a demand from the plaintiff's mother that that occur. COREN: Well, that is the issue, your Honour. If I could HIS HONOUR: Hang on, just let me expose my thinking. COREN: Yes. HIS HONOUR: The only request or demand is that formulated in the three line conversation with which we are all now intimately familiar. Presented with that formulation of the request or the demand, the several obstetric experts expressed the view that there was no breach of duty. I raised with you on Wednesday, I think, my desire to have you address that. The case, in one sense, is a simple one to formulate and I hope I have done it simply. It is not simplistic. COREN: No. HIS HONOUR: But if that is a correct analysis of the case, what is your answer to the obstetric expert opinion that no breach occurred in those circumstances?
HIS HONOUR: And that was the point of the question I addressed to you a moment ago, that the only version of that request was submitted to the joint experts and they formed a view that if it was the request that was made, or even construing it at its highest, the doctor did not fail to conform to proper practice in the circumstances. I want you to address that. You must address that." 30Mr Coren thereafter proceeded with some lengthy submissions before I interrupted him with the following concerns: "HIS HONOUR: Let me take the first point you made. If it is pleaded that this was a case in which a caesar should have been performed, to use your term, as an absolute proposition COREN: Yes. HIS HONOUR: That issue was before the joint experts. COREN: Yes. HIS HONOUR: And they said that it was not a breach of duty not to perform a caesar in this case. I am asking you again to address that joint opinion and tell me how you accommodate it in your claim." 31No helpful response to that question was provided. The discussion then later resumed in these terms: "COREN: Your Honour, I apologise. I am starting from this proposition and I am going backwards to the request. You have asked me to address you on at what point at what point would it have been that a caesarean should have been undertaken if not for the request. I understood that was what you were asking me to do. HIS HONOUR: I haven't asked you that at all. It is no part of the case. COREN: But your Honour, you have asked me if all doctors have said there is no breach, then what difference does the request make I think is basically what you are saying. HIS HONOUR: No. Please listen. The doctors in joint conference were asked to address whether or not Professor Robinson failed to conform to proper medical practice at the time, taking into account the request that was made. COREN: Yes. HIS HONOUR: They have taken that into account and unanimously expressed the opinion in various formulations that there was no breach. I want you to tell me why that report and that opinion either doesn't carry the day or can be got around in some way favourable to the plaintiff. COREN: In many ways, your Honour. I did misunderstand you and I apologise. In many ways. The first proposition is that the experts were given a question to ask of that nature.
HIS HONOUR: Let us work on the hypothetical assumption for the moment so that I can have your input into it. COREN: Yes. HIS HONOUR: That I am against you on the rejection of the joint report. COREN: Okay. HIS HONOUR: Let us just take it a step at a time and assume that that report is admissible and carries weight of some sort. COREN: My submission HIS HONOUR: Please address the substance of it. COREN: Yes, your Honour. My submission is that that opinion of the experts would then only relate to the initial decision but not to the entire birthing process. That would be my submission to you." 32The discussion ultimately descended into an iteration of my frustration as follows: "HIS HONOUR: Am I the only person in this room that is having this difficulty? I am having great trouble understanding anything you are saying. You have a disabled client, in an unfortunate position as a result of events that I am required to adjudicate on, and I want to get to the bottom of it. We are going around in circles about VBAC. COREN: If I could then put it this way your Honour, I'm sorry. I will put it this way; that's correct, we are going around in circles because we are dealing with a proposition that is not just the usual proposition where the experts give evidence of this nature. It is very difficult to address the situation where the experts are saying as a result of the request, for a start that shouldn't have been asked. HIS HONOUR: What shouldn't have been asked? COREN: That the experts should be entitled to give an opinion on what he should have done after a request. It just shouldn't have been asked. A request." 33That frustration was not ultimately alleviated by Mr Coren's ensuing submissions. The following then occurred: "HIS HONOUR: I am speaking in terms of what occurred in fact. She proceeded to a vaginal delivery. She had a conversation with the doctor that, as I say, we are all familiar with. Notwithstanding that conversation, she proceeded to a vaginal birth. COREN: Yes. HIS HONOUR: In the absence of protestation or a revisiting of the conversation. COREN: That's right. HIS HONOUR: That collocation of factors was raised for consideration by the doctors in joint conference, because you pleaded that those were the circumstances that gave rise to a breach. You now tell me that those experts are not entitled to consider that. COREN: I don't see any report where the experts have considered that proposition, your Honour, never. They have said a demand. I have never seen that proposition being raised by the experts. Professor Chapman says whether it is a request or a demand. HIS HONOUR: You keep going. I won't interrupt you again. You tell me. COREN: Yes, your Honour. I understand your concern, your Honour. HIS HONOUR: I'm not sure you do. COREN: I think I do. HIS HONOUR: I am not sure you do." 34After some further quite lengthy submissions from Mr Coren, which I did not consider to be directed to the real issues in the case, I was moved to make the following observation, in the hope that it might refocus the direction that was being taken: "HIS HONOUR: You have to understand, Mr Coren, I am not unmindful of the personality of the Plaintiff's mother, from my observations of her in the witness box, as a polite and deferential woman who, in the circumstances that she found herself in with Professor Robinson, was probably if not certainly disinclined to contradict him. I have had regard to the fact that her statement makes reference to the fact that she understood his eminence and was disinclined, in the circumstances, to contradict anything he may have said, or to assert for herself things she may have felt in a way that appeared to be contradicting him. I have been in the law long enough, and I have had enough to do with people over my lifetime to know that the Plaintiff's mother was not an assertive, outspoken, aggressive person. Your submission is that that is something that has to be played into the weave of this case in assessing the significance of the conversation we are all dealing with. Please understand, I know that." 35The point was somewhat later reached when I felt compelled to suggest a course that should be followed. That appears from the transcript in these terms: "HIS HONOUR: Mr Coren, I will tell you what is troubling me. With great respect to you, your submissions from where I am sitting are not addressing the critical concerns that I have and I have adumbrated those a number of times. COREN: Yes, you have. I can't assist you much more than. HIS HONOUR: Hold on. I want to make sure you get an opportunity to do it. COREN: Yes. HIS HONOUR: You have by now the written submissions from Mr Kirk. COREN: I haven't read them. HIS HONOUR: You may not have had an opportunity yet fully to digest them. It seems to me that, although expressed from the point of view of the defendant and in aid of the defendant's case, those submissions raise in a clear and sequential fashion what are the issues in these proceedings. Clearly enough the conclusions that are urged upon me in those submissions are conclusions favourable to Dr Robinson. You would take a different view. Would it be a good idea if you were given an opportunity to respond in writing to those submissions in the categories and with respect to the headings that Mr Kirk has adopted so that each of your minds is focused on the same issues better to assist me to conclude this case? Do you think that might be a good idea? COREN: Possibly. I haven't read them. Could I possibly have a look and that may be the proper way to proceed of course. HIS HONOUR: Without suggesting a possibility, it seems to me that it has got to be a better course than the discursive material I am being presented with at the moment. COREN: Yes, your Honour." 36I was troubled at this time for a number of reasons, the most fundamental of which I described as follows: "HIS HONOUR: As I have said, I am very concerned that the plaintiff is carrying a disability from birth that is serious and disabling and I have read all of the material and she should have every opportunity in this Court to have her case presented in the best way and I am not going to take any steps that imperil that and the course I am proposing, I hope, is one that will enhance it." 37It was in those circumstances that I suggested to Mr Coren that he should reconsider his approach to his submissions, part of which had already been reduced to writing, and try again to deal with some of the issues that I had indicated were troubling me. In due course it was agreed that the parties should provide me with further written submissions. I expressed the view that Mr Coren may have been well advised if at all possible to enlist the assistance of counsel for that purpose, although I recognised that there may have been fundamental practical obstacles in the way of such a course. Written submissions from both sides were subsequently received. I shall now refer to these.
The written submissions 38The plaintiff's written submissions came in three separate tranches. No criticism attends that fact. It followed from suggestions that I made, to which reference is made below. One version was prepared, as I have indicated, for consideration by me on the last day of the hearing. Another version was provided some few weeks later in accordance with directions to that effect. A previous written submission was directed solely to the admissibility of the experts' joint report. 39I was able to discern only the following argument in the first substantive written submission that met or confronted the force and effect of the experts' answers to the questions posed for them in joint session: "57. All facets of the expert evidence in these proceedings is, it is respectfully submitted, very unfortunate. 58. We have Dr Lyneham and Child confirming that they did not have the clinical notes for the initial three pregnancies when providing their reports and advising that it would have been preferable had they such documents. 59. Of course, such documents were provided for the purposes of the joint expert conference, however, there were no assumptions provided to the experts consistent with what was supplied to enable their reports to be provided. 60. This is where the assumption document is based upon a schedule in the ante-natal record maintained by the defendant, and the content of the schedule for prior pregnancies was solely advice from the plaintiff's mother to the defendant of what occurred in the birthing procedures, up to twelve years prior to the initial ante-natal attendance on 13 May 1985. 61. So the comments of the plaintiff's mother at the ante-natal attendance on 13 May 1985 are appropriate to the extent that they are relied upon as an absolute proposition by the defendant. 62. However, the comments of the plaintiff's mother at the ante-natal attendance in early October 1985 are refuted entirely by the defendant. 63. It is unknown how the incorporation of extensive clinical notes in substitution of the assumptions has effected [ sic ] the defendant's perception. 64. However, at least for issue 3 of the joint report, Dr Child states in his expert's report that "in the absence of any record in the notes it is impossible for me to do so". 65. Dr Lyneham states that he cannot provide an opinion on whether the defendant failed to undertake a caesarean section where he was required to do so where a specific assumption was that the request wasn't made. 66. Dr Chapman, of course, confirms in his report that where the conversation had occurred then Dr Robinson "certainly should" have undertaken a caesarean. 67. So, all three experts provide evidence to the contrary and of incapacity in provide a response to such issues in their reports. 68. However, following one hour together, the three expert obstetricians have been able to traverse the gulf from "Yes" (Dr Chapman), "Impossible to provide opinion without notes" (Dr Child) and "How can I provide an opinion when you ask me to assume what my opinion is (Dr Lyneham) to "No", without providing any basis whatsoever for the alteration of their opinion. 69. The joint report doesn't serve to enhance the reputations of what are from a very limited consideration of them in the [witness] box, as apparently respected professionals in Dr Child and Dr Lyneham who in their oral evidence were concerned to proceed with candour and clarity." 40With the greatest respect to the author of these submissions, they fail to address, because they simply do not come to terms with, the experts' unanimous answers to the four questions that were posed for them. 41The plaintiff's later submissions fare no better in this respect. They extend to 177 paragraphs spread over 32 pages. Unless I am mistaken, nowhere in any of this written material does the author of these submissions refer even once to the joint experts' opinions. This is despite my unambiguous encouragement to Mr Coren that that was something with which I required his particular and detailed assistance. That assistance was not forthcoming. Instead Mr Coren appears to have adopted all manner of discursive methods to obfuscate the real issues in dispute. These methods even descended into a criticism of Professor Robinson for failing to conduct the defence of the proceedings upon the basis of an appreciation that his technical or practical performance of the chosen vaginal delivery was negligent. If that was ever any part of the originally pleaded case, it was not one that survived to the trial and not one that was argued upon the pleaded case before me. I confess that I find it difficult to deal in any meaningful or logical fashion with these written submissions. They ill serve the plaintiff and they are of no assistance to me. I suspect that they are an ultimate, albeit disguised, recognition of the fact that the opinions of Professor Chapman, Dr Lyneham and Dr Child are patently fatal to the plaintiff and that no sensibly articulated answer to them could be found. So much was suggested to the plaintiff's solicitor before the proceedings commenced. It is regrettable that no reasoned consideration to that suggestion would appear ever to have been given. 42The plaintiff was ultimately forced to contend that I should not accept the joint experts' report as evidence in the proceedings. A third written submission was directed to this issue. It is important in the circumstances therefore that the various ways in which the report was assailed are fully considered. 43The plaintiff's attack commenced with a submission that an objection had been taken as early as the directions hearing on 25 February 2011 concerning orders for a joint conference of experts and a joint report on the four issues. In fact, at an earlier directions hearing on 9 November 2010 the Court had ordered that the expert evidence be given concurrently and that experts in their respective areas of expertise confer and provide a report. The conference was to take place by 30 March 2011. This was later extended to 29 April 2011. No order was made concerning the form or content of the questions they were to consider. Rather, orders were made that Professor Robinson forward a proposed list of questions to the plaintiff by 22 February 2011, with the plaintiff to advise on her attitude to these questions by 29 February 2011. This is referred to at some considerable length in my earlier reasons for judgment. 44The plaintiff next suggests that the experts did not provide their joint report to her. Whether or not that is correct, it seems to be irrelevant. A copy of the report was sent to the plaintiff's solicitor by Professor Robinson's solicitors on the day it was produced. 45The experts provided a single and identical response to all four questions. It was "No". The plaintiff submitted that "the one word opinion is so irrelevant that any weight attached to the opinion is so minimal as to be insignificant". I do not understand this contention. The content of the answers is adequately informed by the detail in the questions. In any event, the experts are not required to give reasons in circumstances where they agree. This seems to be apparent from UCPR 31.26(2) indicating that a joint report "must specify matters agreed and matters not agreed and the reasons for any disagreement". There was no disagreement. Mr Coren did not seek to challenge the opinions or answers of the experts during his cross-examination of them, as he could have done, if he was concerned to expose some problem that arose from either the form or the content of the joint experts' report. 46The plaintiff's submissions then proceed to consider matters under the heading "Breach of Duty Contemplated by the Joint Report". She appears to invoke what was said by the Kirby J in Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 at [71] - [72] and [77]. The submissions are not altogether clear. Professor Robinson perceives that the plaintiff's submissions should be understood as follows: "...the plaintiff appears to argue that the defendant has misunderstood the claimed duty of care and, further, that the experts are 'not providing an opinion on breach of duty, they are providing an opinion on when the duty arises'...The plaintiff criticises representatives of the defendant for not mentioning 'that there was the separate and potentially subordinate duty of care owed by the defendant to the plaintiff's mother'...it is stated that to 'perform a procedure on the mother inconsistent with her consent is a breach of body inviolability principles'. However, it is then stated that 'such a breach is only referable to breach of duty to the plaintiff where the request is consistent with a duty to the plaintiff' and, that there 'is effectively no defence at all to a breach of duty to an unborn child where the conduct which would have avoided breach of duty is consistent with the bodily inviolability of the mother'...". 47It seems that the burden of the plaintiff's submissions is that the experts were asked, and so answered, the wrong questions. Mr Coren's oral submissions referred on more than one occasion to Marion's Case [1992] HCA 15; (1992) 175 CLR 218 and he repeated that reference in his written submissions. In my opinion, the principles that the plaintiff seeks to invoke do not arise for consideration upon the case as pleaded and formulated for consideration by the experts. As Professor Robinson's submissions make clear, it is presently unnecessary to resolve issues relating to some alleged breach of duty to the plaintiff's mother or issues relating to an alleged trespass to her. The duty of care owed to the plaintiff cannot involve the notion that it is a breach of that duty not to give effect to a request or a demand by the plaintiff's mother in circumstances where to do so would or might lead to a damaging outcome to the plaintiff. It was in a similar context that a majority of the High Court in Harriton rejected the duty then being considered: see Crennan J at [242] - [250] (with whom Gleeson CJ, Gummow and Heydon JJ agreed). The plaintiff's citation from that case is from the dissenting judgment of Kirby J. 48The plaintiff's submissions then move to a challenge to the answers provided by the experts to questions 1 and 2 of the joint expert report. This challenge is mounted upon the basis that the opinions "did not respond to the specified facts and assumptions", apparently because all three experts considered matters beyond the two particularised "prior pregnancy and birthing concerns". This is a curious contention, particularly having regard to submissions made elsewhere that the experts' original opinions had been conceived in the absence of full information - a deficiency that was filled by the time they jointly conferred and reported. It is also wholly without merit as a matter of principle and logic for the reason that the extra information about the plaintiff's mother's obstetric history that the experts were armed with could only better have informed their individual and joint expert conclusions. There is no basis for the submission that the joint expert opinion should be given no weight because it is not responsive to specified facts and assumptions simply because the opinion is based upon extra material as well. The plaintiff does not suggest, for example, that any extra material or information that the experts may have taken into account or considered was erroneous or misleading, so that their ultimate conclusions were infected with error. 49The plaintiff next submitted that the "opinions in the joint report did not respond to 'matters in issue' prior to the expert conference dated 20 July 2011". The plaintiff complains that "in obtaining the joint report, the defendant has obtained expert opinion which didn't previously exist". This submission seems to suggest that the plaintiff's mother's statement that was provided under cover of a letter dated 5 July 2011 had not been considered by Dr Child or Dr Lyneham in reports prepared by them and exchanged before the joint conference on 20 July 2011. However, nothing at all turns on that. The statement contained details of a conversation that was consistent with the version of the same conversation between the plaintiff's mother and Professor Robinson, which was the subject of questions that the experts were asked to answer. The questions were in any event formulated in the previous February when the particular conversation in issue was set out in full. 50The plaintiff's submissions then turn attention to what was said by Basten JA in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [70], apparently in support of a submission that there was no basis for the opinion expressed in the joint report. It is timely to recall what his Honour said in that case, including at [69] as follows: "[69] The trial had commenced on 26 November 2007. The conclave of experts was arranged on the same day, in a reasonably informal manner. The power to direct such a conference is contained in UCPR, r 31.24. The court may direct a conference be held "with or without the attendance of the parties affected": sub-r (2)(a). In the Supreme Court, Practice Note SC Gen 11 deals in more detail with the manner in which a conference may be convened and conducted. Whether it is generally followed in the District Court or whether more informal procedures apply was not part of this case. The appellants' complaint was that information was supplied to the experts in circumstances which had not been agreed in advance and was not consented to by the lawyers for the appellants. [70] This situation had the potential to create unfairness, but also to produce a more useful result than would otherwise have occurred. It is usually necessary for experts to formulate their opinions on the basis of assumed facts. If the facts as found by the trial judge differ from those relied on by the experts, the value of their opinions may be diminished. Further, because the basis of the opinion should always be expressed in the report of the expert (or the experts, in the case of a joint report from a conference) both the parties and the court should be fully aware of the material upon which the experts relied. It is undoubtedly good practice to ensure that the parties set the rules (with directions from the court) before a conference of experts commences and that any variation takes place pursuant to further directions of the court. Nevertheless, a failure to comply with such a practice does not vitiate the result." 51The issue in that case was that the information that had been supplied to the experts had not been agreed in advance, and one of the parties did not consent to it. The position here is quite different. The materials that were provided to the experts for the purposes of the joint conference in this case were all included in a tender bundle to which uncomplaining reference was made during cross-examination of the experts by Mr Coren for the plaintiff. If Mr Coren had wished to challenge answers given by any of the experts in the joint report, or to raise objections to any material upon which they had based their opinion, it was clearly open for him to do so when they were giving concurrent evidence at the trial. 52Finally, the plaintiff challenged the joint report upon the basis that it goes to the ultimate issue before the Court. The plaintiff relied upon Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83. That case was considered more recently by McColl JA in the Court of Appeal in Forge v ASIC [2004] NSWCA 448; (2004) 213 ALR 574 at [269] - [274] as follows: "[269] In Adler v ASIC, above, ASIC's expert dealt with questions which Giles JA described (at [617]) as going: '... fairly directly to the contraventions of the Act alleged in relation to the transactions. As an example, question 1 was, "Would a reasonably careful and diligent director of officer of HIH or HIHC in the position of Mr Adler have caused or procured the payment on 15 June 2000 of $10 million by HIHC to PEE?' [270] Giles JA said (at [622]) that the fact the expert evidence went "fairly directly to the contraventions did not make it inadmissible, see s 80(a) of the Evidence Act although care must be taken 'when experts move close to the ultimate issue'", referring to R v GK, above. He held (at [629]): 'proper professional conduct in the sense of due care and obedience to customary practices and ethical rules [was] a field of specialised knowledge [and that] ... a company director should have specialised knowledge and be able to speak of directors' duties of due care and proper conduct and their application'. [271] The appellants submitted that Adler v ASIC went too far in holding that evidence as to such a question was admissible. Adler v ASIC is a recent unanimous decision of this Court. Mr Tutt's evidence was framed in almost identical terms to the evidence considered in Adler v ASIC. Adler v ASIC is, therefore, a binding authority directly contrary to the appellants' submission. It is consistent with the other Court of Appeal decisions to which I have referred. [272] As Austin J pointed out in Australian Securities and Investments Commission v Vines [2003] NSWSC 1095; (2003) 48 ACSR 291 at [27] expert evidence directed to answering a question of law or fact that is directly before the court for decision '... is likely to be inadmissible not because it goes to the ultimate issue, but because it will not be wholly or substantially based on the expert's specialised knowledge, or it will be irrelevant': Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 at 83. [273] I would, however, express reservations about Mr Tutt being asked to express an opinion about whether the appellants had acted "honestly". If he was being invited to give evidence about the appellants' subjective state of mind any response would have been clearly inadmissible. However it is plain, in my view, that Mr Tutt was being asked to express an opinion based on the objective facts of each transaction as it applied to a careful and diligent director. [274] It was not suggested that Mr Tutt's evidence went beyond his expertise or, save as to one matter with which I deal below, was unsupported by the evidence: cf R v GK, above." 53In this case the questions posed for the experts were in a common and unexceptionable form. The issue of what was acceptable obstetric practice in a particular set of assumed or agreed facts two and a half decades ago is commonly referred to experienced practitioners with skill in the specialty and knowledge of the times. The experts have not been asked to answer legal questions, even if their answers assisted in a legal question being resolved. The questions were wholly within the experts' area of expertise, and no suggestion was made to the contrary in any event. One of the experts was specifically retained and instructed by the plaintiff's own legal representatives. The questions put to the joint conference were all framed in terms reflecting s 5O of the Civil Liability Act 2005 . The section effectively requires evidence of "what was widely accepted in Australia by peer professional opinion as competent professional practice". That is not an issue upon which a court could make a determination or pass a judgment without the assistance of expert evidence. 54I can discern no valid criticism of the experts' joint report or the opinions that it expresses. The failure by the plaintiff's solicitor to raise any complaint about the process by which the experts came to produce their opinions is not only relevant as an indication of why the plaintiff should not now be permitted to impugn the process. It is more fundamentally evidence of a tacit acceptance by the plaintiff of its validity in a case such as this. It is understandable that the plaintiff should take the approach that she has. However, it is not the questions that were asked or the setting in which they were considered, so much as the answers they produced, that the plaintiff finds distasteful. They are determinative of the proceedings against the plaintiff on the issue of Professor Robinson's liability.
Damages 55It is nevertheless necessary to deal with the question of damages. 56The plaintiff did not give evidence beyond two affidavits affirmed on 27 May 2011 and 1 August 2011 respectively. They each deal solely with her injury and the disabilities that continue to afflict her. However, with two exceptions, I am informed that the quantum of any damages to which the plaintiff might otherwise have become entitled has been agreed between the parties. The two exceptions relate to the manner of calculation of the amount for past gratuitous services (where the hours to be allowed have been agreed) and the appropriate amount, if any, to be awarded for past and future economic loss and associated calculations. 57As to the first issue, Professor Robinson has done a detailed calculation of the relevant amounts over time. The plaintiff has not suggested that these calculations are flawed or incorrect. Instead, the plaintiff has proposed an approximate method of calculation rather than going to the trouble of calculating the amount of such damages precisely. In order fully to understand the plaintiff's approach to this head of damages, it is instructive to set out the submissions prepared on her behalf on this issue. They are relevantly as follows: "Essentially the Court is entitled to apply the hourly rate in s 15(5) of the Civil Liability Act by reference to the average weekly earnings for any quarter between the date of injury and date of judgment. It is a discretion available to the Court that is not usually of significance when the hourly rates do not usually significantly differ over the period between date of injury and date of judgment. In these proceedings, of course, there is a period of twenty-six years between the commencement of the entitlement for damages for gratuitous assistance and the date of judgment. The defendant appears to have been somewhat opportunistic by applying the hourly rate of $9.09 initially to the domestic assistance rate where such amount is approximately one third of the hourly rate for domestic assistance provided in May 2011 as it simply doesn't assume any proper relationship to compensatory principles. There is no interest or inflation applied such that there is a mere reliance on the minimum amount allowable within the range prescribed by legislation. The Court has a discretion in applying rates to ensure fairness between the parties. Indeed, it is likely that the consideration of the Court will be of significance generally noting that the legislation may never be applied to such an extended period for personal injury proceedings beyond the period applicable to these proceedings. It is accepted that applying the highest hourly rate consistently will result in unfairness where a plaintiff who by his own delay has been required to extended [ sic ] the limitation period and/or has delayed the proceedings generally. However, where the community and legislation disentitles a person from commencing proceedings until they attain eighteen years of age, there is simply no fair or indeed rational basis to apply rates for domestic assistance which restrict entitlements of this nature. As there is a suspension of the limitation period until a person attains the age of eighteen years then the rates which would operate during the period of suspension should not apply under s 15(4) and (5) of the Act. A period of five years since the commencement of proceedings to hearing is an excessive period, however, there is no conduct of the plaintiff that has delayed obtaining a hearing date. Indeed, the initial opportunity to obtain a hearing date was in November 2010, wherein the proceedings were listed for hearing on 1 August 2011. It is submitted that one rate should be applied by the Court for past domestic assistance from 0 to 15 years of age referable to average weekly earnings on, at least, 28 October 2003, being the date the plaintiff attained the age of eighteen years of age or more appropriately when the plaintiff commenced proceedings on 27 October 2006." 58It is unnecessary to comment about these submissions for present purposes or to highlight the misconceptions that they contain. It is sufficient to note that the plaintiff contends that they produce a sum for past gratuitous care for the plaintiff in the amounts of either $112,015 at the lower end or $125,335 at the higher end. By way of contrast, the sum for which Professor Robinson contends is $75,895. That sum is determined by taking the agreed number of hours for the agreed number of years at the rates applying in each particular year and multiplying those amounts by the number of years at the varying rates over time for the whole of the agreed period. This produces an accurate and reliable amount that is unaffected by the broad-brush and correspondingly less reliable approach for which the plaintiff contends. I prefer the approach adopted by Professor Robinson. 59With respect to the question of economic loss, Professor Robinson proposes a sum of $30,000 as a buffer or cushion for the plaintiff's loss of future earnings or earning capacity. The plaintiff in contrast suggests that a sum of $577,500 should be awarded under this head. Professor Robinson has not suggested any sum for past economic loss, in contrast to the plaintiff whose calculations under this head of damage produce a figure of $125,600. The fundamental problem with any of these proposals is that I have not heard any evidence from the plaintiff herself, apart from what is referred to in her affidavits, which is limited in scope and therefore unsatisfactory for this purpose, or from any witnesses called by Professor Robinson at all. The plaintiff has not produced any expert report upon what might be expected to be her losses under this head of damage and I am frankly unable to formulate any principled or reasoned assessment of what her economic loss is or may be having regard to that limited state of the evidence at present. The plaintiff's particular injury, and the type of work for which she has expressed a preference, must mean that her ability to earn income has been severely compromised. In the event that it became necessary to do so, I would require the parties to resume the hearing on this aspect of the plaintiff's damages claim with appropriate evidence and submissions in the usual way. It is not appropriate for such an important issue to be left to a "near enough is good enough" approach.
Conclusion and orders 60It follows from what I have said that the plaintiff's case fails and that there will be a verdict for Professor Robinson. Costs would ordinarily follow that event. At the request of counsel for Professor Robinson I will defer making any order as to costs until such time as the parties have been given the opportunity to address me about any special costs order that might be suggested.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2011
Gillett
Robinson
(1996) 64 FCR 79
(2004) 213 ALR 574
(2006) 226 CLR 52
(1992) 175 CLR 218