[2018] ACTSC 84

NEGLIGENCE - Medical practitioner - Hospital - psychological harm to plaintiffs - liability - whether there were breaches of duty - content of duty of care - whether the breaches of duty were causative of the injuries sustained - assessment of damages - contribution

Civil Law (Wrongs) Act 2002 (ACT) s 32, 33, 34, 35, 42, 43, 44, 45

Civil Liability Act 2002 (NSW) s 5O

Bolam v Friern Hospital Management Committee (1957) 1 WLR 582; [1957] 2 All ER 118

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Malec v J.C. Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638

Calvary Health Care ACT trading as Calvary Hospital (First Defendant)

Mr I Roberts SC with Mr Ingram (First and Second Plaintiffs)

SC 6 of 2014; SC 7 of 2014

1. These two proceedings SC 6 of 2014 and SC 7 of 2014 were heard together. I will refer to KS, the plaintiff in SC 6 of 2014 as the first plaintiff, and I will refer to her husband, XT, the plaintiff in SC 7 of 2014, as the second plaintiff.

2. On 13 January 2011 the first plaintiff was admitted to Calvary Private Hospital, an institution administered by Calvary Health Care ACT Limited, the first defendant. For convenience, I will refer to this defendant simply as "the hospital". The first plaintiff was a patient of Dr Andrew Foote, the second defendant. Dr Foote was an obstetrician and gynaecologist who had been attending to the first plaintiff since August 2010. The first plaintiff was pregnant with her first child, which had been conceived by IVF in about April 2010. The estimated date of confinement was 6 January 2011.

3. By 13 January 2011 the baby was one week overdue, and it had been agreed between the plaintiffs and Dr Foote that the first plaintiff would be admitted to the hospital that day for the birth of the baby to be induced. The plaintiffs arrived at the hospital about 4.30 pm. The first plaintiff was then attached to a foetal heart rate monitor, which had a screen depicting foetal heart activity, and which also produced a paper graph of that activity (a cardiotocograph, or CTG).

4. It is now common ground that by 4.58 pm abnormalities were apparent in the baby's heart activity. At that time there was a prolonged bradycardia (abnormal slowness of the pulse) with a return to baseline after 7 minutes. At 5.08 pm and 5.11 pm there were further episodes of bradycardia. At 5.40 pm there was a further episode of bradycardia of 6 minutes duration. The midwife attending the first plaintiff, who was an employee of the hospital, did not appropriately assess the significance of these events, and it was not until sometime between 5.50 pm and 6.00 pm that Dr Foote was contacted. At 6.00 pm Dr Foote ordered a Caesarean section and at 6.15 pm the first plaintiff was transferred to the operating theatre, arriving at 6.35 pm. Dr Foote undertook a Caesarean section, but the child (A) was still-born at about 7.00 pm. I will refer to the child as "A". There was an inconsistency between witnesses as to the spelling of the word "Caesarean", and unless I am quoting a report, I will use the spelling "Caesarean."

5. The plaintiffs claim that as a result of these events they suffered psychological harm. They claim that they suffered this harm by reason of the negligence of the defendants. I will set out below the particulars of negligence pleaded by the first plaintiff, but those pleaded by the second plaintiff are essentially the same:

The First Defendant by itself and / or its agents was negligent in that it /they:

(a) Failure to properly or adequately interpret the CTG carried out on the Plaintiff on 13 January 2011

(b) Failure to heed the significance of the CTG carried out on the Plaintiff on 13 January 2011

(c) Failure to advise the Plaintiff she required an urgent Caesarean section on admission

(d) Failure to organise and / or carry out an urgent Caesarean section on the Plaintiff on 13 January 2011

(e) Failure to heed the interpretation of the CTG carried out on the Plaintiff taken on 13 January 2011 indicated a significant risk to the Plaintiff's baby

(f) Failure to inform the second defendant of the Plaintiff's un-reassuring, pathological and/or abnormal CTG on 13 January 2011 at all times from 1640 hours through to 1800.

(g) Failure to inform the Second Defendant of the results of the Plaintiff's CTG at all times on 13 January 2011 from 1640 hours through to 1800.

(h) Failure to maintain a continuous CTG on the Plaintiff from 1640 hours until 1900 on 13 January 2011.

(i) Failure to contact another Obstetrician or to call for assistance from a qualified obstetric treatment provider when attempts at contact with the Second Defendant were unsuccessful on 13 January 2011.

(j) Failure to prepare the Plaintiff for theatre within a reasonable time in the context of the Plaintiff requiring an urgent caesarean section from 1800 on 13 January 2011.

(k) Failure to ensure that an anaesthetic assessment was carried out on the Plaintiff within a reasonable time or urgently.

(l) Failure to minimise the interruptions to the CTG carried out on the Plaintiff at all times from 1640 hours until 1900 on 13 January 2011.

(m) Failure to classify the Plaintiff's need for a caesarean section on the RANZCOG category of urgency on 13 January 2011.

(n) Failure to classify the Plaintiff's need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.

(o) Failure to arrange or undertake an urgent caesarean section on the Plaintiff on 13 January 2011 within 30 minutes of the decision to undertake the caesarean section.

(p) Failure to prepare or to otherwise ensure the Plaintiff was prepared for urgent caesarean section within a reasonable time after 1800 on 13 January 2011.

(q) Failure to devise, institute and/or maintain proper or adequate protocols, policies or guidelines in respect of the time period that a caesarean section ought to be carried out from decision to birth interval for a category one urgent caesarean section.

(r) Failure to adequately train and educate its employees, servants and agents in relation to the category of urgency for caesarean sections and the time required between decision to birth interval.

(s) Failure to resuscitate the Plaintiff's baby properly or adequately or in accordance with proper resuscitation guidelines including administering adrenalin to the baby.

(a) Failure to properly or adequately interpret the CTG carried out on the Plaintiff on 13 January 2011

(b) Failure to heed the significance of the CTG carried out on the Plaintiff on 13 January 2011

(c) Failure to advise the Plaintiff she required an urgent Caesarean section on admission

(d) Failure to organise and / or carry out an urgent Caesarean section on the Plaintiff on 13 January 2011

(e) Failure to heed the interpretation of the CTG carried out on the Plaintiff taken on 13 January 2011 indicated a significant risk to the Plaintiff's baby.

(f) Failure to classify the Plaintiff's need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.

(g) Failure to classify the Plaintiff's need for a caesarean section on the RANZCOG category of urgency as Category 1 Urgent on 13 January 2011.

(h) Failure to arrange or undertake an urgent caesarean section on the Plaintiff on 13 January 2011 within 30 minutes of the decision to undertake the caesarean section.

(i) Failure to prepare or to otherwise ensure the Plaintiff was prepared for urgent caesarean section within a reasonable time about 1800 on 13 January 2011.

(j) Failure to ensure that an anaesthetic assessment was carried out on the Plaintiff within a reasonable time or urgently

(k) Failure to ensure the First Defendant and the Plaintiff's other treatment providers were aware of the urgency of her need for a caesarean section at all times after 1800 on 13 January 2011.

(l) Failure to maintain a continuous CTG on the Plaintiff from 1800 hours on 13 January 2011.

(m) Failure to minimise the interruptions to the Plaintiff's CTG at all times from 1800 hours.

(n) Failure to resuscitate the Plaintiff's baby properly or adequately or in accordance with proper resuscitation guidelines including administering adrenalin to the baby.

(o) Failure antenatally to recognise the Plaintiff's higher risk of stillbirth.

(p) Failure to properly or adequately advise the Plaintiff of the risks of stillbirth.

(q) Failure to properly or adequately advise the Plaintiff of the proper timing of induction of labour.

(r) Failed to categorise the Plaintiff as a category 1 patient in accordance with the RANZCOG guidelines and to record that categorisation within the Plaintiff's hospital clinical notes after reviewing the Plaintiff and determining a lower segment caesarean section was required on 13 January 2011.

(s) Failed to seek from the First Defendant or to arrange with the First Defendant for an operating theatre to be made available for the Plaintiff within 30 minutes of 1800 hours on 13 January 2011.

(t) Failed to make himself available to perform the Plaintiff's lower segment caesarean section between 1800 hours and 1830 hours on 13 January 2011.

(u) Failed to remove himself as the assistant surgeon in surgery conducted at the First Defendant's premises between 1812 hours and 1830 hours on 13 January 2011.

(v) Failed to seek assistance or to otherwise arrange for another competent surgeon to either conduct the surgery he performed between 1812 hours and 1830 hours on 13 January 2011 or alternatively to perform a lower segment caesarean section on the Plaintiff between 1800 hours and 1830 on 13 January 2011.

(w) Failed to perform a lower segment caesarean section upon the Plaintiff between 1800 hours and 1830 hours on 13 January 2011.

6. Each of the defendants filed defences denying liability. During the course of the hearing the hospital effectively conceded liability, and Dr Foote made limited admissions of breach of duty without conceding liability. In addition each defendant served on the other defendant a Notice Claiming Contribution or Indemnity. Each defendant filed a Defence to the Notice Claiming Contribution or Indemnity denying liability. I will return to these issues later. I will initially set out a summary of the evidence given by the plaintiffs personally, as well as the witnesses called by the plaintiffs. I will then address the issue of liability. I will then assess damages, before finally addressing the issue of contribution.

7. However, before referring to the evidence I will set out the provisions of the Civil Law (Wrongs) Act 2002 (ACT) referred to by the parties:

child, of a person, means the son, daughter, grandson,

granddaughter, stepson or stepdaughter of the person, or someone to

consequential mental harm, to a person, means mental harm to the

person that is a consequence of bodily injury to the person.

(c) a brother, sister, half-brother or half-sister of the person.

mental harm, to a person, means impairment of the person's mental

negligence means failure to exercise reasonable care and skill.

parent, of a person, means the father, mother, grandfather,

grandmother, stepfather or stepmother of the person, or someone

pure mental harm, to a person, means mental harm to the person

33 Personal injury arising from mental or nervous shock

In an action for personal injury, the plaintiff is not prevented from

recovering damages only because the injury arose completely or

(1) A person (the defendant) does not owe a duty to another person (the

plaintiff) to take care not to cause the plaintiff mental harm unless a

reasonable person in the defendant's position would have foreseen

that a person of normal fortitude in the plaintiff's position might, in

the circumstances of the case, suffer a recognised psychiatric illness

(2) For the application of this section in relation to pure mental harm to

a person, the circumstances of the case to which the court must have

(a) whether or not the mental harm was suffered as the result of a

(b) whether the plaintiff witnessed, at the scene, a person being

(c) the nature of the relationship between the plaintiff and anyone

(d) whether or not there was a pre-existing relationship between

(3) For the application of this section in relation to consequential mental

harm to a person, the circumstances of the case to which the court

must have regard include the nature of the bodily injury out of

(4) This section does not affect the duty of care a person (the

defendant) has to another person (the plaintiff) if the defendant

knows, or ought reasonably to know, that the plaintiff is a person of

(1) Damages must not be awarded for pure mental harm to a person

resulting from negligence unless the harm consists of a recognised

(2) Damages must not be awarded for economic loss for consequential

mental harm to a person resulting from negligence unless the harm

For deciding whether a person (the defendant) was negligent, the

standard of care required of the defendant is that of a reasonable

person in the defendant's position who was in possession of all the

information that the defendant either had, or ought reasonably to

have had, at the time of the incident out of which the harm arose.

43 Precautions against risk - general principles

(1) A person is not negligent in failing to take precautions against a risk

(a) the risk was foreseeable (that is, it is a risk of which the person

(c) in the circumstances, a reasonable person in the person's

(2) In deciding whether a reasonable person would have taken

precautions against a risk of harm, the court must consider the

(a) the probability that the harm would happen if precautions were

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

In a proceeding in relation to liability for negligence -

(a) the burden of taking precautions to avoid a risk of harm

includes the burden of taking precautions to avoid similar risks

of harm for which the person may be responsible; and

(b) the fact that a risk of harm could have been avoided by doing

something in a different way does not of itself give rise to or

affect liability for the way in which it was done; and

(c) the subsequent taking of action that would (had the action been

taken earlier) have avoided a risk of harm does not of itself

give rise to or affect liability in relation to the risk and is not of

itself an admission of liability in relation to the risk.

(1) A decision that negligence caused particular harm comprises the

(a) that the negligence was a necessary condition of the happening

(b) that it is appropriate for the scope of the negligent person's

liability to extend to the harm so caused (the scope of liability).

(2) However, if a person (the plaintiff) has been negligently exposed to

a similar risk of harm by a number of different people (the

defendants) and it is not possible to assign responsibility for causing

(a) the court may continue to apply the established common law

principle under which responsibility may be assigned to the

(b) the court must consider the position of each defendant

individually and state the reasons for bringing the defendant

(3) In deciding the scope of liability, the court must consider (among

other relevant things) whether or not, and why, responsibility for the

8. KS, the first plaintiff, gave her evidence on 4 and 5 October 2017. KS was born in 1972 in Venezuela, but moved to Australia in 2007. Her two siblings and parents now also live in Australia. KS went to school in Caracas and completed the equivalent of year 12 in 1989. In 1990, she commenced studying medicine at the Central University of Venezuela, undertaking a six and a half year course, made up of five and a half years at university and then one year's full-time work in a hospital as an intern. She gave evidence that she completed the five and a half years at university, sitting all her exams, and doing well, never having to repeat any subjects, although it was common for people to have to repeat subjects. In June 1997 she was awarded her medical degree from the university.

9. In 1997, KS commenced her compulsory 12 months practice in the community. She then commenced study for a postgraduate degree in ophthalmology, which was completed both through the university and while undertaking practical training in a hospital.

10. KS confirmed that she then opened a private practice with three other colleagues practising general ophthalmology in Caracas. KS worked at the hospital four mornings a week, had one afternoon operating theatre shift, and the rest of the time worked in the private practice. KS confirmed that she worked long hours. She agreed that she enjoyed her hours, and that it was a successful practice. She said her particular interest in ophthalmology was glaucoma.

11. She gave evidence that she always wanted to be a doctor, she "want[ed] to help people". She also confirmed that she understood the need to have learned English to undertake that course of study. The official language spoken in the course was Spanish, but that the text books, articles and most of the literature came from overseas, in large part from the United States. She said that if she waited for these documents to be translated into Spanish, they would be out of date, so it was necessary to have "a good reading acumen" in English. KS confirmed that after finishing high school and before beginning university, she undertook some English classes at a private institute in Caracas. In answer to a question from counsel regarding the accents of the teachers at this institute, KS confirmed it was "American English".

12. KS confirmed that in 2001 she had to undergo a cholecystectomy. She had an operation again in relation to kidney stones in 2002. She further attested that in 2003 she had to have an operation for a non-cancerous breast tumour, from which she made a full recovery.

13. KS confirmed that she continued to work in private practice. She completed her ophthalmology residency in 2001, and in December 2004 she obtained her degree as a specialist in ophthalmology at the Central University.

14. KS confirmed that she continued to work as an ophthalmologist in Venezuela until 2007. She confirmed the hours were long, and it could be stressful on occasions. It involved sometimes dealing with difficult patients, and difficult colleagues. She said she did not have difficulty doing it. She gave evidence that she enjoyed it, and hoped to practice for the rest of her life.

15. In October 2006, KS was on holiday in Spain. There she met XT and they began a relationship, and he went to Venezuela and met her parents. They decided to get married, deciding to live their married life in Australia. KS confirmed that she had been brought up in the Catholic faith and that she is still a practising member of the Catholic Church. KS said that she wanted to keep practising medicine in Australia as an ophthalmologist. She arrived in July 2007, initially on a tourist visa, and was granted a spousal visa in late 2007.

16. In this first part, it is convenient to set out this evidence chronologically, under the following headings: (a) studying English and career in Australia; (b) IVF Treatment; (c) consultations with Dr Foote; (d) events of 11-13 January 2011; and (e) subsequent events. In the second part I will set out the effects following A's death.

17. At the time that she arrived in Australia, according to her evidence, KS did not have any problem with reading in English and did not have too much trouble with writing. She could write on a computer in English as well as in Spanish. KS said that when she first arrived she had a very strong accent, so sometimes it was a little bit difficult for people to understand her, and she also had difficulty understanding Australian English, because all the English to which she had been previously exposed had been American English. She confirmed that she attended the migrant resource centre to improve her English, and that she was planning on further improving it at the Canberra Institute of Technology. KS agreed that she commenced study at the Institute of Technology in what is called a functional English course. Despite being told her English was better than functional English and therefore did not need to complete the course, KS undertook the course and passed.

18. From 2008, KS worked as a pathology collector at Capital Pathology for about a year and a half. KS confirmed that when she migrated to Australia she had in Venezuela equipment necessary for her practice as an ophthalmologist, which she shipped to Australia. KS confirmed that as a pathology collector, she had to deal every day with patients, take histories, as well as take pathology samples. She said that she did not have any difficulty doing that and did not have any difficulty completing the paperwork. So far as she knew, her employer was happy with her performance.

19. She agreed that in 2008 she made inquiries from the medical board of the ACT in relation to having her Venezuelan qualifications recognised in Australia. There were apparently four pathways for international-trained doctors to be able to practice in Australia, one of which applied in relation to specialist qualifications. In order for an overseas specialist qualification to be recognised in Australia, KS explained that she needed to put an application to the Australian Medical Council (AMC), and that she also needed to take an English test. This test was called IELTS (International English Language Testing System) and it had four components. She also understood that she had to undertake an Australian Medical Council practical test. She confirmed that at that stage she did not know anything about whether it would be necessary to undergo further study to translate her Venezuelan specialist qualifications.

20. KS gave evidence that she understood that there was no limit as to the number of times one could sit the IELTS test, and that in order to pass she was required to obtain a score of seven out of ten in all of the four categories: listening, reading, writing and speaking.

21. KS gave evidence that she first undertook the IELTS test in September 2008. She did not get the required seven out of ten in two of those categories. After she got those results, KS submitted an application for special consideration to the AMC, for which she received a response in February 2009.

22. KS undertook the English language test a second time on 31 January 2009. On that occasion, she did not get seven in one subject. When asked whether this dispirited or worried her, KS said that "[s]he was close, [she] was very close, almost there, so [she] had improved and this encouraged [her]."She confirmed that it was still her intention to get her qualifications recognised in Australia.

23. KS received a response from the AMC to her application for special consideration. KS agreed that they told her she had to get a lot of documents together, including some translations, a process which she began, via her parents, who were still in Venezuela.

24. KS made a decision to do further study before sitting the test again, deciding she should prepare better before retaking the test and spending more money.

25. In March 2009, KS changed employment to Canberra Eye Hospital. She agreed that she thought that having that job might also assist her in due course in having her registration recognised. At the Canberra Eye Hospital, KS was employed as an ophthalmic technician, which she said was initially part-time, but after about three months, it was increased to full-time. As an ophthalmic technician, she had to take a history of general health and medications, as well as an ocular history. She had to test patients' vision for distance and reading, as well as check the intraocular pressure, and do additional tests. KS confirmed that this required a lot of interaction with the patients and with the ophthalmologist, as well as the keeping of records. KS said she did not have any difficulty doing this, and that she enjoyed it. She confirmed that cataract surgery was a regular occurrence at the Canberra Eye Hospital, and that as time went by, she was entrusted with some tasks relating to the post-operative care of patients who had undergone cataract surgery, such as reviewing the patients when they came to consultation the first day after the surgery. That review involved various tests. If there was an abnormality, KS had to contact the doctor.

26. Whilst there were other orthopists employed at the hospital, KS was the only opthalmic technician. According to KS, she was not called an orthopist because she did not have a degree in orthoptics, so for "legal matter[s]" she was given the job title of ophthalmic technician. KS agreed that the orthoptists were better qualified to do the technical work. None of the orthoptists were assigned the job of undertaking post-surgical reviews of cataract patients.

27. KS also stated that at the Canberra Eye Hospital there were students from universities, including students from ANU Medical School and Sydney University. KS agreed that in the course of her work at Canberra Eye Hospital, in relation to the orthoptist students from the University of Sydney, she, along with the orthoptists that were working with her, had "to work with them and be their mentor. [They had] to show [them] how to do the theory that they have in the practice, and [they had] to teach them to use some of the equipment." In relation to the medical students from ANU, KS said she taught them by taking them around to the theatre, where cataract surgery was being performed, and explaining to them the steps that the surgeon was carrying out. To her knowledge, KS was the only member of staff to do that. KS confirmed that she was calling on her knowledge as an ophthalmologist to provide the explanation that she gave to those medical students. So far as she was aware, she did not think any of them had any difficulty in understanding what explained to them.

28. On 23 September 2009, KS submitted documents to the Australian Medical Council. On 29 September, KS received notification from the AMC that the documentation was inadequate. Her certificate of registration and certificate of good standing was issued on 13 January 2009, and by the time she submitted it to the Council, it was past the three month deadline. Also, KS still had to complete the requirement of English language proficiency. Having received that notification, KS said that she decided she was going to take the English test again, and after she passed, she was going to ask her parents again for the documents and get them translated. She confirmed that she continued to study her English before undertaking the test again.

29. In April 2010, she reduced her hours of work to 32 hours a week, as she said she did not have enough time between IVF (see below) and working, and wanted to dedicate more time to study.

30. KS agreed that on 17 December 2010, she did the English exam for the third time, at which time she was heavily pregnant, and suffering some related symptoms. In relation to when she undertook the exam, she said: "I was stressed, and I remember when I was sitting doing the reading and the listening I feel very hot in the face." She was asked why she had undertaken that test when she was so heavily pregnant, and responded: "I have been study (sic) for that, and I knew that if I weren't - the baby comes, it was going to be more difficult, because with a newborn it were going to be a little bit difficult for me to take the test." If she had not taken the test, she said it would be at least four months before she would be able to take the test again.

31. KS took maternity leave starting in December 2010, anticipating being off work for a year. She confirmed that she hoped that during that one year she would be able to complete everything that needed to be done to get her registered as an ophthalmologist in Australia. The results of the English test were disappointing in that she got just under the required scores in two of the subjects. In one of them she had gone backwards. KS said she was disappointed with the result, because even though she had studied longer and been longer in Australia, in one component her mark decreased. She confirmed that even so, she had the intention, after the baby was born, to do the exam again.

32. KS gave evidence that in 2008 there had been discussions between her and XT as to having a family. KS confirmed that they purchased their present house, with four big bedrooms, before they had any children, because they wanted to start having a family and they wanted to have at least three children.

33. She further confirmed that in pursuit of their desire to have a family, she consulted Dr Viketos, her GP. Dr Viketos devised a pre-pregnancy plan for KS, but KS was not successful in falling pregnant. In September 2008 Dr Viketos referred KS to Dr Sides, a fertility specialist. KS first consulted with Dr Sides in October 2008, and the doctor carried out some tests and prescribed some short-term treatment. The first plaintiff was again unsuccessful in falling pregnant.

34. In February 2009, Dr Viketos referred KS to another fertility expert, Dr Simone Campbell. KS confirmed that she consulted with this doctor and that various tests were undertaken. After various tests, Dr Campbell recommended IVF as a course of treatment. According to her evidence, KS commenced the first cycle of IVF in April 2009. An embryo was implanted, and KS was informed some time later that she was pregnant. About seven weeks into the pregnancy, KS underwent a scan. The scan revealed a foetal heart defect, which KS said was very difficult to take. Her counsel asked whether she had some understanding when she commenced IVF that it was the sort of thing that could happen, and she replied in the negative, saying she was "very sure that it was a successful pregnancy and [they] would go all the way." On 25 June 2009 KS had a chemically-assisted miscarriage at Canberra Hospital.

35. KS confirmed that in July 2009, she went back to see Dr Campbell, requesting to undergo a further IVF cycle, but that Dr Campbell advised KS to wait for another month, as it was too close to the loss of the first foetus.

36. At that time KS was undertaking a full-time job, but recommenced IVF treatment, with a second lot of egg retrieval on 11 December 2009. KS agreed that, notwithstanding having the IVF treatment, the studying of English and particularly the full-time job described above, she was enjoying life. She also said she was coping with the difficulties associated with IVF. She confirmed that of the eggs that were retrieved in December 2009, an embryo was implanted on 17 December 2009. In March 2010, she was advised that the cycle had been unsuccessful and she was not pregnant. There then ensued a reasonably lengthy process of dialogue or discussions between KS, XT and Dr Campbell in relation to the possibility of a sperm donation being made.

37. By April 2010, KS still had a strong desire to have a baby. She commenced a third IVF cycle on 18 April 2010. She confirmed that on 10 May she was told that she was five weeks pregnant. Subsequent investigations revealed that she was pregnant with twins. She said that she and XT were happy with that news, "but not like the first time, because [she] knew already that things can go wrong, so [she] was cautious".

38. She confirmed that she suffered morning sickness quite severely during that pregnancy. KS said that she and XT went to Singapore in June and when they arrived, she started spotting. She booked an appointment to see an obstetrician in Singapore, and an ultrasound was performed. The obstetrician reported that one of the twins did not have foetal heartbeat. They were reportedly told that the other twin was okay. KS said that when she learned that one of the twins had no foetal heartbeat, it was sad news, and it was stressful. She also had concerns about the remaining foetus. She confirmed that she was told that the other foetus was healthy. She agreed that when she returned to Australia she commenced to consult specialists in relation to that pregnancy, and that she attended Dr David O'Rourke on 8 July 2010. She understood that Dr O'Rourke was an obstetrician and gynaecologist. XT was with her at that time. According to KS, the doctor did an ultrasound and said that the baby was okay. She did not continue to consult Dr O'Rourke during the course of the pregnancy. When asked why not, she said:

Because I was very careful. I wanted everything to be fine with this baby. It was a precious baby, and [XT]'s sister, his father-in-law, he used to practise as an obstetrician and I talked to him. He was practising after that as a GP and I talked to him for advice, because I didn't know anybody here, and he suggest me to go to Dr Foote.

39. KS said that she first consulted with Dr Foote on 9 August 2010. On that occasion Dr Foote gave her an estimated date of confinement of 6 January 2011. KS agreed that when she first saw Dr Foote, he did a medical history and she told him what had happened to the twin as well as the fact that the child was as a result of IVF.

40. She continued to consult with Dr Foote during the course of her pregnancy, initially consulting him every four weeks. She confirmed that after a few months, she was having cramps in her legs, and had heartburn. She reported these symptoms to both the midwife and Dr Foote. Apart from those symptoms, KS was reportedly generally well, was continuing to work and was looking forward to the birth of her baby. Asked about the approach of the estimated date of confinement, KS said she was "very excited and also a little bit stressed". She confirmed that as she advanced in the pregnancy, the consultations became more frequent. Towards the end of her pregnancy she was seeing the doctor for review every week.

41. KS consulted with Dr Foote on 31 December 2010, and at that time the baby was 39 weeks and one day. KS's blood pressure and weight were noted. She said her feet were a little swollen and she was still suffering heartburn, and was having trouble sleeping. Dr Foote prescribed KS Temazepam to help her sleep. She confirmed that XT was with her at all of these consultations. KS said that at her visit on 31 December, she said to Dr Foote that she "didn't want to go over the 40 weeks". KS said that this was because "[i]n [her] training and in Venezuela, nobody goes over 40 weeks. This baby was very important for [her], very precious, and [she] didn't want to take any risks." KS gave evidence that in reply, Dr Foote said "the first time that women are pregnant always it is usual that they go over 40 weeks before going to labour." KS said that on this occasion, the baby was "perfectly fine" and that Dr Foote said that they "were going to wait."

42. KS's counsel asked her whether Dr Foote said anything about whether or not he would be available to deliver the baby on 6 January 2011, and KS said "[y]es, he was going to on holidays." KS said she couldn't remember whether at the time Dr Foote said he would be on holiday, he offered KS the opportunity of having the baby delivered by someone else. She said "[h]e said that it was fine to wait, and we made an appointment when he return." That appointment was for 11 January 2011, the second Tuesday in January that year.

43. KS said that when she went to see Dr Foote in his rooms near the Calvary Hospital complex on 11 January, she was "stressed" and "concerned", and that "[she] didn't want to wait". She confirmed that she was still suffering from swollen feet. KS agreed that there had been earlier discussions with Dr Foote about the baby being delivered at the private hospital at Calvary Hospital. KS said that when she went to his rooms on 11 January, she took her clothes with her: "[she] packed [her] bag, because [she] was determined to don't [sic] come back home."

44. When she was there, the midwife carried out the checks with her blood pressure, and KS confirmed that Dr Foote carried out an internal examination. She agreed that by her recollection, Dr Foote listened to the baby's heartbeat, using a "Doppler". She then recalled: "He said my cervix was closed. It wasn't mature, and I haven't started labour, and I have to be an induction." In terms of the health of the baby, KS said Dr Foote said that she was "10 out of 10".

45. It is worth noting that KS and XT were aware before this point that KS was carrying a daughter. KS and XT had decided they would call her A.

46. KS recalled that after Dr Foote said it may be necessary to induce labour, she said she wanted to have an induction that day. The following questions were put to KS in examination-in-chief, and she gave the following answers:

Firstly, who was it who talked to him? Was it you or [XT] or both of you?---I (indistinct). I wanted to have an induction that day.

Right. Did you say why?---I was worried for her, to being overdue. Yes, I didn't want to wait more time.

Did Dr Foote then do something?---At the beginning he say that we could wait another week.

Yes?---That it wasn't going to be a problem. He said he was (indistinct) sure that she was 10 out of 10 and he said that before, he didn't hear to our wishes because I wasn't overdue, but at this stage, as I already was over, he will listen to me and what I want.

Did he then make some enquiry while you were there, from the private hospital?---She [sic] called the Calvary Private Hospital.

What, after he'd made that phone call did Dr Foote say to you?---He said that they didn't have a bed for me.

Did he at that time, say anything to you about any risks that may accompany an overdue birth?---No.

Did he say anything about any risks that may be associated with [A] being an IVF baby?---No.

Did he make any offer to you, to arrange for your admission to be admitted to the public hospital?---No.

Had he been able to arrange your admission to the public hospital, would you have gone there rather than the private hospital?---Yes.

Did he discuss with you the possibility of performing the induction on the following day, that is to say 12 January?---No, he proposed to me that we could wait until next Tuesday.

Did he say you could wait until next Tuesday?---Yes.

What did you say to that?---I wasn't going to wait.

Was some compromise reached?---Yes.

What was that compromise?---That I want you to come to the hospital on Thursday 13 to have an induction. If I haven't gone in labour before that.

47. KS again confirmed that Dr Foote never mentioned that an IVF child had some increased risk of still-birth.

48. When KS went to the hospital on 13 January 2011, she went there around 4.30 pm. She was accompanied by XT as well as her parents, who had come from Venezuela for the birth. KS recalled doing some administration when they arrived and then being placed in a room. She recalled that the room was called "[t]he first room, the number one." She did not remember what floor of the hospital it was on. In the room, she recalled there being a bed and either chairs or a couch, as well as a machine and a bathroom inside the room. The witness was shown a photograph of a CTG machine, which she confirmed resembled the machine in the room. From her medical training, she knew what it was, and understood its purpose was to monitor the baby.

49. She was wearing her regular clothes and was asked to lie down on the bed. XT and KS's parents stayed in the room with her, and the midwife fitted the band for the CTG. The midwife explained that the machine was turned on and in KS's words, instructed her to listen to the noise of the machine. KS recalled being told that "if something was wrong with the noise, just to press the buzzer." KS confirmed that the midwife had turned the machine on. KS could clearly hear a repeated noise, that she understood to be the sound of the baby's heartbeat. The midwife then left the room. KS's parents and XT remained in the room. She confirmed that at some stage, she noticed something about what she was hearing from the machine. She noticed that "[t]he noise by that time was very regular. Change and the rhythm wasn't as before [...] It was regular at the beginning and then it changed [...] The pattern changes, the rhythm." When asked if she was looking at the graph being created, the trace, or just listening to the noise, KS said she was listening to the noise. When she noticed that change, she pressed the buzzer as she had been told to do. KS said the midwife then came back. She appeared to look at the trace, and she repositioned the belt. The midwife said that the change could have been because the contact was lost and she repositioned the belt, before again leaving the room.

50. KS said that at some later stage, she, her parents and XT were still in the room without anyone from the hospital. KS then noticed that "[i]t happened again. It was a change in the rhythm again." She pressed the buzzer and the midwife returned. On that occasion, she said to KS that she did not think that it was loss of contact, and that she had some concerns about the heart rate. KS recalled feeling distressed, when she heard that. The midwife said she would have to call the doctor. She did not remain in the room and did not reposition the belt. KS told herself to lie on her left-hand side, because she said she knew that this position would increase blood flow to the heart and the baby and to the placenta. The midwife returned sometime later, and came back with another midwife. According to KS, the new midwife said "that with that trace, they couldn't proceed with an induction. They said that, the other midwife said that they have called the doctor. They couldn't be able to talk to him, but they left a message." KS said that the midwives said that the doctor was in the hospital and he was attending to a C-section. The midwives left, with KS's parents and with XT. At that stage, KS said she felt very distressed and very concerned.

51. At some stage, Dr Foote arrived. KS's counsel asked her whether she could give any accurate estimate as to how long it was between the time the midwife told her they had attempted to contact Dr Foote and the time he actually arrived, and what he said to her once he read the trace. The following exchange occurred during the hearing:

Are you able to give any accurate estimate as to how long it was between the time the midwife told you they'd attempted to contact Dr Foote and the time he actually arrived? If you're not able to be accurate, it's perfectly understandable?---I don't remember exactly the time, but it wasn't quick. It seems like a long time.

When Dr Foote arrived, what did you see him do?---He was looking at the trace.

After he looked at the trace, did he say something to you?---Yes.

Doing the best you, and trying to use his words, what did he say to you?---He said that the meaning of that, it was the baby had, wasn't receiving enough oxygen.

All right?---And in that condition they couldn't induce me, it has to be a C-section.

When he said to you the baby wasn't receiving enough oxygen, how did you feel?---I was desperate. I started crying, and then he said that, "I am not worried" and he say that if he were worried, "I would put you in a shopping trolley and take you straight to the theatre myself."

Did that reassure you at all?---No.

Did you say anything to him that you recall?---I was just crying, desperate.

52. KS could not remember whether XT said anything to Dr Foote. Her parents could not speak English. Dr Foote did not stay with her. She said she still had the belt on when he arrived. KS could not remember if any other member of the hospital staff was there when Dr Foote said he wasn't worried. After he left, some of the nursing staff were there. They started preparing KS to go to theatre. She remembered going to the toilet. KS said she thought that the nursing staff took some blood and also put her in a theatre gown. When asked whether any of them said anything to her that indicated things had to be done quickly, KS said "[n]o. I [KS] was the one in a hurry and trying to do everything quick, but nobody else was in a hurry." She said that she was continuing to cry. Eventually, a wardsman arrived, and took her to the lift and to the room outside the theatre. XT accompanied her. KS said that:

I don't remember [XT] being with me in the room, and I remember telling him that, "look after [A]", and with that I mean that, if he have to make a decision take her.

53. In cross-examination, KS was asked further questions about whether Dr Foote or the midwife told her that she was going for an emergency Caesarean, or whether she got the impression from watching them that the Caesarean section was considered by them to be an emergency. She answered in the negative to these questions.

54. In cross-examination, counsel for the hospital put the following questions, referring to the midwife:

All right. Did she check you to see whether you had any contractions at the time?---I don't think so.

But she could have done, you're just might not remember?---I don't believe that.

Did you have a discussion with her along the line of as to how your pregnancy had gone and while she was doing your vital signs?---No.

Can I suggest that there was a discussion that occurred between you and the midwife whilst she was doing your vital signs about how your pregnancy was proceeding?---No.

During the course of that discussion, she also explained to you what happened with respect to the CTG and the purpose of why it was being used?---I already know.

55. When she was in the room outside the theatre, KS agreed that someone she understood to be an anaesthetist came to see her, and explained the type of anaesthetic she was going to have. He apparently told her she would have an epidural, and he explained to her all the procedures that were going to be done for an epidural. She said she knew what that was, and that the explanation seemed to her to take a long time. It did not appear to her that he was in a hurry.

56. When asked if she could remember how long she was in the room outside the operating theatre, she said "[h]alf an hour or - I don't remember clearly, but it wasn't a short period. I don't know if was half an hour or - - -" KS could not remember whether the anaesthetist came into the operating theatre with her or if he was already there. She also could not recall whether Dr Foote was there when she was taken into the operating theatre, but at some stage she saw Dr Foote, before she had been given the epidural. KS recalled Dr Foote telling her that he was going to check the heart of the baby. She said she saw him stand up, close to her abdomen and that he started looking for the heartbeat in different places. He was moving the Doppler on a number of different parts of her abdomen. KS gave the following evidence:

As he was doing that, what, if anything, did you notice about Dr Foote?---I couldn't - nobody could hear the heart, and I saw him (indistinct) for the first time in all the time I saw he's starting to get worried.

What did you see?---I saw his face and it was changing, and I could see this part of the muscles to start to get tense.

The muscles along his jaw?---Yes.

How were you feeling at that stage?---(indistinct) crying and screaming.

Did you then hear someone else say something?---(indistinct) this side, my head and

Just a moment, something behind on your right side, you think?---Mm.

Someone behind you on your right side said something? Was it a man or woman, do you remember?---It was a female.

What, if anything, did you hear the female say?---She say, "Calm down, calm down, we have to put you out. We have to get the head out."

Did you say that she said, "We have to get the put you out" or "We have to get her head out"? I didn't hear?---Her out.

Her out? Thank you. Did you hear Dr Foote say anything, or simply this female?---That female.

What happened then?---I don't, I don't know anything then.

So she told you, "Calm down" and the rest, and that's your last memory? What's your next memory after that?---[XT].

[XT] was in the ?---I saw him come in.

Do you know whether you were in the operating theatre or in another ward?---I wasn't even in the bed, but I don't remember where I was.

When [XT] came in, did you observe anything about how he was?---I know, I know because I was crying and he crying and crying.

Was he carrying something? What was that?---It was [A], but I know she wasn't alive because he was crying and crying.

Was he carrying the baby, or was she wrapped in something?---In a blanket.

Can you describe it?---Yes, I know what the blanket is. It was a (indistinct) blanket and it have squares, with white, yellow and blue.

Yellow and blue? Did you notice something about the blanket?---It was [A] there.

57. On the following day, Dr Foote came to see KS, who was still in the ward. When asked what he said, KS said:

He say, he comes and I remember that even a tear came from his eye, and he said to me that the heart of a healthy baby doesn't stop, it wasn't (indistinct) and he start telling me, making comparison, he compare, he say that he lost his mother, or mother-in-law, in a car accident and he make comparison of my loss with a miscarriage that he wife have with twins.

58. KS recalled that he said that if, next time she got pregnant, he would deliver her at 38 weeks. That day he also told her that she should go home, as she was amongst some new parents, and it was not healthy for her. KS did not see Dr Foote again.

59. KS remained in the hospital until 18 January. She had to undergo three blood transfusions. XT was there a lot. For a lot of that time A was with KS too. A naming ceremony was carried out. KS was visited in hospital by counsellors, and by a Catholic priest. Eventually she was discharged on 18 January. When asked how she was feeling at the time she was discharged, she said:

I was sad. I was out of me. I remember calling [A], but where was her. I remember asking my mum, "Where is [A]? Where is her?" I'm calling her. I was angry, I was sad.

60. When asked if she was able to sleep, KS said no, that she had images for a long time - an image that A was with her and her face and the blanket, an image KS said she would never forget. A funeral service was held on 25 January.

61. KS confirmed that in the weeks following the funeral, she was feeling the same as she had described above.

62. Whilst staying at her brother's place in Queensland, she experienced some heavy bleeding. On 26 February 2011, KS was taken by ambulance to Nambour Hospital. She was discharged home with advice to be reviewed by her GP. KS confirmed that when she got back on 8 March 2011, Dr Campbell referred her for an ultrasound. In March 2011, a counsellor from SIDS for Kids attended at KS's home. KS said that at that point she was "numb, sad. [Her] parents... were concerned with [her]. [She] felt guilty because [she] didn't do what [she] should have done and [she] wasn't eating properly. [She] wasn't sleeping properly." She said she felt guilty because she "didn't protect A. [She] should have been strong and (indistinct) let A go at 40 weeks." She said she was not sleeping or eating well. She had low energy levels, was confined to her house and would wake several times during the night with dreams about what had happened in the theatre on that day. She had trouble getting moving in the morning.

63. Having decided with XT that she may benefit from going home to Venezuela with her family, KS went back to Venezuela with her parents on 22 March. When she went back, she consulted with two obstetricians. Until she saw those obstetricians, KS said that she did not want to have more babies. She said that "[she] didn't want to have another baby. [She] wanted [A] and [she] couldn't have her." She confirmed that the advice she was given related to her age. She changed her mind about having another baby. Whilst KS was away, she thought about whether she would go back to work. She decided not to go back to work, saying:

I couldn't. I couldn't face people and patients that I'd seen before. Everybody knew that I was pregnant and I couldn't face to be asked how's the baby? How are you coping? Because it was too hard and it was hurting too much.

64. Following this, KS met XT in New York and then they went on a cruise before returning to Canberra. They returned to Canberra on 6 June 2011.

65. During the course of her evidence, KS described a variety of symptoms and difficulties following the death of A. These symptoms and psychological effects appeared to relate to different areas of her life, including the workplace and workplace relationships, her ambitions to practice as a doctor, her experience of IVF treatment, pregnancy and the birth of her child OT, as well as her relationships with her husband, family and friends. The extent of these effects, and the steps taken to deal with them, were challenged in cross-examination. This cross-examination has been incorporated in the relevant sections as they arise below.

a. Workplace difficulties and psychological difficulties

66. KS resigned from the Canberra Eye Hospital from 17 June 2011. She cited professional improvement in her letter of resignation, but explained her situation to her team leaders. She successfully applied for a job at the Eye Clinic at the Canberra Hospital, doing orthoptic work. She commenced on 25 July 2011.

67. In 2012, KS agreed that she experienced events that led her to report a colleague to her superiors in relation to what she perceived as bullying and an inability to share the workload. KS had apparently been unhappy with other people's performance earlier in her working life but in those days it did not worry her. She agreed that there had been a change in her ability to cope with the situation, and said that now, she was "a bitter person" and "less tolerant...a person that used to live at the edge, very irritable." She said that she "allowed everything to affect [her] a lot and [she] lost the ability to cope with things." She also said she did not trust people anymore, a problem that she confirmed she did not have before A's death. After A's death, even small things could affect her, and lead to her being in tears. She agreed with her counsel that there were a number of occasions during the interactions with the colleague concerned and other staff at the eye clinic at Canberra Hospital where she was in tears. She said that had not happened to her before A's death, even in the most difficult circumstances.

68. The problem was solved to some extent when KS was assigned to alternate duties away from the eye clinic. The problems with the co-worker were discussed freely with KS's superiors, often in tears and with stress. An investigation had been opened and it was apparently a difficult environment. KS continued working, often working longer hours.

69. KS agreed that her employer arranged for her to see a psychologist called Ms Vareeda Hanson. Although KS went through a brief history with Ms Hanson, and told her about A's stillbirth, KS agreed that she did not ask KS questions about how that affected her. KS understood that she was seeing Ms Hanson in relation to the workplace stress issues.

70. KS consulted Dr Viketos, her GP, and told him of some of the issues that she was having at work. He gave her a workers compensation medical certificate certifying that she was unfit for work from 11 April 2013 to 24 April 2013 and KS made an application for workers compensation for that period. She returned to work and continued to work, doing the work of an orthoptist in the eye clinic. When asked if she was contemplating attempting to undertake the English language test again, she said that she wanted to do it, but "just didn't have energy or motivation to do it." She said she wanted to do it because she wanted to be practising medicine, which had remained her hope all along. However, she said she "wasn't coping very good. [She] was struggling to get through the days. [She] didn't have good concentration or memory. [She] was struggling with the things that [she] had at the moment; so [she] couldn't take anything else."

71. After KS returned from maternity leave in 2014/15, the colleague with whom she had had issues returned with apparently no change in her behaviour. KS said she did not feel like she could cope with that. She took some time off, and when she returned to work she was assigned work of an administrative kind, where she was not in contact with the colleague.

72. KS said that at times she felt as though she was being pressured to return to work at the eye clinic, despite the particular colleague being there. Her workplace suggested also that if she did not want to go back to the eye clinic, she should seek retraining and find another job. KS confirmed that she did a two day course, an introduction to project management course. She said she did not enjoy the administrative work very much but that they did not give her too many options. In December 2016 she ceased performing administrative duties at the Canberra Hospital and that she was offered participation earlier that year in a project, related to her training in project management.

73. Dr Viketos put KS off work on 21 December 2016 and continued to prescribe Lexapro. She returned to work just before Christmas and then went on annual leave. At the time that she went on annual leave the feelings that she had and which she has described were still there. She said that 2015 "wasn't too bad a year." However, she said that by the end of 2016, she "went backwards." She said she was not coping very well with her duties, she could not concentrate, and the work she was doing was often in front of a computer without much interaction with people. She was still feeling sad, but was not teary. She recalled having difficulty sleeping and thinking a lot about A. When asked how often, she said, "I always think about [A]. Especially having OT. I always it bring me her memories." KS said that her motivation was not very good, but that by the end of 2016, she was pushing herself, and working, and wanting to work.

74. In January 2017, KS changed GP to Dr Al-Naser. She said that she had been seeing Dr Viketos for many years and she was "not being well enough on Lexapro" but her basic mood had not improved and she wanted to hear another opinion. Dr Al-Naser referred KS to a different psychologist, Coral Warren, and changed her medication to another anti-depressant, Aropax. He also added Valium and Stilnox. KS agreed that he also suggested that she should only work with the diabetic service not at the Canberra Hospital. KS agreed that she thereafter continued working three days a fortnight for the diabetic service. She began working full-time for the diabetic service in April 2017.

75. The first plaintiff gave evidence that she had seen the psychologist Coral Warren in February or March 2017, who she was referred to by Dr Al-Naser. She saw her on five occasions. When KS saw Dr Warren, she talked to her about the stressful situation at work, and also told her about A. In relation to talking about A, KS said about Dr Warren:

She say that I am not there to discuss other thing that were not work related but to her she thinks that I haven't finished my grief but if I wanted to talk about that I have to go to another psychologist or to see her private because I wasn't there to talk about that.

76. KS agreed that she understood that Dr Warren's fees for treating her were being paid by the workers compensation insurer. KS's anxiety was also increased by the fact that information was circulated regarding Allied Health professionals' credentials, and that KS understood that not being registered with the Australian Orthoptist Board, she would not be able to continue practising as an orthoptist for ACT Health. At about the same time, KS was diagnosed with the early stages of cervical cancer. She had the cancer removed, and as part of her treatment underwent a hysterectomy. Subsequent tests revealed that the cancer was completely treated.

77. KS went back to full-time work doing the diabetic vision screening at the Belconnen Community Centre. KS said that she has since learned that ACT Health, on 31 July 2017, agreed that she can remain credentialed to practice in her position with ACT Health notwithstanding not being registered with the Australian Orthoptist Board, which KS said was a relief. KS confirmed that she hopes to be able to continue that work.

1. In cross-examination, KS was questioned about why she did not seek professional psychological help earlier. KS agreed that the first psychologist she saw since A's death, 18 months afterwards (4 August 2012), was Dr Vareeda Hanson. KS gave the following evidence when asked about her not having earlier seen a psychologist:

And you, with the medical training, understood that in circumstances where you have grieving or ongoing stress related issues, such as you had with the death of [A], that you could have seen a psychologist with any problems you had associated with nightmares, flashbacks, lack of sleep or loss of appetite?

---They told me here and people from SIDS and Kids and the consulting that we saw at the hospital, the consulting that was looking after us after that happened, they suggest me to go to groups that have had the same problem that we had or the same traumatic event. I didn't see that that was a good idea. I rather take the support of the faith and I don't respond well of people telling me and putting the finger in the wound. "What happened? What you did? How that made you feel?" That makes me feel difficult and I was angry because something that could be avoided, now that all the tragedy happen, now you can go and talk with groups about that. "May you feel. Go and cry with everybody about what happened," but the fact was that nothing was done before to avoid that to happen.

I want to peel back some of your answer. Number one, I'm not suggesting to you that you could have gone for group therapy but from what you've said you wouldn't have gone to group therapy in any event - - -?---No.

- - - because you're not interested in that way of essentially dealing with the issue of the grief that you suffered with [A]'s death?---I didn't think that it was going to help me.

What I'm suggesting to you is you knew that you could go and see a psychologist, one like Dr Vareeda Hanson, to assist you dealing with the grief after [A]'s death but you didn't see anyone, did you?---No.

And from what your evidence is you didn't see anyone because you didn't see it as being helpful to you. You said something like sticking your finger in a wound - - -?---Yes.

- - - in asking how you're dealing with it. You didn't feel that was of benefit to you. Is that correct?---I was - yes.

So in terms of dealing with the grief you were dealing with it in your way. Did you mention it to your general practitioner?---Dr Viketos?

Yes?---I don't remember. I don't know.

You spent some time in Venezuela with your family to help heal the raw wound associated with [A]'s death and when you returned to Australia you did go back to work but you didn't seek any medical assistance, did you, with respect to the psychological injury that you now complain of here in this court case?---No.

The only time you saw a psychologist, with respect to psychological issues, the first time was with Dr Vareeda Hanson and that was work related, wasn't it?

---Yes.

79. In re-examination, KS said that she was not sure whether Dr Hanson said she had to pay for treatment herself if she wanted to deal with personal matters, but said that was told to her by the psychologist that she was referred to from work, Mrs Coral Warren. As far as she was aware, Ms Hanson's fee was paid for by her employer.

80. In cross-examination, KS said that in April 2013 she went to see Dr Viketos, and told her about what happened with the spotting, with OT, with her pregnancy and that she was working long hours and over her capacity. She told her that it was putting more pressure on her and her pregnancy. Counsel asked KS whether she talked to Dr Viketos about the symptoms that she had been having for two years as a result of A's death. KS said she had not, because she was sent there to see Dr Viketos for work. KS said it was after talking to Professor McFarlane, a psychiatrist retained by her lawyers, that she first told Dr Viketos about the symptoms she had been suffering as a result of A's death. KS said "I was managing. I was pushing myself with dealing with both situations." The following cross-examination occurred:

So the question if I remember it, [KS], is that you did not think with your medical training that you could get benefit out of seeking medical help?---I have problem dealing with the imprint memories and I didn't think that going again and again and repeat and cry and people tell me what will happen? What do you feel? No. I talk a lot to family. I attach to my faith. I see priest. I went to church and I pray to the - that with both - with [A] and with issues from work, pushing myself through the day. No, I didn't think that nobody could help me at that stage.

81. During cross-examination, Ms Burke asked a number of questions regarding the first plaintiff's ability to continue working following the death of A, as well as the assistance she received in managing psychological problems she has experienced since A's death, and the improvement in these symptoms over time. KS confirmed that from July 2011 until the present, KS has only had time off work to travel to South Africa for IVF issues, time off as a result of the workplace incident, time off with respect to the laparotomy and cervical cancer, and her holidays and maternity leave. She agreed she has not had time off with respect to the psychiatric or psychological problems associated with A's death. She confirmed that before seeing Professor McFarlane, she had not seen a psychologist for the purposes of counselling or cognitive behaviour therapy to assist in dealing with the symptoms resulting from A's death. When asked whether the symptoms improved over time, KS said: "By 2014, 2015 the flashbacks weren't that often that they used to be ... [b]ut the changes in mood, my changed high react and the other changes that my lack of - my resistance to the things affect me and - very bitter, lack of tolerance, they are still there." Counsel put to KS that she had told Professor McFarlane in 2017 that the nightmares had ceased in around October or November 2014. KS agreed that her nightmares had ceased by 2014-2015. She said she did not believe she has overcome her other symptoms.

82. She did agree that notwithstanding the fact she said there has not been an improvement in her other symptoms, she has still been able to maintain a position at work and has continued to work since July 2011. She said that work has been an escape and has kept her mind busy, which helps. She agreed that her work required a degree of concentration, and that she needs concentration to perform her job satisfactorily and appropriately. It was put to her that she does retain information, and KS acknowledged the fact that she recalled the pathways to practising in Australia during the hearing, for example, but did not appear to fully accept that she retains information as fully as she used to. In re-examination, KS said that she did not think that her current work requires the level of concentration as working as a medical doctor, as it is very automatic.

83. KS said she stopped taking Lexapro in late 2015.

Right and that was because you were feeling okay and you were coping relatively well in 2015?---It wasn't as a difficult a year as I been having.

Okay and that was because the grief and the loss associated with [A] had settled. Is that right?---The nightmare and the flashback.

Okay and your thoughts of [A]'s death, whilst it returned from time to time, it had lessened, hadn't it?---More often but it still hurting a lot.

84. In cross-examination, counsel for the first defendant clarified that KS only saw Dr Warren, who she was referred to by Dr Al-Naser, on five occasions, because the doctor said KS no longer needed to see her, a determination that KS said she was happy with. She also confirmed with KS that she changed antidepressant to mirtazapine, which over a period of time made KS feel 50 per cent better than she had previously. This dosage was increased quite soon before the hearing. KS said she understood that a period of time elapses before an improvement can be seen, and agreed that not enough time had passed since she started the higher dosage to observe whether there has been an improvement.

85. Counsel for the second defendant also asked KS about the fact that she filled in a pre-employment medical examination when she went back to work in July 2011. KS agreed that she circled a number of answers in relation to medical conditions that she was or was not suffering at that time. KS had circled that she had no mental or nervous disorder and no stress. The following exchange occurred:

Those answers are just wrong as at that time, aren't they?---No.

So as at July 2011, which is only six and a half months after [A] died, you did not believe you had any mental or nervous disorder?---I think I thought that my reaction to the loss of my daughter is a reaction that anybody can have, especially after going through many cycles of IVF, after a miscarry, after have tried for so long, after I fail, but I failed to protect her, and after I felt that it was a medical mistake, I don't think that I was sick. I believe that everybody that lose a child in any way would have a period of grief, sadness, depression or what is called - I don't believe that anybody can be immune to all that feelings.

That's why you circled "no" for mental or nervous disorder?---Yes, I didn't consider that I was have mental disorder.

Did you consider that you were stressed?---Sad, depressed, but just low, low, low mood.

But not stressed?---Lack of self esteem, lack of energy. Is that - I don't believe that is stress.

So you did not believe that you were stressed at that time?---No.

86. In cross-examination, KS agreed that in 2014, KS started seeing Jo Rouston, for a total of about seven sessions. Over a fairly brief period KS said she felt better (in 2015). She took some Lexapro because Dr Viketos suggested it, and stopped that when she felt better as well. KS said also that she experienced insomnia in relation to A's death but also in relation to her workplace injury. She did not suffer from insomnia before A's death. She said the insomnia did not change when she had her workplace issues, but that she had not told Ms Hanson that she had already been suffering insomnia when she went to see her about her work-related injury. KS said she had given a brief family history, and that Ms Hanson had known about A's stillbirth, but that she had been told by Dr Hanson that these were personal matters, and KS understood she had been sent there by work.

87. When KS saw Professor McFarlane in 2014, she did not tell him about her workplace injury in 2012, as she said it had been resolved and at that stage she was on maternity leave, and it was not at the top of her mind.

88. KS agreed that two ophthalmologists at the eye clinic she was working at gave her some encouragement to attempt to get back to studying. They provided KS with textbooks and papers, which KS attempted to study. She said this was because she always wanted to be a doctor, and that she studied "long years, [she] study (sic) long years in Venezuela to be a doctor and [she didn't] have [her] dream." When she attempted to study them, she said she felt a little bit overwhelmed, that she had problems concentrating and retaining things in her brain, and that she lacked motivation. She said she felt like she did not have too much energy and "the fact that [she] lost [her] daughter has changed [her]". The following exchange occurred:

How had it changed you, [KS]?---I am not the same person. I have different priorities and I learn in a tough way that actions of people can destroy your life, your life in matter of hours. Your marriage, your dreams, everything that you have in life and I, it's difficult, it was difficult for me to get the concentration.

89. KS said that she persisted in trying to do this, and that she still thought about being a GP, but she said:

... my life now is up and down. I go from being more or less to people to being down. I am now as a roller coaster. I now a person that is not as strong as I used to be. A forgetful person, difficult to concentrate. Sometimes I even don't know if I have turned anything on or if I left the stove on.

90. KS confirmed that when she started work at the Canberra Hospital, she was working with a Registrar from Europe, as well as an ophthalmologist, who said to her that once she handled all the papers, relating to the Royal Australia and New Zealand College, that in order to be an ophthalmologist she would probably need to apply to do the training again, and that this would be for the full five years.

91. KS agreed that this had some effect on her desire to have her specialist qualifications recognised. After learning that, she agreed that she had "some hope and plan in relation to being able to practice medicine in Australia." She said she "knew how hard people compete here to be able to enter a post-graduate studies here and [she] knew that [she] could go to the general practitioner pathway, through the ANC test." She said it was an alternative pathway for her, but she was not committed.

92. KS agreed that she anticipated that had A's death not intervened she was looking forward to attempting to do the English language test and reviving her application for registration. She gave the following evidence:

And had you learned in the course of doing that what you subsequently learned from your colleagues at the eye hospital that you needed to go back to do a protracted course of study to become a specialist ophthalmologist in this country, what would you have done?---I wasn't going to study again for five years. I probably, I don't' know if I would do, go into the training what going to be successful but I was going to be successful to become a GP.

So you don't think you would have done the five year course?---No.

You would have proceeded to become a GP. Is that right?---Yes.

How do you feel about trying to do that now? Do you think you could possibly succeed in getting your qualifications recognised and undergoing any test you had to undergo in Australia, leaving aside the English language test?---I have changed after losing my baby and as I say before I have problems with concentration, with memory, with energy. My life of my mood is a roller coaster now. I go from period of being not too bad to periods that I am very down. I have difficulty coping.

93. In cross-examination, counsel for the first defendant confirmed that KS had decided not to pursue the ophthalmology specialisation aspect of her medical career as there was a requirement for five years of study in Australia, but her hope was still to pursue being a GP in Australia. KS said she decided this when she heard about the need for a further five years training when she was working in the eye clinic with registrars, around 2011 or 2012. KS confirmed that it was approximately 1998 when she last practised as a GP in Venezuela. The following exchange occurred:

So, therefore, at the time that you're looking at perhaps continuing to be a GP, almost 20 years had elapsed since you had last practised as a GP. Is that right?---Yes.

Had you undertaken any investigation as to whether you were required to upskill your level of knowledge as a general practitioner and perhaps undertake a period of time working within a hospital as an intern?---I know that I have to have supervision. I cannot - the only fact that I pass the test it doesn't mean that I - I know that I have to be under supervision at the beginning.

Did you understand that you might also actually have to also spend a period of time improving your clinical skills by working within a hospital setting?---I don't know that the supervision has to be at the hospital.

So, you didn't know?

MR ROBERTS: She doesn't know?

HIS HONOUR: She doesn't know that the supervision has to be at a hospital.

MS OLDFIELD: All right.

You understand the difference between supervision and perhaps working in the same capacity as you did 20-odd years ago as an intern in a hospital?---Yes.

What I'm suggesting to you is did you make inquiries, because so much time had elapsed between being a GP in Venezuela in 1998 and the time at which you were considering practising as a GP in this country did you make any inquiries whether you would need to work as an intern for example in a hospital in Australia before you could even work as a GP under supervision?

---I didn't, no, understand that.

94. Further during cross-examination, KS explained that the role of GPs in Venezuela is different from in Australia. She confirmed that in Australia, the way she understood it, a GP refers a patient to a specialist, whereas in Venezuela, the patient would go straight to the specialist. Therefore, as counsel for the first defendant confirmed, GPs working in the community in Venezuela would not see such a wide range of patients as they may in Australia.

95. KS confirmed that she knew she would have to study, to "refresh [her] knowledge", in order to pursue the path of practising as a GP in Australia. KS answered the following questions about her research in relation to practising in Australia:

When you made the decision to come to Australia and live you'd already decided that you wanted to practice in ophthalmology?---Yes.

What steps did you take in Venezuela to make inquiries as to what you needed to do in order to practice as an ophthalmologist in Australia? Did you go to the Australian Embassy or contact ?---We don't have Australian Embassy in Venezuela.

Did you write a letter to the Australian Medical Council in Venezuela to ask what you might need to do?---No.

Did you take any steps at all to inquire as to how you could utilise your speciality as an ophthalmologist in Australia before you left Venezuela?---No.

When did you bring your equipment that you used as an ophthalmologist from Venezuela to Australia?---Yes.

When did you?---Before I left Venezuela.

Before you left?---I organised that.

And if you had determined to practice as a specialist in ophthalmology before you left and you shift the equipment before you left is there any reason as to why you didn't take steps to inquire what you needed to do to put you on the correct path to practice as an ophthalmologist in this country?---As I say before we don't have embassy in Venezuela and yes, I have some ideas from there, what people have to do and I thought that was similar so I didn't do any inquires.

But you could have easily have used the internet to make inquiry from Venezuela to the Australian Medical Council, wouldn't you?---I didn't know that an Australian Medical Council exist. I didn't know the names of institutions here.

Did you go to the, I withdraw that. You knew that those sorts of bodies or professional bodies existed in Venezuela, didn't you?---In Venezuela we have board.

You knew that those sorts of bodies because of speaking to other people existed in the United States, didn't you?---I had, I don't know the organisation in the United States but I know that you have to take, I think three tests to, I don't know what is the process but I know this about that but I don't know which other organisations there.

But you could have made inquiries by going on the internet, couldn't you?---I could, yes.

[...]

Okay. So those were the four pathways. Specialist pathways, GP pathways, rural or that is country and a special need area?---I don't know if I confusing the country area of need and the, I don't know if I remember the four. I remember clearly the specialist and the general and I think to remember that it was something related to practice in an area of need.

At around about the time that you contacted the ACT Medical Board did you understand that there was a College of Ophthalmology that you could have contacted here in Australia to ask them further questions about what you needed to do to take you down the pathway of having your specialisation recognised?---I understand that but previous to that you have to go to the AMC.

Did you, in any event, make contact with the College of Ophthalmology?---No.

Have you ever made contact with the College of Ophthalmology as to what steps you could take to hasten your pathway towards your specialisation being recognised?---I know the steps that you have to do.

96. Counsel for the second defendant asked KS a series of questions regarding her change in intention to become a GP. KS admitted that she had never discussed with someone who is a GP in Australia what being a GP involves, having only spoken with one person who was preparing to be a GP. The following exchange occurred:

So you are then unable to assess what you knew and your level of skill when you were a GP in Venezuela compared to what's required in Australia?---I have been in GP as a patient.

Yes?---And I know what they do, but I haven't talked about, with them about they do. I know them as a patient, I know that I go there with a complaint, I know they respond to the complaint. If they can solve it, that's all, but if not they refer you.

So if I suggest to you that you would have to do five years of study, for example, to be registered as a GP in Australia, would you be prepared to do that?---I am not - I don't have to do five years to be a GP.

I'm just suggesting to you, would you. If you were, if they decided you needed to, would you do five years worth of study?---I cannot tell you that. I cannot tell you at the moment. I probably, if I have to do also five years to be a GP, I probably will do the five years to be a specialist.

And you would do that now if you were able to pass the English test?---I will go to the pathway to be a GP because I know that that pathway is shorter and I know that you don't have to study again.

At all?---You have to sit the test, the multiple choice test, and you have to take a practical test and you have to do (indistinct) under supervision.

Do you have any idea what the multiple choice test involves in terms of level of skill?---Yes, I do.

Have you looked at the test?---Yes.

And you have practised it?---I have looked at the test and the answer. I have looked at that.

And the practical test?---No.

97. Counsel for the second defendant also cross-examined KS about her study for the IELTS tests. KS explained how over a period of years, she studied at the Migrant Resource Centre, undertook a CIT course and did informal study with an acquaintance, all in preparation for the English tests and then resitting them. KS undertook the test three times, and in relation to the last one, gave evidence that she was surprised that she went backwards in that one, given that she had been living in Australia for a long time, but that she was very close and that she would keep trying, and that one day she would do it. She had spoken to people who had experienced taking the tests, and had been working and practising from books.

98. KS confirmed that in September 2011, she wanted to commence another IVF cycle, but the initial attempt at IVF was not successful. Following a further round of egg retrieval, she began to experience abdominal pain, and was admitted to undergo an emergency laparoscopy followed by a laparotomy because of an ovarian haemorrhage, which as she understood it, was associated with the procedure that had been carried out at Sydney IVF. After having had the emergency laparotomy, KS said she felt guilty for what happened to A:

I feel like I was punished. That I have everything that happened to me and I feel guilty. I still feel guilty.

99. At that stage (almost 12 months after A's death), KS said that she still had clear memories, and that memories of "that face and the blanket" came to her mind. She said that the face that she remembered was Dr Foote's face, and the tension in his jaw muscles. The blanket is the one in which A was wrapped. She recalled having this memory regularly, including during the night and while she was at work. She said when that happened she tried to avoid thinking, because it hurt, and would cause her to become tearful. When asked if that often happened at work, she said "I was sad all the time".

100. KS agreed that she returned to see Dr Campbell in early December 2011, hoping to use the eggs that had been collected in the November cycle. Two embryos were implanted from that cycle, each of which failed. KS said that a doctor referred her to a haematologist for the bleeding that she had.

101. KS said she still desired to have a baby, and in December 2011 Dr Campbell suggested it may be worthwhile attempting to have IVF but using donor sperm rather than XT's. She confirmed that that required "a deal of counselling and the like." Eventually she underwent another round of IVF with the last of the frozen embryos in 2012, but again failed to fall pregnant.

102. In August 2012, KS received advice regarding a donor egg from a younger donor, which would mean that KS would not be the biological mother of the child. KS said that this made her sad, and made her think she had lost something that she would not have again. She confirmed that she nonetheless decided to pursue that course as she said she did not have that many options. She agreed that at that stage, the circumstances of A's death were still recurring themes on a very regular basis. They were still causing her to be tearful and to lose sleep. She said she did not have any motivation at all. She was still remembering the blanket. She agreed that she was still hoping that she may be able to have a live child.

103. KS made inquiries in relation to a fertility clinic in South Africa. She said she was prepared for a donor egg implant with various medications in Australia, and then travelled to South Africa in February 2013 for an embryo transfer, the mother of the embryo being a donor. One of two embryos progressed. She was informed that the estimated date of confinement for that child would be 12 November 2012. She said that learning that she was pregnant again made her feel both happy and sad, in that it brought back memories.

104. As the pregnancy progressed, KS said she was very nervous and apprehensive. She began to feel unwell. When in April 2013, KS experienced bleeding, she was concerned that she was having a miscarriage. An ultrasound was performed and she was assured that the baby was well. She agreed that she was recommended to have leave from work and to consult with her GP regarding the management of her stress levels.

105. KS confirmed that during the course of her pregnancy, she had regular ultrasounds, and on each occasion was assured that the baby was well, insofar as an ultrasounds could tell. When asked if that relieved any of the stress for her, she said that it was good to know, but the stress was still there, as with A she had been told that everything was good, and that it had not been. KS said she was concerned about everything during the pregnancy, and that was one of the reasons that she visited two obstetricians at the same time, because she wanted to be reassured by two opinions. As the baby got bigger and she began to feel it moving inside her, she said that it reminded her of A. It was apparently a stressful pregnancy.

106. She commenced maternity leave on 14 October 2013, to expire in October 2014. On 1 November 2013, KS attended Canberra Hospital to undergo a planned Caesarean section. She said that she did not sleep the night before, and that she was anxious. She said she was still having dreams of A. She remembered going to the theatre crying. She was delivered of a healthy baby, OT, on that day.

107. KS and XT discussed having another child with a donor egg, and for that purpose travelled to South Africa in July 2015 when an embryo was transferred, but no pregnancy was achieved. KS confirmed that in November 2015 she travelled by herself to South Africa for the transfer of the last available embryo from the same donor, but that this also did not result in pregnancy.

108. KS said that the first few months of motherhood were difficult for KS, and that she used to be sad, even when OT was there with her. She said that OT was happy, but that she was not able to get much enjoyment herself, and she agreed that she continued to suffer some of the thoughts about what she had seen in the operating theatre that night, on a regular basis. She agreed that as she observed OT reach certain milestones, she thought about what they might have meant with A. It brought her sadness, as she thought about the things that they were missing and that A missed too.

109. KS agreed with a number of statements put to her by her counsel: that she was having difficulty feeding OT, difficulty sleeping, she was stressed about OT and she constantly checked on him overnight. If she could not see that he was breathing, she used to touch him to make sure that he was fine.

110. She was losing her appetite and losing weight, and was sent by her solicitors on 21 July 2014 to see Professor McFarlane, a consultant psychiatrist. She also consulted Dr Viketos about these problems. Dr Viketos prescribed a mental health plan for her, and referred her to Jo Rouston, a clinical psychologist. She also prescribed KS Lexapro, which KS took as prescribed. She understood that it was an antidepressant. KS said that it helped, and that she did cry as often as she did before taking the Lexapro. She still felt sad, and was still always concerned about OT.

111. KS confirmed that she continued to see Dr Rouston through to March 2015. KS said she stopped seeing her as she started feeling better and Dr Rouston gave her a lot of strategies to cope. KS recalled that the flashbacks were less frequent, she was not crying as before and she was trying to manage her stress with OT with the strategies that Dr Rouston gave her. Once KS went back to work in October 2014, OT was in child care, and KS would worry about him a lot, panicking that something had gone wrong if he did not arrive home from child care when she expected him.

112. Counsel for the first defendant questioned KS in cross-examination about her love and care for her son. The following exchange took place:

Thank you. I want to ask you some questions about your evidence that you've given about how you now feel being such that you're sad, you just go home, you come to work and you don't do anything, that you have lack of concentration, your motivation is not good and with your memory you have problems retaining things. The most important person in your life, apart from your husband, is [OT], isn't it?---Yes.

And [OT] is the person who would be paramount in your mind in terms of safety?---I don't know. I wonder if the word is "paramount".

Paramount. Utmost. The highest?---Okay.

He's at the highest level in terms of safety and loving and caring, isn't he?

---Yes.

That's because he's a tiny child?---He's the only thing that I have.

And you understand that going home and going to work is not enough for a three-year-old. You need to play with them and be active with them, don't you?---Yes.

You do that with [OT], don't you?---We have a trampoline at home.

Yes?---And sometimes I have a friend that she have another child.

Yes?---Sometimes she come home and sometimes we go out with her.

So he's having social interaction with another person with whom you're friends with?---Yes, and also in the child care.

And you also play with him yourself, apart from being on the trampoline, but you play with him. You get out toys with him, don't you?---Sometimes.

And you, perhaps, watch TV with him?---Yes.

So you do more than just come home and go to work, don't you? You actually also care and love [OT]?---Yes.

And [XT] does as well, doesn't he? He interacts with [OT] when he's not at work, doesn't he?---Yes. We spend a lot of time at home and we do that.

Yes. You provide him with lots of love and care?---Yes.

113. KS continues to take anti-depressants. She said that the Aropax helps with her anxiety, and with stress, but that she still has problems with sleep and with sadness and "tearing". She said that is a regular event. When asked about her ability to deal with other people, and whether she believed she was as tolerant as she was before A's death, KS said no. In answer to a series of questions, KS confirmed that she is more irritable, more reactive to stress, and that she occasionally has nightmares (though not so often now) about the same thing and sometimes now involving OT.

114. KS said that she still had problems with her sleep after she changed her anti-depressant medication. She confirmed that the Stilnox has helped when she needed it. She said she has problems with her memory, sometimes not sure if she has left something on at home, or sometimes mid-conversation with others. She said it is like she does not concentrate - she looks at them and then she has problems remembering what she was going to say. She said that her motivation is not very good and she has trouble retaining things.

115. She said that before A's death she had "an assortment of friends", e within XT's work circle as well as family. She said she does not see those friends outside of family anymore, because she does not enjoy doing things anymore. She said that there are occasions where sudden noises upset her, though it is not as bad as it used to be. She is still always worried about OT, and she still has feelings of guilt. When asked if she gets much enjoyment out of life now, she said "I go from work to home and from home to work. We don't do too much."

116. KS confirmed that XT on at least a couple of occasions has seemed to blame KS for A's death. This question was then asked:

What's been the effect on you?---I already feel guilty and he doesn't help when he say I told you to, I took you to the doctor but you didn't want to think. You decide to go (indistinct) and stay with him instead go to Dr Foote.

117. KS denied that she had had any worthwhile intimacy with XT since A's death, saying they lack energy and that they do not connect like before. KS said that before A's death, they were a normal couple and they had a happy and normal marriage. KS confirmed that XT now cries, which he did not before A's death. He now drinks often, which he previously did not do, and sometimes turns aggressive. In KS's evidence, she said XT does not seem to get a lot of enjoyment out of OT, and he seems to be disinterested in work. He has put on weight, and last year had to undergo an operation for a deviated septum. KS agreed that this year she became aware that XT significantly reduced his drinking and that now he does not drink. She said that he says he is tired all the time, and he fights all the time. He apparently says that he does not care about work anymore, having previously appeared to enjoy work. He was happy when KS was pregnant with A. He was not as happy about it when KS became pregnant with OT. KS said that XT gave her support when she struggled with her colleague at work. They have recently undergone a group parenting course, as KS was concerned about how they were doing with OT. They were ultimately told that OT's behaviour was normal, which relieved some of the stress.

118. During cross-examination, counsel for the first defendant asked KS about her and XT's trip to New York and Ireland following A's death. The following cross-examination occurred:

Those trips were essentially to enable you to go through a healing process and a bonding process together after the death of [A], wasn't it?---Yes.

That included an improvement in your intimacy relationships?---No.

But there was an attempt to at least try?---It didn't improve, no.

When I say "intimacy" I don't mean just sexual intercourse, I mean the ability to even hug each other?---We'd hold hands, yes.

That certainly was ?---Yes, hold hands. Yes.

119. XT gave evidence on 5 October 2017. XT was born in Werribee in Victoria in 1966. He moved to the Australian Capital Territory with his family at an early age and attended primary and secondary school in Canberra. He said that he enjoyed school and he performed above average. After finishing school he worked casually as a courier, and in 1985 obtained employment with the ANZ Bank, and worked for Esanda Finance. He agreed that while at school, he had wanted to become a pilot, but that he was not successful in gaining entry to the air force. He saved money while working for ANZ in order to be able to obtain his pilot's licence. In mid-1985, XT joined the Australian Federal Police (AFP). He undertook a stage 4 investigator's course in 1986.

120. In 1987, XT was involved in a motorcycle accident on his way to work, suffering a fractured right arm and right wrist and injuries to his right side. He did not need surgery and made a full recovery. His loss of earnings for this time was covered by ComCare and he brought a civil claim against the driver of the car with whom he had collided. This claim was resolved in 1989 and he was awarded about $8,000.00.

121. In mid-1987, XT completed his motorcyclist's pursuit qualifications and then commenced duties as a motorcycle officer. In January 1990, while in the course of his motorcyclist's duties, he suffered a more serious motorcycle accident. XT suffered injuries, including fractures of both his arms and his right hand, a dislocated left shoulder, and an injury to his back, his head and his left knee. He was off work for at least five months. He had further surgical procedures in relation to his wrist in 1991 and 1994. When he had returned to full-time work, but was not 'wearing his appointments', he undertook a primary intelligence course, and was assigned missing persons work. He also undertook surveillance qualifications and was assigned to work in that area. His wrist significantly improved in 1995, after surgery. In 1995, his civil claim relating to the 1990 motor vehicle accident resolved for the sum of $258,000.00 plus costs.

122. XT confirmed that while recovering from the effects of the motorcycle accident, he developed depression, and was prescribed antidepressants by a police medical officer. He took these on and off for a number of years. He agreed that he was not under active treatment of a psychiatrist until about 1994, when he consulted Professor Stephens on three occasions. This psychiatrist changed XT's anti-depressants, but XT did not pursue this, and agreed that he felt he had made a full recovery.

123. In 1995, XT undertook a communications course and was assigned to duties in the communications section. By 1998 XT was back on full duties at work, working in communications and wearing his appointments. In 1998, XT lodged an expression of interest for overseas deployment with the AFP, giving evidence that he did this because he was "feeling active and fit and [he] needed a change of environment outside desk-bound work." He was successful, and in July 1998 underwent his first overseas deployment as part of the AFP, working on a six-month posting in Cyprus as part of the UN peacekeeping contingent, which he said was satisfying and rewarding. He said he wished to continue doing that sort of work.

124. When XT returned to Canberra, he was sent back to his communications role as there were no overseas deployments underway. He was promoted to team leader in 1999.

125. In May 2000, XT suffered another work-related injury, hurting his back and fracturing his ribs in a training accident at Duntroon. He had some time off and had various physical therapies, making what he believed was a full recovery.

126. In 2001, XT completed a civil police pre-deployment overseas training course, a new mandatory requirement. In 2003, he moved to Brisbane, having been offered a position as an investigator for the Northern Operations Team. He subsequently worked in the Solomon Islands for six-months as part of an intervention force.

127. Returning to Brisbane in 2004, XT undertook a number of close personal protection courses, and began to work in a related team in Brisbane. He then joined a contingent sent to East Timor, for a period of approximately 6 months. He then worked in the international deployment team in Australia, as part of a team of personnel selected based on their qualifications and experience. As part of that, XT was deployed to Port Moresby in Papua New Guinea in March 2005. Shortly thereafter, he was deployed to the Solomon Islands, working in close personal protection for the Prime Minister of the Solomon Islands, remaining there until March 2006. After returning to Canberra for a short period, he was deployed to Cyprus in April 2006 as part of the UN peacekeeping contingent.

128. At that time, while in the Canary Islands, XT met KS, and they formed a relationship. XT's posting in Cyprus came to an end in December 2006, and once that deployment was completed, XT went to Venezuela for a few weeks to meet KS's family.

129. Returning to Canberra in January 2007, XT worked in the close personal protection team with the Israeli team.

130. In April 2007, XT and KS were married in Venezuela. XT said that they had agreed that they would come back to Australia and build a life here.

131. XT confirmed he was aware that KS was an ophthalmologist, and said that she "had a passion for caring for people and being a doctor and it was just a natural progression to come back and complete the required gateways for an ophthalmologist." He confirmed that when KS moved to Australia in 2007 she arranged for a number of devices used to practice ophthalmology be shipped to Australia. In cross-examination, XT was asked whether he and KS had discussed whether it would be appropriate for her to make inquiries as to what would be required for her to have her specialty recognised in Australia. XT did not believe they had discussed it, and said "[i]t was assumed she would come back and prepared herself to be a doctor in Australia."

132. XT said that one on one, he and KS had no problem communicating in English together. He agreed that she had and still has a strong Spanish accent. He confirmed that at or about the time she came to Australia, he observed her reading, writing and operating a computer in English. He said that he had not observed her seeming to have any difficulty in understanding English. He agreed that she attended TAFE at Reid and Canberra Institute of Technology to improve her English.

133. XT said that when they got married, he and KS had talked about having a family within a matter of months. After first living in Palmerston, they bought their larger present house in 2007. XT said that this was because they had plans to have "a big family, three children, four children, and [they] needed more space obviously and extra bedrooms."

134. XT was questioned by his counsel regarding the IVF process that he and KS undertook. He confirmed that they underwent a number of rounds of IVF, and that in early 2010, KS successfully fell pregnant but she miscarried. He said that it was an expensive process. He also said that when KS underwent a cycle and it was unsuccessful or ended in a miscarriage, he dealt with that "[w]ith disappointment, frustration." He said they kept going with it as they had always wanted a child and it seemed IVF was the only way they could succeed. When asked how KS dealt with those disappointments, XT said "[u]pset, sad, frustrated", but agreed that she always wanted to go back to it.

KS's pregnancy and the events of 11-13 January 2011

135. XT agreed that it was a source of considerable happiness to him when in May 2010, he and KS were told that KS was pregnant with twins. He said there was also some apprehension, but agreed he was anticipating the birth of children with pleasure. When on holiday in Singapore, XT confirmed that they were told that the heartbeat of one of the twins was not viable. The other twin was apparently healthy.

136. XT confirmed that in Australia, KS saw the specialist Dr O'Rourke, but then changed to seeing Dr Foote for future appointments, after a member of XT's family with medical knowledge suggested him as an appropriate specialist to handle the pregnancy. XT confirmed that it was KS's decision to change to Dr Foote. He agreed that this has become a "bone of contention" between him and KS since A's death.

137. XT said he thought he attended every appointment between Dr Foote and KS. XT denied that at any of those consultations, Dr Foote discussed with them any increased risk of stillbirth with an IVF child. He said that they had made a point of telling the doctor that the baby was IVF and was their first child, and the surviving fetus of twins. He said they were told the baby was due on 6 January 2011, and they were not told anything that suggested the pregnancy was anything other than normal.

138. XT recalled seeing Dr Foote with KS on 31 December 2010. He said that Dr Foote and they talked about the due date, and that he and KS "were keen to have the baby delivered as soon as possible [after KS had] passed over the forty week mark and [Dr Foote] told [them] that he was on leave during that period." XT said that the wish to have to baby delivered on time was certainly expressed to the doctor. Arrangements were made for a consultation the week after 6 January.

139. XT accompanied KS to the appointment with Dr Foote on 11 January 2011. He said that they "both agreed that she needed to be delivered on the 11th." When asked if Dr Foote said how the baby was, following an examination, XT said: "[h]e used the words "10 out of 10" to say she was perfect." XT said that they told Dr Foote that they were keen to have the delivery done that day, and XT said "[h]e seemed sympathetic to that request, and then made a phone call to the hospital, or rang the hospital, and had a conversation with someone there." There was apparently no hospital bed available.

140. XT said Dr Foote had not offered them the opportunity of having the child induced at a public hospital, and agreed that if that offer had been made, they would have taken it up. Dr Foote did not offer the possibility of having the induction the next day, and arranged for them to come in on 13 January. The doctor did not mention anything about the risks that might attend the child being born beyond its due date, and assured XT by saying the baby had no problems at all.

141. XT remembered arriving at Calvary Private Hospital shortly after 4 pm. KS was taken to a ward, and a belt was placed around her stomach by a nurse. There was also a machine in the room. XT said that when the machine was turned on, he "heard a heartbeat", it was "[l]ike a pulse, a beating of the heart." XT said that before leaving, the midwife said words to the effect of "[i]f you need me or if you have an issue, ring the buzzer." XT said that KS rang the buzzer and the midwife came back a short time later, and fumbled with the belt and examined the paper coming out of the machine. The second time that KS rang the buzzer, she was upset. XT said that at that stage, "[t]he heartbeat or the sound from the machine was irregular", which he had also noticed on the earlier occasion. Two midwives came in, and XT said they said to KS "that she could not be induced and they would have to call the doctor." Both midwives left the room, and then one came back, who in XT's evidence said that "she called the doctor or rang the doctor and he was currently in theatre and left a message." XT agreed that KS was upset. When asked how he was feeling at this stage, XT said "[i]ndifferent. I was consoling [KS], I guess, at one stage but I had no concerns in terms of the - what was happening." He said: "I had faith in the hospital system. We had midwives there and we had a machine hooked up. We had doctors in the hospital. We had private health cover. We were in a private hospital. We paid good money. I just expected the best."

142. According to XT's evidence, the midwife did not stay. He remembered Dr Foote arriving, but could not give an accurate estimate as to how long it was between being told a message had been left and his arrival. Once Dr Foote arrived, he looked at the trace and in XT's words: "he gave us an explanation she wasn't receiving oxygen and I seemed quite puzzled by that and [KS] must have said something or I must have said something to him and then he said, "Don't be worried. If I was worried about it, I would ship you down to the theatre straightaway."" He apparently said that it would have to be a C-section. KS was upset. XT denied that Dr Foote said anything to the effect that it would be an emergency C-section, and said that "[t]here was no mention of emergency. There was no mention of a hurry. It was a casual - it was a casual conversation that he had with us. It did not alert me at all." XT agreed that at that point he was still confident in the health system that everything was going to be okay.

143. XT agreed that he stayed with KS while the midwife prepared her for surgery. The midwife apparently "took some bloods. She arranged for the gown to be placed onto [KS] and shaved around the pubic area." When asked whether it appeared that anything was done as a matter of urgency, XT said no, that it appeared to be a regular routine procedure that was happening, and that there was no urgency.

144. XT agreed that sometime later, KS was taken from that ward on a trolley, and that he accompanied her. He did not agree that there was anything about the manner in which she was transferred that indicated to her that there was a degree of urgency attached to the transfer. He agreed that once they got down to the surgical area, they were taken to a small room, where there was a person in a gown, who spoke to KS. KS was taken into an area into which XT was not allowed. XT said he said "I'm here for the birth. I'm the father", and that he was told "[y]ou can't come in."

145. After that, XT waited outside that area for a short time, until somebody came and took him to an area in a hallway, and he was sat on a chair outside a door. Sometime later, a person came to talk to him. No-one had spoken to him while he was waiting until that point. The person came out of the doorway and said to XT "she hadn't made it." In his evidence, XT said: "I knew straightaway it was the baby. I knew."

146. XT was asked how he felt when he was told that A did not make it. He said: "Devastated. Empty. Crushed. Motionless." XT agreed that he saw A for the first time while KS was still unconscious. XT waited with KS in the post-operative area until she woke up. At that point XT picked up A, in the blanket. They stayed with A for some time. KS sang to her and held her for some time in the bed. XT asked if A could stay with them for as long as possible.

147. In cross-examination, counsel for the first defendant asked whether XT saw the midwife take the blood pressure, temperature and pulse of KS when she first arrived. XT said he could not recall. Reminding him of his evidence regarding the CTG machine, the following exchange took place:

Did you see or hear the midwife or midwives ring Dr Foote?---Did I see or hear them ring him?

Did you see them pick up a phone to make the telephone call?---No, I did not, no.

You just heard them say to [KS], or did they say it to you, that they had rung Dr Foote?---It was communicated to both of us.

Yes?---That she had contacted the doctor, Dr Foote.

Was there a communication as to how often she had contacted Dr Foote, or you were just told on that one occasion?---I don't recall, once or twice, I don't recall, no.

148. In cross-examination, counsel for the first defendant asked XT about him not being allowed into the theatre room for the birth. XT agreed that he understood that people who are not dressed in specific clothing cannot go past a certain point into the theatre. He denied that that was his understanding of what happened, and said that he was going to be present whether the birth was vaginal or Caesarean, and whether it was in a birthing suite or somewhere else. He said he could not recall whether he asked the staff members why he was not allowed to go any further.

149. Regarding XT's evidence that he had known straightaway it was the baby who had not made it, counsel for the first defendant noted that in his report dated 31 March 2015, Dr Saboisky had recorded that XT said that someone came to talk to XT and told him his daughter had not made it. It was put to the witness that that information, that he had provided in 2015, was likely to be more correct than the evidence given at the hearing. XT responded that he was probably confused and pressured at the appointment with Dr Saboisky. XT maintained he had been told that "she" had not made it.

150. KS was not discharged from hospital for a number of days. XT confirmed that over those days, he was essentially at the hospital all day every day, and going home at night, by his recollection. A was with him every day. They participated in a naming ceremony, and they took pictures. They arranged for A's funeral. KS said she would not have any more children.

151. XT had been planning on having three months off. After about three weeks, he decided to go back to work, saying in his evidence that he could not stay at home. KS's parents were still there and XT said he needed to do something to get out of the house, and returned to work on or about 15 February 2011.

152. XT remembered being contacted by a SIDS counsellor in March 2011. He recalled returning to see Dr Campbell (the fertility expert who KS first consulted in 2009) with KS on 17 March 2011, and by then KS's attitude to having another baby had changed, and their goal was to have a child.

153. In March, KS returned to Venezuela with her family. XT continued working in Canberra. He spoke to the counsellors at SIDS about how he was feeling. In April, XT travelled for work to Egypt. He said it was feeling "[s]ad, empty, crushed, devastated, detached." He said: "It was like I was looking in on events that were happening around me. It was like I wasn't there. I didn't feel part of anything." He confirmed that he was not able to sleep, and that he would often hear a baby crying, and that he thought he was dreaming. This happened more than once. He was not able to enjoy anything at that stage, and he was angry. These thoughts travelled with him to Egypt, and he said that he saw A standing at the end of his bed one night in Egypt.

154. XT confirmed that in May 2011 he met KS in New York, and they had a holiday, including a cruise. He did not agree that his emotional state improved at all during that time, nor that he and KS were able to be intimate. By the time they got back to Australia, about five months after A's death, XT said KS was "[c]onstantly upset, crying, withdrawn, angry sad, roller coaster of emotions." He agreed that there was a degree of blaming each other, which continued to the present. He said that he himself was "[u]nchanged, still upset, still angry, still bitter, withdrawn." He agreed that he threw himself into his work. He returned to the Prime Minister's detail, and apart from some back problems, continued his normal work through 2011 and 2012. This involved a number of short trips overseas.

155. XT confirmed that when KS came back, she got a job at Canberra Hospital. He agreed that this to a degree this lifted her spirits, saying "she had some meaningful work". He said he could tell by her attitude that she enjoyed going to work each day, dealing with patients and interacting with people. When asked if he was enjoying his work, XT replied "I was busy, yes. Yes, I was busy." He said that yes, he was enjoying it. He confirmed that they commenced further IVF treatment shortly after they returned.

156. XT confirmed that in mid-2011, he began to suffer significant back pain, which he said he thought stemmed from the motorcycle accident. There was no particular injury, and it was accompanied by pain in his left leg. In October 2012, XT underwent a microdiscectomy, which was effective in removing the back and leg pain. He was back at work within four weeks.

157. When asked about the news of KS's pregnancy in 2013, XT agreed it was exciting. He said it brought mild relief from his feelings about A, but that the thoughts of A are always there, "[t]he thoughts of her death, the events of the day, the ongoing effects." Asked about these ongoing effects, he said "[s]adness, emptiness, irritability, not being satisfied." The irritability applied to both him and KS. He said he had never noticed KS becoming irritable in the years he knew her before A's death. He did not agree that anything had ever fazed her at work, saying: "She is always confident, bubbly, bright, sympathetic, caring." Asked about KS's speaking ability when speaking about A's death, XT said that her ability deteriorates, her accent becomes thicker and she gets upset, and she is therefore harder to understand.

158. In relation to KS's pregnancy in 2013, XT said he did not have confidence that it would go well, despite not being aware of any issues relating to the baby's health. He had difficulty believing the doctor. Whilst he said he enjoyed seeing her pregnant, he said he struggled with KS's issues of being stressed and worrying about the baby. His motivation at work was tapering off, and he said he lost motivation completely, and his concentration was poor. XT said that he has had trouble recalling certain things to do with the case, including "[d]ates, times, places, names, events." This was apparently not an issue before A's death.

159. XT agreed that before A's death they had a circle of friends in the South American as well as the Australian community. He said as time went by, those friendships faded, as they had less contact with people and less social events. Prior to A's death, XT said he only drank alcohol socially, but that there was a change in this after A's death. He would drink whatever alcohol was in the house, as he said it helped to ease the pain. The amount he was drinking slowly increased. He and KS had arguments about it. XT was not aware at the time, but has become aware, that he returned an abnormal liver function test in March 2016. He was told that his cholesterol needed more control. In the latter part of 2016, he was still drinking a lot, was putting on weight, and he and KS were still irritable with each other.

160. In September 2013, XT moved teams at work, and said that he did not have an interest in where his career was going. He underwent mandatory training regularly. In 2015, XT joined the special events planning team at the AFP. This involved long periods of travel. XT said that he would think about OT and A more when travelling.

161. XT said that once OT was born, he was constantly worried that he would not wake up the next day, and that he and KS maintained a "vigil" over him, both of them getting up to check on him multiple times throughout the night. 2016 - He confirmed they decided to try for another IVF baby but that it did not work out. XT said that he and KS have not resumed any intimate contact.

162. XT confirmed that his father's death in July 2014 was difficult for him, and it brought back memories and sadness surrounding A's death, and how his father would not see A or OT grow up. In March 2015, XT saw Professor McFarlane, and told him what he had experienced since A's death, and who said that XT may benefit from taking some medication. Dr Viketos prescribed XT Lexapro, which he took for a number of weeks, but did not help much.

163. In January 2016, KS was diagnosed with cervical cancer, and advised to have a hysterectomy. XT said that was devastating news, partly because it meant KS could not have more children of her own. He confirmed that they had hoped they would be able to have more children. He says they have remained protective of OT. They worried he was perhaps spoilt, and attended a family counselling session, but XT said he is a healthy and normal little boy.. XT confirmed that observing OT and reflecting on what A could not do, and what she would be like, has had some effect on him. KS recovered fully following her hysterectomy. XT said he did not believe this alleviated the emotional problems he was having.

164. XT underwent an operation for a deviated septum in about March 2017. His GP told him he needed to cut down on his drinking. XT confirmed that up until that stage he was still drinking heavily. He said he drank in excess of four or five scotches a day, plus wine. As at the date of the hearing, XT said he had taken the advice from his GP and that he had not drunk for about two months, except for socially on one occasion.

165. In March 2015 XT was examined by Dr Saboisky. In June 2017 he was reassessed by Professor McFarlane. XT was advised in September 2017 that in October 2017 he could return to the close personal protection team. When asked how he feels about his work now, he said: "[i]t's just a job; it's just work. I don't feel passionate any more about work. I'm waiting to retire shortly, in two and half years, and I've been doing work, this sort of work, now for 32-odd years, and I'm tired. I'm just worn out tired." XT agreed that he still has problems concentrating, and still has trouble with motivation. He said things had home had not improved. He is going to retire when he turns 54 years and 11 months old, as that retiring age has significant advantages under his superannuation arrangements. XT agreed that he has been aware of this since long before A's death. He confirmed that he always (including before A's death) intended to retire at that time. In relation to his retirement, he and KS had discussed spending more time with the children at home, but also continuing some type of part-time work to keep himself active. He agreed he hoped to be a "house father" for A and hopefully for other children. XT also said he had thought about teaching students flying on a part-time basis in his retirement. He has a pilot's licence and has flown for many years, and said that his security background is well sought after in private enterprise. He confirmed that he knew these things before A died.

166. He said he probably does not see himself now being able to teach people to fly, as his motivation and concentration are poor at the moment and he finds it difficult to deal with people. He said that he is less tolerant of people at work now than he was years ago. He said he did not think he would be able to now find work in his present condition.

167. He confirmed that the thoughts of A are still as regular as initially. He said that the antidepressants did not reduce them. He said the feeling of loss that he described remains with him. He tolerates his colleagues because he has to, but he finds it difficult, and said he does not tolerate KS's family, even her brother. He agreed that his memory affects him on an everyday basis and his sleep is still disturbed. He does not take sleeping tablets. The anger following A's death is still with him.

168. When asked if he knew KS had been taking different medication the week before giving his evidence, XT said he did not. He agreed he had noticed a change for the better in her, that she is more receptive and more engaging, and has been communicating with him. They have not rekindled their intimate relationship but XT agreed that he hoped they might in the future. He does not get much pleasure out of life these days.

169. In cross-examination, XT was also asked more detail about KS and his trip to New York and cruise. He agreed that relaxation had been part of their cruise, but when asked about their intimacy, he said that they were blaming each other for their daughter's death and it was "very hard to rekindle something that's going broken."

170. XT agreed in cross-examination that the only time that the issue of seeing a psychologist or a psychiatrist arose was when he was asked to see Professor McFarlane for the course of these proceedings. He confirmed that he had previously undergone psychology counselling as a result of the motor vehicle accident. XT confirmed that he ceased taking the suggested anti-depressant medication without the supervision of his GP or discussing alternatives with his GP, as he believed it was not helping. He did not seek a referral to a psychiatrist. He confirmed that he did not take Professor McFarlane up on his suggestion that he might benefit from having some sessions with a psychologist.

171. Further in cross-examination, XT was asked about his drinking habits following A's death. He confirmed that his job requires a high level of vigilance and concentration, and that it involves the safety of the Prime Minister. It was suggested to him that if he had been drinking at the level he claimed he would not have been able to maintain that degree of vigilance of concentration, and he disagreed. He did not tell his employer he was drinking that amount of alcohol. He did not agree with the statement that he did not know whether or not it affected his concentration. When it was suggested he had an obligation to tell his employer that he had personal issues and he should not be put 'on detail' for a while, he disagreed that he saw it that way. He maintained that his ingestion of alcohol of four to five scotches a day, plus wine, over a long period of time was regular and consistent. He said that his memory was affected and he would have to go over things and make notes.

172. In re-examination, XT explained that his employer took a view that anyone affected with mental health or physical issues is non-operational, and that there is a pay drop, and one's weapons and accoutrements are taken. XT confirmed that being non-operational for a number of years following his major motorcycle accident caused him considerable distress.

173. It was also suggested in cross-examination that the various symptoms that XT said he suffered, and the amount he was affected, were not as great as he claimed:

Well, they are all significant issues in terms of affecting the raising of a child, aren't they?---Yes.

Yes. You didn't think that at the time?---No.

Is it the case it is because the extent of which you say those factors affected you, were not as great as you say today?---No, I don't believe so.

See, I want to suggest to you that over time, the extent of the loss that you felt with [A]'s death, has over time reduced, bit by bit, but it has reduced. I am not saying it has gone, I am just suggesting to you it is reduced, so that you are able to function by going to work, you are able to function by caring for [OT], as a dad, and you are able to function as a family. That is correct, isn't it?---I was able to function after the death, so I went back to work immediately, pretty much after the death, so I've been functioning all along as best I could.

But over time, that - those symptoms that you have complained of, have reduced, haven't they?---In a small degree, yes.

174. In cross-examination by counsel for the second defendant, it was clarified that XT had told Professor McFarlane that his mood had picked up after taking the anti-depressants. XT appeared to confirm this, but later said he did not recall saying that. He had also said he stopped taking them because he did not think they were working:

When you saw Professor McFarlane in July of this year - - -?---Yes.

- - - you told him that you had taken anti-depressants since you had last seen him?---Yes.

And you told him that your mood had picked up?---Yes.

That is correct, isn't it?---Yes, that's right.

But you have said today that you stopped taking the anti-depressants because you didn't believe they were working?---Correct.

So which is the case?---I still have grief, I still have emptiness, I still feel sad. I have periods of being down, unmotivated.

I understand that. But is it the case that your mood picked up after you took the anti-depressants?---The mood, yes.

Okay. But you are differentiate your mood from some other symptoms?---I still have grief. I still - - -

Of course?--- - - - I still feel the effects of grief and I still - it still lives with me day in, day out.

Of course?---The mood may improve but - but my outlook on life hasn't changed.

So did you stop taking the anti-depressants because you didn't think they were helping, or did you stop taking them because your mood picked up?---I stopped taking them because I didn't think they were working. They weren't making me feel - feel myself.

So why then did you tell Professor McFarlane that you stopped taking them because your mood had picked up?---I don't recall saying that.

175. XT confirmed that apart from the short course of anti-depressants, he has had no treatment for the issues he has described. The following exchange occurred:

Okay. And yet, as part of the claim you are making in this court, you are seeking quarterly visits to your GP, four times a year that is, and 30 sessions with a psychiatrist and anti-depressant medication and you are claiming the GP visits and the anti-depressants for the rest of your life. Were you aware that that is the claim you have made?---No, I wasn't - I wasn't aware of that, no.

But you would accept, wouldn't you, that that level of treatment doesn't - is not consistent with the treatment that you have engaged in to date?---I'm not a health professional, so I can't answer that question.

From your perspective, would you agree that you won't go to your GP four times a year, about these symptoms from here on in?---No, I won't. No.

And you won't take anti-depressant medication for the rest of your life?---That's not a true statement.

So are you - do you intend to go to your GP, after this hearing is over and get a prescription for anti-depressants?---Immediately, no. I may down the track, if things deteriorate, depending on my mood and my outlook.

But you are - something would have to change from what you have described today. Is that correct?---Correct.

You would agree, that you are unlikely to undergo 30 sessions of psychiatric treatment for what you describe today as your symptoms?---I don't know.

176. XT also agreed that he had gone back to work and that he had not actually lost any earnings to date, as a result of the symptoms that he described. When asked if it was most likely he would continue to just go to work, he said that he was a hard-working person, and "I try my best and the day I don't go to work is the day I'm probably dead".

177. The brother of the first plaintiff, LS, gave evidence on her behalf. He and the first plaintiff grew up in the same household in Venezuela. He studied accountancy at university, before practising that profession in Venezuela and Canada. He migrated to Australia in May 2008. He was close to the first plaintiff when they were growing up. He described her as doing very well at school, and never having any difficulty passing any subject. He said that the first plaintiff had always said that she wanted to be a doctor. After the first plaintiff left school she spent a year studying English because she knew that a lot of the material she would be required to read at university would be in English. She then studied medicine at university, passing all of her subjects. She then went on to complete a postgraduate qualifications. She appeared to enjoy studying, but also had an active social life. She was a happy person growing up. LS said that as a teenager, as a medical student and as a doctor the plaintiff always coped well with stress. She worked long hours and appeared to enjoy it.

178. At some point, LS became aware of the fact that the first plaintiff was having considerable difficulties in having a child. She nevertheless appeared to handle that well. He also knew that she was having some difficulty with the IELTS test. He said that he had had to pass the same test to have his qualifications recognised in Australia, but at that time a score of 6.5 was sufficient for his qualifications. This was his average when he completed the test, which he did on his first attempt.

179. LS said that before A's death the first plaintiff was a normal and happy person. After the death, she was not happy and he was worried for her. She became very agitated and aggressive, and was difficult to talk to. On occasions when she is upset she now cries a lot. This was entirely different to her personality before A's death. Since A's death, the first plaintiff has not spoken to him about practising medicine in Australia, even though this was the profession that she had always dreamt of.

180. In cross examination by counsel for the hospital, LS agreed that he had observed the first plaintiff to be happy with her son OT, but not all the time.

181. Associate Professor Bryce provided two reports. The first report is dated 28 October 2014. Professor Bryce noted that the first plaintiff was a healthy woman of 37 years in her second pregnancy, having previously had a first trimester miscarriage. The relevant pregnancy was achieved using in vitro fertilisation. It was initially a twin pregnancy, but one fetus died before 11 weeks. She had a normal pregnancy with normal fetal growth and normal maternal blood pressures. Her estimated date of confinement was 6 January 2011. She was booked for induction of labour on 13 January 2011 because of a prolonged pregnancy, which Professor Bryce considered to be normal practice.

182. The first plaintiff was admitted to the hospital at about 4:30 pm on 13 January 2011. A CTG was performed prior to the administration of Cervidil, commencing at 4:41 pm. This showed a baseline foetal tachycardia of just over 160 beats per minute (bpm). There was evidence of uterine tightenings occurring at about five minute intervals on the CTG. From about 4:51 pm it was clear that the variability was reduced and remained so. Just before 5 pm, there was variable deceleration to 70 bpm lasting about eight minutes before returning to baseline (tachycardia). The CTG at that point was marked as "loss of contact" but Professor Bryce considered that it was almost certainly a true deceleration. There was a further variable deceleration at 5:40 pm to 100 bpm lasting three minutes, with another variable deceleration to 100 bpm occurring at 5:43 pm and lasting three minutes before the foetal heart rate had returned to baseline. There were also possibly shallow variable decelerations at 4:45 pm, 4:53 pm and 5:52 pm. Professor Bryce noted that he had not been provided with any CTG after 5:55 pm, although it would have been appropriate clinical practice for regular observations to have been recorded and a continuous CTG maintained. At that time there was a baseline foetal tachycardia of about 165 bpm with reduced variability and no accelerations.

183. The case notes recorded that the midwife diagnosed the CTG as "not reassuring - long deceleration" at 6 pm and tried to contact Dr Foote. Dr Foote attended at 6 pm and ordered a Caesarean section. Professor Bryce noted that the time between the first severe variable deceleration and birth was two hours and that the time between being seen by Dr Foote and birth was one hour. He noted that there was no explanation in the case notes for these delays.

184. Professor Bryce expressed the opinion that the midwife was incorrect in identifying the deceleration at about 5 pm as a loss of contact. In his opinion the heart rate tracing was continuous throughout the deceleration, and there was clearly a severe, complicated variable foetal heart rate deceleration, likely to be due to foetal hypoxia. It was his opinion that a competent midwife should have been alert to the possibility of further foetal heart rate abnormalities because of the tachycardia with reduced variability which preceded the deceleration. Such a midwife should have correctly diagnosed a severe, complicated variable deceleration. The appropriate action was to notify Dr Foote immediately to ask him to attend urgently. Other appropriate additional actions would include repositioning the first plaintiff onto her left lateral position, administering oxygen by mask and inserting an IV line for possible tocolytic treatment. With regard to the further severe variable decelerations after 5:40 pm, Professor Bryce considered that a competent midwife should have diagnosed all of the foetal heart rate abnormalities, and immediately contacted Dr Foote.

185. It was Professor Bryce's opinion that if an obstetrician had been called shortly after 5 pm and provided with the information of the CTG, he or she would have attended immediately, performed a vaginal examination to check if birth was imminent and, if not, arranged for a Category 1 Caesarean section. A Category 1 Caesarean section is called for where there is an urgent threat to the life of a woman or fetus. Professor Bryce expressed the opinion that the CTG showed an urgent threat to the life of the fetus because it showed complicated variable deceleration with a baseline tachycardia, reduced baseline variability and persistent large amplitude. This pattern reveals a significant risk of hypoxia to the fetus.

186. Professor Bryce noted that the fetus was alive at the conclusion of the CTG at about 5:55 pm, and was found to be dead at just before 6:59 pm. He said that the baby was apparently freshly stillborn, so it was reasonable to assume that she died closer to 6:59 pm than 5:55 pm. In his opinion, had the midwife correctly interpreted the CTG and informed Dr Foote at 5 pm, delivery would likely have been achieved within one hour, at which time the fetus was still alive. It was also his opinion that had the Caesarean section taken place within 30 minutes of Dr Foote's decision at 6 pm, it is possible that the child would have been born alive, although the exact time of death cannot be ascertained due to a lack of observations from 5:55 pm.

187. Professor Bryce's second report was dated 25 May 2016. Professor Bryce reiterated his opinion that the time between the decision to proceed with a Caesarean section and the birth was excessive, although he could not comment upon the possible reasons for the delay. He also reiterated his opinion that there should have been continuous foetal heart monitoring after 6 pm. He expressed the opinion that the absence of any record of urgency in the case notes, combined with the unacceptable delays before birth, and the discontinuation of electronic foetal heart rate monitoring suggested that staff did not appreciate how pathological the foetal heart tracing was, the degree of risk to the fetus and the urgency required to achieve rapid delivery. It was his opinion that the responsibility to explain this urgency and to meet the 30 minute goal from decision to birth was that of the attending midwife and Dr Foote.

188. Professor Colditz is a professor of Obstetrics and Gynaecology at the University of Queensland and at the Royal Brisbane and Women's Hospital. He provided two reports on behalf of the plaintiffs. His first report is dated 27 February 2015. Professor Colditz also referred to the chronology of events on 13 January 2011 as revealed by the clinical notes from the hospital. He considered that the reported "loss of contact" on the CTG did not have the features of a loss of contact. He stated that the onset of the prolonged bradycardia appeared to be coincident with the uterine contraction. In his opinion, the reading of the CTG at this point was much more likely to be a true representation of foetal heart rate and to represent a prolonged period of foetal bradycardia. He said that a competent midwife should have recognised this prolonged bradycardia. Given that labour was not established, the prolonged bradycardia, of itself, should have resulted in the midwife advising the obstetrician. It was Professor Colditz's opinion that had a Caesarean section been performed prior to 6 pm, it was far most likely that the child would have been born alive. After 6 pm, there was no monitoring of the foetal heart activity until approximately 6:45 pm or 6:50 pm when the first plaintiff was in the operating room and Dr Foote was unable to detect foetal heart activity. Because of this failure to properly monitor foetal heart activity, it is unclear when the foetal heart activity ceased.

189. Professor Colditz provided a supplementary report dated 15 July 2016. In the supplementary report he addressed the contents of reports that had been prepared by other medical practitioners at the request of the defendants. It is not necessary at the present time to consider Professor Colditz's comments with respect to those reports. Professor Colditz was asked to express an opinion whether the baby was likely to have been born alive if delivery had taken place at approximately 6:27 pm. I will quote Dr Colditz's response in full:

I cannot be certain whether the baby would have been born alive [had] delivery taken place at approximately 1827. We know only that the fetal heart rate was present when last observed at 1759 and then could not be detected. Several minutes prior to 1859. [sic]

However, despite the uncertainty, there are two factors to take into consideration that are relevant to the question. The first factor is that at 1759, the CTG pattern did not suggest the fetus was in extremis. Whilst the CTG met criteria for being pathological at and shortly prior to 1759, there were no features suggestive of imminent death. The second factor is that we know only that the fetus was born without a heartbeat which persisted to 5 minutes of age after birth with resuscitation provided by assisted ventilation but without delivery of adrenaline. It is quite possible that with the provision of appropriate doses of adrenaline, [KS] (sic) may have survived. If she had responded in this way to appropriate resuscitation, then this would have made it much more likely that the cessation of foetal heartbeat occurred much closer to the time of delivery.

Particularly in relation to consideration of the first factor, my opinion is that it was probably more likely than not that had delivery taken place at approximately 18:27 hours, the baby would have been born alive.

190. Dr Edozien is an eminently qualified consultant obstetrician and gynaecologist currently practising in the United Kingdom. He is recognised nationally and internationally as an expert in Clinical Risk Management. He is the author of a book, The Labour Ward Handbook, which provides templates for safer practice in a high risk environment. It was shortlisted for the British Medical Association Medical Book of the Year Award 2010, and has been translated into two other languages. At the invitation of international institutions he has delivered patient safety workshops and lectures in Europe, Canada and South Africa. Every year for 18 years he has organised a national conference on Risk Management in Women's Health Care, and he has written and edited numerous papers, chapters and guidelines on risk management. He has undertaken assignments relating to patient safety and clinical standards for the National Patient Safety Agency, the National Institute of Health and Care Excellence, the Royal College of Gynaecology, the European Board and College of Obstetrics and Gynaecology and the International Federation of Obstetrics and Gynaecology. He has served as president of the North of England Society of Obstetrics and Gynaecology.

191. On behalf of the plaintiff Dr Edozien provided three reports. His first report is dated 20 April 2016. Dr Edozien noted the history of the first plaintiff's pregnancy, including IVF treatment and Intracytoplasmic Sperm Injection (ICSI) and reviewed the clinical notes of the first plaintiff's admission to the hospital on 13 January 2011. He was asked to express an opinion with regard to the antenatal care provided to the first plaintiff, the interpretation of the CTG, any breach of duty towards the first plaintiff by the hospital or Dr Foote, and causation.

192. With regard to antenatal care, Dr Edozien said:

There were no clinical problems in the course of [the first plaintiff's] antenatal care, but an aspect of her care was deficient. One of the purposes of antenatal care is to assess, discuss and manage risk. [The first plaintiff] had a higher risk of having a stillbirth compared to the average population of pregnant women, but this does not appear to have been recognised and acted upon. She was 38 years old, a first time mother, and had received IVF/ICSI treatment - both of these factors are associated with an increased risk of stillbirth.

By 2011, the year that Alannah was born, it was known that compared with naturally fertile women, women who conceived by IVF/ICSI had an increased risk of stillbirth.

By 2011 it was known that the risk of stillbirth among women between 35 and 39 years of age was one and a half to two times that of younger women in their mid-twenties. Women having their first baby are also at a slightly higher risk of having a stillbirth than other women.

A discussion of this risk would have warranted a plan for induction of labour at a gestational age agreed between [the first plaintiff] and her obstetrician.

It is for the court to determine whether, had this discussion taken place, (the first plaintiff) would have asked for induction to be scheduled for 40 weeks (i.e. one week earlier than it was eventually scheduled).

Alternatively, had earlier induction not been agreed and arranged, the explicit recognition and documentation of the risk of stillbirth would have heightened the vigilance of staff and patient, and compelled speedy intervention in the event of an abnormal CTG.

193. With regard to the interpretation of the CTG, Dr Edozien said that given the foetal tachycardia, the prolonged late deceleration and the reduced variability, the trace was readily recognisable as a pathological trace at 5:31 pm when it was interrupted for the first plaintiff to have a toilet break. He was also of the view that the deceleration identified as "loss of contact" on the CTG was not, in fact, a loss of contact but a true deceleration.

194. Dr Edozien expressed the opinion that the duty of care owed to the first plaintiff was breached by the hospital and Dr Foote in the following ways:

(a) risk of stillbirth was not recognised and discussed. The first plaintiff was entitled to know that factors in her history, (the combination of age, nulliparity and IVF/ICSI treatment), increased her risk of having a stillborn baby. The timing of induction of labour should have been discussed before her last antenatal visit on 11 January 2011;

(b) late deceleration which was shown on the CTG was misinterpreted as loss of contact. Dr Edozien expressed the opinion that the abnormality of the CTG was of such severity and clarity that no competent midwife or doctor exercising due care would have failed to recognise it as pathological;

(c) there was a failure to respond appropriately to the pathological CTG. The midwife should have called Dr Foote between 5 pm and 5:10 pm, and not later than 5:30 pm;

(d) there was a failure to affect a timely Caesarean delivery. Once the decision had been made at 6 pm to deliver the baby by Caesarean section, this should have been accomplished within 30 minutes, given the pathological CTG and the risk of stillbirth; and

(e) there was a failure to monitor the baby between 6 pm and 6:15 pm. The CTG recording should have been continued beyond 6 pm and until transfer to the operating room.

195. It was the opinion of Dr Edozien that but for these failings, Alannah would have been delivered earlier than 7:01 pm on 13 January 2011. The delivery would have occurred some time in the window between 6 January 2011 (the due date) and 6:30 pm on 13 January 2011, depending on how quickly the obstetrician and other staff responded to evolving risk.

196. Dr Edozien's second report is dated 4 August 2016. He again addressed the interpretation of the CTG. He said that given the foetal tachycardia, the prolonged late deceleration and the reduced variability, the trace should have been recognised as a pathological trace not later than 5:08 pm. On its own, he said, the single prolonged late deceleration fulfilled the criterion for classification as a pathological trace. Dr Edozien was asked to comment upon the opinions expressed in reports by medical experts retained by the defendants, Dr Mike O'Connor and Dr Michael McEvoy, but as those reports were not ultimately relied upon by the defendants it is unnecessary to consider this issue at this time. Dr Edozien stated that a competent midwife would have called Dr Foote not later than 5:08 PM to report the prolonged late deceleration. Dr Edozien stated that late deceleration is indicative of foetal hypoxic, and that A had suffered demonstrable oxygen deprivation from 4:58 pm. With regard to the time which elapsed between the decision to undertake a Caesarean delivery and the delivery of Alannah, Dr Edozien said:

The decision-to-delivery interval (DDI) was 61 minutes: the decision to proceed to Caesarean delivery was apparently made at 18:00 and [A] was delivered at 19:01. This is an unacceptably long interval. Judgements on DDI should not be made on the basis of standards that apply in the most equipped maternity units but on the basis of what a reasonably equipped unit can and should aim to achieve in order to secure the best possible outcomes for its mothers and babies in situations where every minute counts. Also the longer it potentially takes a unit to assemble its staff, equipment and access to theatre, the earlier it should begin preparations in cases where emergency delivery is imminent. This is the essence of anticipatory care.

The midwife should have called Dr Foote between 17:00 and 17:08. Had the midwife called Dr Foote not later than 17:08, he would have attended within five minutes. In the meantime staff would have been alerted to the imminence of a Caesarean delivery, and preparations would have commenced in anticipation. Not later than 17:25 a decision should have been made to deliver the baby - the prolonged deceleration, foetal tachycardia and loss of variability were consistent with foetal hypoxia - and [A] would have been delivered within 30 minutes, including time allowed for a transfer from the private hospital to the operating theatre in the public hospital.

197. Dr Edozien's third report is dated 28 September 2017. In this report, Dr Edozien again comments upon opinions expressed by medical experts retained by the defendants. In particular, he was asked to comment upon an opinion expressed by a Dr McEvoy that a 45 to 60 minute decision-to-delivery interval was "acceptable" for delivery of A at the hospital in 2011. I will quote Dr Edozien's response at length, because it has important implications for the issue of causation, particularly with regard to the case against Dr Foote:

I do not agree that a 45 to 60 minutes decision to delivery interval was acceptable for delivery of [the first plaintiff's] baby at Calvary Private Hospital in 2011. What determined and acceptable decision-to-delivery interval (DDI) for delivery of [the first plaintiff's] baby was the state of the baby at the time the decision was made. The baby was hypoxic, as indicated by the pathological cardiotocograph. A baby deprived of oxygen for over 15 minutes would either die or suffer brain damage.

To say that a DDI of 45 to 60 minutes was acceptable for delivery of [the first plaintiff's] baby is to say that the guidelines on decision-to-delivery interval published by the Royal Australia New Zealand College of Obstetricians and Gynaecologists and other official bodies are baseless.

Dr McEvoy supports his opinion by reference to an article published by Spencer and McClellan in 2001 which found the median DDI for a level II hospital to be 54 minutes and a paper published by MacKenzie and Cook in 2002 which found a mean DDI of 42.9 minutes in a level III public hospital.

The problem with use of means and medians is that cases with different indications for delivery (different degrees of urgency) are conflated. In the paper by MacKenzie and Cooke the mean and median DDI for 'crash' Caesarean sections were 27.4 and 24 minutes respectively. 'Crash Caesarean section' was defined as one where impending foetal death or serious maternal compromise was anticipated.

In the paper by Spencer and McClellan, deliveries were separated into two categories, urgent and less urgent, depending on the reported indications for emergency Caesarean section. Urgent deliveries included those reporting non-reassuring foetal heart rates. The DDI for urgent caesarean sections in level II units ranged from 9 minutes to 4 hours 36 minutes. The median DDI for urgent emergency Caesarean sections was 54 minutes for level II units, but when the 'urgent emergency Caesarean sections' were analysed by their indication for caesarean section, the median DDI was 25 minutes for cord presentation/prolapse and 49 minutes for nonreassuring foetal heart.

What these papers tell us is that, by a large, when attending staff realise that the baby is acutely distressed and needs to be delivered immediately, they are able to affect delivery within the 30-minute timeframe recommended by the royal medical colleges.

Dr McEvoy sites to authors (Helmy 2002; Boehm 2012) who apparently suggest that a DDI of 30 minutes is practically unobtainable.

The paper by Helmy et al studied DDIs for emergency caesarean section where 'an emergency Caesarean section was defined as one which required prompt delivery to reduce the risk to the pregnant woman or her infant'. The indications for emergency Caesarean section were not stated or discussed. The authors state the following regarding the limitations of their study: "One could argue that varying degrees of emergency would have resulted in different degrees of urgency in the response of the midwifery and obstetric staff. In our first survey, about half of the caesarean sections where the decision-to-delivery interval was greater than 30 minutes were reclassified as non-emergency caesarean sections after review of the case notes.' Clearly this study was not robust enough to be relied upon in determining whether a 45-60 minute DDI for delivery of [the first plaintiff's] baby was acceptable.

Dr McEvoy made this statement (lines 160-162): 'On the same theme Boehm in 2012 changed the American College guidelines from 15 minutes to 30 minutes for emergency foetal distress as the 15 minutes was not practically obtainable even in high risk units with on-site facilities'. This statement is incorrect. Boehm did not change the American College guidelines. Nowhere in the paper was it suggested that 15 minutes was not practically obtainable. Boehm stated that in most facilities 'when a true emergency occurs, the team of providers can and do meet the 30 minute standard'. He added that 'the bulk of cases that fall outside the 30 minutes are cases that perhaps should not be held to this standard'. This underscores the importance of bearing in mind the indication(s) for delivery when considering decision-to-delivery interval.

Contrary to the assertion that a DDI of 30 minutes is 'unrealistic' or 'practically unobtainable', a tertiary unit in Australia reported this outcome which was achieved between 2008 and 2009: of the 82 women who proceeded to a Category 1 CS, 76% had a DDI within 20 minutes and 96.3% had a DDI of less than 30 minutes; the mean and median DDI for these 82 cases were 17.5 minutes and 16 minutes respectively.

(footnotes omitted)

198. Dr Edozien was also asked to comment upon an opinion by Dr Rasmussen that a competent obstetrician would not have "recommended" or "offered" an elective Caesarean section to the first plaintiff prior to 13 January 2011. Dr Edozien did not agree with this opinion. Dr Edozien stated that studies had indicated that pregnancies after IVF/ICSI are associated with higher risks of obstetric and perinatal complications and should be managed as high risk pregnancies. There were other factors which also had to be considered in determining the timing and mode of delivery in this case, including the first plaintiff's age and the fact that this was her first child. The first plaintiff had also suffered a miscarriage in 2009. It was the opinion of Dr Edozien that it was incumbent on her obstetrician to discuss perinatal risks and how they would be managed, especially in the light of the recommendation that pregnancies such as hers should be treated as high risk. The management of high risk pregnancies includes elective Caesarean section. Similarly, Dr Edozien disagreed with the proposition that a competent obstetrician would not have been expected to offer an induction to the first plaintiff prior to 13 January 2011.

199. Dr Edozien also gave oral evidence and was subject to cross-examination. Dr Edozien stated that he was currently carrying on practice as an obstetrician and gynaecologist at St Mary's Hospital in Manchester in the United Kingdom. That is a tertiary Hospital, receiving tertiary referrals from other centres in the northwest of England. Dr Edozien adhered to his opinion that the plaintiff had a higher risk of having a stillbirth compared to the average population of pregnant women. He adhered to the opinion that there is an increased risk of stillbirth with IVF/ICSI treatment, and that this risk has been recognised since before 2011.

200. Dr Edozien was taken to a document entitled "Personal History" in the hospital records (Exhibit 10 page 94) which contained a question asking the first plaintiff whether her pregnancy was the result of assisted conception. The first plaintiff had answered in the affirmative. Dr Edozien said that the reason for incorporating such a question was to assist in constructing a risk profile, and it recognised assisted conception as a risk. Dr Edozien was asked whether the increased risk of stillbirth should have been discussed with the first plaintiff when discussion was taking place as to whether the baby was to be delivered at term. Dr Edozien said that it should have been. When asked why, he stated:

Lets take the age. As stated in this report, page 115, from about line 117, at the time of this pregnancy it was known that the risk of stillbirth in women between 35 and 39 was one and a half to two times that of women in their mid 20s. Also, I would take this further to say that if you had a woman of 35 and above and a woman aged under 35, this woman who is above 35 years old has a higher risk of stillbirth at 38 weeks pregnancy than this woman who is under 35 has at the age of 40... There's also the fact that this is her first pregnancy, and we've all known that first pregnancies are associated with a higher risk of stillbirth, and the literature shows clearly there's a higher risk of stillbirth with IVF-ICSI treatment. So, your Honour, with this accumulation of risks it's incumbent on the obstetrician to discuss with the patients why there is risk there, explain these risks and discuss how these risks are going to be contained.

201. When asked whether, absent some contrary indication, delivery at term should be offered to a patient with these risk factors and who was seeking such a delivery, Dr Edozien said:

The answer is yes. If you look at graphical representations of these risks, you will find that something dramatic happens between 38 and 40 weeks in terms of the risk profile, the risk of stillbirth; it shoots up dramatically. So there's absolutely no doubt that the obstetrician should be mindful of this and has an obligation to discuss this with the woman.

202. Dr Edozien said that it was incumbent on the medical practitioner to offer an induction at term to a patient to whom the risks of stillbirth had been explained, and who requested such a procedure. Indeed, he went further and said that it would be unethical to do otherwise. Where the patient requested such a procedure, but the medical practitioner would not be available to undertake it at the estimated time of confinement, it was incumbent upon the medical practitioner to arrange for another colleague to conduct the procedure, unless the patient was willing to await the availability of the treating practitioner.

203. With regard to the CTG trace taken on 13 January 2011, Dr Endozien stated that alarming signs were clear and unambiguous from 16:41 hours. They suggested the need for a Category 1 Caesarean section.

204. Later, Dr Edozien said that studies had shown that the risk of stillbirth in women who conceived after IVF/ICSI treatment was 1.62 per cent as opposed to .23 per cent who conceived without such treatment.

205. In cross-examination by counsel for Dr Foote, Dr Edozien agreed that whilst he had practised as an obstetrician in Africa and the UK, he had never practised in Australia. It was suggested to Dr Edozien that his evidence about what a reasonably competent obstetrician in Australia would do in certain circumstances was not based upon any qualifications, training or experience gained in Australia. He responded:

Your Honour, I would differ with that position on the basis that the standards of practice in Australia and the knowledge and training of obstetricians and gynaecologists in Australia is not materially different from that of specialists in the United Kingdom. We undergo basically the same curricula of training; we attend the same conferences; we read the same journals. We work to the same standards that are prescribed by the royal colleges, the RCOG and the RANZCOG, and so essentially the standards of care are the same in both countries and indeed, in most parts of the western world. I would also go further to say that women receiving obstetric care in Australia are not entitled to any lesser standard of care than women in the United Kingdom, so the standard of care that I offer to a woman in the United Kingdom will be the same standard that a woman here in Australia would expect to receive.

206. Dr Edozien was taken to the report prepared by Dr Rasmussen on behalf of Dr Foote, where Dr Rasmussen expressed the opinion that a reasonably competent obstetrician in Australia in 2011 would not have offered a woman an elective Caesarean section at, for example, 38 weeks, on the pure basis that she was an IVF-conception pregnancy. Dr Edozien commented:

Your Honour, I feel confident that Dr Rasmussen himself will admit that he subscribes to standards of disclosure that have been set by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Now, the risks that we should disclose to our patients, there is guidance on that published by RANZCOG and it says that in determining what risk to disclose to a woman, we've got to take into account what a reasonable woman in the position of the particular patient would consider to be significant, and also the doctor should be mindful of what a competent doctor, in this case, obstetrician, should reasonably be aware what would count as significant to his or her patient.

207. Dr Edozien went on to say, with regard to the first plaintiff,:

This lady...had a miscarriage at seven weeks. She and her husband had IVF-ICSI, there was a vanishing twin...there was mild proteinuria between 37 and 41 weeks. We know that this was her fourth attempt at IVF treatment. That's the woman I have before me. When I look at the College guidelines, what would a woman in that position consider to be significant? Previous miscarriage, IVF treatment, 38 years old, first pregnancy, vanishing twin, proteinuria? What would that woman, or anybody in her position, consider to be significant? Would they consider any increased risk of stillbirth to be significant? I would say yes. On the doctor's side, your Honour, would a reasonable doctor expect that increased risk of stillbirth would be considered significant by a woman in that position? I would say, yes, it would be reasonable for them to, taking what a woman in that position will consider significant.

208. Gregory Unicomb was a witness called by the plaintiffs. At the time of his giving evidence he was working as a registered nurse at the Canberra Hospital and at the Canberra Private Hospital. In January 2011 he was employed by the hospital as a registered nurse level 2. He was often required to be the team leader for the afternoon shift for the theatre floor at the hospital. He recalled the events of 13 January 2011 because he had injured his ankle the day before, and on 13 January 2011 he left the theatre complex at about 6.10 or 6.15 pm to go to the Emergency Department to have some treatment follow up for his ankle.

209. Mr Unicomb had been involved in surgery in theatre 7 that afternoon which finished at 17.45 pm. He then remained in the theatre area cleaning up for some time before going to the Emergency Department. At the hospital at that time there were two broad categories of patients who were to undergo surgery: those who were undergoing elective surgery and those who were undergoing surgery that had not been predicted. The latter category were known as emergency cases. The fact that they were referred to as emergency cases simply indicated that they involved surgery which had not been planned (elective surgery), but did not indicate the degree of urgency attaching to their need for surgery. The degree of urgency for any particular emergency surgery was a matter to be determined by the surgeon and the anaesthetist. As the team leader on the theatre floor, Mr Unicomb would be informed of the procedure to be undertaken and the degree of urgency attached to the procedure. It was then he had responsibility in conjunction with the surgeon and the anaesthetists to allocate theatre and nursing staff to deal with that surgery.

210. Mr Unicomb agreed that the hospital had adopted a protocol in which Caesarean sections were classified into one of 4 categories. These were referred to as Categories 1 through 4, or Categories A to D. Category 1 (or A) was the most urgent. Mr Unicomb had been involved in assisting in Category 1 Caesarean sections on numerous occasions at the hospital. In his experience, the timeframe between the declaring of the emergency and the delivery of the child, where a theatre was immediately available, was normally 20 to 30 minutes, or less. He said that on some occasions in order to ensure that a theatre was available, procedures taking place in theatres may be interrupted or other cases may be postponed. In some cases, the surgeon or his medical staff, as opposed to the nursing staff, undertook the transfer of the patient from the ward to the theatre to facilitate an urgent delivery. He said that it was the hospital's policy to achieve Category 1 urgent deliveries within a timeframe of 20 to 30 minutes. Where theatres were available, that timeframe was usually met.

211. Mr Unicomb stated that the hospital had 7 theatres. By reference to records produced by the hospital, Mr Unicomb was able to say that only 2 theatres, theatres 4 and 7, were in use on the evening of 13 January 2011. By 6 pm only theatre 4 was in use. Mr Unicomb stated that had a Category 1 Caesarean been declared at about 6 pm theatres were available for the procedure, and nursing staff were also available to assist in the procedure. Mr Unicomb stated that the events that occurred on 13 January 2011 with regard to the first plaintiff, where a decision was made to deliver the child by Caesarean section shortly before 18:00 hours but the delivery did not occur until shortly before 19:00 hours, was in his experience not indicative of a Category 1 Caesarean at the hospital at that time.

212. Mr Unicomb was not cross-examined by Dr Foote.

213. In cross-examination by counsel for the hospital, Mr Unicomb agreed that in addition to nursing staff, in order to perform the Caesarean on the first plaintiff an anaesthetist would also be required. He said that there was an anaesthetist on call for surgery which commenced after 18:00 hours. Mr Unicomb agreed that in his past dealings with Dr Foote, the doctor had been clear in his instructions about the timing of procedures, and if the doctor felt a patient needed to be delivered of a baby within 30 minutes, he would tell him so. Dr Foote did not always use the term "Category 1" when referring to such cases, but would use other language making clear the urgency of the case.

214. In re-examination, Mr Unicomb agreed that in some cases a certain fluidity was required in order to ensure that all of the resources were available to ensure a delivery in Category 1 cases within 20 to 30 minutes, which may include the use of anaesthetic registrars if need be.

215. On behalf of the first plaintiff, 4 reports from Professor Alexander McFarlane were tendered. Professor McFarlane is a psychiatrist who is currently the head of the University of Adelaide Centre for Traumatic Stress Studies, having previously been head of the Department of Psychiatry. The first report, dated 15 August 2014, sets out the first plaintiff's history, which was not the subject of dispute. Accordingly, I will not here repeat the history taken by Professor McFarlane. With regard to her current psychological condition, Professor McFarlane said:

She feels she has become a sad and bitter person. She now has lost her tolerance and is more reactive to stress and is easily irritated. She feels upset with herself about her reactivity. She gets offended more easily and has become more impulsive. She struggles to think of the future and worries that she has lost her capacity to cope. She describes how she feels sad much of the time, which her brother notices. She knows [OT] should be a joy for her but she is often down. She currently gets about 5 hours sleep and has problems with insomnia even when she is tired. [OT] sleeps through the night that she still gets up to check on him.

Everything plays on her mind and little things are too much. She has nightmares approximately every fortnight about [OT] and [A] getting swapped. She wakes worrying about [OT]. Once she has been awake she gets little more sleep and wakes feeling tired. She has to push herself during the day, having lost her motivation and energy. She pushes herself to get out and do things with [OT]. She has recently been fighting with her husband, not being happy when he is travelling because she feels unsupported. She regularly Skypes her family in Venezuela.

She currently weighs 1.5kg less than before she was pregnant for the second time. She has a reasonable appetite. She breast-fed for 6 months without difficulty. She has not had thoughts of suicide or death. Her memory and concentration are poor, noticing how she loses her train of thought. She rated her current mood as being 4 or 5 out of 10 when 10 is at her best. She sometimes feels that she is in a cloud and is "in the present but not here". She feels like this particularly when she is in crowds in the supermarket. She does not get panic attacks.

When asked about her memories of [A]'s birth she again became tearful. She thinks about seeing [A] when she dies. She no longer has traumatic images of her birth every day as she did in the beginning. She will not go into the Calvary Hospital and will even drive alternative routes to keep away from the area. She tells her husband not to take her there. She actively tries not to think about what happened, "it still hurts, it should not have happened". The memories are still so intense that she feels that she is back in the hospital. It is as though it was yesterday. She can no longer enjoy things as she used to. Food, holidays etcetera have all lost their sense of pleasure. Sometimes she also feels flat like she has no feelings. She sees her friends but less often then [sic] before.

She has an exaggerated startle response and notices her heart will race longer than before. She feels the cultural divide in her relationships and there is a degree of coldness and distance in the way people relate. She worries about her husband, saying "she does not want heroes in the house". She tells him to be careful. She worries when driving with [OT] in the car.

The worst time was the months immediately after [A]'s birth. She was bad for months. She again became very depressed when she required the laparotomy after she haemorrhaged when her ova were harvested. She found the whole situation is shock.

216. Professor McFarlane noted that when he first interviewed the first plaintiff she was notably depressed and grief stricken. The first plaintiff also had a range of perceptual disturbances. At times she heard A calling her. Professor McFarlane said that this appears to be indicative of the auditory hallucinations that sometimes accompany grief. The plaintiff also had full-blown dissociative type flashbacks. Despite her medical training, Professor McFarlane said, the first plaintiff had not conceptualised her emotional state as one of a depressive illness and post-traumatic stress disorder. He said that medical practitioners frequently find consultation with a colleague difficult, however she readily engaged in the interview process and appeared to appreciate the opportunity to speak frankly about her state of mind and its impact on her life. There was no evidence of exaggeration of her symptoms and, if anything, she appeared to have coped by trying to be self-contained about her distress.

217. It is, I think, important to set out in full the diagnostic assessment of Professor McFarlane:

From a diagnostic perspective, it is my opinion that [the first plaintiff] has suffered from an intense grief reaction to the stillbirth of her daughter [A]. However, above and beyond this she also has developed a chronic posttraumatic stress disorder and comorbid major depressive disorder using DSM-V diagnostic criteria.

The stillbirth of her daughter [A] is an event of the type that leads to posttraumatic stress disorder. However, there were various circumstances that significantly added to the psychological trauma. In particular, she had had significant difficulties conceiving and had required multiple attempts at IVF. Secondly, as a medical practitioner the experience of being a patient is one that represents a significant degree of stress as documented in the literature. Hence, for her concerns about the viability of her infant not to be taken as seriously and as urgently as she would have desired led to many self-recriminations about not having been more assertive with her self-communication of the situation.

She has had a range of re-experiencing phenomena relating to the birth. She continues to have nightmares about the birth. These at times involve her children being swapped in her dream. In her waking hours she has regular intrusive thoughts about the image of the obstetricians face when it was apparent that the foetal heart had stopped. She also appears to have dissociative type flashbacks where she almost feels that she is back in the circumstances where she can see the obstetricians face. There are also multiple triggers to her memories. The fact that she has had to undergo further repeated procedures as part of the IVF program means that she is regularly put in a situation that triggers her acute sense of anxiety and distress. This was particularly the case when she required an emergency laparotomy after haemorrhaging from her ovaries when her ova were being harvested. Hence, her having to repeatedly be subjected to a variety of procedures in the course of the IVF has served to intensify her intrusive and distressing recollections.

She described several notable patterns of avoidance behaviour. Firstly, she has tried to actively put these thoughts and memories out of her mind because of the degree of distress they evoke. Her behavioural avoidance was manifest in various ways, including her decision to resign from her job when she returned to Australia having visited her family [in] Venezuela immediately after the delivery. She could not cope with the thought of patients asking about her baby, given what had been the outcome of the pregnancy. She has both of the avoidance symptoms.

She also had a range of alterations in her cognition and mood following [A]'s stillbirth. Only two of these are required in the diagnostic criteria. She did not have any degree of psychogenic amnesia. She had a persistent and exaggerated negative sense of herself as a consequence of the birth. She tended to see herself as being a failure in not being able to protect her infant and had a fatalistic sense that her life had been overtaken by the probability of adversity befalling her. She also had persistent cognitions about having been responsible for [A]'s death by not advocating more strongly about her concerns about her foetuses viability when she arrived at hospital. She has an enduring negative state of mind relating to her sense of guilt about not having protected her infant. She has markedly lost interest in pleasurable activities and has come to feel a sense of detachment from people in her environment. She also struggles to feel positive emotions, particularly happiness related to her son [OT], which further adds to her sense of guilt. Hence, she had six of these seven symptoms.

She also satisfies the arousal and reactivity symptoms. She is significantly more irritable. She is constantly vigilant about [OT]'s welfare and health. She has significant difficulties with insomnia. Her memory and concentration are noticeably poor and she is easily distractible. She also has an exaggerated startle response. Hence, she has five of the six phenomena. These have been present for more then [sic] a month and are a significant cause of distress and functional disability.

I also note that she has some symptoms of depersonalisation, which she particularly experiences when in crowds.

She also has a major depressive disorder. She has had an enduring disturbance of mood that has lasted more then [sic] 2 weeks that is characterised by depressed affect. She has had a markedly diminished interest in pleasurable activities that she previously enjoyed. At the present time she does not have a major vegetative disturbance, although she weights [sic] 1.5kg less than before she was pregnant. Previously this weight loss has been more severe. She has had major difficulties with insomnia. She has persistent loss of energy and fatigue and feelings of worthlessness, particularly surrounded by feelings of guilt about her not being able to protect her infant.

Her memory and concentration have been disrupted. She has not had thoughts of death or suicide. Hence, she has six of the nine symptoms that have been present for more then [sic] 2 weeks.

Her mood disorder is better then [sic] it previously was but remains an ongoing issue.

218. Professor McFarlane was of the view that the first plaintiff would benefit significantly from psychiatric treatment. He felt that the severity of her post-traumatic stress disorder and comorbid depressive disorder had significantly compromised her functioning and quality of life. He felt that she was likely to require a minimum of 20 treatment sessions combined with monthly follow-ups over a period of a year. These would cost approximately $300 per hour. She would also benefit from medication, which would cost approximately $25 per prescription.

219. With regard to the first plaintiff's capacity for work, Professor McFarlane noted that the work the first plaintiff was currently undertaking was substantially below the level of training and capacity. Her ability to function in the work environment had not been substantially compromised despite difficulties with concentration and lack of motivation. This was because of the substantially higher level of skill base that she has than was required for her employment. He noted, however, that the first plaintiff was unable to continue working for a period in 2011, when she essentially resigned from the Canberra Eye Hospital because she could not face the need to return to work and speak to patients who were aware that she had been pregnant. This period off work in 2011, Professor McFarlane said, was a direct consequence of her underlying symptoms and distress.

220. It was Professor McFarlane's opinion that the first plaintiff's post-traumatic stress disorder and major depressive disorder had had a substantial impact on her quality of life and marriage. Her profound sense of loss and enduring negativity had affected her capacity for participation in pleasurable activities. Her sense of loss had made it difficult for her to enjoy and participate in social networks and support groups commonly utilised by mothers. Hence, he said, there had been a significant decline in the general quality of her life and relationships as a consequence of her ongoing psychiatric symptoms.

221. In summary, Professor McFarlane was of the opinion that the first plaintiff had developed a chronic post-traumatic stress disorder and major depressive disorder as a consequence of the intrauterine death of her daughter A. The severity of her post-traumatic stress disorder and major depressive disorder had substantially impacted on her quality of life. She had frequent anxieties and apprehensions about the ongoing safety and welfare of her son as a direct consequence of her daughter's stillbirth.

222. Professor McFarlane's second report is dated 15 June 2016. In preparation for this report, Professor McFarlane was provided with a number of documents, particularly relating to the first plaintiff's difficulties at work in August 2011. Professor McFarlane noted that the first plaintiff had not provided a history of this dispute at the time of his original assessment on 21 July 2014. He believed that it was probable that her degree of preoccupation at the time with the circumstances surrounding A's death impacted on her recall. The first plaintiff's lawyers requested Professor McFarlane to comment upon the impact of the loss of A had upon her subsequent reaction to the issues in her workplace. Professor McFarlane expressed the opinion, on the balance of probabilities, that the first plaintiff's capacity to cope with the circumstances in her employment was diminished to a degree because of her chronic major and post-traumatic stress disorder which she developed as a consequence of the loss of A. It was the opinion of Professor McFarlane that the first plaintiff did not have any ongoing disabilities as a consequence of the events in her workplace.

223. With regard to the first plaintiff's desire to practice medicine in Australia, Professor McFarlane stated that major depressive disorder has a significant impact on an individual sense of motivation and capacity to focus on the future. Both major depression and post-traumatic stress disorder have a significant impact on the working memory capacity of individuals with these conditions and they impact upon their general information processing. It was his opinion that the first plaintiff's ongoing condition is likely to have been a significant factor in disrupting her capacity for further study and to complete the necessary steps to gain her medical registration in Australia. He noted that the first plaintiff's symptoms had improved subsequent to her treatment, however she had ongoing residual symptoms that placed her at a relative disadvantage. In addition, the significant delay in gaining recognition of her qualifications due to her ongoing psychological conditions meant that there is a greater body of emerging knowledge and changes in medical practice that she would have to study to satisfy the requirements of the relevant examinations. While her capacity has improved significantly, Professor McFarlane said, she remained at a significant relative disadvantage, given the interim period of disability and her residual symptoms.

224. Professor McFarlane's third report is dated 4 July 2017. He reviewed the first plaintiff on 30 June 2017. Professor McFarlane considered that the first plaintiff continued to suffer from a major depressive disorder, which was the predominant aspect of her mental state, and a residual post-traumatic stress disorder. These conditions arose as a consequence of the neonatal death of her daughter A. He stated that she has a profound sense of traumatisation and loss as a consequence of the circumstances. Professor McFarlane noted that the first plaintiff had also recently had to deal with further stresses in her workplace, as well is being diagnosed with carcinoma in situ of the cervix, which required a total hysterectomy. The diagnosis and requirement for the hysterectomy had further aggravated her sense of loss because she was contemplating a further donor pregnancy at the time the diagnosis was made. This led to a significant recurrence of her depression in early 2017, during which time she was significantly functionally impaired. With the prescription of antidepressants and a consultation with a psychologist, there had been an improvement in her mood, however her depression remained clinically present and a further treatment was necessary. Her depression and sense of loss had interfered with her capacity to contemplate further steps to gain medical registration in Australia. This situation had been further compounded by the fact that she was advised in June that she could not be registered as an orthoptist despite being an ophthalmologist in Venezuela. Professor McFarlane noted that since his original assessment of the first plaintiff in 2014 there had been a significant improvement in her mental state, in particular her post-traumatic stress disorder. She continued, however, to have symptoms consistent with a post-traumatic stress disorder and a major depressive disorder. The fact that she had improved significantly in 2015 in early 2016, Professor McFarlane said, highlighted that with appropriate treatment she was able to have an improved quality of life, however she remained vulnerable to a recurrence an exacerbation of her depression and post-traumatic stress disorder according to her life circumstances.

225. With regard to the first plaintiff's capacity for work, Professor McFarlane stated that she was able to perform her current duties in an appropriate and competent manner. While she had some difficulty with her concentration and memory, she is a highly structured and organised individual. Professor McFarlane went on to say:

Taking a long term perspective, the situation of [A]'s death and its impact on [the first plaintiff]'s mental state significantly disrupted her capacity to study and complete the necessary registration procedures to operate as a medical practitioner in Australia. Her English language proficiency was the first hurdle that she had to address prior to sitting for her clinical exams. Given the passage of time, the probability of her successfully completing these exams has decreased considerably. In my opinion, she is unlikely to sustain the effort, particularly because of her need to study and update her knowledge in broad areas of medicine to sit such an examination.

In summary, I am of the opinion that she would be capable of working as a medical practitioner with the appropriate treatment of her depression and post-traumatic stress disorder. However, her psychiatric disorders have been a major impediment to her progressing the strenuous and challenging accreditation and re-qualification examinations required for a foreign medical graduates to be registered in Australia.

226. Professor McFarlane's fourth and final report is dated 25 July 2017, and briefly contains a clarification of certain matters in his third report. It is unnecessary to refer to these matters any further.

227. Professor McFarlane also prepared reports regarding the second plaintiff. The first such report is dated 28 January 2015. The history given by the second plaintiff to Professor McFarlane was consistent with the evidence given by the second plaintiff in these proceedings. The second plaintiff complained of being anxious and sad as a consequence of A's death. He said that he did not sleep well for several weeks after the first plaintiff returned home, and he would wake at night hearing a baby crying in his sleep. He had recurring memories of the events of 13 January 2011. He lacked motivation, and had put on weight. He had had thoughts of suicide and death at times, but would never act on those feelings. His relationship with the first plaintiff had suffered, and he had lost his libido. He was also very watchful over the safety of OT. He was drinking three or four beers a day, and more several days a week.

228. Professor McFarlane noted that the second plaintiff had been involved in 2 prior motorcycle accidents in which he suffered injuries, and which had led to depression. During the interview with Professor McFarlane, the second plaintiff became increasingly subdued and at times tearful when speaking about A's stillbirth. He had some difficulties with concentration. The second plaintiff described a "profound feeling of disappointment, sadness and anger". The birth of OT had not changed those feelings.

229. It was Professor McFarlane's opinion that the second plaintiff had suffered from a major depressive disorder following A's stillbirth in January 2011. The second plaintiff continued to have ongoing sleep disturbance with both initial insomnia and a broken pattern of sleep. He had occasional thoughts of suicide. His memory and concentration were also a persistent difficulty, and his sense of pleasure and self-esteem had also been significantly diminished. Professor McFarlane said that the second plaintiff also had a persistent grief reaction. Professor McFarlane described the second plaintiff's ongoing major depressive disorder as of a mild to moderate severity. It was his opinion that the second plaintiff's symptoms were attributable to the events of 13 January 2011. It was Professor McFarlane's opinion that the second plaintiff would benefit significantly from both pharmacological treatment and psychotherapy for his symptoms. Professor McFarlane considered that approximately 30 sessions with a psychiatrist and/or psychologist over a period of two years, at a cost of $250 per session, would be appropriate. He believed that the second plaintiff was also likely to require an antidepressant for a minimum of 12 months at a cost of approximately $30 per prescription. He also recommended approximately 5 sessions of conjoint therapy with the first plaintiff.

230. Professor McFarlane's second report is dated 15 July 2016, in which he comments upon reports prepared by Dr Saboisky dated 31 March 2015 and 20 August 2015. Having read those reports, Professor McFarlane did not modify his opinions set out in his report of 28 January 2015. In his view, the only difference of opinion between himself and Dr Saboisky was the relative severity of the second plaintiff's mood disorder. There was little difference in the recommendation for treatment in the reports, and the assessment of the second plaintiff impairment was of a similar nature.

231. Professor McFarlane's third report is dated 4 July 2017, following a review of the second plaintiff on 30 June 2017. It was Professor McFarlane's opinion that the second plaintiff continued to have residual symptoms of a major depressive disorder, particularly manifest by his irritability, social withdrawal and insomnia. Ongoing stresses on his family, in particular the first plaintiff's diagnosis with cervical cancer that required a hysterectomy and her difficulties in the work environment, had served to sustain his sense of loss and awareness of the impact of the death of A. He had previously coped in a maladaptive way by excessive consumption of alcohol during 2015 and 2016 that led to an abnormal liver function test. He had subsequently decreased his alcohol consumption. Professor McFarlane believed that the second plaintiff would benefit from further ongoing treatment of his residual depressive symptoms as well as support in dealing with the continued challenges that he and his wife faced in adjusting to their losses (not all of which were attributable to the death of A).

232. The RANZCOG Guideline for categorisation of urgency for Caesarean section was tendered as part of the plaintiff's case. It appears that this Guideline, or one of similar effect, was adopted by the hospital, but, in any event, there was no real dispute that the Guideline set out what would be regarded as good clinical practice by members of the College. The relevant sections of the Guideline are:

The decision to delivery interval (DDI) of 30 minutes, decreed as necessary in many legal judgments seems based on custom and practice, rather than on objective evidence in relation to condition of the newborn. Therefore it is recommended that there be a four-grade RANZCOG endorsed classification system for emergency caesarean section. These are:

RANZCOG Category 1 Urgent threat to the life of a woman or fetus.

RANZCOG Category 2 Maternal or fetal compromise but not immediately life threatening.

RANZCOG Category 3 Needing earlier than planned delivery but without currently evident maternal or fetal compromise.

RANZCOG Category 4 At a time acceptable to both the woman and the caesarean section team, understanding that this can be affected by a number of factors.

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) recommend that there should be no specific time attached to the various types of caesarean section. Each case should be managed according to the clinical evidence of urgency, with every single case being considered on its merits. For example, a RANZCOG Category 2 caesarean section can become urgent if recurrent delays for other emergencies in a labour ward repeatedly postpone surgery. Institutions should use these RANZCOG categories, and the recommendations that follow. It is imperative that there is sufficient staffing and resourcing to meet the requirements of these recommendations. Any attempt to disguise or justify inadequate resourcing of Obstetric theatres is strongly condemned.

Judgement on the appropriateness of DDIs should be made on the basis of information available to the clinician making the decision for caesarean section before delivery and not on the condition of the baby at birth nor on the time required to access a functional and staffed operating theatre.

233. On behalf of the hospital, Dominic Pook gave evidence. He was a theatre orderly supervisor at the hospital in January 2011. Part of his duties involved the transfer of patients between wards and theatre, and vice versa. As at January 2011 he had occupied the role for seven or eight years. With regard to emergency Caesarean procedures, he was familiar with the Categories A, B, C and D used by the hospital. He understood that Category A involved cases which were potentially life-threatening. He later became aware that such cases had to be done within a certain time, but he was not 100 per cent sure of that time. In Category A cases, he would go immediately to the place where the patient was to be collected and bring them to the theatre as quickly as possible.

234. Mr Pook was on duty on the evening of 13 January 2011. He was asked to pick up a patient from the maternity ward and take her to theatre. He could not recall who asked him to do this. He said that he was not told that this patient was Category A or Category 1, and was not told that this was a life threatening event Caesarean section. He said that before he left to pick up the patient, he believed he overheard a conversation where another hospital employee, Sue Parr, asked Dr Foote whether she could open another emergency theatre, and Dr Foote responded that it wouldn't be necessary, or least at the time. He said that this conversation took place in the vicinity of just outside Theatre 4. Having been asked to pick up the patient, Mr Pook went to the maternity ward and collected her. He believed that when he arrived at the patient's room, there may have been two midwifes in the room. He did not get any sense of urgency in the room when he arrived. He wheeled the patient in her bed to theatre. He believed that he took her to the anaesthetic room outside Theatre, but he could be mistaken. He remembered taking her into theatre, and believed that she moved on to the theatre table of her own accord.

235. In cross-examination by counsel for Dr Foote, Mr Pooke agreed that there were some things about the events of 13 January 2011 of which he could not be sure, but he was sure of other things. He believed that he had a memory of Sue Parr being on shift that evening.

236. In cross-examination by counsel for the plaintiffs, Mr Pook agreed that as far as he was concerned there was no suggestion of any threat to life when he was transferring the patient to theatre. No one gave him the impression that this was a Category A case, and nobody told him that it was. In the case of a Category A case, Mr Pook said that he had retrieved patients from the maternity ward and delivered them to Theatre 4 well within 4 minutes.

237. On behalf of the hospital, Ms Joy Horsham gave evidence. Ms Horsham is a registered nurse and midwife. She undertook her nursing training in England in 1966, and completed her midwifery training in South Africa in 1968. She came to Australia in 2003. In January 2011 she was working at the hospital as both a registered nurse and a midwife. She was working on a late shift on 13 January 2011. She was the midwife caring for the first plaintiff on that afternoon in the maternity ward. As part of her duties she monitored the CTG which provided information about foetal heart activity. At some stage she saw the CTG trace descend, which meant a deceleration in the baby's heart rate. This indicated to her that the baby was probably under some stress. She said that she accordingly rang Dr Foote, she believed at about 17:40 hours. She agreed that if telephone records show that somebody made a phone call to Dr Foote's mobile and home phone numbers at about 17:48 hours, this would probably have been her. When she rang Dr Foote's mobile number, she was not able to contact him but left a message on his answering machine stating that she wasn't happy with the CTG trace. When she rang his home phone, she spoke to his wife and left a message, and she was told Dr Foote was still at the hospital. She told the first plaintiff that she had telephoned the doctor.

238. She said that not long after those telephone calls Dr Foote attended the ward and looked at the CTG trace. He then said to the first plaintiff that the baby was under stress and it would probably be a good idea to do a Caesarean section. There was nothing in what Dr Foote said to the first plaintiff that conveyed to Ms Horsham that he planned to do a Category 1 Caesarean. As Horsham said that she was simply asked to prepare the first plaintiff for theatre. Dr Foote said that he would organise the theatre. Ms Horsham said that she did not necessarily get any indication from Dr Foote of urgency with respect to the procedure. She said that Dr Foote was calm in his conversation and said that they would organise theatre for the first plaintiff, and would get her into theatre "as quickly as we could".

239. In cross-examination by counsel for Dr Foote it was suggested that Dr Foote's direction to her to prepare the first plaintiff for theatre as quickly as possible was consistent with a Category 1 or Category A Caesarean section. Ms Horsham said that those terms were not used on the ward. In further cross-examination it transpired that Ms Horsham had not been involved in an emergency Caesarean section that needed to be undertaken within 30 minutes in Australia.

240. Ms Horsham said that when Dr Foote arrived at the ward she was continuing the CTG. When asked how long Dr Foote remained in the room, Ms Horsham said "I'm sorry, I don't think it was more than about five - five to 10 minutes. I don't think it was longer". After Dr Foote left the room, Ms Horsham began preparing the first plaintiff for theatre which involved leaving the room to obtain shaving gear and theatre gowns. As Horsham said that she thought that she had probably stopped the CTG by the time she left the room, but she could not be absolutely certain. She also said that she completed progress notes before the first plaintiff went down to theatre.

241. Ms Horsham was taken to clinical notes that she made on 13 January 2011. In the clinical notes (Exhibit 10 page 20 - 21) there are three entries under the time "1800". Two of those entries were made by Ms Horsham, and the third was made by Dr Foote. The first entry reads: "Midwife - CTG not reassuring - long decele - Dr Foote contacted by mobile - message left and his home contacted and message left. B/S notified". In her evidence Ms Horsham clarified that B/S was an abbreviation for birth suite. The second entry under the time 1800 was also made by Ms Horsham, and reads: "Dr Foote returned phone call - he will come to see pt". The third entry under the time 1800 was made by Dr Foote. Ms Horsham gave evidence that she could not recall actually speaking to Dr Foote on the telephone, and he may have telephoned the desk and a message may have been relayed to her. She was unclear about when she made the entries in the clinical notes to which I have just referred.

242. In cross-examination by counsel for the plaintiffs as Horsham agreed that her recollection of these events was patchy at best. She agreed that when she told the first plaintiff that she was getting the doctor, she would also have told her that the trace was not particularly reassuring, or something to that effect. She said that the first plaintiff was anxious, and she would not dispute the proposition that she was also tearful. Ms Horsham said that when Dr Foote arrived, he told the first plaintiff that the baby was under stress and that it would probably be a good idea to proceed with a Caesarean section. There was nothing in the manner in which Dr Foote said this, however, that indicated any urgency or imminent compromise of foetal health. Ms Horsham agreed that the description of the Caesarean in the hospital records as an emergency Caesarean simply distinguished it from an elective procedure and did not indicate the urgency of the procedure.

243. Dr Foote did not give evidence. There is, nevertheless, clear evidence about the activities of Dr Foote between 4 pm and 7 pm on 13 January 2011which emerges from the hospital records. I will not go into detail, but the evidence establishes that Dr Foote was engaged in dealing with non-urgent cases. There is no evidence that anything occurred in the management of those cases that made Dr Foote's attendance necessary at that time, nor is there evidence that there was any impediment to Dr Foote arranging for some other appropriate medical practitioner to urgently attend to the first plaintiff.

244. Dr Michael Rasmussen, an obstetrician and gynaecologist, provided a report dated 24 July 2016 on behalf of Dr Foote. Dr Rasmussen is an obstetrician and gynaecologist registered to practice in Australia, and currently practising in Melbourne. He attained in his medical qualifications in 1982, and his qualifications as an obstetrician and gynaecologist in 1988. He is a member of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.

245. In his report, Dr Rasmussen stated that pooled data has shown a slightly higher perinatal mortality rate for pregnancies conceived by IVF than for those conceiving naturally, but this did not mean that the risk is necessarily increased for each IVF conceived pregnancy. He said that the indications were that the first plaintiff's pregnancy with A was normal up until 13 January 2011. He said that there were no risk factors identified that would lead a competent obstetrician to recommend an elective Caesarean section, or to offer such a procedure to the first plaintiff. On the information available to him, he expressed the opinion that a competent obstetrician would not have been expected to offer induction of labour prior to 13 January 2011. Similarly, a competent obstetrician in Australia in 2011, he said, would not have recommended an induction or elective Caesarean section at 38 weeks.

246. Dr Rasmussen also gave oral evidence and was subject to cross-examination. He was asked whether a reasonably competent obstetrician in Australia in 2011 would have taken the course of offering or recommending an induction or a Caesarean section before 41 weeks for a patient purely on the basis of IVF conception, and he responded: "Having ascertained a history of infertility, the history of IVF, having searched for related complications and in the absence of those complications or other risk factors as identified, then no, on its own, the history of IVF would not lead to the interventions as you describe." He then went on to say that the RANZCOG guidelines that applied in 2010 and 2011 did not say anything about managing the risk of stillbirth in IVF conceived children.

247. The following cross-examination by counsel for the plaintiffs then occurred:

Now, you were careful to say - and I am not being critical, please understand me - that of itself, the IVF is not an indication for a pre-41 week delivery. Is that a fair summary of what you said?---Yes.

There are other factors, or course (indistinct) - - -?---Yes.

- - - including the age of the woman?---Yes.

The history of prior miscarriages?---That would be a prolonged conversation. Arguably the profession would be out on the risk contribution of one miscarriage.

I understand that?---It has been put forward, yes.

And what about the vanishing twin that you are aware existed here?---Yes, no, that's right, which was diagnosed before 11 weeks gestation and the role of the vanishing twin in contributing to subsequent morbidity or mortality is questionable. Vanishing twins are common. The adverse outcomes from the vanishing twin per se are rare in the absence of associated placental abnormalities or utero-placental insufficiency or other scenarios that can be associated with the vanishing twin. So the vanishing twin on its own in the absence of a small for dates baby, prematurity, preeclampsia, hypertension, placental abnormalities, no, is not considered a risk factor and would not be in the algorithm of calculations.

But the other matters were, the age and the previous miscarriage although the miscarriage you say the jury is still out on it?---Yes.

Yes. Doctor, your report deals with essentially the offering of induction prior to 41 weeks. Is that correct?---Yes.

And by offering, do you mean recommending?---Well, discussing and within that, a recommendation, yes.

Yes. Now, just that - you have used the word I wanted to get to because you were asked about discussions with your patient earlier and you just mentioned discussion again. It is fundamental and was fundamental in 2011 for an obstetrician and gynaecologist to inform his or her patient, particularly as they approached term, of the risk factors that could be involved in the baby being delivered at term or beyond. Is that correct? Just a discussion?---I think - there are many discussions that are taking place as you approach term and they are about the patient's wishes for birth, about the likely, you know, outcomes and interventions, yes. The risk of - the need for surveillance is often discussed. The need for the weekly visits. The need for the blood pressure checks. The need for ultrasounds but it would not be common practice to discuss with every woman at every visit the exact stillbirth risk that she is facing at that point in time. I am not saying that we shouldn't be doing it and I am not saying it is what we will be doing but the week by week risk of stillbirth which is of the order of - at 38 weeks, it's two per 10,000, at 40 weeks, it's four per 10,000 and at 41 weeks, it's six per 10,000. Now, do we sit down and discuss those risks with each mum at each visit? Do we send her out the door at 38 weeks saying, "The chance of you coming back with a stillbirth is two per 10,000?" Well, no, we don't. We don't.

Although you should did you not say earlier?---Well, I think these are discussions that the community needs to have and the community needs to be having about the required surveillance, how long we let pregnancies go, appropriate caesarean section rate and so forth but, you know.

Could I ask you to assume these things? Firstly, in relation to [KS], the patient here involved. Firstly, you are aware of her age. She was 38 years old?---38, yes.

You were aware that this baby was a result of her fourth IVF cycle and there had been three previous failed cycles?---Mm'hm.

You are aware of that?---Yes.

You are aware, as you have already said, that there had been a miscarriage in one of the earlier cycles. You were aware that there was a vanishing twin involved in this pregnancy?---Yes.

Could you add into that that her strongly expressed wish to her treating doctor obstetrician was that the baby be delivered at term and no later and for what it's worth, that wish was based firstly on some professional experience she had, I gather, as a student or as an intern but also because, to use her words, that's when mothers in Venezuela had their children. They don't go over term. In those circumstances, does it not behove the doctor to say - well, at least to recommend against earlier induction but to at least consider her wishes?---I think, of course the patient's wishes are paramount and a request for delivery by a certain method or by a certain date has to be, would be responded to, and should be responded to and should be listened to, and would provoke a somewhat lengthy discussion about the pros and cons of the various lines of action and alternative pathways of care.

There is no contraindication that you're aware of here of delivery at term?---Well, there's - the contraindication to delivery at term, could I ask for some clarification as what's being meant. It's not a - delivery at term would be an intervention, so delivery at term, a delivery at 40 weeks, an induction of labour, perhaps, well, if the cervix is unfavourable or the head is high, or if the induction is not feasible, then induction is contraindicated.

There's no indication of that here, with this lady?---I'm not aware that it was ascertained as to the favourability of the cervix, so I can't answer that question, but it would be a possibility that the vaginal examination at 40 weeks showed that induction of labour was not an option, it could not be performed, and if that's the case, then there's caesarean section, and so then there's a discussion about the pros and cons and risks, advantages and disadvantages of delivery by caesarean section. Is there a contraindication to caesarean section? No, I'm not aware of there being any absolute indication for caesarean section, no.

Any absolute contraindication?---Contraindication, yes.

What I'm suggesting to you, if there was a contraindication, then when the patient is requesting induction at 40 weeks, then one would expect the doctor would have told her, wouldn't he?---Well, within the discussion that follows would include the risks and benefits of the caesarean section and the alternative options available, and alternative surveillance and so forth that could be instituted.

Your course, and please don't regard this as being criticism, you are aware of the guidelines for the consent and the provision of information regarding proposed treatment published by the college?---Yes.

And it has been discussed with you, I assume, this morning?---No, the consent for

I'm sorry. Could I hand up a copy of exhibit 15?---Thank you. I'm familiar with the statement, yes.

It is, I think it's self-evident, it's a guideline published for the assistance of doctors that apply to issues of patient consent and the duty to inform?---That's right.

An obstetrician, you will see that that's in March 2010, at the top righthand corner, an obstetrician practising in Australia in 2011 would no doubt be aware of those guidelines, or should be. Is that correct?---Yes.

Would you not agree that they should govern the relationship that should be a part of the governance of the relationship between the doctor and the patient? ---Well, very much so, yes, and very much a part of, yes.

I understand that. As is made clear on page 2, when discussing or considering whether there was a need to inform a patient of a particular risk, there are two considerations, namely they put a reasonable position in the position of the patient, they are likely to attach significance to the risk, and usually a doctor is aware, or should he be reasonably aware that this particular patient would be likely to attach significance to that risk. You're aware of that?---I am, yes. I mean, I'm happy to - I would, your Honour like to elaborate some more.

I'm not trying to stop you, doctor?---The document herein concerning consent is referring to consent for procedures, consent for caesarean section, consent for surgical procedures. As of today, in fact, it's not a document that would be related to consent for proceeding with a pregnancy or, indeed, a consent for vaginal birth; so I'm not - just to make that point, that it's a consent, it pertains to the issue of consent for procedures or interventions as they might be performed, it's not a consent for the absence of those procedures.

But it does - putting that aside for that moment, it succinctly states the factors that should be taken into account when one is informing the plaintiff of risks, does it not?---It does.

Just in relation to your point about being procedures, induction of labour is a procedure. Is that right?---Induction of labour is a procedure.

As is, obviously, a caesarean section?---Indeed.

What I'm suggesting to you is that an obstetrician, conscious of these guidelines, even if the guideline is restricted to consent to procedures, would take heed of those two paragraphs involved on page 2 when considering what he should tell his patient about, for instance, waiting beyond 40 weeks? ---Look, it's more than an interesting point you raise. It is an issue that challenges the profession somewhat is the issue of consent for proceeding with a pregnancy, consent for continuing to allow a vaginal birth to occur, to continue to wait for a vaginal birth, and it's not - as of here and now, we do not obtain consent, or require consent, for the absence of interventions to allow a pregnancy to continue. There are numerous other obligations on the clinician, clearly, but we do not require a clinician to obtain consent from a patient to proceed with a pregnancy or to await the onset of labour.

I'm not talking about consent, doctor, I'm talking about informing the patient of risks?---Sure.

You understand that?---Indeed. Indeed, and such an obligation on a clinician does not require this document for clarity. This is specifically a consent document that issue, or course.

What I was putting to you, doctor, is that when even considering whether one should explain risk to a patient, not risk of a procedure, but risk, for instance, of allowing the pregnancy to extend beyond 40 weeks, the two highlighted passages on page 2 would provide guidance. In other words, consider whether a reasonable person in the position of a patient be likely to attach significance to it, and is the doctor, or should he be aware that the particular patient would be likely to attach significance to it. They would be very useful guidelines to considering just how much information you should give the patient as to risk, which I think you'll agree is fundamental?---Indeed, indeed. As of now the profession would not - we wouldn't consider awaiting the onset of birth. A treatment - and it's treatments to which this document applies. I quite agree with you that all other aspects of care, of risk, or safety in pregnancy must be discussed of course.

So we're agreed about that. You must discuss the risks?---Well, of course. Indeed.

And you must then take into account your patient's wishes. Is that correct?

---Indeed.

Yes, thank you, your Honour.

248. On behalf of Dr Foote, both the first and second plaintiffs were examined by a psychiatrist, Dr Saboisky. With regard to the first plaintiff he produced 3 reports dated 29 April 2015, 19 August 2015 and 26 September 2017 respectively.

249. In his first report concerning the first plaintiff, Dr Saboisky noted the history and then current circumstances of the first plaintiff. These do not differ materially from the evidence given by the first plaintiff in these proceedings, or histories given to other medical experts. In common with Professor McFarlane, Dr Saboisky diagnosed the first plaintiff as suffering from post-traumatic stress disorder and major depressive disorder as a consequence of the events of 13 January 2011. He noted that the first plaintiff had suffered an adjustment disorder as a consequence of problems in her workplace, which led to a Comcare claim with respect to two weeks off work. He considered it reasonable for the first plaintiff to have ongoing psychological treatment for another 10 sessions as she still had unresolved issues in relation to loss of A, and the medicolegal process in itself was adding additional stress to her. He considered the first plaintiff's prognosis to be positive as she had shown a good response to medication and psychological treatment. He could see no psychological reason for her economic capacity to be impaired by her psychological injury. He did not consider her to be currently restricted in her employment.

250. Dr Saboisky's second report is in response to a request by Dr Foote's lawyers that he examine medical records produced by third parties. None of that material caused him to change his opinions.

251. Dr Saboisky's third report, dated 26 September 2017, was provided after he psychiatrically reevaluated the first plaintiff on 19 September 2017. The additional history which she provided to Dr Saboisky is consistent with her evidence and with the histories provided to other medical experts. In his opinion, the first plaintiff did not appear to have a major psychological problem when he saw her on this occasion. He did not believe that she currently had sufficient symptoms to warrant a diagnosis of post-traumatic stress disorder, but she did have some residual major depression which would probably improve with an adequate antidepressant dose. He noted that the first plaintiff was not receiving any psychological treatment, and he did not think she needed any. His prognosis was guardedly optimistic provided she had an adequate dose of antidepressant. Given her history, he considered it was appropriate for the first plaintiff to stay on antidepressants for several years. There was no current reason why she could not work full time. Dr Saboisky agreed with Professor McFarlane's opinion that the first plaintiff's capacity to cope with difficulties in her workplace was diminished to a degree because of the chronic major depression and post-traumatic stress disorder that she had developed as a consequence of the loss of A. Dr Saboisky considered it highly speculative to attribute the first plaintiff's failure to have her medical qualifications recognised in Australia to the death of A, stating "[t]here are multiple other reasons why this has not happened". Amongst those other reasons, Dr Saboisky apparently included a suggestion that her child, OT, had "severe behavioural problems".

252. Dr Saboisky prepared two reports with regard to the second plaintiff, dated 31 March 2015 and 20 August 2015 respectively. The history of the second plaintiff and his circumstances as set out in the first report are consistent with the evidence given by the second plaintiff in these proceedings. Dr Saboisky saw the second plaintiff for the preparation of the report on 24 March 2015. It was his opinion that the second plaintiff did not appear to have a disability at the time he examined him. The second plaintiff was successfully working full time, although he did report some psychological symptoms consistent with mild depressive reaction. His diagnosis was that the second plaintiff had a chronic adjustment disorder with mixed emotional features, depression and anger. He believed that these symptoms were caused by the death of A. Dr Saboisky believed that the second plaintiff would have features of pathological mourning for some considerable period of time which he did not believe would cause any occupational impairment, but he did note that there had been strains on the second plaintiff's relationship with the first plaintiff. He believed that it would be in the second plaintiff's interest to have some psychological treatment, which may include taking an antidepressant.

253. Dr Saboisky's second report, dated 20 August 2015, is very brief. He was asked to comment upon documents produced by third parties. He stated that his opinion remained unaltered.

254. Dr Saboisky also gave oral evidence, and was subject to cross-examination. He was told that the first plaintiff had given evidence in these proceedings that she had increased her dose of antidepressant from 15 mg to 30 mg. He expressed the opinion that the first plaintiff was subject to a number of ongoing stressors in her life, including her dissatisfaction with her employment, problems with her son OT, and difficulty coping with the second plaintiff being frequently absent due to the requirements of his employment. He remained guardedly optimistic as to her prognosis.

255. With regard to the second plaintiff, Dr Saboisky was told that the second plaintiff had given evidence that he had taken a prescribed antidepressant for "a few weeks", but did not feel any better. Dr Saboisky stated that an adequate trial of an antidepressant takes about six weeks, and that most antidepressants work only on 50 per cent of people in any event.

256. In cross-examination by counsel for the plaintiffs, Dr Saboisky said that he was aware that the second plaintiff worked for the AFP, and that if he were to undertake any form of psychotherapy, including taking antidepressants, it could lead to him being removed from operational duties. He said that, for this reason, it was common for members of the AFP to decline to take antidepressants. Dr Saboisky said that when he saw the first plaintiff on the second occasion he did not believe she was clinically depressed. A lot of the symptoms which she complained of during the course of these proceedings, such as poor concentration, poor memory, sadness, sexual dysfunction or sexual disinterest are, Dr Saboisky accepted, symptoms of depression. But, in his opinion, she didn't look clinically depressed and did not enumerate to him at the time sufficient symptoms to warrant a diagnosis of either post-traumatic stress disorder or major depression. He accepted that she may have continuing symptoms, and that if her evidence was to be believed, her capacity to deal with other factors in her life had been significantly diminished as a result of A's death. Dr Saboisky accepted that, statistically, it was probable that the first plaintiff would suffer from depression again at some point in her life. Dr Saboisky reiterated his view that the fact that the first plaintiff had not had her medical qualifications recognised in Australia was not "entirely" as a result of suffering post-traumatic stress disorder.

257. With regard to the second plaintiff, Dr Saboisky accepted that many people self medicate with alcohol. He agreed that the first plaintiff's symptoms were temporally connected to the death of A. When he saw the first plaintiff, he diagnosed him as having an adjustment disorder. He suffered a number of symptoms consistent with major depression, but not at such a level as to justify a diagnosis of major depression.

258. Although the hospital effectively conceded liability during submissions, it is still appropriate to record my findings regarding its liability. It is very clear that Ms Horsham misread the CTG readout from about 4:51 pm onwards, and failed to recognise the significance of the CTG trace for foetal viability. I accept the evidence of Associate Professor Bryce as set out at [183]-[185] above, and the evidence of Professor Colditz as set out at [188] above. As such, I am satisfied that a competent midwife would have recognised the signs of foetal distress by 5 pm on 13 January 2011 at the latest, and would have immediately contacted Dr Foote and requested that he attend urgently. The failure of Ms Horsham to properly interpret the CTG trace, to heed the significance of the trace for foetal viability, and to notify Dr Foote of the abnormal and pathological nature of the trace constituted a breach of the duty of care that was owed to the plaintiffs.

259. The breaches which I have found established against the hospital correspond to pleaded grounds of negligence (a), (b), (e) and (f) set out at [5] above. For the sake of completeness, I am not satisfied that the other pleaded grounds of negligence against the hospital have been established.

260. I am satisfied that the breaches of the hospital's duty to the plaintiffs were an operative cause of A being stillborn, and as such were also an operative cause of the injuries sustained by the plaintiffs. Had Ms Horsham recognised the risk to A revealed by the CTG trace, and the urgency of the need to address that risk at or shortly after 5 pm on 13 January 2011 it is probable that a Caesarean section would have been performed, either by Dr Foote or some other practitioner, at or before 6 pm that day. It is probable that in that case A would have been born alive, and the plaintiffs would not have sustained the injuries which they ultimately did.

261. The plaintiffs' case against Dr Foote may be divided into two parts: alleged antenatal breaches of duty occurring before 13 January 2011 and alleged breaches of duty occurring on 13 January 2011.

262. On 9 October 2017, the fifth day of the hearing of these proceedings, counsel for Dr Foote was granted leave to file a Second Further Amended Defence in each of the proceedings by the Plaintiffs. These defences admitted breaches of duty of care by Dr Foote in relation to failing to advise staff of the hospital that a Caesarean section was required within 30 minutes, failing to advise staff of the hospital that a theatre was required to do that procedure within 30 minutes and failing to do the procedure within 30 minutes. Causation remained in issue, and Dr Foote continued to deny any breach of duty prior to 13 January 2011.

263. With regard to the plaintiffs' case alleging breaches of duty before 13 January 2011, the plaintiffs' case was that Dr Foote:

(f) failed to recognise the first plaintiff's higher risk of stillbirth; and/or

(g) failed to properly or adequately advise the first plaintiff of the proper timing of induction of labour.

264. The case presented by the plaintiffs was that Dr Foote was under a duty to properly advise the plaintiffs, and particularly the first plaintiff, concerning risks to the first plaintiff and her unborn child arising out of the circumstances of the pregnancy. It is alleged that one such risk was the increased risk of stillbirth due to the age of the first plaintiff and the fact that it was an IVF/ISCI pregnancy. Dr Foote relied upon the evidence of Dr Rasmussen to submit that a competent obstetrician in Australia in January 2011 would not have been expected to offer or recommend induction of labour prior to 13 January 2011. As such, he submitted, there had been no breach of duty in failing to offer or recommend an induction of labour prior to 13 January 2011.

265. This submission by Dr Foote effectively asserts that the standard of care which he was obliged to provide to the plaintiffs regarding advice as to the risks involved in the first plaintiff's pregnancy is to be determined by a standard set by the medical profession in Australia. This may well be the case in New South Wales by virtue of s 5O of the Civil Liability Act 2002 (NSW), but there is no equivalent provision in the Civil Law (Wrongs) Act. The suggestion that, at common law, the practice of medical practitioners within a particular geographical area determines the extent of the duty of a competent medical practitioner within that area to warn of risks associated with procedures is inconsistent with the decision of the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. In that case the appellant, an ophthalmologist, argued that his failure to warn the respondent of a risk inherent in a particular procedure did not give rise to liability if that failure was in accordance with a practice accepted at that time as proper by a responsible body of medical opinion, citing Bolam v Friern Hospital Management Committee (1957) 1 WLR 582; [1957] 2 All ER 118 and subsequent cases. The plurality in the High Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) in rejecting that proposition said, at 487:

In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".

(Footnotes omitted)

266. I take the appropriate test to be that which is set out by the plurality at 490:

The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

267. The application of these principles to the present case leads me to unhesitatingly conclude that Dr Foote had a duty to warn the first plaintiff of the increased risk of stillbirth resulting from her age, the method of conception, and the fact that this was her first pregnancy, during the period that she was under his care. I accept the evidence given by Dr Edozien regarding the increased risk of stillbirth confronting the first plaintiff as a consequence of the circumstances of her pregnancy. I also accept the evidence of Dr Edozien that the risk of stillbirth increased substantially after 38 weeks gestation. Based upon the evidence of both the first and second plaintiffs I am satisfied that the first plaintiff made clear to Dr Foote that she did not want the pregnancy to extend beyond 40 weeks, because this was consistent with her experience and training in Venezuela. I am also satisfied that Dr Foote was aware of the difficulty that the first plaintiff experienced in becoming pregnant, and the need for IVF/ICSI treatment to achieve pregnancy. He was also aware that she had previously suffered a miscarriage and that one of the twins with which she was initially pregnant had also died in utero. I am left in no doubt that Dr Foote should, at the very least, have been aware that the first plaintiff, if warned of the increased risk of stillbirth, was likely to attach significance to it because of her history. Dr Foote explained to the plaintiffs that he would not be available on 6 January 2011, the estimated date of the first plaintiff's confinement, but he did not offer to make arrangements for another medical practitioner to perform an induction on or about that day. Dr Foote breached his duty of care to the first plaintiff by failing to advise her of the risk of stillbirth. It follows that he also breached his duty by failing to properly advise her in such a way that she could make a proper and informed decision about the timing of an induction. I have no doubt that if Dr Foote had informed the first plaintiff of the increased risk of stillbirth to which I have referred, and had offered to arrange another medical practitioner to perform an induction on or about 6 January 2011, the first plaintiff would have accepted that offer, in which case it is probable that A would have been born alive and the plaintiffs would not have sustained the injuries which they did. Whilst I have focused on the duties owed by Dr Foote to the first plaintiff, there can be no doubt that he owed corresponding duties to the second plaintiff, which he also breached.

268. I accept that the plaintiffs believed that Dr Foote was to perform an induction when the first plaintiff saw him on 11 January 2011. I accept the evidence of the first plaintiff that she made it known to Dr Foote when she saw him in his rooms on that day that she wanted to have an induction performed that day. I accept that Dr Foote made enquiries at the Calvary Private Hospital, and informed the first plaintiff that there were no beds available that day. It was, in my opinion, incumbent upon Dr Foote as part of the duty that he owed to the first plaintiff to provide her with the option of having the induction done immediately in the public hospital system (if that procedure was not available in the private hospital) or to perform, or arrange for another medical practitioner to perform, the procedure as soon as possible after 11 January 2011. Based upon the evidence given by the plaintiffs, and in particular the first plaintiff, it is probable that the first plaintiff would have accepted the offer of having the procedure performed at the earliest possible time, in which case it is probable that A would have been born alive and the plaintiffs would not have sustained the injuries which they did. I am therefore satisfied that the breaches of Dr Foote's duties to the plaintiffs which I identified in the previous paragraph continued from 6 January 2011 until 13 January 2011.

269. For these reasons, I am satisfied that Dr Foote is liable to the plaintiffs with regard to the alleged breaches of duty prior to 13 January 2011. I will, nevertheless, consider the breaches alleged on 13 January 2011.

270. There is common assent to the proposition that the CTG trace revealed foetal distress caused by hypoxia from at least 5 pm on 13 January 2011. There is also common assent to the proposition that an urgent Caesarean section was required. Whether the appropriate guidelines were those promulgated by the RANZCOG or those of the hospital itself, it is clear that the applicable guideline called for the Caesarean section to be performed within 30 minutes, as the CTG trace revealed a danger to the life of A. The guidelines providing that such a procedure is to be carried out within 30 minutes is not permissive; it does not permit the obstetrician to undertake the procedure at their leisure, so long as it is undertaken within 30 minutes. The purpose of the guideline is to stress the urgency of the procedure, and to provide an outer limit to acceptable practice in hospitals such as Calvary Private Hospital. I have no difficulty in finding that the duty owed by Dr Foote to the first plaintiff was to carry out an urgent Caesarean section at the earliest possible time after he became aware of the necessity for such a procedure.

271. Dr Foote submitted, based upon the clinical notes prepared by Ms Horsham (see [241] above), that I should find that he was not aware of the CTG trace prior to 6 pm on 13 January 2011. The plaintiffs, on the other hand, say that the evidence points towards Dr Foote having seen the CTG trace some time prior to 6 pm. In that regard, the evidence of the first plaintiff, which was supported by that of Ms Horsham, was that Dr Foote attended and examined her, having received a request from Mr Horsham to do so, while she, that is the first plaintiff, was still attached to the CTG machine which continued to monitor foetal heart rate. The CTG trace shows that the monitor was disconnected at 5:58 pm. While the evidence of Ms Horsham was that she made these entries at about the time of Dr Foote's attendance on the first plaintiff, she could not be certain precisely when she made the entries. In addition, there is no evidence as to how she ascertained that the time was 6 pm. In my opinion, the readout from the CTG machine is likely to give a reliable record of the time that the machine was connected to the first plaintiff. I am therefore satisfied that the plaintiff remained connected to the CTG machine until 5:58 pm. I also accept the evidence given by both the plaintiff and Ms Horsham that Dr Foote attended on the first plaintiff while the CTG machine was still connected to her and was operating. I am therefore satisfied that Dr Foote was aware of the CTG trace prior to 5:58 pm on 13 January 2011. A competent obstetrician would have recognised that the CTG trace was abnormal and pathological, and called for an urgent Caesarean section in order to prevent injury to the fetus or death. A competent obstetrician would have given directions to the staff of the hospital to ensure that such a procedure was carried out without delay, particularly when it would have been clear from the CTG trace that foetal distress had been ongoing for some time. This was not a case where an obstetrician is made aware of the need for an urgent Caesarean section at the time when that need first becomes apparent. If Dr Foote had paid proper attention to the CTG trace he would have observed that the need for an urgent Caesarean section had arisen nearly an hour earlier. It was incumbent upon Dr Foote to either perform an urgent Caesarean section on the first plaintiff as soon as possible after he became aware of the CTG trace, or to arrange for another medical practitioner to do so. His failure to arrange for such an urgent procedure, and participation in other, non-urgent procedures prior to conducting the Caesarean section on the first plaintiff at approximately 7 pm constituted a very serious departure from the duty that he owed the first plaintiff.

272. Dr Foote submitted that the RANZCOG Guidelines provided a period of 30 minutes for the carrying out of a Category 1 Caesarean section as the DDI (decision to delivery interval), and that this fixed the content of his duty of care. It was a corollary of his submission that an obstetrician could not be found to have breached his or her duty of care to a patient if such a procedure were carried out within this a 30 minute period. This submission misstates the content of the relevant RANZCOG Guideline. The relevant Guideline recommended and endorsed a four grade classification system for emergency Caesarean sections, of which we are concerned with Category 1, where there is an urgent threat to the life or health of a person or fetus. It is the specific recommendation of the RANZCOG, expressed in the Guideline, that there be no specific time interval attached to the various categories, and that each case should be managed according to the clinical evidence of urgency. In the present case, the evidence establishes that there was no urgency on the part of Dr Foote or the hospital staff in undertaking the Caesarean section after the decision to undertake that procedure was made by Dr Foote.

273. I am satisfied that Dr Foote breached his duty of care to the first plaintiff on 13 January 2011 by:

(a) failing to properly or adequately interpret the CTG;

(b) failing to heed the significance of the CTG;

(c) failing to organise and/or carry out an urgent Caesarean section on the first plaintiff;

(d) failing to arrange or undertake an urgent Caesarean section on the first plaintiff within 30 minutes of the decision to undertake that procedure;

(e) failing to ensure that the first plaintiff was prepared for an urgent Caesarean section within a reasonable time after 6 pm;

(f) failing to advise staff of the hospital that a Caesarean section was required within 30 minutes; and

(g) failing to advise staff of the hospital that a theatre was required to perform that procedure within 30 minutes.

274. The reason that Dr Foote sought to fix the content of his duty of care in the current proceedings as completion of the Caesarean section within 30 minutes from the time of deciding to undertake the procedure is that he submitted that the evidence does not permit a finding that A was alive after 6:27 pm, which is within the 30 minute period (he submitted) after he decided to undertake the procedure. In essence, his submission was that the plaintiff had not established that any breach of his duty of care caused the injuries which they sustained. This submission was of course based upon the proposition that the decision to undertake the Caesarean section was made not before 6 pm. For the reasons which I have given, I am satisfied that the decision was made before 6 pm, and indeed before 5:58 pm. The submission was expressed to be based upon the evidence of Dr Colditz, but does not accurately reflect his evidence. Dr Colditz expressed the opinion that, on the balance of probabilities, if A's delivery had taken place "at approximately 18:27 hours" she would have been born alive. It is not correct to say that the evidence of Dr Colditz fixed the outer limit of the time when A would probably have been born alive if delivered by Caesarean section at 6:27 pm.

275. The three minute window which Dr Foote sought to rely upon to avoid liability is illusory. Dr Colditz did not purport to set a hard and fast cut-off for A to have been born alive at 6:27 pm. More importantly, Dr Foote's liability for damages based on his actions on 13 January 2011 does not hinge upon a failure to meet a DDI of 30 minutes. The tenor of the evidence of Dr Colditz and Dr Edozien was that a competent obstetrician would have, in the circumstances that existed on 13 January 2011, undertaken the Category 1 Caesarean section as quickly as possible. Of course, in deciding how quickly that could be done, it is necessary to consider whether there were any impediments such as the lack of access to a theatre or a lack of staff. There is no suggestion that there were any such issues in the present case. The evidence of Mr Unicomb, which was unchallenged, was that there were theatres and staff available to undertake an urgent Caesarean section at about 6 pm on 13 January 2011. There was no suggestion that the on-call anaesthetist was not available, or that an anaesthetic registrar could not have been called upon. In addition, the evidence of Dr Edozien was that DDIs of much less than 30 minutes were routinely achieved in hospitals in Australia with respect to Category 1 procedures. There is no evidence that this was not a reasonably achievable outcome in the present case if Dr Foote had properly recognised that the CTG trace revealed a medical emergency. The evidence of Mr Unicomb also supported the proposition that urgent Caesarean sections were routinely performed in the hospital within less than the 30 minute period referred to in the Guideline.

276. Based upon all of the evidence, I am satisfied that if Dr Foote had recognised the significance of the CTG trace and had arranged and/or conducted the Caesarean section in accordance with his duty to the first plaintiff, it is probable that A would have been born alive and the plaintiffs would not have sustained the injuries which they did.

277. I have, again, focused upon Dr Foote's duty to the first plaintiff in the above, but I am also satisfied that Dr Foote had corresponding duties to the second plaintiff. For the reasons that I have given, I am also satisfied that Dr Foote breached his duty of care to the second plaintiff, and that his breach was causative of the injuries sustained by the second plaintiff.

278. I have no hesitation in accepting the evidence of the first plaintiff. I am satisfied that as a result of the stillbirth of A, the plaintiff suffered from post-traumatic stress disorder and major depression. There was a disagreement between Professor McFarlane and Dr Saboisky about whether the first plaintiff's post-traumatic stress disorder had abated by September 2017 when Dr Saboisky last reviewed the first plaintiff, but I prefer the evidence of Professor McFarlane because it is more consistent with what I accept to be the truthful evidence given by the plaintiff about her continuing symptoms, and the continuity of her symptoms from 13 January 2011 until trial.

279. I will not here repeat the history of the first plaintiff's symptoms from 13 January 2011 until trial; they are set out in full in the summary of her evidence earlier in these reasons. I am satisfied that her ongoing symptoms of post-traumatic stress disorder and major depression have had a profound effect on her ability to enjoy her life; it has pervaded all aspects of her life including her work and her family relationships. It has changed her from a happy person who enjoyed her work, had plans for the future and was happily married into a sad, depressed and angry person who has lost much of the enjoyment of her life, work and relationships.

280. Probably the most contentious issue concerning the assessment of damages for the first plaintiff is her claim for economic loss based upon a claim that but for the negligence of the defendants she would have qualified as a medical practitioner in Australia, and worked in that capacity until retirement age. The defendants submitted that any such claim was speculative, and no allowance should be made for any economic loss.

281. I accept that the first plaintiff will be able to engage in her current employment for the foreseeable future. This is essentially the same employment that she undertook prior to 13 January 2011. From that perspective she has suffered no loss. I accept, however, that it was the first plaintiff's continuing intention as at 13 January 2011 to have her qualifications recognised in Australia and to practice as a medical practitioner. There were not insignificant hurdles that the first plaintiff had to cross in order to achieve her goal. Having determined that she was not prepared to undertake the further lengthy period of study required to have her specialist qualifications recognised, the first plaintiff planned to practice as a general practitioner (GP). To achieve this goal she had to pass the IELTS English language proficiency test, to pass a medical knowledge test and to find a GP who was prepared to mentor her for 12 months. It cannot be said that absolute certainty attended any of those contingencies.

282. The first plaintiff expressed her claim as one based upon the decision of the High Court in Malec v J.C. Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638 (Malec). In Malec, when considering the correct approach to assessment of damages for future or potential events, the plurality (Deane, Gaudron and McHugh JJ) said at 642-643:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take the chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallet v McMonagle; Davies v Taylor; McIntosh v Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

(Footnotes omitted)

283. There is evidence that the first plaintiff's condition has improved in relatively recent times due to a change in her medication, but I am satisfied that she continues to suffer cognitive impairments, such as difficulty concentrating, such that she is unlikely to be able to cope with the requirements for having her medical qualifications recognised in this country. This is unlikely to change, particularly as the longer the delay in her being able to undertake the process, the harder it will become. I accept that Dr Saboisky was of the opinion that other life stressors may have been the cause of the first plaintiff's failure to progress her plan to have her qualifications recognised, but I prefer the opinions proffered by Professor McFarlane. Dr Saboisky had a partially incorrect history, in that he believed that the plaintiff's child OT had "severe behavioural problems". This is not correct. In addition, I am satisfied that the first plaintiff's post-traumatic stress disorder and major depression which developed as a consequence of the events of 13 January 2011 reduced her ability to cope with other stressors in her life, such as the problems which she encountered at work in 2012-2013. The evidence of the plaintiffs, and of the first plaintiff's brother, convinces me that prior to 13 January 2011 the first plaintiff was a person who regularly had to cope with stress in her life, and coped well. Since 13 January 2011 she has not been able to cope as well with stressors in her life due to her post-traumatic stress disorder and her depression. This resulted in a temporary aggravation of her symptoms in 2012-2013 due to problems in her workplace, and difficulty coping with further IVF treatment, her pregnancy and the birth of OT, but her continuing disabilities are referable to the events of 13 January 2011.

284. The first plaintiff's claim for damages for economic loss is based upon an event that may have occurred but for the negligence of the defendant. This event was contingent upon three other, separate events occurring: passing the English proficiency test, passing the medical knowledge test and finding a mentor. It is true that the first plaintiff unsuccessfully attempted the English proficiency test in September 2008, January 2009 and December 2010. In each case she came close to passing. With regard to her third attempt, in December 2010, the first plaintiff's performance must be assessed in the light of the fact that she was heavily pregnant with A at the time, and had been through a difficult period of IVF treatment, had suffered a miscarriage and had experienced the in utero death of A's twin.

285. Despite this history, I am satisfied that the first plaintiff had excellent prospects of passing the English proficiency test in the period of three years after January 2011 but for the negligence of the defendants. The first plaintiff is clearly a very intelligent person, and one who had demonstrated an ability to achieve a level of facility in the English language relatively quickly. She had also demonstrated determination to achieve her goals. I have allowed a period of three years from January 2011 because had A been born alive there would probably have been a period during which the first plaintiff's focus would have been on the responsibilities of being a new mother. In my opinion there was at least an 80 per cent chance of the first plaintiff successfully completing the English proficiency course within that three year period.

286. The second contingency involved the first plaintiff successfully passing a medical knowledge test. The first plaintiff was not challenged on the extent of her basic medical knowledge. She gave evidence that she had obtained past copies of the test, and as such she was aware of the level of knowledge that she would be required to demonstrate. In my opinion the first plaintiff's prospects for passing that test within six months of passing the English proficiency test should be assessed at 90 per cent.

287. The third contingency, the necessity to identify another GP who would have been prepared to mentor and supervise the first plaintiff for 12 months, presents the greatest difficulty. No evidence was called addressing this issue. It is notorious that there is a shortage of GPs in Australia, at least in some areas, and a GP proficient in both English and Spanish may well be an attractive proposition for a prospective employer, but the supervision period would still involve the supervisor in inconvenience and possibly expense. Doing the best I can, I would not estimate the first plaintiff's prosects of identifying a supervisor at greater than 70 per cent.

288. I readily acknowledge that the percentage figures I have given for each of these contingencies are not based on any science. They are matters of impression formed from a consideration of the evidence, but I set them out in order to attempt to provide some transparency to the process of arriving at the final figure representing the risk that the first plaintiff would suffer the claimed loss. Combining the probabilities of these three events occurring leads to an overall probability of all three occurring of 50.4 per cent. I will round this down to 50 percent in recognition of the uncertainty surrounding the first plaintiff's ability to obtain a supervisor.

289. The first plaintiff submitted that but for the defendants' negligence she would have commenced practice as a GP "under supervision" on 1 January 2012. In my opinion this is too optimistic. A more realistic date would have been 1 January 2015. It is probable that she would initially have been employed at less than the average weekly earnings of a female GP, but the use of average figures over her potential working life addresses this likelihood as well as the possibility that she may have earned more than the average later in her career.

290. The first plaintiff provided 2 sources of evidence concerning her likely past earnings as a GP. The first was average weekly earnings of non-managerial adult female generalist medical practitioners as at May 2012 as provided by the Australian Bureau of Statistics (ABS), and increased annually in line with increases in average full-time adult female earnings from that date. The second was based upon information obtained from GP recruitment agencies. In my opinion, the former figures are likely to be more reliable. Recruitment agency figures may be heavily influenced by the utilisation of such agencies to identify candidates for employment in areas where it is difficult to attract candidates, and where it may be necessary to pay a premium to obtain suitable candidates. In addition, the ABS figures are likely to cover a broader range of GPs.

291. I have set out below the actual earnings of the first plaintiff from 1 January 2015 to the date of trial, and her projected earnings if she had practised as a GP during that period:

292. Before reduction to allow for the likelihood that the first plaintiff would have suffered the suggested loss, I calculate the past economic loss as follows:

(a) From 1 January 2015 to 30 June 2015 (26 weeks)

(d) From 1 July 2017 to 7 October 2017 (14 weeks)

293. This equates to a potential loss of $158,767.00. Reducing this by 50 per cent to reflect the risk that the first plaintiff would have suffered this loss leads to an award for past economic loss in the sum of $79,383.50.

294. The first plaintiff is entitled to interest on this sum at 3.5 per cent for 2.25 years, being $6251.45.

295. Based on the ABS figures, the difference between the plaintiff's current earnings and her potential earnings as a GP is $867.00 net per week. Counsel for the first plaintiff submitted that any potential loss of earning capacity be calculated on the basis that she would have worked to age 70, but there was no evidence from the first plaintiff that prior to sustaining her injuries she intended working to that age, as a GP or otherwise. In my opinion potential loss of earnings should be calculated to age 65. Assessing the loss at $867 per week for 20 years using 3 per cent tables (787.9) gives a loss of $683,109.00. I reduce this by 50 per cent to reflect the risk that the first plaintiff would suffer the loss, leaving a sum of $341,554.50. I will then reduce this by 15 per cent to allow for normal vicissitudes, leaving a sum of $290,321.30.

(a) Past - $79,383.50 x at 11% = $8732.00

(b) Future - $290,321.30 at 11% = $31,935.30

297. Past out of pocket expenses were agreed (on the basis that the plaintiff was successful on her argument that induction of labour ought to have occurred prior to 13 January 2011) in the sum of $2117.05.

298. Future out of pocket expenses in the sum of $11,504 were claimed, consisting of:

(c) Four GP visits per annum for 10 years at $100 per visit $3,474.00

(d) Psychiatrist - 12 sessions at $330 per session $3,960.00

(e) Antidepressant medication at $40 per month $4,170.00

299. I assess general damages at $230,000, of which half is attributable to the past. The first plaintiff is entitled to interest on the past component equalling $15,525.

300. I therefore assess damages for the first plaintiff as follows:

301. I also have no hesitation in accepting the evidence of the second plaintiff. To the extent that there is disagreement between the opinions expressed by Professor McFarlane and Dr Saboisky concerning the nature of the condition suffered by the second plaintiff, its continuing effect upon him and the need for treatment, I prefer the opinion of Professor McFarlane. His opinions are more consistent with what I accept to be the honest evidence given by the second plaintiff.

302. I am satisfied that as a consequence of the events of 13 January 2011 the second plaintiff suffered from, and continues to suffer from, major depression of mild to moderate severity. This has adversely affected his relationship with the first plaintiff and, to a degree, with their son, OT. It has also significantly reduced his enjoyment of life. It has not precluded him from working, but it has made work more difficult and reduced his work satisfaction.

303. It is probable that antidepressant medication and appropriate therapy will improve the second plaintiff's symptoms. It has not been unreasonable on the part of the second plaintiff to not undertake this treatment to date because of the adverse effect that such treatment would have upon his current employment. The second plaintiff has always intended to retire from his current employment shortly before his 55th birthday, so as to take advantage of his current superannuation scheme, and to then work part-time in some capacity. Once he has retired, it is probable that he will achieve significant reduction in his symptoms through treatment. It is improbable, however, that the second plaintiff will be able to achieve his pre-injury goal of teaching flying. The second plaintiff submitted that a substantial "cushion" of $75,000 should be allowed for future economic loss, but in my opinion the evidence does not support such an approach. It is probable that the second plaintiff will be capable of working part-time in some capacity after he turns 55 should he wish to do so, but I accept that such employment may not be as enjoyable or satisfying as he had planned. This should be addressed in general damages.

304. I assess damages for the second plaintiff as follows:

(a) General damages $200,000.00

(b) Interest on past component of $150,000.00 at 2% per annum for 6.75 years $20,250.00

(c) Out of pocket expenses $123.00

305. The hospital served on Dr Foote Notices Claiming Contribution or Indemnity with regard to the claims by both plaintiffs (the Notices). The notices are effectively identical. The Notices provide:

4. In the event the Plaintiff establishes that the First Defendant is liable with respect to the Plaintiff's claim (which is denied), and that the Plaintiff has sustained injury, loss or damage (which is not admitted), the First Defendant says that the Second Defendant is liable in respect of the same injury, loss or damage as claimed by the Plaintiff as against the First Defendant.

Particulars of Negligence

(i) For the purpose of this Notice only, the First Defendant repeats the particulars of negligence as alleged against the Second Defendant, under the pleading "The Second Defendant....." in paragraph 2(a) to (q) of the ASOC.

(ii) Further, for the purposes of this Notice only, the First defendant says the Second defendant failed to:

• (a) answer the telephone call made by the midwife in the birthing suite at 1744hrs, either by physically answering the call or attending the ward within 10 minutes of the call;
• (b) categorise the Plaintiff as a category 1 patient, in accordance with RANZCOG guidelines; and record that categorisation within the Plaintiff's hospital notes, after reviewing the Plaintiff and determining a LSCS was required;
• (c) seek or request an Operating Theatre to be made available for use within 30 minutes of 1800hrs;
• (d) make himself available to perform the Plaintiff's LSCS between the time period of 1800hrs to 1830hrs;
• (e) remove himself as the assistance surgeon in surgery conducted at Calvary Public Hospital between 1812hrs and 1830hrs; or
• (f) seek assistance or organise another Obstetrician to be assistance surgeon in the surgery being conducted in Calvary Public Hospital between 1812hrs an 1830hrs;
• (g) perform the Plaintiff's LSCS at some time between 1800hrs and 1858hrs.

5. In the event the First Defendant is found liable to the Plaintiff, the First Defendant says that any injury, loss or damage sustained by the Plaintiff was caused or contributed to by the negligence of the First Defendant.

Relief Claimed

6. The First Defendant claims against the Second Defendant:

(i) Indemnity for any damages, interest and/or costs which may be awarded against the First Defendant in favour of the Plaintiff;

(ii) Contribution or indemnity pursuant to section 21 of the Civil Law (Wrongs) Act 2002 (ACT);

(iii) In the alternative, contribution as the Court thinks fit; and

(iv) Costs of defending the proceedings and of the contribution and/or indemnity proceedings.

306. Dr Foote also served Notices of Contribution or Indemnity on the hospital. These Notices were in general terms, although no issue has been taken in these proceedings with regard to their form:

1. For the purposes of this cross-claim the second defendant repeats the facts contained in the plaintiff's Amended Statement of Claim dated 29 July 2017.
2. The second defendant also relies upon his Amended Defence filed in these proceedings dated 9 February 2017.

(a) Contribution and/or indemnity for any damages, interest and costs which may be awarded against the second defendant in favour of the plaintiff.

(a) Relief claimedA declaration that the second defendant is entitled to be indemnified in full (or in the alternative in a proportionate manner) by the first defendant in respect of the damages, interest and costs which may be awarded against the second defendant in favour of the plaintiff pursuant to Section 21 of the Civil Law (Wrongs) Act 2002.

(b) Judgment for the second defendant against the first defendant:

• (i) in any amount that may be found due from the second defendant to the plaintiff; and
• (ii) for the amount of the second defendant's costs for defending the action brought by the plaintiff against him and of these contribution and indemnity proceedings.

(c) Further, or in the alternative, such contribution as this Honourable Court deems fit and appropriate.

Interest claimed

The second defendant claims interest from the first defendant in relation to the relief sought.

307. The apportionment of damages is the subject of s 21 of the Civil Law (Wrongs) Act 2002 (ACT):

(1) A person (the first person) who is liable for damage caused by a

wrong can recover contribution from someone else (a contributory)

(2) The contribution must be an amount that the court considers just and

equitable having regard to the extent of the contributory's

(3) However, the first person is not entitled to contribution under this

(a) the first person is liable to indemnify the contributory against

(b) the court exempts the contributory from liability to make

(c) the court has directed that contribution to be recovered from a

person for the damage is a complete indemnity for the damage.

308. The preconditions to the making of orders for contribution have been met, as each of the defendants are liable for the same damage suffered by the plaintiffs. The question is, simply, what is a just and equitable apportionment of the damage between the defendants? In my opinion, Dr Foote is significantly more culpable for the damage sustained by the plaintiffs than the hospital. Dr Foote had the first, and best, opportunity to avoid the damage by providing the first plaintiff with an appropriate warning of the risks associated with continuing the pregnancy past 6 January 2011. As I have said, I am satisfied that if he had done so it is probable that A would have been born alive and the plaintiffs would not have sustained their injuries. In addition, Dr Foote had the last chance to avoid this tragedy. Had he properly interpreted the CTG trace, recognised its significance for foetal viability and acted with appropriate haste to conduct, or arrange for, an emergency Caesarean section it is also probable that A would have been born alive.

309. The established negligence on the part of the hospital is also substantial.

310. I would apportion liability 70 per cent to Dr Foote and 30 per cent to the hospital.

311. In proceedings SC 6 of 2014 there will be judgment for the plaintiff (KS) in the sum of $669,518.15, of which the first defendant is liable for 30 per cent and the second defendant is liable for 70 per cent.

312. In proceedings SC 7 of 2014 there will be judgment for the plaintiff (XT) in the sum of $220,373.00 of which the first defendant is liable for 30 per cent and the second defendant is liable for 70 per cent.

313. The parties are to file and serve within 21 days of publication of these reasons written submissions on costs not exceeding 3 pages.

314. I have not made formal orders disposing of the Notices claiming contribution or indemnity, trusting that my decision as to the relative contributions by the defendants will be sufficient. If formal orders are sought, the parties are to agree upon the form of those orders and file them within 21 days.

I certify that the preceding three hundred and fourteen [314] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.