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[2002] NSWCA 249
respondent. Leave to appeal granted; appeal dismissed with costs.
No linked legislation citations have been extracted yet.
Maurice May argued that barrister Dupree had given an overly negative assessment of its former client’s possible medical-negligence claim, causing her to lose heart and not proceed before the limitation period expired. The Court of Appeal upheld the finding that Dupree was not negligent. Important expert questions had not been resolved, and the Court considered there was time for further investigation. The appeal was dismissed, with costs.
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This New South Wales Court of Appeal judgment concerned a professional-negligence cross-claim between a firm of solicitors, Maurice May & Co, and barrister James Dupree. The underlying client, Rita Weatherall, had alleged that doctors negligently managed anaesthesia during her caesarean section. Maurice May had acted for her in considering a damages claim against the doctors and had obtained advice from Dupree. Weatherall later sued Maurice May, and the firm brought a cross-claim against Dupree alleging that his advice had been negligent ([4], [6]).
Weatherall’s operation took place on 22 March 1991. Her allegation was that the epidural anaesthetic did not work adequately, she told the medical practitioners she was experiencing pain, and the operation continued until the baby had been delivered before a general anaesthetic was administered ([5]). The materials sent to Dupree included her account and supporting statements, correspondence from the hospital and doctors, hospital records, and later medical reports ([20]–[27], [29]–[35]).
Dupree’s first written advice, dated 13 September 1991, identified the need for further medical evidence. In April 1992 he reviewed reports from Dr Newlinds, Dr Crombie and psychiatrist Dr Strum. He noted that Newlinds did not claim to be an anaesthetist and had recommended an opinion from a specialist anaesthetist with relevant obstetric and epidural skills. Dupree also sought information about Crombie’s expertise ([28], [36]–[37], [43]–[46]).
A conference took place on 17 February 1993, attended by Weatherall, Dupree and a solicitor from Maurice May. The evidence about what was said was disputed. Weatherall said Dupree told her that she had no case and could not prove significant damage. The trial judge did not accept that evidence. A letter from Maurice May dated 5 March 1993 said that Dupree had identified “a considerable number of difficulties” in establishing the claim, including the need for expert evidence about the obstetrician’s conduct and the difficulty of quantifying damages ([16], [39]–[41]).
Weatherall did not provide further instructions. No action against the doctors was commenced within the limitation period. An application to extend time was dismissed in 2000. Weatherall settled her claim against Maurice May for $35,000 plus costs, after which the firm pursued its cross-claim against Dupree ([6], [14]).
The District Court dismissed the cross-claim. Maurice May sought leave to appeal, arguing that Dupree had been too pessimistic and should have emphasised positive features of the proposed claim. The Court of Appeal granted leave but dismissed the appeal with costs ([4], [17], [52]–[54]).
The appeal turned on whether the trial judge had been required to accept the evidence of Maurice May’s expert, Mr Higgs SC, and find that Dupree’s assessment was negligent. Higgs considered that there were reasonable or strong prospects against the anaesthetist and a significant possibility of a case against the obstetrician ([42]). Dupree’s position was that the available evidence did not justify advising that proceedings should be commenced or preparing a statement of claim, and that caution was appropriate given the unresolved questions and the financial consequences of losing ([42], [47]).
The Court did not treat the absence of a competing expert witness as decisive. It noted that Higgs had been cross-examined at length and said the trial judge was not obliged to accept his opinion ([17], [52]). The trial judge had the advantage of hearing and seeing the witnesses, including Higgs and Dupree ([42]).
The evidence itself supported the view that material questions remained open. Newlinds had offered observations about the anaesthetic and possible responses to an unsatisfactory epidural, but expressly said he was not an anaesthetic expert and recommended a specialist anaesthetist’s opinion ([31]–[33]). Crombie’s report offered a view about the time needed to convert to a general anaesthetic, but also said it would be interesting to have the anaesthetist’s views ([34], [46]). Dupree had concerns about Crombie’s qualifications, and Higgs himself could not identify specialised qualifications from the report ([45]).
The Court also considered the factual issue confronting the doctors at the time. The surgeon’s letters referred to the anaesthetist’s view that proceeding with delivery was in the baby’s interests. The Court observed that the reports did not clearly establish that the decision to proceed was inappropriate in those circumstances or contrary to accepted practice ([43], [52]). The Court did not decide whether the doctors were negligent. It assessed whether Dupree’s advice, on the material he had, was shown to be negligent.
Timing mattered to the Court’s reasoning. The limitation period was not due to expire until 22 March 1994, more than a year after the February 1993 conference. The Court said there was no urgency requiring a statement of claim to be filed at that point and that there was time for the matter to be investigated further ([18], [52]). This reasoning was tied to the dates and evidentiary gaps in this case, rather than expressed as a general rule about when proceedings must be commenced.
The Court also distinguished the case advanced on appeal from the initial allegation about what Dupree had said at the conference. Weatherall’s account that Dupree said she had no case was not accepted by the trial judge. The case ultimately argued was that Dupree had over-emphasised the difficulties and failed to give balanced advice ([16]–[18], [41]). The Court found no basis to disturb the trial judge’s conclusion that Dupree was not negligent ([48], [53]).
The judgment does not set out a general legal test for barristers’ professional negligence, nor does it cite or analyse earlier cases establishing such a test. The legislation identified in the judgment’s introductory material is the Limitation Act 1969, but the judgment does not identify a section or decide a statutory interpretation issue. It records that an extension application had been dismissed and discusses the timing of the proposed claim as part of the factual context ([14], [18], [52]).
Accordingly, the decision should be read narrowly from the supplied reasons. It upheld a trial judge’s factual conclusion that Dupree was not negligent in the circumstances. It did not establish that cautious advice is always adequate, that counsel has no responsibility for limitation issues, or that a solicitor invariably bears sole responsibility for protecting a client’s claim from expiry. The Court expressly records that the limitation-advice allegation was no longer pursued, if it ever had been, and that Dupree had not been asked to advise on the three-year period ([18]).
The judgment’s practical legal reasoning is contextual: the content of the brief, the limits of the medical opinions, the outstanding expert questions, the purpose of the conference, the time remaining, and the respective roles described in the retainer and proceedings all mattered. The trial judge’s assessment was not displaced merely because the appellant’s expert expressed a more optimistic view ([17], [42], [48], [52]–[53]).
On the material supplied, there is no stated change to the law before and after the decision. The judgment applies no identified precedent and does not announce a new doctrine. Its contribution in the text provided is an appellate determination that the specific evidentiary record did not require a finding of negligence against Dupree.
At [18], the Court says the claim that Dupree should have advised specifically about the three-year limitation period was no longer maintained, if it ever had been. Dupree had not been asked to give that advice, and the expiry date was more than a year away. In plain English, limitation advice was not the live basis of the appeal, and the Court treated the solicitors’ assumed knowledge of the date as relevant to the case presented.
At [50], the judgment reproduces the trial judge’s conclusion that Dupree’s responsibility was to advise Maurice May, and that he had done so by saying further medical evidence was needed. The trial judge did not consider Dupree responsible for advising Weatherall, 13 months ahead of time, that the period might expire. This is the trial judge’s reasoning as described by Foster AJA, rather than a separately developed rule by the Court of Appeal.
At [52], Foster AJA says there was no urgency requiring a statement of claim to be filed to prevent the proposed action becoming statute-barred, and that there was time for further investigation. This explains why the Court did not regard the failure to recommend immediate proceedings as negligent on these facts. It does not say that delay is harmless whenever a limitation date is not imminent.
At [53], Foster AJA states: “I am not persuaded that her Honour’s decision was wrong.” In plain English, the appeal did not establish a basis to overturn the trial judge’s conclusion. This is the central appellate conclusion, followed by the order granting leave and dismissing the appeal with costs at [54].
The judgment is most relevant to a fact pattern involving an allegation that a barrister negligently assessed a proposed claim, where the dispute concerns whether the advice was unduly pessimistic in light of incomplete expert evidence. Here, the liability case depended on medical opinions that left questions about professional standards, the doctors’ contemporaneous decision-making and the experts’ qualifications unresolved ([43]–[46]).
It may also be relevant where a client or instructing solicitor says counsel should have recommended proceedings or prepared pleadings before all necessary expert material was available. The Court’s reasoning focused on whether the evidence then available clearly supported a claim and whether there was time to investigate further ([30], [47], [52]).
The case has a particular factual feature concerning reliance and the conference: the asserted advice that Weatherall had “no case” was rejected, and the claim pursued on appeal was instead that Dupree had presented the prospects too negatively ([16]–[18], [41]). A matter involving clear evidence of categorical advice that a claim had no merit would therefore not be identical to the case the Court decided.
The decision is not a general authority, on the supplied text, that a barrister never needs to address limitation periods. The relevant allegation was not pursued, and the judgment records that Dupree had not been asked to advise on the period ([18]). A different retainer, different instructions, a closer expiry date or different communications would raise questions not resolved in these reasons.
The supplied judgment contains no discussion of later decisions and does not report how subsequent courts have treated this case. No later judicial treatment can therefore be identified from the source text provided. The judgment itself refers to no earlier case authorities in its reasoning, so the precedent-relationship field is empty.
The safe source-grounded description is limited to the decision’s own holding: the Court of Appeal granted leave and dismissed the appeal because it was not persuaded that the trial judge’s no-negligence finding was wrong ([53]–[54]). Whether later courts have followed, distinguished, or otherwise considered the decision requires material beyond this judgment.
The judgment does not determine whether the doctors were negligent in the caesarean-section procedure. It addresses the cross-claim against Dupree and whether the trial judge was wrong to find that his conduct was not negligent. The underlying claim against the doctors was not tried to judgment in these reasons ([4], [6], [52]).
The Court does not state a general standard governing how barristers must communicate prospects, how cautious an opinion may be, or when counsel must recommend proceedings. Its conclusion depends on the evidence and retainer-related circumstances described in this case. A broader rule should not be inferred from its fact-specific reasoning.
The judgment also does not resolve how responsibility for limitation dates should be allocated in other solicitor-barrister relationships. It records the trial judge’s view of Dupree’s role and the Court’s observation that the limitation allegation was not pursued, but it does not analyse a contested legal duty on that issue ([18], [50]).
Finally, the reasons do not supply later case treatment, the text of any relevant statutory provision, or a general account of the applicable professional standard. Those matters cannot be answered from the judgment text alone.
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CITATION : Maurice May & Co v Dupree [2002] NSWCA 249 FILE NUMBER(S) : CA 40596/01; DC 4327/98 HEARING DATE(S) : 29/07/2002 JUDGMENT DATE : 6 August 2002
PARTIES : Maurice May & Co v James Dupree JUDGMENT OF : Meagher JA at 1; Davies AJA at 2; Foster AJA at 3-19
LOWER COURT JURISDICTION : District Court LOWER COURT 4327/98 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :
COUNSEL : D. Davies SC with G.M. Gregg - Appellant P.J. McEwen SC - Respondent SOLICITORS : Corrs Chambers Westgarth - Appellant McCabe Terrill - Respondent CATCHWORDS : Appeal against a cross-claim in proceedings where plaintiff sued her solicitor for negligence when advising re possible damages claim and also against the barrister retained to advise. LEGISLATION CITED : Limitation Act 1969 DECISION : Leave to appeal granted.; Appeal dismissed with costs.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40596/01 MEAGHER JA DAVIES AJA FOSTER AJA
TUESDAY, 6 AUGUST, 2002 MAURICE MAY & CO. v James DUPREE Judgment
1 MEAGHER JA: I agree with Foster AJA. 2 DAVIES AJA: I agree with Foster AJA. 3 FOSTER AJA: In these proceedings, the Court heard counsel on the application for leave and also on the appeal should leave be granted. A previous hearing of the leave application before a bench of two judges resulted in disagreement. 4 The claimant, Maurice May & Co ("Maurice May"), seeks leave to appeal from the decision of Gamble ADCJ given in favour of the opponent, James Dupree ("Dupree") on 9 July 2001, when her Honour dismissed a cross-claim brought by Maurice May against him. The cross-claim had been brought in proceedings in which the plaintiff, Rita Weatherell had sued Maurice May for negligence, when acting as her solicitor in respect of a possible damages claim to be brought by her against certain medical practitioners. The cross-claim alleged negligence on the part of Dupree, on the basis that he, as the barrister retained to advise in respect of the claim, had been negligent in rendering advice. 5 The plaintiff, on 22 March 1991, had undergone, at Ryde Hospital, an operation for lower segment caesarean section, the surgeon being Dr Izzo and the anaesthetist, Dr Csenderits. The basic allegation made by her was that she was not properly anaesthetized during the operation, in that an epidural block anaesthetic had not been successful. She had made known that this was the position during the performance of the operation but the procedure, nevertheless, had been allowed to continue, with the result that she suffered a great deal of unnecessary pain. A general anaesthetic which could have prevented this situation was not, in fact, administered until the baby had been delivered. She alleged that it could and should have been administered earlier. 6 She consulted Maurice May in or about July 1991 with a view to seeking, if possible, damages from the medical practitioners for professional negligence. They, in turn, forwarded briefs to Dupree to advise. In the result, as will appear, no action was commenced within time. The plaintiff sued Maurice May, who joined Dupree as cross-defendant. The plaintiff who had not sued Dupree, settled her case with Maurice May, for the payment to her of $35,000 plus costs. Maurice May then proceeded with the cross-claim against Dupree. 7 It is necessary, in the first place, to consider the pleadings in the case and the evidence adduced. 8 The plaintiff, in her statement of claim, after reciting the facts relating to the operation, the failure of the epidural anaesthesia, the continuation of the operation despite her protest, and her pain, asserted negligence on the part of the medical practitioners. She claimed for pain and suffering and also for post-traumatic stress reaction and depression. She also alleged economic loss and loss of earning capacity. 9 She then alleged the retainer of Maurice May in July 1991, the obtaining of certain supportive medical evidence on the question of liability and damages and, then, Maurice May's obtaining of advice from Dupree, which, it was alleged, Maurice May knew or should have known was inadequate. The result was that Maurice May tendered wrong, misleading and defective advice to the plaintiff, being that her claim was unlikely to succeed. In particular, the advice failed to mention:- "(i) That there was a limitation period. (ii) That there was a number reported cases with similar facts suggesting a favourable outcome to any contested hearing. (iii) That the advice of learned counsel retained by the Defendant did not enjoy the confidence of the defendant. (iv) That further legal opinion was required." 10 The plaintiff alleged reliance on Maurice May's advice and her consequent failure to instruct them to commence proceedings within the limitation period. She sued in negligence and, also, in contract for breach of retainer . She claimed damages under various heads based upon the loss of her right to sue the medical practitioners. 11 Maurice May by its Statement of Defence denied negligence, did not admit that the plaintiff relied on the advice and alleged that the plaintiff had failed "to mitigate her loss by failing to make an application in the District Court to extend the limitation period…". 12 Maurice May, in the cross-claim against Dupree, alleged that on 2 August 1991 and 2 February 1992, it had briefed him to advise on:- "2(a) the question of damages and on evidence; and (b) whether, on the basis of the medical reports of Drs Newlinds, Crombie and Strum, legal proceedings should be instituted against Drs Izzo and Csenderits and, if so, the Cross Defendant was further briefed to settle a Statement of Claim, advise on evidence and advise generally." 13 The cross-claim further alleged the giving of advice, in conference, on 17 February 1993, to the effect that for various reasons relating to difficulties in establishing her claim against the doctors and also her loss, her "prospects of success in an action for damages were generally very gloomy." This advice was said to have been negligent and in breach of Dupree's retainer. He should have, instead, advised that prospects of success were excellent. He failed to recommend that she commence proceedings and to advise that the limitation period would expire on 22 March 1994. In consequence, proceedings were not commenced within time. 14 An application to extend time was made by other solicitors, but on 12 May 2000, was dismissed with costs. An offer of compromise in the sum of $35,000 plus costs was accepted by Maurice May and, in the cross-claim Maurice May sought contribution and/or indemnity in respect of those amounts and also in respect of the costs of the failed application for extension of time. Dupree denied liability. 15 The case against Dupree
Maurice May relied upon the briefs which had been forwarded to Dupree on 2 August 1991 and 2 February 1992, together with the advice he had given in response to them. Significant reliance was also placed upon advice said to have been given by Dupree in conference on 17 February 1993. This conference was attended by the plaintiff and Mr Noble, a solicitor employed by Maurice May. It was alleged that, as a result of what Dupree had advised in that conference, the plaintiff had decided not to proceed with her claim which, in the result, became statute-barred. 16 It is convenient, at the outset, to mention one aspect of the evidence relating to the conference. Mr Noble had no recollection of the conference, nor did he have any notes relating to it. He did, however, send a letter to the plaintiff on 5 March 1993 to which I shall make reference later. The plaintiff testified that, in the conference, Mr Dupree advised her that she had no case against the doctors and that, in effect, she could not prove any significant damage. Although Dupree, himself, had no recollection of any details of the conference, he was able to swear that he certainly would not have proffered this advice. Her Honour did not accept the plaintiff's evidence, in this regard. She was not obliged to do so. There was some indication in the evidence that the plaintiff had engaged in some exaggeration, particularly in the evidence given in her application for extension of time. There is no need to refer to this evidence in these reasons. Moreover, the contents of Mr Noble's letter of 5 March 1993, relating to the conference, clearly indicates that she had not been advised that she had no case. 17 In the result, the case alleged against Dupree was, that, in effect, he had been too negative about her prospects of success and should have emphasised the more positive aspects of her case. In effect, it was asserted that his advice had been lacking in balance. The case, in this regard, was sought to be supported by the evidence of Mr Higgs SC, who gave an opinion that Dupree was negligent in over-emphasising the difficulties of the case and in failing to give advice that it should proceed and in failing to draft the necessary statement of claim, as requested. Although no countervailing expert evidence was called, Mr Higgs was cross-examined, at considerable length, about his opinion. It cannot be said, in my view, that her Honour was bound to accept it. 18 It may also be noted, at this point, that it is no longer claimed, if it ever was, that Dupree should have tendered specific advice as to the three year limitation period which would expire on 22 March 1994. He was not asked to do so. The expiry date, in any event, was over a year away and it was reasonable to assume that Maurice May, a recognised firm of litigation lawyers, would require no advice on that subject. The ultimate case made before her Honour and argued in this appeal, is that Dupree, through the tendering of negative advice, caused the plaintiff to lose heart in her case and break off contact with her solicitors during the running of the limitation period. 19 The case depended very largely upon the materials which had been placed before Dupree on the occasions referred to. I shall refer to this material in the sequence in which it was presented to him. 20 The first brief to advise, of 2 August 1991, commenced with the following observations:- "We act for Mrs Rita Weatherall who suffered tremendous pain and discomfort as a result of a caesarean section operation. There appears to be evidence (despite assertions by Dr Csenderits and Dr Izzo to the contrary) that the epidural anaesthetic was not properly administered. Particularly revealing is Heather Purnell's statement in which she states that the epidural anaesthetic was commenced without the prior insertion of an Inhavenous Infusion. Clearly despite assertions by Dr Hooper on behalf of Ryde Hospital to the contrary it would appear that correct procedure was not followed at the time the procedure was being carried out the hospital was experiencing delays and it is quite possible that our clients procedure was rushed. As a result of the experience she maintains she has developed a phobia to having any further children, she is still quite distressed about her experience. We have not as yet arranged to seek expert opinions as to what went wrong, why and how it could have been avoided etc. Nor have we arranged for a psychiatric report."
Dupree was asked to advise on the question of damages, in the event of a successful negligence action against the doctors and hospital and also on evidence. 21 This brief contained a statement from the plaintiff in which she described the operation and its effects upon her. She asserted that there were signs that the epidural block was not working properly, that she complained of this to Dr Izzo, the surgeon, and Dr Csenderits, the anaesthetist, but that the operation continued despite her protests. She felt the incision being made and that the pain became intense. She screamed and became hysterical but, nevertheless, the operation proceeded until her baby was delivered. Only then was she given a general anaesthetic. A statement from a student midwife, who was in attendance, confirmed that she was suffering significant pain and the continuance of the operation despite her protests. 22 The brief also contained a letter to the plaintiff from the hospital's social worker referring to the complaint, which the plaintiff had made about the operation and indicated that statements from nursing staff had been forwarded to Dr Hooper, the executive director of the hospital who would follow the matter up with Drs Izzo and Csenderits. 23 There were also two letters from Dr Izzo, one to the plaintiff herself and the other to Dr Hooper. Dr Izzo, apparently, knew the plaintiff, otherwise than as a patient. He explained the problems which had occurred and, apparently, sought to deal with the specific complaints that the plaintiff had made. His letter reads as follows:- "(iii) In spite of the fact that you could move your legs and feel cold the anaesthetist assured me that this did not mean the epidural was not working as frequently in spite of a "good" epidural patient can feel and do these things. (iv) The pain really did come in when the peritoneum was opened. (ie the lower layer) - at this time to put you to sleep would take a good 8-10 mins and the anaesthetist felt it was safer for the baby to hurry along as fast as I could to deliver the baby and then put you to sleep. The "pushing" that so distressed you was a normal way of delivering the baby. 24 In his letter to Dr Hooper, he said, in relation to the procedure:- "The operation was commenced and all appeared to be going well. The pain that she experienced was really only reached when the peritoneum was opened, not before this. The pain was on one side. At that stage I approached the anaesthetist whether he felt that a general anaesthetic should be carried out but he was worried about the baby. He felt it was appropriate to put her completely to sleep upon the birth of the baby. In this I had to be guided by the anaesthetist. I felt that the most appropriate thing to do at the time was to deliver the baby as quickly as possible so that she could be put to sleep"
He also said:- "I stress again that the anaesthetist and I felt that the epidural was working well in spite of her being able to move her toes until we had opened the peritoneal cavity. There would certainly have been no proceeding with the operation if we'd felt prior to this that it had not worked!" 25 Dr Hooper's letter to the plaintiff stated, in relation to the operation:- "It appears clear from my investigation that although correct technique appears to have been used by Dr. Csenderits in performing an epidural anaesthetic, it was nevertheless not fully effective, probably due to some of the injected anaesthetic being intravascular rather than epidural. Dr. Csenderits has indicated that he delayed adding a general anaesthetic to the epidural until after the baby was born, as this would have been better for the baby." 26 Other statements supported the plaintiff's description of what occurred during the operation, the detail of which need not be referred to. 27 A copy of the hospital records relating to the plaintiff's admission, the operation and post-operative care were also forwarded. No reference was made to them in the appeal and it has not been suggested that Dupree should have attached any significance to any part of them in considering his advice. 28 Dupree gave written advice on 13 September 1991. In it, he spoke of the necessity of demonstrating "that the manner in which Dr Izzo conducted the delivery was less than the required standard". He made the same remarks in relation to Dr Csenderits. He indicated evidence should be obtained including:- "(iii) A report from a specialist skilled in the area of obstetrics and gynaecology from whom a report should be obtained as to the appropriateness of the systems and procedures adopted by Dr Izzo in the matter. (iv) A report from a person skilled in matters of anaesthesia to report on the systems and procedures adopted by the Dr Csenderits. (v) A report detailing with any medical aspects of your client's condition said to have been caused by the accident that she currently suffers."
Dupree indicated that when the material had been obtained a conference might be arranged "so that the matter may be further progressed." 29 On 19 February 1992 Maurice May forwarded a further brief to Dupree. The observations indicated that "appropriate professional opinions" had been obtained. They consisted of medical reports from Dr John Newlinds and Dr Nickel Crombie, each of Medico-Legal Associates and from Dr Strum, a psychiatrist. The first two reports dealt with the question of liability and the last with damages. 30 Dupree was briefed to advise:- "As to whether on the basis of this additional evidence legal proceedings should be instituted against all responsible parties. If counsel is of the opinion this matter should proceed counsel is further briefed to settle a Statement of Claim, advise on evidence and generally." 31 Dr Newlinds, who is a gynaecologist and obstetrician, having referred, in his report, to the problems which had occurred during the plaintiff's caesarean section, in relation to the failure of the epidural, provided the following comments:- "EPIDURAL ANAESTHESIA: This is a commonly used, popular and usually very effective method of obtaining pain relief during caesarean sections and other operations. I do not claim to be expert as an anaesthetist but I have had considerable experience in both administering epidural blocks and in operating on patients who have had epidural blocks. …………….. There is frequently, perhaps mostly, pain felt when the peritoneum is opened and in particular when the peritoneum is stretched. This is due to there being a different nerve pathway being used by the sensory nerves of the peritoneum which are developmentally different from the rest of the abdominal wall. Most anaesthetists and surgeons warn the patient of this possibility and the pain felt is generally of short duration and well tolerated. With most satisfactory epidural blockades there is a loss of motor function and co-ordination in the legs - enough to make the patient incapable of moving herself from bed to theatre table. All this having been said, there is usually no pain and very little discomfort associated with caesarean section performed under epidural blockade. It would appear that in Mrs Weatherall's instance the blockade was unsatisfactory in that she was not rendered pain free" 32 Under the heading "Options available if the blockade is unsatisfactory", the doctor said, inter alia:- "It is possible generally to convert to general anaesthesia. In this case this seems to have been done but only after the baby was born and not before. There seems to have been no urgency in this instance to deliver the baby. It was a planned, elective caesarean section and the baby was in no distress, neither was the mother. There cannot have been a contraindication for general anaesthesia for it was subsequently administered. It would appear that a logical course to have followed when it became apparent that the analgesia had not been achieved by epidural blockade was to have stopped the operation for a few minutes while an intravenous agent was used to put the patient to sleep and a paralysing agent given to allow endotracheal intubation and respiratory support given. This would probably have been the type of anaesthesia given if the patient/surgeon/anaesthetist had opted for general anaesthesia rather than epidural blockade" 33 Dr Newlinds made the following further observation:- "There is no statement from the anaesthetist who may well have explanations to justify the actions which were taken. The opinion of a specialist anaesthetist with skills in obstetric and epidural anaesthesia would seem to be warranted" 34 Dr Crombie in his report, said as follows:- "It would seem that Mrs Weatherall suffered unnecessarily during her recent caesarean section. Dr Newlinds gives, in his report, an outline of epidural anaesthesia and the options available if anaesthesia is not satisfactory. With these comments I agree. In this particular case I would make the following comments: 1. ………….. 2. Failure of satisfactory anaesthesia: Epidural anaesthesia may be less than adequate due to many technical reasons out of the control of the anaesthetist. This appears to have happened in Mrs Weatherall's case because there is no evidence of any failure of technique in instituting the epidural block. The fact that the patient could 'wriggle her toes' is not significant in the initial stages as motor blockade may take up to 40 minutes to come on, even in the presence of a satisfactory sensory blockade. The decision to convert the epidural anaesthesia to a general anaesthetic would be the correct one in this case. However, there seems to be no clinical contraindication either from the baby's or Mrs Weatherall's state of health to the institution of general anaesthesia prior to the birth. In my experience it takes two to three minutes to convert from epidural anaesthesia to general anaesthesia, not eight to ten minutes as stated by Dr Izzo. It would be interesting to have Dr Csenderits's views on this."
35 It is not necessary to consider the contents of Dr Strum's report in detail. It referred to psychological difficulties which she had suffered after the operation, in the nature of a post-traumatic stress reaction and a puerperal depression. 36 On 22 April 1992, Dupree furnished further advice, which included the following: " Dr John S. Newlinds' report dated 25 September 1991 . In this report, Dr. Newlinds details in a convenient fashion your client's claims. From the details contained in this report, it would seem that your client's experience of pain could properly be related to the inadequacy of the anaesthetic administrated. Dr. Newlinds reports "…I do not claim to be expert as an anaesthetist…". He goes on to opine in paragraph 4 on p.3 "…a logical course to have followed when it became apparent that the analgesia had not been achieved by epidural blockage was to have stopped the operation for a few minutes while an intravenous agent was used to put the patient to sleep and a paralysing agent given to allow endotracheal intubation and respiratory support given…". This statement could well be the basis of a cause of action against both Dr. Izzo and Dr. Csenderits. However, Dr. Newlinds in the final paragraph of his report advises "…the opinion of a specialist anaesthetist with skills in obstetrics and epidural anaesthesia would seem to be warranted…" and to that extent such an opinion would need to be obtained so as to put to rest any risk associated with Dr. Newlinds claim that he was not an expert. Dr Crombie does not appear to be on the letterhead of Medico-Legal Associates, at least as far as his report of 20 December 1991 is concerned. I am unable to divine from his report his area of expertise and to that extent instructions should be obtained in relation to that aspect of the matter. In dealing with the options available if the anaesthesia is not satisfactory detailed in Dr. Newlinds' report of 20 September 1991, Dr. Crombie seems to dismiss paragraphs 1 and 2 and by at least inference agrees with paragraphs 3 and 4. The question at the centre of your client's case is whether or not either Dr. Izzo or Dr. Csenderits caused your client's (pain) during the caesarean section and if so whether they were negligent in so causing the pain." 37 The advice concluded by referring to the previous advice of 13 September 1991 and suggesting that a further conference be arranged when the material referred to (inter alia) in paragraphs (ii), (iii) and (iv) were to hand. Dupree stated:- "Your client's case may be against the anaesthetist for negligently administering the anaesthetic and thereafter advising the surgeon." 38 The evidence before her Honour indicated that, thereafter, nothing occurred until early 1993. Mr Noble had, by then, taken over the plaintiff's file in Maurice May. There was a file note to the effect that the plaintiff was becoming agitated about progress in the matter. There was no suggestion that this had been conveyed to Dupree. However, the evidence indicated that Dupree himself, having noted that there had been no activity since his last advice, suggested a conference. This conference, to which I have already made reference, occurred, as stated, on 17 February 1993. 39 Although, there were clearly, problems in establishing what occurred at the conference, there is no doubt that, shortly after, on 5 March 1993, Mr Noble forwarded a letter to the plaintiff which read as follows:- "We refer to our previous telephone conversations and in particular, to our attendance with the Barrister, Mr Dupree, at a conference on 17th February, 1993. You will recall that the Barrister had indicated that there were a considerable number of difficulties in establishing your claim. We note that we have given you copies of all of the medical reports and the Barrister's opinion. There are at least two difficulties:- 1. On reading the reports, it would appear that in the absence of an expert report from a Gynaecologist, that the procedure followed by Dr Izzo may not have been inappropriate, even after he had discovered that the anaesthetic had no effect. This means that there will be a great deal of controversy over the procedures adopted by him. 2. The question of damages which would reflect some form of compensation to the wrong done is difficult to quantify. You certainly suffered a great deal of pain as a result of the inadequate anaesthetic administered, but there does not appear to be any economic loss or other obvious loss. We note that you have some fear of medical procedures in a hospital, but apart from this, there do not appear from the information provided by you to be any other permanent problem. It is the writer's experience that a medical negligence action is usually strongly defended by the Medical Defence Union who act for the doctor. It is therefore a matter which we believe will be contested. We note we also discussed with you the question of costs involved and the time that the matter could take through the Court system. Briefly, if the matter were to proceed in the District Court, there is probably a delay of at least 18 months and an approximate cost of $7,000.00 to 48,000.00. If we lose the case, those costs will increase as you will be required to pay the costs of the other side. We stress that this estimate of costs and time is only an approximation. We note that you and your husband were to discuss the matter further and that you would contact the writer when you had made a decision of whether or not you wished to proceed with your claim. We also confirm our telephone conversation on the 3rd February, 1993 that you have not in fact made a decision, but will contact us once you have recovered from the Chickenpox. We look forward to hearing from you". 40 It appears that the reference to "a gynaecologist", perhaps, should have been a reference to "an anaesthetist". Also the reference to "3rd February 1993" in the second last paragraph should have been to "3rd March 1993". It appears that the plaintiff provided no further instructions in response to this letter. 41 A reading of the transcript of the proceedings before her Honour shows that a fairly wide ranging enquiry was undertaken in relation to the advice given by Dupree in conference. It was acknowledged by his counsel, at the outset, that were it established that Dupree had advised the plaintiff that she had no case, then such advice would have been negligent. As I have indicated, this was the primary allegation of the plaintiff. In the run of the case, as appears from the transcript, this allegation ceased to be relied upon, being supplanted by the assertion that Dupree over-emphasised the gloomy, as opposed to the optimistic, prospects of the claim against the doctors. In effect, the case became a contest between the views espoused by Mr Higgs in his opinion and oral testimony and those of Dupree, as to the opinion that could reasonably have been formed of the strength of the plaintiff's case, based upon the material that was available to Dupree on 17 February 1993. In this context, it was also necessary to consider the nature and purpose of the conference itself. 42 It was Mr Higgs contention that the available material indicated that "at the very least the plaintiff had reasonable prospects (if not strong prospects) of succeeding in establishing liability against the anaesthetist, Dr Csenderits." His view also was that there was "the significant possibility of a reasonable case against the obstetrician, Dr Izzo". It was Dupree's contention, however, that the material provided did not, without more, justify him in advising the commencement of proceedings and the drafting of a statement of claim. There were inadequacies in that material which, coupled with the disastrous financial consequences to the plaintiff of losing the case, required the counselling of caution. Both men were very extensively cross-examined as to their views and the basis upon which they were held. Her Honour, of course, had the advantage of hearing and seeing the witnesses. 43 Dupree made it clear that he was concerned about the expertise of Dr. Newlinds and, particularly, Dr Crombie. Dr Newlinds' report indicated that he did not claim "to be expert as an anaesthetist". Also his report, whilst indicating the general possibility of converting to general anaesthesia, when some problems with the epidural block had occurred, went on to say that "there seems to have been no urgency in this instance to deliver the baby". It also states that "it would appear that a logical course to have followed when it became apparent that the analgesia had not been achieved by epidural blockade was to have stopped the operation for a few minutes" to allow, apparently, the change to general anaesthesia to be accomplished. There is no indication in these statements that the doctor had in mind any specific facts relating to the situation confronting Drs Izzo and Csenderits at the time when the decision was made to proceed with the delivery. In particular, there is no comment upon the reference in Dr Izzo's letters to Dr Csenderits' opinion, expressed at the time, that it would be better for the baby to continue the delivery. 44 Moreover, Dr Newlinds' opinion was qualified in his final observation where he noted that there was "no statement from the anaesthetist who may well have explanations to justify the actions which were taken." Significantly, he then stated that "the opinion of a specialist anaesthetist with skills in obstetric and epidural anaesthesia would seem to be warranted. 45 Dupree indicated that he had concerns about the expertise of Dr Crombie. He did not appear on the letterhead of Medico-Legal Associates. He was concerned that the doctor may not have been a specialist anaesthetist with the particular skills referred to by Dr Newlinds. A note made by him at the time, on the report forwarded in the brief, indicated that he was concerned about Dr Crombie's expertise. He wanted further information in this regard. He sought this in his letter of 22 April 1992. It appears to be Mr Higgs' contention that this was unnecessarily cautious. However, Mr Higgs, himself, was unable to determine from Dr Crombie's report whether he had any specialised qualifications, other than being an anaesthetist. 46 Although Dr Crombie spoke of the conversion from epidural anaesthesia to general anaesthesia taking, in his experience, two to three minutes rather than the eight to ten minutes referred to in Dr Izzo's letter, he comments that "it would be interesting to have Dr Csenderits' views on this." 47 It was Mr Higgs' view that, on the basis of this material, Dupree should have been prepared to commence proceedings and draft the statement of claim and also express to the plaintiff confidence in the outcome. It was Dupree's contention that more was needed and that caution should be preached. 48 The Judgment
Some criticisms have been levelled at aspects of her Honour's judgment but, with respect, its overall effect is quite clear. She held that "when assessed overall Mr Dupree's conduct was not negligent." She referred to his earlier written advice in which he had indicated that more medical evidence was required, that he was not satisfied with the evidence of Dr Newlinds and wanted the opinion of the specialist anaesthetist referred to. There was an outstanding question as to Dr Crombie's expertise. The opinion of Dr Strum, in itself, did not enable a realistic assessment of the quantum of damages, a question that he was asked to consider. 49 Her Honour referred to the fact that nothing had been done on the file for almost a year and that it seemed "the conference was the manner in which either Mr Dupree or Maurice May decided to advance the matter." She referred to the fact that the conference appeared to have been badly organised in that there was no clear reason for convening it, the gaps in the evidence not being gaps which the plaintiff herself could fill in conference. She also referred to the fact that the plaintiff, although she had denied it, was in possession of earlier advice that there was the possibility of a successful claim, providing further material could be obtained. 50 It appears to be implicit in her Honour's judgment that she did not regard the conference as being one in which the question of the viability of the plaintiff's claim was to be finally determined and made the subject of express advice. In the final paragraph of her judgment she finds as follows:- "I do not believe it was Mr Dupree's responsibility to advise Mrs Weatherall 13 months ahead of time that time may run out for her to prosecute her claim. Neither the briefing process, nor the history of Mr Dupree's engagement with Mrs Weatherall as a client, indicates that he had any further responsibility for the proceedings as at 17 February 1993, further than to advise Maurice May & Co. This he did - he advised them that more medical evidence was required - and he left the solicitors to pursue with Mrs Weatherall the matters he had raised in his advices to them and their client. There was nothing more he should have done." 51 She accordingly entered a verdict for Dupree. 52 The Appeal
The main argument for the appellant was, to the effect, that her Honour should have accepted the views of Mr Higgs and found that Dupree was negligent, in failing to express an optimistic view to the plaintiff. He should not have emphasised the negative aspects of the case both on liability and damages. I do not consider that her Honour was obliged to accept this opinion. Dupree had not had his ten month old queries answered. There was a clear indication in the material before him that, at a critical point of the operation, the surgeon and the anaesthetist were confronted with the decision whether to proceed or not. The professional decision was made to proceed, apparently, in the interests of the baby to be delivered. The short written material with which he had been provided did not clearly indicate that the decision to proceed was, in those circumstances, inappropriate and contrary to accepted practice. There was no urgency in the commencement of proceedings, such that a statement of claim needed to be filed to prevent the action being statute-barred. There was time for the matter to be further and better investigated. 53 Taking all these matters into account, I am not persuaded that her Honour's decision was wrong. 54 Accordingly, I would propose that leave be granted and the appeal be dismissed with costs. *********************
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Maurice May & Co
Dupree
Leave to appeal granted; appeal dismissed with costs.