Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : JACOB RIELY [SIC] MCLENNAN an infant suing by his next friend YVONNE JOYCE MCLENNAN & ANOR -v- MCCALLUM & ANOR [2007] WADC 67

Tort - Medical negligence - Appellant born with severe encephalopathy - Whether obstetrician negligent - Whether nursing staff negligent - Causation - Turns on own facts

Appeal - Whether appellant should be permitted to advance a new case on appeal - Whether appellant should be permitted to re-amend his statement of claim - Whether appellant should be permitted to re-amend his orders wanted on appeal to claim a re-trial - Turns on own facts

Application to re-amend the statement of claim dismissed

Application to re-amend the orders wanted dismissed

First Respondent : Mr C L Zelestis QC & Mr J A Thomson

Second Respondent : State Solicitor for Western Australia

Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279

Bell v Lever Brothers Ltd [1931] UKHL 2; [1932] AC 161

Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33

Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435

CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Findlay v State of Victoria [2009] VSCA 294

Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; (2007) Aust Torts Reports 81-891

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632

Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58

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

Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409

University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 158 CLR 447

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

2 BUSS JA: On 15 May 1997, the appellant was born at Kalgoorlie Regional Hospital (the Hospital) with severe encephalopathy (dyskinetic cerebral palsy). He is severely disabled.

3 The first respondent (Dr McCallum) is an obstetrician. The second respondent (the Minister) is the Board of Management of the Hospital pursuant to s 7 of the Hospitals and Health Services Act 1927 (WA).

4 The appellant's mother consulted her general medical practitioner, Dr Date, at monthly intervals, until 30 weeks into the term of her pregnancy with the appellant, and thereafter on a fortnightly basis. When she saw Dr Date at about 36 weeks, he told her that the foetus was in breech position. Dr Date referred her to Dr McCallum.

5 On 7 May 1997, the appellant's mother consulted Dr McCallum for the first time in relation to this pregnancy. On 14 May 1997, Dr McCallum arranged for her to be admitted to the Hospital that evening for an induced vaginal delivery. Dr McCallum delivered the appellant by an induced vaginal delivery at 0458 hours on 15 May 1997.

6 In 2003, the appellant (as first plaintiff) and his mother (as second plaintiff) commenced proceedings in the District Court against Dr McCallum (as first defendant) and the Minister (as second defendant).

7 The appellant alleged that each of Dr McCallum and the Minister had owed him a duty of care and that each of them had breached it. It was alleged that the negligence of Dr McCallum and further, or alternatively, the negligence of the Minister's nursing staff, had caused his cerebral palsy.

8 The appellant's mother also alleged that each of Dr McCallum and the Minister had owed her a duty of care and that each of them had breached it. It was alleged that the negligence of Dr McCallum and further, or alternatively, the negligence of the Minister's nursing staff, had caused her to suffer loss of enjoyment in giving birth to a healthy child, nervous shock and depression.

10 After a trial in the District Court, Wisbey DCJ dismissed the claims of the appellant and his mother.

11 The appellant (but not his mother) appeals to this court. Damages are not in issue. Quantum was agreed before trial in the sum of $8,000,000, subject to any significant change in circumstances.

12 At trial, the appellant alleged, in essence, against Dr McCallum that on 7 May 1997, and again on 14 May 1997, the appellant was presenting for birth in a double footling breech position, and Dr McCallum should have realised that was the case. Further, and as a result of this assessment, Dr McCallum should have delivered the appellant by Caesarean section, rather than by an induced vaginal delivery. Alternatively, at some point before the rupture of the appellant's mother's membranes at about 0315 to 0330 hours on 15 May 1997, Dr McCallum should have delivered the appellant by Caesarean section before 0400 hours. The appellant alleged that if a Caesarean section delivery had been carried out he would not have suffered from cerebral palsy.

13 At trial, the appellant alleged, in essence, against the Minister that the Minister's nursing staff failed properly to notify Dr McCallum of various events in the course of the appellant's mother's labour, failed continuously to monitor the progress of her labour with cardiotocography (CTG) monitoring, and failed properly to manage a sudden incident of bradycardia which occurred shortly before delivery.

14 At trial, Dr McCallum accepted that if the appellant had presented in a footling breech position when he examined the appellant's mother on 7 or 14 May 1997, it would have been negligent for him not to have delivered the appellant by Caesarean section. However, Dr McCallum alleged that the appellant had in fact presented in an extended (frank) breech position on 7 May 1997, and in a flexed (complete) breech position when his mother was admitted to the Hospital on the evening of 14 May 1997.

15 Dr McCallum alleged that even if, which he denied, the appellant had presented in a footling breech position when he examined the appellant's mother on 7 or 14 May 1997, the appellant had actually sustained his cerebral palsy as a result of some compromise which had occurred before the commencement of the labour and delivery process, and not during that process.

16 At trial, the Minister alleged that at all material times the appellant's presentation was as a flexed (complete) breech. There was nothing out of the ordinary about the labour and delivery process before the sudden incident of bradycardia, that would have required a Caesarean section. Upon the occurrence of this incident, the proper course of action was to deliver the appellant as soon as possible, and this was done by the Minister's nursing staff. After the sudden incident of bradycardia, it was unlikely that a Caesarean section could have been organised and performed in less time than it actually took to deliver the appellant.

17 Like Dr McCallum, the Minister alleged that, in any event, the appellant had actually sustained his cerebral palsy as a result of an established antenatal neuropathology, rather than hypoxia during birth.

18 There are, in essence, three types of breech presentation.

19 First, there is the frank or extended breech. This occurs when the lower limbs are fully flexed at the hip and fully extended at the knee so the feet are at about head level.

20 Secondly, there is the flexed or complete breech. This occurs when the hips and knees are flexed so that the buttocks and feet are level.

21 Thirdly, there is the footling or incomplete breech. This occurs when the legs are extended downwards so that the feet (or a foot) are the presenting part, and the foetus is, in essence, in an upright or standing position.

22 The usual presentation for a foetus before delivery is the cephalic presentation. The foetus' head (which is the largest part of the foetus) is the presenting part.

23 When there is a footling or incomplete breech, the feet can enter the introitus before the cervix is fully dilated. There is a risk that the feet, legs and trunk will be delivered through the incompletely dilated cervix, but the head cannot be delivered. This is known as head entrapment. Also, when there is a footling or incomplete breech, the presenting part does not fit snugly with the introitus and, in consequence, when the membranes rupture there is a greater risk of the cord prolapsing through the cervix. If the cord prolapses, the cord will be compressed and the supply of oxygenated blood to the foetus will be disrupted.

24 When a flexed or complete breech occurs, the feet and buttocks are the presenting part. They are unlikely to be delivered until the cervix is completely dilated.

Overview of the management of the appellant's mother in the Hospital

25 As I have mentioned, on 14 May 1997, the appellant's mother was admitted to the Hospital for an induced vaginal delivery. Dr McCallum intended that the appellant's mother should have a trial of labour and, if this proceeded normally, the appellant would be delivered vaginally.

26 Dr McCallum examined the appellant's mother at about 1800 hours on 14 May 1997. He conducted an ultrasound examination. According to Dr McCallum, the appellant was then in a flexed or complete breech position. Dr McCallum administered 1 mg of Prostin, a prostaglandin which ripens the cervix and may induce labour. He also ordered electronic CTG monitoring to commence 30 minutes after the administration of the Prostin. The monitoring was to continue for 30 minutes. Pursuant to this instruction, electronic CTG monitoring commenced at 1821 hours and continued until 1915 hours. Dr McCallum drew a diagram in the Integrated Progress Notes. There was a dispute at trial as to whether his diagram depicted a flexed or complete breech or whether it depicted a footling or incomplete breech.

27 At about 0315 to 0330 hours on 15 May 1997, the appellant's mother's membranes ruptured spontaneously. The Hospital's nursing staff performed a vaginal examination at about 0330 hours. This confirmed that the cervix was dilated to 2 - 3 cm. The cord was not felt. At about 0400 hours, the appellant's mother was taken to the labour ward. An entry was made in the Integrated Progress Notes that the mother was 'contracting more strongly'.

28 At trial, the parties disputed the timing of events which occurred after 0400 hours on 15 May 1997.

29 The appellant alleged that his mother went to the toilet at about 0415 hours.

30 The Integrated Progress Notes, with a recorded time of 0430 hours, say:

[W]ent to toilet to void and felt 'something'. Returned to bed and placed in lithotomy position. Foot on view. Dr Date and Dr McCallum notified at 0440 hours. FHR ∃ 90 not picking up after contractions [that is, the sudden incident of bradycardia]. O2 6LPM (oxygen 6 litres per minute) via Hudson mask applied to mother. Pushing. Assisted delivery of shoulders and head. Baby [apnoeic] at birth. N Gilks RM.

31 The time '0430' appears in the margin. In the two previous entries, times are recorded in the body of the notes by midwife Gilks. The time '0430' also has a mark above the 3. The time '0450 hours' appears in the margin in the line commencing 'view'. The time '0500' appears in the margin in the line commencing 'pushing'.

5am called to ward with meconium and ∃ FH arrived and breech assisted delivery within 2 minutes of arrival. Baby pale. FH approximately 60 - areflexia. Doctors called to LW (Labour Ward). ∀ resuss (resuscitation) and mask O2 with cardiac massage. Dr Date arrived. HR # 120 within 1 minute but no respiratory effort until approximately 8 minutes with occ (occasional) gasping. Aspirated mucus and attempted intubation at approximately 10 - 12 minutes. FH and colour good. Dr Jeffries arrived approximately 16 mins and took over resuss.

In the note there is a symbol used for 'approximately'.

33 Midwife Gilks also recorded in the Integrated Progress Notes:

'Breech delivery at 0458 hours. Dr McCallum in attendance as shoulders were delivering. Rapid delivery. Baby did not breathe at birth. [Resuscitation] commenced immediately. 0508 hours Dr Date in attendance. Dr Jeffries called. Baby bagged and masked until intubated at 0520 hours. N Gilks RM.

34 The trial judge's findings on the disputed timing of events were these:

Although not demonstrably certain (some of the hospital recording involved a degree of retrospection) it appears that the emergency consequent upon the drop in the foetal heart rate occurred between 0430 and 0450 (probably 0440). [Dr McCallum] was immediately notified, would have arrived with 5 minutes of notification, and [the appellant] was delivered within minutes of his arrival - certainly by 0457 hours. Nurse Jones estimated a period of 15/20 minutes between emergency and delivery. Thus the maximum period of foetal bradycardia would have been no more than 15 or 20 minutes, and the statement of claim does not seem to assert otherwise [206].

35 The Apgar score is a score to indicate the condition of a baby at birth. A score of 0, 1 or 2 is awarded for each of 5 criteria, namely colour, respiration, reflex irritability, muscle tone and heart rate. The appellant's Apgar scores were recorded as 1 (for heart rate) at 1 minute, 3 (2 for heart rate and one for colour) at 5 minutes, 3 at 10 minutes and 3 at 15 minutes.

36 The principal witnesses at trial were as follows:

(e) Professor Colditz, professor of perinatal medicine;

(f) Dr Molloy, a consultant obstetrician and gynaecologist;

(g) Mr MacKay, formerly a professor of obstetrics and gynaecology;

(h) Mr Korda, a fellow of the Royal College of Obstetricians and Gynaecologists;

(i) Professor MacLennan, professor of obstetrics and gynaecology;

(j) Associate Professor Pettigrew, an obstetrician and gynaecologist;

(m) Ms Freeman, a qualified midwife and, at the material time, a trainee midwife.

The trial judge's findings of fact and conclusions

38 The trial judge found that the appellant had not presented as a footling breech on 7 or 14 May 1997 [239]. He also found that the presentation immediately before birth was a flexed or complete breech [239].

39 His Honour, having found that there was not at any material time a footling breech, went on to consider whether Dr McCallum had been negligent in any respect in the manner in which he had managed the appellant's mother's labour on the basis of his finding that the appellant had presented in a flexed or complete breech position.

40 The trial judge reviewed the expert evidence concerning whether it was appropriate in 1997 for an obstetrician to carry out a vaginal delivery of a baby presenting as a flexed or complete breech:

[The appellant's] case was essentially mounted on the basis that there was a footling breech, and there can be no doubt that if that had been the position, to advise and proceed to natural delivery would have been negligent. That is readily conceded by [Dr McCallum]. However he has failed to establish the allegation that there was a double footling breech presentation.

Having regard to the manner in which the case was presented it is necessary however to determine whether the exercise of reasonable obstetric care and skill dictated it was inappropriate in 1997 to undertake the natural delivery of a flexed or complete breech.

Generally, the witnesses called by [the appellant] had some reluctance addressing that issue, being firmly of the view that [the appellant] presented as a footling breech, and before proceeding further, it is necessary that I make some general remarks about my assessment of the medical experts.

Dr Thonell, an experienced paediatric radiologist, interpreted and described the results of ultrasound and CT examinations. There does not seem to be any dispute as to his finding of basal ganglia injury, the issue being its cause and timing.

Professor Colditz is a perinatal clinician with a special interest in brain development and damage in the foetus and the new born. In the end there did not appear to be a great deal of divergence between his views and those of Professor MacLennan, save as to causation. He was influenced by the belief that there had been a footling breech presentation.

Dr Molloy was firmly of the view that there was a footling breech presentation and confirmed that his views were based on that premise, and the events timing from the hospital records. There were occasions during his evidence when he displayed a lack of objectivity. He was unaware of the Hannah trial initiative research which was very relevant to the issues under discussion, and to his discipline.

Mr MacKay lacks contemporary practical involvement in obstetrics, and the views he expressed were clearly influenced by his conclusion that there was a footling breech presentation. His evidence that when the foetal heart rate dropped to 90 steps should have been taken to delay the birth process, did not find support with any other witness. He appeared too enthusiastic in his support of the case for [the appellant].

Mr Korda's views were also clearly influenced by the belief that there was a footling breech presentation.

Professor MacLennan appeared to have the broadest experience as to the issues involved in this particular case. He was heavily criticised about his published views on medical negligence and the legal process. Also that he was biased because he has been sued for professional negligence. His views would not be regarded by many as aberrant and do not reflect adversely on the quality of his evidence which he gave in an objective, thoughtful and analytical manner. I felt however that he often demonstrated a requirement for scientific proof before accepting a position.

Associate Professor Pettigrew and Dr Renou appeared to have considerable practical and contemporary experience with the issues involved in this action, and generally I accept their evidence.

Dr Molloy accepted that provided the foetus was not large (which was the case), and because Mrs McLennan [the appellant's mother] had a previous cephalic delivery, it would not have been inappropriate to have contemplated natural delivery in the case of a flexed or complete breech, although expressing the view that there would need to be monitoring throughout labour.

Mr MacKay agreed that a frank breech and a flexed or complete breech did not create the same level of risk of cord prolapse or entanglement as a footling breech, and agreed reluctantly that prior to the outcome of the Hannah trial in the year 2000 there was no general obstetric practice in respect to advising caesarean section for other than a footling breech. He accepted that [the appellant] was quite a small baby, and that it was reasonable to expect that he would pose no problem negotiating the birth canal - as events demonstrated.

Mr Korda was of the view that in 1997 one would not have expected a caesarean section for a frank or extended breech, and agreed that the risks associated with a flexed or complete breech were only slightly higher than with an extended breech. He agreed that the standard of care in 1997 demanded the recommendation of a caesarean section for a footling breech, but that before the outcome of the Hannah trial became known it was the standard to allow a trial of labour for a flexed or complete breech. He was also of the view that full monitoring was required when there was natural delivery of a breech.

Professor MacLennan's evidence was that before the Hannah trial, excluding a footling breech, it was not known which form of delivery was best overall for mother and child. He accepted that in 1997 natural delivery of a flexed or complete breech was within the range of reasonable clinical options if there were no other known major clinical risk factors presenting; as demonstrated by the fact that complete breeches were included in the ethically approved international term breech trial (the Hannah trial). Prior to the Hannah trial there was no good evidence that delivering a complete breech by elective caesarean section was preferable to embarking upon a trial of labour and natural delivery.

Associate Professor Pettigrew expressed the view that as at May 1997 there was no evidence to suggest that a caesarean section carried greater benefit than vaginal delivery in terms of foetal outcome for a complete breech.

Dr Renou said that as at 1997 a decision to deliver a flexed or complete breech vaginally was appropriate, and particularly in Mrs McLennan's [the appellant's mother] case as she had a normal past obstetric history, and no other medical abnormalities there was no reason to suppose she shouldn't undergo a natural birth process.

Clearly, [Dr McCallum] was of the view that natural birth was appropriate, and Mrs McLennan [the appellant's mother] desired it [244] - [260].

41 His Honour's conclusion in relation to Dr McCallum's decision to carry out a vaginal delivery, based on his Honour's finding that the appellant had presented in a flexed or complete breech position, was as follows:

I am not satisfied on the balance of probabilities that it was negligent of [Dr McCallum] to advise Mrs McLennan [the appellant's mother] that it was appropriate to undergo a natural delivery. The Hannah trial is eloquent of the fact that the state of obstetric learning at that time was that it was not contra indicated [261].

42 Next, his Honour considered whether it was inappropriate for Dr McCallum to have utilised Prostin to ripen the appellant's mother's cervix before induction:

I am not satisfied that it was inappropriate for [Dr McCallum] to utilise the agent Prostin prior to induction. Professor Colditz agreed that it was commonly used. Dr Molloy considered that it was inappropriate, although seemingly on the basis that there was a footling breech presentation. He agreed that it was widely used in 1997. Mr MacKay expressed the view that it was the cause of the fairly rapid labour, had resulted in hyper-stimulation of the uterus, and that as the cervix did not need to be softened, its use was inappropriate. If used, careful observation, particularly of contractions, was necessary. He accepted however that generally speaking there was no problem with the use of Prostin to 'ripen' the cervix, and it was commonly used as at 1997. The evidence does not establish that there was hyper-stimulation of the uterus. Mr Korda also agreed that in 1997 it was common place to administer Prostin in an induction process for the purpose of 'ripening' the cervix, stating that whether or not it was employed was a decision to be arrived at following physical and ultrasound examination. Professor MacLennan who, as I have already observed, has particular knowledge of the use of Prostin, stated that it was of considerable benefit and an appropriate agent in achieving a safe, short and comfortable labour and better outcome overall, and was particularly useful in natural breech deliveries. Associate Professor Pettigrew regarded its use as appropriate. Dr Renou also regarded its use as appropriate, stating that a complete breech would not have been considered a mal-presentation in 1997, and that generally it facilitated expeditious and safe delivery, and was not likely to hyper-stimulate the uterus. [Dr McCallum], having carried out a clinical examination, was in the best position to determine the appropriateness of its use, and the manufacturer's recommendation did not preclude it. Its use in these circumstances was entirely appropriate, particularly as the evidence does not establish that there was hyperstimulation of the uterus [262].

43 The trial judge then examined whether the monitoring of the appellant's mother during labour was appropriate:

The [appellant] also alleges that there was inappropriate monitoring of Mrs McLennan [the appellant's mother] during labour, and in particular asserts that there should have been electronic monitoring. Dr Molloy was of the view that continuous monitoring was required, but that view seems to be based on the premise that there was a footling breech. He agreed that the recordings from electronic auscultation up until 0400 hours on 15 May 1997 was indicative of a perfectly natural onset of labour, but claimed that because there was a lack of continuous monitoring it was not known what was happening during contractions. Mr MacKay considered that in a case such as this, where there was an ever present risk of major umbilical cord compression, intermittent foetal heart rate auscultation was not appropriate. (I do not accept on the evidence that there was an ever present risk of major umbilical cord compression.) He accepted that the trace did not indicate that the contractions were having an adverse effect on the foetus, and that is accepted in the pleading. He agreed that in the low risk situation intermittent auscultation was appropriate, and that as at 1997 the general practice in maternity hospitals was to use manual auscultation, and only use electronic monitoring when there were some particular labour concerns. He also accepted that a CTG monitor (trace) required careful interpretation, and was not on its own a particularly useful test. It did not indicate the strength of uterine contractions, and it was possible to detect hyperstimulation by manual auscultation. Professor MacLennan stated that there is still considerable debate about the relative value of electronic foetal monitoring as against intermittent auscultation without good evidence of the superiority of either method, noting particularly that statistically electronic foetal monitoring had a false positive rate of 99.8 per cent, resulting in unnecessary caesarean deliveries. He agreed that one of the purposes of electronic foetal monitoring was to detect cord compression, and that the protocol in most hospitals in 1997 was that there would be a brief period of monitoring after membrane rupture, re-established when labour pains commenced. Notwithstanding, he was of the view that electronic monitoring during labour was not essential, and stated that was still not standard practice. Associate Professor Pettigrew was of the view that the extent of electronic monitoring in this case was entirely appropriate, and that the CTG trace appeared to be normal, there being no evidence of hyper-stimulation or intrauterine hypoxia, although he would have preferred to have seen the trace go on a little bit longer. He disputed that continuous CTG monitoring was required, stating that it was not the practice in most institutions. Dr Renou also regarded the CTG trace as essentially normal, considering that at the time of the cessation of the trace the foetal heart rate was normal, and the uterine contractions were not significant. He did not support the necessity for electronic monitoring.

The evidence establishes that the foetal heart rate was unremarkable up until at least 0425 hours.

Having regard to the fact that the foetus did not present as a footling breech, I am not satisfied on all the evidence that electronic auscultation during the period proximate to the insertion of Prostin, followed by what appears to be regular manual auscultation up to and during labour was inappropriate. I accept the evidence of Professor MacLennan, Associate Professor Pettigrew and Dr Renou that as at May 1997 a competent obstetrician exercising reasonable care and skill would not in this case have regarded continuous CTG monitoring as necessary [263] - [265].

44 His Honour then examined briefly an allegation in the statement of claim as to the inappropriateness of an induced delivery:

The statement of claim refers to the inappropriateness of an induced delivery, although that seems to be based on the proposition that there should have been an abdominal delivery. In any event there appears to have been a natural onset of labour, and the evidence does not establish that it would have been medically inappropriate to have induced delivery having regard to the imperatives outlined by the [Dr McCallum] [266].

45 In the result, the trial judge determined that the appellant had failed to make out any of his allegations of negligence against Dr McCallum [267].

46 His Honour also found that the Minister had not been negligent. His findings and conclusions were these:

[Dr McCallum] was a visiting medical officer and the sole obstetric/gynaecological specialist practising at the Kalgoorlie Regional Hospital. The nursing staff of the hospital not surprisingly followed his medical directions; and unless the [Minister] knew or ought to have known that any directions given constituted inappropriate medical practice, it would not be in breach of its duty to [the appellant] to comply with them.

The burden of the expert evidence is that the CTG trace demonstrated an unremarkable position in respect of the foetal heart beat and uterine contractions. Clearly the hospital's obligation only dictated reporting any adverse or unexpected result to [Dr McCallum], who incidentally viewed the trace prior to leaving the hospital, at which stage it had been active for about 15 minutes. [Dr McCallum's] evidence was that there was nothing demonstrated by the trace recording that would have caused him to alter the birth plan in any way. Had the staff of the [Minister] brought the total recording to [Dr McCallum's] attention it would not have been of consequence.

I accept [Dr McCallum's] evidence that Nurse Gilks rang him in the early hours of 15 May to advise that Mrs McLennan's [the appellant's mother] membranes had ruptured, and provide other clinical information. Having regard to her professionalism that would not be unexpected. She was advised by [Dr McCallum] to carry on with normal management.

Having regard to my finding that continuous CTG monitoring was not required, and that manual auscultation was appropriate, the [Minister] was not negligent in failing to implement continuous electronic monitoring, or to institute electronic monitoring after the rupture of the membranes.

The evidence establishes that until 0430 hours on 15 May 1997 there was no clinical indication that labour was not proceeding normally, and when the foetal heart beat was recorded at 90 the only practical and rational step was to deliver [the appellant] as quickly as possible; necessarily naturally. Appropriate steps were taken in that regard. Any course of action not directed to that end was contrary to proper medical practice.

It has not been established that the [Minister] was in breach of duty to [the appellant] [268] - [273].

47 Next, the trial judge addressed the issue of causation. His Honour was not satisfied that the appellant's condition arose out of any particular event during the labour or delivery process. He began by reviewing the expert evidence:

It is accepted that [the appellant] was born with severe encephalopathy, and the question is what was its cause.

Dr Thonell stated that where a baby's brain was denied oxygen it would manifest in brain swelling and reduced attenuation in parts of the brain that had been ischaemic. Maximum swelling would occur between 2 to 3 days of the triggering event and then begin to resolve. If swelling was observed radiologically all that could be said is that it had occurred within 2 or 3 days of its identification. His interpretation was that the cranial ultrasound performed on 16 May 1997 indicated moderate generalised oedema. The cranial ultrasound performed on 20 May 1997 suggested some resolution. The CT scan carried out on 20 May 1997 indicated widespread changes suggestive of area of cerebral oedema or infarction. He considered that scanning demonstrated increased blood perfusion in the basal ganglia most often associated with a sudden severe hypoxic event. The likelihood was that the changes observed radiologically were referable to an event or events either shortly before, during or immediately after birth, and that it would require a severe and sudden injury to the brain to result in the observable damage to the basal ganglia.

Professor Colditz, a participant and contributor to the 1999 International Consensus Statement, confirmed the view expressed in the statement that acute intrapartum events were an uncommon cause of cerebral palsy. A foetus was well accustomed to living in an hypoxic environment and hypoxia alone was unlikely to damage the foetal brain. Brain damage resulted from a complete lack of oxygen to the brain tissue which would result if the blood flow failed, possibly resulting in hypoxic ischaemic encephalopathy. He agreed that cerebral palsy was more commonly encountered in a growth restricted foetus, although the vast majority of growth restricted babies did not develop cerebral palsy. Growth restriction was a risk factor. Also, that the risk of cerebral palsy was higher for a foetus in breech presentation, although again the vast majority of those in breech did not develop that condition. At trial he resiled from the position he had earlier taken, and agreed that [the appellant] was growth restricted (below the 10th percentile) and that intrauterine growth restriction was a risk factor for cerebral palsy which he put at between 1.6 to sixfold. His view was that the radiological evidence of basal ganglia injury was confirmatory of a severe hypoxic ischaemic injury. He conceded that he didn't not know what the singleton hypoxic event was causing the condition because the uterus had not ruptured and the foetus was from all observations doing quite well until there was sudden and sustained bradycardia 'for no particular reason'. He then inferred that there had been an hypoxic event namely cord compression notwithstanding that he was unable to identify it or its timing. He accepted that the hospital records indicated that the foetal heart rate was normal up until 0425 hours on 15 May 1997.

Dr Molloy considered that [the appellant] was probably in an hypoxic state because of cord compression. Compression was deleterious when it occurred over a long period of time.

Mr MacKay considered that it was virtually certain that the drop in the foetal heart rate was caused by cord compression or possibly hyperstimulation. He agreed that [the appellant], being a small baby, would pose no problem negotiating the birth canal. He drew the inference that there was cord compression from the fact that in his view there was no other logical explanation for the fall in the foetal heart rate.

[Dr McCallum's] evidence was that there had not been any head entrapment or cord prolapse or entanglement, and no clinical indication of cord compression. He arranged an ultrasound following admission and ascertained that there were no cord problems at that time.

Professor MacLennan stated that considerable research into cerebral palsy had led to the presently held the view that only 1 per cent of babies born with the condition were thought to have been compromised by an acute de novo primary asphyxial event in labour. Over the 38 years since he commenced practice the incidence of cerebral palsy in term births had not changed notwithstanding the dramatic escalation in the rate of caesarean sections before labour, more efficient surgical methods, a dramatic increase in electronic foetal monitoring, and better neonatal resuscitation. He considered that [the appellant's] birth [weight] was around the third percentile, and that he had asymmetrical growth restriction. Professor MacLennan referred to the report of Dr Ian Walpole commenting on very deep hand and feet creases which was possibly indicative of an unsound intrauterine environment. The consensus of current scientific evidence was that the neuropathology of cerebral palsy was established silently during pregnancy, and that signs of foetal neurological compromise often did not appear until the stresses of labour. His view was that the risk of cerebral palsy was approximately tenfold in term babies under the 10th percentile in weight for gestational age. One third of babies born with cerebral palsy had an inflammatory response syndrome. A foetal heart rate of 90 was not indicative of total hypoxia and was present in approximately one third of all second stage labours. He accepted that in a small number of cases neuropathology could begin and become established in a healthy foetus following an acute hypoxic event intrapartum. His conclusion was that [the appellant] was already chronically stressed with resultant intrauterine growth restriction and reduced reserves, and experienced further stress in a rapid labour and assisted breach delivery. There was no theoretical explanation why an intact healthy foetal brain would have become acutely and severely ischaemic or hypoxic during what was a short labour, and it was more likely that the neuropathology of the cerebral palsy was already established before labour. He stated that it was impossible for a radiologist to differentiate between late peri-natal neurological compromise and that in a growth retarded foetus where final and irreversible neuropathology was established only in the last 2 hours before delivery. Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck or fell down and got compressed by the presenting part above it. Research had demonstrated that intrauterine growth restriction was a major risk for cerebral palsy. He would not accept that there was acute de novo hypoxia between 0440 hours and 0457 hours, stating that [the appellant] was very severely growth restricted (23 per cent down on his weight) indicative of the fact that he had been chronically [compromised] for weeks. He was not a healthy baby going into labour.

Dr Renou referred to [the appellant's] birth weight stating that he was born in a very poor condition with gross central nervous system dysfunction which was unlikely to be the consequence of the quick and uncomplicated labour. He thought that the CTG trace suggested an abnormal response to the normal stresses of early labour in a baby who already had severe central nervous system dysfunction.

Dr Walsh, a paediatric neurologist, speculated that [the appellant] may have suffered some adverse events during pregnancy which could have made him particularly sensitive to a mild degree of hypoxia at birth; apparently being troubled by the incongruity between the benign labour and the neurological outcome. He felt that the EEGs were consistent with hypoxic ischaemic encephalopathy.

Another paediatric neurologist Dr Lindsay Smith reported on 22 October 2002 (Exhibit 10.93) that:

'The major thrust as I indicated in my report of the Monday the 2nd of September 2002 on page 4 first paragraph is whether or not [the appellant] was abnormal prior to delivery or not. I posed this question to mother directly during the consultation in relation to the unexplained, presumed to be drug reaction to sodium malproate, coma at the age of 3 years. The alternative explanation for this is that he has an inborn error of metabolism that falls in to the mitochondrial group and that the ability of the brain to withstand the stresses and strains of both delivery and of other post natal events is severely compromised leading to a decrease in function. This does not obviate the fact that such stresses and strains did occur and if it is reasonable that he had a pre-existing condition then certainly the mode of delivery would have exacerbated his present level of disability. I strongly recommend that the specific question be directed to his treating physician Dr Avihu Boneh, Metabolic Physician, Genetics Health, Royal Children's Hospital, Flemington Road, Parkville, in relation to the question of the underlying diagnosis and the likelihood that this young man had a pre-existing abnormality.'

The evidence is silent as to any metabolic enquiry.

Dr Ian Walpole a consultant geneticist reported on 4 November 1997 (Exhibit 10.16) inter alia that:

'Findings of note were multiple pressure dimples on bony prominences, and it was difficult to extend the fingers of both hands, right more than left. The transverse palmar creases were extremely deep and I believe would be indicative of intrauterine fisting...

I think that in light of the nature of clinical signs present at birth the intrauterine foetal condition had not been sound, as reflected in the poor response to birth stress, the very deep hand and foot creases which may be attributed to long standing clenching and the subcutaneous dimples as seen in hypokineses.'

Considerable attention was directed during the trial to the Consensus Statement and the factors which it requires to be established before it can be asserted that cerebral palsy is the result of an acute intrapartum hypoxic event. Clearly the Statement is looking at causation from a scientific rather than legal perspective. The Court's task is to determine whether 'as a matter of common sense' on the balance of probabilities [the appellant's] condition can be attributed to an acute intrapartum hypoxic event. The Consensus Statement is significant however in that it is an acknowledgment by a substantial international body of medical expertise in this area that cerebral palsy is rarely the consequence of an acute intrapartum hypoxic event. Also that intrauterine growth restriction appears to have a reasonable association with the condition (it is a risk factor). Further that there is doubt as to the efficacy of electronic foetal monitoring [278] - [289].

48 His Honour then considered the circumstances of the present case in the context of the expert evidence:

It is axiomatic that the burden of proof is on the [the appellant] to establish on the balance of probabilities that the condition of cerebral palsy was caused by an event during labour. ('a period of oxygen deprivation' - par 34 of statement of claim.)

The evidence of Nurses Jones, Freeman and [Dr McCallum], and the integrated progress notes and partogram, demonstrate that there was no rupture of the uterus, placental abruption, head entrapment, or cord entanglement or prolapse; and there was a rapid labour and delivery.

[Dr McCallum] did not identify any clinical evidence of cord compression, and having regard to the speed of the delivery, if such there was, it would have been of short duration and would not have been expected to have resulted in brain damage.

Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck, or fell down and got compressed by the presenting part above it. There is no evidence of such occurrence.

The experts who support the proposition that there was cord compression resulting in hypoxia and subsequent brain damage, appear to draw that inference from the fact that they believe there was a footling breech presentation; the drop in foetal heart rate with none detectable [sic] immediately prior to birth; the subsequent radiological imaging; and an inability to ascribe any other cause.

As against that there was an apparently benign labour, and I am satisfied that [the appellant] was asymmetrically growth restricted, indicative of an unsound intrauterine environment, which is a risk factor having an association with cerebral palsy. That raises the possibility that the drop in the foetal heart rate was part of the clinical reaction of a chronically compromised foetus to the normal stresses of labour.

Bearing in mind that [the appellant's] heart rate was 60 immediately following delivery, I have difficulty accepting that his heart was not functioning as he was delivered.

Dr Thonell attributed the radiological evidence of brain damage to an event or events either shortly before, during, or immediately after birth. The evidence establishes that [the appellant] did not make any real respiration effort for approximately 8 minutes after birth which was not explored during evidence but would seem to be an extremely relevant factor in this respect.

The evidence also establishes that an acute intrapartum hypoxic event is a relatively rare cause of the condition [290] - [298].

49 The trial judge concluded that identification of the cause of the appellant's condition was, on the whole of the evidence, a 'mere matter of conjecture' [300]. He was not satisfied that it arose out of any particular event in labour [300].

Certain interlocutory procedures in the appeal

50 On 25 May 2007, the appellant filed his appeal notice.

51 On 16 May 2008, the appellant filed an application in the appeal for, relevantly:

(a) leave to re-amend his statement of claim in accordance with a minute dated 14 April 2008; and

(b) leave to amend his grounds of appeal in accordance with a minute dated 16 May 2008.

52 Before any order was made on the appellant's application, he filed a substituted minute of amended grounds of appeal dated 14 August 2008.

53 On 15 August 2008, Pullin JA ordered, relevantly:

(a) the appellant have leave to amend his grounds of appeal in terms of the minute dated 14 August 2008, but without prejudice to the right of Dr McCallum and the Minister to oppose the appellant's application for leave to re-amend his statement of claim in terms of the minute dated 14 April 2008;

(b) the appellant's application for leave to re-amend his statement of claim be heard together with the appeal; and

(c) if the appellant's application for leave to re-amend his statement of claim is dismissed, then the appeal be dismissed.

54 The appellant has not applied for a review by this court of any of the orders made by Pullin JA on 15 August 2008.

55 Dr McCallum and the Minister oppose the appellant's application for leave to re-amend his statement of claim.

56 The amended grounds of appeal, without the supporting particulars, read:

LIABILITY

Negligence of the first respondent [that is, Dr McCallum] and the second respondent [that is, the Minister] in the management on 15 May 1997

Ground 1

Negligence of the first respondent

1. The trial judge erred in fact in not finding the plea at paragraph 32(e) of the statement of claim was made out in so far as the first respondent was concerned, and that the first respondent was negligent in his management of the appellant's mother's ('Mother') labour on 15 May 1997 because he failed to, but should have directed Nurse Gilks at 0330, or the second respondent's staff before then, to notify him when the Mother came into established labour with strong and regular contractions, as she did at 0400, when the weight of evidence lead to such conclusion of breach, because the first respondent's own evidence was that:

1.1. He had an expectation that he would be informed of 'any changes' during the labour which included when established labour commenced, yet he had not clearly communicated such expectation to nurse Gilks or the hospital staff and his written standing instructions were vague as to when he was to be contacted;

1.2. he appreciated that because the appellant was in a breech presentation this increased the complexity and difficulty of his delivery (and was the reason he was involved);

1.3. he at all times anticipated the potential for a rapid and dramatic delivery and knew that any rapid delivery would be dangerous;

1.4. when he was contacted at 03:30 the labour was proceeding in an unexpected and abnormal fashion in that:

1.4.1. The first respondent's management plan had been to use Prostin to ripen the cervix, not to start contractions. For this he expected to give Syntocinon the next morning. The first respondent said that he did not expect contractions to develop until 8-12 hours after the Prostin was given soon after 1800. But in this case contractions began at about 1900, so the labour was not proceeding 'as normal'.

1.4.2. The first respondent said that if, contrary to his expectations, the Prostin did start some contractions, these would not have been labour contractions and would normally stop after a couple of hours (in this case after about 2000). But the contractions did not stop but rather continued and increased in intensity. The contractions at 0330 were unexpected labour contractions and not Prostin-related contractions so the labour was not proceeding 'as normal'.

1.4.3. The first respondent said that he was not expecting the membranes to rupture until labour contractions were established (strong and regular) and that if the membranes did not rupture the next morning after contractions started with Syntocinon then he would rupture them artificially, when the mother's cervix was fully dilated and at 'the last possible time.' The rupture of membranes at 0315, being prior to established labour, was unexpected and so the labour was not proceeding 'as normal'.

1.5. He knew that the appellant's Mother's labour was being primarily managed by Nurse Gilks on whom he relied to be informed of the progress of labour but he did not know Nurse Gilks and was unsure as to her experience and her knowledge of when he expected to be contacted.

1.6. He knew that there were no protocols in the second respondent directing the second respondent's staff, including Nurse Gilks, to:

1.6.1. Notify him when the Mother's contractions changed from being weak and irregular to strong and regular.

1.6.2. Notify him when the Mother was in established labour.

1.6.3. Ensure that the Mother did not ambulate in circumstances where a baby was in breech position, the breech was in the -2 station, the application was only 'fair', the Mother's membranes had ruptured, and the Mother was in established labour.

1.7. He had not informed himself at 0330 and did not know the station of the breech in the pelvis (assessed by Nurse Gilks as '-2' and so not a 'snug fit') or its application (only 'fair' and so not a 'snug fit') although this information was relevant to the risk of foot prolapse and cord compression.

1.8. He knew at 0330 that:

1.8.1. The appellant was small.

1.8.2. The appellant had changed in his breech position (frank, footling, extended, complete) several times in the weeks preceding the labour on 14 May 1997.

1.8.3. The appellant's position would change as labour progressed.

1.8.4. The appellant's Mother was having labour contractions, not Prostin-induced contractions.

1.8.5. There had been an unexpected, spontaneous rupture of membranes.

1.8.6. Progress may be rapid and so dangerous once labour became established with strong and regular contractions.

Ground 2

Negligence of the second respondent

1. The trial judge erred in fact in failing to find the plea at paragraph 33(b) of the statement of claim was made out and that the second respondent was negligent in its management of the Mother's labour on 15 May 1997 because the second respondent's staff failed to notify the first respondent when the Mother came into established labour after 0330 on 15 May 1997 at or about 0400, when the weight of evidence lead to such conclusion of breach, because the second respondent's staff were aware, or ought to have been aware, of:

2.1. The first respondent's expectation set out in paragraph 1.1, which he claimed he had communicated to the second respondent.

2.2. The same facts that the First Respondent was aware of set out in paragraphs 1.5, 1.6, 1.7, 1.8.3, 1.8.4 and 1.8.5.

2.3. It would be expected of any trained midwife to know to call the attending obstetrician at such point in circumstances of a breech presentation, spontaneous rupture of membranes, the breech assessed at -2 station and the application assessed at only 'fair' prior to the onset of established labour.

CAUSATION OF FOOT PROLAPSE

Ground 3

1. Had the trial judge not made the errors the subject of grounds 1 and/or 2, he should have found, because the weight of evidence overwhelmingly lead to such conclusion, that but for the first respondent's and the second respondent's negligence in management of the Mother on 15 May 1997 there would have been no prolapse of the appellant's foot at around 0415 hours. This is because:

3.1. Had the first respondent been notified as he should have been he would have realised that the Mother had come into established labour.

3.2. He would have known that the 'rapid and dramatic' delivery that he had anticipated was likely to occur very soon (as it did).

3.3. He would have attended the hospital promptly in advance of the anticipated 'rapid and dramatic' delivery as he said was his practice (although it was not the practice of all obstetricians).

3.4. He would have managed the remainder of the Mother's labour after 0400 as he said that Nurse Gilks should have done, namely by not permitting the Mother to leave her bed and go to the toilet (which is where the foot prolapse occurred).

3.5. He would have managed the remainder of the Mother's labour after 0400 as he and the unanimous expert evidence said should have been done by assessing the Mother and, if he determined that the appellant was then in a footling breech position, he would have performed a caesarean delivery.

CAUSATION OF APPELLANT'S CEREBRAL PALSY

Ground 4

1. Unless the Court of Appeal is satisfied that the trial judge's comments on causation were obiter, the trial judge erred in fact in failing to find that it was the prolapse of the appellant's foot (that would not have occurred, were it not for the first and second respondents' breaches) that caused the appellant's prolonged bradycardia, that this caused hypoxia and in turn [caused] the appellant's brain damage and cerebral palsy.
2. Such finding ought to have been made because:

5.1.1. failed to appreciate the significance of important evidence on this issue;

5.1.2. attached importance to irrelevant evidence going to such issue in finding that cause for the appellant's condition was a 'mere matter of conjecture' (R300), and

5.2. the weight of evidence ought to have lead to such finding.

The proposed re-amendments to the statement of claim

57 The proposed re-amendments to the statement of claim comprise the addition of new subpars (f) and (g) to par 34.

58 I reproduce pars 32, 33 and 34 of the statement of claim, with the proposed re-amendments underlined:

1. The First Defendant [that is, Dr McCallum] breached his duty of care to the Plaintiffs.

(a) Arranged for induction delivery of the First Plaintiff [that is, the appellant] on 14 May 1997 at the First Defendant's initial attendance upon the Second Plaintiff [that is, the appellant's mother] without discussing the risks with her.

(b) Induced the Second Plaintiff's labour at about 1600 hours on 14 May 1997:

(i) Despite the Second Plaintiff being parous;

(ii) despite the Second Plaintiff's cervix being 2 centimetres dilated;

(iii) despite there being a double footling breech presentation; and

(iv) without due regard to the possibility of the labour progressing rapidly overnight and/or complications occurring during the labour due to the obstetric history.

(c) Induced the Second Plaintiff's labour with Prostin when he knew or ought to have known that Prostin would stimulate uterine contractions, thereby increasing the likelihood of the risks eventuating and the First Plaintiff suffering oxygen deprivation in the uterus.

(d) Ordered the effects of the induction drug (Prostin) to be monitored by CTG, but for only 30 minutes, and left the Hospital prior to reviewing the result of the CTG, and without leaving any or any adequate instructions with employees or agents of the Second Defendant as to:

(i) further action that should be taken if the monitoring indicated contractions were occurring; and

(ii) when he should be advised as to the progress of the labour, and any complications with the labour.

(e) failed to leave any or any adequate instructions with employees or agents of the Second Defendant as to when he should be contacted during the Second Plaintiff's labour with the First Plaintiff.

1. The employees and agents of the Second Defendant, and for whom the Second Defendant is vicariously liable, breached the Second Defendant's duty of care to the Plaintiffs.

PARTICULARS OF BREACH OF SECOND DEFENDANT'S DUTY OF CARE

The Second Defendant:

(a) Failed to report the results of the CTG monitoring to the First Defendant either during the period of the CTG, or at any time prior to about 0440 hours on 15 May 1997.

(b) Failed to advise the First Defendant of the rupture of the Second Plaintiff's membranes at 0315 hours on 15 May 1997 and the presence of uterine contractions, and/or the presence of stronger contractions at 0400 hours on 15 May 1997.

(c) Failed to continuously monitor the progress of the Second Plaintiff's labour electronically using CTG, given the risks.

(d) Failed to commence cardiotocographic monitoring after spontaneous rupture of the membranes, especially considering the obstetric history referred to in paragraph 5.

(e) Failed to take any or any adequate steps to attempt to increase the First Plaintiff's heart rate (which had dropped to about 90 beats per minute) between about 0430 hours and 0500 hours. Apart from giving oxygen to the Second Plaintiff, a paediatrician should have been immediately notified and attempts should have been made to improve the blood flow through the umbilical vessels by:

(i) Reducing compression on the umbilical cord by positioning of the Second Plaintiff (such as the semi-Trendelenberg position);

(ii) Attempting to replace the First Plaintiff's leg in the uterus to reduce pressure on the umbilical cord; and

(iii) Administering tocolytic medication to reduce uterine contractions.

(f) The Plaintiffs repeat sub-paragraphs (b) - (e) of paragraph 32.

1. The First Plaintiff's injuries were caused by a period of oxygen deprivation sustained during the Second Plaintiff's labour with the First Plaintiff that would not have occurred or alternatively would have been of shorter duration with lesser long term sequelae to the First Plaintiff if:

(a) The First Plaintiff had been delivered by caesarean [section] prior to about 0400 hours on 15 May 1997.

(b) The labour had not been induced with Prostin which may have accelerated the labour, reduced the time for moulding of the aftercoming head of the First Plaintiff to occur and/or increased the likelihood of incomplete head flexion and/or foot prolapse and thereby increased the likelihood of umbilical cord compression and the risks occurring.

(c) The First Defendant had ordered more frequent manual and/or electronic monitoring that would have detected any decelerations in the First Plaintiff's heart rate due to the risks.

(d) The Second Defendant's employees and agents had asked the First Defendant to attend the Hospital after rupture of the membranes, and the First Plaintiff been thereafter delivered by caesarean section prior to about 0400 hours on 14 May 1997.

(e) The Second Defendant's employees and agents had monitored the First Plaintiff's heart rate manually and/or electronically during the Second Plaintiff's labour which would have detected decelerations of the First Plaintiff's heart rate, and subsequent earlier delivery of the First Plaintiff.

(f) The First Defendant had given adequate instructions to the employees and agents of the Second Defendant as pleaded in paragraph 32(e) which instructions would have been followed.

(g) Pursuant to those instructions, or otherwise as it should have done as pleaded in paragraph 33(b), the Second Defendant's employees and agents had notified the First Defendant of the unexpected change in the Second Plaintiff's labour pleaded in paragraph 20 and the First Defendant had managed the unexpectedly rapid labour in which case the events pleaded in paragraph 22 would have been avoided.

59 The proposed par 34(g) refers to pars 20 and 22 of the statement of claim, which read:

1. At about 0400 hours on 15 May 1997 midwife Gilks:

(a) Noted the Second Plaintiff was contracting more strongly.

(b) Took the Second Plaintiff to the labour ward.

(c) Noted the First Plaintiffs' heart rate was 128 beats per minute.

(a) The Second Plaintiff attended the toilet to void and felt something between her legs.

(b) The Second Plaintiff returned to bed and was placed in the lithotomy position.

(c) The First Plaintiff's foot was noted to be on view, that is, there was a foot prolapse ('the foot prolapse').

(d) The First Defendant was not contacted by an employee or agent of the Second Defendant.

60 At the hearing of the appeal, this court reserved its decision on the appellant's application to re-amend the statement of claim.

The appellant's proposed re-amended orders wanted

61 The appellant's amended orders wanted include, relevantly, that the appeal be allowed, the judgment of the trial judge be set aside, and judgment be entered for the appellant against Dr McCallum and the Minister in the sum of $8,000,000 plus interest thereon calculated from 6 November 2006.

62 However, remarkably, the appellant's counsel made application, in his oral submissions in reply, to re-amend the orders wanted by abandoning the claim for judgment to be entered for the appellant and, instead, claiming 'a retrial generally before a different judge of the District Court, subject to costs'.

63 Dr McCallum and the Minister oppose the appellant's application to re-amend.

64 At the hearing of the appeal, this court reserved its decision on the application.

The appellant's proposed new case in the appeal

65 The appellant proposes in substance to advance a new case in the appeal. The new case involves four critical elements.

66 First, the appellant seeks to contend that the Hospital's nursing staff should have informed Dr McCallum immediately of the events which occurred at about 0400 hours on 15 May 1997, namely, the mother was 'contracting more strongly' and she had been transferred to the labour ward.

67 Secondly, the appellant seeks to contend that Dr McCallum should previously have given instructions to the nursing staff which would have resulted in their informing him immediately of these events.

68 Thirdly, the appellant seeks to contend that if Dr McCallum had been informed immediately of the events in question, he would have managed the appellant's labour in a manner that would have prevented an alleged prolapse of the appellant's foot at about 0415 hours. This prolapse was said to have involved the foot passing through the mother's vagina before full dilation of her cervix. As to this third element, two alternatives are put. The first alternative alleges that Dr McCallum would have attended the Hospital between 0400 hours and 0415 hours and prevented the prolapse of the foot. The second alternative alleges that it was a matter for Dr McCallum as to whether he should have attended the Hospital or not and, if he did not attend the Hospital, he would have given instructions to the nursing staff by telephone to monitor the mother continuously and to keep her in bed.

69 Fourthly, the appellant seeks to contend that Dr McCallum's failure to give these instructions, and the failure of Dr McCallum and the nursing staff to manage the labour in accordance with instructions he would have given if the nursing staff had informed him immediately of the events that occurred at about 0400 hours, caused the alleged prolapse of the appellant's foot at 0415 hours which, so the appellant contends, resulted in compression of the cord which, so the appellant contends, resulted in bradycardia and an hypoxic event after 0430 hours which, so the appellant contends, resulted in his cerebral palsy.

70 Before this court, counsel for the appellant claimed that the 'evidentiary foundations' of the proposed new case were laid at trial but, unfortunately, trial counsel became 'distracted' and 'the edifice was not built upon the evidentiary foundation that had been laid' (app ts 61).

71 Later in his submissions, counsel for the appellant conceded that the proposed new case had not been 'fully litigated' at trial (app ts 87).

72 At the hearing of the appeal, this court reserved its decision on whether the appellant should be permitted to advance his proposed new case.

73 Section 79(1) of the District Court of Western Australia Act 1969 (WA) provides, relevantly, that a party to an action or matter who is dissatisfied with a final judgment may appeal from that judgment to the Court of Appeal. By s 79(3), the Court of Appeal has jurisdiction to hear and determine the appeal accordingly.

74 The nature of the rehearing before this court is as described by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118:

The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits [22].

75 The requirements and limitations of a rehearing of the kind which occurs before this court were described by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458. His Honour said:

The form of rehearing so provided 'shapes the requirements, and limitations, of such an appeal'. The relevant 'requirements' are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'.

The 'limitations' introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole [16] - [17] (footnotes omitted).

76 It is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination on the one hand, and the reasoning of a trial judge which is based on inferences drawn from facts that were undisputed or found by the trial judge on the other. See Fox v Percy [88]. As Kirby J observed in CSR:

Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it' [21] - [22] (footnotes omitted).

77 Normally, therefore, a trial judge's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the trial judge's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.

78 Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [23]. In Dearman, Isaacs J said:

The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).

79 In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23] (footnotes omitted).

The principles relating to the advancing of a new case on appeal

80 The principles relating to the advancing of a new case on appeal are well-established.

81 An appellant is bound by the conduct of his or her case at trial. In University of Wollongong v Metwally [No 2] [1985] HCA 28; [1984] HCA 74; (1985) 158 CLR 447, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483). (emphasis added)

82 The substance of this statement was reiterated in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 by Gibbs CJ, Wilson, Brennan and Dawson JJ (7 - 8):

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd ((1950) [1950] HCA 35; 81 CLR 418, at 438); Bloemen v The Commonwealth ((1975) 49 ALJR 219). (emphasis added)

83 The High Court returned to this issue in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491. Mason CJ, Wilson, Brennan and Dawson JJ emphasised that a point cannot be raised for the first time on appeal 'when it could possibly have been met' by calling evidence at the trial (497) (emphasis added). Their Honours allowed only these limited exceptions:

Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950), 81 CLR 418, at p 438; University of Wollongong v Metwally [No 2] (1985), 59 ALJR 481, at p 483; 60 ALR 68, at p 71; Coulton v Holcombe [1986] HCA 33; (1986), 162 CLR 1, at pp 7 - 8; O'Brien v Komesaroff [1982] HCA 33; (1982), 150 CLR 310, at p 319) (497).

84 Their Honours then explained the correct approach to deciding whether or not a point sought to be advanced on appeal was raised at trial:

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (see Dare v Pulham [1982] HCA 70; (1982), 148 CLR 658). In Leotta v Public Transport Commission (NSW) ((1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) ((1978) 52 ALJR 291, at p 294; 18 ALR 147, at pp 151 - 152), Jacobs J, with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated.

It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal (497).

85 Usually, the reasons of the trial judge are the best indication of what matters were in issue between the parties at the trial. See Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [50] (Gleeson CJ, McHugh & Gummow JJ).

86 In Whisprun, Gleeson CJ, McHugh and Gummow JJ restated the applicable principles and elaborated upon their rationale [51] - [52]:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8 - 9; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 [44]; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 496 - 497; cf R v Birks (1990) 19 NSWLR 677 at 683-685). Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645 - 646). Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

As Water Board v Moustakas ((1988) [1988] HCA 12; 180 CLR 491 at 498) makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' (Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497) (emphasis added).

87 The juridical basis of the principles I have been discussing appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J).

88 Finally, in this context, if an appellate court is satisfied that the appellant is seeking to advance a new case on appeal, there is no residual discretion under which the court may permit the new case to be run 'in the interests of justice'. See Findlay v State of Victoria [2009] VSCA 294 [169] (Ashley JA & Hollingworth AJA, Maxwell P agreeing). The interests of justice are embodied within the principles formulated by the High Court in the authorities I have discussed. See Findlay [169].

The principles governing the amendment on appeal of a statement of claim or defence at trial

89 This court has power to allow an amendment to a pleading if the case sought to be made on appeal by the party applying to amend is not materially different from the case that was litigated at the trial. See Bell v Lever Brothers Ltd [1931] UKHL 2; [1932] AC 161, 216 (Lord Atkin); Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1994) 49 FCR 409, 416 (Lee J, Black CJ agreeing); Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58 [48] - [49] (Hunt AJA, Mason P & Santow JA agreeing); Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; (2007) Aust Torts Reports 81-891 [194] (Buss JA, Steytler P agreeing).

The principles governing whether an appellate court should order a re-trial

90 Section 58(1)(a) and s 59(1) of the Supreme Court Act 1935 (WA) confer on this court the power to hear and determine an application for a new trial.

91 The exercise of the court's power to order a re-trial depends upon the demands of justice. See Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 39, where Mason CJ, Deane, Toohey & McHugh JJ said:

[T]here is no rigid principle of law or practice which precludes the making of an order for a new trial when a party fails to seek a direction or raise a point at the trial. The court's jurisdiction to order a new trial depends upon the demands of justice. But what is done or omitted to be done at the trial is an important consideration and will affect the exercise of the court's jurisdiction: see Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143, per Starke J at 158-159; Dixon J at 167; General Motors-Holden's Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234, per Barwick CJ at 242-243; Taylor J at 245; Menzies J at 257; Windeyer J at 259-260. See also University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, at 483; 60 ALR 68, at 71; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7-8; Water Board v Moustakas [1988] HCA 12; (1988) 62 ALJR 209, at 211; [1988] HCA 12; 77 ALR 193, at 196.

See also Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134, 141 - 142 (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ).

The organisation of the balance of these reasons

92 I will examine the merits of each of the grounds of appeal in the context of the trial judge's findings of fact, the evidence at trial, the proposed new case and the proposed amendments to the statement of claim. I will then determine whether the appellant should be permitted to advance the proposed new case in the appeal. Finally, I will deal with the application to re-amend the statement of claim and the application to re-amend the orders wanted.

Ground 1 of the appeal: the appellant's submissions

93 Counsel for the appellant asserted that the trial judge erred in failing to find that Dr McCallum had breached his duty of care to the appellant in that, as alleged in par 32(e) of the statement of claim, he had failed to leave any or any adequate instructions with the Minister's nursing staff as to when he should be contacted during the mother's labour. According to counsel, his Honour should have found that Dr McCallum was negligent in failing to give an express instruction that he was to be notified 'when the mother came into established labour with strong and regular contractions'. This instruction should have been given, at the latest, to midwife Gilks at about 0330 hours on 15 May 1997 when Dr McCallum had a telephone conversation with her.

94 Counsel for the appellant referred, in support of his contentions, to the following evidence at the trial.

95 First, counsel mentioned Dr McCallum's evidence that:

(a) he had an expectation of being notified of 'any changes' during labour (ts 399); and

(b) he wanted to be contacted by the nursing staff sooner rather than later because he wanted to ensure that he was present at the delivery, and he wanted to be notified so that he knew 'when to anticipate delivery so he could be prepared' (ts 349).

96 Secondly, counsel asserted that Dr McCallum had 'particular concerns' in relation to the appellant's delivery as a result of his breech presentation. These concerns were said to include:

(a) Dr McCallum knew that the appellant's breech presentation made it a more difficult and complicated delivery (ts 369, 391) and gave rise to 'special problems' including potential cord problems (ts 309).

(b) He knew that the appellant was small (ts 314) and, from the mother's previous labour (which was short), that the labour with the appellant was likely to be shorter (ts 316). It was likely that the appellant's position may change during the course of his birth (ts 380) and therefore, potentially, to a more dangerous footling presentation.

(c) As a consequence, he was always aware of the potential for what he described as a 'rapid and dramatic' delivery (ts 316).

(d) Further, he confirmed that any rapid (or precipitate) delivery can be 'dangerous' (ts 386).

(e) He did not expect delivery for 4 - 5 hours after being told at about 0330 hours that the mother's contractions were only weak and irregular (ts 333, 613).

97 Thirdly, counsel referred to the evidence of Associate Professor Pettigrew to the effect that where labour is induced with a breech presentation it is 'incumbent upon the consultant obstetrician to meticulously manage the labour' (ts 775). It was submitted that meticulous management is only possible if the obstetrician is aware of all developments of significance. Counsel argued that, despite Dr McCallum's expectation of being notified of 'any changes' during labour and his wish to be contacted by the nursing staff sooner rather than later, and despite his 'particular concerns' in relation to the appellant's delivery:

(a) there was no evidence that he had communicated these expectations or concerns to the nursing staff;

(b) his standing written instructions were vague and did not clearly stipulate timing for contact;

(c) despite his claim that there was a Hospital protocol dictating when he would be called (ts 398), it was clear on the evidence that there was no such protocol and that he was responsible for providing relevant instructions to the staff (ts 346 - 348, exhibit 10 and [268]);

(d) he gave instructions to midwife Gilks at about 0330 hours to 'carry on with normal management and give analgesia as required' (ts 333 and [120]); and

(e) even though the Hospital staff had identified progress in the mother's labour at or about 0400 hours, no contact was made with him (ts 334, 385 and 396).

98 Fourthly, counsel said there was no evidence of any instructions by Dr McCallum to the nursing staff, and no evidence of an appreciation by the nursing staff, of the necessity to inform Dr McCallum of 'any changes'.

99 Fifthly, counsel submitted that if Dr McCallum wanted to know 'when to anticipate delivery so he could be prepared' because he also knew that the labour might be 'rapid', 'dramatic' and 'dangerous', he needed to know when the mother's contractions changed character from being weak (every 4 - 5 minutes for 30 seconds) to stronger contractions (as a result of which she was moved to the labour ward) (exhibit 10.37). It was submitted that the onset of stronger contractions at about 0400 hours meant that Dr McCallum's expectation at about 0330 hours that delivery would not occur for 4 - 5 hours was no longer reliable.

100 Sixthly, counsel referred to Dr McCallum's acceptance (ts 398) that knowledge of the rate of contractions was necessary so that he could know 'the rate of progress towards delivery'. He also accepted, so it was argued, by virtue of his explanation of the phases of labour, that it was likely the developments at about 0400 hours indicated progression of the mother's labour into the 'active phase' of labour (ts 351).

101 It was submitted that Dr McCallum should have made clear at about 0330 hours, during his discussion with midwife Gilks, that she needed to inform him of 'any changes'. Alternatively, this should have been made clear by express instructions at an earlier point. If this had occurred, so it was argued, he would have been informed at about 0400 hours of the change in the character of the contractions and the mother's transfer to the labour ward.

102 Counsel expressed the 'fundamental proposition' advanced by the appellant, as follows:

[A] consultant obstetrician who is managing an induced breech labour which he accepts is more difficult and complex than the norm, who has the concerns identified at ... [7] and who wishes the role set out at ... [6], has an obligation to ensure he clearly communicates his expectations as to when he will be contacted concerning progress with labour, to the hospital's staff.

Counsel said that this proposition did not require expert evidence. It was merely a 'communication issue'.

103 Ground 1 of the appeal contends in essence that the trial judge should have found that Dr McCallum was negligent in failing to give express instructions that he was to be notified when the appellant's mother came into established labour with strong and regular contractions.

(a) whether the appellant's mother 'came into established labour with strong and regular contractions' at about 0400 hours on 15 May 1997;

(b) if so, whether this information should have been conveyed to Dr McCallum immediately;

(c) if so, whether Dr McCallum should have given instructions to the Minister's nursing staff for that to occur; and

(d) whether these issues were fairly litigated at the trial.

105 The trial judge found on the evidence that 'until 0430 hours on 15 May 1997 there was no clinical indication that labour was not proceeding normally' [272].

106 The only evidence at the trial as to the appellant's mother's condition at about 0400 hours comprised:

(b) the entry in the Integrated Progress Notes to the effect that 'onset' of labour occurred at 0400 hours (GAB 39); and

(c) the entry in the Integrated Progress Notes made by midwife Gilks at 0400 hours that the mother was 'Contracting more strongly. Taken to LW ... FHR 128 reg' (GAB 40).

107 The entry made by midwife Gilks in the Integrated Progress Notes at 0400 hours must be understood in the context of the previous note made by her at 0330 hours that the mother was 'Contracting weakly, 30 seconds every 4-5 minutes. FHR 132 reg' (GAB 40).

108 The appellant's mother gave this evidence, relevantly:

(a) at about 0400 hours her contractions were getting stronger and she asked to be moved to the labour ward (ts 50 - 51, 97, 126, 127; GAB 145);

(b) she was walking around in the labour ward (ts 97); and

(c) her contractions were then a bit more regular and a bit more painful (ts 127).

109 Significantly, however, the trial judge considered the mother to be, generally, an unreliable witness. His Honour said in the course of evaluating her evidence:

I was left with considerable disquiet as to the reliability of Mrs McLennan's [the appellant's mother's] evidence on significant issues, and formed the view that it was, at least in part, a reconstruction influenced by a desire to advance her cause and disadvantage that of the defendants'.

I do not accept, particularly having regard to my assessment of the first defendant [Dr McCallum] as set out hereunder, that the consultation on 7 May 1997 was as cursory as suggested by Mrs McLennan [the appellant's mother]. She had been referred to the first defendant for expert advice and management in the delivery of a foetus in breech. Clearly she would have been anxious to ascertain the nature of any possible complications, attendant risks, and the appropriate manner of delivery. I am unable to accept that these matters were not addressed. In her statement made on 11 June 2001 (Exhibit 10.116) Mrs McLennan [the appellant's mother] stated 'During the appointment (7/5/97) we discussed my options of delivery if the baby remained in breech.' It is difficult to reconcile that statement with her evidence.

I do not accept that the first defendant gratuitously advised her that her unborn child was male. Quite apart from the reason given by the first defendant as to his practice in this respect, having regard to the fact that many prospective parents do not wish to know in advance of birth the sex of the baby, it would have been extraordinary to have proffered the remark attributable to him.

I do not accept that the first defendant stated that he only performed caesarean sections in an emergency. That alleged statement, apparently regarded as significant at trial, is not referred to in Mrs McLennan's [the appellant's mother] statement of 11 June 2001 and is not consistent with the first defendant's evidence of the rate of elective caesarean sections undertaken by him at the hospital. At the time the statement was made Mrs McLennan [the appellant's mother] apparently had a recollection of having two consultations with the first defendant prior to her confinement, now accepted as being erroneous.

I do not accept her evidence that at the consultation on 7 May 1997 Mrs McLennan [the appellant's mother] observed from the ultrasound screen that the foetus was in the upright position described by her. That is in conflict with the evidence of the first defendant, and his report to Dr Date (Exhibit 10.18) describing the lie as an extended breech. Also the reference in her statement that 'the baby was still frank breech'.

Mrs McLennan's [the appellant's mother] description of the level of her smoking during the pregnancy is in conflict with her previous recorded accounts; and I reject her evidence that she was unaware of the potential detriment of this habit to the foetus. Dr Date stated that it was his practice to bring this to the attention of his patients, and it was at the time a matter of common knowledge.

I reject her evidence that following the rupture of her membranes she was provided with a towel and directed to clean up the fluid. That would be an extraordinarily thoughtless and inappropriate step for a trained midwife to take, and it is denied by Nurse Freeman, who was the relevant person, notwithstanding that Mrs McLennan [the appellant's mother] nominated Nurse Gilks. Nurse Freeman stated that the fluid was of diagnostic consequence. It is also to be noted that in her statement Mrs McLennan [the appellant's mother] observed that following the rupture of the membranes a nurse responded 'and went and got some waterproof sheets and put them on the floor to soak up my result'.

I do not accept that Mrs McLennan [the appellant's mother] was advised by a nurse to go to the toilet and void, which would be contrary to appropriate nursing practice and is not indicated in her statement; or that when she went to the toilet she observed a baby's leg and foot protruding from her vagina. Nurse Jones had difficulty accepting that a full term pregnant woman in the seated position would be able to see the opening to her vagina, and it is to be observed that in her statement Mrs McLennan [the appellant's mother] detailed that:

'I felt something between my legs. I rang for the nurse and explained what had happened. She told me to get off the toilet and to go to the bed in the labour ward. I had some trouble getting to the bed due to the pain and had trouble getting up on the bed. Once up on the bed the nurse checked what was between my legs and I was told that it was a foot.'

That is essentially what is pleaded in par 22 in the Statement of Claim, and is not consistent with her evidence. I do not accept that she was at that time unassisted, nor that she was instructed not to push. That is in conflict with the evidence of Nurse Jones, which I accept.

Her evidence concerning the nasal symptoms she experienced, and the health problems experienced by Zachery, was unconvincing.

In the result I do not have confidence in the cogency of Mrs McLennan's [the appellant's mother] evidence, and insofar as it is in conflict with the evidence of the first defendant and/or Nurses Jones and Freeman, I reject it [207] - [216].

110 In any event, none of the witnesses at the trial was asked any questions which suggested that the evidence of the mother as to her contractions at about 0400 hours was of particular significance in relation to her management. Also, none of the witnesses suggested that any particular examination should have been carried out at about 0400 hours or that any particular result should have been recorded at about that time, for example, as to the duration of or interval between contractions, or as to the extent to which the cervix had dilated. Further, none of the witnesses suggested that the mother's condition as at about 0400 hours or the fact of her transfer to the labour ward should have been notified to Dr McCallum.

111 Each of the specialist obstetricians who gave evidence at the trial had been given a copy of the labour and delivery record and the Integrated Progress Notes. A letter of instruction to each of Mr MacKay, Dr Renou and Associate Professor Pettigrew specifically referred to the note at 0400 hours. All of the experts, except Dr Molloy, mentioned the note in their reports. However, none of them attached any significance, in their written or oral evidence, to the events which occurred at about 0400 hours, except that Mr MacKay mentioned in his first report that, according to the labour and delivery record, the onset of labour occurred at 0400 hours (GAB 271; ts 535). See, in relation to this issue, Mr MacKay's evidence at GAB 258, 260, 270, 271, 274, 278 and at ts 534, 535, 547, 548, 552; Dr Molloy's evidence at GAB 229 and at ts 609, 613, 627, 628, 636 (but note that his evidence at GAB 229, to the effect that Dr McCallum should have gone to the Hospital when telephoned at 0330 hours, was based on his belief, contrary to the trial judge's finding, that there was a footling presentation: ts 612); Dr Korda's evidence at GAB 293 and at ts 572; Dr Renou's evidence at GAB 558, 560, 565; Associate Professor Pettigrew's evidence at GAB 542 and at ts 779; Professor MacLennan's evidence at GAB 386 - 387, 396.

112 The appellant's trial counsel, in the course of cross-examining Associate Professor Pettigrew, asserted that when Dr McCallum was informed at about 0330 hours that the appellant's mother's membranes had ruptured spontaneously, he should have attended the Hospital immediately to manage her labour (ts 782). Dr McCallum's trial counsel objected to the question on the ground that it was not part of the pleaded case. The appellant's trial counsel responded that he would defer cross-examination on the topic (ts 782). He did not, however, return to it. The appellant's trial counsel did not, in the course of cross-examining Associate Professor Pettigrew, endeavour to attach any significance to the events recorded in the labour and delivery record and the Integrated Progress Notes at 0400 hours.

113 Moreover, the appellant's trial counsel did not endeavour to establish that the events recorded at 0400 hours represented a 'change' in the course of the appellant's mother's labour that was of sufficient significance or materiality as to require the Hospital's nursing staff to notify Dr McCallum of it immediately.

114 There is no foundation in the evidence for the appellant's contention that Dr McCallum needed to know about the 'change' in the appellant's mother's contractions at about 0400 hours.

115 The significance (if any) of the events which occurred at 0400 hours, in the context of the alleged breach of duty, must not be evaluated with hindsight; that is, those events must not be viewed from the perspective and with the knowledge of what occurred later in the labour and delivery process.

116 It is true that Associate Professor Pettigrew emphasised the importance of the meticulous management of labour where there is a breech presentation (ts 775). Although the question put to him asserted the existence of an obligation meticulously to manage labour where there is a breech presentation, his actual response was:

Yes. It depends on when you think the labour began (ts 775).

117 Associate Professor Pettigrew said, however, that a specialist obstetrician could not be expected personally to manage the labour. He did not give evidence (and it was not suggested to him) that the appellant's mother's labour required meticulous management from about 0400 hours or that Dr McCallum should have been present continuously from about that time.

118 Accordingly, the appellant's trial counsel did not seek to establish through Associate Professor Pettigrew or any other witness that 'meticulous management' required that Dr McCallum be notified of the events which occurred at about 0400 hours or that he should then have attended the Hospital.

119 The issues raised by ground 1 of the appeal, which I have set out at [104] above, were not fairly litigated between the parties. It is not open to the appellant to assert on appeal that the conclusions now asserted by him should be drawn by this court. In any event, the evidence does not support those conclusions.

(a) Dr McCallum said that the rupturing of the appellant's mother's membranes at 0330 was a normal progression of labour (ts 332, 353). The appellant's trial counsel did not challenge this evidence in cross-examination. There is no proper basis for inferring from Dr McCallum's evidence that the rupturing of the membranes at 0330 hours constituted an abnormal progression of labour.

(b) Dr McCallum did not give evidence that he did not expect contractions to develop until six to 12 hours after the Prostin was administered. Rather, he said that his expectation was that the mother would be about six hours in the first 'stage' of labour and there would be another four or five hours to delivery (ts 332 - 333). Dr McCallum gave this evidence before a distinction was drawn later in his evidence between 'phases' and 'stages' of labour (ts 351).

(c) Dr McCallum gave evidence that, upon being informed at about 0330 hours of the spontaneous rupturing of the mother's membranes, he still expected labour to take several hours from that time (ts 399). It was not put to him that this expectation would have altered if he had been informed of the events which occurred at 0400 hours.

(d) Dr McCallum accepted that a 'precipitate delivery' could be dangerous (ts 386). It was not put to him, however, that the events which occurred at 0400 hours suggested that a precipitate delivery was imminent.

(e) Dr McCallum did not accept, by his explanation of the 'phases' of labour, that it was likely the events which occurred at 0400 hours indicated that the mother's labour had progressed into the active 'phase' of labour. The appellant's submission to the effect that Dr McCallum did accept such a likelihood involves the drawing of a connection between some oral evidence of Dr McCallum on the one hand, and the events of 0400 hours on the other, which Dr McCallum did not draw and which was never put to him.

(f) Dr McCallum distinguished, in his evidence, between the active and latent phase of the first stage, and the second stage, of labour (ts 351). The active phase involves 'stronger painful contractions, perhaps more regular, 3 - 4 minutes apart' (ts 351). The second stage of labour commences upon full dilation of the mother's cervix (ts 351).

(g) The appellant's trial counsel did not put to Dr McCallum in cross-examination that the events which occurred at 0400 hours, as recorded or as alleged by the appellant's mother in her evidence, represented the development or establishment of the active phase of the first stage of labour or that this was information which he needed to know immediately (ts 398, 400). Dr McCallum's evidence was that, in his view, the rupture of the mother's membranes meant that she 'had started in labour' (ts 332). Dr Korda also expressed this view (ts 571).

(h) When Dr McCallum gave evidence that he expected to be informed of 'any changes' in the progress of the mother's labour, he was not asked specifically what constituted such changes (ts 399).

(i) When Dr McCallum was asked whether he had instructed midwife Gilks to inform him 'when contractions indicating commencement of labour occurred' (ts 400), he said that he had not given this instruction to her because he assumed the rupture of the membranes indicated that labour had started (ts 400). It was not put to Dr McCallum that the events which occurred at 0400 hours constituted a further occurrence about which he should have been informed immediately or to which he should have responded by attending the Hospital immediately.

121 I am satisfied that the trial judge did not make any material error of law or fact in not finding, on the evidence, that Dr McCallum was negligent in failing to give express instructions that he be notified when the appellant's mother came into established labour with strong and regular contractions.

Ground 2 of the appeal: the appellant's submissions

123 Counsel for the appellant asserted that the trial judge had erred in failing to find that the Minister, by the Hospital's nursing staff, was negligent in failing to advise Dr McCallum of 'the presence of uterine contractions, and/or the presence of stronger contractions at 0400 hours on 15 May 1997', as alleged in par 33(b) of the statement of claim.

124 Counsel referred to Dr McCallum's evidence (ts 399) to the effect that before the events in question he had, in some unstated manner and at some unstated time, communicated to the nursing staff his wish to be informed of 'any changes' in progress towards the appellant's delivery. Counsel said that there were relevant 'changes', namely the onset of stronger contractions at about 0400 hours.

125 It was submitted that the trial judge's finding that the duty owed by the Minister, through the nursing staff, to inform Dr McCallum of progress 'only dictated reporting any adverse or unexpected results to [Dr McCallum]' [269] was not supported by any expert evidence, and was contrary to Dr McCallum's expectations.

126 According to counsel, if no instruction (alternatively, no clear instruction) was given by Dr McCallum in the form he claimed then, nevertheless, the unusual nature of the proposed delivery, the vague standing instructions from Dr McCallum, the absence of Hospital protocols and the particular risks associated with the proposed form of delivery (which the nursing staff should have appreciated) were such that the nursing staff should have informed Dr McCallum of the relevant progress.

127 It was argued that midwife Gilks was aware at 0330 hours, but she did not inform Dr McCallum, that the appellant's station was still -2 and application at that time was assessed only as 'fair' (see the partogram at exhibit 10). The submission was made that knowledge of these facts and the consequent potential for cord compression or prolapse reinforces the conclusion that contact with Dr McCallum should have been made at about 0400 hours.

128 Ground 2 of the appeal is based on the allegation in par 33(b) of the statement of claim that the Minister was vicariously liable for the negligence of his 'employees and agents' in failing to call Dr McCallum at 0400 hours on 15 May 1997, when the appellant's mother began contracting more strongly.

129 My findings, in the context of ground 1, that there is no foundation in the evidence for the appellant's contention that Dr McCallum needed to know about the 'change' in the appellant's mother's contractions at about 0400 hours and that the issues raised by ground 1, which I have set out at [104] above, were not fairly litigated between the parties, are relevant to the merits of ground 2. These findings, of themselves, answer substantially (if not completely) the case put against the Minister in ground 2. I will, however, give separate consideration to the issues which bear directly upon the conduct of the Hospital's nursing staff.

130 It is necessary for the appellant to establish, on the evidence, that the Minister, by the nursing staff, knew or ought to have known the matters listed in the ground.

131 There was no evidence that the nursing staff knew or ought to have known the matters listed in ground 2. It was not put to midwife Jones (ts 861 - 862) or trainee midwife Freeman (ts 876 - 887) in cross-examination that they knew or ought to have known, or that midwife Gilks knew or ought to have known, the matters in question. The absence of evidence on these issues indicates that they were not fairly litigated between the parties at trial.

132 Negligence on the part of the Minister will not be made out merely by proving that the Hospital's nursing staff failed to act in accordance with Dr McCallum's expectations. It is necessary for the appellant to prove that the nursing staff acted or omitted to act in a manner that was negligent.

133 It is true, of course, that at the material time the standard of practice required of a medical practitioner was as determined by the court rather than solely or even primarily by the practices followed by a reasonable body of opinion in the profession. See Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. However, expert evidence was admissible to enable the court to form a view about the standard of practice. Such evidence informs the court as to the risks associated with medical conditions and possible interventions and, also, as to the extent to which, relevantly, nursing staff would be expected to appreciate those risks. In the present case, the risks in question included risks arising at various stages of the labour and delivery process in the event of particular symptoms emerging or observations being made.

134 It is a notorious fact that obstetricians are not present for the whole of a woman's labour. In the present case, there was no evidence to suggest that, in the particular circumstances, it was necessary for Dr McCallum to be present throughout the whole of the appellant's mother's labour.

135 The appellant disclosed to Dr McCallum and the Minister, before trial, expert evidence which addressed whether the Hospital's nursing staff should have called Dr McCallum after the spontaneous rupture of the mother's membranes. See Mr MacKay's report, page 7 (exhibit 14.1); Dr Molloy's report page 3 (exhibit 19.8). At trial, evidence was adduced from Mr MacKay (ts 485) and Dr Molloy (ts 623) to the effect that there was a particular risk of cord prolapse upon the membranes rupturing. However, this risk was excluded by midwife Gilks' examination of the mother (during which no cord was felt) and by the subsequent recordings of normal foetal heart rate.

136 The trial judge found that midwife Gilks telephoned Dr McCallum at about 0330 hours and informed him that the mother's membranes had ruptured and provided other clinical information [270]. The other clinical information included that the mother's cervix was slightly more dilated and that no cord had been felt. Otherwise, nothing was abnormal. See Dr McCallum's evidence at ts 332. Dr McCallum said in evidence that, from his viewpoint, this information indicated that the mother had commenced labour and although there must have been an increase in uterine tensions or contractions, her cervix had not changed dramatically since his examination at 1800 hours on 14 May 1997 (ts 332). The labour was proceeding within normal limits where prostaglandins had been used (ts 332). Dr McCallum added that he instructed midwife Gilks to continue with normal management and to provide analgesia, as required (ts 333).

137 Dr Molloy confirmed that an obstetrician would not need to be contacted if there was a change in a mother's contractions within the normal range (ts 633). It was unnecessary, in his opinion, to inform Dr McCallum of the appellant's mother having come into established labour or to inform him of any other matter before the sudden incident of bradycardia at about 0440 hours.

138 Ground 2 relies on evidence given by Dr McCallum at the trial. The relevant evidence was as follows:

(a) Dr McCallum's instruction card stated that he only required midwives to notify him on admission, prior to delivery or if there were heart rate abnormalities (ts 330; GAB 22);

(b) he explained that 'prior to delivery' meant in anticipation of delivery, which was likely to be after full dilation (ts 349 - 350); and

(c) he expected to be informed of the progress of labour and, in the present case, he was informed of its progress (ts 398 - 399).

139 Dr McCallum agreed in evidence that he was not informed of the progress of the mother's labour between 0330 and 0430 hours (ts 396). However, no criticism, either express or implied, of the Hospital's nursing staff is apparent from his evidence. In particular, it cannot be inferred from his evidence that he considered the nursing staff should have called him between 0330 hours (when he was informed of the rupture of the membranes) and 0430 hours (when he was informed of the reduced foetal heart rate), either in accordance with his existing instructions to the staff or in accordance with instructions that he should have given.

140 The trial judge found, in relation to the allegation that the Hospital's nursing staff failed to report to Dr McCallum the results of the CTG monitoring undertaken after the administration of Prostin, that the Minister's obligation, through the nursing staff, required only the reporting of any adverse or unexpected results to Dr McCallum [269]. This finding was reasonably open on the evidence.

141 His Honour also found that the evidence established that until 0430 hours there was no clinical indication that labour was not proceeding normally [272], and that the reduced foetal heart rate probably occurred at 0440 hours [206]. These findings were reasonably open on the evidence. See, in particular, the Integrated Progress Notes, the partogram and the evidence of Dr Molloy at ts 609, 633.

142 I am not persuaded that the trial judge made any material error of law or fact in not finding, on the evidence, that the Hospital's nursing staff were negligent in failing to notify Dr McCallum of the increased contractions at 0400 hours.

Ground 3 of the appeal: the appellant's submissions

144 Ground 3 encompasses the appellant's 'alternate causation theory' as set out in the proposed re-amendments to the statement of claim.

145 Counsel for the appellant submitted that ground 3 primarily raises an issue of fact, namely, what would have been Dr McCallum's response had he been contacted at about 0400 hours by the Hospital's nursing staff and informed of the mother's progress at that time. It was submitted that Dr McCallum would have attended the Hospital promptly upon receipt of that information.

146 It was argued that ground 3 does not raise any issue for expert evidence. The question was not whether a prudent obstetrician would have attended the Hospital promptly, but rather what Dr McCallum would have done on the basis of his own approach to the care of the appellant's mother and his own expectations concerning the appellant and the risks associated with his delivery.

147 Counsel said that Dr McCallum's evidence was that it would take only about four minutes for him to travel to the Hospital (ts 330). According to counsel, Dr McCallum would have been at the Hospital 'well prior to the foot prolapse', if he had been called at about 0400 hours.

148 It was submitted that Dr McCallum's evidence was that he would not have permitted the mother to ambulate to the toilet, he had not expected this occurrence, it did not conform with standard care and, generally, if asked, a midwife would dissuade a patient from doing so (ts 344). Dr McCallum also gave evidence as to why a sensation of wanting to visit the toilet may have been induced by the appellant's presentation (ts 344).

149 Further, counsel argued that if Dr McCallum had attended the Hospital shortly after 0400 hours, he would have carried out an assessment of the mother's progress and the appellant's position. It was submitted that there are two alternatives that may have been ascertained by such an assessment:

(a) the appellant may by this time have been identified as in a footling breech position because, so it was argued, this was clearly his position shortly afterwards, when his foot prolapsed; or

(b) the appellant may still have been in a flexed breech position, as he had been (as found by the trial judge) at the time of inducement the previous evening.

150 If Dr McCallum's assessment had ascertained that the appellant was in a footling breech position, he would have arranged for a Caesarean section delivery as a matter of urgency and within 30 minutes (ts 356). If this had occurred, there would have been no visit to the toilet, no foot prolapse and no bradycardia.

151 Alternatively, if Dr McCallum's assessment had found that the appellant was still in a flexed breech position, he would have arranged for the mother to remain in bed and to be assessed by continuous CTG monitoring. If this had occurred, there would have been no visit to the toilet, no foot prolapse and no bradycardia.

152 It is strictly unnecessary to deal with ground 3 of the appeal because the appellant has failed to make out grounds 1 and 2.

153 Ground 3 was, however, fully argued and I will therefore examine its merits.

154 Apart from making out either or both of grounds 1 and 2, ground 3 requires the appellant to establish the following:

(a) a prolapse of the appellant's foot occurred at about 0415 hours;

(b) if Dr McCallum had been informed at about 0400 hours that the appellant's mother had come into established labour, he would have attended the Hospital because he knew that the 'rapid and dramatic delivery' he had anticipated was likely to occur imminently;

(c) it was Dr McCallum's practice to attend in advance of delivery;

(d) Dr McCallum would have managed the remainder of the labour, including not permitting the mother to go to the toilet;

(e) the foot prolapse would not have occurred if the mother had not gone to the toilet; and

(f) alternatively, Dr McCallum would have decided that the appellant was in a footling breech presentation and would have performed a delivery by Caesarean section.

155 The alleged breaches of duty bear a relationship to the issue of causation.

156 The trial judge did not find that the appellant's foot prolapsed at about 0415 hours. His Honour found, relevantly, that the emergency consequent upon the reduced foetal heart rate occurred between 0430 hours and 0450 hours (probably 0440 hours) [206]. A finding that the foot prolapsed at 0415 hours is not consistent with his Honour's finding.

157 The only evidence which suggested that the appellant's foot was in the mother's vagina at about 0415 hours came from the mother. As I have mentioned, the mother was regarded generally by the trial judge as an unreliable witness [207] - [216]. This finding was reasonably open on the evidence. The reference in the grounds of appeal to the appellant's foot prolapsing at 0415 hours is inconsistent with the facts found by his Honour and also, significantly, it does not reflect the appellant's pleaded case that at about 0430 hours the appellant's foot was noted to be 'on view' (see par 22 of the statement of claim).

158 Further, the evidence does not establish that the appellant's foot was in the mother's vagina before her cervix was fully dilated. According to the summary of labour and delivery, the mother's cervix was fully dilated at 0440 hours. The inference to be drawn from this document and the Integrated Progress Notes is that midwife Gilks examined the mother at about 0440 hours, found the 'foot on view' and observed the mother to be fully dilated. The evidence of midwife Jones and trainee midwife Freeman does not support the appellant's assertion that his foot prolapsed before the mother was fully dilated.

159 In any event, the partogram has two recordings of the foetal heart rate after 0400 hours. These recordings appear to have been at 0425 hours and 0430 hours. See the trial judge's reasons at [204]. See also the evidence of Professor Colditz at exhibit 12.1, page 7 and at ts 276 - 278; the evidence of Dr Molloy at ts 630 - 631; and the evidence of Mr MacKay at ts 552 - 553. These recordings indicate that it is unlikely the foot prolapsed at 0415 hours. Alternatively, if the foot did prolapse at 0415 hours, there was no adverse consequence at that time.

160 The evidence does not establish that, if Dr McCallum had been informed of the 'progression of labour' at 0400 hours, he would have attended the Hospital shortly afterwards.

161 Dr McCallum's evidence was that, unlike some other obstetricians, he liked to be present for the delivery of his babies. Accordingly, his instruction card required him to be notified 'prior to delivery'. This notification was likely to be given after the mother was fully dilated. Even after full dilation, there may be a couple of hours before the baby is delivered. See Dr McCallum's evidence at ts 349 - 351; Dr Molloy's evidence at ts 622. There was no evidence that the appellant's mother's cervix was fully dilated at about 0400 hours. No vaginal examination was recorded as having been performed at this time. A vaginal examination had been performed at 0330 hours. A further vaginal examination would not ordinarily be performed for four hours, unless the mother was expected to be fully dilated. See Dr McCallum's instruction card (exhibit 10.19). There is no evidence that, based on the recorded observations up to 0400 hours, there was any expectation that the mother's cervix would have been fully dilated by that time.

162 Dr Molloy gave evidence that the mother should not have been permitted to go to the toilet because she would then be vertical and there was a chance the cord would prolapse (ts 428). Dr McCallum's reason for his evidence that permitting the mother to go to the toilet was contrary to accepted midwifery practice, was the risk of the baby being delivered in the toilet (ts 344).

163 However, merely because the appellant's foot was 'on view' after his mother went to the toilet does not establish that the visit to the toilet caused the foot to prolapse.

164 The appellant argued that the delivery of the appellant's foot or feet before his buttocks established that his presentation before delivery was a footling breech. However, the feet being present in the vagina, lower than the buttocks, does not mean that the appellant was in a footling breech presentation. The trial judge found that in a flexed or complete breech it is not unusual for the feet to be delivered before the buttocks as the breech passes through the introitus. His Honour said:

Although it was argued on behalf of [the appellant] that if the feet deliver before the buttocks it is necessarily a footling breech, I do not accept that to be the position. I do not accept that what would otherwise be a flexed or complete breech converts by definition to a footling breech where the hips and knees are flexed but the feet are slightly below the level of the buttocks. I accept the evidence that in a flexed or complete breech it is not unusual for the feet to deliver before the buttocks as the breech passes through the entroitus [sic] [232].

This finding was reasonably open on the evidence. For example, midwife Jones gave this evidence:

Was there any delay with Dr McCallum answering the telephone?---I don't remember there being a delay, no.

What happened once you had made the phone call?---Okay. Then I walked into the labour ward and Mrs McLennan was in labour ward 1 and Noelene Gilkes [sic] had placed her - they had got her onto the labour ward bed by then, and the first thing I do remember seeing is the base of a foot and I just said, 'You didn't tell me that there was a foot on view,' and she said she hadn't known at the time when she'd called me to ring Dr McCallum because she didn't have her on the bed.

At the point at which you saw the foot can you give us some idea of whereabouts the foot was in relation to the vagina and the birth canal?---Okay. It would've just been at the entrance of the vagina and there would've been the foot and then the buttocks straight after, alongside the foot, so it was very easily on view at the vagina.

...

Just in your own words, can you just take me again slowly through the order of arrival of the baby?---Well, there was the feet and buttocks together and then it would have come out like - I suppose hips, trunk and then the shoulders, and then I remember doctor - I think Nurse Gilkes [sic] would have been holding the trunk of this baby and then I think Dr McCallum arrived so he would have taken over from her to deliver the head (ts 852, 858).

165 As I have mentioned, the trial judge found that the appellant did not present as a footling breech on 7 or 14 May 1997 and that the presentation immediately before birth was a flexed or complete breech [239]. I am satisfied that this conclusion was the most reasonable finding available on the evidence.

166 There was no reason, before the sudden incident of bradycardia, to alter the management of the appellant's delivery. The evidence did not establish that any change in management after 0400 hours, and before the sudden incident of bradycardia, would have prevented the alleged foot prolapse, the sudden incident of bradycardia or the appellant's cerebral palsy.

167 As I have mentioned, a foot prolapse involves a foot passing through the mother's vagina before full dilation of her cervix. The point about the appellant's foot being 'on view' arose at trial only in the context of whether he was presenting as a footling breech. The trial judge therefore did not make a finding of fact about the alleged foot prolapse. Although the trial judge found that the mother's cervix was fully dilated at 0400 hours, his Honour did not make a finding as to, and the evidence does not reveal, when it became fully dilated. For example, it may have been fully dilated at about 0415 hours. These issues were not explored at the trial in the context of an alleged foot prolapse. It is apparent that whether there was a foot prolapse and, if there was, when it occurred were not fairly litigated between the parties at trial.

Ground 4 of the appeal: the appellant's submissions

169 Counsel for the appellant submitted that the trial judge's findings regarding causation [274] were obiter dicta.

170 Before this court, counsel for the appellant initially asserted that if grounds 1 and 2 or either of them were made out then this court should determine whether causation had been proven. Counsel referred extensively to the evidence adduced at trial.

171 However, counsel's initial submission in relation to ground 4 was overtaken by counsel's application, in reply, to re-amend the orders wanted by abandoning the claim for judgment to be entered for the appellant and, instead, claiming 'a retrial generally before a different judge of the District Court, subject to costs'. By adopting this course, counsel acknowledged implicitly that making out one or more of the grounds of appeal would not, of itself, entitle the appellant to judgment.

172 Although it is strictly unnecessary to deal with ground 4 of the appeal, in view of the appellant's failure to make out grounds 1 and 2 and his counsel's abandonment of the original order wanted that this court enter judgment for the appellant, I will nevertheless, for completeness, deal with the merits of ground 4.

The merits of ground 4 of the appeal: general

173 The appellant's contention that the trial judge should have found that the alleged breaches of duty by Dr McCallum and the Minister caused the appellant's cerebral palsy is based on the following:

(a) there was a period of bradycardia during delivery of sufficient length to cause permanent brain damage;

(b) the bradycardia occurred because of cord compression;

(c) the cord compression was caused by the prolapsing of the appellant's foot at about 0415 hours; and

(d) the appellant's cerebral palsy was not caused by antenatal neuropathology.

The merits of ground 4: the period of bradycardia

174 There was no delay in the appellant being born after the sudden incident of bradycardia commenced. In particular, there was no delay caused by head entrapment or cord entanglement. See Dr McCallum's evidence at ts 355; midwife Jones' evidence at ts 854; and trainee midwife Freeman's evidence at ts 867. Midwife Jones described the delivery as a 'quick delivery' (ts 854) and trainee midwife Freeman as a 'fast delivery' (ts 867). Notes made contemporaneously with the birth describe the appellant as being 'born unexpectedly flat' and the delivery as being quick/rapid. See exhibits 10.48, 10.51. Professor MacLennan said in his report (exhibit 16.2, page 11):

[T]here is no theoretical explanation that can be validated to explain why an intact healthy foetal brain would have become acutely and severely ischaemic or hypoxic during this short labour.

175 The trial judge found that the maximum period of foetal bradycardia would have been no more than 15 or 20 minutes [206]. This period of bradycardia did not establish that a hypoxic ischaemic event had occurred which caused the appellant's cerebral palsy. Professor Colditz said in his report (exhibit 12.1, page 20) that a foetus can withstand 15 minutes of total hypoxia (not 15 minutes of bradycardia as contended by the appellant) without suffering injury. See also Professor Colditz' evidence at ts 236. According to Professor MacLennan, a recording of a FHR down to 90 bpm, which does not increase after contractions, does not establish total hypoxia (ts 685).

The merits of ground 4: cord compression causing bradycardia

176 The evidence of Dr Molloy and Professor Colditz that the sudden incident of bradycardia was caused by cord compression was based on supposition. See Dr Molloy's evidence at ts 430 and Professor Colditz' evidence at exhibit 12.1, page 19 and at ts 248 - 249. See also the evidence of Dr Korda at ts 292 - 293.

177 Cord compression was not the only possible cause of the sudden incident of bradycardia. Dr MacLennan said that the bradycardia could have been caused by pressure on the appellant's head (ts 386 - 387). And Professor MacLennan said that many of the signs of foetal distress or problems during labour are in fact signs of a baby who has been compromised at a much earlier stage in the pregnancy. See exhibit 16.2, page 6 and ts 645, 730. The trial judge found that Dr McCallum did not identify any clinical evidence of cord compression. He expressed this finding as follows:

[Dr McCallum] did not identify any clinical evidence of cord compression, and having regard to the speed of the delivery, if such there was, it would have been of short duration and would not have been expected to have resulted in brain damage [292].

This finding was supported by Dr McCallum's evidence that he had used ultrasound to check the location of the cord (ts 322, 384) and that upon the appellant being delivered the cord was not tangled with the feet or arms but came out with the appellant (ts 335 - 337).

178 The trial judge's finding as to the absence of any prior indication of problems with the cord was relevant in determining whether or not to infer that the sudden incident of bradycardia was caused by cord compression of sufficient magnitude to cause brain damage. Professor MacLennan gave evidence that this usually requires the cord to be around the baby's neck (ts 678 - 679, 730 - 733).

The merits of ground 4: the prolapsed foot at 0415 hours caused the cord compression

179 As I have mentioned, in the course of examining ground 3:

(a) The trial judge did not find that the appellant's foot prolapsed at about 0415 hours.

(b) A finding that the foot prolapsed at 0415 hours is not consistent with his Honour's findings.

(c) The only evidence which suggested that the appellant's foot was in the mother's vagina at about 0415 hours came from the mother, and she was regarded generally by the trial judge as an unreliable witness.

(d) The allegation that the appellant's foot prolapsed at 0415 hours does not reflect the appellant's pleaded case that at about 0430 hours the appellant's foot was noted to be 'on view'.

(e) The evidence does not establish that the appellant's foot was in the mother's vagina before her cervix was fully dilated.

(f) The issues as to whether there was a foot prolapse and, if there was, when it occurred were not fairly litigated between the parties at trial.

180 The appellant's trial counsel did not open or close his case on the basis that a prolapse of the appellant's foot caused cord compression. This issue was not fairly litigated between the parties. Anyway, the evidence at trial did not establish a causal relationship between the alleged prolapse on the one hand and cord compression on the other. In particular, there was no evidence explaining why a foot prolapse of itself (disregarding whether there was a footling breech presentation) could have caused cord compression.

181 Further, the mechanism of the appellant's delivery (that is, complete or flexed breech) does not establish that he was in a footling breech presentation before delivery.

182 Mr MacKay's evidence concerning the spontaneous rupture of the mother's membranes indicates that this is more likely to occur if the presenting part is not fitting well into the pelvis (exhibit 14.1, page 7). This evidence does not, however, establish that if the presenting part is not fitting well into the pelvis, then the presentation is or is likely to be as a footling breech. In any event, Dr McCallum's evidence was that the breech was well into the pelvis (ts 308, 322, 374, 379, 380, 383).

183 The trial judge found that the appellant did not present as a footling breech on 7 or 14 May 1997 and that his presentation immediately before birth was a flexed or complete breech [239]. This finding was reasonably open on the evidence.

The merits of ground 4: the appellant's cerebral palsy was not caused by antenatal neuropathology

184 At trial there was evidence that the consensus of current scientific opinion is that the neuropathy of cerebral palsy is established, in the large majority of cases, silently during pregnancy (with the exception of childhood causes). The signs of foetal neurological compromise often do not appear until the stresses of labour with increased monitoring or until after delivery. See Professor MacLennan's evidence, exhibit 16.2, page 6. The Professor gave evidence that less than 1% of cerebral palsy is caused by an acute de novo primary asphyxial event in labour (ts 645). Also, Professor Colditz confirmed that intrapartum events were an uncommon cause of cerebral palsy (ts 200, 246). The trial judge found that an acute intrapartum hypoxic event is a relatively rare cause of the condition [298].

185 In 1999, 'A template for defining a causal relation between acute intrapartum events and cerebral palsy: international consensus statement' (the Consensus Statement) (exhibit 16.2, first attachment) was published. This represented an international consensus statement on the cause of cerebral palsy. Professor MacLennan gave evidence that the Consensus Statement had a broader consensus than almost any other document he had seen in the medical field (ts 663). The document sets out the essential criteria to establish the presence of hypoxia at birth and the non-specific criteria that collectively point towards acute or chronic causes of hypoxia.

1. a metabolic acidosis around birth (pH 12 mmol/1);
2. early moderate to severe neonatal encephalopathy; and
3. cerebral palsy of the spastic quadriplegic or dyskinetic type.

1. a sentinel (signal) hypoxic event sufficient to cause sudden severe hypoxia in a healthy foetus, for example, a cord prolapse, antepartum haemorrhage, ruptured uterus etc.
2. sudden sustained foetal heart rate bradycardia from that event;
3. an Apgar score under 7 after 5 minutes;
4. signs of multi-system failure in the neonate; and
5. neuro imaging signs of early oedema and intracranial haemorrhage.

188 In 2003, the American College of Obstetricians and Gynaecologists/American Academy of Paediatrics issued a publication, 'Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology' (exhibit 16.2, second attachment). This document altered the essential criteria embodied in the Consensus Statement by adding a fourth essential criterion, namely, 'Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders'. The essential criteria are accompanied by the words 'must meet all four'. Further, the task force altered non-specific criterion 3. They decided that an acute de novo intrapartum event severe enough to be associated with cerebral palsy would cause the Apgar score to remain at 3 or under after 5 minutes from birth. The 2003 document also made a minor variation to the criteria that collectively suggest intrapartum timing (defined as within close proximity to labour and delivery, for example, 0 - 48 hours).

189 Professor Colditz gave evidence that the Consensus Statement and the 2003 document were widely accepted as being a useful synthesis of available evidence that may be relevant in establishing whether, in a particular case, intrapartum events may have been the cause of cerebral palsy as a result of a hypoxic ischaemic event (exhibit 12.1, page 14). The Professor was a member of the working party (exhibit 12.1, page 15).

190 At trial, the appellant was unable to establish the existence of all of the four essential criteria in the Consensus Statement as altered by the 2003 document.

191 Essential criterion 1 could not be established because of a lack of data. A sample of the appellant's cord blood was not taken by Dr McCallum or the nursing staff. A sample of the cord blood should have been taken, but there was no exploration at trial of the reasons for, or an explanation of, this failure. As a result, the presence of a severe hypoxia/metabolic acidosis at birth could not be proved or disproved. See Professor MacLennan's evidence at exhibit 16.2, page 10 and ts 692 - 695. Professor Colditz could only speculate as to whether it was established or not (exhibit 12.1, pages 15 - 16).

192 The appellant established essential criterion 3 as a result of his having spastic quadriplegia. See the evidence of Professor MacLennan at exhibit 16.2, page 10 and the evidence of Dr Spencer at exhibit 10.92. Spastic quadriplegia is not, however, specific to intrapartum hypoxia. It is apparent from the Consensus Statement that only 24% of a population-based series of children with moderate or severe spastic quadriplegia were thought possibly or very likely to have been affected by intrapartum hypoxia.

193 Essential criterion 4 could not be established because of the existence of intrauterine growth restriction.

194 The trial judge noted, correctly, that the Consensus Statement examined causation from a scientific rather than a legal perspective [289]. His Honour elaborated:

Considerable attention was directed during the trial to the Consensus Statement and the factors which it requires to be established before it can be asserted that cerebral palsy is the result of an acute intrapartum hypoxic event. Clearly the Statement is looking at causation from a scientific rather than legal perspective. The Court's task is to determine whether 'as a matter of common sense' on the balance of probabilities [the appellant's] condition can be attributed to an acute intrapartum hypoxic event. The Consensus Statement is significant however in that it is an acknowledgment by a substantial international body of medical expertise in this area that cerebral palsy is rarely the consequence of an acute intrapartum hypoxic event. Also that intrauterine growth restriction appears to have a reasonable association with the condition (it is a risk factor). Further that there is doubt as to the efficacy of electronic foetal monitoring [289].

There is no basis for the appellant's assertion that his Honour was 'distracted' by the Consensus Statement.

195 It is true that there was evidence at the trial, including the opinions of Professor Colditz and Dr Thonell, which formed a foundation for a finding of causation in favour of the appellant. Dr Thonell gave evidence that the CT scans and ultrasound examinations of the appellant's head after birth revealed damage to the basal ganglia and that this was consistent with a sudden hypoxic episode and oedema consistent with recent insult (exhibit 11.5); that is, with an injury occurring in the last three days (ts 176 - 177). Professor Colditz inferred the existence of a sentinel hypoxic event from the period of bradycardia combined with the appellant's condition at birth.

196 But, on the other hand, there was evidence which suggested an alternative, although unspecified, cause of the appellant's cerebral palsy. This evidence included:

(a) The appellant had asymmetrical growth restriction. See Professor MacLennan's evidence at exhibit 16.8, page 7 and ts 653 - 666 where he explains the significance of this characteristic and see also Professor Colditz' evidence on this point at ts 255.

(b) Dr Walpole, a consultant geneticist, who examined the appellant shortly after birth, noted the existence of very deep hand and feet creases which were probably indicative of an unsound intrauterine environment. See Dr Walpole's evidence at exhibit 10.16, page 2. See also Professor MacLennan's evidence at exhibit 16.8, page 8. Compare the other causes postulated by Dr Walpole, but not established with testing.

(c) Professor MacLennan's evidence that a foetal heart rate of 90 was not indicative of total hypoxia and existed in about one-third of all second stage labours (ts 685).

(d) Professor MacLennan's evidence that signs of existing foetal neurological compromise often do not appear until the onset of the stresses of labour (ts 645, 730).

197 Further, in addition to the evidence noted by his Honour in his reasons, there was other evidence which indicated that the appellant's cerebral palsy was caused by circumstances other than hypoxia resulting from prolonged cord compression during delivery. For example:

(a) The appellant's birth weight was at about the third percentile. His birth weight was 2700 gm and 97% of babies are born with a heavier weight. His sibling, Zachary, weighed 3356 gm (exhibit 10.103 but compare the record of his birth weight as 3100 gm in exhibit 10.35) and his sibling, Taylor, weighed 3205 gm (exhibit 10.100).

(b) Dr McCallum said that when he performed an ultrasound examination of the appellant on 14 May 1997 there was no indication that the cord was around his legs (ts 384).

(c) Dr McCallum said that the cord came out with the baby at delivery. In particular, the cord was at the side, and was not tangled with the arms or feet (ts 335 - 336). That is, there was no clinical sign that the cord had been in a position to be compressed during delivery.

(d) The condition of the cord affects the nutrition provided to the baby. The appellant's cord was skinny. If a baby is undernourished, the cord will invariably be thin and the blood vessels more exposed to trauma or pressure. See Dr McCallum's evidence at ts 337.

198 It is well-established that a trial judge has an advantage over an appellate court in that the trial judge has the considerable advantage of seeing and hearing expert witnesses present their opinions and the manner in which they deal with competing opinions in cross-examination.

199 In the present case, the trial judge was required to consider the conflicting expert evidence presented at trial. It is apparent from his Honour's reasons, considered as a whole, that he engaged in this task and made findings supported by the evidence and consistent with his assessment of the experts. I am not persuaded that his Honour made any material error of law or fact in his examination and weighing of the expert evidence or in his selection of the evidence which he preferred. It was reasonably open to his Honour not to be satisfied that the appellant's cerebral palsy arose out of any particular event in the course of labour.

The appeal generally: should the appellant be permitted to advance his proposed new case?

201 In my opinion, the appellant should not be permitted to advance his proposed new case in the appeal.

202 For the reasons I have given, in the course of dealing with the grounds of appeal, I am satisfied that the proposed new case was not fairly litigated between the parties at trial.

203 The appellant is bound by the conduct of his case at trial. It is immaterial whether the failure to run the proposed new case at trial was a deliberate decision or due to inadvertence. It is plain that if the proposed new case had been run at trial then Dr McCallum and the Minister would have been able to adduce additional evidence in their defence of the appellant's claim. The existence of this additional evidence is apparent from affidavits sworn on their behalf in opposition to the application to re-amend the statement of claim. See the affidavit of Ms Fiona Seaward sworn 30 October 2008 and the affidavits of Mr Enore Panetta sworn 5 November 2008 and 18 November 2008. Dr McCallum and the Minister could possibly have met the proposed new case by calling additional evidence at trial.

204 In any event, as is apparent from my consideration of the grounds of appeal in the context of the trial judge's findings of fact, the evidence at trial, the proposed new case and the proposed amendments to the statement of claim, the appeal must fail on the state of the record at trial.

The application to re-amend the statement of claim

205 The proposed new case in the appeal is materially different from the case that was litigated at trial. For that reason, and for the reasons I have given in the course of deciding that the appellant should not be permitted to advance his proposed new case, the application to re-amend the statement of claim should be dismissed.

The application to re-amend the orders wanted

206 The appellant seeks a re-trial to enable him to emphasise an aspect of Dr McCallum's and the Minister's alleged breach of duty that was not pursued at trial and to re-litigate facts determined against him by the trial judge.

207 The evidence adduced at trial does not support the allegations that Dr McCallum was negligent in failing to give express instructions to the Hospital's nursing staff to notify him when the mother came into established labour with strong and regular contractions or that the nursing staff were negligent in failing to notify Dr McCallum of the increased contractions at 0400 hours. The appellant has not produced any fresh evidence on these issues.

208 Also, the appellant seeks to re-litigate the nature and timing of events between 0400 hours and 0500 hours. The trial judge's findings of fact in relation to these events depended, to a significant degree, on his rejection of the mother's evidence.

209 The appellant has not made out any of his grounds of appeal. No material error of law or fact on the part of the trial judge has been established. These conclusions are, in themselves, fatal to any claim for a re-trial.

210 The facts on which the appellant's case was based occurred in May 1997. The District Court action was not commenced until 2003. The trial

occurred in November 2006. After the appellant filed his appeal notice, he was given substantial extensions of time within which to file the first version of the appellant's case. He changed his solicitors and obtained leave to amend his grounds of appeal and his written submissions. These circumstances caused a material delay in the listing of the appeal for hearing.

211 There is no 'imperative demand of justice' (Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 640 (Dixon J)) or 'insistent demand of justice' (Council of the City of Greater Wollongong v Cowan [1955] HCA 16; [1955] HCA 16; (1955) 93 CLR 435, 444 (Dixon CJ)) which justifies this court ordering a re-trial. The appellant was represented at trial by senior and junior counsel, and the appellant called extensive expert evidence. No miscarriage of justice has occurred.

212 Further, there would be significant prejudice to Dr McCallum and the Minister if a new trial was ordered. The appellant has no present capacity to meet costs thrown away. This was conceded by his counsel at the hearing of the appeal. It would be unfair to subject Dr McCallum and the Minister to the expense, uncertainty and inconvenience of a re-trial merely because the appellant now wishes, apparently on the basis of new advice from different counsel and different solicitors and without any fault on the part of Dr McCallum or the Minister, to re-agitate his claim in a different manner with a view to achieving a different outcome.

213 Considerations of public interest also support the rejection of the application for a re-trial. It is desirable that there be finality in litigation, except in the truly exceptional case, and the present case does not, in my view, answer that description.

214 The appellant's application to re-amend the orders wanted should be dismissed.