HOBART, 26 June 1997 (hearing), 30 June 1997 (decision)

Order: the evidence admitted de bene esse to be admitted unconditionally

This is an action for damages for negligence arising out of an incident which occurred at the Queen Alexandra Hospital on 27 February 1990. At that time Ms Heather Grimsey, the second named plaintiff ("Heather"), was a patient at the hospital and was in labour in the process of giving birth to Megan Grimsey, the first named plaintiff ("Megan"). Before the birth was complete, a staff member at the hospital mistakenly administered a drug, Synometrine, to Heather. It is alleged that in consequence of that act, which the first named defendant admits was a negligent act for which it is liable, Megan was injured and now suffers cerebral palsy. Both Megan and Heather sued the first named defendant and, in respect of Heather's claim, a final judgment for damages in the sum of $37,500 was entered by consent on 18 January 1996.

On 18 August 1992, judgment was entered in respect of Megan's claim in the following terms:

"DATED AND ENTERED THE 18TH DAY OF AUGUST 19_92_

The Registrar having on the 10th day of August 1992 directed that judgment can be entered for the Firstnamed Plaintiff against the Firstnamed Defendant for damages to be assessed by consent of the parties pursuant to Order 43 Rule 7(1) of the Rules of Court IT IS THIS DAY ADJUDGED BY CONSENT that the Firstnamed Plaintiff recover against the Firstnamed Defendant damages to be assessed. REGISTRAR"

"7 -- (1) On the filing of a memorandum of consent signed by or on behalf of each party in any cause or matter, the Registrar may enter judgment in accordance with that memorandum.

(2) Subject to sub-rule (1), if each party in any cause or matter consents, a judge in chambers may, unless he thinks the cause or matter ought to be dealt with in open court, order that a judgment be entered by consent of the parties.

(3) A judgment entered pursuant to sub-rules (1) and (2) shall be of the same force and validity, and may be enforced against all persons bound thereby in the same manner as judgment pronounced by the Court or a judge in Court."

The assessment of damages was set down for hearing on 17 June 1997 and has now been in progress for several days. A considerable body of evidence has been given by medical practitioners, occupational speech and physio therapists as to the nature and extent of Megan's disability and by other witnesses as to her observed incapacities and needs.

Dr Collins, a specialist paediatric neurologist from Melbourne, gave evidence that Megan has evidence of "severely delayed and abnormal motor development to which the term 'cerebral palsy' could appropriately be applied".

It is plain from the evidence of Dr Collins and the other witnesses called for the plaintiff (assuming of course that their evidence is accepted) as well as from documentary material and three video tapes showing Megan involved in various activities, that she is chronically and catastrophically afflicted by almost constant involuntary movement, typical of athetoid cerebral palsy. She is unable to care for herself in even the most basic respects and although she appears able to communicate through sounds and signs at a very elementary level, she is unable to speak coherently.

During the course of his evidence-in-chief, Dr Collins was asked by Mr Blow QC, counsel for Megan, if he could give an opinion as to "the cause of her symptoms". Mr Tree, counsel for the second defendant, objected that Dr Collins was neither an obstetrician nor a pharmacologist and that he lacked the necessary expertise to give an opinion on that particular question. I overruled the objection and then Dr Collins advanced the opinion that Megan's condition was:

"... consistent with having sustained an hypoxic ischaemic insult, that is to say, a problem with lack of oxygen or circulation or both ... at some period before birth ... in late pregnancy or around the time of birth."

In cross-examination, Dr Collins conceded he was not an expert in the properties of the drug Syntometrine but it was obvious from his responses to Mr Tree's questions that he had some knowledge of some of its properties and effects.

As the cross-examination progressed, seemingly towards providing a foundation for a later submission by the defence that Dr Collins' opinion as to the course of Megan's present condition could not be relied upon, I intervened as I had difficulty in seeing the relevance of this line of questioning in light of the consent judgment which had been entered in Megan's favour. There was then a brief debate between Mr Tree and myself on the subject, in which the following exchange occurred:

"MR TREE: Perhaps I should make myself perfectly clear, your Honour. There is no suggestion in the defendant's case that Megan does not have cerebral palsy. There is no suggestion that there was not a negligent injection of Syntometrine into the plaintiff's mother. Those two facts are beyond dispute. ... What your Honour is being asked to do is to assess the plaintiff's damages for cerebral palsy by reference to her loss of amenity of life, earning capacity and needs created by virtue of her cerebral palsy insofar as that has been caused by the injection. Now, the plaintiff's case ...

HIS HONOUR: But if you submit to interlocutory judgment for damages to be assessed, and you then raise an issue of causation in these terms, it seems to me that you're stretching the ambiguities -- if there are any ambiguities -- in the pleadings quite to the limit. Mr Blow, have you understood that causation of this child's present condition is a matter in dispute?

MR BLOW QC: No, your Honour, and in particular I would remind your Honour of a comment that my learned friend made during Heather Grimsey's evidence-in-chief which appears pages 140 and 141 of the transcript. When my learned junior was asking her about her labour my learned friend said, 'Your Honour, before the witness answers the question -- I realise I'm a little late -- I wonder the relevance of this. I note that Mr Blow didn't open in respect of the circumstances surrounding the birth. You Honour is being asked to make an assessment of damages in respect of Megan's cerebral palsy. There has been a judgment entered in respect of which liability has been admitted and with respect the circumstances surrounding the negligent act are strictly speaking irrelevant to these proceedings.' Now, that was last Thursday I think, no, Wednesday, and that is the position as we have understood it all along."

Following further discussion and a brief adjournment, Dr Collins' cross-examination was resumed. Mr Blow QC objected to the same line of questioning being pursued so, with the agreement of counsel, I took the balance of his evidence on this issue de bene esse so that further witnesses would not be kept waiting while the matter was resolved.

The stage has now been reached at which the plaintiff's case can be closed if Dr Collins' evidence on this issue is held to be irrelevant for the purpose of the current proceedings. If the evidence is held to be relevant and admissible and thus available to support a defence contention that Megan's case has failed to establish a causal nexus between the erroneous administration of Syntometrine and the plaintiff's present grossly disabled condition, it may be necessary to grant the plaintiff an adjournment for her legal advisers to consider her position.

The crucial issue for my determination is whether there is an existing issue between the relevant parties as to the cause of Megan's cerebral palsy or whether that issue has been resolved, either in consequence of the terms of the judgment entered by consent or as a result of the pleadings in the action. Whether estoppel operates so as to preclude the defendant from contesting the matter as a result of Mr Tree's apparent concession at 140 - 141 of the transcript and other conduct by the solicitors for the defendant over the years leading up to the trial, is a question which has not yet been explored or argued, although Mr Blow QC has indicated that he may seek to agitate that question if necessary, dependent upon the ruling which I give on the current issue.

The statement of claim setting forth the claims made on behalf of both Megan and her mother is in the following terms:

"STATEMENT OF CLAIM 1 The first named Plaintiff is an infant born of the second named plaintiff at the Queen Alexander [sic] Hospital at Hobart on the 27th day of February 1990. 2 The first named plaintiff [sic] is a body constituted under Part II of the Hospitals Act 1918 by order of the Governor, by order-in counsel [sic] and charged with the maintenance, management and regulation of, inter alia, the Royal Hobart Hospital of the Queen Alexander [sic] Hospital. 3 The second named defendant is the Attorney General for the State of Tasmania. 4 On the 27th day of February 1990 the first named plaintiff was born of the second named plaintiff in the Queen Alexander [sic] Hospital at Hobart in Tasmania. 5 During the birth of the first named plaintiff the second named plaintiff sustained an injury when she was permitted to come into contact with the drug Syntometrine. 6 The first named plaintiff's said injury occurred as a result of the negligence and lack of skill of certain hospital theatre staff employed by the first named defendant. PARTICULARS OF NEGLIGENCE ON THE PART OF THE DEFENDANTS [sic] NURSING STAFF (a) administered to the second named plaintiff the drug syntometrine before the birth of the first named plaintiff was complete. (b) administered the drug syntometrine to the second named plaintiff when they knew or ought to have known that the drug would 'cross-over' into the blood stream of the first named plaintiff. (c) permitted the drug Syntometrine to enter the blood stream of the first named plaintiff when they knew or ought to have known that the drug was likely to cause the first named plaintiff to become asphyxiated or partially asphyxiated and otherwise seriously injured. (d) administered the drug Syntometrine to the second named plaintiff when the second named plaintiff had requested the drug Pethidine to be administered. (e) administered a drug to the second named plaintiff without obtaining the appropriate authorisation from a properly qualified medical person there present at the birth of the first named plaintiff. (f) failing to properly observe and maintain mandatory operating theatre protocol concerning the administration of the drug Syntometrine. PARTICULARS OF NEGLIGENCE ON THE PART OF THE DEFENDANTS [sic] MEDICAL PRACTITIONERS (a) failing to properly supervise the nursing staff there present at the birth of the first named plaintiff to ensure that proper and safe protocol was observed with respect to the administration of drugs to the second named plaintiff and in particular the drug Syntometrine. (b) failing to ensure that the first named plaintiff was not brought into contact with the drug Syntometrine at a time when they knew or ought to have known that such contact would have serious physical consequences to the first named plaintiff. 7 As a result of the negligence and for lack of skill on the part of the first named defendants employees servants or agents both the first named plaintiff and the second named plaintiff have suffered personal injury and have and will suffer financial loss and will be put to expense. PARTICULARS OF THE FIRST NAMED PLAINTIFF'S INJURIES Partial asphyxiation during childbirth leading to a starvation of oxygen to the brain and consequential cerebral palsy. PARTICULARS OF THE FIRST NAMED PLAINTIFFS LOSS, EXPENSE AND LOSS OF EARNING CAPACITY (To be supplied) 8 As a result of the severe injuries sustained by the first named plaintiff the second named plaintiff has suffered a psychological or psychiatric injury and has suffered nervous shock. PARTICULARS OF THE SECOND NAMED PLAINTIFF'S INJURIES The formal psychiatric diagnosis of the second named plaintiff is that she suffers from a Dysthmic Disorder (Reactive Depression). 9 As a result of the negligence of the defendants employer, servants or agents the second named plaintiff will suffer a loss of earning capacity in that she will be required to devote her full time attention to the are [sic] and management of the first named plaintiff following the time when, had it not been for the first named plaintiff's said injuries, the second named plaintiff would have been free to pursue her own career. 10 The second named plaintiff is a single person and that fact was known, or ought to have been known by the defendant's said employees, servants or agents. 11 The defendants employees, servants or agents had foreseen or should have foreseen that if the first named plaintiff were to suffer a debilitating injury that the second named plaintiff would or may be required to devote all or more of her time to the care of the first named plaintiff at the expense of her career and that the second named plaintiff would thereby suffer financial loss. PARTICULARS OF THE SECOND NAMED PLAINTIFF'S LOSS AND LOSS OF EARNING CAPACITY (To be supplied) AND THE PLAINTIFFS CLAIM DAMAGES DATED this 28 day of September 1990 BAKER TIERNEY & WILSON Per: Solicitors for the Plaintiffs"

It will be seen at once that there are several errors in this somewhat inelegant document.

In par1 reference is made erroneously to the Queen "Alexander" Hospital. In par2 the reference to "the first named plaintiff" should obviously be a reference to "the first named defendant". "Order-in-council" is wrongly spelt and "the Royal Hobart Hospital of The Queen Alexander Hospital" is a nonsense. Paragraph 5 refers only to an alleged injury to the "second named" plaintiff but then par6 refers to "the first named plaintiff's said injury" as though the reference in par5 had been a reference to an injury to Megan rather than her mother.

The defence delivered in respect to the statement of claim is in the following terms:

"DEFENCE OF FIRST AND SECOND NAMED DEFENDANTS 1 The allegations contained in paragraph 1 of the Statement of Claim are admitted. 2 The allegations contained in paragraph 2 of the Statement of Claim are admitted. 3 The allegations contained in paragraph 3 of the Statement of Claim are admitted. 4 The allegations contained in paragraph 4 of the Statement of Claim are admitted. 5 In so far as the allegations in paragraph 5 are meant to refer only to the First named Plaintiff then they are admitted. 6 In relation to the allegations in paragraph 6 of the Statement of Claim it is admitted that the First named Plaintiff suffered injury due to the negligence of the agents of the First named Defendant. 7 Save in so far as it is admitted that the First named Plaintiff suffered injury due to the negligence of the agents of the First named Defendant and will thereby suffer loss and expense the allegations contained in paragraph 7 of the Statement of Claim are denied. 8 The allegations contained in paragraph 8 of the Statement of Claim are denied. 9 The allegations contained in paragraph 9 of the Statement of Claim are denied. 10 The allegations contained in paragraph 10 of the Statement of Claim are admitted. 11 The allegations contained in paragraph 11 of the Statement of Claim are allegations of law but in so far as they are allegations of fact they are denied. 12 The Statement of Claim does not disclose a cause of action against the Second named Defendant. DATED this 4th day of August 1992. D J Bugg DIRECTOR OF PUBLIC PROSECUTIONS

Per: Solicitor for the First and Second named Defendants"

It will be noted that no issue is raised as to the obvious mistakes in the statement of claim and it seems plain, as Mr Tree submitted, that par5 of the defence, whilst perhaps having some ambiguity on its face, is a genuine attempt to deal with par5 of the statement of claim as though the reference there to "the second named plaintiff" was intended to be a reference to the "first named plaintiff". Read in this way, par5 of the defence constitutes a coherent admission that during the birth, Megan was injured by coming into contact with Syntometrine.

The first defendant contends that this is the highest at which the admissions made in the defence may be taken, viz, that Megan sustained some unspecified injury. It is therefore submitted that to recover damages in respect of any injury it must be proved in the current proceedings what that injury was and how it has affected her life. The first defendant contends that its admissions in the defence do no more than acknowledge the existence of a duty to Megan, a breach of that duty and liability for damages, "more than de minimis". It is further contended that the consent judgment takes the matter no further because, upon the basis of the admissions made in the defence, Megan would have been entitled to judgment for damages to be assessed in any event.

Counsel for Megan contends that the allegations in the statement of claim allege considerably more than a mere technical assault as may otherwise have been inferred from the allegation in par5 of the statement of claim, read as the solicitors for the first named defendant appear to have read it as suggesting Megan, "was permitted to come into contact with the drug Syntometrine". Reference was made to the "Particulars of Negligence on the Part of the Defendants [sic] Nursing Staff". It was submitted that those particulars, though dealing primarily with negligent conduct by servants or agents of the first named defendant, rather than the nature and extent of the injury sustained, identify the alleged mechanism of the injury in greater detail than set forth in par5. It is alleged that the drug was administered to Heather Grimsey and, as a consequence, passed into Megan's blood stream (presumably through the placenta) thereby (inter alia) asphyxiating Megan. Additionally it may be observed that in par7 of the statement of claim, there is a further allegation of negligence causing personal injury, together with an allegation of financial loss and expense.

Mr Tree submitted that this additional allegation confused rather than clarified the first name plaintiff's case and tended to create ambiguity or uncertainty as to the case being put forward, but I cannot agree with this. If one reads on to the "Particulars of the First Named Plaintiffs Injuries" it may be seen clearly enough that the essence of Megan's claim is amplified and explained. She is not claiming that the negligence of the first defendant caused some unspecified injury or was a technical assault without injurious consequences. She is claiming that the administration of Syntometrine to her mother caused that drug to enter her own bloodstream thereby causing asphyxiation, starving the brain of oxygen, thus producing cerebral palsy. In my opinion this is the only sensible way in which the statement of claim can be read if the document is considered as a whole without resort to pedantry and over refinement.

To what extent, then, are these allegations admitted? In the first place it may be observed that no part of par6 of the statement of claim (including the Particulars thereunder) is denied by the defendants. Pursuant to the Rules of Court, O21, r15, allegations not denied are taken to be admitted so the specific admission that "the First named Plaintiff suffered injury" contained in par6 of the defence may be taken to be amplified so as to include the actual allegations made in par6 of the statement of claim.

Paragraph 7 of the defence, responding to par7 of the statement of claim, takes the admission of injury one step further by conceding that such injury will cause loss and expense to Megan. The parallel allegation of injury, loss and expense to Heather Grimsey, also contained in par7 of the statement of claim, is denied, but this appears to have no relevance for present purposes.

By contrast with par6 of the defence, par7 is a general denial, coupled with a specific admission, so it seems to me that the defence at this point has done no more than admit "injury". It could be argued that the significance of par7 is to admit the allegations made (including the particulars) in relation to Megan's injuries and to deny only her mother's claim to have been injured, but I do not think such an argument could succeed. To have this effect, the admission would need to have been that Megan "suffered the injuries alleged."

Thus, in terms of the totality of the relevant admissions made by the defence, it seems to me, that as a matter of pleading, the defence has not conceded the crucial allegation made by the first named plaintiff, viz, that the compensable injury was cerebral palsy. At its highest, from the plaintiffs' standpoint, the defence has admitted injury caused by the entry of Syntometrine into Megan's blood stream and it has admitted that such a mechanism "was likely to cause" her to become asphyxiated to some degree or to suffer some other serious injury.

Significantly, however, there is no admission that Syntometrine did in fact cause asphyxia and even if this admission could be implied in the light of the implied assertion that such was the relevant mechanism of injury in par6(c) of the statement of claim, there is no basis for a further implication that there is such an admission in relation to the particulars under par7 of the statement of claim where cerebral palsy is mentioned for the first and only time.

The pleadings therefore do not afford a sufficient foundation for saying that evidence led from Dr Collins in cross-examination is irrelevant or inadmissible, because, on the pleadings, Mr Tree is correct when he says that the defence has not admitted that Megan's cerebral palsy has resulted from or is the negligently caused injury which the first defendant has acknowledged. This is a conclusion which I confess I have come to with some reluctance because the only injury properly so called which the first named plaintiff has ever alleged is brain damage with resultant cerebral palsy. True it is, as Mr Tree submits, that "cerebral palsy" is a term conveniently employed to describe a collection of symptoms rather than a discrete, identifiable disease, but this does not lessen the thrust of my observation.

There has never been any suggestion that the first plaintiff suffered a range of injuries in respect of some of which the first defendant may not be liable to pay compensation. Nor has it been suggested that Megan has been injured on different occasions by different mishaps. It is not surprising therefore that the plaintiff's advisers have treated the admissions made as relating to the grossly disabling symptoms which became evident soon after her traumatic birth.

It is an attractive argument that as both injury and loss are admitted by the defence, the injury has been conceded as being one of substance and, as the only injury alleged is brain insult producing cerebral palsy, that issue has been put to rest in the plaintiff's favour. However, for the reasons given, that is an argument which I cannot accept.

I turn therefore to consider whether any greater concession has been made by the defence in submitting to judgment in the terms in which it was entered on 18 August 1992. That is a matter of some difficulty.

The plaintiff's claim is for damages for injury to her person. No cause of action can be maintained in respect of negligent conduct unless that conduct has resulted in injury. It is trite to observe that breach of a duty of care, however careless or wilful, is not actionable unless there is an injury. Unless and until there is an injury, no action can be maintained (see Brunsden v Humphrey (1884) 14 QBD 141, per Bowen LJ at 150, 151.

The general rule as to the onus of proving damage is stated in McGregor on Damages 15 Edn, pars1779 - 1780:

"The plaintiff has the burden of proving both the fact and the amount of damage before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss.

Occasionally, however, the defendant will be found to admit the plaintiff's allegations of damage and then put in issue allegations in avoidance."

In the present case, as I have already observed, the defence has admitted both injury and damage. The nature of the injury has not been conceded either expressly or by necessary implication, even though the only injury alleged is a single insult producing almost total bodily incapacity.

On this basis, the plaintiff is entitled to at least nominal damages, but if she seeks more than this, she will have to provide proof as to the extent of her incapacity and loss. The defence, has conceded that there will be both injury and loss but has not quantified the extent of the loss which it is proposed to concede.

Mr Blow QC submits that the effect of consent judgment having been entered in his client's favour is to entitle her to recover damages in respect of cerebral palsy and associated brain damage without proof that the same resulted from the Syntometrine injection.

Much of Mr Tree's argument on this point was directed to persuading me that the doctrine of res judicata cannot apply in the present circumstances but in view of Mr Blow QC's concession that this is correct, there is no need to pursue that question.

Mr Blow QC did not attempt to argue that the doctrine of res judicata had any direct applicability to the present case, but he submitted that it was useful nonetheless to consider some of the authorities dealing with that doctrine and the allied doctrine of issue estoppel as they tend to assist in making a determination as to the effect which the consent judgment should have upon the proceedings as a whole.

In Kinch v Walcott & Ors [1929] AC 482 at 493, Lord Blanesburgh said:

"First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order, as was tersely observed by Byrne J in Wilding v Sanderson [1897] 2 Ch 534, 544, 'must, when once it has been completed, obey it, unless and until he can get it set aside n proceedings duly constituted for the purpose.' In other words, the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal."

In Isaacs v The Ocean Accident & Guarantee Corporation Ltd [1958] SR (NSW) 69 at 75, Street CJ and Roper CJ in Eq observed:

"It is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it: Re South American and Mexican Co; Ex parte Bank of England (1895) 1 Ch 37. But a judgment operates by way of estoppel only as to those matters which are necessarily decided by it. (Cf Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, at 532; Jackson v Goldsmith (1950) 81 CLR, a 466). 'Though consent judgments and orders are undoubtedly in every case decisions in the sense that the actual mandatory or prohibitive parts of the judgment or order are conclusively binding upon ... the parties ... it may often be a matter of legitimate doubt and debate as to what, if any, particular questions or issues of right, title, or liability were, expressly or impliedly, the subject of the consent, and of the decision. For this purpose, as for all other purposes connected with the ascertainment of the subject-matter of a decision, the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.' (Spencer Bower on Res Judicata, 24, par 34.) Again, at 114, par 174, the learned author says: 'In the case of judgments and orders by consent ... it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent ... judgment or order was made.'

To determine, therefore, what is necessarily decided by a judgment it is proper and essential to examine the record of the proceedings. (Robinson v Duleep Singh (1878) 11 Ch D 798; Houstoun v Marquis of Sligo (1885) 29 Ch D 448."

Similarly, Plowman J in General Accident Fire and Life Assurance Corporation, Ltd v Inland Revenue Commissioners [1963] 1 All ER 618 at 627 said:

"Dealing first with the question of construction, I must say a word on the question of evidence. A consent order must, in my judgment, be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention. I accept the submission of counsel for the plaintiffs that nothing equivalent to rectification of the order is available to the defendants. Evidence of surrounding circumstances, in my opinion, includes evidence as to the nature of the dispute which was compromised by the order ...".

Dean, Toohey and Gaudron JJ in Chamberlain v Deputy Commissioner of Taxation (1987 - [1988] HCA 21; 1988) 164 CLR 502 at 508 commented" The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment ...". This is a view which no doubt has particular relevance to judgments which are entered in idiosyncratic or non-standard terms. No case was referred to by counsel in which there has been a discussion as to the proper construction to be placed upon an interlocutory judgment for "damages to be assessed."

Such is the formula provided for a default judgment in respect of unliquidated claims (see Rules of Court, Appendix D, Forms Nos 10 and 11, pages 348 and 349) and it is also the formula adopted by the parties in the present proceedings.

If the facts supporting the general issue of liability had been disputed in the defence, it is easy to appreciate that a judgment in these terms would have nullified such denials of fact. If, for example, the defence had denied the administration of Syntrometrine to Heather or Megan, judgment thereafter entered for Megan for damages to be assessed would necessarily foreclose any subsequent denial of that fact thereafter.

Similarly, if there had been any denial of injury to Megan in the defence, that fact also would necessarily be construed as having been resolved in Megan's favour if, at some time after the judgment, the defence attempted to dispute it.

Halsbury_, Laws of England_, 4 edn, vol16, in dealing with estoppel by record at par1520, observes that "the efficacy" of a consent or default judgment "is somewhat strictly limited" but as Mr Blow QC correctly points out, that observation, whilst appropriate in respect of default judgments, is not appropriate in respect of judgments by consent. (See New Brunswick Pty Co v British and French Trust Corporation [1939] 1 AC 1 as explained by Viscount Radcliff in delivering the opinion of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993). At 1010, his Lordship observed:

"Their Lordships turn to the first ground. In their view there is no doubt that by the law of England, which is the law applicable for this purpose, a default judgment is capable of giving rise to an estoppel per rem judicatam. The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand. For, while from one point of view a default judgment can be looked upon as only another form of judgment by consent (see In re South American & Mexican Co [1895] 1 Ch 37, 45; 11 TLR 21, CA) and, as such, capable of giving rise to all the consequences of a judgment obtained in a contested action or with the consent or acquiescence of the parties, from another judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default."

"In their Lordships' opinion the New Brunswick Railway Co case can be taken as containing an authoritative reinterpretation of the principle of Howlett v Tarte in simpler and less specialised terms. This reinterpretation amounts to saying that default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularly for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham LC, [1939] AC 1, 21, they can estop only for what must 'necessarily and with complete precision' have been thereby determined."

Although the judgment now in question cannot be regarded as establishing an estoppel per rem judicatam, the principles discussed in Spencer, Bower and Turner, Res Judicata, 2 edn are very helpful in understanding the principles of construction which should be applied. I refer in particular to pars41 and 42, "Consent judgments and orders" and ChVI, "The Subject matter of the Judicial Decision".

It appears to me that the principles may be stated in relation to the present item of discussion in the following terms, viz, where there has been a judgment entered by the consent of the parties which necessarily involves a determination of some question of law or issue of fact, in the sense that the judgment could not have been legitimately or rationally entered without, at the same time, determining that question or issue in a particular way, such determination, even though not declared on the face of the recorded decision, is deemed to form an integral part of it as effectively as if it had been made so in express terms.

If there is evidence relating to the conduct of the parties or their privies which is capable of establishing a broader or narrower subject matter of dispute than that which appears from the pleadings, that material may be received and taken into account in reaching a view as to what factual or legal issues have been concluded between them.

In relation to this latter point, Mr Blow QC referred me to evidence given by Heather Grimsey that at one time between 1992 and the present, she was provided with the use of a motor vehicle by the Department of Justice, but I am unable to regard this as an unequivocal admission of the kind contended for. The infant plaintiff has achieved, by the judgment entered by consent, no more than she could have achieved if no defence at all had been delivered. In the later case the judgment would have been for "damages to be assessed". If, therefore, the defence actually delivered in this case is put entirely to one side so that the statement of claim stands alone as stating those issues in respect of which the plaintiff is entitled to succeed, and one asks the question "does the plaintiff have to show a causative nexus between the tortious act founding liability and the injury and consequent damage alleged?", the answer must be "yes". There appears to be no practical difference between a default and consent judgment in the present case.

I am indebted to counsel for their helpful arguments on this matter and I have considered each of the authorities cited to me but, notwithstanding an initial disposition to the view that the issue of causation of Megan's cerebral palsy had been concluded in her favour so as to make it irrelevant for the purpose of assessing damages, I have been unable to adhere to that view after careful consideration of the case.

In my opinion the consent judgment takes the matter no further in Megan's favour than the admissions made in the defence.

Consequently the evidence admitted de bene esse will now be admitted unconditionally as the issue of causation of Megan's present incapacities is still relevant and unresolved.