Plaintiff v Defendant

1 The plaintiff was born in 1990 and grew up in Bendigo. She has two older sisters and had older and younger brothers. When she was 15 years old, her older brother died by suicide in the family home. The plaintiff witnessed the body.

2 The brother's suicide emerged as having been related to incidents of domestic violence perpetrated by the plaintiff's father. The plaintiff also experienced physical abuse at the hands of her father, as did her mother and other siblings. Her father left the family home when the plaintiff was around 20 years old and she has not had any contact with him for many years.

3 The plaintiff completed the Victorian Certificate of Education and then studied fashion. She made clothes at one point, which were sold in Melbourne.

4 In 2014, the plaintiff was working at a bar in Bendigo where she met her now husband, Jono. They bought a home together in 2015 and married in 2017.

5 In 2017, the plaintiff commenced a Bachelor of Oral Health Science at La Trobe University, Bendigo, which she later completed.

6 In 2018, the plaintiff supported one of her older sisters in the birth of a baby boy. The plaintiff found the experience very confronting. She witnessed her sister undergo a lot of vaginal examinations. The plaintiff felt that she would not like that to happen to her.[1]

7 By 2020, the plaintiff was working full-time as an oral health therapist at Bendigo Health when she fell pregnant with her first child. She and Jono hoped for a big family.[2]

8 The plaintiff gave evidence that at that point she was happy about falling pregnant, happy in her life and job and that she and Jono were excited for their future together. That said, she had experienced periods of anxiety relating to the traumas in her early life, although it had not interrupted her work.[3]

9 Influenced by her sister's experiences during childbirth, the plaintiff preferred a 'physiological' (ie, 'low intervention') birth. The plaintiff and her husband discussed a home birth, but decided on a hospital setting because 'birth can sometimes not go so well'. That said, the plaintiff wanted to retain a degree of control over her own body. She gave evidence that -

It's important to me because I want to have choices about what happens to myself and my body and have boundaries.[4]

10 The plaintiff undertook research and preferred the 'Mamta' program offered by the defendant at Bendigo Hospital.[5] Her sister had used that program. The antenatal classes that she attended with her sister had been a good experience.

11 The stated aim of the Mamta program was to provide continuity of care during and immediately after pregnancy and birth. If accepted into the program, the plaintiff would be assigned a primary Mamta midwife as well as a secondary Mamta midwife. There was a team of Mamta midwives separate to the team of 'hospital' or 'core' midwives. That said, in-patient care was to be provided by 'both Mamta midwives and hospital midwives'.[6]

12 The plaintiff applied to join the Mamta program. On 27 May 2020, she was assessed by a Mamta midwife.

13 On 27 July 2020, the plaintiff was welcomed into the Mamta program by her then allocated 'primary' Mamta midwife, Frances (Frankie) Robb.[7] It seems that the plaintiff had been participating in an online program concerning the 'Thompson' breastfeeding method and was contemplating 'hypnobirthing'.[8] The plaintiff and her husband subsequently participated in online hypnobirthing classes.[9]

(a) the plaintiff had a sequence of further antenatal consultations with various Mamta midwives, particularly, Ms Robb, Megan Bailey and Clare Ross;

(b) on 13 October 2020, the plaintiff had a telephone consultation with an obstetrician, Dr Robin Burr; and

(c) the plaintiff's final antenatal consultation was with Ms Ross at about midday on 17 November 2020.

15 It will later be necessary to examine a number of issues concerning events during the antenatal period.

16 In that general context, the plaintiff prepared a four page written document referred to during the trial as the 'birth plan'. The birth plan commences as follows -

BIRTH AND BREASTFEEDING PREFERENCES

My name: Larissa Gawthrop

My partner's name: Jono Gawthrop

Our birth and breastfeeding plan is for those who will be involved with us during our labour, birth and early breastfeeding journey.

Our intention is to have a physiological birth (following the HYPNOBIRTHING program), although we understand in the event of special circumstances our plans may change and we will rely on your guidance and expertise, remaining committed to our preferences where possible.

The welfare of our baby is most important to us. We will absolutely accept and discuss advice if urgent or emergency situations arise.

My plan includes important information regarding informed legal consent. We look forward to participating in fully informed discussions, which include the benefits, risks and alternatives and supporting research.

Please approach Jono first for all questions/discussions where possible, especially as labour advances, as not to distract or interrupt me during a surge.[10]

17 The birth plan thereafter addressed a number of topics, including vaginal examinations. During the trial, various witnesses, including the plaintiff, tended to refer to vaginal examinations and 'VEs' interchangeably.

I DECLINE ALL vaginal examinations unless there is an urgent medical reason to do so. Informed verbal consent MUST be given from myself prior. If an urgent medical reason indicates an examination, I DO NOT wish to be informed of my dilation.

19 The plaintiff developed the birth plan from an online template related to the Thompson breastfeeding program.[11] Written birth plans were encouraged at Bendigo Hospital, and not unusual, although the present birth plan was said to have been longer than average.[12]

20 Ms Robb went on maternity leave in about October 2020. On 13 November 2020, at precisely 40 weeks gestation, the plaintiff attended a consultation with her replacement primary Mamta midwife, Clare Ross. To that point, the plaintiff had, at times, experienced 'Braxton Hicks'.[13]

21 Three days later, on 16 November 2020 at 11:45pm, Mr Gawthrop telephoned the maternity ward at Bendigo Hospital and spoke with one of the 'hospital' midwives, Debra Alexander. Among other things, Ms Alexander's note refers to '[e]arly labour' and that contractions had commenced at 10am. There had not yet been a 'show'. At that point, the plaintiff and her husband were '[h]appy to stay home'.[14]

22 By 17 November 2020, the plaintiff was four days overdue. As earlier noted, at about midday, the plaintiff attended her final antenatal consultation with Ms Ross. Among other things, Ms Ross noted that there had been some 'early labour last evening'.[15] At trial, it was not in dispute that during that consultation the plaintiff was told that Ms Ross would be going on leave that evening and that Megan Bailey, the secondary Mamta midwife, would be taking over.[16] The plaintiff had attended antenatal consultations with Ms Bailey on 19 October 2020 and 5 November 2020.[17]

23 At 7:18pm on 17 November 2020, Mr Gawthrop telephoned the maternity ward and spoke with a hospital midwife. Among other things, the midwife's handwritten note of the call records that -

(a) the plaintiff's membranes had ruptured at 5:45pm;

(b) there had been a 'show;' and

(c) contractions had been strong since about 6pm and were increasing.

Advised if SROM [spontaneous rupture of membranes] & by the morning if have not come in [with] contractions increasing to attend by 0800 for assessment ... . Will call back later this evening.[18]

25 At 9:45pm, the hospital midwife called back to check on the plaintiff's progress, but the call was unanswered.

26 At about 10:30pm, Mr Gawthrop called the maternity ward again and spoke with Ms Alexander. At trial, there was a degree of controversy concerning that call. Among other things, Ms Alexander noted that it was the '3rd or 4th call'. The telephone record included a pro forma statement that at the third call the woman should be invited in for assessment.[19]

27 At about 11:05pm, the plaintiff and her husband attended the maternity ward and met Ms Alexander. There were various points of controversy concerning the events that followed. That said, it was ultimately not in any real dispute that -

(a) Ms Alexander had read the birth plan thoroughly;[20]

(b) shortly after 11:05pm, Ms Alexander examined the plaintiff, particularly by palpating the plaintiff's abdomen for contractions and making and noting various observations;[21]

(c) the plaintiff consented to certain requested steps, but declined vaginal examination, 'CTG' and the administration of an 'AmniSure' test;[22]

(d) the plaintiff and/or her husband asked that the Mamta midwife be called;[23]

(e) Ms Alexander considered vaginal examination to be required by hospital policy, particularly in order that the plaintiff might be admitted to the hospital and her Mamta midwife called;[24]

(f) in the period of a little over two hours between 11:05pm on 17 November 2020 and 1:10am on 18 November 2020, Ms Alexander attended the plaintiff periodically and requested that she undergo vaginal examination;[25]

(g) at about 12am on 18 November 2020, Ms Alexander noted that the plaintiff was complaining of back pain and seeking advice in respect of pain relief;[26]

(h) Ms Alexander considered vaginal examination to be a prerequisite to the administration of drugs for the relief of pain;[27]

(i) at about 1:10am, the plaintiff consented to an AmniSure test, which she administered herself (and the result of which was positive);

(j) around that time, Mr Gawthrop approached Ms Alexander at the nurses station and 'laid out' the situation that had emerged (ie, '[y]ou're not going to call our Mamta midwife, you're not going to admit us to the ward ... and you're not going to provide any pain relief unless Larissa has a VE') to which Ms Alexander responded 'Yes, that's correct';[28]

(k) Mr Gawthrop explained the situation to the plaintiff and then returned to Ms Alexander and said 'she'll have the VE';[29]

(l) shortly thereafter, the plaintiff underwent a vaginal examination performed by Ms Alexander;

(m) the plaintiff was then admitted to the hospital, Ms Bailey was called and nitrous oxide was administered for pain relief;[30]

(n) Ms Bailey attended the birthing suite at about 2am and took over care of the plaintiff;[31]

(o) the plaintiff consented to further vaginal examinations performed at about 3:25am, 5:05am and 6:12am, although she declined a request for a vaginal examination made at about 4:35am;[32]

(p) at 6:18am, the plaintiff consented to vacuum assisted delivery of the baby;[33]

(q) at 6:25am, the plaintiff permitted the attending obstetrician to determine whether episiotomy would be necessary (which was subsequently performed);[34] and

(r) at 6:38am on 18 November 2020, the plaintiff gave birth to a baby boy.[35]

(a) Ms Bailey visited the plaintiff and Mr Gawthrop at their home a few days after the birth of the baby;

(b) at the suggestion of Ms Bailey, the plaintiff provided 'feedback' to the hospital by email dated 7 December 2020 that stated, among other things -

I would like to mention a concern that we had when we arrived to the birthing suites. We were under the impression we would be "admitted" and my MAMTA midwife notified of this. However, we were told that I was not being admitted but there for an assessment and could possibly go home, my MAMTA midwife would not be called and no pain relief given (if I requested it) unless I had a vaginal examination to "see if I was in labour". I had been active labouring at home for approximately 4 hours and were advised to go to the birthing suites, my husband notified them that we would not be looking to come home and was under the impression we would be admitted. We had timed all contractions on an iPhone app which indicated active labour for several hours. Throughout all of my appointments during pregnancy with Bendigo Health I was told that I did not have to have any vaginal examinations unless medically necessary. This was extremely upsetting for me at the time, distracting to my concentration and a highly inappropriate time to advise me that this was "necessary" for me to receive care to birth my son. It was very coercive, invasive and I did not have any other choice but to endure an examination that I was not prepared for.[36]

(c) Jennifer Pitson, Unit Manager of the Women's Ward and Birthing Suite at Bendigo Hospital, subsequently called the plaintiff to discuss her 'concerns';[37] and

(d) by letter dated 30 December 2020, Ms Pitson and Anna-Leena Percival, Unit Manager of the Women's clinic and MAMTA program, proffered 'apologies that Bendigo Health did not meet your expectations for care' and said that changes had been made 'as a direct result of your feedback'. Thereafter, the letter stated -

In your case you presented to birth suite at approximately 11:05pm and was [sic: were] offered a vaginal examination which you declined. As the Mamta midwifes are on call afterhours and can only work 12 hours in any one day they rely on the midwives on the birth suite to decide if women are in established labour before requesting they attend birth suite. When staff phone the Mamta midwife they are asked if a vaginal examination has been completed so the Mamta midwife can assess the optimal time to present to birth suite.

I apologise that this was not communicated to you throughout your pregnancy and that when you declined the vaginal examination a more in depth conversation did not occur where this should have been explained to you. It is certainly not acceptable that you felt coerced into having a vaginal examination in order to have your Mamta midwife notified of your admission and after declining the vaginal examination your Mamta midwife should have been notified.

Following discussion with the Mamta co-ordinator we will now ensure women are given information concerning these processes throughout their pregnancy and that women's choices are well documented in the patient file. Women requesting not to have vaginal exanimations [sic: examinations] will have their Mamta midwife notified on admission to birth suite and it will be up to the Mamta midwife to decide when they will attend for the labour.[38]

29 For her part, Ms Alexander maintained that the plaintiff gave verbal and implied consent for the vaginal examination.[39]

(a) she had been very distressed at the time;[40]

(b) she had been coerced, given no choice and Ms Alexander had 'strongarmed or pressured' her into undergoing the vaginal examination;[41]

(c) she has been traumatised by the incident, which included experiencing subsequent anxiety, nightmares and flashbacks of 'Debra putting on gloves';[42]

(d) the experience has affected her intimate life, gynaecological health and treatment, employment and family planning;[43] and

(e) she had not felt mentally well 'for quite a long period' and is not 'the same person as ... before'.[44]

31 In that general context, the plaintiff commenced common law proceedings against the defendant that came on for trial in Bendigo on 14 October 2025.

32 At the commencement of the trial, the plaintiff sought and obtained leave to file and serve an amended statement of claim that, in substance, pleaded causes of action in assault and/or battery and, further or alternatively, negligence.

33 In that general connection, senior counsel for the plaintiff identified 'consent' as a key issue in each of the pleaded causes of action.[45]

34 That said, the plaintiff's plea in negligence was accompanied by the following exceptionally long (and in some respects repetitive) list of particulars -

(i) Failing to give proper ante-natal treatment to the plaintiff;

(ii) Failing to give proper childbirth treatment to the plaintiff;

(iii) Failing to obtain the plaintiff's informed consent in respect of the VE;

(iv) Failing to be sure that the VE was necessary;

(v) Failing to inform the plaintiff that the VE was necessary and would add important information to the Hospital's decision-making process in its childbirth treatment of the plaintiff;

(vi) Failing to inform the plaintiff that the VE was necessary for an urgent medical reason or any other reason;

(vii) Failing to inform the plaintiff of the important information to be obtained from the VE for the Hospital's decision-making process in its childbirth treatment of the plaintiff;

(viii) Failing to recognise that a VE could be very distressing for the plaintiff, especially if she was already in pain, highly anxious and in an unfamiliar environment;

(ix) Failing to explain to the plaintiff the reason for the VE and what the VE would involve;

(x) Failing to consider that a VE is not always necessary, especially when the plaintiff was in established labour;

(xi) Failing to ensure the plaintiff's informed consent, privacy, dignity and comfort;

(xii) Performing the VE when it was unnecessary in the circumstances;

(xiii) Performing the VE notwithstanding the plaintiff's previous instructions set forth in the Birth Plan that a VE only be performed if there was an urgent medical reason for it;

(xiv) Performing the VE notwithstanding the assurances by the midwives that a VE would only be performed if there was an urgent medical reason for it;

(xv) Performing the VE without the plaintiff's informed consent;

(xvi) Performing the VE knowing that it would be distressing for the plaintiff, especially if she was already in pain, highly anxious and in an unfamiliar environment;

(xvii) Failing or refusing to admit the plaintiff to the birthing suite at the Hospital without her first undergoing a VE;

(xviii) Failing or refusing to notify the midwife without the plaintiff first undergoing a VE;

(xix) Failing or refusing to notify the midwife to attend the Hospital without the plaintiff first undergoing a VE;

(xx) Failing or refusing to provide pain relief medication for the plaintiff without her first having to undergo a VE;

(xxi) Failing or refusing to consult the midwife prior to refusing to admit the plaintiff to the birthing suite at the Hospital without her first having to undergo a VE;

(xxii) Failing or refusing to consult the midwife prior to refusing pain relief medication to the plaintiff without her first having to undergo a VE;

(xxiii) Permitting or allowing the plaintiff to believe that a VE would only be performed if there was an urgent medical reason for it;

(xxiv) Assuring the plaintiff that a VE would not be performed unless there was an urgent medical reason for it;

(xxv) Failing to communicate properly, or at all, to the plaintiff the Hospital's policies and requirements in relation to VE's;

(xxvi) Engaging Hospital staff to undertake childbirth treatment of patients including the plaintiff without:

a) ensuring that the Hospital staff were trained and competent to undertake childbirth treatment in accordance with a Birth Plan and protocols and procedures, including Mamta protocols and procedures, put in place by the Hospital; and

b) ensuring that the Hospital staff were aware of the contents of the plaintiff's patient file, including her Birth Plan;

(xxvii) Treating the plaintiff in such a manner that caused injury to the plaintiff;

(xxviii) Failing to treat the plaintiff so as to avoid causing injury to the plaintiff;

(xxix) Requiring the VE in such a manner that caused injury to the plaintiff;

(xxx) Undertaking the VE in such a manner that caused injury to the plaintiff.

35 It will be evident that the plaintiff's pleaded claim extended beyond the issue of consent. That became more evident as the trial unfolded.

36 In that regard, the plaintiff developed contentions that there had been negligence in -

(a) failing to simply call the Mamta midwife, Ms Bailey, without first conducting a vaginal examination;

(b) failing to use other means to ascertain the progress of the plaintiff's labour;

(c) failing to respect the plaintiff's stated birth preferences; and

(d) what was described as 'dual messaging' - that is, allowing the plaintiff to develop the expectation that her Mamta midwife would be called without any requirement for a vaginal examination.[46]

37 The plaintiff claimed consequential psychiatric injury, particularly -

38 In respect of damages, the plaintiff specifically disclaimed any claim for loss of earnings, loss of earning capacity or future medical and like expenses. That said, she claimed -

(a) damages for pain and suffering and loss of enjoyment of life;

(b) special damages (the sum of which was ultimately agreed: $5,288.55); and

(c) aggravated compensatory damages.

39 For its part, among other things, the defendant -

(a) admitted that it operated the Bendigo Hospital;

(b) admitted vicarious liability for the conduct of its employees insofar as their conduct was in the course of their employment;

(c) admitted that the plaintiff participated in the Mamta program and had completed a written birth plan;

(d) admitted that the plaintiff presented to the hospital at approximately 11:05pm on 17 November 2020;

(e) purported to admit that the plaintiff 'consented to and underwent a VE' at approximately 1:15am on 18 November 2020;

(f) denied the plaintiff's claims of assault and/or battery and negligence; and

(g) in respect of the latter, averred further that -

... the care provided by it was consistent with conduct which is widely accepted by a significant number of respected practitioners in the field as competent professional practice.[47]

(h) denied that the plaintiff has suffered any injury, loss or damage; and

(i) denied the claim for aggravated damages.

40 Whilst the defendant formally denied the plaintiff's allegation of 'negligence', it did not ultimately submit that it had not owed the plaintiff a relevant duty to take reasonable care. Rather, the defendant essentially acknowledged 'its duty of care'[48] and contended, in particular, that -

(a) on the evidence, the plaintiff gave informed consent for the vaginal examination;[49]

(b) in November 2020, the hospital's requirement of a vaginal examination prior to calling the Mamta midwife did not depart from the standard of reasonable care;[50]

(c) indeed, in November 2020, such a requirement was 'widely accepted practice';[51]

(d) on the evidence, the plaintiff was provided with sufficient information about the Mamta program and restrictions in the hours of Mamta midwives;[52]

(e) the plaintiff had led no evidence concerning what she would or would not have done had she been provided with information 'more fulsomely';[53] and

(f) further, the 'urgency' of the vaginal examination was created by the requests made by the plaintiff and her husband for 'their MAMTA midwife' and, in any event, the plaintiff had subsequently undergone further vaginal examinations (one of which was said not to have been for any urgent medical need).[54]

41 I should note, for completeness, that it was not pleaded or otherwise contended that no relevant duty of care arose because there was no reasonably foreseeable risk that the plaintiff might suffer psychiatric injury.[55]

(a) herself;

(b) her husband, Jono Gawthrop;

(c) Dr Leon Turnbull, psychiatrist;

(d) Michelle Richardson, registered nurse and midwife;

(e) Jeffrey Broughton, treating clinical psychologist; and

(f) Lauren Muratore, clinically accredited psychosexual therapist.

(a) Debra Alexander, attending 'hospital' nurse and midwife;

(b) Megan Bailey, attending 'Mamta' midwife;

(c) Tionie Newth, qualified and registered midwife and clinical adviser; and

(d) Dr Natalie Krapivensky, consultant psychiatrist.

44 The plaintiff gave evidence concerning most or all of the topics touched upon in the introductory section of these reasons and was cross-examined extensively, particularly in respect of some of the antenatal consultations as well as the events commencing on the evening of 17 November 2020 that culminated in her undergoing a vaginal examination shortly after 1:10am on 18 November 2020.

45 The plaintiff presented as quiet, thoughtful, introspective and somewhat brittle. She was significantly distressed at least once when giving evidence.

46 The plaintiff had plainly given considerable thought to the relevant events in the years that have followed. It was clear that she is emotionally affected by them. At times, she appeared bewildered by how the events had unfolded.

47 In that general context, the plaintiff answered questions directly and did not appear to have scoured the underlying documents. Her evidence was given without any artifice. She made reasonable concessions and gave evidence contrary to her interests on numerous occasions, including in evidence in chief and re-examination. For example -

(a) in respect of the subject vaginal examination, the plaintiff gave evidence in chief that, among other things, she had essentially said 'I'll do it';[56] and

(b) when, in re-examination, senior counsel was exploring the reasons for a decline in the plaintiff's social life, she essentially re-confirmed that her social life was related to and limited by her commitment to her children.[57]

48 As I have indicated, the plaintiff was cross-examined extensively. In that setting, she continued to answer questions much as she had in examination in chief. For example, she acknowledged that -

(a) she had not got off on 'the best foot' with Ms Alexander;[58]

(b) Ms Alexander's request for a vaginal examination had been made in order to see whether she was in active labour, which was 'important' and a 'valid medical reason';[59]

(c) she could not remember everything that 'went on' in the birthing suite;[60] and

(d) she enjoys her work and tries to maintain a physically active lifestyle.[61]

49 It was notable that she responded evenly to various direct or indirect suggestions that would have provoked argumentative responses from many other witnesses in her position. For example -

(a) that it was her first pregnancy, whereas midwives are experts in the field of pregnancy and childbirth;[62]

(b) that her birth plan amounted merely to 'certain wishes and desires';[63]

(c) that she had not acceded to a request for vaginal examination made by a qualified midwife who would 'know a lot more about childbirth than you would have at that point';[64]

(d) that she had felt coerced by her husband into undergoing the vaginal examination (to which she responded 'No, I didn't');[65]

(e) that undertaking the vaginal examination was justified because she had 'got what [she] wanted';[66]

(f) whether she had understood that 'delivering a baby naturally must involve some management of your vagina' (to which she responded, 'Yes');[67] and

(g) that 'what really sticks in [her] craw' is that she did not get a physiological birth when the 'delivery was a success' and she got 'a perfectly healthy baby boy'.[68]

50 That said, there were many instances in which the plaintiff did not accede to the various suggestions of senior counsel. For example, when it was suggested that she had not acceded to the initial request for a vaginal examination because of 'the way in which she [Ms Alexander] asked you', the plaintiff replied -

She couldn't give me any reason for the vaginal examination, and there were no concerns for the welfare of my child.[69]

51 In an overall sense, it will be evident that the plaintiff gave evidence in an honest, reasonable and considered manner. She plainly endeavoured to give accurate evidence and, in general terms, should be considered to be a reliable historian. It follows that the defendant's submissions that the plaintiff was an unreliable witness and that her evidence was 'vague and inexact' cannot be accepted in any kind of general way.[70]

52 That said, there are a few areas in which the plaintiff's evidence must be examined with a little more care. In particular, the plaintiff acknowledged that she could not remember everything that went on in the birthing suite on the night of the birth.

53 In short, while the plaintiff presented as a careful and generally reliable historian, it does not follow that all areas of her evidence are equally reliable and must necessarily be accepted.

54 The plaintiff's husband gave evidence that he worked as a mental health nurse prior to changing careers in 2014 and thereafter working as a firefighter.[71]

55 He also gave evidence concerning matters such as meeting his wife, their early relationship and marriage, her pregnancy, the onset of early labour, his calls to the maternity ward, the night of the birth and subsequent events. He had clearly been actively involved in supporting his wife's pregnancy and gave emotionally 'raw' evidence concerning the effect of the 'VE' upon his wife and their life together.[72]

56 In cross-examination, Mr Gawthrop answered questions directly and readily acknowledged when he was unable to recall or remember a suggested event.[73] He also -

(a) said that he would defer to a midwife concerning whether contractions had been regular or irregular;[74]

(b) responded maturely to suggestions such as that Ms Alexander, being a midwife, was '[c]ertainly more expert than you';[75] and

(c) readily acknowledged that he and his wife had discussed the events 'many, many times in the last five years' - indeed, he said that they had 'lived it together'.[76]

57 Notwithstanding the latter, in particular, Mr Gawthrop's evidence did not present as reconstructed and no submission to that effect was advanced by the defendant in final address.

58 In my view, Mr Gawthrop gave evidence in a manner best described as 'matter of fact' and presented as a generally reliable historian. The defendant's submission that Mr Gawthrop's evidence was 'vague and inexact' cannot be accepted.[77]

59 Dr Turnbull is a practising psychiatrist who assessed the plaintiff for medico-legal purposes on 4 September 2025 and subsequently reported in writing.[78]

60 Dr Turnbull explained his opinions in cross-examination and responded thoughtfully to the various suggestions advanced. He readily acknowledged that the plaintiff carried mental scars from her childhood and that cessation of the litigation would remove some degree of stress.[79] He also acknowledged that the case was quite unusual and that he had not seen a case like it in 'about 7,000 reports' that he had written.[80]

61 Albeit that Dr Turnbull examined the plaintiff only once and for medico-legal purposes, he was an impressive witness and I consider his opinions to be entitled to considerable weight.

62 Ms Richardson is an experienced registered nurse and midwife in Victoria. Her experience includes lecturing at Monash University, working at St Vincent's Private Hospital and as Statewide Chair of the Maternity and Newborn Expert Clinical Network for Safer Care Victoria.[81] Her letter of instruction and subsequent report were tendered into evidence.[82]

63 Ms Richardson gave evidence in chief concerning matters including Safer Care Victoria, the birth plan and the events on the night of the birth. She demonstrated what is involved in the present kind of vaginal examination[83] and explained, in her opinion, what should have occurred when the plaintiff presented to the hospital.[84]

64 When presented with an account of certain evidence given by the plaintiff, Ms Richardson said -

Um, just to hear that affects me greatly. ... it appears and feels like bullying and [coercion] - just trying to wear someone down. After the first or the second time [of requesting a VE], again this midwife - she just would [sic: should] have rung the Mamta midwife ... Just read the birth plan, ring the midwife. Don't bully the patient into a vaginal examination so she can enter and be admitted. She's in the birth suite, but ... they don't even admit her, so she can get - receive care. They don't start writing any notes, progress notes on her labour until 1.45. I can't imagine what it would be like to have someone ask me eight times if they'd like to put their - to vaginally examine, digitally penetrate someone, eight times over a two-hour period when ... they've clearly stated they don't want it. It's clearly documented that they don't want it. I mean - there's a clear alternative to ring the Mamta midwife ...[85]

65 It was quite clear that Ms Richardson was affronted that the plaintiff or any labouring woman should have been placed in such a position.

66 Notwithstanding the above, in cross-examination Ms Richardson acknowledged a range of propositions, such as that -

(a) if you need 'to assess dilation [of the cervix], you need to perform a vaginal examination';[86]

(b) physiologically, a woman is not in a position to deliver a child vaginally until her cervix is 10 centimetres dilated;[87]

(c) the first stage of labour can 'take days';[88] and

(d) if a woman is having irregular contractions it is most likely that the second stage of labour is 'a little way away' and could possibly be 'a long way away'.[89]

67 Those and other acknowledgements were made quite reasonably. Otherwise, Ms Richardson adhered to the substance of her opinion that, in the present instance, the subject vaginal examination had not been necessary and should not have been performed.

68 In address, senior counsel for the defendant accused Ms Richardson as having gone 'all Derryn Hinch on us and said "shame" to this midwife'.[90] If one of the objectives of that submission was to suggest that Ms Richardson's evidence should broadly be either rejected or significantly discounted because she was affronted by the plaintiff's account given in evidence, I do not accept it.

Ms Richardson ... was reluctant to make [sic: accept] what were fairly simple propositions that were put to her, and in particular, was her reluctance to accept the notion that the vaginal examination was the best tool available to assess the progression of someone's labour. And we say ... that exposes the fact that she was digging her heels in improperly because she was concerned, we submit, that a concession made to that effect was going to affect the outcome of the party that had engaged her.[91]

70 As I have noted, Ms Richardson readily acknowledged that vaginal examination was the only way to 'categorically' assess the level of dilation of the cervix. Indeed she was asked it, and acknowledged it, more than once.[92]

71 More broadly, while, as I have noted, Ms Richardson was quite apparently affronted by what was said to have occurred, I do not accept that she presented as 'digging her heels in improperly' because of any favouritism to 'the party that engaged her'. That submission must specifically be rejected.

72 In my view, Ms Richardson's evidence was explicable and given quite satisfactorily. Her evidence falls for consideration together with the other relevant evidence in the case.

73 Relatively brief mention may be made of the evidence of Mr Broughton and Ms Muratore.

74 Mr Broughton is a clinical psychologist who has treated the plaintiff since August 2024. His report was received into evidence.[93]

75 Mr Broughton explained why it was that his treatment of the plaintiff relating to the 'birth trauma' has been limited.[94] That said, he spoke of complex post-traumatic stress disorder with disassociation that was worsened by the subject events.[95]

76 In cross-examination, Mr Broughton made several concessions and presented as fairly acknowledging the limitations in his evidence.

77 Ms Muratore is a clinically accredited psychosexual therapist who specialises in sexuality and relationships. She receives referrals from psychologists and has received a couple of referrals from psychiatrists.[96] She saw the plaintiff twice for medico-legal purposes and subsequently reported.[97]

78 In cross-examination, she was asked questions about matters such as her 'clientele', the incidence of mismatches in libido, the effect of family responsibilities, a suggested possibility that the plaintiff had historically been sexually abused (which, in her evidence, the plaintiff had firmly denied) and 'trauma-like responses'.

79 In that general context, Ms Muratore made several concessions, including that even absent any birth trauma the plaintiff's desire for sex could have been negatively affected.[98] That said, it was evident that Ms Muratore was essentially of the view that the subject events had had a 'profound effect' upon the plaintiff.[99]

80 Mr Broughton and Ms Muratore sought to give only relevant evidence, and both sought to assist the Court. To the extent that any of their evidence is relevant, it falls for consideration together with other relevant evidence.

81 Ms Alexander gave evidence that, among other things -

(a) she is a midwife and nurse;

(b) between about 2007 and 2011 or 2012, she worked as a 'caseload midwife' with the Mamta program at Bendigo Hospital;

(c) from about 2012 until about 2022, she worked as a hospital midwife at Bendigo Hospital and was also involved in coordinating childbirth education;

(d) since about 2022, she worked as a midwife and nurse in Castlemaine and subsequently at St John of God Hospital in Bendigo; and

(e) for about the last 10 years she has conducted a hypnobirthing business.[100]

82 Ms Alexander otherwise gave evidence concerning, for example, the aims of the Mamta program, the procedures at Bendigo Hospital and the subject events.

83 In particular, Ms Alexander gave evidence in chief that -

(a) the birth plan was a 'beautiful four-page birth plan' which she had 'thoroughly read';[101]

(b) the criteria for calling the Mamta midwife included performing a vaginal examination;[102]

(c) she had felt like calling the Mamta midwife anyway, and had raised that with Mel Welch, the midwife in charge, who 'reminded' her that she could not 'break hospital policy';[103]

(d) the plaintiff gave verbal and implied consent to the vaginal examination;[104] and

(e) during that examination, the plaintiff had not expressed any emotion 'at all' and had been 'relaxed, her pelvis was relaxed, she was relaxed on the bed for the examination'.[105]

84 It will later be necessary to examine aspects of Ms Alexander's evidence in some detail.

85 In any event, prior to giving the evidence to which I have referred, Ms Alexander said -

Okay. So this is five years ago and my memory has been jogged by being given the paperwork to re-read, so my memory is reasonably good on the events of the evening.[106]

86 Whilst I would not want to be thought to be harshly critical of Ms Alexander and the manner in which she gave evidence, that which followed presented as a shifting and at times muddled mixture of purported memories together with what she said 'would have'[107] been said or done and what she said was her 'usual practice'.[108]

87 In the midst of that, when specifically asked about the quality of her memories, Ms Alexander said -

I do have vague recollections of the event, however having been provided with the notes there's a lot more that's kind of coming back to be quite fresh in my memory.[109]

88 However, the evidence that followed continued to carry the features earlier described, albeit that, in respect of the subject vaginal examination, in particular, Ms Alexander ultimately acknowledged that she did not have any specific recollection.[110]

89 At the same time, it was evident that Ms Alexander considered herself to have been an unfairly accused victim of events that had essentially been out of her control.

90 In evidence in chief, that feature seemed to manifest itself most obviously in the endeavours made to apportion elements of responsibility to -

(a) Mr Gawthrop, for Ms Alexander's absence of rapport with the plaintiff;[111] and

(b) Ms Welch, for the ultimate directive that the plaintiff should undergo vaginal examination.[112]

91 In respect of the former endeavour, it is not easy to reconcile the suggestion that Mr Gawthrop was unreasonably impeding Ms Alexander's access to the plaintiff with her other evidence that -

(a) she had undertaken a discussion with the plaintiff concerning the use of the bath;[113] and

(b) she had attended the plaintiff every half an hour, for 10 minutes at a time, in the course of which she would have been 'listening to [the] baby's heartbeat, having our hands on [the plaintiff's] belly, feeling are the contractions getting stronger'.[114]

(a) the directive said to have been given by Ms Welch does not appear in the relevant clinical notes;[115]

(b) Ms Welch did not give evidence; and

(c) Ms Bailey later gave evidence that Ms Welch was no longer employed by the defendant.[116]

93 Cross-examination is, of course, a rather different creature and, in that context, it was apparent that Ms Alexander was considerably more wary and defensive.[117] At times, she also tended to draw rather narrow distinctions and even fence with the cross-examiner.[118]

94 That said, at other times, Ms Alexander exhibited no reticence in seeking, directly or indirectly, to explain and thereby apportion elements of responsibility for the various events to -

(a) the suggested reality of 'the hospital';[119]

(b) the fostering by the Mamta program of 'unrealistic expectations';[120]

(c) speculation that, like 'people', the plaintiff may have taken on 'the belief of what they want to believe as being reality, other than what is said';[121]

(d) her 'superior', Ms Welch;[122] and

(e) the limited scope of her subsequent discussion with the unit manager, Jennifer Pitson, as well as Ms Pitson having apparently been one of Ms Welch's 'good buddies'.[123]

95 In making these observations, I am conscious of the difficulty of the situation in which Ms Alexander found herself when giving evidence, and perhaps more generally. In a sense, I would be inclined to accept that, generally, Ms Alexander honestly intended to recount what she considered to be her recollection of the relevant events.

96 However, for the reasons which I have attempted broadly to identify, Ms Alexander's recollections concerning the subject events, in particular, were admittedly vague and muddled, and, at the same time, the content of such 'recollections' as she ultimately proffered seemed to be mediated via a powerful combination of perceived injustice (to her), fatalism and, fundamentally, reconstruction.

97 While I would not dismiss the whole of Ms Alexander's evidence as entirely unreliable, the very greatest of care must be taken when seeking to rely upon any aspect of her evidence that is not corroborated reliably, particularly her evidence concerning the subject events.

98 Ms Bailey was and remains a midwife at Bendigo Hospital. As earlier noted, she was the Mamta midwife who attended upon the plaintiff from about 2am on 18 November 2020.

99 Ms Bailey gave evidence concerning the Mamta program, her antenatal consultations with the plaintiff and her attendance at the birthing suite on 18 November 2020. It will later be necessary to examine aspects of Ms Bailey's evidence in detail.

100 It is presently sufficient to note that Ms Bailey -

(a) readily acknowledged the limitations in her recollections;[124]

(b) otherwise tended to give evidence in direct terms; and

(c) in several instances, made fair concessions or observations.[125]

101 That said, Ms Bailey was discernibly careful and diplomatic in her expression, and, at times, a little self-conscious. Perhaps that was to be explained by the fact that, unlike most of the other hospital employees and midwives referred to during the case, she remains employed by the defendant. Her self-consciousness was most obvious in relatively isolated instances of circumlocution[126] as well as several instances in which her evidence presented as being in a degree of tension.[127]

102 In my view, Ms Bailey endeavoured to give accurate evidence. It does not follow that every aspect of her evidence must be accepted.

103 Ms Newth is a qualified and registered midwife as well as a clinical advisor to the Australian Health Practitioner Regulation Agency. She resides in Queensland and has worked at major tertiary hospitals in Queensland.[128]

104 Ms Newth prepared a report at the request of the defendant. Her letter of instruction, report and curriculum vitae were tendered into evidence.[129]

105 Ms Newth gave limited evidence in chief beyond the tender of her report. Her evidence in chief was directed to relatively discrete topics such as Mamta-like programs in hospitals, associated hospital policies, the stages of labour and the conduct of vaginal examinations.

106 By contrast, cross-examination was extensive, largely as a consequence of the manner in which Ms Newth had been instructed and then expressed various opinions appearing in her report.

(a) Ms Newth had been provided with certain records, including the sets of clinical notes, but not the plaintiff's emailed 'feedback' to the hospital,[130] the hospital's subsequent letter in response[131] or a handwritten statement of the plaintiff;

(b) Ms Newth had not been told that Ms Alexander had gone to Ms Welch and suggested that the Mamta midwife be called;[132]

(c) the letter of instruction had asked Ms Newth to assume that '[t]he plaintiff provided consent to the VE';[133]

(d) in her report, Ms Newth referred to a relevant clinical record and otherwise observed merely that the plaintiff had consented to the 'VE';[134]

(e) Ms Newth had erred in stating that the plaintiff had arrived at the birthing suite at about midnight (not 11:05pm);[135]

(f) thereafter, Ms Newth had ventured opinions concerning the plaintiff's allegations of negligence (which she had been requested to do);

(g) in particular, in respect of the alleged failure to obtain the plaintiff's informed consent to the VE, Ms Newth stated that such consent had been 'fully informed' and later stated -

Based on the medical records, I find no evidence to support the claim that informed consent was not obtained for the vaginal examinations. In fact, the notes consistently document discussions and consent, either verbal or written, prior to each vaginal examination. Therefore, I deny the allegation of negligence for failing to obtain informed consent for the vaginal examinations.[136]

108 It will be plain enough that those and other circumstances provided fertile ground for the skilful cross-examination that ensued.

109 Perhaps unsurprisingly, at the outset, Ms Newth was somewhat defensive and, indeed, rather argumentative in her own purported defence. To some extent, the position was at risk of becoming wholly irretrievable.

110 For example, as earlier noted, Ms Newth had relevantly been given only the sets of clinical notes and, in that connection, said -

... I believe when a registered midwife is documenting that consent has been gained from the patient that ... a discussion has taken place as to what is involved in the procedure and why it is recommended that they have that.[137]

111 To say the least, it does not seem likely that Ms Newth could have embraced that position so categorically, at least in the present case, if she had been given the plaintiff's 'feedback' and the hospital's subsequent letter in response.

112 Among other things, of course, it would have been evident from the 'feedback' email that the plaintiff's essential complaint concerned coercion and whether she had been given any other choice rather than whether she had understood what the procedure involved.

113 In any event, the cross-examiner came to suggest that, for example, Ms Newth -

(a) was 'at pains to back in [support] the hospital';[138]

(b) had come to an 'outrageous conclusion that the consent was fully informed';[139] and

(c) was, in substance, no more than an 'advocate' for the defendant.[140]

114 In the midst of all of that, Ms Newth said that she had been 'unaware there was other information' and that it had not been 'made known' to her.[141] Later, Ms Newth stated -

I was asked to provide an independent report, and ... I did the best that I could in providing that. It did not have anything to do - whether it was in defence ... or anything else. I provided the report based off that. It was an independent opinion.[142]

115 It is presently unnecessary to refer in detail to the evidence that followed, save to note that, considerably later, after being informed of the substance of some of the information that she had not been given, Ms Newth did make a number of quite fair concessions.[143]

116 In the circumstances, I would not conclude that Ms Newth was consciously an 'advocate' for the defendant.

117 That said, it will be evident that there were some quite unsatisfactory aspects of her report and, consequently, her evidence. However, that was almost entirely a consequence of the deficiencies in the instructions she had been given that, in cross-examination, left her seeking to defend opinions formed in the absence of plainly relevant and important material and without any ability to reflect carefully on the content of it.

118 In that sense, it probably does not matter much whether Ms Newth was consciously an advocate for the defendant or not. Significant parts of her evidence were reactive and argumentative, and that was a situation that had essentially been created by the manner in which she had been instructed.

119 For the reasons which I have sought to outline in some detail, it will be necessary to take the very greatest of care when giving any further consideration, or weight, to any part of the evidence of Ms Newth that is, or is likely to be, controversial.

120 Dr Krapivensky described herself as, among other things, a consultant psychiatrist.[144]

121 At the request of the defendant, Dr Krapivensky initially reported 'on the papers' and later assessed the plaintiff following which she provided a second report. Her reports were tendered into evidence.[145]

122 In a written outline of final submissions, the defendant summarised and referred to all of the witnesses called at trial, save for Dr Krapivensky. In oral address, counsel for the defendant referred to Dr Krapivensky only in passing, and without directly submitting that her various opinions should be accepted.[146] It follows that there is a case for presently saying nothing about Dr Krapivensky or her evidence.

123 Nonetheless, in case anything should be thought to turn upon it, I should briefly state that Dr Krapivensky's evidence was unquestionably the most extraordinary thing that I have seen in nearly 30 years of involvement in personal injury cases. Beneficially to Dr Krapivensky, I would hope that she was having a bad day as the Court was informed that her mother had passed away some days before she was called to give evidence.

124 That said, informed by both her evidence and the manner in which it was given, I could not attach any significant weight to any of the opinions that Dr Krapivensky expressed. Fortunately, as indicated, I was ultimately not really asked to do so.

125 In varying degrees of detail, I have already referred to the notes of the antenatal consultations, the birth plan, the notes of telephone calls to the birthing suite, the clinical notes relating to the period prior to the plaintiff's admission to hospital, the subsequent clinical notes, the 'feedback' emailed by the plaintiff to the hospital, Ms Pitson's consideration of that 'feedback', the subsequent letter from the hospital and the written reports and other documents relating to the expert witnesses that gave oral evidence.

126 It is not necessary to refer to all of the other documentary material received into evidence. That said -

(a) the plaintiff tendered the Safer Care Victoria guidelines entitled 'Care during labour and birth'('Safer Care Victoria guidelines');[147]

(b) the plaintiff tendered a report of Dr Nigel Strauss, consultant and occupational psychiatrist, dated 23 November 2021;[148]

(c) the plaintiff tendered the determination and reasons of a Medical Panel dated 18 June 2025;[149] and

(d) the defendant tendered the report of Associate Professor Glyn Teale, specialist obstetrician and gynaecologist, dated 11 March 2025.[150]

127 The parties also tendered a range of relevant hospital policies and documents[151] as well as certain other treatment notes and records.[152]

1. The Safer Care Victoria guidelines, the stages of labour, vaginal examinations and Bendigo Hospital guidelines, policies and protocols

128 During the trial, much direct and indirect reference was made to -

(a) the Safer Care Victoria guidelines;

(b) the stages of labour;

(c) vaginal examinations; and

(d) certain guidelines, policies and protocols at Bendigo Hospital.

129 Much of that evidence was not controversial. However, it is convenient to outline its substance in order that later analysis and findings might more readily be understood.

130 Ms Richardson identified Safer Care Victoria as a statutory body and explained that -

... [it] looks at providing safe best practice for all hospitals within Victoria based on evidence ... gathered, both nationally and internationally ... to ensure care delivered meets safe guidelines in all settings.[153]

131 Among others, Ms Richardson and Ms Newth each referred to the Safer Care Victoria guidelines in their reports and oral evidence.

132 The Safer Care Victoria guidelines are lengthy. However, they commence with the following presently relevant 'Key messages' -

• The woman must remain at the centre of all interactions and care, with her wishes respected and supported, while mitigating any risk to her or her unborn child.
• How a woman is supported through her labour and birth may impact upon her post natal recovery, adjustment to motherhood and her self-esteem for many years to come therefore care providers have a duty to be sensitive to the woman's emotional, cultural and physical needs.

• Continuity of midwifery care in labour is recommended.

• Admission into hospital should not be determined solely by active labour being identified, but by the woman's individual needs.

• Labour and birth are normal physiological processes. There should be no intervention in that process without a valid reason. If a woman is deemed higher risk or circumstances arise that requires intervention, refer to specific guidelines.

• Written or verbal consent must be obtained for interventions, examinations or treatment.

• Assessment of progress in labour needs to consider the whole clinical picture including an awareness of and response to risk factors that are present or may arise during the course of the labour and birth.

...

• Offer the woman evidence-based information. Where possible, support her birth plans and decisions and work in collaboration with her family and other health care providers.[154]

133 In respect of 'Planning for labour and birth', it is stated -

• Planning for labour and birth is a continuous process, commencing at the beginning of pregnancy. It aims to ensure the woman is an active participant in making informed choices and decisions that are in the best interest of her and her baby.
• Evidence has shown that women who receive continuous support during labour, are more likely to give birth spontaneously, use less pain medications, have shorter labours and are more satisfied.
• The woman may be anxious or feeling vulnerable. This can be reduced by open communication, active listening and compassionate care. Simple measures such as introducing yourself and others, gaining consent for procedures, being respectful and maintaining the woman's dignity will assist in minimising fears.[155]

134 Shortly thereafter, they outline, in some detail, the steps to be followed in respect of an 'Initial assessment'. In particular -

When a woman attends for assessment, it is important to gather information such as her medical and obstetric history, perform observations and possibly offer a vaginal examination (VE) to assess progress in labour and evaluate her needs. Care providers should:

Introduce themselves and their role to the woman and her support team.

• Establish the reason for her presentation.

• Assess the woman's emotional and psychological needs/state.

...

• Stay with the woman, observe and palpate her contractions and fetal movements for a minimum of 20 minutes. This is an opportunity to offer reassurance to the woman and her support team.
• If appropriate and indicated offer the woman a vaginal examination (VE), gain her consent and document the findings. Be mindful that a VE can be painful and confronting for some women. Maintain her dignity, privacy and be respectful.[156]

135 Thereafter, again in some detail, the Safer Care Victoria guidelines address topics including the stages of labour, immediate postpartum care and care of the newborn. The Safer Care Victoria guidelines include references to other statewide and national frameworks, standards and guidelines.

136 The Safer Care Victoria guidelines specify and describe the stages of labour in terms with which no witness directly took any issue.

(a) the 'latent phase' (or 'early labour'), which is 'typically characterised by painful contractions, some degree of cervical effacement and cervical dilatation'; and then

(b) the 'active first stage', which is 'traditionally defined as commencing between 4cm and 5cm of cervical dilatation' and is characterised by 'regular painful uterine contractions, a substantial degree of cervical effacement and more rapid cervical dilatation from 5cm until full dilation'.

138 During the trial, various witnesses referred, rather interchangeably, to 'active labour' and 'established labour'. I took both expressions to refer to what the guidelines describe as the 'active first stage'.

139 In respect of the 'latent phase', the Safer Care Victoria guidelines state, among other things -

For purposes of this guideline the WHO 2018 definition will be accepted as dilation [of the cervix] up to 5cm for first and subsequent labour. Some women may believe they are in active labour and may find this phase confusing and exhausting. Care providers should be aware of and acknowledge this, offering reassurance and support.

• Support the woman to return home until labour establishes, providing she feels safe and confident to do so and according to her individual needs, wishes and circumstances.
• Reassure the women [sic: woman] that she can return to hospital at any time if she is anxious or unable to manage her pain.

140 In that general connection, it is also stated -

Note: Cervical dilatation should not be the sole determinant of safety to return home or admission for ongoing care. An assessment of contractions and the woman's behaviour and wishes are important considerations.

141 In respect of the 'active first stage', the Safer Care Victoria guidelines refer to maternal observations every 30 minutes, including palpating uterine activity for 10 minutes and documenting 'frequency, strength and length of contractions'.

• Every 4 hours, or more frequently as indicated, check:

• Offer a vaginal examination to assess labour progress. Vaginal examination may also be indicated prior to administration of a narcotic, siting of an epidural for analgesia, to confirm full cervical dilatation (if in doubt) or in response to the woman's wishes - however it is important to note that vaginal examinations more frequently than every four hours could potentially increase the risk of infection for both the mother and baby.

143 The 'second stage of labour' is 'from full cervical dilatation (10cm) to the birth of the baby'. The Safer Care Victoria guidelines state that when the second stage is suspected or confirmed it should be ensured that other clinicians required to attend the birth are made aware.

144 In that connection, it is stated that, for women who have not previously given birth to a live baby, the combined passive and active stages of birth should be expected to be complete within about three hours of the second stage.

145 The 'third stage of labour' is 'from the birth of the baby until the birth of the placenta' and is followed by the 'immediate postpartum period'.

146 More broadly, Ms Richardson gave evidence that -

(a) the first stage can 'take days';

(b) contractions increase in intensity towards the end of the first stage;

(c) contractions decrease in frequency in the second stage; and

(d) in the second stage, the 'intensity is in the urge to push'.[157]

147 For her part, Ms Newth said that during the 'early stages of labour' contractions are 'pulling that cervix ... to help to open and also to thin out' and that 'effacement reflects a fully thinned cervix'.[158]

148 Some might be tempted to assume that when facing relatively imminent vaginal or other birth, the conduct of a vaginal examination should not usually present as a particularly ominous prospect. However, the evidence revealed any such thinking to be quite wrong.

149 I have already referred to several relevant references appearing in the Safer Care Victoria guidelines, including that, in the context of labour, a vaginal examination can be 'painful and confronting for some women'.

... [childbirth is] quite an intimate space. It is a very, very important event in someone's life. ... [T]hey need [to] be able to be confident. Women need to be confident that their agency is upheld and dignity, particularly with vaginal birth, it is quite, quite intimidating ... particularly for first-time mothers - for your private areas to be exposed to all and sundry who feel they need to see it and examine it. And so the woman needs to have some form of agency over her body ...[159]

151 Shortly thereafter, Ms Richardson described part of the process as follows -

The ... woman's lower half is exposed. Her legs are spread into a position to enable digital penetration by the midwife, an examination of the cervix, and determination of the placenta - of the foetal head into the pelvis and the foetal presentation of the foetal head, how it's sitting, and then the digits are removed and the woman is cleaned and recovered.[160]

152 Ms Richardson also said that two fingers are inserted into the vagina '[a]s far as practical and able' and that such an examination can take more than a minute.[161] She then said -

... you spread your fingers and what you're trying to ascertain is full dilation or part thereof. Full dilation being 10 centimetres. I can show you ... - you spread your ... fingers very widely and push in quite deeply and if the cervix is in the posterior position, you need to travel around and even sometimes perhaps walk your fingers along. So it can be quite uncomfortable, although midwives in the main try to make it as easy and gentle as possible.[162]

153 It will be evident that part of the above evidence involved an informative (and rather vivid) demonstration of the use of the fingers.

154 Thereafter (and unsurprisingly in light of the demonstration), Ms Richardson confirmed that for some women a vaginal examination can be painful.[163]

... a vaginal examination is an uncomfortable examination. I would say that women are not keen to have vaginal examinations. But when it's explained to them the need for the vaginal examination, that most women that come into labour in hospital will experience vaginal examinations as part of their care.[164]

156 Ms Bailey confirmed that a vaginal examination is a very invasive procedure,[165] which, in substance, was also confirmed by Ms Alexander.

157 That said, Ms Alexander gave evidence that she had rarely had women tell her that the experience was painful. She said that '[m]any women don't find it confronting, some women do' and proceeded to undertake her own demonstration, using a large bulldog clip.[166]

Bendigo Hospital guidelines, policies and protocols

158 As noted, several Bendigo Hospital guidelines, policies and protocols were received into evidence, particularly the -

(a) 'Antenatal Care Schedule - Midwife Led Care and Obstetrician Led Care Guideline' ('Antenatal Care Schedule');[167]

(b) 'Mamta Caseload Midwifery Program Guidelines' ('Mamta Guidelines');[168]

(c) 'Management of Women Presenting in Labour Through to Normal Vaginal Delivery Protocol' ('Labour to Vaginal Delivery Protocol');[169]

(d) 'Informed Consent Policy' ('Informed Consent Policy');[170] and

(e) 'Labour and Birth Guideline' ('Labour and Birth Guideline').[171]

159 The Antenatal Care Schedule was referred to particularly during the cross-examination of Ms Bailey. It is presently unnecessary to extract relevant parts of that document.

160 The Mamta Guidelines are intended '[t]o guide staff on the eligibility and management of patients within the program'[172] and are directed to various relevant topics.

161 In respect of the period 'During Labour', it is stated -

• The Mamta midwife will be on call for the birth and attend the births and assessments between the hours of:

• - 0800 hrs - 1800hrs, MAMTA midwives will attend all assessments for their clients or
• - 1800 hrs - 0800hrs, ward staff will complete the initial assessment and call the Mamta midwife when the woman is identified as being in active labour. Refer to the Management of Women Presenting in Labour Through to Normal Vaginal Delivery

• The contact number for the primary Mamta midwife is located in the Management Plan of BOS. If the primary midwife is not available/on leave/on a rostered day off, the phone will be diverted to the relevant care provider (either the second Mamta midwife partner or Birth suite).[173]

162 The Mamta Guidelines thereafter address several further topics, including 'Post Birth', 'Postnatal home care' and 'Additional support to all MAMTA clients'.

163 In respect of the period 'Post Birth', among other things, it is stated -

• When the Mamta midwife is not present, the midwives on the ward will care for [the] woman and her infant.

164 In respect of 'Additional support to all MAMTA clients', and under the sub-heading 'Assessments', it is stated -

• After hours assessments (1800hrs-0800hrs) will be completed by Birthing Ward staff.
• If the woman is in active labour Birthing Ward staff should contact the Mamta midwife. Her number will be in the Management Plan on BOS. This number will be answered by the midwife who is on call for that woman.[174]

165 The Labour to Vaginal Delivery Protocol is lengthy and commences with a sequence of relevant definitions, particularly -

• Normal Labour refers to the presence of regular uterine contractions that cause progressive dilation and effacement of the cervix and fetal descent. It is viewed in terms of its phases: latent, active, and decelerative, and its stages: first, second and third.
• Diagnosis of Labour. The woman is considered to be in labour if having regular painful contractions (at least one every ten minutes lasting 30 seconds or more) and one or more of the following:

1. Blood stained mucous discharge "Show".

2. Dilatation and effacement of the cervix.

3. Rupture of membranes.

◦ Latent first stage of labour - a period of time, not necessarily continuous, when:

- There are painful contractions, and

- There is cervical change, including cervical effacement and dilatation up to 3-4 cm.

◦ Established first stage of labour - when:

- There are regular painful contractions, and

- There is progressive cervical dilatation from 3-4 cm.

• Second stage: Complete cervical dilation (10cm) until expulsion of fetus.[175]

166 Various statements of policy follow, particularly -

• A vaginal examination will NOT be carried out in the presence of:

- Spontaneous rupture of membranes and not in established labour

- Active Herpes Simplex Virus (HSV) lesions in a woman with ruptured membranes unless the woman is in labour.

- Unknown placental localisation.

- Placenta praevia

- Antepartum haemorrhage

167 Under the heading 'PROTOCOL' and sub-heading 'Admission to Labour Ward', reference is made to the retrieval and review of the woman's medical record and the performance of a 'routine initial intrapartum assessment' which involves the recording of various findings as well as -

• Review birth plan and discuss with the woman and/or her partner any clarifications required.

168 After further sub-headings entitled 'Clinical Examination' and 'Fetal assessment' appears the sub-heading 'Vaginal examination (VE)', in respect of which it is relevantly stated -

• A VE is performed after consultation with the woman, midwife in charge and/or MO and may be performed for the following indications:

• To confirm labour and cervical dilatation.

• Before pain relief is administered.

• To assess progress.

• On maternal request.

• Healthcare professionals who conduct vaginal examinations should:

• Obtain verbal consent from the woman and document the same in her medical record.

• Ensure the woman's privacy and dignity are maintained.

• Findings from the VE should be discussed with the MO and Senior Midwife and documented on the Obstetric Assessment MR 138. This should include:

• Cervical consistency.

• Cervical length/effacement.

• Dilatation.

• Station.

• Position.

• Application of presenting part.

• Membranes intact/bulging.

• A vaginal examination will NOT be carried out in the presence of:

• Spontaneous rupture of membranes and not in established labour.

• Active Herpes Simplex Virus (HSV) lesions in a woman with ruptured membranes unless the woman is in labour.

• Unknown placental localisation.

• Placenta praevia.

• Antepartum haemorrhage.

...

• If the woman is in established labour she should be admitted. Notify the ward clerk of phone admissions (if out of hours). Confirm admission details are correct and place an identification band +/- an allergy brand.

169 The next sub-heading is 'Management of first stage of Labour', immediately under which appears the following two sections -

Assessment

• Women who re-present for assessment of labour on a second occasion, no matter the time frame, should remain in the assessment room and have another full assessment performed (as outlined in the admission to labour ward section of this guideline).

• Pain relief options should be discussed with the woman (as outlined in the 'pain relief options' section of this guideline).

• If the midwife/MO is unable to determine the stage of labour or progression the midwife in charge must be consulted to assess the need for admission.

Management of established labour (active phase of first stage)

• The presenting part should descend and be well applied to the cervix, contractions should be regular and increase in frequency and duration with:

- At least three contractions lasting 40 seconds or more in ten minutes, and

- The cervix should dilate at least 1cm per hour.

• The Midwife caring for the woman is responsible for keeping the Midwife in Charge informed of the woman's condition four hourly or earlier if there are any changes in the woman's condition.
• The midwife documents an 'Alert Line' on the Partogram MR 144 indicating a progress of 1cm an hour. Prolonged labour should alert the midwife to the possibility of abnormal labour.
• The midwife in charge and the MO will be notified of the woman's clinical picture and progress if dilatation in the active stage of labour does not progress at 1cm an hour.

170 Later, under the heading 'Pain relief Options', it is stated -

Pain relief for established labour

• A positive birth environment and continuous support of labour may reduce the need for pharmacological agents.

- First encourage the woman with natural approaches to labour such as breathing and relaxation techniques, massage, focusing, music, heat packs, freedom of movement (changing position i.e., standing, rocking), aromatherapy, showers and TENS machine (provided by the woman and for early labour only) and water injections.

- For women labouring in water (deep water immersion > 4-5 cms dilated), the temperature of the woman and the water should be monitored hourly to ensure that the woman is comfortable and not becoming pyrexial. The temperature of the water should NOT be above 37.5˚C.

• Women wishing for further pain relieving options should then be offered inhalational analgesia ('gas') that includes a mixture of oxygen and nitrous oxide that can be titrated to meet the woman's needs. Staff should inform the woman that it may make them feel nauseous and light-headed and they should cease using the 'gas' as they feel the contraction subsiding. The midwife should place her hand on the woman's abdomen and advise the woman to begin breathing on the 'gas' when the midwife feels the fundus tighten.

Intramuscular opioids

• Before administering an opioid analgesia (pethidine or morphine preferred) all women should have had a recent VE to assess dilatation.

...

171 Various topics are thereafter addressed, including management of the second stage of labour, preparation for birth and assisting the birth. In respect of the latter, I note that two midwives are required to be present for the birth.

172 Finally, the Labour to Vaginal Delivery Protocol includes a table entitled 'Frequency of Observations' which includes -

173 The Informed Consent Policy[176] is also lengthy and confirms that informed consent, implied or express, must be obtained for all 'health interventions', save for identified circumstances in which such consent is not required.

174 After several presently irrelevant definitions, the 'Principles of Informed Consent' are stated, including -

Principles of Valid Consent -

The principle of informed consent applies to provision of all health services by Bendigo Health clinicians, as patients need to give consent prior to receiving such services. The majority of minor services, are given with verbal or implied consent from the patient without a need for written consent. For major and / or high risk services, documentation of the informed consent process, including a discussion of the risks and complications involved, becomes more important from a medico-legal point of view. Informed consent also applies to screening for medical conditions.

Capacity

A patient must have capacity in order to give (or refuse) valid informed consent. Capacity is to be assumed unless there is clear evidence to the contrary

Informed

The patient must be provided with information, in a language they can understand (independent professional interpreters are preferred), regarding the details and nature of the proposed health intervention, and the benefits and material risks of the proposed health intervention in order that they can exercise their right to make decisions regarding their own health care.

Voluntary

The consent must be given voluntarily. The health professional is free to advise the patient what they believe is the best option for their care but must not exert pressure on the patient to accept that option. A genuine choice must be offered. The patient has the right to withdraw their consent at any time before or during a procedure, investigation, examination or treatment.

Timing

Consent must pre-date and precede commencement of the proposed intervention and/or the administration of any psychotropic medication (including analgesia or anaesthesia that may affect capacity). Consent should also occur prior to the patient's transfer to the unit when the intervention will occur (e.g. theatres, radiology) to avoid the introduction of psychotropic medication and the appearance of coercion on behalf of the clinician.

175 As to the 'Content of Informed Consent', it is stated that, among other things, patients should be informed of -

(a) 'the risks of no treatment vs. treatment';

(b) 'other relevant options for treatment and their associated risks and benefits';

(c) 'any uncertainty and/or unpredictability where they exist in significant measure';

(d) 'the patient's diagnosis and prognosis'; and

(e) 'the effect of the patient's current and/or predicted health status to increase or decrease risk'.

176 When discussing consent with patients, it is said that, among other things -

• Plain language should be used and technical health terminology avoided or explained. There should be time and opportunity for the patient to reflect and ask questions or seek clarification. Privacy and confidentiality should be considered when discussing personal and / or distressing information with a patient.
• The following contexts may all reduce a patient's ability to understand, process, retain and reflect upon information: noise, distractions and interruptions; unmanaged pain; anxiety; medications; alcohol and substance abuse (these may also render the patient temporarily incompetent to give informed consent).

177 As to the 'types of consent', it is relevantly stated that -

Implied consent

• Implied consent is where the patient's action and/or behaviour indicate to a clinician that they are prepared for the clinician to proceed. Implied consent may be adequate e.g. patient removes their shoe to allow examination of an injured foot.

• Implied consent is not adequate for invasive or personal examinations such as breast, genital or rectal examinations, in such cases verbal consent should be obtained and may require documentation in the patient's medical record.

• Implied consent should be used with care as it involves making an assumption that the patient's actions represent voluntary agreement. Implied consent does not negate the need to provide a patient with appropriate explanation and/or information of the procedure, investigation, treatment or examination.

Verbal Consent

• The adequacy of verbal consent alone needs to be judged by the treating health professional. Verbal consent alone is usually adequate for simple investigations, procedures, examinations and treatments such as CXR, IV cannulation, breast /genital /rectal examinations which involve no or only minimal risk to the patient.
• Verbal consent should be documented in the patient medical record for breast/genital and rectal examinations.
• Uncertainty as to whether verbal consent alone is adequate should be discussed with a more senior health professional, or the relevant health practitioner's Executive Director.

178 The Labour and Birth Guideline[177] was approved in August 2024, and replaced the Labour to Vaginal Delivery Protocol.[178]

179 Senior counsel for the plaintiff directed attention to features that were submitted to be different or absent in the earlier Labour to Vaginal Delivery Protocol, particularly -

(a) the inclusion of a definition of 'informed consent';

(b) the following passage under the heading 'ADDITIONAL BENDIGO HEALTH SPECIFIC INFORMATION' -

• All staff will ensure they behave and communicate in a way that contributes to a culture of respect for each woman as an individual undergoing a significant and emotionally intense life experience, so that the woman is in control, is listened to, her choices supported and she is cared for with compassion.

(c) parts of Appendix 1 entitled 'Assessment, observations and monitoring in labour' -

More frequent than every four hours could increase risk of infection for mother and baby

Yes if:

- in established labour or

- considering going home

Offered 4 hourly to assess labour progress.

May also be indicated:

-concerns

-woman's wishes

-prior to narcotic/epidural

-confirm full dilation (if uncertain)

180 As earlier noted, during the antenatal period -

(a) the plaintiff applied to join the Mamta program and, on 27 May 2020, was assessed by a Mamta midwife;

(b) on 27 July 2020, the plaintiff was welcomed into the Mamta program by her then primary Mamta midwife, Ms Robb;

(c) the plaintiff thereafter had a sequence of further consultations with, as the case may be, Ms Robb, Ms Bailey and Ms Ross;

(d) in that general context, the plaintiff prepared the birth plan;

(e) Mr Gawthrop telephoned the maternity ward at about 11:45pm on 16 November 2020; and

(f) the plaintiff had her final antenatal consultation with Ms Ross at about midday on 17 November 2020.

181 At trial, the issues in respect of the antenatal period concerned -

(a) whether the plaintiff had informed any of the Mamta midwives of the history of domestic violence involving her father;

(b) whether there had been any and what discussion concerning the rostering and hours of the Mamta midwives;

(c) when and with what Mamta midwife or midwives the plaintiff had discussed her birth preferences (particularly her desire to avoid all vaginal examinations unless there was an urgent medical reason) and/or had provided her written birth plan; and

(d) whether, at the final antenatal consultation with Ms Ross on 17 November 2020, she had been told that she would be having her baby that night.

The antenatal consultations and advice concerning the plaintiff's birth plan and preferences

182 By far the most important of those issues seemed to be the extent to which there had been consideration and advice concerning the plaintiff's birth plan and her preference to avoid all vaginal examinations unless there was an urgent medical reason.

183 In that general connection, the plaintiff gave evidence in chief that, among other things -

(a) she had 'flagged' her history of domestic violence with one of the Mamta midwives and filled out a 'form'. She could not recall who she raised the issue with, although it might have been Ms Bailey;[179]

(b) during the early antenatal sessions, she discussed her concerns about vaginal examinations with Ms Robb and -

... she reassured me specifically to vaginal examinations, that, 'I wouldn't even touch you, unless, you know, I had a suspicion that the umbilical cord had come down over your cervix, or if I was monitoring you and I thought things were not going so well, but then we would talk. We'd talk about it then.[180]

(c) she also discussed her concerns with Ms Bailey, and neither Ms Bailey nor Ms Robb expressed any concerns;[181]

(d) she obtained a draft birth plan from an online program associated with the Thompson breastfeeding method and raised it, and her preference in respect of vaginal examinations, with Ms Bailey and Ms Ross (and seemingly also Ms Robb),[182] and none of them raised any concerns or difficulties or warned against her desire to decline all vaginal examinations unless medically necessary;[183]

(e) at the final antenatal consultation, at midday on 17 November 2020, a student midwife had asked whether she could be present for the birth 'that night' and Ms Ross had said to the plaintiff: 'You'll be having your baby tonight. You'll be having him really soon';[184]

(f) she was aware of the 'after-hours' protocol to '[c]all the birth suite and they'll give you advice as to when to come in' and that they will call the Mamta midwife;[185] and

(g) she did not know that there was any 'after-hours' prerequisite which involved undergoing a vaginal examination prior to calling the Mamta midwife.[186]

184 There was very little cross-examination directed to the plaintiff's evidence concerning her discussions with the Mamta midwives about birth preferences and the birth plan,[187] and none in respect of reporting the history of domestic violence or the hours and rostering of Mamta midwives. I should note that there was no relevant 'puttage' based in any anticipated evidence of Ms Bailey.

185 As to the consultation with Ms Ross at midday on 17 November 2020, the plaintiff was taken to the relevant consultation note and confirmed aspects of the examination undertaken by Ms Ross, but denied the suggestion that an appointment for an ultrasound had been booked because the plaintiff 'could be a couple of days away'.

186 I note that Mr Gawthrop gave a degree of evidence concerning some of the present topics, as well as the plaintiff's contemporaneous state of mind. I will presently set much of that evidence to one side as it was evident that he was not present during the antenatal consultations. That said, it was quite plain from Mr Gawthrop's evidence that neither he nor his wife had appreciated that she would or might be required to undergo a vaginal examination in order that she might be admitted to the hospital, obtain any pain relief or in order that the Mamta midwife could be called.[188]

(a) as earlier noted, in her 'feedback' to the hospital by email sent shortly after the birth, the plaintiff said that '[t]hroughout all of my appointments during pregnancy with Bendigo Health I was told that I did not have to have any vaginal examinations unless medically necessary';[189]

(b) subsequently, in respect of what was described as having been a 'long discussion' with the plaintiff, Ms Pitson recorded, among other things, that '[i]t appears that she [the plaintiff] has been told that a vaginal examination would not be necessary ... unless a medical reason developed';[190] and

(c) as earlier noted, in the subsequent letter to the plaintiff, among other things, Ms Pitson and Ms Percival apologised that 'this' (ie, that when telephoned, the Mamta midwives would ask whether a vaginal examination had been conducted) had not been communicated to the plaintiff 'throughout your pregnancy'.[191]

188 For her part, Ms Bailey gave evidence in chief that, among other things -

(a) an Enterprise Bargaining Agreement ('EBA') meant that midwives could work a maximum of 12 hours in a 24 hour period and must take a 10 hour break - consequently, the time available to attend a woman in labour can be limited;[192]

(b) she had antenatal consultations with the plaintiff on 19 October 2020 and 5 November 2020, but could only recall those consultations 'based on my notes';[193]

(c) she had not been aware of the plaintiff's history of domestic violence as a child and there was nothing about that in the 'psychosocial area' of the 'Birthing Outcomes System';[194]

(d) in respect of the consultation on 19 October 2020, she could not recall any mention of a birth plan and it had not been noted;[195]

(e) if the birth plan had been presented to her she would have written down 'the main features ..., particularly if there was anything outside of standard hospital practice';[196]

(f) she was presented with the birth plan when she arrived in the labour room (after 2am on 18 November 2020);[197]

(g) in respect of the consultation on 5 November 2020, the absence of any mention in her notes meant that the birth plan had not been discussed;[198] and

(h) there was 'always an understanding that once the woman is determined to be in established labour', the 'ward midwife' will call in the Mamta midwife.[199]

189 In cross-examination, Ms Bailey gave evidence by reference to the notes relating to several antenatal consultations, including those conducted by her on 19 October 2020 and 5 November 2020.

190 In respect of the assessment undertaken by a Mamta midwife on 27 May 2020, Ms Bailey was referred to hospital procedures relating to the taking of a social history. In that general connection, Ms Bailey referred to the midwife's note of that consultation, particularly, '[s]upportive husband Jonathan' and 'DAN', and said that it revealed that the midwife had enquired about domestic abuse.[200]

191 Nonetheless, Ms Bailey acknowledged that the extent of the enquiries made by the midwife could not be known, and also said that in such an appointment there is 'quite a lot to cover... and so the domestic violence screening is asking is there any current concerns'. Ms Bailey did not think that such enquiries went into 'everything'.[201]

192 Ms Bailey was also asked about the notes relating to the subsequent antenatal consultation on 27 July 2020. Ms Robb's notes of that consultation read -

Larissa welcomed to MAMTA, program discussed, phone number provided. MAMTA hours discussed, advised not to text due to inability to divert text messages. LOS discussed.

Feeling well.

FMF normal - given Still Aware brochure and discussed FM - advised to call/come in if any concerns re: FM, aware that pattern of movement usually emerges by 28/40.

Given GTT handout and discussed process (PCOS), pathology request for GTT/FBE/iron studies/B12 given - vegetarian diet.

Discussed CBPE - has looked into hypnobirthing, will probably do - will also sign up for Zoom classes via Bendigo Health - writer to email CBPE coordinator.

Plans to BF. Has been completing "The Thompson Method" breastfeeding online course. Discussed skin to skin, rooming in, not introducing teats/dummies/complementary feeds whilst establishing BF.

Discussed COVID restrictions and support person guidelines at this time.

For routine review in 4/52.[202]

193 In that connection, among other things, Ms Bailey was referred to the hospital procedures generally relevant to such a consultation and said that she was sure that Ms Robb would have asked 'Is there anything you're particularly keen to discuss?', although, she was not sure 'exactly what would have been discussed'.[203]

194 The subsequent antenatal consultation notes indicate that the plaintiff was referred to a 'CBPE [Childbirth and Parenting Education] - Zoom session' in mid-August 2020 and that she attended a further antenatal consultation with Ms Robb on 24 August 2020 in connection with which, among other things, it was noted that the plaintiff had 'done CBPE via Zoom' and is 'practicing hypnobirthing as well'. Ms Robb thereafter noted -

Feels well prepared for labour and birth. Lots of questions answered. Very keen to avoid intervention and optimise physiological labour.

196 The next antenatal consultation was on 14 September 2020. Ms Robb's notes of that consultation read as follows -

Larissa well.

FMF normal. Reiterated advice to call/come in if concerns re: FM.

Almost finished hypnobirthing program. Commenced writing a birth plan. Considering physiological third stage - education re: same given and discussed and provided BH handout "Delivery of the placenta". Larissa will do further research and let writer know of decision next appointment - if opting for physiological third stage for obstetric consultant appointment as per BH policy.

Returned to dental job, restrictions now allow for same, feels good about return to normal role. Plans to work until 37/40.

Discussed writer's maternity leave position now advertised, will let Larissa know ASAP when midwife is appointed who will be taking over care.

Booked for routine review in 3/52.[205]

197 In that connection, Ms Bailey gave evidence that -

(a) it sounded like Ms Robb had been receiving information from the plaintiff about birth planning;

(b) it was likely that, at the next attendance, the plaintiff would have been asked about her birth plan;[206] and

(c) she did not think that Ms Robb would have had the birth plan 'at that point'.[207]

198 The antenatal consultation notes indicate that -

(a) the plaintiff consulted Ms Robb again on 6 October 2020, with respect to which the notes read, relevantly -

...

Larissa wanting physiological third stage, open to active management if signs of PPH - for obcon appointment next week.

Informed that recruitment for maternity leave relief complete, will likely meet Clare [Ross] after next appointment.

Review in 2/52.

(b) on 13 October 2020, the plaintiff consulted with an obstetrician, Dr Robin Burr, in respect of which the consultation notes read, relevantly -

...

Discussed physiological 3rd stage - 4x increased risk of PPH [Postpartum haemorrhage] with disruption to mother-baby bonding time.

Will consider issues & discuss further with her midwife.

Continue MAMTA care.

199 Ms Bailey was asked only a few questions about those notes.[208] It is clear enough from the terms of the notes that -

(a) by 6 October 2020, it had been determined that owing to her then approaching period of maternity leave, Ms Robb would be replaced as primary Mamta midwife by Ms Ross; and

(b) on 13 October 2020, the plaintiff attended the earlier contemplated 'obstetric consultant appointment' and was given advice that she intended to discuss with 'her midwife'.

200 The next two antenatal consultations were with Ms Bailey on 19 October 2020 and 5 November 2020.

201 Ms Bailey's notes in respect of the consultation on 19 October 2020 are comparatively brief and read -

If smoker: ask Advise and Educate

Discuss side sleeping

Discuss Fetal movements and educate

Feeling well, no issues or concerns

Has decided to opt for active management of 3rd stage.

Has declined GBS [Group B Steptococcus] testing. Aware of monitoring baby for signs of GBS.

202 Ms Bailey's notes in respect of the consultation on 5 November 2020 read -

Feeling well. A few cramps here and there.

Has noticed baby's movements have changed. Not as big. Still following same pattern and amount though. Discussed baby's position (direct OA) with limbs to the back, tight space in utero now. However, reiterated importance of coming for assessment if worried about frequency of movements.

Given and faxed US [Ultrasound] slip for 41 weeks.

Some pitting oedema to feet. Discussed putting feet up throughout the day. Encouraged to purchase and wear compression tights.

Plan:

- 40 week visit with new mamta midwife next week

- Routine post dates monitoring/management if goes beyond 40 weeks

203 In respect of those consultations, among other things, Ms Bailey -

(a) confirmed that she had been aware from reading the notes of the earlier antenatal consultations that the plaintiff had been writing a birth plan and doing the hypnobirthing program;[209]

(b) understood that the plaintiff had expressed an initial preference not to have an actively managed third stage of labour (which involves medication), but that her preference had been 'an ongoing discussion';[210]

(c) confirmed that the plaintiff appeared to have received advice from the obstetrician and 'done a 180', which was also reflected in an alteration made to the birth plan;[211]

(d) maintained that she did not personally see the birth plan 'prior to the labour', so she did not know when the plaintiff made the alteration to her birth plan;[212]

(e) confirmed that neither of the attendances with her seemed to have involved 'anything that was out of the ordinary';[213]

(f) confirmed that she had known that the plaintiff wanted a physiological birth for the first and second stages of labour, which is 'nothing unusual';[214]

(g) confirmed that on neither occasion did she tell the plaintiff that if she attended the hospital after hours she would need to undergo a vaginal examination in order for her Mamta midwife to be called and that the 'Welcome to MAMTA' document includes no such 'stipulation';[215] and

(h) disagreed that she had discussed the birth plan with the plaintiff during the antenatal consultations and told her that a vaginal examination would not be necessary in labour.[216]

204 I should note that the cross-examination concerning Ms Bailey's knowledge of the birth plan and whether she had suggested to the plaintiff that a vaginal examination would not be necessary, was in a relatively gently 'probing' style rather than in any way confrontational.

205 There were two further antenatal consultations, on 13 November 2020 and 17 November 2020. Both were with Ms Ross.

206 Ms Ross' notes in respect of the consultation on 13 November 2020 read -

Larissa feeling very well, normal FMF. Introductions made as primary Mamta Midwife. Larissa + Jono aware when to call writer/birth suite ie. SROM, APH, labour, decreased FMF, PET concerns. Some braxton hicks at times, no pain, no PV loss or PV bleed.

Birth Preferences acknowledged + Larissa will bring plan with her on day of labour. Opting for active management of 3rd stage post d/w Dr Burr. Would like h/w to have the "Three Golden Hours" post birth to have with baby with minimal disruptions. Larissa doing hypnobirthing and feeling very prepared and excited for labour, birth and postnatal period. Planning to BF and allow baby to perform breast crawl when born.

Mild odema [oedema] in LL persists, no symptoms of PET and normotensive. Baby palps DOA 2/5 today and Larissa feels baby has "dropped", more space at rib cage. Expressing good amounts of colostrum and freezing. All well, no concerns. Booked for CTG and AFI at 40+4 in ANASS as per policy, writer will attend.

207 In respect of that note, particularly the expression '[b]irth preferences acknowledged', Ms Bailey said that '[i]t sounds like that's when the [birth plan] was given' and that it 'sounds like ... Clare [Ross] saw ... the birth preferences that day'.[217]

208 As to the antenatal consultation on 17 November 2020, the notes read -

Larissa attended for assessment with writer for 40+4 CTG as per policy. Some early labour last evening, 20 min contractions, able to cope with sensation and then sleep. Settled this morning. Education on support in early labour given. No PV loss, no SROM, normal FMF - active baby. Non-painful tightenings/Braxton Hicks on CTG [Cardiotocography]. CTG normal today.

Larissa aware to call if decreased FMF, APH, ROM, labour, PET, concerns.

USS booked for 41 wks + CTG in ANASS - Megan Bailey, Mamta RM will see Larissa on day.

209 Ms Bailey was not asked about that consultation during cross-examination.

210 In the course of cross-examination, Ms Bailey gave further evidence of varying degrees of present relevance, particularly that -

(a) it was reasonable to conclude that the 'outpatients sticker' appearing on the birth plan was 'Mamta generated';[218]

(b) birth plans are not uncommon and are commonly discussed during antenatal Mamta consultations;[219]

(c) an applicable hospital guideline suggests that at 34 weeks gestation the midwife should be raising the woman's preparation for labour, birth and parenting as well as reviewing her birth options and plans;[220]

(d) more broadly, Mamta midwives should be inquiring as to birth preferences;[221]

(e) as to the plaintiff's birth plan, it was 'adequate' to decline all vaginal examinations unless there was an urgent medical reason, although Ms Bailey said that if she had seen that in the birth plan during the antenatal period she would have drawn attention to the issue and asked about it. In that general connection, she said that -

I think it would be reasonable to ... make a note of something that is so far out of what the usual practice of the hospital would be.[222]

(f) she considered it to be 'odd' that there was no such note 'if that was in fact discussed';[223]

(g) she gave evidence concerning her visit to the plaintiff and her husband at home a few days after the birth, including the following exchange -

... they were really upset because they were told by Deb [Alexander] that unless you have a vaginal examination, you're not getting your Mamta midwife called, you're not being admitted, and you're not going to be able to get medication. They were expressing those things to you? - - - Yes.

And they were expressing it to you because ... they were of the belief that that wouldn't be such a requirement, that vaginal examination? - - - I can understand that that would have been news to them.[224]

(h) she 'would've come in [to the birthing suite] if ... called' and would not have required that a vaginal examination first be performed;[225]

(i) she would be supportive of a process by which the Mamta midwife is notified on admission of the woman to the birth suite and it is then left up to the particular midwife to decide when they will attend the labour;[226] and

(j) she was not aware that the Labour to Vaginal Delivery Protocol had, in 2024, been superseded by the Labour and Birth Guideline, although she did not read the 'old policy' as stating a mandatory requirement for vaginal examination.[227]

211 In final address, senior counsel for the plaintiff referred to particular aspects of the evidence and submitted that -

... what the evidence demonstrates is that this woman was conscientious about her birth planning, was forthright in her preference not to have a vaginal examination unless there is an urgent medical reason to do so, was supported in that drive by both her husband and the Mamta Midwife program ...[228]

212 I note that the submission was advanced at a relatively high level of generality - with earlier mention of the antenatal consultations with Ms Robb and Ms Ross, in particular - and that it was not distinctly submitted that it should be accepted that the plaintiff had raised the birth plan and her preference in respect of vaginal examinations with Ms Bailey.

213 For their part, counsel for the defendant submitted that the evidence of the plaintiff was 'unclear' and 'particularly unreliable' and referred to the notes of the antenatal attendances as well as the evidence of Ms Bailey.[229] That said, the defendant seemed to acknowledge that, 'in the antenatal period', the plaintiff may have been advised that 'avoidance of a VE was "achievable"', although it was also submitted that 'achievable' should be construed to mean no more than 'possible'.[230]

214 It follows that, perhaps without either party being entirely clear and precise about it -

(a) the plaintiff came to approach the issue of when and with which Mamta midwife or midwives her birth preferences had been discussed, by broadly suggesting that it should be concluded that the issue had been dealt with during the consultations with at least Ms Robb and/or Ms Ross;

(b) for its part, the defendant submitted that the plaintiff's evidence was unclear and unreliable, but that it might nonetheless be able to be accepted that, at some point in the antenatal period, the plaintiff had been advised that 'avoidance of a VE' in labour was 'possible'.

215 As earlier noted, I consider the plaintiff to have been a generally reliable historian and I do not accept that her evidence concerning the antenatal period was particularly 'unclear'. However, it does not follow that, without more, it can simply be accepted that the plaintiff discussed her birth plan and preferences with each of the Mamta midwives, particularly Ms Robb, Ms Bailey and Ms Ross.

(a) the plaintiff was deeply affected by the experience in which her older sister had given birth, particularly the conduct of '[a] lot of vaginal examinations';[231]

(b) when the plaintiff fell pregnant in early 2020, she was determined not to have the same experience;

(c) in that regard, she wanted a 'very hands off ... low intervention birth' and to 'have control over what would be happening to [her] body';[232] and

(d) to that end, at the very least -

(i) she researched her options and applied to join the Mamta program (where she was later accepted);

(ii) she enrolled for and participated in antenatal classes through Bendigo Hospital;[233]

(iii) she also enrolled for and participated in the Thompson breastfeeding program and hypnobirthing program;

(iv) in that general connection, she prepared the detailed written birth plan that, among other things, stated specifically, 'I DECLINE ALL vaginal examinations unless there is an urgent medical reason to do so' and 'Informed verbal consent MUST be given from myself prior';[234]

(v) she attended many antenatal consultations or contacts with Mamta midwives between and including 27 May 2020 and 17 November 2020;

(vi) in respect of a particular issue arising in that process, she also consulted with Dr Burr, obstetrician; and

(vii) she generally seems to have sought very diligently to educate, inform and apply herself in respect of the approaching life event.

217 In that context, it seems to me to be highly unlikely that the plaintiff would not have raised her concern about vaginal examinations for consideration and discussion during at least some of the many antenatal consultations, particularly when it is clear enough that a generally applicable hospital guideline as well as desirable practice referred to in the evidence of Ms Bailey would suggest that, at some point, the Mamta midwives should have be enquiring about birth planning and therefore the plaintiff's birth preferences.

(a) the plaintiff's written birth plan was prepared from a template associated with the Thompson breastfeeding program;[235]

(b) the plaintiff worked on her draft birth plan over a period, and her husband became involved as they had done the hypnobirthing program together;[236]

(c) the plaintiff's stated preference in respect of vaginal examinations was in her draft birth plan from the outset;[237] and

(d) indeed, the capitalisation appearing in the stated preference in respect of vaginal examinations appeared in the original template.[238]

219 In that context, the plaintiff was welcomed into the Mamta program at an antenatal consultation with Ms Robb on 27 July 2020 and Ms Robb's note of that consultation records that the plaintiff was then in the process of completing '"The Thompson Method" breastfeeding online course'.[239]

220 Having regard to the origins and apparent content of the template birth plan, the plaintiff's concerns about vaginal examinations could recently have been prompted when she first consulted with Ms Robb.

221 In any event, it seems to me to be of some importance that -

(a) the plaintiff's preference in respect of vaginal examinations was derived from witnessing her sister's experiences during the process of labour and birth; and

(b) the consultation with Ms Robb on 27 July 2020 was the plaintiff's first consultation with a midwife who might ultimately be attending her labour and birth.

222 In those circumstances, the plaintiff gave evidence that she raised her specific concern with Ms Robb and was 'reassured'.[240]

223 While it was perhaps not perfectly clear that the discussion about her concern occurred in that particular consultation, that was largely a consequence of the manner in which the relevant questions were asked. I understood the plaintiff to be most likely referring to the consultation with Ms Robb on 27 July 2020.

224 In any event, the plaintiff said the reassurance given by Ms Robb was directed specifically to the process of labour and birth and also to the approach that Ms Robb said would be taken.[241]

225 Of course, at that point, and indeed throughout the antenatal period, the plaintiff (and her husband) did not know that there was any risk that a vaginal examination could be presented as a prerequisite to her admission to hospital or for calling her Mamta midwife out of hours.

226 Consequently, it is understandable that the plaintiff would be seeking reassurance about the very prospect that had so troubled her when she witnessed her sister's labour and birth and it was not a prospect about which she then knew nothing.

227 Against that, and generally, the defendant tended to emphasise that -

(a) the note of that consultation and, indeed, none of the notes of the antenatal consultations, appear specifically to record the occurrence of such a discussion; and

(b) Ms Bailey gave evidence that she would have expected to see a discussion reflected in the notes because the declining of 'all' vaginal examinations unless there is an urgent medical reason is 'outside of hospital practice'.[242]

228 As has been observed many times, such notes are not a transcript.

229 Further, the consultation on 27 July 2020 was not with Ms Bailey, and it was not her note. Although Ms Bailey's evidence in respect of the note is perhaps entitled to some weight, care should presently be taken not to treat that evidence as if it were given by Ms Robb.

230 In any event, Ms Bailey's stated expectation assumes that the plaintiff's preference would have been expressed during the consultation in the precise form in which it appeared in the written birth plan.

231 For reasons already given, as well as those to which I will later come, while the plaintiff may well have been partially prompted by the template, it is unlikely that she would have expressed her concern in those precise terms. Among other things, the terms in which she says that she was 'reassured' suggests that her specific focus was probably upon the process of labour and birth that she had witnessed with her sister.

232 An additional assumption in Ms Bailey's stated expectation is that such a discussion would have been noted because it was 'so far out of ... the usual practice of the hospital'.[243] However, there does not seem to be anything in the reassurance recounted by the plaintiff that could be said to have been remotely controversial or 'outside of hospital practice'.

233 It follows, at least to me, that it is not particularly surprising that such a reassurance would not have been noted by Ms Robb and I accept that it was given in that consultation.

234 However, Ms Bailey's evidence on the topic gives rise to some wider questions.

235 I have earlier referred to some areas of tension in Ms Bailey's evidence, and the present topic is one of those areas.

236 In that connection, the defendant tended to approach the present issue on the basis that the terms and therefore the application of the relevant hospital policies was so uncontestably definitive, plain and obvious that any Mamta midwife should immediately have blanched upon any expression by the plaintiff of a preference in respect of vaginal examinations in terms of the kind appearing in her birth plan. The aspect of Ms Bailey's evidence referred to above was in the same vein.

(a) Ms Bailey did not present as a stickler for hospital policies or their precise terms;

(b) among other things, she readily acknowledged that she had not known that the Labour to Vaginal Delivery Protocol had since been replaced by the Labour and Birth Guideline;[244]

(c) further, when taken to the relevant terms of the Labour to Vaginal Delivery Protocol, Ms Bailey accepted that they did not identify a mandatory requirement for vaginal examination in order to be admitted to the hospital;[245]

(d) as earlier noted, the Mamta Guidelines relevantly cross-refer to the Labour to Vaginal Delivery Protocol;

(e) the language of Ms Bailey's evidence seemed otherwise to be based in her general knowledge and experience rather than in the precise terms of any particular hospital policy;

(f) for example, Ms Bailey referred to an 'understanding' that the Mamta midwife would be called when the woman is 'determined to be in established labour'[246] and later said that 'most' of the Mamta midwives have a 'preference' that a vaginal examination is relevantly performed;[247]

(g) in those circumstances, perhaps unsurprisingly, Ms Bailey confirmed that there had been situations in which she had been called without a vaginal examination having been performed;[248]

(h) Ms Bailey gave evidence that if she had been called in the present instance she would have come in to the hospital without demanding the performance of a vaginal examination;[249] and

(i) it was plain that Ms Bailey would not have hesitated to act in that way because of any concern that to do so would have been 'outside' hospital 'practice' or written policy.[250]

238 To that evidence should be added at least the following -

(a) Ms Richardson gave evidence, and I accept, that the plaintiff's birth plan was in essentially standard terms;[251]

(b) the key messages in the Safer Care Victoria guidelines state plainly that -

Admission into hospital should not be determined solely by active labour being identified, but by the woman's individual needs.[252]

(c) the letter subsequently sent to the plaintiff by Ms Pitson and Ms Percival referred to then current Bendigo Health policy and practice relating to Mamta midwives and nonetheless stated that '... after declining the vaginal examination your Mamta midwife should have been notified';[253] and

(d) that was what Ms Richardson also said should have happened.[254]

(a) the proper construction of the relevant hospital policies is, at the very least, open to some debate; and

(b) whatever might be said about matters of construction, the practical application of the relevant aspects of the various policies seems to have been less uniform and unyielding than the defendant tended to suggest was obvious, inevitable and necessarily required by their terms.

240 In those circumstances, even if the plaintiff did refer to her preference in respect of vaginal examinations precisely in the terms appearing in her birth plan, I do not accept that all Mamta midwives should necessarily have identified that preference as 'so far out of' hospital practice that it must necessarily have provoked a notation.

241 It follows that while I tend to think that, at least during the consultation on 27 July 2020, the plaintiff expressed her concern and was reassured by Ms Robb in the manner described by the plaintiff in her evidence; even if her concern had been raised in the precise terms appearing in her birth plan (which I do not wholly discount), I am not convinced that the absence of a note concerning any purported inconsistency with hospital policy should be taken to suggest that the plaintiff's birth plan and preference were not raised and reassurance relevantly given.

242 I have earlier referred to the notes concerning the subsequent antenatal consultations, as well as the relevant evidence of Ms Bailey.

243 On 24 August 2020, among other things, Ms Robb noted that the plaintiff was 'very keen to avoid intervention and optimise physiological labour'.

244 It seems to me that even if the discussion on 27 July 2020, that I have accepted probably occurred, did not take place on that date, the notes to which I have referred suggest that it likely occurred at the consultation on 24 August 2020.

245 Indeed, as the drafting of the plaintiff's birth plan seems to have unfolded over a period, it is conceivable that a relevant discussion occurred at both such consultations. That is, at the consultation on 27 July 2020, general reassurance was sought and given and, at the subsequent consultation on 24 August 2020, reassurance was again given but probably with specific reference to the preference in respect of vaginal examinations stated in the plaintiff's then draft birth plan.

246 On 14 September 2020, among other things, Ms Robb noted that the plaintiff had '[c]ommenced writing a birth plan' and was '[c]onsidering physiological third stage'.

247 While the defendant tended to approach the first of those notations on the basis that the plaintiff must not have then presented a copy of her birth plan, I am not so sure. In that connection -

(a) Ms Robb was said to have been a diligent midwife;[255]

(b) the plaintiff said that she took her birth plan with her to each antenatal consultation (presumably after the point at which drafting commenced);[256]

(c) it is apparent from the terms of the birth plan that the plaintiff's original preference in respect of a 'physiological third stage' was quite specific, particularly -

If my labour has been undisturbed, I would like a natural/physiological birth of the placenta without any manual manipulation or syntocinon injection and request up to 60 minutes for this process unless there is a valid medical reason indicating otherwise.[257]

(d) the note records that Ms Robb gave the plaintiff 'education' and a relevant handout and that the plaintiff intended to undertake 'further research'; and

(e) it is also recorded that hospital policy required an appointment with an obstetric consultant if the plaintiff opted for a 'physiological third stage'.

248 In short, the plaintiff's written preference was quite specific and prompted particular consideration and education. In those circumstances, it is likely that when the specificity of the plaintiff's preference emerged, Ms Robb would have asked to examine the written terms and, when presented with the draft birth plan, examined its contents including the plaintiff's preference in respect of vaginal examinations.

249 On balance, I tend to think that it is likely that Ms Robb read the draft birth plan, including the preference in respect of vaginal examinations, at the consultation on 24 September 2020, and, if necessary, reassured the plaintiff just as she had at the earlier consultations.

250 The next and last consultation with Ms Robb was on 6 October 2020. It is evident from the note that the plaintiff would be having a consultation with the obstetric consultant the following week (which occurred) and that she would likely meet her new primary Mamta midwife, 'Clare [Ross]', after her next appointment.

251 In fact, as earlier noted, the next two antenatal appointments - on 19 October 2020 and 5 November 2020 - were with Ms Bailey. In light of the note to which I have referred, it must have been apparent to the plaintiff that the 'new' primary Mamta midwife would be Ms Ross, not Ms Bailey.

252 I have earlier extracted Ms Bailey's notes of the antenatal consultation on 19 October 2020. In that connection -

(a) the first three lines appear to be standard prompts;

(b) the plaintiff was feeling well and had decided upon 'active management' of the third stage;

(c) little else is noted.

253 In short, the form of the note and circumstances generally suggest that the consultation on 19 October 2020 is likely to have been brief.

254 As to Ms Bailey's note of the subsequent consultation on 5 November 2020 -

(a) gestation is noted as '38.6', which I would take to mean 38 weeks and 6 days;

(b) in the comments, the same first three lines again appear;

(c) the plaintiff was feeling well, although she had had a 'few cramps here and there';

(d) notes follow concerning baby movements;

(e) a few other topics are noted, but none of them relate directly to the process of delivery of the baby;

(f) otherwise, formal matters are noted, particularly that -

(i) Ms Bailey gave the plaintiff an ultrasound slip 'for 41 weeks' (presumably, in the event that she got to 41 weeks of gestation);

(ii) the plaintiff would have a '40 week visit with new mamta midwife next week'; and

(iii) '[r]outine post dates' monitoring and management were planned if the plaintiff's pregnancy 'goes beyond 40 weeks'.

255 Although the note relating to the consultation on 5 November 2020 is longer than that relating to the consultation on 19 October 2020, there is little about either of those notes, or the circumstances more generally, that would suggest that the plaintiff is likely to have raised her birth plan and preference in respect of vaginal examinations on either occasion.

256 Nonetheless, the plaintiff made several relevant references to Ms Bailey in her evidence. Among other things, she confirmed that she had shown Ms Bailey her draft birth plan and spoken with her about her preference concerning vaginal examinations.[258]

257 For her part, albeit that she said that her recollection of the consultations with the plaintiff could be based only on her notes, Ms Bailey could not recall any mention of the birth plan or the plaintiff's preference concerning vaginal examinations.[259] Ms Bailey was firm that she had been presented with the birth plan when she arrived at the birthing suite at about 2am on 18 November 2020.[260] In cross-examination, Ms Bailey twice disagreed with the implicit suggestion that she had told the plaintiff that she would not need to have a vaginal examination unless it were medically necessary.[261] Ultimately, the substance of her evidence was that she did not see the birth plan and did not discuss the plaintiff's preference concerning vaginal examinations during the antenatal period.

258 I am not satisfied that the plaintiff showed her written birth plan to Ms Bailey during the antenatal period, or that Ms Bailey told the plaintiff that she would not need to have a vaginal examination unless it were medically necessary. In that connection -

(a) the plaintiff had many antenatal consultations during a relatively short period, most of them were not with Ms Bailey and the plaintiff did not appear to have scoured the notes of the consultations;

(b) I accept that the plaintiff's birth plan was discussed with other Mamta midwives on several occasions in the course of which she was likely reassured about her preference concerning vaginal examinations;

(c) in the circumstances, it is understandable that the plaintiff might also attribute such a discussion and reassurance to her consultations with Ms Bailey;

(d) however, Ms Bailey was only the secondary Mamta midwife and it is not evident that it was anticipated that she might, in fact, be attending the labour and birth until the day on which it later happened;

(e) Ms Bailey's notes do not suggest that the birth plan and the plaintiff's preference concerning vaginal examinations were discussed at the consultations on 19 October 2020 and 5 November 2020; and

(f) in evidence, Ms Bailey essentially denied that any such discussion occurred or could have occurred.

259 A short time later, on 13 November 2020, the plaintiff had a further antenatal consultation with her 'new' primary Mamta midwife, Ms Ross. I have earlier extracted Ms Ross's notes of that consultation. It is evident that -

(a) gestation was noted as '40', which I would take to mean 40 weeks;

(b) Ms Ross introduced herself as the 'primary Mamta Midwife';

(c) the plaintiff and her husband were 'aware when to call writer/birth suite'

(d) the plaintiff was 'feeling well', although she had been having Braxton Hicks 'at times';

(e) Ms Ross specifically acknowledged the plaintiff's birth preferences and noted that the plaintiff would bring the birth plan with her on the day of labour;

(f) in that connection, Ms Ross noted both 'active management of 3rd stage' and 'Three Golden Hours' - which are topics identified in the birth plan;

(g) the plaintiff was feeling 'very prepared and excited for labour'; and

(h) a further consultation was booked to occur with Ms Ross 'at 40+4', which I would take to mean 40 weeks and 4 days.

260 As noted, Ms Bailey confirmed that the form of the sticker appearing on the copy of the birth plan received into evidence suggests that it was placed there 'by the Mamta program'[262] and later said that the form of the notes made on 13 November 2020 indicated that that was 'when the document was given'.[263]

261 For her part, the plaintiff said that she had discussed her birth preferences and 'very strong decline of vaginal examinations' with Ms Ross who had said that it was 'achievable'.[264]

262 I accept that the final form of the plaintiff's birth plan was given to Ms Ross at the consultation on 13 November 2020 and that Ms Ross reassured the plaintiff concerning her written preference in respect of vaginal examinations and said it was 'achievable'. In that connection -

(a) Ms Ross was identified as the primary Mamta midwife;

(b) the notes indicate that the plaintiff was on the brink of early labour and that the processes in respect of labour and birth were in contemplation and discussion during the consultation;

(c) the plaintiff's birth preferences are noted as having been 'acknowledged';

(d) the 'birth plan' is also referred to in the notes and is likely to have had the sticker applied to it during the consultation;

(e) in that regard, the version of the birth plan received into evidence appears amended by hand to cross out the earlier specific instructions in respect of a physiological third stage and to replace it with the statement '[w]e opt for active management placenta birth' and the consultation notes indicate that the plaintiff's preference for 'active management of 3rd stage' was discussed;

(f) another important part of the plaintiff's stated birth preferences was her preference in respect of vaginal examinations and she is likely to have raised it when handing over the final form of the written birth plan; and

(g) for reasons earlier identified generally, I do not consider the fact that no specific note was made about the plaintiff's preference in respect of vaginal examinations should be taken to mean that no discussion of that topic took place.

263 The final consultation in the sequence of antenatal consultations occurred with Ms Ross at about midday on 17 November 2020. I have earlier extracted Ms Ross's notes of that consultation. It is evident that -

(a) gestation was noted as '40.4', which I would take to mean 40 weeks and 4 days;

(b) the notes indicate that, among other things, the plaintiff had experienced 'early labour last evening' that had later '[s]ettled';

(c) 'CTG' revealed 'non-painful tightenings/Braxton Hicks' and was 'normal';

(d) the plaintiff was 'aware' of the circumstances in which 'to call';

(e) ultrasound had been booked for '41 wks'; and

(f) Ms Bailey, 'Mamta RM' would see the plaintiff on the day.

264 The plaintiff said that she took the birth plan with her, although her birth preferences were not the focus of her evidence relating to that consultation, other than to say that Ms Ross had not expressed any reservations or concerns about her preferences. The focus seemed to be the plaintiff's evidence in chief that Ms Ross had said 'You'll be having your baby tonight. You'll be having him really soon.' Otherwise, seemingly for the first time, Ms Ross disclosed that she would be going on leave that night and that Ms Bailey 'would be taking over'.[265]

265 In respect of the issue of the birth plan and particularly the plaintiff's preference concerning vaginal examinations, if the issue came up at all, I accept the plaintiff's evidence that Ms Ross raised no concerns or reservations.

266 As to the anticipation of the arrival of a baby 'tonight' -

(a) the consultation note refers to 'early labour' the previous evening and 'Braxton Hicks on CTG';

(b) shortly after giving the evidence in chief to which I have referred, the plaintiff was asked to clarify the night to which Ms Ross was said to have referred and replied '[s]oon';[266]

(c) as earlier noted, in cross-examination the plaintiff was challenged on the basis that the noted reference to an ultrasound booked at 41 weeks was indicative of an 'expectation' that her pregnancy would go that long;[267] and

(d) the plaintiff did not accept that suggestion and said -

... there was another midwife in the room, behind the curtain. And they were both looking at my CTG, and I heard the midwife - I don't know who it was - say to Clare, 'Baby tonight, yeah, baby tonight.[268]

267 To me, the booking of an ultrasound at 41 weeks is of little present significance. The plaintiff rejected the suggestion made, and it is evident that the booking slip for the ultrasound at 41 weeks had been faxed by Ms Bailey on 5 November 2020.[269]

268 Otherwise, it was apparent that the 'other' midwife present at the consultation on 17 November 2020 was a student and, in my view, that tends to call into question the foundation and source of the suggestion that the baby would be arriving 'tonight'.

269 That said, it was not said that by viewing 'Braxton Hicks on CTG' an experienced midwife would not be able to venture an estimation that a pregnant woman would be having her baby 'soon' and that seemed to be nub of what the plaintiff had ultimately understood Ms Ross to be saying. I accept that the plaintiff was told by Ms Ross that her baby could possibly be coming soon and, in context, she reasonably understood that to mean that the baby could well be coming that night.

The plaintiff's history of domestic violence and the Mamta midwife hours

270 The remaining issues in respect of the antenatal period relate to whether the plaintiff said that she had been a victim of domestic violence at the hands of her father and the extent to which the plaintiff had been informed of the hours worked by Mamta midwives.

271 As to the former, as earlier noted, the plaintiff said that she had 'flagged' her history of domestic violence to the 'midwives' and filled out a 'form'.[270] She could not recall who she raised the issue with, although she said it might have been Ms Bailey.[271]

272 Later, during the cross-examination of Ms Bailey, it appeared that if the plaintiff gave such a history, it was most likely given to the assessing Mamta midwife on 27 May 2020, not later, to Ms Bailey. In that regard, it was not directly suggested to Ms Bailey that such a history was given to her.

273 As earlier noted, Ms Bailey said that such a screening is usually directed to 'current concerns' and referred to notes made by the assessing midwife that are broadly consistent with that approach having been adopted on 27 May 2020.

274 As I have indicated, the plaintiff presented as thoughtful and introspective in her evidence and I imagine that she was no less thoughtful and introspective throughout her first pregnancy.

275 In that general connection, in evidence, she was not remotely defensive or unforthcoming about her early history (or any aspect of her history) and presented as having been very focussed upon presenting and obtaining as much information and knowledge as possible in the lead up to the birth of her first baby.

276 In circumstances in which the notes made on 27 May 2020 suggest that enquiry is likely to have been made about her domestic situation and history, I accept that it is likely that she told the assessing Mamta midwife of her history of domestic violence as a child. However, the fact that it was not noted seems to me to be best explained by the midwife having directed attention to the absence of any 'current concerns' and not more distant aspects of the plaintiff's history.

277 As to the latter, as earlier noted, the plaintiff was aware of the 'after-hours' protocol to '[c]all the birth suite'. Indeed, her husband did so on several occasions.[272]

278 It is also evident from Ms Robb's notes of the antenatal consultation on 27 July 2020 that the 'Mamta hours' had been 'discussed' and, in cross-examination, the plaintiff confirmed that she knew that there were restrictions on how long a Mamta midwife could be on duty and that if the Mamta midwife was called in too early she might 'miss the delivery'.[273]

279 It was not wholly clear that that had been the plaintiff's state of knowledge on and prior to 17 November 2020 and I am somewhat doubtful that that was the true meaning of the relevant part of her evidence.

280 In any event, I accept that on and prior to 17 November 2020, the plaintiff knew that -

(a) the Mamta midwives had a roster and were on call during the period of their roster;

(b) the Mamta midwives could be contacted seven days a week between 8am and 6pm; and

(c) between the hours of 6pm and 8am, calls should be made to the maternity ward and the hospital midwives would contact the Mamta midwife.[274]

281 That said, I also accept that until some point shortly after their arrival at the birthing suite at about 11:05pm on 17 November 2020, neither the plaintiff nor her husband knew or ought reasonably to have known that there was any 'after-hours' prerequisite that involved her having to undergo a vaginal examination prior to being admitted to the hospital, pain relief medication being administered or her Mamta midwife called.

(a) the plaintiff raised her history of domestic violence at the assessment on 27 May 2020, although it was not specifically noted;

(b) at the antenatal consultation on 27 July 2020, the plaintiff raised her concerns about vaginal examination and was reassured;

(c) at that time, although the plaintiff may have had her draft birth plan with her, it is more likely than not that her concerns about vaginal examinations were raised without reference to the precise wording of her draft birth plan;

(d) it is likely that the same issue arose at the subsequent consultation on 24 August 2020 and it is more likely that on that occasion she was reassured with reference to the precise wording of the draft birth plan;

(e) even if that did not occur on 24 August 2020, it is likely that it occurred on 14 September 2020 when it was noted that the plaintiff had commenced writing a birth plan;

(f) neither the plaintiff's written birth plan nor her preference in respect of vaginal examinations was raised and discussed with Ms Bailey on 19 October 2020 and 5 November 2020;

(g) the final form of the plaintiff's birth plan was provided, and her birth preferences 'acknowledged', at the antenatal consultation on 13 November 2020;

(h) the fact that there is no antenatal note specifically directed to the plaintiff's preference concerning vaginal examination does not mean that the issue was not discussed and the plaintiff reassured about it;

(i) in that regard, on several occasions during the period leading up to 17 November 2020, by a combination of direct statements and failures to identify and state the contrary, the plaintiff is likely to have been reassured that her birth plan and specific preference in respect of vaginal examinations was 'achievable' and therefore that she would not have to undergo a vaginal examination unless there were urgent medical reasons to do so;

(j) at the antenatal consultation on 17 November 2020, it was essentially forecast that the plaintiff's baby would be arriving 'soon' which, in context, the plaintiff reasonably took to mean that her baby could be coming that night;

(k) the plaintiff knew that the Mamta midwives had a roster and worked certain hours;

(l) that said, neither the plaintiff nor her husband then knew or ought reasonably to have known that there was any risk of the imposition of an 'after-hours' prerequisite that would require the plaintiff to undergo a vaginal examination in order that she might be admitted to the hospital, administered any pain relief medication or have her Mamta midwife called.

F. The night of the birth and the subsequent home visit

283 I have earlier referred to the call made by Mr Gawthrop to the maternity ward at 7:18pm on 17 November 2020, as well as the note of the call taken by the hospital midwife.

284 The substance of that call was essentially uncontroversial. In particular, the plaintiff was in early labour, there had been a 'show' at 5:45pm, Mr Gawthrop had been tracking the plaintiff's contractions on an app on his phone, the contractions had become stronger and Mr Gawthrop said that he and the plaintiff would stay at home and that he would call back later in the evening.[275]

285 That said, the antenatal consultation notes contain a more extensive note of the call, which reads as follows -

Fetal movements are normal. Partner 'Jono' phoned wanting to update about contractions increasing in strength the last hour and a half. He was wanting to know what they needed to be to come in so they don't have BBA [Baby Before Arrival]. Advised 3-4: 10 lasting 60 secs, or if becomes too uncomfortable at home and needing something for pain relief. Has been doing hypnobirthing and been using the shower, walking around and using ball. Jono reports Larissa is feeling well with the contractions and breathing through them.

Reports SROM [spontaneous rupture of membranes] at 1745 that was clear and some PV show. Wanting to stay at home and will call back later this evening as contractions have been increasing but not ready to come in yet. Advised that by 18hrs if not in active labour, recommending for oral Abx [Antibiotics] and to attend around 0800-0900 tomorrow with Mamta MW [Midwife] to be assessed if they don't present overnight in labour. FMF and normal. Nil concerns ATOR [at time of report].

Plan: to call back later this evening when tightening stronger.[276]

(a) appears to record advice to the effect that the plaintiff and Mr Gawthrop should come in if the plaintiff is experiencing three to four contractions of 60 seconds in duration in a period of 10 minutes, or if it becomes too uncomfortable at home and 'pain relief' is required; and

(b) may contemplate that the plaintiff and Mr Gawthrop could be in a position to determine whether the plaintiff was in active labour.

287 As earlier observed, Mr Gawthrop called the maternity ward again at 10:30pm and, on that occasion, spoke with Ms Alexander. I have earlier referred to aspects of Ms Alexander's note of that call.[277]

288 In that regard, Mr Gawthrop said that there had been a 'trigger on the app' and, consequently, the plaintiff was 'approaching that end stage of labour'. Mr Gawthrop said that the advice had been that they could come 'up to the ward' and that they had packed their bags.[278]

289 In cross-examination, it was suggested that Ms Alexander had said to bring the plaintiff in 'just to check her out' to which Mr Gawthrop responded -

No, they said ... it would be a good idea to come up to the ward based off of the information that I'd given them over the course of that evening.[279]

290 In that regard, I note that Ms Alexander's note of the telephone call appears to record that Mr Gawthrop reported contractions of '1 min' every '3 min', which, I observe, seems to have been within the range that the earlier hospital midwife had advised should prompt the plaintiff and Mr Gawthrop to 'come in'.

291 For her part, Ms Alexander gave evidence that Mr Gawthrop had -

(a) said '[t]his is our third phone call and we're coming in in labour'; and

(b) essentially deprived her of an opportunity to speak directly with the plaintiff.[280]

292 Neither claimed event is reflected in the note of the call. Indeed, the quote attributed to Mr Gawthrop in the note would suggest that he adopted a quite different approach. The form, itself, also states that at the '3rd call' the woman should be invited in for assessment.

293 I have already referred to my impressions of Ms Alexander as a witness and that applies very much to her evidence in respect of the present call. I should add that it is also somewhat difficult to assess whether there could really be any force in the apparent and belated conflict between Ms Alexander's version of the call and that of Mr Gawthrop, in circumstances in which the whole of Ms Alexander's version was not put to Mr Gawthrop.

(a) prompted by the occurrence of contractions and an app on his phone, Mr Gawthrop called the maternity ward and spoke with Ms Alexander;

(b) during the call, Mr Gawthrop reported the data appearing in Ms Alexander's note of the call;

(c) Mr Gawthrop did not say '[t]his is our third phone call and we're coming in in labour' or deprive Ms Alexander of an opportunity to speak directly with the plaintiff; and

(d) Ms Alexander asked the plaintiff and Mr Gawthrop to 'come up to the ward'.

The attendance of the plaintiff and Mr Gawthrop at the maternity ward, including the issue of demeanour

295 As earlier observed, the maternity ward notes record that the plaintiff and Mr Gawthrop arrived to the hospital at 11:05pm on 17 November 2020.[281]

296 The maternity ward notes relate to the period between about 11:05pm on 17 November 2020 and about 1:10am on 18 November 2020. A different set of notes relate to the period between about 1:45am on 18 November 2020 and the birth of the baby later that morning.[282]

297 As earlier noted, various events of the night were essentially common ground. However, there were various matters in dispute.

298 In particular, there was a somewhat multifaceted issue concerning what might broadly be described as the attitude or 'demeanour' of the plaintiff and her husband, on the one hand, and Ms Alexander, on the other.

299 In one sense, it became essentially common ground that there had been a lack of 'rapport' between the respective 'sides'.[283]

(a) as earlier noted, I do not accept the evidence of Ms Alexander that Mr Gawthrop, in effect, imposed himself as a 'gatekeeper' with the consequence that she was prevented from communicating directly or effectively with the plaintiff;

(b) in that regard, while it is likely that Mr Gawthrop took his responsibility for advocating on behalf of his wife seriously (as it had been emphasised during the hypnobirthing program), it does not follow that he improperly or unduly inhibited Ms Alexander from communicating with the plaintiff directly or effectively if and when she thought that she needed to do so;

(c) the plaintiff and Mr Gawthrop are likely to have become more confused, distressed and bewildered as time went on, and that would undoubtedly have affected the 'demeanour' of each of them during their various dealings with Ms Alexander;

(d) while the 'demeanour' of the plaintiff and Mr Gawthrop was likely affected by the circumstances as they unfolded, I do not accept the insinuations of the defendant to the effect that the plaintiff and Mr Gawthrop developed a merely superficial dislike of the manner in which Ms Alexander had asked the plaintiff to undergo a vaginal examination,[284] or that the plaintiff was upset purely because she did not 'get the birthing experience' that she had wanted;[285]

(e) while Ms Alexander referred to matters such as her history in the Mamta program, experience in hypnobirthing and philosophies in respect of birthing, in seeking to emphasise that she had been 'almost excited' when she read the birth plan (which she described as 'beautiful') and anticipated the arrival of the plaintiff at the maternity ward, I do not accept that any of those matters bore upon her approach to her dealings with the plaintiff and Mr Gawthrop much beyond the point at which the plaintiff declined Ms Alexander's first request that she undergo a vaginal examination;

(f) in that connection, I accept that, in the circumstances, Ms Alexander believed that the plaintiff was required by hospital policy to undergo a vaginal examination in order that she might be admitted to hospital, receive medication for pain relief and have her Mamta midwife called;

(g) in light of that position, and informed by the manner in which some of her evidence unfolded, I expect that, relatively quickly, Ms Alexander became rather brusque with the plaintiff and Mr Gawthrop and that her approach became more pronounced as time went on, until the vaginal examination was finally undertaken and complete; and

(h) in that regard, the tension between the respective 'sides' essentially centred upon the enforcement by Ms Alexander of the requirement that the plaintiff undergo a vaginal examination and, after that occurred, Ms Alexander's mood must have become discernibly lighter.[286]

301 Otherwise, to a greater or lesser extent, there were issues in respect of -

(a) an aspect of what might broadly be described as the issue of active labour;

(b) the events shortly after the arrival of the plaintiff and her husband at the maternity ward;

(c) the pattern and content of later interactions between the plaintiff, her husband and Ms Alexander;

(d) the claimed discussion between Ms Alexander and her supervisor, Ms Welch;

(e) the circumstances in which the plaintiff came to undergo the subject vaginal examination performed by Ms Alexander shortly after 1:10am on 18 November 2020, including the plaintiff's condition during that examination;

(f) the subsequent requests for vaginal examination that the plaintiff consented to and, in one instance, declined; and

(g) the home visit by Ms Bailey a few days after the birth.

302 There was, of course, a major issue concerning whether the plaintiff consented to the vaginal examination performed by Ms Alexander. That precise issue will be dealt with later.

303 The present starting point is the respective sets of notes.

304 The maternity ward notes are not particularly long, and the first portion of those notes was made and signed by Ms Alexander.

Presented at Birth Suite after 24hrs + of early labour

Contracting 4 in 10 mod [Moderate] & irregular

Consented to vital sign & FHR [Fetal Heart Rate] on doppler

Declined VE

Declined CTG

Declined Amnisure

Wanting bath. Explained the need for VE to assess progress to make decision for admit or call Mamta M/W [Midwife].

Pad observed - small pink show present

not blood

306 The next portion was also made by Ms Alexander -

2400 C/- [Complained of] Back Pain & asked for advice for 'pain relief'

Offered SWI [Sterile water injections] - declined

Using shower

307 At 12:25am on 18 November 2020, the supervisor, Ms Welch, noted -

0025 - D/W [Discussed with] RM Alexander RE? need for Amnisure as not obvious SROM, unknown GBS [Group B Streptococcus] - as per clients instructions this has been explained to 'Jono' and he will D/W Larissa, they will inform us if consent is given for this procedure

Larissa out of shower & c/- back pain.

Remains declining VE. declining amnisure

10 min timing - 3 contractions lasting 40-50 seconds

0120 hrs - Mamta M/W informed of VE findings & will attend for intrapartum/postnatal care

310 The final maternity ward note was made by Ms Alexander and reads -

Retrospective Note

01.10 Consented to Amnisure - administered

self +ve Result.

VE. 5cm/1cm thick/-1 spines

Bulging membranes

Admitted & Mamta M/W phoned

311 The next set of clinical notes was commenced at 1:45am, after the plaintiff had been formally admitted to the hospital.[287]

312 The first portion of those notes was made by Ms Alexander and is essentially a purported summary of earlier events. Among other things, it is there noted that -

(a) the plaintiff had been 'admitted to Birth Suite & Mamta called to take over care now in active labour';

(b) the plaintiff had been in 'spurious labour for 24 hours' and contractions had 'picked up this evening';

(c) spontaneous rupture of membranes had occurred at '1745' with 'clear liquor' that was 'confirmed on amnisure';

(d) the plaintiff had 'consented to VE after 2 hours on ward', which had revealed that her cervix was '5cm dilated' and '1cm thick';

(e) the plaintiff had complained of back pain and options had been 'discussed', although salt water injections and 'all suggestions' had been declined; and

(f) nitrous oxide had been requested, commenced and was being 'tolerated well'.

313 Thereafter, the notes record the presence of Ms Bailey at about 2am as well as various subsequent events, including requests for vaginal examination at about 3:15am, 4:35am, 5am and 6:10am and the birth of the baby at 6:38am.

314 In respect of several of the present issues, among other things, the plaintiff gave evidence that -

(a) she learned about the signs and stages of labour during the hypnobirthing program and prior to arriving at the maternity ward she had believed that she was in active labour;[288]

(b) when the plaintiff and Mr Gawthrop arrived at the hospital, Ms Alexander greeted them, brushed aside Mr Gawthrop's offer of the birth plan and put her hand on the plaintiff's belly while she was in the hallway. A short time later, Ms Alexander said 'We'll do a vaginal examination now'. At that point, the plaintiff had her hands on the bed in the birth suite and her husband was putting their bags on the floor;[289]

(c) she asked 'why' and Ms Alexander said that it was to see whether the plaintiff was in labour, which the plaintiff understood to mean active labour;[290]

(d) the reason given was not an urgent medical one, so the plaintiff declined and requested her Mamta midwife be called to which Ms Alexander responded 'Well, not without a vaginal examination';[291]

(e) the plaintiff also declined Ms Alexander's request for an AmniSure test and Ms Alexander subsequently left the room;[292]

(f) at that point, the plaintiff and Mr Gawthrop were 'very confused' and she was 'starting to get a little bit stressed';[293]

(g) Ms Alexander returned to the birth suite many times asking, in substance, 'Are you ready to have the VE?';[294]

(h) by midnight the plaintiff was in the shower with back pain that was 'getting quite bad'. Ms Alexander came back in to ask about the 'VE' and the plaintiff mentioned her back pain. Ms Alexander offered sterile water injections, which the plaintiff had heard were more painful than beneficial and so declined. The plaintiff asked about having a bath and Ms Alexander said 'You'll have to have a VE to get in the bath', so the plaintiff stayed in the shower. The plaintiff also asked about 'something' for the back pain and Ms Alexander said 'No, not until you have a VE'.[295] In that general connection, the plaintiff said -

... I started to panic ... a little bit because I didn't know if something was, you know, going wrong ... I felt like I was very alone, like I wasn't supported at all. And it was becoming clear that we weren't going to get any help.[296]

(i) at about 1:10am, the plaintiff consented to self-administer an AmniSure test. She understood that that test was to see whether her waters had broken and she believed that it might get her out of having a vaginal examination. The result was positive, but the plaintiff was told that 'we still need to do a vaginal examination';[297]

(j) Mr Gawthrop said that he would go to speak with Ms Alexander and later returned and said -

Larissa, I think you're gonna have to get this done. They're - she's ... not gonna do anything for you. They're not gonna get pain medication. You're not gonna get [the] Mamta midwife [called]. You're not gonna be admitted.[298]

(k) she felt 'very defeated and so bullied' and when Ms Alexander came into the room to perform the vaginal examination the plaintiff was crying and said 'I really don't wanna do this'. The plaintiff made a last plea to Ms Alexander to call the Mamta midwife. Ms Alexander said 'We need to do a VE' and 'To see if you're in labour'. The plaintiff essentially said 'I'll do it' but was 'crying' and 'shaking';[299]

(l) the vaginal examination was really painful and not quick;[300] and

(m) after the vaginal examination was complete, Ms Alexander's demeanour 'completely changed' and the plaintiff was given nitrous oxide, admitted to the hospital and Ms Bailey was called.[301]

315 In respect of subsequent events, including the home visit by Ms Bailey, the plaintiff gave evidence that -

(a) she consented to several subsequent requests for vaginal examination, although in each instance she was advised why it was medically necessary;[302]

(b) a few days later, when Ms Bailey visited her and Mr Gawthrop at home, the plaintiff said that she was very upset about the subject vaginal examination and that Ms Bailey had been 'shocked' and said -

Well, no I ... knew that you were in labour. I'd been told that day that when you came in for the monitoring that you were ... in labour and I'd gone to bed early ... it's [the VE] not something we need to do to have Mamta called it's not our policy to do that.[303]

316 Mr Gawthrop gave evidence about matters such as assessing the stages of labour,[304] the brushing away of the birth plan, Ms Alexander's palpations of the plaintiff's belly and the requests by Ms Alexander for the plaintiff to undergo vaginal examination. In that general connection, Mr Gawthrop said -

... I heard her [Ms Alexander] ... just say to Larissa that we need to do a VE, and Larissa said no, unless it was medically [necessary]. And there was no medically necessary explanation or further explanation given.[305]

317 Mr Gawthrop said Ms Alexander returned to the birthing suite 'periodically about seven or eight times' and asked the plaintiff 'if she was ready to have the VE'.[306]

318 Mr Gawthrop said that he ultimately came to realise that -

... she [Ms Alexander] wasn't going to have our Mamta midwife called, nor [administer] pain relief, nor admission, unless she [the plaintiff] had the VE, all the while, our baby's coming.[307]

319 Consequently, Mr Gawthrop left the room to 'lay it out' for Ms Alexander and she confirmed that his understanding of the situation was correct.[308] He felt that it was 'horribly wrong for her [Ms Alexander] to hold that over her [the plaintiff]'.[309] Among other things, he said 'We felt like we had no choice'.[310]

320 The plaintiff then underwent the vaginal examination, although Mr Gawthrop said that she was crying and saying 'I don't want this'.[311]

321 Mr Gawthrop also gave evidence about subsequent events, including the home visit.

322 For her part, Ms Alexander gave evidence that, among other things -

(a) '... a vaginal examination is done to ascertain the dilation of the cervix'[312] and is 'used as a decision-making tool as to what happens next'. In that connection, she said -

We need to determine if a woman's in labour. You don't want to send a woman who's in advanced labour home ... and then accidentally birth at home. Likewise, you don't want to have a woman who's in very, very early labour sitting around in the hospital for a day or two before they get into active labour.[313]

(b) in the present instance, she was suspicious that birth could still have been 'many hours away';[314]

(c) that said, the plaintiff had come to hospital to give birth and the likelihood that she could have gone home was very slim, although not impossible, depending upon the result of a vaginal examination;[315]

(d) she recalled Mr Gawthrop offering the birth plan, but said that she had already read it and did not need an extra copy;[316]

(e) she could not remember discussing contractions with Mr Gawthrop, but she liked to 'have hands on the woman's belly to feel the contractions myself';[317]

(f) she had her hands on the plaintiff's belly for 10 minutes, which she later described as 'our gold standard';[318]

(g) she considered the contractions to be 'still quite irregular' and also made other observations,[319] although that did not allow her to identify 'with any precision' when the plaintiff might go into labour;[320]

(h) vaginal examination was '[p]art of the normal assessment on admission', although it was part of the plaintiff's birth plan that she did not want a vaginal examination and so she 'respected that';[321]

(i) vaginal examination was also part of the 'criteria' to call the Mamta midwife[322] as well as to determine whether it was appropriate to use the bath;[323]

(j) she 'would have been explaining what the hospital policy is';[324]

(k) in respect of back pain and pain relief, she would have been offering 'comfort strategies' in line with the plaintiff's birth plan,[325] although she also said that -

If they had requested drugs for pain relief, I would've explained what was necessary. Drugs are not given without a vaginal examination.[326]

(l) all of that said, there had been no urgent medical reason relating to the safety of the mother or baby;[327]

(m) she attended the birth suite '[e]very half hour' to make observations and to assess the well-being of the baby;[328]

(n) later, she essentially acknowledged that there had been 'multiple' attendances and 'repeated refusals', although she did not accept that there had been eight;[329]

(o) she had been 're-explaining what the reasoning [was] behind doing a vaginal examination' and was not exerting pressure;[330]

(p) at perhaps about 12:25am, she approached the midwife in charge, Ms Welch, in respect of which Ms Alexander said -

... at that point, I was really feeling like going against hospital policy and saying, "Well, let's just call her Mamta midwife in", and I discussed that with Mel to say that this was my gut feel. "They don't want a vaginal examination. I think we should just go against hospital policy and ... call the Mamta midwife in", but I was reminded that I can't break hospital policy. It's there for a reason, and if we call the Mamta midwife in, we don't know if she's [the plaintiff] in established labour or how far along she is or whether the Mamta midwife will even be there for the birth, so I was encouraged to follow policy.[331]

(q) the fact that the plaintiff also declined the test for Group B Streptococcus made it 'a little bit more crucial' to find out that the membranes were opened or ruptured and that the plaintiff was in active labour, which she said had been explained to Mr Gawthrop, and which he was to discuss it with the plaintiff;[332]

(r) in respect to the AmniSure test, and perhaps more widely, she had no knowledge of why the plaintiff chose to consent or decline, but the test confirmed the rupture of the membranes which, she said, 'has nothing to do with the progress of labour';[333]

(s) she always gains consent for vaginal examination, 'both verbally and also implied consent', and explained the process that she follows during such an examination;[334]

(t) it is quite possible that she had a 'chat' with Mr Gawthrop outside the birthing suite.[335] However, in the birthing suite, the plaintiff and Mr Gawthrop said 'yes' to vaginal examination. In that connection, Ms Alexander said -

I've done a lot of vaginal examinations over the years, so I can tell when a woman is resisting and when she's tense and when her pelvis is ... tight. In this case Larissa was relaxed, her pelvis was relaxed, she was relaxed on the bed for the examination.[336]

(i) the plaintiff was not expressing any emotion at all during the vaginal examination;

(ii) she was not aware of the plaintiff crying, and would have documented it in her notes 'if it was distressing at all for her';

(iii) if the plaintiff had asked her to stop she would have done so 'immediately';[337]

(i) the vaginal examination revealed the plaintiff to have been 'just on the cusp of ... active labour';[338]

(ii) the vaginal examination would have taken 'no longer than two minutes' and that -

I don't have a specific recollection but I know she wasn't keen on a vaginal examination so I did it as quickly as possible. Usually we would be assessing a lot more than just the cervix when we're doing a vaginal examination, like, the lie of the baby's head but I didn't complete a full examination I just did as quick as I could to get just the bare amount of information necessary.[339]

(iii) she took that approach essentially so that she could 'tick the box to get the [Mamta] midwife in';[340] and

(iv) the vaginal examination undertaken was not unusual at such a stage and 'adequate ... under the circumstances';[341]

(w) she considered the plaintiff's labour to have been 'establishing' during the period between 11:05pm and 1:10am;[342] and

(x) Ms Welch subsequently telephoned Ms Bailey[343] and Ms Alexander later prepared the handover note.[344]

323 I have already referred to various aspects of the evidence of Ms Bailey. In respect of presently relevant matters, Ms Bailey gave evidence that -

(a) when a woman attends the maternity ward, the usual procedure is that -

... the core staff ... will do the initial assessment of the woman, doing the vital signs - so checking her blood pressure, temperature, pulse - checking the baby, the position, [making] sure that the baby is head down; [listening] to the baby's heart. They will review her [the woman's] history, and ... see if there's any need for continuous foetal monitoring in labour, if there has been any risks throughout pregnancy; ... asking about membranes - are they still intact? Feeling the contractions - ... so they're trying to diagnose labour. Part of that is also, ... often, doing a vaginal examination, which will help to determine where - where the cervix is up to, and usually, after about five centimetres is established labour.[345]

(b) in the present instance, Ms Bailey opined that when the plaintiff attended the maternity ward she could have been 'still quite early' in her labour and Ms Bailey would have wondered '[w]ould she actually be better off going home ... until she's in established labour';[346]

(c) that said, while Ms Bailey noted that '[e]arly labour can go for days', she also noted that the plaintiff might have been about to '[t]ip over from early to established active labour';[347]

(d) in any event, before deciding to send a woman home, '[d]efinitely you should be having a vaginal examination ... because ... you want to be sure ... that they're not actually dilating more than you suspect based on ... what you're observing of them';[348]

(e) generally speaking, there would usually be at least one vaginal examination prior to giving birth;[349]

(f) there is no difference in the level of care provided by 'core staff' and a Mamta midwife;[350]

(g) before having nitrous oxide, it would be 'useful' to know that the plaintiff was 'actually in [active] labour';[351]

(h) after Ms Bailey arrived at the birthing suite, the request for a vaginal examination noted at about 3:15am likely concerned the plaintiff's '[s]trong uncontrollable urge to push' that 'could cause damage to [the] cervix' - in the circumstances, the plaintiff acceded to the request and the examination confirmed that the plaintiff's cervix was fully dilated;[352]

(i) the next request, at about 4:35am, was prompted by a desire to ensure that the baby was not becoming stuck, although the plaintiff declined the request because she was kneeling and, in that circumstance, Ms Bailey was unable to perform a vaginal examination;[353]

(j) the next request, at about 5am, was prompted by the plaintiff having been pushing for an hour. The plaintiff agreed to a vaginal examination (but not CTG). During the examination Ms Bailey could 'feel the head advancing' and that the plaintiff was 'pushing effectively';[354]

(k) the final request was at about 6:05am, when the plaintiff was 'exhausted and struggling to complete pushing the baby out'. The obstetrician was present and Ms Bailey believed that he would have explained 'the process of checking the baby's position and station and the suitability for an assisted delivery ... that requires a vaginal examination'. The plaintiff consented and, shortly thereafter, had a vacuum assisted delivery;[355]

(l) in respect of the subsequent home visit, Ms Bailey said -

... they [the plaintiff and Mr Gawthrop] asked me if there was a way of knowing, or being able to know, if somebody was in labour ... without doing a vaginal examination. ... I recall answering ... that you can sit with a woman over time and observe ... the effect that the contractions are having on them, ... and ... you can see that those contractions appear to be intensifying ... in length and timing, and how often they're occurring; you can see that they're having more of an effect on her overall ... behaviour - her face, the noises that she's making. However, ... it's difficult to say exactly where somebody is up to in labour without doing a vaginal examination.[356]

(i) she did not think she would have said that a vaginal examination was not necessary;

(ii) she was surprised at the suggestion that Ms Alexander's demeanour had changed;

(iii) she felt sympathy for the plaintiff and Mr Gawthrop and encouraged them to submit feedback to the hospital so that 'this wasn't an experience that someone else had to go through'.[357]

324 For completeness, I note that there is also relevant documentary evidence (including the two sets of clinical notes), as well as aspects of the expert opinion evidence.

325 That brings me to the first of the presently identified issues, namely active labour.

326 At trial, that issue was multifaceted. Consequently, various facets of the issue will be evident at different points in these reasons. Presently, the issue bears upon the findings to be made in respect of the events of the night leading up to the vaginal examination performed by Ms Alexander shortly after 1:10am.

327 In that regard, as I have noted, the plaintiff believed that she was in active labour. She said that matters such as strong frequent contractions, back pain, difficulty speaking and needing to rely heavily on breathing techniques had been referred to during the hypnobirthing program. Essentially on that basis, as well as her maternal instincts, the plaintiff strongly believed that she was in active labour before she got to the hospital and certainly when she arrived there.

328 For his part, among other things, Mr Gawthrop said that -

(a) contractions had been getting more pronounced and things had intensified;[358]

(b) there had been a 'trigger' on the app on his phone (a 'threshold when the contractions lasted a certain time and then the time between them reached a certain time') which suggested that the 'end stage of labour' was approaching;[359]

(c) while he was not an expert, he had understood from his wife that vaginal examination was not the only way to assess whether a woman is in active labour;[360] and

(d) that belief had informed the development of the birth plan.[361]

329 Other evidence lent support to the evident beliefs of the plaintiff and her husband. In particular, Ms Richardson described midwifery as an art and a science[362] and also said that there were many signs relevant to ascertaining the progress of labour. In that connection, she stated -

If the midwife had taken time to sit with the woman, gain the history, go through the birth plan, observe the woman's progress, her movements, her sounds, has she got facial flushing, abdominal assessment, the position, the lie of the baby, is it in the vertex, is it ... occipito anterior, transverse, posterior position, ... is the head engaged into the pelvis, has there been any progress, ... have the contractions become regular? Are they 3 to 4 in 10, of moderate, lasting 40 to 60 seconds, are these things establishing - to me [this] establishes labour.[363]

330 Ms Newth, Ms Bailey and Ms Alexander gave evidence that referred to at least some of the above factors.[364] That said, the general effect of much of their evidence was that -

(a) labour can go for 'well over 12 hours, sometimes even over 24 hours';[365]

(b) at Bendigo Hospital, an EBA affects the number of hours that a midwife might be able to spend with a woman in labour;[366]

(c) a midwife should be present for the 'most important stage' (which Ms Newth described as active labour);[367]

(d) accordingly, hospitals generally have a policy that requires a woman presenting out of hours to be determined to be in 'established' (or active) labour before the midwife is called in;[368]

(e) active labour is determined, particularly, by the dilation of a woman's cervix;[369] and

(f) the dilation of a woman's cervix can only be determined 'definitively' by vaginal examination.[370]

331 In particular, Ms Alexander gave evidence that -

(a) active labour cannot be declared without determining whether 'the cervix was opening or dilating';[371]

(b) other observations tell you 'nothing' about cervical dilatation;[372] and

(c) there are 'a lot of old wives' tales', but the only way to determine the level of dilatation of the cervix 'definitively' is to conduct a vaginal examination.[373]

(a) the proper construction of the relevant hospital policies is open to debate;

(b) other evidence suggests that the application of those policies has not been invariably uniform and unyielding;

(c) there are significant parts of the Safer Care Victoria Guidelines that state that -

(i) at assessment, a vaginal examination should 'possibly' be offered '[i]f appropriate and indicated';

(ii) admission into hospital should not be determined 'solely by active labour being identified, but by the woman's individual needs';

(iii) '[c]ervical dilatation should not be the sole determinant of safety to return home or admission for ongoing care'; and

(iv) in that regard, '[a]n assessment of contractions and the woman's behaviour and wishes are important considerations'.

333 In the circumstances, it is presently sufficient to observe that -

(a) there is and has plainly been a measure of broader controversy and debate concerning how active labour should be determined and when and in what circumstances a vaginal examination should be offered;

(b) there is significant tension between parts of the Safer Care Victoria Guidelines and at least some of the relevant Bendigo Hospital policies;

(c) on the night, the plaintiff believed that she was in active labour and the basis for that belief was not wholly ill-informed;

(d) Mr Gawthrop also had a reasonable basis for his belief that his wife was approaching the 'end stage' of labour;

(e) by the same token, Ms Alexander's requests for a vaginal examination in order to determine whether the plaintiff was in active labour were borne of an understanding of hospital policy that was itself not wholly without foundation; and

(f) on the evidence, the controversy and tensions to which I have referred seem likely to have resulted in practices at Bendigo Hospital that were not uniform, including in respect of the calling of Mamta midwives.

The events shortly after the arrival of the plaintiff and Mr Gawthrop to the maternity ward

334 The second issue concerns the events shortly after the arrival of the plaintiff and Mr Gawthrop at the maternity ward at about 11:05pm. As earlier noted, many of those events were not ultimately in any real dispute.

335 That said, there was a minor degree of dispute concerning events upon the arrival of the plaintiff and Mr Gawthrop at the maternity ward. In particular, the plaintiff and Mr Gawthrop said that Mr Gawthrop produced the written birth plan (and phone with the results from the app) which Ms Alexander brushed off dismissively. For her part, Ms Alexander tended to deny that she had been dismissive, but said that she had already read the birth plan and had a copy on file.

336 Ms Alexander's evidence does not account very satisfactorily for the offer of the phone, although, in fairness, little attention was given to it in cross-examination.

337 I expect that Ms Alexander simply declined the offer of the birth plan because she had read it and then set about the usual process of observations and assessment in a rather business-like way. I think it is unlikely that, at that point, she was particularly short with the plaintiff and Mr Gawthrop, although there later emerged a stand-off between the 'sides' that is likely to have since coloured recollections concerning that early event.

338 There was also a minor degree of difference concerning the location in which Ms Alexander had performed palpations of the plaintiff's belly. That said, nothing much turns on the issue as there was no dispute that there had been such palpations, and that the first request made by Ms Alexander for the plaintiff to undergo a vaginal examination occurred in the birthing suite (not the hallway).[374]

339 Ms Alexander plainly did perform palpations and other observations, as her initial notes refer to the rate and intensity of contractions and other observations made as well as the plaintiff having declined particular measures, including vaginal examination.[375] Ms Alexander said, and I accept, that she had her hands on the plaintiff's belly for 10 minutes and that the entire process took about 15 minutes.[376]

340 In that context, of course, the notes record that the plaintiff wanted a bath and that Ms Alexander explained the need for a vaginal examination in order that a decision might be made 'for admit or call Mamta M/W'.

341 As I have noted, the plaintiff essentially said that during that initial process of assessment Ms Alexander had said 'We'll do a vaginal examination now' and that it was to see whether the plaintiff was in active labour. The plaintiff said that she was 'a little bit confused' and said 'no'. My impression was that her confusion related primarily to the request for a vaginal examination in light of Ms Alexander having said that she had read the birth plan and did not need a copy.

342 The plaintiff said that Ms Alexander then got 'really annoyed ... like I was making her job really hard' and that the plaintiff and Mr Gawthrop asked for Ms Bailey to be called in response to which Ms Alexander said 'Well, not without a vaginal examination'.[377]

343 Mr Gawthrop's account was similar. He also said that no medically necessary or further explanation was given.[378]

344 For her part, Ms Alexander essentially said that she had observed the plaintiff's contractions to be irregular and that a vaginal examination was part of the normal assessment. She said that part of the criteria for calling the Mamta midwife was to have a vaginal examination. In that context, the plaintiff had declined the request and Ms Alexander said she respected that.[379]

345 A short time later, Ms Alexander added that such an assessment involves determining whether the hospital can 'keep them and have a baby' or 'let them go home until things ramp up again'. She also said that she 'would have been explaining what the hospital policy is regarding timing, [and] calling the Mamta midwife in so that the Mamta midwife was present for the birth'.[380]

346 I have earlier referred to the quality of Ms Alexander's evidence generally and, in respect of the present incident, Ms Alexander acknowledged directly that she could not recall 'exactly the conversation'.[381]

347 In that context, Ms Alexander's evidence about having explained the precise rationale for hospital policy struck me as reconstructed and unreliable.

348 Further, if Ms Alexander had specifically referred to the terms of any 'hospital policy' as well as a prospect that, if called, the Mamta midwife might not have been available at the time of birth, it is likely that the plaintiff and/or Mr Gawthrop would have recalled it.

349 In the circumstances, it seems to me to be likely that Ms Alexander simply said that it was necessary to perform a vaginal examination 'now' to see whether the plaintiff was in active labour and she may well also have said that there was a possibility that the plaintiff and Mr Gawthrop could be sent home.

350 In respect of the latter, however, I tend to think that -

(a) any such possibility could have been mentioned no more than briefly and rather faintly; and

(b) the issue was certainly not elaborated in the manner subsequently sought to be developed by the defendant at trial.

351 In that regard, if it had been said that the plaintiff's baby could be many hours or even 'days' away in circumstances in which she had been in early labour for many hours and had had a 'show' more than five hours earlier, I am sure that the plaintiff and/or Mr Gawthrop would have recalled it.

352 More broadly, the proposition that Ms Alexander could have sent the plaintiff and Mr Gawthrop home and that the plaintiff's labour could thereafter have continued for 'days and days' -

(a) later emerged as having been a rather theoretical one, at best;[382]

(b) was also a proposition that Ms Richardson dismissed;[383] and

(c) if raised, would have led to the startling and no doubt unforgettable disclosure that not only was it being said that the plaintiff needed to undergo a vaginal examination in order to be admitted to the hospital, but that she would also need to submit to the very same investigation in order to be allowed to leave and go home.[384]

353 In the circumstances, accepting that the prospect of going home may well have been mentioned by Ms Alexander during the initial assessment, it is likely to have been mentioned only very briefly, and it is unlikely that it was referred to at all thereafter.

354 In any event, in light of the preference stated in her birth plan, which Ms Alexander said that she had read, the plaintiff no doubt responded simply and quite briefly to Ms Alexander's request, especially because there was really no issue other than that the vaginal examination was not sought for an 'urgent medical reason'.[385] In particular, there was no risk to the health of the plaintiff or her baby.[386]

355 In the circumstances, it seems to me to be unlikely that Ms Alexander gave much in the way of further explanation, other than to add that a vaginal examination was also necessary in order to call the Mamta midwife, when that was requested. Ms Alexander may have also said that vaginal examination was necessary in order to be admitted to the hospital, but if she did I doubt that either the plaintiff or Mr Gawthrop heard or specifically understood the significance of that statement (although they undoubtedly made the connection later on).

356 The overall circumstances suggest that there was a relatively brief exchange of the kind generally recounted by the plaintiff and Mr Gawthrop. After that, Ms Alexander left the room. Such an account seems also to be in keeping with the essential brevity of the relevant part of Ms Alexander's initial note. From that point, the plaintiff was confused and stressed and relations between the respective 'sides' are likely to have been rather strained.

The subsequent interactions between the plaintiff, Mr Gawthrop and Ms Alexander

357 The third issue concerns the subsequent interactions between the plaintiff and her husband, on the one hand, and Ms Alexander, on the other.

358 In substance, the plaintiff said that Ms Alexander came into the room periodically and, in effect, asked whether the plaintiff was 'ready to have the VE?'. She said that there were about eight such requests.

359 In that general context, the plaintiff variously said or confirmed that -

(a) she asked whether she could have a bath and Ms Alexander said 'You'll have to have a VE to get in the bath';

(b) her back pain was getting worse and Ms Alexander offered 'sterile water injections', which the plaintiff declined;

(c) she said to Mr Gawthrop that she needed 'something' for the back pain and was not managing very well and when that was raised with Ms Alexander she replied 'No, not until you have a VE';

(d) she said to Ms Alexander that she did not want opioid medication, but in respect of other medication Ms Alexander said 'Not until you've had a VE';

(e) she declined Ms Alexander's requests 'again and again' and Ms Alexander's attitude in response had been 'This is how it's going to be';

(f) her contractions were strong and 'things were moving along quite significantly';

(g) it was 'coming up to two hours' and she was really scared and upset and felt under 'so much pressure' and as if she did not have any rights;

(h) she consented to self-administer the AmniSure test, which was positive, but Ms Alexander still asked her to undergo a vaginal examination; and

(i) at that point, Mr Gawthrop went outside to speak with Ms Alexander and when he came back he said 'Larissa, I think you're gonna have to get this done. They're ... not gonna do anything for you'.[387]

360 As earlier noted, Mr Gawthrop said that Ms Alexander had come back to the birthing suite about seven or eight times and asked whether the plaintiff was 'ready to have the VE'. In that general connection, he said that -

(a) at some point, when discussing her back pain, the plaintiff had asked 'if there was something that could be done for that that was non-opioid' and Ms Alexander had indicated that the plaintiff 'wasn't admitted and there was no option for pain relief';[388]

(b) Ms Alexander had not come into the room only four times;[389]

(c) he realised the situation and felt distressed and powerless and went out to Ms Alexander to 'lay it out' and Ms Alexander confirmed that the plaintiff would not be admitted, administered pain relief or have her Mamta midwife called until she had a vaginal examination; and

(d) he felt that there was no choice and said that the plaintiff was 'very distressed and kept on saying that she didn't want to have the vaginal examination'.[390]

361 For her part, among other things, Ms Alexander said or acknowledged that -

(a) she had attended the birthing suite every half hour to make observations and to assess the well-being of the baby;

(b) there had been multiple attendances and repeated refusals of requests for vaginal examination;

(c) she had been re-explaining the reason for a vaginal examination and was not exerting pressure;

(d) the AmniSure test related to the rupture of the membranes, which 'has nothing to do with the progress of labour';

(e) it was quite possible that she spoke outside with Mr Gawthrop; and

(f) the plaintiff and Mr Gawthrop had said 'yes' to a vaginal examination.

362 The relevant parts of the clinical notes are extracted above.[391] Specifically, there is -

(a) a note by Ms Alexander at midnight in respect of back pain and advice sought in respect of pain relief;

(b) a note by Ms Welch at 12:25am concerning the need for an AmniSure test;

(c) a note by Ms Alexander at 12:30am concerning back pain and contractions and in respect of vaginal examination it is stated '[r]emains declining';

(d) a note by Ms Welch at 1:20am indicating that the Mamta midwife had been called and would attend; and

(e) a 'Retrospective Note' by Ms Alexander indicating that at 1:10am the plaintiff consented to and self-administered an AmniSure test (the result of which was positive) and, by inference, that the plaintiff consented to 'VE' following which she had been '[a]dmitted & Mamta M/W phoned'.

363 In that context, as indicated, Ms Alexander said that she attended the birthing suite every half hour to make observations and assess the well-being of the baby. However, the notes record the results of one further assessment of the plaintiff's contractions, at 12:30am, and no results of any further assessments of, for example, the foetal heart rate.

364 That said, the notes do indicate that Ms Alexander attended at midnight and 12:30am in respect of back pain and that the vaginal examination must have been performed shortly after about 1:10am.

365 It follows that the notes tend to suggest that after the initial assessment undertaken shortly after 11:05am there are likely to have been at least three further attendances at which vaginal examination was discussed. However, the note at midnight says nothing about vaginal examination, the note at 12:30am says 'Remains declining VE' and the retrospective note attributed to 1:10am relevantly says 'VE' and otherwise records the result.

366 In short, the notes cannot accurately reflect the relevant events in anything like their entirety and, as I have noted, Ms Alexander seemed ultimately to acknowledge that the plaintiff had made 'persistent' and 'frequent' requests for the Mamta midwife to be called, in response to which Ms Alexander said that she had explained 'hospital policy' (that is, the asserted requirement for a vaginal examination).[392]

367 In the circumstances, there must have been exchanges concerning vaginal examination that do not appear in the notes.

368 Further, I have earlier referred to the strained or frosty relations that must have arisen from the exchange in which Ms Alexander had initially requested a vaginal examination. It seems to me that a result of that exchange must have been that subsequent exchanges between the plaintiff and Ms Alexander became increasingly brief and somewhat transactional as the plaintiff continued to decline the requests made.

369 In those circumstances, it seems likely that Ms Alexander eschewed much in the way of unnecessary contact and explanation and simply returned to the birthing suite at intervals to either deal with a specific issue (such as the plaintiff's experience of back pain or, on one occasion, to assess the plaintiff's contractions), or simply to enquire about vaginal examination. In an event of either kind, it is likely that Ms Alexander simply asked the plaintiff whether she would now accede to the requested vaginal examination.

370 In that connection, I am conscious that Ms Alexander seems to have believed that a vaginal examination was required for at least a bath, to call the Mamta midwife and to be admitted to the hospital. In that sense, in the immediate future at least, vaginal examination was believed by Ms Alexander to be required before several further and significant steps could be taken in the care and management of the plaintiff and her pregnancy.

371 The position in respect of pain relief is more complicated, as it seemed pretty clear that Ms Alexander adopted the position that the plaintiff would not be given any medication for pain relief, including non-opioid medication, unless she acceded to a vaginal examination.

372 However, late in cross-examination, Ms Alexander acknowledged that nitrous oxide, in particular, was not morphine-based, and could be administered prior to admission. When the point was pursued, Ms Alexander dissembled and, among other things, said that she believed that 'women are aware of the medications'.[393]

373 To me, that element of Ms Alexander's evidence was troubling and might be thought to suggest that she had sought to deploy a quite unjustifiable lever in order to cause the plaintiff finally to accede to the requested vaginal examination.

(a) Ms Bailey gave evidence that before administering nitrous oxide, in particular, it would be 'useful to know that [the woman is] actually in labour, again determined through a vaginal examination';[394]

(b) the particular evidence of Ms Alexander emerged right at the end of a lengthy cross-examination and was both reactive to the cross-examiner and somewhat incoherent in quality;

(c) as I have indicated, the issue was not further pursued in cross-examination; and

(d) it was not ultimately submitted, either in relation to liability or the issue of aggravated damages, that it should be concluded that Ms Alexander had unjustifiably deprived the plaintiff of pain medication in order to cause her to submit to the requested vaginal examination.

375 In the circumstances, having regard to the seriousness of such a finding, I would not conclude that Ms Alexander unjustifiably deprived the plaintiff of pain medication including nitrous oxide.

376 Accordingly, as earlier indicated, I accept that Ms Alexander believed that, in the circumstances, the plaintiff should undergo a vaginal examination before she was administered pain medications, including nitrous oxide, as well as to have a bath, call the Mamta midwife and be admitted to hospital.

377 In that context, while Ms Alexander seems not to have had any concern about the health of the plaintiff or her baby,[395] it seems that the only other step remotely in contemplation, other than perhaps simply biding time in the birthing suite (which was not identified as an option by Ms Alexander at any point in her evidence), was whether the plaintiff could be advised or allowed to go home and return to the hospital at some later point. However, even that step seems also to have been believed by Ms Alexander to depend on the result of a vaginal examination[396] and, as I have earlier noted, probably slipped from being suggested after the initial assessment.

378 In short, whether the plaintiff wanted to be admitted to the hospital and have pain medication administered and her Mamta midwife called or, alternatively, to go home, it is apparent that Ms Alexander believed that the plaintiff would need to undergo a vaginal examination. As she said in respect of at least part of the above, it was 'necessary at some point ... to decide whether the cervix is making some changes' and, in her view, that required a vaginal examination.

379 It follows that whatever identified step the plaintiff ultimately decided to take, other than simply continue to wait in the birthing suite (about which Ms Alexander seems to have said nothing to the plaintiff and/or Mr Gawthrop), Ms Alexander appears to have taken the view that, sooner or later, the plaintiff would need to undergo a vaginal examination.

380 In those circumstances, it seems to me to be inevitable that Ms Alexander's attitude in her dealings with the plaintiff and Ms Gawthrop must have been as fatalistic as some of her evidence during the trial.

381 Accordingly, I accept the plaintiff's evidence that, as time went on, Ms Alexander's attitude became 'like I was making her job really hard', 'very irritated' and '[t]his is how it's going to be'.[397]

382 That brings me to the AmniSure test, which was self-administered by the plaintiff at about 1:10am.

383 There was little evidence about the precise circumstances that led to that event, although it seems likely to have been precipitated by another request by Ms Alexander that the plaintiff undergo vaginal examination.

384 The plaintiff said that during the initial assessment it had been explained that the purpose of an AmniSure test was 'to see if my membranes had actually ruptured'. At that time, the plaintiff declined. She said that it was suggested again coming up to two hours since they had arrived at the maternity ward.[398]

385 The plaintiff also said that she was led to believe that performing the AmniSure test might get her out of the vaginal examination. Ms Alexander said 'We want to see if your waters have broken, to see if you're in labour'. The plaintiff consented, administered the test and it was positive, but Ms Alexander then said that it was still necessary to do a vaginal examination.[399]

386 In cross-examination, there was no direct reference to the plaintiff's evidence concerning her ultimate consent to the AmniSure test. That said, in respect of the request made by Ms Alexander during the initial assessment, the following evidence was given -

Again, that [the AmniSure test] is an indicator that you've moved into labour? - - - Yes.[400]

387 Mr Gawthrop could not recall the specific circumstances surrounding the initial offer to administer the AmniSure test.[401] On the other hand, he gave the following evidence in cross-examination -

... it's reasonable if they say to you, "Can you perform this test to see if your waters break", it's reasonable to say yes, isn't it? - - - After two hours, and we were under the impression that if she had that self-administered that she would not require a VE.[402]

388 For her part, among other things, Ms Alexander gave evidence that -

(a) an AmniSure test 'doesn't tell whether she's in active labour', it just 'tells whether the membranes are open and whether we need to have a little bit of a timeline for her birth';[403]

(b) the membranes can rupture 'days before labour starts' and 'there's no given time that the membranes rupture in relation to the rest of labour';[404] and

(c) ruptured membranes 'doesn't tell us anything about the progress of labour'.[405]

389 I note that there was no evidence that it was said to the plaintiff that ruptured membranes say nothing about the progress of labour. It is also not wholly clear how it could be that something that is apparently irrelevant to the progress of labour could, at the same time, be in some way relevant to the 'timeline for her birth'.[406]

390 In any event, it will be evident that there was no direct challenge (and perhaps no challenge at all) to the evidence of the plaintiff and Mr Gawthrop concerning their expectation that consenting to the AmniSure test might avoid the requested vaginal examination. Indeed, the suggestion made in cross-examination of the plaintiff, to which she assented, might be thought to confirm that it was reasonable for the plaintiff to believe that a positive AmniSure test might allow her to avoid the requested vaginal examination.

391 I accept that the plaintiff consented to the AmniSure test believing that a positive result could allow her to avoid a vaginal examination. As I have noted, shortly after the positive AmniSure test was apparent, Ms Alexander said that the plaintiff was 'still' required to undergo a vaginal examination.

(a) shortly after the positive AmniSure test, Mr Gawthrop approached Ms Alexander at the nurses station in order to 'lay it out' and she responded by simply confirming that a vaginal examination was required;

(b) Mr Gawthrop returned to the birthing suite and discussed the position with the plaintiff; and

(c) after speaking with the plaintiff, Mr Gawthrop returned to Ms Alexander and said 'she'll have the VE'.

(a) after the initial assessment conducted in a period of about 15 minutes shortly after 11:05pm, Ms Alexander returned to the birthing suite periodically, sometimes in respect of particular issues and on other occasions simply to ask whether the plaintiff would now accede to a vaginal examination;

(b) in an event of either kind, during the period between about 11:30pm and about 1:10am, the extent of discussion in respect of a vaginal examination amounted to not much more than a request by the plaintiff and Mr Gawthrop for the Mamta midwife to be called and a response by Ms Alexander that reiterated the request for a vaginal examination (or, perhaps, an exchange the other way around) and, in either case, a refusal by the plaintiff following which Ms Alexander again left the birthing suite;

(c) that said, as time went on various layers were added to the asserted need for a vaginal examination to be conducted, particularly -

(i) in order to have a bath;

(ii) in order to be administered any pain relief medication; and

(iii) it became clear to the plaintiff and Mr Gawthrop that it was being said that a vaginal examination would be necessary in order that the plaintiff might be admitted to the hospital;

(d) in the period to which I have referred it is likely that there were at least half a dozen requests made by Ms Alexander for the plaintiff to undergo a vaginal examination and it could well have been seven or eight occasions, as indicated by the plaintiff and Mr Gawthrop in their respective evidence;

(e) at no point during those various interactions was any urgent medical reason for a vaginal examination identified;

(f) both the plaintiff and Mr Gawthrop became more distressed and bewildered as time went on and Ms Alexander became more implacable and essentially fatalistic;

(g) the plaintiff continued to experience back pain and her contractions also became increasingly stronger and of greater intensity;

(h) about 1:10am, the plaintiff agreed to administer an AmniSure test to herself, believing that it may avoid the need for a vaginal examination, but she was then met with a further request from Ms Alexander to undergo vaginal examination;

(i) Mr Gawthrop 'pieced it all together' and went out and spoke with Ms Alexander at the nurses station and she simply confirmed his understanding;

(j) Mr Gawthrop 'couldn't believe it', but returned and explained the position to the plaintiff and she was 'gutted' and 'defeated' and said 'fine';[407] and

(k) Mr Gawthrop returned to Ms Alexander and said 'she'll have the VE'.

The discussion between Ms Alexander and Ms Welch

394 The fourth issue concerns the claimed discussion between Ms Alexander and Ms Welch.

395 I have earlier referred to the substance of Ms Alexander's evidence concerning that claimed discussed, and it is unnecessary to repeat it.

396 I should say that the present aspect of Ms Alexander's account of the relevant events was not really in dispute between the parties. That said -

(a) I have already indicated that Ms Alexander's recollections of the relevant events seemed to be mediated via a combination of perceived injustice, fatalism and reconstruction;

(b) particularly in respect of the present topic, Ms Alexander said that Ms Welch and Ms Pitson were 'good buddies' and later said -

I did feel that it was Mel [Welch] who had put me in the position of following policy when my thought was at this time maybe it's not worth following the policy.[408]

(c) Ms Welch did not give evidence;[409]

(d) while, in Ms Alexander's evidence in chief, the occurrence of the claimed discussion appeared to be in some way linked to the making of a note by Ms Welch at 12:25am,[410] no part of that note records or otherwise indicates the occurrence of a discussion of the kind suggested; and

(e) indeed, no such discussion is recorded or clearly indicated anywhere in the clinical notes.

397 In the circumstances, it would seem to be particularly important to be appropriately satisfied before accepting that such a discussion, in fact, occurred.

(a) the circumstances to which I have recently referred involved, at the very least, repeated requests by Ms Alexander and repeated refusals by the plaintiff in a setting in which Ms Alexander believed that a vaginal examination was required, the plaintiff was standing her ground and the plaintiff and Mr Gawthrop were getting increasingly distressed;

(b) in respect of an assessment during the first stage of labour, the Labour to Vaginal Delivery Protocol states -

If the midwife/MO is unable to determine the stage of labour or progression the midwife in charge must be consulted to assess the need for admission.[411]

(c) at least in a normative sense, an impasse of the present kind would commonly prompt the escalation of such an issue for the determination of a superior;

(d) Ms Bailey confirmed that Ms Welch had been the 'clinical midwife specialist ... in charge on the shift';[412]

(e) Ms Welch made a note at 12:25am as well as at other times during the night; and

(f) in that regard, Ms Welch appears to have been involved at various points in the management of the plaintiff's labour and birth.

(a) at about 12:25am, Ms Alexander had a discussion with Ms Welch in the general terms suggested; and

(b) in the course of that discussion, Ms Alexander was, in effect, directed to continue to enforce what she and Ms Welch believed to be the effect of hospital policy.

400 The fifth issue concerns the subject vaginal examination.

401 As I have noted, following a discussion with the plaintiff, Mr Gawthrop returned to Ms Alexander and said 'she'll have the VE'.

402 In that general connection, the maternity ward notes -

(a) suggest that the subject vaginal examination took place shortly after 1:10am on 18 November 2020;

(b) record the findings made by Ms Alexander; and

(c) record that, afterwards, the plaintiff was admitted to the hospital and the Mamta midwife was called.[413]

403 In that general connection, the plaintiff said that she was crying when Ms Alexander came into the birthing suite and that she made a last plea to her to 'please call Mamta', to which Ms Alexander responded 'We need to do a VE' and 'To see if you're in labour'. The plaintiff said that she was very distressed when she said 'I'll do it'. She said that she was crying and shaking.[414]

404 The plaintiff removed her underwear and Ms Alexander put on gloves and sanitised her hands and instructed the plaintiff to 'get on the bed' after which, Ms Alexander said 'open your legs'. The plaintiff said that she was really upset and that the procedure was not quick and really painful. She said that Ms Alexander was 'stone cold', although her demeanour changed after the vaginal examination was over.[415]

405 In cross-examination, among other things, it was suggested that Ms Alexander had said 'If at any time, you want me to stop, just say "stop"', which the plaintiff denied. The plaintiff said 'I made it clear that I did not want to do it in any capacity' and that she had been under duress. She acknowledged that allowing the vaginal examination 'would achieve a desired consequence' (in particular, the calling of the Manta midwife), but said that the vaginal examination was 'not what I wanted at all'.[416]

406 Mr Gawthrop said it was like his wife had been 'defeated'. He said that she said '[f]ine', but still 'didn't want it'. He said the plaintiff was 'a mess' and 'incredibly distressed about the situation that she was in'. Mr Gawthrop said that the plaintiff was 'crying' and 'didn't want the VE', but Ms Alexander 'performed the VE' and afterwards her mood changed 'instantaneously'.[417]

407 In cross-examination, Mr Gawthrop confirmed the physical steps associated with the conduct of the vaginal examination, including that Ms Alexander had put on gloves. However, he denied that Ms Alexander had said 'I'm about to proceed. Any time you want me to stop, you just say stop'. He confirmed that his wife had been crying and saying 'I don't want this'.[418]

408 For her part, Ms Alexander said that she gains consent for such an examination, 'both verbally and [by] implied consent'. She essentially said that in the present case she had both, and referred to the plaintiff getting onto the bed and taking off her underwear. She said that she asked the plaintiff whether she was 'happy' for her to proceed and that the plaintiff replied 'yes'. She also said 'If [at] any stage you want me to stop just say stop and I'll immediately stop'.[419]

409 Shortly thereafter, Ms Alexander said that the plaintiff had been relaxed, not crying and not saying anything during the vaginal examination. She said that she would have documented it if 'it was distressing at all for her'. She also said that if the plaintiff had asked her to stop, she would have done so immediately.[420]

410 That said, Ms Alexander later gave evidence that she had known that the plaintiff was not 'keen' on a vaginal examination, so she had done it 'as quickly as possible' and that she had got 'the bare amount of information necessary'.[421] In that general connection, Ms Alexander said that the result of the vaginal examination revealed the plaintiff to be 'just on the cusp of becoming active labour'.[422]

411 I have earlier referred to the circumstances leading up to the point at which Mr Gawthrop returned to Ms Alexander and said 'she'll have the VE'. Among other things -

(a) the plaintiff had become more distressed and bewildered as time went on; and

(b) at the point at which she said 'fine', the plaintiff was both 'gutted' and 'defeated'.

412 I should add that in finally indicating that she would undergo a vaginal examination, the plaintiff was doing so in circumstances in which, among other things -

(a) she had been experiencing contractions on and off for more than 24 hours;

(b) she had a 'show' the previous evening at 5:45pm;

(c) since arriving at the birthing suite, her back pain and contractions had been increasing;

(d) she had not been permitted any medication for her back pain (albeit that she had been offered the sterile water injections, which she had refused);

(e) the plaintiff and her husband clearly believed that the baby was coming relatively soon;

(f) it was in the early hours of the morning, she was apprehensive and in pain;

(g) her birth plan said that she declined all vaginal examinations unless there was an urgent medical reason and informed consent, but that specific preference had essentially been put to one side since the initial assessment;

(h) she had been confronted with an unfolding sequence of layers of justification for the request that she undergo a vaginal examination;

(i) none of those layers amounted to an urgent medical reason;

(j) she did not feel that Ms Alexander was respecting her wishes;[423]

(k) in that regard, Ms Alexander's attitude had become essentially implacable and to the effect that '[t]his is how it's going to be';

(l) the plaintiff's hopes had been raised that consenting to the AmniSure test might allow her to avoid a vaginal examination;

(m) even though the AmniSure test had been positive, Ms Alexander said that it was still necessary for the plaintiff to undergo a vaginal examination; and

(n) Mr Gawthrop went out to speak to Ms Alexander at the nurses station, but returned and said 'Larissa, I think you're gonna have to get this done ... they're not gonna do anything for you'.[424]

413 In those circumstances, it seems to me to be likely that, no more than a matter of moments later, when Ms Alexander came into the birthing suite to perform the vaginal examination -

(a) the plaintiff had been, and probably still was, crying or weeping;

(b) the plaintiff said 'I don't want to do this' and made a last plea for the Mamta midwife to be called; and

(c) Ms Alexander responded much as she had over the preceding period of nearly two hours.

414 While, as I have noted, Ms Alexander said that the plaintiff had been 'relaxed', expressed no emotion during the examination that followed, and that she would have documented it if the plaintiff had been crying -

(a) it was evident that Ms Alexander did not have 'a specific recollection' of the event;[425]

(b) it is improbable that the plaintiff was 'relaxed' and expressed no emotion;

(c) that is especially so in circumstances in which, during the examination, Ms Alexander seems to have perceived that the plaintiff 'wasn't keen' on the procedure and so performed it as quickly as possible in order to obtain 'just the bare amount of information necessary';[426] and

(d) other important events of the night are not reflected in the clinical notes, including several of Ms Alexander's many requests for the plaintiff to undergo a vaginal examination as well as the discussion between Ms Alexander and Ms Welch at about 12:25am.

415 Moreover, having finally obtained verbal consent to an examination which she considered to be inevitable, had been requesting for the best part of two hours and her superior had confirmed should be performed, it is hardly likely that Ms Alexander would have been significantly swayed by late pleas that were no different to those advanced earlier or the fact that the plaintiff was still crying or weeping.

416 Nor, in the circumstances, does it seem to me to be remotely likely that Ms Alexander would have been following what she appeared to say was her usual practice of asking the woman whether she was 'happy' to proceed and to say 'stop' at any point. At the very least, the circumstances seem to have been far from usual.

417 In the circumstances, the sequence of events associated with the vaginal examination seem likely to have unfolded largely as described by the plaintiff and Mr Gawthrop.

(a) while the plaintiff confirmed that she would undergo the examination, she had very likely also been and probably still was crying or weeping when she made a last plea for the Mamta midwife to be called;

(b) Ms Alexander refused the request for a last time and simply said that a vaginal examination was necessary for that to occur;

(c) it is most unlikely that the plaintiff simply then said 'yes' to the vaginal examination and was thereafter 'relaxed';

(d) it is more likely that the plaintiff continued to weep and mutter 'I don't want this', but submitted to the examination by going through the motions;

(e) Ms Alexander instructed the plaintiff to 'get on the bed' whilst she sanitised her hands and put on gloves, before telling the plaintiff to 'open [her] legs' after which she performed the vaginal examination as quickly as practicable;

(f) due to her distress, the plaintiff found the examination to be painful;

(g) it is likely that during the examination, the plaintiff continued to weep and mutter 'I don't want this', probably more than once;

(h) after the examination was complete, albeit that the results revealed her to be only 'on the cusp' of active labour, it was nonetheless determined that the plaintiff should be admitted to the hospital, her Mamta midwife called and nitrous oxide administered for pain relief; and

(i) from her perspective, the impasse having finally resolved, Ms Alexander's mood undoubtedly lightened.

419 It follows that I reject the defendant's submission that the presently relevant evidence of the plaintiff and Mr Gawthrop was 'vague and inexact'.

420 The sixth issue concerns the subsequent vaginal examinations.

421 As I have noted, the progress notes record vaginal examinations or requests for vaginal examination at about 3:25am, 4:35am, 5:05am and 6:12am.[427] There was no issue that the plaintiff consented to the vaginal examinations at 3:25am, 5:05am and 6:12am and refused the request at 4:35am.

422 The plaintiff essentially said that each of the subsequent vaginal examinations had been conducted for identified necessary medical reasons that had been explained prior to her giving consent.[428]

423 That said, the plaintiff referred to the vaginal examination performed by Ms Bailey at about 3:25am and said that she had felt like she was having a 'seizure'. In that regard, she said -

... I had no control over my body. And I was hitting the back of the bed and ... I felt like I was going to throw up, like I was gagging and I couldn't breathe.[429]

424 Later, in cross-examination, it was sought to be suggested that at least two of Ms Bailey's requests for vaginal examination had occurred in circumstances in which she had been merely seeking to find out how the plaintiff was 'progressing'.[430] The plaintiff denied the first suggestion and, in respect of the other, could not recall.

425 Ms Gawthrop said that Ms Bailey had explained the medical reasons each time she had requested that the plaintiff undergo a vaginal examination.[431]

426 When, in cross-examination, it was suggested that Ms Bailey had given the plaintiff 'pretty much the same information that Ms Alexander gave ... when she told you [ie, the plaintiff] why it is she needed to perform the VE earlier', Mr Gawthrop replied 'No, it was different'.[432]

427 I have earlier referred to the substance of the evidence given by Ms Bailey in respect of the four requests. That evidence was given with reference to the associated progress notes.

(a) prior to the vaginal examination at 3:25am, it had been apparent that the plaintiff had been experiencing strong and uncontrollable urges to push that could have caused damage to her cervix;[433]

(b) when the plaintiff declined the request made at 4:35am, it had been necessary to make sure that the baby was not stuck, but the plaintiff did not want to move from a kneeling position in which Ms Bailey had been unable to undertake the examination;[434]

(c) prior to the vaginal examination at 5:05am, the plaintiff had been pushing for more than an hour and it was necessary to determine that the plaintiff was pushing effectively;[435] and

(d) prior to the vaginal examination at 6:12am, the plaintiff had been struggling to complete pushing the baby out and it had been necessary to assess the suitability for an assisted delivery.[436]

429 Plainly, the vaginal examinations at 3:25am, 5:05am and 6:12am were performed for pressing medical reasons that were identified as necessary and explained. On each occasion, the plaintiff readily consented.

430 That said, in respect of the vaginal examination undertaken at 3:25am, the plaintiff quite plainly became extremely distressed. The relevant progress note reads -

Larissa quite distressed following VE, gagging and hitting head of bed. Rolled onto side and encouraged to breath.[437]

431 The further request for a vaginal examination at 4:35am was refused for practical reasons that Ms Bailey seems readily to have accepted.

432 More broadly, the evidence did not suggest that any of these events occurred in circumstances anything like the earlier events involving Ms Alexander.

433 The seventh and final issue concerns the home visit made by Ms Bailey a few days after the birth.

434 I have earlier referred to some aspects of the relevant evidence of the plaintiff and Ms Bailey.

435 In some respects, both parties treated the issue of the home visit rather lightly. That said, each appeared to accept that the visit occurred, the plaintiff and Mr Gawthrop had been upset about the vaginal examination performed by Ms Alexander and Ms Bailey suggested that they give feedback to the hospital (which later occurred).

436 For present purposes, the plaintiff essentially said that when she told Ms Bailey about what had happened, Ms Bailey had been visibly shocked and said that -

(a) she had gone to bed early because she had known that the plaintiff was in labour;

(b) a vaginal examination had not been necessary for her to be called; and

(c) if she had been called, she would have come in to the hospital.[438]

437 In cross-examination, the plaintiff was asked about Ms Bailey having appeared shocked and the cross-examiner proffered a different explanation for that reaction (which the plaintiff rejected). The plaintiff's account of events was otherwise essentially unchallenged.[439]

... we raised with Megan about how when we presented to the ward we declined the initial VE [request] and asked for Mamta to be called, and then what happened ... . And Megan said that that shouldn't have happened. They should have called her. Ah and, in fact, ... she had gone to bed early that evening expecting a call.[440]

439 That account was entirely unchallenged in cross-examination.

440 The relevant part of Ms Bailey's evidence had a somewhat different focus. Part of her account concerned the issue whether it could be determined that a woman is in labour without a vaginal examination. Another part concerned the reported change in Ms Alexander's demeanour. In respect of whether Ms Bailey had said that a vaginal examination had not been necessary, she replied 'I don't think I would have said that' and then referred again to the suggestion that Ms Alexander's demeanour had changed and went on to say that she had had sympathy for the plaintiff and Mr Gawthrop and had encouraged them to give feedback to the hospital.[441]

441 In cross-examination, among other things, Ms Bailey essentially confirmed that she had suggested that the plaintiff and Mr Gawthrop give feedback to the hospital because if what they were saying 'is right', then 'it's not appropriate'.[442]

442 I have earlier referred to the diplomatic nature of Ms Bailey's presentation in evidence, as well as some instances of circumlocution. One of those instances relates to her evidence in respect of the home visit.[443]

443 In my view, Ms Bailey's diplomatic style and plain sympathy for the distress felt by the plaintiff and Mr Gawthrop influenced both what she said at the home visit and their perception of what she said.

(a) the plaintiff and Mr Gawthrop recounted the substance of the events and were undoubtedly very upset when doing so;

(b) Ms Bailey had great sympathy for them, probably did look concerned and 'shocked' and encouraged them to provide feedback to the hospital;

(c) Ms Bailey also said that she had known that the plaintiff was in labour, that she might be called during the night and that if she had been called she would have come in;

(d) the plaintiff and Mr Gawthrop may well have reasonably understood that response to suggest that the imposition of a requirement for a vaginal examination prior to Ms Bailey being called had been unnecessary;

(e) however, it is unlikely that Ms Bailey stated plainly that Ms Alexander's imposition or enforcement of the requirement for vaginal examination had been unnecessary; and

(f) there was also discussion concerning whether labour could be determined without a vaginal examination as well as Ms Alexander's reported change in demeanour.

(a) the plaintiff advanced claims in assault and/or battery and, further or alternatively, negligence; and

(b) both claims presented the question whether the plaintiff had consented to the vaginal examination performed by Ms Alexander.

Assault and battery, particularly the issue of free and voluntary consent

446 In respect of the claim in assault and/or battery, the issue whether the plaintiff had given free and voluntary consent to the subject vaginal examination emerged as central and essentially determinative.

(a) as earlier noted, the defendant's Informed Consent Policy stated that -

(i) the principle of informed consent applies to all health services provided by Bendigo Health;

(ii) the patient must give consent voluntarily;

(iii) a health professional may advise the patient what they believe is the best option for care, but must not exert pressure on the patient to accept that option; and

(iv) a genuine choice must be offered.[444]

(b) all relevant witnesses acknowledged that consent must be given freely and without undue pressure or coercion;[445]

(c) in final submissions, both parties acknowledged that consent must be given freely or voluntarily;[446]

(d) as McHugh J stated, plainly correctly, in Secretary, Department of Health and Community Services v JWB and SMB ('Marion's case')[447] -

It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person. ... the common law respects and preserves the autonomy of adult persons of sound mind with respect to their bodies. By doing so, the common law accepts that a person has rights of control and self-determination in respect of his or her body which other persons must respect. Those rights can only be altered with the consent of the person concerned. Thus, the legal requirement of consent to bodily interference protects the autonomy and dignity of the individual and limits the power of others to interfere with that person's body.[448]

448 I should say that the defendant sought to place a degree of reliance upon authorities such as Rogers v Whitaker ('Rogers') in support of the proposition that consent will be established if the patient is 'advised in broad terms of the nature of the procedure to be performed'.[449]

449 It is, however, plain enough from the relevant passage in Rogers that such advice will be sufficient to answer an allegation that the risks inherent in a medical procedure have not been disclosed and, in such an instance, only an action in negligence will be open. It does not follow that when a patient is advised in broad terms of the nature of a procedure it must thereafter be concluded that the patient consented even if he or she did not assent to the procedure freely and voluntarily.

450 Somewhat in passing, the defendant also referred to the issue of onus in an assault and battery claim. It is fair to say that different views have become apparent.[450]

451 In writing, the defendant accepted that it bears the legal burden of proving consent in a claim in battery.[451] In address, however, senior counsel for the defendant sought to soften the effect of that concession by submitting that 'regardless of with whom the burden rests ... [the Court] ought be satisfied on balance that, in fact, consent was obtained'.[452]

452 It is presently unnecessary to grapple with the issue of onus in respect of the plaintiff's claim in assault and battery as the plaintiff bears the onus in the relevant part of her claim in negligence. For that reason, I will presently approach the issue on the basis that the plaintiff must establish, on the balance of probabilities, that she did not freely and voluntarily consent to the vaginal examination performed by Ms Alexander.

453 Perhaps unsurprisingly, there are few cases in which the issue whether consent was given freely or voluntarily has fallen for consideration in circumstances much like the present.

454 At a high level, Latter v Braddell ('Latter') might be thought to be of some present relevance.[453] The plaintiff was a domestic servant and her mistress requested that a doctor examine her in order to determine whether she was pregnant. The plaintiff objected to the examination, but undressed as directed by the doctor and submitted to the examination. The plaintiff sued the master, mistress and doctor for assault. The trial judge directed a verdict for the master and mistress and a jury found for the doctor.

455 The separate reasons of the members of the Court of Appeal are each very short. Bramwell LJ, with whom Baggallay LJ agreed, mused that while the plaintiff 'may have submitted under an erroneous notion of law', the decision below was correct because 'the truth is, [the plaintiff] submitted' to the examination. All members of the Court seem to have attributed significance to the fact that there was no evidence of any 'fear of violence'. The appeal was dismissed.

456 As I have indicated, the reasoning in Latter is extremely brief and, perhaps, very much of its time rather than ahead of it. Whatever else might be said about Latter, the various reasoning is at least consistent with the notion that submission induced via fear of harm might not be consent.

457 In Norberg v Wynrib ('Norberg'), a doctor prescribed an addictive drug (Fiorinal) to a patient in exchange for sexual activity.[454] The patient sued in battery, negligence and breach of fiduciary duty. The claim in battery failed because the trial judge found that the plaintiff's addiction did not deprive her of the ability to reason and so her consent to sexual activity was voluntary. Her other claims failed for other reasons. An appeal to the British Columbia Court of Appeal was dismissed. The plaintiff appealed to the Supreme Court of Canada.

458 All members of the Supreme Court allowed the appeal, but different reasons emerged.

459 La Forest J, with whom Gonthier and Cory JJ agreed, considered the central issue to be whether, in the circumstances, the 'defence of consent can be raised against the intentional tort of battery'.[455]

460 In that regard, his Honour considered the Courts below to have erroneously considered that consent may be vitiated only in circumstances in which it was obtained by force or threat of force or given under the influence of drugs, or if obtained by fraud or deceit as to the nature of the defendant's conduct. In that connection, his Honour referred with approval to the following passage from a learned text -

A man cannot be said to be 'willing' unless he is in a position to choose freely; and freedom of choice predicates the absence from his mind of any feeling of constraint interfering with the freedom of his will.[456]

A "feeling of constraint" so as to "interfere with the freedom of a person's will" can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties.[457]

462 I pause to note that the above passage was referred to more recently, and with evident approval, by Bell P, with whom Payne JA and Emmett AJA relevantly agreed, in Gorman v McKnight ('Gorman').[458]

463 In any event, in Norberg, La Forest J considered similar issues in other contexts, including the law of contract and the criminal law of sexual assault. In respect of tort, his Honour stated -

... for consent to be genuine, it must be voluntary. The factual context of each case must, of course, be evaluated to determine if there has been genuine consent.[459]

... in my view, the defence of consent cannot succeed in the circumstances of this case. The appellant had a medical problem - an addiction to Fiorinal. Dr Wynrib had knowledge of the problem. As a doctor, he had knowledge of the proper medical treatment, and knew she was motivated by her craving for drugs. Instead of fulfilling his professional responsibility to treat the appeal, he used his power and expertise to his own advantage and to her detriment. In my opinion, the unequal power between the parties and the exploitative nature of the relationship removed the possibility of the appellant's providing meaningful consent to the sexual contact.[460]

465 Sopinka J disagreed with the approach taken by La Forest J on the issue of consent. His Honour considered the issue to be determined by the professional duty arising out of the relationship of doctor and patient based essentially in contract. That said, in respect of the issue of consent, his Honour stated -

In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach ... Certain relationships, especially those in which there is a significant imbalance of power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent. However, the question of consent in relation to a battery claim is ultimately a factual one that must be determined on the basis of all the circumstances of a particular case.[461]

466 Again, much of the above passage was referred to with evident approval in Gorman.[462]

467 Returning finally to Norberg, McLachlin J (as her Honour then was), with whom L'Heureux-Dubé J agreed, considered that the doctrines of tort and contract did not capture the 'essential nature of the wrong done to the plaintiff'. Her Honour favoured the principles applicable to fiduciary relationships.[463]

468 In Moon v Whitehead ('Moon'),[464] the respondent and appellant had sexual intercourse when sharing an apartment while attending an interstate work conference. The respondent sued in assault and battery. The issue was consent.

469 At trial before a Master, there was detailed evidence from the appellant and respondent concerning their relationship and dealings over a significant period, including in the period immediately prior to, during and after the incident of sexual intercourse.

470 The Master considered aspects of the appellant's evidence to have been inconsistent with a prior statement and also considered that he had deliberately falsified an account given to an insurance investigator. By contrast, the Master considered the respondent to have been an honest and truthful witness.

471 As subsequently described by the Court of Appeal of the Australian Capital Territory (Murrell CJ and Burns J, Penfold J agreeing) -

The Master accepted the respondent's evidence that, in Sydney, she had reminded the appellant of their agreement not to engage in any further sexual activity and that she rebuffed physical advances he made before they returned to their apartment on the night of 13 August 2007. He further accepted that the appellant had entered the respondent's bathroom naked when she was in the shower, and that she had told him to leave. He also accepted that the respondent closed the door of her bedroom immediately before going to bed. The Master then found that the appellant came into her bedroom uninvited and "forced himself upon her". He accepted that the respondent became resigned to her fate and did not fight him off, and that she kissed him and played a part in the removal of the pyjamas and underpants. He accepted that the appellant was probably misled by her behaviour into assuming that she was consenting to have sexual intercourse with him. The Master, however, made a clear finding that the respondent was not consenting to the sexual activity which occurred "after the first goodnight kiss, to which she agreed under duress to get rid of him'. He accordingly found that the appellant committed a trespass to the respondent's person, entitling her to damages.[465]

472 I should, perhaps, add that the respondent appears to have given evidence that -

... she was scared of the appellant and was worried about the possibility of losing her job. She said that the appellant continued to kiss her, and that she was pinned under his weight and could not hold him up. She said that by then she felt resigned, as the appellant had not left as requested. She said that her pyjama top came up around her neck and over her mouth, causing her to have difficulty breathing. She then removed the pyjama top. Sexual intercourse then took place.[466]

(a) the trial had been conducted 'effectively ... as an action in battery'; and

(b) the appellant accepted that he bore the onus of establishing consent.

474 That said, their Honours rejected the appellant's contention that, as a defence to battery, the question of consent is to be considered objectively.[467] Their Honours confirmed that '[c]onsent may be expressed or it may be inferred from conduct'.[468]

475 In that general connection, their Honours referred to several authorities as well as a learned work entitled The Law of Consent authored by Justice Young of the Supreme Court of New South Wales, writing extrajudicially, and published by the Law Book Company Limited in 1986.

In cases of consent proved by inference, it will often but not inevitably be the case that there was no actual conversation about consent prior to the prima facie tortious acts of the defendant. In some cases, such as the present, there will be direct evidence from the complainant that they did not consent to the interference with their person, but the other party may dispute that evidence and may adduce evidence to establish either that the complainant expressed their consent or that their consent should be inferred from their actions.[469]

[41] ... In the present case, he [the appellant] had to prove on the balance of probabilities on the balance of probabilities that the respondent consented to sexual intercourse. Consent, in this sense, means actual consent and is not established by proving that a reasonable person would have considered that the respondent consented.

[43] We are satisfied that there was ample evidence upon which the Master was entitled to find that the appellant had not satisfied the onus of proving that the respondent had consented to sexual intercourse. There was, of course, the evidence of the respondent herself, which was accepted by the Master. There was evidence of early complaint. There was evidence of [psychological] injury. In addition, there was evidence that the respondent had told the appellant in May 2007 that she was not willing to sleep with him, which she repeated to the appellant in the days leading up to 13 August 2007. In addition, there was the evidence that they agreed to share a two-bedroom apartment in Sydney, with each having a separate bedroom. There was also evidence that, shortly before the events in question, the respondent had rebuffed advances by the appellant after he entered her bathroom while she was showering. It is impossible to say that the finding of the Master that the appellant had not proven that the respondent was consenting to sexual intercourse was against the evidence or the weight of the evidence. This was a case in which credibility was very important, and the Master was clearly in the best position, having seen and heard the witnesses, to assess that issue.

478 It follows that the appeal on liability failed.

479 Finally, as noted, in 1986 the Law Book Company Limited published a learned text authored by Justice Young entitled The Law of Consent. It is presently unnecessary to go to parts of that work, although I might say that I have consulted it.

480 For present purposes it is sufficient to note that 25 years later, in 2011, the Australian Law Journal published his Honour's considered reflections upon various topics addressed in the original work ('Young article').[470]

481 In particular, his Honour observed that in various respects 'social conditions had altered' and that 'the same result does not necessarily follow in 2011 as would have flowed in 1909'.[471]

482 His Honour thereafter addressed the concept of consent, including the dictionary definition, and said that 'a basic element in cases of consent is that the consenter must have a choice as to whether to consent or not or a choice between two or more alternatives of which one must be chosen'.[472]

(a) the difficult distinction between 'hesitant, reluctant, grudging or tearful' consent (to sexual intercourse) and 'mere submission'; and

(b) certain writing in the nature of legal philosophy which suggests that -

... to establish consent, one must find a person who is capable of consent, who is able to make a proper assessment as to whether to consent and who freely and voluntarily does actually consent.[473]

484 Thereafter, his Honour helpfully identified a distinction in the cases, particularly those cases in which 'the coercive factors operating on the person are sufficiently strong to remove the consent from being voluntary'.[474]

485 Then, with respect to assault cases in particular, his Honour identified three categories of cases. The first two categories depend upon the kind of 'hurt' caused. The third category is residual.

486 In connection with the latter, his Honour observed that '[g]enerally ... cases where the consenter is in a position to evaluate the situation and come to a mature decision cause little difficulty'. His Honour also referred to cases in which the consenter has taken 'the lesser of two evils'.[475]

487 In respect of such cases, his Honour later stated, relevantly -

... one must distinguish situations where the person who suffers pain is a free independent person who fully appreciates and accepts what is to occur and the situation where that person is vulnerable and made subject to over much pressure. The problem is often where to draw the line. ...

...

... the prime questions here are, whether the alleged consent was a voluntary consent and whether the alleged consent was vitiated by fraud or mistake.

Dealing with the matter of whether the consent was voluntary, a major problem is how far economic or other pressures will affect the question of consent. The question of pressure is the wild card in this pack. We are all under pressure of one sort or the other whenever we have to make a decision. That should not destroy the validity of those decisions. At some point, however, the pressure becomes so great, that, at least if the other person to the transaction knows of the pressure, the consenter's agreement may be vitiated.

Often the pressure will be trivial, such as the social pressure to do what the rest of the group is doing. This can usually be of no significance. Other pressures, however, may affect the validity of apparent consent. In ordinary life, economic pressure will make us do things that we would rather not do. A person will stand for six hours a day behind a cash register at a supermarket day after day. This is because of economic pressure to earn a wage, however, no one would say that that pressure was illegitimate or that the person's consent to work was not genuine.

There can also be pressure of a non-economic nature where a person has to choose which of two unpleasant scenarios he or she will adopt. A person suffering from a disease may have to choose whether to undergo an unpleasant operation or to avoid that but probably die at an early date. There is pressure, but not illegitimate pressure. A competent person can make a valid choice as to which is the lesser of two evils to which he or she will submit.

There is no universally valid answer to the question what degree of pressure will vitiate apparent consent. Everything will depend on assessing all the circumstances including the capacity and strength of character of the consenter, the economic circumstances, the perceptions of the actor, the information available to the consenter. The cases do seem to give some general guidelines on some aspects of the question.

...

In the end, it is a matter for the tribunal of fact to make the decision as to whether or not there has been valid consent if consent is a defence to the allegation.[476]

488 Thereafter, and of particular present relevance, his Honour stated that -

... so long as there is choice, and the choice is to be made by a person apparently of full capacity, it does not matter whether the choice is between two or more nice consequences, one nice and one not so nice, or two unpleasant sets of consequences.[477]

(a) generally speaking, the common law respects and preserves the autonomy of adult persons with respect to their bodies and those rights can only be altered with the consent of the person concerned;

(b) consent is a state of mind and so means 'actual consent';

(c) the basic elements of consent are whether the person is capable of consenting, whether the person is able to make a proper assessment whether or not to consent and whether the person consents freely and voluntarily;

(d) broadly speaking, consent is shown by what a person says or does or does not say or do and that should be considered in all of the surrounding and relevant circumstances;[478]

(e) that said -

(i) it is important to consider whether the person had a choice;

(ii) the issue is whether the person was in a position to choose freely - consent is not vitiated only by force, threats of force fraud or deceit or incapacity;

(iii) 'relative weakness' or imbalance of power can bear upon whether a person truly consented;

(iv) free and voluntary consent is not the same thing as non-consenting mere submission;

(v) in that regard, a person can become 'resigned to their fate' such that there was, in fact, no true consent;

(vi) there can be a distinction between (1) the situation in which a person freely and independently appreciates and accepts what is to occur and (2) the situation in which the person is vulnerable and subject to 'over much pressure' - the difficulty is often where to draw the line; and

(vii) there is no universally valid answer to the question what degree of pressure will vitiate apparent consent; and

(f) in the end, it is for the tribunal of fact to determine whether or not there was 'valid consent'.

490 I have earlier made findings in respect of many of the events leading up to, during and shortly after the subject vaginal examination.

491 Some of those findings are presently relevant. Indeed, the findings earlier made concerning the circumstances in which the subject vaginal examination was performed shortly after 1:10am might be thought strongly to suggest that the plaintiff did not 'actually' consent. However, having regard to its gravity and importance,[479] I should clearly identify the presently determinative facts and evidence.

492 Having regard to her early experiences of unspeakable domestic abuse, the plaintiff was unquestionably vulnerable.

493 As earlier explained, a vaginal examination in respect of labouring and birth is invasive, uncomfortable and can be painful.

494 The plaintiff was deeply affected by what she witnessed during her sister's experience of labouring and birth and, after herself falling pregnant, was determined not to repeat her sister's experience.

495 To that end, the plaintiff engaged with the process of pregnancy very sincerely and sought to educate herself as much as reasonably possible.

496 Part of that involved applying for and being accepted into the Mamta program and thereafter attending numerous antenatal consultations with several different Mamta midwives. In the course of that process -

(a) the plaintiff sought and obtained reassurance that her experience need not be like that endured by her sister and, specifically, that she need not undergo any vaginal examinations in the course of labouring and birthing unless there was an urgent medical reason to do so and 'informed consent' was given;

(b) in that general connection, the plaintiff prepared a written birth plan specifically directed to that point which was viewed and approved by several Mamta midwives;

(c) the plaintiff was not at any point told that there could be a risk that if she presented to the maternity ward out of hours she would be met with a requirement that she undergo vaginal examination -

(i) in order that, at the very least, she be admitted to the hospital, her Mamta midwife called and any pain medication administered; and

(ii) for no urgent medical reason.

497 The education undertaken by the plaintiff during the antenatal period included reference to the stages of labour and the detection of active labour and none of that indicated that it would be necessary for the plaintiff to undergo a vaginal examination upon presentation at the hospital in order that active labour might be confirmed.

498 In short, the plaintiff had a very specific concern about vaginal examinations which she repeatedly sought to address during the antenatal period in order that, when the time came, it might be approached differently to the manner in which things had unfolded for her sister. It was plain enough in her evidence that the plaintiff thought that she had addressed the issue in advance.

499 In that context, by shortly after 10:30pm on 17 November 2020, the plaintiff had commenced experiencing period of contractions and 'early labour' since about 10am on 16 November 2020 and, on 17 November 2020, was four days overdue.

500 In that general connection, at an antenatal consultation at midday on 17 November 2020, the plaintiff had been told, in substance, that her baby would be coming 'soon' and she reasonably understood that to mean that her baby could be coming that night.

501 At that point, as Mr Gawthrop described it, the plaintiff was 'excited, a bit nervous, but she was excited'.[480] The plaintiff and Mr Gawthrop went home and packed their bags anticipating that the baby could well be born that night.

502 At about the same time, the secondary Mamta midwife, Ms Bailey, had been notified about the plaintiff's condition and anticipated that she could be called out that night.

503 At 5:45pm on 17 November 2020, the plaintiff had a 'show', which was reported to the hospital in a call made by Mr Gawthrop at about 7:18pm. At that point, the plaintiff's contractions had been increasing in strength during the preceding hour and a half.

504 Based upon the information reported by Mr Gawthrop, a hospital midwife advised him that they should come in to the hospital if there were three or four contractions lasting 60 seconds in duration in each ten minute period, 'or if [it] becomes too uncomfortable at home and [she is] needing something for pain relief', which, I would infer, he subsequently conveyed to the plaintiff.

505 By 10:30pm, the plaintiff was experiencing contractions of 60 seconds every three minutes. Mr Gawthrop had been recording data relating to the regularity of the contractions on his phone, and the app had notified him that a threshold had been reached.

506 Mr Gawthrop telephoned the hospital again and this time spoke with Ms Alexander. Mr Gawthrop answered Ms Alexander's questions concerning the plaintiff's condition and she suggested that they 'come up to the ward'.

507 The plaintiff and Mr Gawthrop believed that they were going to hospital for the birth, and took their bags with them when they left home. Mr Gawthrop said that he recorded their departure on his phone and that it was 'very exciting'.[481]

508 Having regard to her condition, the plaintiff had formed the view that she was already in active labour and, as a first time mother, she must have been apprehensive. That said, she is also likely to have been at least as excited as Mr Gawthrop.

509 After arrival at the hospital at about 11:05pm on 17 November 2020 -

(a) Ms Alexander greeted the plaintiff and Mr Gawthrop, but declined Mr Gawthrop's offer of the birth plan, which she said that she had read, as well as the data recorded on his phone;

(b) shortly thereafter, the plaintiff and Mr Gawthrop were placed in the birthing suite;

(c) the evidence tends to suggest that Ms Alexander was the only midwife who attended the birthing suite between 11:05pm and about 1:10am;

(d) in the course of her initial assessment of the plaintiff, Ms Alexander asked her to undergo a vaginal examination in order that it might be determined whether she was in labour;

(e) the plaintiff declined and asked for Ms Alexander to call the Mamta midwife and Ms Alexander responded that the Mamta midwife could not be called without the plaintiff undergoing a vaginal examination;

(f) Ms Alexander did not identify any 'urgent medical reason' for the requested vaginal examination;

(g) at that point and, indeed, at no relevant point between 11:05pm and about 1:10am, was there any concern in respect of the health of either the plaintiff or her child;

(h) Ms Alexander departed, leaving the plaintiff and Mr Gawthrop in the birthing suite; and

(i) having earlier been excited albeit somewhat apprehensive, the plaintiff became confused and stressed.

510 During the period of about an hour and a half that followed, Ms Alexander returned to the birthing suite on at least half a dozen occasions and, each time, in substance, asked whether the plaintiff was 'ready to' or would 'now' undergo the requested vaginal examination.

511 At no point during those exchanges was any 'urgent medical reason' identified and it was essentially implicit in the evidence that there remained no concern about the plaintiff's health and that of her unborn child. On each occasion prior to about 1:10am, the plaintiff denied the request.

512 In the course of those exchanges, a sequence of issues arose and, in respect of each, Ms Alexander said that the plaintiff was required to undergo a vaginal examination. That is, in order that -

(a) the Mamta midwife might be called;

(b) the plaintiff might have a bath;

(c) the plaintiff could be administered pain medication for her back pain; and

(d) the plaintiff could be admitted to the hospital.

513 At the same time, the plaintiff's contractions were progressing, her back pain was worsening and she knew, at least in a general sense, that her baby was coming.

514 Further, as the above sequence of requirements unfolded, the plaintiff became increasingly apprehensive and panicky.

515 In the midst of all of that, at about 12:25am, Ms Alexander escalated the issue to Ms Welch. Ms Alexander said that she had a 'gut feeling', as the plaintiff had repeatedly refused the requests for vaginal examination.

516 With Ms Welch, Ms Alexander said that she was 'really feeling like going against hospital policy' and calling in the Mamta midwife. Ms Welch said that Ms Alexander could not 'break hospital policy' and effectively directed her to continue to enforce what was believed to be the effect of it. From that point, if not before, it is likely that Ms Alexander became increasingly implacable in her dealings with the plaintiff and Mr Gawthrop.

517 In that regard, the notes record that, at 12:30am, the plaintiff was out of the shower and complaining of back pain. It is likely that Ms Alexander then either said or reiterated that the plaintiff could not be given any pain medication unless she underwent a vaginal examination.

518 The relevant maternity ward note records that the plaintiff 'remains declining VE. declining amnisure' and that she was experiencing three contractions lasting 40-50 seconds within 10 minutes.

519 It may be noted that unlike the earlier note made shortly after the plaintiff and Mr Gawthrop arrived at the hospital, Ms Alexander's note at 12:30am does not record that the plaintiff's contractions were either moderate or 'irregular'.

520 In any event, at about 1:10am, the plaintiff consented to self-administering an AmniSure test believing that it might avoid the requested vaginal examination. She remained 'very keen' to avoid a vaginal examination. She said that there was 'a lot of pressure'.[482]

521 The result of the AmniSure test was positive, which meant that it was confirmed that the plaintiff's waters had broken, but Ms Alexander said that the plaintiff still had to undergo a vaginal examination. The plaintiff was 'very upset'.[483]

522 At about that point, Mr Gawthrop 'pieced it all together'. In particular, he said 'we'd been there for, like, two hours' and he had come to realise that 'we actually weren't admitted'.[484]

523 In that connection, Mr Gawthrop said that it became apparent that -

Mamta wasn't going to be called. Ah that support that we were expecting, or part of the Mamta program. There was no pain relief, non-opioid in that instance, that would be available. Um Larissa said to me at one point, 'No-one's coming'. Where, you know, we felt like we were trapped in there [the birthing suite], and when I realised that ... I was trying to internalise it... I kept that inside because I didn't want to express that to Larissa. I was trying to help keep her calm.[485]

524 Mr Gawthrop confirmed that, at that point, his wife was 'very distressed'.[486]

525 Mr Gawthrop left the birthing suite to speak with Ms Alexander at the nurses station. He gave evidence that -

... I said to Debra, "I just want to be clear with something. You're not going to call our Mamta midwife, you're not going to admit us to the ward, ... and you're not going to provide any pain relief unless Larissa has a VE". And so I laid that situation out to her and ...she looked at me, and she said, "Yes, that's correct". And I just remember feeling how wrong that was, because I thought maybe if I did that, she would see how that was laid out and be like, "oh, that actually sounds pretty messed up. We'll change and we'll call your Mamta midwife or something.[487]

526 Mr Gawthrop gave evidence that he 'couldn't believe it' and 'felt an overwhelming sense of feeling trapped'.[488]

527 Mr Gawthrop returned to the birthing suite and -

... I said to Larissa that nothing's happening and they're not going to do anything unless you have the VE. And she was gutted. And I just - I wish I didn't have to say that to her.[489]

She ...was defeated... [S]he said, "I don't want - I don't want it, I don't want it". And I said "I know". And I said, "They're not ...going to do anything. ".[490]

529 Ms Gawthrop said that the plaintiff said 'Fine', but that he understood that 'she didn't want it' [ie, the vaginal examination].[491]

530 Mr Gawthrop returned to the nurses station and said to Ms Alexander that 'She'll ... have the VE'.

531 In that general connection, Mr Gawthrop said that in the moments leading up to the vaginal examination his wife was 'a mess' and that she was 'incredibly distressed about the situation that she was in'. He said -

She was crying... [S]he was adamant, she didn't want the VE. And Debra performed the VE...[492]

532 It was plain from Mr Gawthrop's evidence that during the vaginal examination he had observed the plaintiff crying. He also said 'She didn't want it'.[493]

533 I have set out the relevant parts of Mr Gawthrop's evidence in some detail because he struck me as a reliable witness to the particular events as they unfolded.

534 That said, of course, the present issue is the plaintiff's state of mind at the relevant time and not what Mr Gawthrop thought or felt (or, for that matter, what Ms Alexander thought or felt). However, I consider the relevant evidence of Mr Gawthrop to speak clearly to the sequence of events that led to his observation that the plaintiff appeared 'defeated' and also to his observation that she was crying and 'didn't want it'.

535 For her part, the plaintiff said at the point at which they had been at the hospital for 'coming up to two hours' -

I was really upset. I ... was just under so much pressure, so much pressure, and at that point, ... I didn't feel like I ... [had] any rights to ... myself.[494]

536 It was at that point that Mr Gawthrop went to speak with Ms Alexander and, when he returned to the birth suite, the plaintiff said -

He came in the door, and he said, "Larissa, I think you're gonna have to get this done. They're - she's - they're not gonna do anything for you... You're not gonna get [the] Mamta midwife [called]. You're not gonna be admitted".[495]

I felt very defeated and so bullied and just so coerced into doing something I didn't want to do - a very invasive procedure - and I said to Jono, "Okay, well, if it gets - if it gets me ... some help, and he's coming. I know my baby is coming. I need help".[496]

538 Specifically in respect of the subject vaginal examination, the plaintiff said -

(a) when Ms Alexander came into the room, the plaintiff said 'I really don't wanna do this' and was crying;

(b) she felt that Ms Alexander was 'strongarming and pressuring' her;

(c) she made 'one last plea' about the Mamta midwife and Ms Alexander said 'We need to do a VE';

(d) she was given no medical reason for the procedure and there was no threat to the health of her unborn child;

(e) she said to Ms Alexander, 'I'll do it';

(f) she was 'very distressed' and was crying and shaking;

(g) Ms Alexander asked her to remove her underwear and was sanitising her hands and said 'Get on the bed' (which the plaintiff did);

(h) she was 'really upset';

(i) Ms Alexander was 'stone cold' and 'just did not flinch at my obvious distress';

(j) Ms Alexander said 'open your legs';

(k) the vaginal examination was 'really, really painful'; and

(l) Ms Alexander did not show any empathy until after it was over and 'her demeanour completely changed'.[497]

539 As earlier noted, I do not accept the defendant's submission that the presently relevant evidence of the plaintiff and Mr Gawthrop was 'vague and inexact'. Nor do I accept the implicit suggestion that it should not be accepted.

540 I have obviously taken a different view of much of the evidence of Ms Alexander. That said, there does seem to me to be considerable present significance in the following evidence given by her in chief -

(a) that she had developed a 'gut feeling' which caused her to escalate the issue of vaginal examination to Ms Welch;[498] and

(b) that, in respect of the vaginal examination she later performed -

... I know she [the plaintiff] wasn't keen on vaginal examination so I did it as quickly as possible ... . I didn't complete a full examination I just did [it] as quick as I could to get just the bare amount of information necessary.[499]

541 In respect of the former, Ms Alexander confirmed that her 'gut feeling' was that the plaintiff and Mr Gawthrop were not 'budging' on the issue of the vaginal examination which, of course, must have been an impression formed by reference to what the plaintiff and Mr Gawthrop were saying as well as their respective demeanours.[500]

(a) Ms Alexander's stated impression that the plaintiff 'wasn't keen on a vaginal examination' is likely to have been based, at least in part, on what the plaintiff was saying or doing at the time;

(b) that impression seems also to relate to the very point at which Ms Alexander was performing the vaginal examination, as it caused her to 'just get the bare amount of information necessary';

(c) which is also more likely to be correct as -

(i) that element of her evidence tumbled out in the relatively agreeable atmosphere of examination in chief;

(ii) the associated maternity ward note states, relevantly, 'VE. 5cm / 1cm thick' (which means that Ms Alexander found the cervix to have been five centimetres dilated but still one centimetre thick);

(iii) Ms Alexander confirmed that, in fact, active labour should not really be diagnosed until the cervix is 'paper thin'; and

(iv) accordingly, the plaintiff had been 'just on the cusp' so it had been 'a generous call' to record that she was in active labour.[501]

543 Whilst it might be said that later, in cross-examination, Ms Alexander sought to dial back some of the above, she was then quite obviously on the defensive and seeking broadly to deny that she could have pressured or coerced the plaintiff.[502]

544 Even in that setting, however, Ms Alexander confirmed that in 'getting the bare amount of information necessary' she had essentially been going through the motions as quickly as possible in order to 'get the midwife in'.[503]

545 I have earlier referred to the likelihood that during the period leading up to the vaginal examination, Ms Alexander's manner became increasingly fatalistic and implacable and, accordingly, that her interactions with the plaintiff and Mr Gawthrop became increasingly brief and transactional.

546 While Ms Alexander sought to suggest that, among other things, she had continued to generate rapport with the plaintiff and Mr Gawthrop,[504] and that she had sought to reassure the plaintiff and guide her,[505] the evidence of the plaintiff and Mr Gawthrop was obviously to quite a different effect and, in any event, after the initial assessment, any such endeavours must have been very limited.

(a) Ms Alexander believed that she was required to follow hospital policies;[506]

(b) the plaintiff having requested that the Mamta midwife be called, Ms Alexander believed that a vaginal examination was 'mandatory';[507]

(c) Ms Alexander also seems to have believed that it would have been necessary for the plaintiff to undergo a vaginal examination if she sought to return home;[508] and

(d) when the issue of vaginal examination was escalated to Ms Welch, she effectively instructed Ms Alexander to 'follow policy'.[509]

548 I should add that, remarkably, when asked about the plaintiff having finally consented to the AmniSure test, Ms Alexander replied -

... I had no ... knowledge of why she chose to consent, at any particular time, or decline.[510]

549 While that answer might be thought to be directed particularly to the issue of the AmniSure test, when given, it appeared to speak to a rather wider stance adopted on the night by Ms Alexander.

550 In short, from Ms Alexander's perspective, there seems to have been little to discuss and that state of mind must have affected her dealings with the plaintiff and Mr Gawthrop, particularly after the direction given by Ms Welch.

551 During the period of about 45 minutes that followed Ms Welch's direction, the requirement of vaginal examination was -

(a) imposed, reinforced or finally revealed in relation to at least the questions of pain medication and admission to the hospital;

(b) again re-iterated following the plaintiff having hoped that the AmniSure test would avoid it; and

(c) confirmed as, in effect, non-negotiable, after Mr Gawthrop's trip to the nurses station to 'lay it out'.

552 In my view, in a practical sense, those events had the combined effect of -

(a) corralling the plaintiff at a point at which she was labouring, tired, in pain, apprehensive about the imminent arrival of her baby and increasingly in distress;

(b) creating and reinforcing an impression that, albeit that neither the plaintiff nor her baby were said to be at risk, every identified potential step in her care at that point required that she undergo a vaginal examination;

(c) ultimately causing the plaintiff to collapse in defeat and say 'I'll do it'.

553 I should make it clear that I do not mean to suggest that Ms Alexander did not believe, in at least one narrow and fragile compartment of her thinking, that the plaintiff was consenting to the vaginal examination that followed.

554 Indeed, narrowly compartmentalised thinking seems to me to be the most likely explanation for matters such as Ms Alexander's later handover note to the effect that the plaintiff '[c]onsented to VE after 2 hrs on ward'[511] as well as her evidence at trial concerning the plaintiff's verbal and 'implied' consent.

555 That said, Ms Alexander's thinking seems likely to have been both stressed and muddled and, of course, whatever might be said about Ms Alexander's state of mind and associated actions, it does not necessarily follow that, at the time, the plaintiff was 'actually' consenting.

556 In that general connection, the features apparent in the events described above seem equally to have been evident during the vaginal examination that followed. In particular -

(a) the plaintiff made a final plea, which was swiftly rebuffed;

(b) the plaintiff again caved and said 'I'll do it' and went through the physical motions as directed;

(c) at the same time, she was crying and said, more than once, 'I don't want this'; and

(d) conformably with that state of affairs, Ms Alexander knew that the plaintiff 'wasn't keen' and so got 'just the bare amount of information necessary'.

557 However, all of that seems to have occurred in order that Ms Alexander might 'tick a box' (albeit that, strictly speaking, it was also said that the box perhaps ought not to have been ticked) and one result of the box being 'ticked' was that the plaintiff could be admitted to the hospital. As Ms Alexander explained -

The ... difference is, if I can use, like, a bucket of money, it's for funding. So an admission gathers a certain amount of funding that's for less than four hours and they may do home. Or an admission is, we're here until we're discharged to go home with the baby. So it's just the funding. It's just the difference in funding.[512]

558 To some, the above events might be considered remarkable. To me, they present as desperately sad for everyone unlucky enough to have been caught up in them.

559 Notwithstanding that aside, it will be evident that there are many elements of the above that are presently significant, including what appears to have been a knowledge and therefore power imbalance between the plaintiff and Mr Gawthrop on the one hand, and Ms Alexander and Ms Welch, on the other.

560 However, the most striking aspect of all of the above is the overwhelming impression that must ultimately have been conveyed to the plaintiff that she had no choice other than to submit to a vaginal examination. In that regard, it is at no point apparent that any advice was given concerning at least the following -

(a) what any other option might have been other than to simply submit to a vaginal examination;

(b) having regard to the plaintiff's presentation, what the future course of her labour might be expected to be;

(c) what risks the plaintiff or her baby might face in the near future; and

(d) whether, she might be able to simply remain in the birthing suite under the care of the hospital midwives (whose standard of care was said to be no different to that provided by a Mamta midwife), presumably until she either commenced pushing and/or a pressing medical reason emerged (as it later did, more than once).

561 In short, the circumstances to which I have referred indicate relatively plainly that the plaintiff's stated birth preference was disregarded and circumstances thereafter conspired to pressure and corral her such that she became dispirited and distressed over the course of about two hours in the middle of the night when she was apprehensive, labouring and in pain.

562 As explained, circumstances seem also to have conspired to cause Ms Alexander not to appreciate the present significance of the plaintiff's crying and pleas that she did not want 'this'.

563 Very importantly, and throughout it all, the plaintiff seems to have been offered no choice other than to undergo that which she consistently declined.

564 In that bleak combination of circumstances, the plaintiff was finally defeated and caved in and submitted to an unwanted vaginal examination.

565 I am, of course, mindful of the gravity of such a finding. However, the circumstances to which I have referred establish that the plaintiff was not freely, voluntarily and therefore actually consenting when the vaginal examination was performed. It follows that the plaintiff's claim in assault and battery must be accepted.

566 I should add, for completeness, that in Moon, the Court of Appeal also looked to subsequent acts as bearing upon the question whether the respondent in that case had been actually consenting. If that is done in the present instance it seems to me to lend further weight to the correctness of the present finding.

567 In that regard, as earlier noted, at about 3:25am the plaintiff consented to a further vaginal examination performed by Ms Bailey and the plaintiff gave evidence of a reaction to that examination in the nature of a 'seizure'. She connected that reaction to her apprehensions arising from the vaginal examination performed by Ms Alexander a little over two hours earlier.

568 Albeit that the relevant progress note suggests that the plaintiff's reaction might have been very shortly after the examination rather than during it, the precise timing is not presently significant. The point is that, albeit that she consented to the vaginal examination performed by Ms Bailey, the plaintiff's reaction to it was traumatic and indicative of subsisting distress associated with the earlier event.

569 I should also refer briefly to the home visit by Ms Bailey as well as the subsequent 'feedback' process.

(a) Ms Bailey confirmed that the plaintiff and Mr Gawthrop had been upset and felt that Ms Alexander had pressured the plaintiff into undergoing a vaginal examination;[513]

(b) in her subsequently emailed 'feedback' to the hospital, the plaintiff said that she had been extremely upset and that the vaginal examination had been 'very coercive' and that she had not been given any other choice;[514]

(c) Ms Pitson subsequently spoke with the plaintiff by telephone and recorded that the plaintiff felt that her wishes had not been respected and that she had been forced and 'strong armed';[515] and

(d) the subsequent letter to the plaintiff from Ms Pitson and Ms Percival stated that it was 'certainly not acceptable that you felt coerced into having a vaginal examination' without expressing any doubt about the correctness of the underlying proposition.[516]

571 As I have indicated, the contention that the plaintiff was not consenting was also relied upon in her claim in negligence.

572 In that context, the contention was that the plaintiff had not given 'informed consent', which was a link to alleged non-compliance with the terms of the defendant's Informed Consent Policy.[517]

573 It was clear enough that the defendant's pleaded defence under s 59 of the Wrongs Act 1958 (Vic) ('Wrongs Act') could not operate in answer to a finding of the present kind.[518]

574 It may presently be accepted that the defendant's Informed Consent Policy bore upon the applicable standard of care.

575 It will be apparent from some of the earlier extracted parts of that policy that, at the very least, it required that -

(a) consent 'be given voluntarily';

(b) '[t]he health professional ... must not exert pressure on the patient'; and

(c) 'a genuine choice must be offered'.

576 It follows from my earlier findings that the defendant breached the standard of care defined by its own policy.

577 As to causation, it is presently sufficient to say that -

(a) if the plaintiff had been permitted to continue to decline the requested vaginal examination, it is most likely that she would simply have continued to be cared for by the hospital midwives in the birthing suite until pushing commenced;

(b) alternatively, if the issue had been elevated to Ms Pitson, Ms Percival or another member of hospital staff at a similar level of seniority, the plaintiff's Mamta midwife would have been notified and, if that had occurred, the evidence was that Ms Bailey would have attended;

(c) strictly, the hospital policies did not prevent the plaintiff from being administered non-opioid pain medications; and

(d) more broadly, if the Safer Care Victoria guidelines had been consulted it would have been apparent that -

(i) 'Admission into hospital should not be determined solely by active labour being identified, but by the woman's individual needs';

(ii) 'Labour and birth are normal physiological processes. There should be no intervention in that process without a valid reason'; and

(iii) 'Cervical dilatation should not be the sole determinant of safety to return home or admission for ongoing care. An assessment of contractions and the woman's behaviour and wishes are important considerations'.

578 It follows that if the plaintiff's wishes had been respected it is most likely that, one way or another, she would have been appropriately cared for and thereby avoided injury.

579 I should add that even if a different view were taken in respect of the issue of consent or 'informed consent', at the very least, the plaintiff's claim in respect of negligence in the nature of what was described as 'dual messaging' must plainly be accepted.

(a) reasonable care required that the plaintiff be warned or advised in respect of material risks relevant to her anticipated period of care and treatment in the hospital;

(b) as earlier noted, during the sequence of antenatal consultations, the plaintiff sought and obtained specific reassurance in respect of her concerns and written birth preferences directed to vaginal examinations;

(c) in that regard, the birth plan stated quite plainly that the plaintiff declined all vaginal examinations unless there was an urgent medical reason to do so and 'informed verbal consent' was given;

(d) in the circumstances, I accept that reasonable care required that -

(i) the plaintiff be advised of the risk that hospital policies could be said to require that she undergo a vaginal examination when there was no urgent medical reason for it; and

(ii) the plaintiff should not be placed in a position in which she believed there was no risk that a vaginal examination might be requested and required when there was no urgent medical reason for it;

(e) in that connection, Ms Alexander and Ms Bailey each essentially confirmed that, in the circumstances, the plaintiff should have been appropriately advised during the antenatal period;[519]

(f) as earlier noted, neither the plaintiff nor Mr Gawthrop knew or ought reasonably to have known that there was any risk of the imposition of a requirement that the plaintiff undergo a vaginal examination without urgent medical reason;

(g) the plaintiff and Mr Gawthrop attended the birthing suite at 11:05pm on 17 November 2020 and the plaintiff was subsequently required to undergo a vaginal examination without any urgent medical reason; and

(h) in the circumstances described, the defendant negligently failed to ensure that the plaintiff was properly advised during the antenatal period.

581 I should add that, by s 60 of the Wrongs Act, the defendant's defence pleaded by reference to s 59 is no answer to the present aspect of the plaintiff's claim.

582 In respect of causation, it is sufficient to say that -

(a) as noted, the proper construction of the relevant hospital policies is open to some debate and, in any event, their relevant application does not appear to have been wholly uniform;

(b) in the circumstances, if the plaintiff's specific birth preference had been considered and raised in advance with, for example, Ms Pitson, Ms Percival or a similarly senior member of hospital staff, it could have been noted in the plaintiff's 'summary sheet'[520] that she was not to be required to undergo a vaginal examination before her Mamta midwife was called;

(c) if that had occurred, it does not seem remotely likely that the present impediment would have been raised; and

(d) more broadly, as I have noted, the Safer Care Victoria guidelines and the hospital policies themselves addressed the respective issues of admission to the hospital and pain relief.

583 In short, but for the defendant's negligence in failing to ensure that the plaintiff was appropriately advised and warned during the antenatal period, she would have avoided subsequent injury.

584 For completeness, as earlier noted, the plaintiff put her case in negligence in several further and distinct ways. Save to say that, in my view, there is much to be said for the plaintiff's contention that the defendant negligently failed to respect her written birth preferences, it is unnecessary to address and determine those further contentions.

(a) the plaintiff's claim in assault and battery must be accepted; and

(b) in at least two distinct and different respects, the plaintiff's claim in negligence is also made out.

(a) general damages;

(b) special damages agreed in the sum of $5,288.55; and

(c) aggravated damages.

587 The claim for special damages relates to five attendances upon a general practitioner and 22 sessions with a psychologist. It is anticipated that a repayment to Medicare will be necessary. No claim is made in respect of any such expenses into the future.

588 As to general damages, each party ultimately accepted that, in the present instance, no different approach should be taken to the assessment of damages for assault and battery, on the one hand, and negligence, on the other.[521]

589 The plaintiff and Mr Gawthrop gave evidence about the plaintiff's condition before and after the subject vaginal examination.

590 The plaintiff, in particular, was closely cross-examined about a wide range of topics intended to cast doubt or new light upon her evidence in chief. I do not regard any of that as having materially displaced the essential substance of her evidence.

591 As indicated, the plaintiff and Mr Gawthrop were essentially honest and reliable witnesses. In my view, their evidence concerning the subsequent and subsisting effect of the subject vaginal examination may generally be accepted.

592 In light of the exceptionally personal, intimate and 'raw' nature of some of that evidence, I will endeavour to refer to it in only the most general of terms.[522]

593 The plaintiff gave evidence concerning matters such as her childhood experience of domestic violence and the suicide of her brother. She was open about the deep scars left by that experience. Prior to the birth of her first son, she obtained counselling and had a short period on antidepressant medication. Unsurprisingly, the topic has also featured during subsequent treatment.

594 I accept that, before the birth of her first son and since, whilst the effects of those matters have plainly been substantial, they have not had any significant impact upon the plaintiff's relationship with her husband or capacity to work.

595 Otherwise, the plaintiff and Mr Gawthrop gave evidence of her condition prior to the subject vaginal examination. I accept their evidence that their relationship was then 'great' and essentially uncomplicated.

596 By contrast, the plaintiff and Mr Gawthrop each gave evidence of her ongoing and subsisting trauma since the subject vaginal examination.