Waine v Carnival PLC t/as P&O Cruises Australia

District Court of NSW|2022-07-25

A. Introduction

Courtney Waine suffered a miscarriage during and after a cruise supplied by the defendant, Carnival PLC trading as P&O Cruises Australia. She suffered heavy bleeding and discharge of the products of conception whilst in Auckland Airport on her way to Australia, which resulted in her being hospitalised in Auckland for two days. She sues Carnival for damages, including substantial psychological damage, arising from that event.

B. Issues

Ms Waine's claim is made in negligence, in contract and for misleading conduct under the Australian Consumer Law. Each cause of action depends upon proof of negligent medical care provided to Ms Waine by Carnival, principally by the ship's doctor, Dr Warren Pretorius, and the damages that resulted. Carnival did not dispute a duty of care, but denied any breach of that duty, and denied that any conduct of it or Dr Pretorius caused damage. These are the primary issues in the proceedings.
As to breach of duty, Ms Waine pleaded 18 particular allegations of negligence.1 All were denied. [1]
As neither the plaintiff nor the defendant expressly date the conduct alleged, it is not clear if the plaintiff's allegations and the defendant's denials are dealing with the same event.
However, the evidence and submissions of the parties appeared to focus on: 1. In respect of Ms Waine's consultation with Dr Pretorius on 4 April 2018: 1. Whether Dr Pretorius diagnosed and advised Ms Waine of a threatened miscarriage; [2] 2. Whether Dr Pretorius advised Ms Waine about the need for an urgent ultrasound, that she had a: "high-risk pregnancy, with risk of loss of baby and risk of harm to the mother including severe bleeding…uncontrolled bleeding and infection, and should [she] pass the products of conception [it would be] incomplete and would require further surgical treatment"; [3] that "severe or uncontrolled bleeding, could occur suddenly, without warning, and at any time"; [4] that the ship had limited resources to deal with those possible complications and that there were significant risks with her continuing the cruise; [5] and of the medical facilities and treatment available in Noumea. [6] 1. Whether Carnival's duty of care obliged it to have an ultrasound facility on the ship [7] and to arrange an emergency evacuation of Ms Waine immediately after she was examined by Dr Pretorius. [8] 1. In respect of the contact on 6 April 2018: 1. Whether Dr Pretorius had a duty to and did discuss with Ms Waine the options for her, namely, advise of the risks and advisability of Ms Waine of: 1. staying in Noumea until the products of conception were discharged; 2. obtaining a dilation and curettage ("D&C") [9] or receiving an oxytocic in a hospital [10] in Noumea, including the quality of that treatment; [11] 3. travelling home urgently to Australia; [12] and 1. Whether Ms Waine had been cleared to fly without nursing or medical assistance.

C. Background

There are some differences in the accounts of Ms Waine and Dr Pretorius.

(a) Ms Waine's account

Ms Waine is a 40-year-old mother of one son, Dominic, in his second year of school. She was trained as a nursing assistant in aged care two decades earlier, but had no training with pregnancies. [13] When Dominic was aged about one, her husband, Scott, and her sought to have another child. She became pregnant in about April 2017, but due to a particular genetic abnormality in the foetus, it did not survive the first trimester of the pregnancy and she suffered a miscarriage.
Later that year, in about October 2017, [14] she again became pregnant. Tests to rule out the genetic abnormality that afflicted her earlier pregnancy unfortunately revealed the same problem she had earlier suffered, [15] and in accordance with medical advice, the pregnancy was terminated. [16]
These two miscarriages caused some sadness. [17] Ms Waine had brief psychological counselling after each such event. [18] Ms Waine sought, she said, to try to get some joy back in her life. [19] In late 2017, she booked a cruise with Carnival from Sydney to Noumea, New Caledonia for herself, her husband, and Dominic, to take place in April 2018.
In early 2018, Ms Waine became aware that she was again pregnant. [20] She undertook tests, including an amniocentesis which revealed no genetic abnormalities, [21] and the pregnancy proceeded.
Ms Waine made enquiries of Carnival about her ability to continue with the cruise whilst she was pregnant and the appropriateness of doing so. [22] A number of emails were exchanged between her and one Carlo, an agent or employee of Carnival. [23] She also spoke to Carlo and received assurances from him about the quality of the medical care available on the cruise. He identified the need for Ms Waine to obtain a medical certificate clearing her to engage in the cruise. [24] She did so, and the medical certificate from her specialist was provided to Carnival. [25] She also obtained travel insurance, [26] and reviewed the provision dealing with medical issues in the terms of her cruise with Carnival. She was required to nominate a place to which she would be evacuated in the event of a medical emergency, and she nominated Brisbane. [27]
The cruise was due to commence on 3 April 2018. [28] Ms Waine travelled to Sydney [29] and on the afternoon of 3 April 2018, boarded the ship. She settled in their room, fulfilled some necessary safety instruction training, including the use of a life-saving vest, [30] and went with her husband and son to the top deck as the ship commenced its voyage. [31]
Later that evening, Ms Waine noticed some redness or discolouration in her urine. [32] She called reception, told them of her pregnancy at 15 weeks and her discolouration, and asked to see the doctor. [33] She was told that the medical centre was closed and would open at 6am. [34] She was somewhat worried that evening, noticed some spotting on toilet paper overnight, and she said she arrived early, at about 5am, outside the medical centre. [35] The doctor, Dr Warren Pretorius, took her history of being 15 weeks pregnant, having had two first trimester miscarriages as a result of a genetic abnormality, the favourable amniocentesis with this pregnancy and her discolouration and spotting. [36]
The doctor did an internal examination where he found a small scratch on her cervix, which he attributed to sexual activity, [37] although Ms Waine denied that recent sexual activity had occurred. [38] She was comforted that Dr Pretorius determined the pregnancy to be fine. [39] To assist the scratch to heal, Dr Pretorius prescribed some antibiotics, provided her with a syringe with instructions to get salt sachets from the restaurant so as to fill the syringe with saline, and to insert the syringe into her vagina to "flush out the scratch". [40]
Ms Waine asked Dr Pretorius if she could have an ultrasound. [41] There was no ultrasound on board the ship. The doctor answered her that was unnecessary, an "over-aggressive" approach and that she was being a "worried mother". [42] Before she left the medical centre, another doctor there mentioned and reinforced the diagnosis of Dr Pretorius. [43] Ms Waine told that doctor that she still would prefer an ultrasound. [44] She left, she said, at about 8.30am. [45] Whether these times were Sydney time, or the time in Noumea, which was an hour earlier in April 2018, was not clarified.
Ms Waine thereafter informed her husband that the baby was okay, and he obtained the salt sachets. [46] She was uncomfortable with using the syringe to perform a saltwater douche and did not persist with that. [47] She obtained and took the prescribed antibiotics. [48]
Ms Waine noticed that the discolouration or redness in her urine did not abate. [49] Her husband called reception, and enquired about evacuation. [50] He was informed that as it was not an emergency, evacuation was unavailable. [51]
By lunchtime the next day, 5 April 2018, the discolouration had not ceased. [52] Ms Waine said she telephoned reception and was put through to the medical centre, [53] where she told the receptionist she was still bleeding. [54] She was informed that an appointment had been made for her to visit a doctor the next day in Noumea, [55] as the ship was arriving there early on 6 April 2018. She received the same advice from reception about the unavailability of a medical evacuation since there was no emergency, and that nothing further could be done. [56] She had no internet access. [57]
By this stage, Ms Waine was feeling some pressure in her lower abdomen. [58] The discolouration and spotting continued. [59]
Ms Waine's appointment was at 10am [60] on 6 April 2018 with a Dr Marchand in Noumea. [61] She was given a transfer to that clinic from where the ship was docked. [62] Her husband and son also attended. [63] She did not wait long for the doctor. [64] She told the doctor about her two previous miscarriages and her discolouration. [65] From the nature of the equipment in the doctor's room, she inferred that he may be an obstetrician. [66] The doctor spoke little and, she said, had trouble understanding English. [67] She followed his gestures to lie on the bed, and he did an ultrasound procedure externally and internally. [68] He announced - "no good. Baby no good. No heartbeat". [69] Ms Waine burst into tears. [70] She wondered what she should do. [71] She was told to consult her doctor on board the ship. [72] She did not believe Dr Marchand advised her to have the products of conception extracted [73] or "sucked out". [74] She was given no further appointment, no paperwork, no other advice, and she left the specialist's rooms. [75] She understood the foetus and products of conception would have to be passed, and "would have preferred it in a hospital". [76]
Mr Waine paid for the service. [77] With her husband and son she waited, crying, for the transfer back to the ship to arrive. [78] After an hour, no transfer having arrived, [79] they took a taxi. [80]
After leaving Dr Marchand, Ms Waine had wanted to get back to the ship to call the doctor, [81] and to get home. [82] She wanted further medical advice about "what would happen" and "where to go for treatment". [83] She knew the discharge of the products of conception could happen naturally, but she was not aware of the timeframe or the intensity. [84] She believed any increased bleeding would happen gradually over time. [85]
When Ms Waine arrived back on board, she went directly to her room and called the reception requesting the doctor. [86]
Dr Pretorius returned her call. [87] When she informed Dr Pretorius of what the doctor in Noumea had diagnosed from the ultrasound, he said, "Shame". [88] She claimed she asked for advice and received none, neither advice nor counselling, [89] and was adamant that Dr Pretorius did not ask her to come to the medical centre. [90] She said Dr Pretorius told her he would get reception to contact her. [91] She accepted that she may have said she wanted to go home, [92] although she did not believe she did say that. [93] She denied that Dr Pretorius told her she could start bleeding heavily, or could get some sort of infection or damage to her uterus. [94]
Ms Waine was informed by the Reception Manager that the ship was in Noumea for a limited time. [95] Computers were provided for Mr Waine to book a flight back to Australia. [96] That was unsuccessful, apparently due to limited internet connectivity, [97] and eventually the Reception Manager booked flights for them to Sydney via Auckland, leaving the following day, 7 April 2018. [98] She received no other advice. She said she told the Reception Manager she was concerned about whether she could last that long as she had lower abdomen pain. [99] She asked to see the doctor, but was told he was unavailable. [100] She was told that the doctor knew of her condition and the flight bookings. [101] She was scared and worried for her safety. [102]
Ms Waine did not think waiting in Noumea was an option as neither Carnival nor the doctor gave her that choice. [103] She felt pressured that there was a time frame that she had to get off the cruise. [104]
Ms Waine said she received no medical letter from Carnival, [105] no information about doctors or hospitals, [106] and was concerned that she was in a foreign country with no currency [107] and with inoperative mobile phones. [108] The family were taken to the Ramada Hotel in Noumea. Her bleeding continued. [109] She took two Panadol tablets but could not sleep. [110] She felt some cramping pain. [111] She said she "shut down". [112] She did not speak to her husband and left him to manage their son as she tried to calm herself to get through the trauma. [113]
By the next morning, the bleeding had not changed. [114] She believed she was safe to travel because she had the transfers and flights booked. [115] Ms Waine was taken on a long shuttle bus trip to the airport. [116] She caught the flight with her husband and son to Auckland, [117] and made her way to their connecting flight. [118] She was anxious but said she was doing her best to keep calm. [119]
At the gate, Ms Waine found a seat and kept quiet. She stood up when the boarding call was announced. She described the events thus: "I just had to shut down to cope. Um - they - they announced the call to get on the flight, and I - I stood up, and then I just felt like a gush, and I look straight at my husband's face, and I said, 'Something's happened.' He just said, 'Okay.' So, I went to the toilets and the toilet's closed. So I went, 'The toilet's closed.' But I was told they were getting cleaned. And then I had to walk up the escalator, and I looked down, and there was - all my pants were just covered in blood. I remember thinking I had to find - quickly find where the New Zealand - like - check-in desk was, because that's the flight that we got off. So, I just walked faster than my son and my - my husband and son because they had all the bags and he had our son and I just - like - walked close. But I just remember, everyone staring at me. I just remember - like - the look on everyone's faces. Just were horrified at me, just shock. But I just remember trying to walk as quick as I could. I had nothing to cover myself up with. I just tried to go as quick as I could, and I found the desk - the New Zealand desk - and I just remember thinking I had to tell them fast what happened before I passed out because I could feel myself - like I was going to pass out. And I just remember saying, 'I think I'm having a miscarriage. You need to call an ambulance.' And then I just left, and I went into a cubicle in the toilet. I tried to get into - like - a disabled one but there was somebody in there, and I went into a cubicle in the toilet, and I pulled my pants down to check myself. I had a pad on at that stage, and there was just - there was just blood everywhere, and I just was trying to clean it. The more I kept trying to clean it, the more it got everywhere. It was all over the seat, it was all over the floor. I was just trying to clean it. And just clean up after myself so I wouldn't leave a mess. And then I come out to say to - to try and get the bag off Scott because I remembered we had nappies, and I thought I could use a nappy to stop the bleeding. So, I came out and tried to find Scott and I got a nappy off him. And I put a nappy there and I got into the disabled toilet. And I remember just trying to put a nappy there, and as I was trying to put a nappy there, I saw my baby's legs. I didn't know what to do. Had to try to check the baby, and my son and my husband are just outside the door, and I didn't want to upset them. Didn't want them to see what was happening. Two admin - like the admin New Zealand girls who had followed me, and they're only really young, and they kept knocking on the door to help me. And one of them handed me - like a panty liner, and I just remember thinking she just had - didn't know what was going on. But I just trying to protect them because I just didn't want anyone to see what was going on. And I just trying to protect the baby as well. Everyone just kept knocking on the door. And every time I was trying to clean, the more I tried to clean, the more blood just poured out of me. And I was trying to clean the seat and then the - the floor, and just everything around myself. They called the - there was two young - like - oh, not teenagers, but, like in their twenties - like, first aid officers that arrived. And they were just horrified. I just remember them looking so fearful. And I said, 'You don't have to do anything, it's okay.' Because I just remember they looked really traumatised, and they looked in fear. And I just said, 'It's okay. We can just wait for the ambulance. It's okay.' And I felt like I waited for the ambulance for a really long time. And I just put two nappies there. And that's all I could do until the ambulance people arrived with a wheelchair." [120]
Ms Waine was taken to Middlemore Hospital by ambulance where she was given a blood transfusion. [121] She felt as if she would die. [122] The remains of her baby were placed in a box next to her in the hospital. [123] She remained in hospital for about two days, and perhaps two further days was kept close by for observation. [124] She was continually crying, beside herself with having lost her baby and the circumstances of her miscarriage. [125] Although she had experienced the sadness of miscarriages before, she had managed to "bounce back", but not here, she said [126]
Ms Waine said she felt worthless, hopeless, [127] and is constantly reminded of that cubicle, including whenever she has her period. [128] She said she had six to eight weeks off work [129] and returned to three days per week work, [130] before working four days a week presently. [131] She ceased certain of her work duties: those concerned with attending the morgue, with women's health and with the special nursery in her employment as a rehabilitation counsellor. [132] She no longer has the confidence to give instructions or safety talks to fellow employees. [133] She has monthly visits, more or less, to a psychologist since returning to Australia in April 2018. [134] She has been to a psychiatrist once. [135] She continues to go to the psychologist to get better. She has tried for four years to get pregnant, and did, last year. At the time of the trial, she was 34 weeks' pregnant.
She says she lacks energy, [136] the ability to concentrate, [137] and her work capacity has changed from being a highly productive, requested employee to now finding each day and her job hard to get through and manage. [138] She accepted that she has no physical difficulties, [139] although her mother and mother-in-law help a lot with domestic tasks.

(b) Mr Waine's account

Scott Waine, Ms Waine's husband, gave evidence largely consistent with Ms Waine's account. He testified of her spotting, of contacting reception on 3 April 2019, that she attended the medical appointment before 6 and returned around 7am, [140] that he had no sex with his wife on 3 April or on the evening of 2 April, that he enquired about a medical evacuation on 4 April [141] but was told that there was no emergency, that Ms Waine understood from the doctor that the bleeding was from a scratch on her cervix [142] from "rough sex" and that Ms Waine was told on 5 April about the ultrasound appointment [143] as a result of Ms Waine pressing for an ultrasound, [144] that the doctor in Noumea said little, [145] that they intended to talk to the ship's doctor [146] in accordance with what the doctor in Noumea said, [147] that the phone call between Ms Waine and Dr Pretorius was short, [148] that Ms Waine asked "what should we do now", [149] that he never met Dr Pretorius, [150] that when the porters arrived to collect their bags, they had not begun packing, [151] that they were given no instructions about hospitals or medical paperwork, [152] and also gave evidence of their removal from the ship, the plane trip, and the traumatic haemorrhaging at Auckland Airport.
His evidence about whether the specialist spoke of a suction curettage was less certain. [153]

Dr Pretorius was examined by audio-visual link. He was located in South Africa, in a room with his medical notes. He accepted that he spoke to Ms Waine twice, once when she visited his medical rooms and also on the phone after she had visited the specialist in Noumea.
Dr Pretorius recounted that he had been practising as a medical practitioner "[e]xclusively on ships", [154] and that he had experience in obstetrics, including miscarriage cases and medical emergency disembarkations. [155]
It is difficult to ascertain precisely the differences between his account and Ms Waine's because the evidence of Dr Pretorius often lapsed into giving advice rather than testifying of what was said between himself and Ms Waine.
However, some differences are clear. First, he attributed to Ms Waine the information that she was spotting because of "rough sexual intercourse from the night before", [156] that "there was nothing to worry about, and she just wanted to check", [157] and that after examination, he advised of the unlikelihood that sex "would lacerate the os". [158] Ms Waine said it was Dr Pretorius who diagnosed that the bleeding was from a cut on her cervix arising from her sexual activity.
Secondly, Dr Pretorius said he then advised: "I think we need an urgent ultrasound and we need to assess the viability of the baby as soon as possible. We do not have ultrasounds on board. So, I organised this for her to go urgently the next day - well, that - that day, because she had seen me at 9, 9am in the morning. That day, in Noumea, to a gynaecologist for an urgent ultrasound." [159] He said he discussed with Ms Waine the chances of bleeding, infection and losing the baby. [160]
Ms Waine gave evidence that he said her request for an ultrasound was unnecessary and that her pregnancy was fine.
In connection with this, Dr Pretorius gave evidence that Ms Waine was advised to "strictly monitor any more further bleeding or blood clots. And if she started bleeding heavily, to obviously call 9‑1‑1". [161]
Ms Waine gave no evidence of any instructions to monitor the bleeding or to report back or advice about the prospect of losing the baby or heavy bleeding.
Thirdly, after Ms Waine returned from seeing the specialist in Noumea on 6 April, and spoke to Dr Pretorius on the phone, he testified that he: "explained the dangers, the extreme dangers, of remaining onboard - I mean - so, at that stage, she said no, she wanted - no. She didn't want to come down to the medical centre. She'd already seen the doctors. She'd already got the information she needed. She was going to fly home. At which stage, I requested that she come down, at least let us examine her to make sure that she's okay to fly home. And there was - yeah. And she had been given the ultrasound and gynae notes which she wouldn't bring down to the medical centre." [162]
Ms Waine gave no evidence of this, and testified that she received no request to attend the medical centre, no advice other than that he would get reception to contact her, and possessed no notes from Dr Marchand.
These three differences between the testimonies of Ms Waine and Dr Pretorius are important in assessing the advice Ms Waine received. In summary, the factual issues between Dr Pretorius and Ms Waine are: 1. In the consultation on 4 April 2018, did Dr Pretorius diagnose a cut on the cervix occasioned by sex, or, as he says, did he dismiss that suggestion of Ms Waine as unlikely. 2. Did Dr Pretorius, as he says, raise and recommend the need for an urgent ultrasound on 4 April 2018 to assess the "viability of the baby" in this high risk pregnancy, or did he assure Ms Waine that the pregnancy was fine and resist the need for an ultrasound. 3. On 6 April 2018, during the phone call, did Dr Pretorius given any and what medical advice or explanation of risk to Ms Waine.

D. Credit

No other witnesses gave evidence of these matters. As Mr Waine was not present at the consultation, and could not hear Dr Pretorius' words on the phone call, a finding of what occurred depends upon the credit of Ms Waine and Dr Pretorius.
The medical notes [163] and testimony of Dr Pretorius, [164] evidence that a nursing officer or RN [165] (presumably registered nurse) named Charlotte Rhind-Smith [166] was present, but she gave no evidence. Ms Waine gave evidence that a "Dr Matthew" was also in the vicinity and was informed by Dr Pretorius about Ms Waine's situation, [167] but he also gave no evidence. No explanation was given for the absence of these persons, who could presumably or potentially give evidence about the advice given by Dr Pretorius, which is a matter that militates somewhat in favour of Ms Waine's testimony. The plaintiff did not specifically seek a Jones v Dunkel finding.
I found Ms Waine to be a wholly credible witness, recounting matters as factually as she could, though occasionally her emotions got the better of her. She made concessions at seemingly appropriate times, including of her inability to remember matters. She was careful, and detailed. She did not exaggerate the physical pain of the stress or cramping before arriving at Auckland, and she seemed to be committed to being truthful. However, her account has some differences with earlier accounts recorded in her statement of claim of 2021, [168] and letter of complaint she sent to Carnival in July 2019. These require examination.
In the statement of claim, Ms Waine alleged that she had "cramps, pressure in her abdomen" as well as spotting, [169] whereas her evidence was that she had no abdominal discomfort before seeing Dr Pretorius. [170] She alleged that Dr Pretorius was eventually persuaded to organise an ultrasound, although she denied in evidence that this occurred on 4 April. [171] She alleged Dr Marchand, the specialist in Noumea, "advised her that the baby had no heartbeat and that she should have it sucked out", [172] but in evidence she remembered the first but not the second component of this advice.
I accept Ms Waine's evidence, that she did not remember Dr Marchand's words about having the baby sucked out. Dr Marchand also did not give evidence. I conclude on balance that Dr Marchand did tell her words to this effect after the ultrasound. It would be expected that he would give her some advice beyond speaking to her doctor, and there is no other explanation for it being included in her pleading. Further, the conversation with her husband immediately after about "Do you get it sucked out" seems more likely to have occurred after he has heard Dr Marchand say that. [173] Otherwise I do not think the differences in the unverified pleading are of significance.
The letter of complaint was closer in time to the events than was her oral testimony, but still was 15 months afterwards. It suggests that the first indication of a problem was Ms Waine noticing blood spotting in the early hours of the morning, but otherwise largely reflected her account of 4 April. The letter also indicated that she had trouble getting to the obstetrician in Noumea on 6 April, whereas her evidence indicated that this delay was on the return journey back to the ship. Carnival also challenged Ms Waine's reference to an "obstetrician" when she claimed in evidence not to have been told that. She asserted in evidence that she was not told that but assumed it. [174] She spoke of contractions, but in evidence called them "niggling, lower abdomen pain". [175] I think she may have made more of that pain in the letter to Carnival about her condition, but I prefer her evidence on oath.
I do not find these differences to impact adversely on Ms Waine's credit. Some variations are to be expected. The letter of complaint was not nearly contemporaneous, and was not on oath, so care about minor inaccuracies might not be prominent in her mind. The letter was written for a different purpose. And on the important matters of the advice given by Dr Pretorius on 4 and 6 April, the letter is consistent with her testimony.
Carnival also challenged [176] Ms Waine's credit on whether she had sexual intercourse the day before 4 April, which she denied, and whether Dr Pretorius on 4 April gave her warnings or otherwise recommended an ultrasound in Noumea. However, Dr Pretorius' records show a reference to sexual intercourse occurring on 2 April, [177] which was two days previous, not inconsistent with any answer Mr or Ms Waine gave when challenged. She adhered to her account about an ultrasound.
None of these matters cause me concern about her credibility. I accept Ms Waine to be both honest and reliable, in respect of the incidents on the cruise, in Noumea and on her journey home.
Dr Pretorius' credit was challenged by Ms Waine. In general terms, if only oral evidence of them were available, the significance of the events to Ms Waine, compared to her being merely one of a number of patients to Dr Pretorius, with whom she had only one consultation and one phone call, militates in her favour on the question of reliability. But there are other matters that cause me concern about Dr Pretorius' evidence.
Dr Pretorius recalled that he advised an urgent ultrasound which occurred the same day as Ms Waine's visit. [178] In fact, her visit was two days before the ultrasound. The error was not merely of the date: it left unexplained why he thought an ultrasound was urgent if he was content for it to be postponed for two days. His medical notes indicate that on 4 April Ms Waine was discharged from his care with no follow up required, [179] a notation more consistent with a diagnosis of no serious problem.
Dr Pretorius initially gave evidence apparently with the benefit of his notes. [180] Without his notes, he spoke in generalities, never gave direct speech, and although he was asked what was said, from the form and manner of his evidence it often appeared that his testimony represented merely his thoughts, either at the time of the cruise or at trial, rather than an account of his words to Ms Waine.
His notes immediately following the consultation [181] do not refer to an ultrasound, urgent or otherwise. [182] The ultrasound appears to be first mentioned in the notes more than two hours later at "11:49 UTC+11.00". [183] At this time, the words "Follow up for obs appointment noumea" indicate that the appointment may have then been first decided upon and made later. [184] The appointment details were not noted at 11:49. The time being marked UTC+11.00 represented the time in Noumea, one hour later than the time in Sydney in April, which could account for some timing differences between the notes and Mr and Ms Waine's testimony.
I conclude that an ultrasound appointment was not made during the consultation on 4 April, but was arranged later that day, or subsequently. Ms Waine's conversation with the other doctor immediately after her consultation with Dr Pretorius may have prompted the need for the ultrasound to be reconsidered.
The notes indicate information about the time of the appointment may have been supplied on the morning of 6 April as no date is mentioned. [185] I accept that Ms Waine was not informed of the ultrasound appointment on 4 April.
Dr Pretorius said on 4 April he reasoned that Ms Waine had a high risk pregnancy and that she was in need of an urgent ultrasound, [186] that there was risk to the mother bleeding, and a risk of loss of the baby. [187] He does not state that he mentioned this to Ms Waine on 4 April, and his notes do not indicate this advice or diagnosis. It seemed to me to be his subsequent reasoning process.
Once Dr Pretorius discovered during his evidence that an ultrasound and landfall were two days after the consultation with Ms Waine, he sought to explain the absence of a need for urgent action by saying it was not an emergency [188] because Ms Waine was critically stable, [189] not bleeding profusely, and by proposing questionable methods of mitigating the risks, which were not approved by the expert doctors, [190] including inflating a catheter in the cervix to stop the bleeding and inviting others on the cruise to donate blood. [191] He said, "If she was massively haemorrhaging, I would put a Foley catheter up there, insert water in and try and dampen out the uterus." [192] He accepted that he did not tell Ms Waine this, although asserted that he told Ms Waine on 4 April that there was a risk of heavy bleeding, loss of the baby and infection. [193]
Dr Pretorius was asked in cross-examination: "Q. I want to understand your evidence now, so you said something like, 'Ms Waine, or Courtney, there's a risk you're going to lose this baby, there's a risk you're going to start bleeding heavily, there's a risk you're going to get an infection, but you know, it might have been, it's the sex.' and she said, 'Okay, I'm happy with it, that it's the sex.' and was not worried that she might lose her baby. Is that what you're saying? A. Yes." [194]
Dr Pretorius' answer accepting this account is not consistent with his notes, not consistent with his other evidence that he did not diagnose the cause of the bleeding to be sex but that Ms Waine "deduced" [195] it, and difficult to accept as an account of what occurred. It to me indicates that Dr Pretorius was no longer comfortable with his original diagnosis, that he then recognised the seriousness of the circumstances and sought to attribute the error to his patient.
As indicated earlier, the medical records indicate that Dr Pretorius was wrong about the timing of the most recent occasion when Ms Waine had sexual intercourse, and that he diagnosed sex as the cause of the bleeding. His notes referred to "sexual intercourse on Monday", which was two days earlier, so he appears to have misunderstood the effect of his note. The note was consistent with Mr Waine's testimony. [196] Dr Pretorius' notes also indicate that recent sexual intercourse was his diagnosis and his advice to Ms Waine as to the cause of the bleeding, rather than him dismissing her suggestion. The notes record a diagnosis of "[p]ostcoital and contact bleeding" [197] and state, "[b]leeding during pregnancy - suspected due to post coital trauma and lesion on cervix". [198] Ms Waine could hardly diagnose a lesion on her cervix.
At the early stage of his testimony, Dr Pretorius had his notes before him, [199] and it appeared that, initially in his evidence, he was reconstructing from what he could observe from his notes: early in his testimony, when Dr Pretorius was asked about his recollection of when Ms Waine presented to him on the ship on 4 April, and his answer commenced with "So, obviously, the notes remains private and confidential" and proceeded to give a history. [200]
Dr Pretorius' notes include a diagnosis of "[p]ostcoital and contact bleeding" [201] and reference to "haemorrhage in early pregnancy unspecified" and "abnormal uterine and vaginal bleeding, unspecified". This does not confirm that he then believed that the bleeding was connected to the pregnancy and not to sexual intercourse, less still that he advised Ms Waine of this.
Dr Pretorius' evidence showed other differences between his claimed advice and what might be expected to be recorded in his notes. Dr Pretorius gave evidence that on 4 April Ms Waine said, "I do not want to go shore side for any investigation other than back in Sydney, or back in Australia mainland, where she was from" [202] and was "very reluctant" to have an ultrasound. He did not record in his notes of 4 April Ms Waine's desire to return to Australia, her reluctance about an ultrasound or the urgency for an ultrasound. [203]
There was, in evidence, no copy of a referral letter from Dr Pretorius to the gynaecologist in Noumea, although Dr Pretorius would not accept that there was none. [204] He asserts that Ms Waine received a report from the gynaecologist in Noumea, because he requested it [205] but accepted that he did not document that request or her response. [206] No report was in evidence.
Dr Pretorius accepted that if a pregnant passenger, in her second trimester, had haemorrhage, bleeding, and abnormal uterine and vaginal bleeding of unknown origin, she was unfit to travel on a nine-day cruise. [207] But despite that there was acute bleeding from the cervix, [208] "heavy bleeding" with a need for an urgent ultrasound, he gave as his opinion that she should continue travelling for two days until they got to port to have an ultrasound to determine whether the bleeding was from the uterus. [209]
He said: "I had no idea where that bleeding was coming from. If I terminated her cruise, and helivaced her off to Melbourne, and it was a scratch on the os, that was all that was wrong, we would have lost a lot of money, and a lot of people would have been extremely angry with us." [210] This was his claimed mindset after his speculum examination of Ms Waine on 4 April. He did not schedule another visit, later that day, on the next or at any time. To say he "had no idea" where the bleeding was coming from is inconsistent with both the notes, which support a diagnosis of a scratch on the cervix from sexual intercourse, and his evidence of a diagnosis of a risk of a miscarriage.
As noted, Dr Pretorius accepted that he did not tell Ms Waine about the unorthodox procedures - including inflating a balloon like item in her cervix to stem blood flow - that might become necessary if the bleeding was found to be a miscarriage. [211] And yet he subsequently accepted that "if there are limitations in the resources of the ship to be able to respond to a complication that might arise, you should tell the patient". [212] This proper practice was inconsistent with his own conduct, and was unexplained.
Dr Pretorius gave evidence that he had worked "recently" and "exclusively on ships since 2017", [213] but subsequently gave evidence that he had not worked on a ship for almost a year, as he was "medically boarded" as a result of a "medical incident" that had happened whilst he was on board, and that he was "not allowed to work after that for one year". [214] In this regard, Dr Pretorius was cavalier in his testimony. He gave no explanation for this inconsistency.
Dr Pretorius accepted, or did not dispute, Ms Waine's account of what was said on the phone on 6 April, [215] save that he disputed saying, "I will contact reception to assist you". [216] However, on his account, Ms Waine told him she wanted to go home. He accepted as possible that he said those words, and the disputed conduct would seem unsurprising. Moreover, his notes record, "Contacted care office to book flights to Sydney", [217] which substantially supports Ms Waine's account that Dr Pretorius offered to and did contact reception.
Dr Pretorius appeared to be willing to fill in gaps when his recollection was inadequate, such as about the nature of advice or counselling he gave on 6 April over the phone to Ms Waine. [218] He asserted Ms Waine wanted to go not just to Australia but to Sydney, but retracted this when pressed. [219] He accepted his recollection of conversations was less than clear. [220] He was inclined to speculate, apparently wrongly, on matters such as Ms Waine's supposed lack of concern about another miscarriage, [221] or her unwillingness to attend the ship's medical centre on 3 April. Dr Pretorius asserted that he was told that Ms Waine did not wish to come to the medical centre based on what he recorded in the records, [222] or what the nurse had informed him, [223] although he accepted that there was no relevant entry to this effect [224] and that he did not know about that. [225] He bore the appearance of advocating for his position rather than dispassionately recounting his recollection.
Although Dr Pretorius was asked a number of times directly about what was said, [226] as I said, his evidence never gave direct speech and often appeared to lapse into what he thought, at the time or subsequently, or some advice he sought to give the Court about the seriousness of the situation. For example, he asserted: "any normal doctor in that situation would have monitored that patient, would have given fluids, told that patient to please lie down, explained the risk factors of what could happen if they didn't listen to our instructions, and to phone 911 in the event that she started heavy clotting." [227]
His repeated references to events that would "obviously" [228] occur was unpersuasive. He accepted that Ms Waine never passed to him any advice (presumably other than that the foetus was dead) that she received from the specialist who did the ultrasound, [229] nor did he receive any notes of that visit, [230] nor did he ever speak to the specialist, Dr Marchand, himself.
Dr Pretorius asserted that in his consultation with Ms Waine: "I did discuss. I said that I discussed with the patient that there is a chance of bleeding, there is a chance of infection, and there is a chance of losing the baby." [231] Yet Dr Pretorius accepted that he had no notes recording giving advice about the "risks of loss of baby", or the risk of severe bleeding, and he could not recall doing so. [232] When Dr Pretorius was challenged about his lack of advice he asserted discussions he had with Ms Waine, yet at other times in his testimony, he admitted both a lack of recollection and a lack of notes. These inconsistencies impacted adversely on his credit.
Dr Pretorius asserted that on 6 April he had a conversation with Ms Waine about "me wanting medical records and her to receive medical attention". [233] When asked directly by his own counsel, "Did you speak to her at all or not", he responded, "I spoke to her on - I left messages on her phone and I spoke to her on the phone. And explained the dangers, the extreme dangers, of remaining onboard". [234] He said, "[S]he had been given the ultrasound and gynae notes which she wouldn't bring down to the medical centre". [235]
Neither advice about Ms Waine receiving warnings about "extreme dangers" or her having medical notes from Dr Marchand are referenced in the notes. At some stage, Dr Pretorius became concerned about notes from Dr Marchand. Yet he never sought to contact Dr Marchand before Mr and Ms Waine were disembarked, and apparently never spoke to him. As to medical advice, his assertion that he "left messages on her phone", the detail of which was never identified, was unconvincing.
For these reasons, I generally preferred the evidence of Ms Waine over Dr Pretorius. But in respect of any particular matter, it is necessary also to consider each of the accounts in the context of the contemporaneous or near contemporaneous medical records, which might be expected to be reliable.

E. Factual findings

The medical notes relevant to the visit on 6 April record: "- Phone call done to room - Patient went for ultrasound with gynae today - no heartbeat ergo ICA at 15/40 - Extremely distressed and wishes to fly home - Counselled over the phone and offered to come into medical - patient said they will start packing - Contacted care office to book flights back to Sydney - ARD informed of situation". [236]
The only indication of advice is "Counselled over the phone and offered to come into medical". Dr Pretorius said that this was to Mr and Ms Waine, [237] perhaps because the medical notes indicated a "Plan" including "Patient counselled with her husband", [238] which was written after Mr and Ms Waine had packed for departure. [239]
An alternative construction of this later note is that after the phone call, the plan was for Ms Waine to discuss the matters, or "counsel", with her husband. This would mean that Dr Pretorius has reconstructed events from an erroneous understanding of the notes. Dr Pretorius accepted he may never have met Mr Waine [240] and did not speak to him on the phone. His belated assertion of them possibly being together on speaker phone was not persuasive. [241]
I do not regard the note quoted in detail [242] as any evidence of specific advice. "Counselled over the phone" following on from "[e]xtremely distressed" may indicate no more than that he tried to alleviate Ms Waine's distress by his words in some unexplained way, such as by "contacting reception" to arrange flights to Australia, as Ms Waine asserts and Dr Pretorius disputed, or "[c]ontacted care office", as Dr Pretorius noted. [243] And "offered to come into medical" is consistent as much with a willingness or offer by Ms Waine to come into the medical centre as an offer by Dr Pretorius, and if the latter, may be no more than "Do you want an examination?" in circumstances where she has just had an internal and external ultrasound by a specialist.
I am persuaded that Dr Pretorius gave no advice or warnings to Ms Waine about the risk of travel whilst she had an incomplete miscarriage.
Accordingly, I accept the account of Ms Waine. On 4 April she was not advised of the seriousness of her condition and the risk to her or the baby of the bleeding. Her bleeding was attributed to a scratch on her cervix said to arise from sexual intercourse, and she was given antibiotics and instructed to perform a vaginal douche in order to treat that diagnosed problem. She was not told of a need for an urgent ultrasound, but was subsequently informed of an appointment in Noumea with a specialist for an ultrasound on 6 April. She was not given warnings about the risks of bleeding, infection or loss of the baby.
Ms Waine was told by this specialist in Noumea to get the "baby sucked out" [244] and to speak to her doctor. She sought to do that when she returned to the ship. Dr Pretorius appeared to accept that Ms Waine asked him for advice. [245] He could not recall his response other than that he "wanted medical records and her to receive medical attention". [246] I do not accept that he gave Ms Waine any advice about risks, but if Dr Pretorius said anything about "the dangers, the extreme dangers, of remaining onboard", [247] as he claimed, that could only have confirmed her desire to return home.
I do not accept that Ms Waine refused to visit the medical centre there. It seems unlikely that Ms Waine would call the medical centre for assistance and then refuse that assistance. [248]

(a) Dr Pretorius' concessions

There was no dispute that Carnival owed to Ms Waine a duty of care within the terms of s 5B of the Civil Liability Act 2002 for the services supplied by its employee, Dr Pretorius. The content of that duty was submitted to be regulated by what is "widely accepted in Australia by peer professional opinion as competent professional practice" pursuant to s 5O of that Act. There may be a question whether s 5O needs to be pleaded by the defendant, and whether in the light of s 5P, and the circumstance that this case may be fundamentally a "failure to warn" claim, [249] that the relevant duty is that provided in s 5O. As will appear, in the circumstances of this case it makes no difference whether the potentially lower standard of care provided by s 5O is applicable.
By the time Dr Pretorius gave evidence in the witness box, he recognised more serious concerns about Ms Waine's condition. As her doctor, what he recognised is an admission that may inform the appropriate advice to give to a person in Ms Waine's position.
Dr Pretorius was asked by Carnival about "risks" he had spoken about when Ms Waine returned to the ship after the ultrasound, [250] although he had never used the term "risks". His answer appeared to me to be evidence of what he understood was appropriate rather than what he said to Ms Waine: "So, with - well, with - I'll use the - is it okay if I use the abbreviation, ICA, incomplete abortion. So, with an ICA, the first high risk is bleeding. And this quite frequently can be found rapid pouring of blood, which is obviously very dangerous for a young female. There can be infection depends - we don't know how long the baby has been without a heartbeat, so infection is another point. And with long term effects, if the foetus remains in there without having - her having a D and C, a D and C is a dilation and curettage, where they go and remove the remnants of the ICA. And if she did not have that in a timely fashion, that she could - there could be damage to her womb and, well, loss of possible children in the future." [251]
Dr Pretorius agreed that a passenger in her second trimester, who had haemorrhage, bleeding, and abnormal uterine and vaginal bleeding of unknown origin, would make her unfit to travel on a nine-day cruise. [252] Although blood in urine was recorded as negative by the nurse, [253] Dr Pretorius recorded it as "Blood +++", indicating the "maximum" bleeding that can be recorded. [254] But Dr Pretorius said they needed an ultrasound to determine if the bleeding was from a laceration of the os or from the internal uterus. [255]
Dr Pretorius was of the view that he would not have allowed Ms Waine to continue cruising on 6 April once the incomplete miscarriage was confirmed. [256] He never assessed Ms Waine as fit to fly. [257]
He said, "I needed to see if I needed to send her straight to hospital, or whether she needed to go to - on a flight, medivac flight back to Sydney." [258]
These were matters Dr Pretorius thought at the time or more recently, indicating Ms Waine should have been advised about going "straight to hospital" and about "medivac flights".
Similarly, Dr Pretorius' evidence about recognising on 4 April that Ms Waine needed an urgent ultrasound, that her pregnancy was high risk, with risks of severe bleeding and loss of the baby, are matters he understood needed to be the subject of advice.

(b) The obstetrics experts

Each party qualified an expert medical doctor to report on what was competent professional practice. Both doctors gave evidence.
Dr Roach is an experienced gynaecologist and obstetrician and an apparent leader in the field. He was qualified by the defendant. In his initial report, he was asked to give advice only in respect of the 6 April communications between Dr Pretorius and Ms Waine. [259] He appears to advise that on 4 April 2018 "a diagnosis of threatened miscarriage would have been made". He concluded that Dr Pretorius' care "was consistent with competent peer professional practice" as he "advised her of the risk of threatened miscarriage". [260] This diagnosis was not something he was asked to assume. [261] His opinion informs the duty that existed (even though it mistakes the diagnosis Dr Pretorius conveyed), namely, that Dr Pretorius was obliged to advise Ms Waine of the risk of threatened miscarriage.
In respect of 6 April, Dr Roach referred twice to and thus relies on the circumstance that Dr Pretorius "counselled her and her husband" [262] which, he reported, implies "a discussion of the clinical circumstances and acknowledgment of the patient's psychological state, actions consistent with competent peer professional practice". Dr Roach stated that "counselling regarding options for care e.g. D and C, or expectant management, should be discussed", and that "competent practice would be to respond to the patient's wishes while providing advice regarding heavy bleeding and facilitating access to care". [263]
Dr Roach assumed that "the plaintiff had indicated that getting back to Australia was her primary desire and that she did not want ongoing care from the ship facility, or in Noumea". [264] He appears to accept the opinion of Dr Lynch, the plaintiff's expert, about the appropriateness of the doctor providing three options of care: waiting in Noumea, flying directly to New Zealand or electing to have a D&C performed in a hospital in Noumea by a speciality gynaecologist. [265] He also assumes that this occurred, [266] although he was not asked to make this assumption. [267]
In a supplementary report, he says his "interpretation is that 'counselled' implies that Dr Pretorius discussed the options regarding medical care with Ms [Waine] and the potential risks and complications". [268] He acknowledged that there was a risk of miscarriage during the journey, but that urgency does not imply high risk. He again assumed that Ms Waine explicitly refused care in Noumea, and did not accept that the specialist's refusal to provide a "fit to fly letter" because she was not hospitalised, does not mean the specialist formed the view that she was not fit to fly.
Dr Roach subsequently determined that he would have issued a "fit to fly" letter because, among other things, Ms Waine had no pain and her cervix was closed. The basis for these conclusions is unstated, but seems to be based on the 4 April examination by Dr Pretorius, more than three days before the flight and two days before the death of the foetus was diagnosed. [269]
Dr Roach also takes into account that "the available level of medical care is not at the same standard as that in Australia and New Zealand". [270] He does not disclose the basis of this opinion. Whilst I do not have any question about his expertise in gynaecology and obstetrics, I have no basis to conclude he has any experience on the standard of obstetrics care in Noumea, and do not give this generalised statement any real weight.
Dr Roach's opinion that "more likely than not … Dr Pretorius would have warned the plaintiff about the risks of bleeding en route and the plaintiff would have remained steadfast in her desire to return home", [271] and his opinion that the indirect flight from Noumea to Sydney with a stop in Auckland was of approximately three hours duration, [272] indicate that Dr Roach, at least in his initial reports, was willing to engage in a degree of speculation and advocate for Dr Pretorius rather than confine himself to assumed facts and reasoned opinions.
Dr Lynch was the plaintiff's expert, a doctor with long experience in obstetric care. [273] In respect of the contact between Dr Pretorius and Ms Waine on 6 April 2018, he reported a need for Dr Pretorius to explain the possible complications of the miscarriage, including excessive bleeding, infection and blood transfusion as well as the options of expectant management, that is waiting in Noumea, D&C in a hospital in Noumea, and a flight to New Zealand, including the advisability and risks of each. [274]
Dr Lynch regarded it as "neither reasonable nor prudent, and was a serious error" not to have done this and to leave it to the ill patient to "make her own arrangements". [275]
Dr Lynch and Dr Roach prepared a joint report after a teleconference. In that report, the experts agreed that a medical practitioner should be aware of the possibility of significant anxiety and distress being experienced by a woman at sea on a cruise experiencing threatened or actual miscarriage, [276] that a reasonable medical practitioner would have given consideration to whether Ms Waine was suffering a threatened miscarriage on 4 April 2018, [277] and that a plan of management would involve rest, avoiding intercourse, an ultrasound, and to report the onset of any abdominal or pelvic pain, or fever, or increased vaginal bleeding, and other passage of clots or tissue. [278]
The doctors agreed that the passage of the products of conception carry a risk of incomplete expulsion of those products, heavy vaginal bleeding, haemorrhage, and infection, [279] and there is a greater risk of complications after 12 weeks or at 15 weeks.
The experts agreed that there were three options for management of miscarriage at 15 to 16 weeks gestation: "1. Await spontaneous passage of the products of conception; 2. Dilation of the cervix and evacuation of the products of conception under anaesthetic. 3. Induction of contractions of the uterus using an oxytocic to deliver the products of conception vaginally." [280]
The experts agreed that on certain assumptions of a person in Ms Waine's position, and that she did not decline medical advice or treatment, that the treating medical practitioner should contact the obstetrician to obtain a report or findings, assessment and recommendations, [281] provide options for the management of miscarriage and the expected course and risk of these options, [282] including a history of symptoms over the past two days, her vitals, whether she had stable blood pressure, and should perform abdominal examinations. [283] Dr Roach thought a vaginal examination would provide no useful information.
As to treatment in Noumea: "The experts agree that the plaintiff ought to be advised of the options for specialist and hospital treatment in Noumea after those options were investigated and information obtained about their quality and availability." [284]
Where the patient wanted to return to Australia, the experts agreed that the medical practitioner should inform the patient: "1. The miscarriage was, according to the ultrasound, incomplete. 2. The expulsion of the products of conception (POC) may occur at any time. 3. There are possible complications with the expulsion of the products of conception in that it may be: • Complete • Incomplete. 4. The complications that may ensue form an incomplete miscarriage are: • Haemorrhage, • Haemorrhagic shock, • Cervical shock; • Sepsis (infection); • Psychological trauma associated with dealing with all of the above in a medically unsupported environment, ie, on an aeroplane without competent medical attendants." [285]
Dr Roach added some further advice: "1. It would be important to explain to the plaintiff that the risk of progression to miscarriage was unpredictable in both time and nature; 2. The risk of significant complications was low; and 3. The ability for even a trained practitioner to manage the complications listed above on an aeroplane would be limited - ie, the primary management would involve removing the products of conception from the cervical os, a process that would require a degree of skill (the medical practitioner) equipment and facilities which would not be available on an aeroplane." [286] And also that warn the patient that "if active bleeding were to occur in flight…there is a risk that her bleeding may be so heavy as to induce hypovolemic shock or require a blood transfusion when available". [287]
The experts noted that Ms Waine, with an inevitable and incomplete miscarriage, could experience severe bleeding at any point in time, flying or non-flying, [288] but that having explained these risks, Dr Roach would take into account the patient's wishes, respect her autonomy and would certify the patient fit to fly if she proposed to fly home notwithstanding the advice.
Both experts agreed that Ms Waine should not have been allowed to fly before an assessment of whether she was fit to fly, which would involve either a physical examination, according to Dr Lynch, or a series of questions, according to Dr Roach. [289]
Competent professional practice by peer professional opinion on 6 April 2018 would have been met if, but only if, the three options of staying in Noumea to let the miscarriage occur naturally, having a D&C or an oxytocic in a hospital in Noumea under the supervision of a gynaecologist, or travelling home for treatment in Australia, had been given to her, with proper explanation of the risks and benefits of each of them. [290]
In oral testimony, Dr Roach gave evidence that without information derived from a history of symptoms, the patient's vital observations, stable blood pressure and an abdominal examination, "You'll be limited in the advice you could give", [291] whereas Dr Lynch expressed some agreement to the proposition that "he should not have provided advice on appropriate options". [292]
I understood Dr Lynch's answer to be a reservation, in the absence of that information, about recommending any particular option, not an opinion that no advice should be given, a matter with which Dr Roach agreed. [293]
Both experts confirmed that "as a minimum" Ms Waine would have been asked about "whether she was still bleeding, or not", and "advised her of other options before, so then she could make a decision about whether to fly home". [294] And Dr Roach said that providing advice about the three options did not assume a face to face medical consultation, [295] so advice could be given over the phone, outlining the options to her and the risks and advisability of each.
In view of the evidence of Dr Pretorius and the experts, I conclude that a duty lay on Dr Pretorius, in accordance with peer professional opinion of competent professional medical practice: 1. On 4 April to advise Ms Waine about the possibility and risks of a miscarriage, including of severe bleeding, infection and loss of the baby. He was obliged to identify a plan of management, including an ultrasound to confirm the status of the foetus, and for patient rest until then, and to investigate the facilitation of getting Ms Waine off the ship if she wanted that, especially if it was at her cost. [296] 2. On 6 April to give Ms Waine advice about the risks of complications were she to attempt to fly back to Australia whilst the miscarriage remained incomplete, and advice about the options of waiting in Noumea for the natural result of miscarriage; and of having surgical or medical intervention in Noumea in a hospital before returning to Australia, including providing details about the hospital, its facilities and ability to perform a D&C.

G. Breach

Dr Pretorius accepted that he did not tell Ms Waine some of the risks of miscarriage: "If I terminated her cruise, and helivaced her off to Melbourne, and it was a scratch on the os, that was all that was wrong, we would have lost a lot of money, and a lot of people would have been extremely angry with us." [297] "Your position is that, on the 4 April, when faced with the greater risk of complications, and her presenting condition, you did not need to give her any information about the limitations of the way you might be able to deal with them should those complications arise. Is that correct? A. That is correct." [298] "Q. So do you think, on the fourth, you should tell a patient that "If this complication arises and you bleed severely, you may need a transfusion, and the only way we can do that is by then activating a protocol to see if passengers are willing to donate"? A. I didn't find the need to tell her at that stage." [299]
Dr Pretorius never records giving his advice about the risks of flying when bleeding [300] and does not recall giving that advice, [301] nor what to expect in terms of bleeding and the passage of products of conception. There is no entry in the medical records of an urgently required assessment. [302]
The evidence included no letter of referral for the specialist in Noumea. [303] Dr Pretorius does not recall giving Ms Waine a referral letter, [304] or giving her details about the hospital. [305] He said he did not want her medically disembarked, [306] but he accepts that Ms Waine was medical disembarked from the ship, [307] which he facilitated. [308]
Dr Pretorius' plan was to "[m]edical disembark" Ms Waine unassisted by commercial flight the following day "back to Brisbane for D&C" with the "Care office…to assist with flights" and the "Port agent to assist with accommodation and transport". [309] There was no advice about other options and risks. He became aware that Dr Marchand in Noumea in late April 2018 advised he "will not provide a Fit to Fly letter as she was not hospitalized".
Dr Lynch reported: "Q8. Was the conduct and actions of the cruise ship's doctor and/or cruise ship medical staff. Conduct and actions widely accepted in Australia by peer professional opinion as competent professional practice? If not, please provide detail reasons why not. No. The conduct and actions of the cruise ship's doctor and cruise ship medical staff would not be considered as actions which were widely accepted in Australia by peer professional opinion as competent professional practice. This is my opinion because of their failure to adequately assist and support Ms Waine and manage her gynaecology condition of her threatened miscarriage, in the period of 4 to 6 April 2018, and then their subsequent failure to competently manage her missed miscarriage consequent upon the diagnosis of the ultrasound in Noumea. The ship's doctor and the medical staff had a duty of care to ensure that Ms Waine was provided with competent, comprehensive gynaecological, medical, and psychological care and support." [310]
Dr Lynch mentioned as significant that Ms Waine had: "information that she had not been given clearance by the obstetrician and gynaecologist whom she saw in Noumea to fly on a commercial airline without nursing and medical assistance." [311]
Dr Pretorius did not fulfil the duty identified earlier. Dr Pretorius did not advise Ms Waine, either on 4 April or 6 April, of the risk of miscarriage, including heavy bleeding, infection, need for a blood transfusion and psychological harm. He did not advise her of the option and advisability of awaiting for the miscarriage to occur naturally in Noumea, or advise of the option of medical intervention in a hospital in Noumea, or provide information about medical facilities in Noumea. He had arranged for an ultrasound there and at that time raised no question about the standard of hospital and medical care in Noumea.
Dr Pretorius recognised in evidence the importance of these matters, and may have recognised them at or shortly after Ms Waine was disembarked. But when Ms Waine attended his medical rooms on 4 April, he did not convey anything about the miscarriage, its possible complications and its management. Nor did he convey the need for an urgent ultrasound. His advice to Ms Waine was limited to diagnosing the lesion on the cervix caused by sexual intercourse and reassuring her that the pregnancy was fine.
Similarly, on 6 April none of the options were explained to Ms Waine, and none of the risks of flying the next day to Australia, indirectly, whilst suffering from an incomplete miscarriage were identified.
He mistakenly assumed Ms Waine had received a referral letter, [312] information about the hospital, [313] and that Ms Waine had been to a hospital for the ultrasound. [314] He did not give her advice about medical and hospital care in Noumea.
Dr Pretorius accepted that there were no notes indicating: 1. that Ms Waine was determined to fly against advice; [315] 2. that she was given advice about the risks of flying whilst she was bleeding; [316] 3. that she was advised of the need to go to hospital; [317] 4. that she had received advice about options for managing her foetal death in utero; [318] 5. that she was advised regarding bleeding and the passage of the products of conception; [319] 6. that it was urgent for her to come to the medical centre; [320] or 7. that she should consider the option of surgical intervention in Noumea.
I am satisfied that Dr Pretorius acted in breach of his duty to his patient in failing to discuss with Ms Waine the options and provide advice on these matters and other matters I have identified from the evidence and reports of Dr Roach and Dr Lynch.

H. Causation

The element of causation requires proof of the items of factual causation and scope of liability provided in s 5D of the Civil Liability Act.
As to factual causation, negligence by Dr Pretorius is only a necessary condition of the harm if: 1. Ms Waine would not have experienced the discharge of the products of conception in Auckland Airport or in some other uncontrolled environment had Dr Pretorius given proper advice; and 2. It was the discharge of the products of conception in an uncontrolled environment that caused the psychological damage from which she suffers.

(a) Not in Auckland Airport

Dr Lynch and Dr Roach gave evidence that the natural discharge of the products of conception cannot be hastened, delayed, prevented, nor can the timing be predicted. [321] It follows that there is no basis to conclude that the timing of that event was affected by any conduct of Ms Waine or Dr Pretorius.
Thus, causation requires consideration as to whether proper advice would have resulted in Ms Waine not travelling on 7 April 2018 when the products of conception were discharged. That would have occurred if she travelled before, or after, 7 April 2018.
I am not persuaded that any proper advice from Dr Pretorius on 6 April 2018 could have resulted in her travelling back to Australia before 7 April. There were no flights available on 6 April at the time of the advice.
Could proper advice from Dr Pretorius on 4 April have caused Ms Waine to depart prior to 7 April? Advice from Dr Pretorius of the potential miscarriage, and the risks, would have made Ms Waine more aware of the risks of the miscarriage, but I am not persuaded that it was appropriate for her to be medically disembarked by a helicopter on 4 or 5 April. At that stage, there was no certainty of miscarriage. Even if Ms Waine, properly advised, had pressed to be removed from the ship, I am not satisfied that it would have occurred. The nature and risks of a medical evacuation were not explored in evidence: whether it involved her being in a controlled environment with appropriate specialist care on the journey was never clarified. Dr Pretorius' evidence indicates that he did not oppose it for medical reasons but for reasons of cost [322] (and, belatedly and somewhat unconvincingly, reasons of danger). [323] Nevertheless, as her condition and awareness of the miscarriage remained unchanged until 6 April 2018, I am not satisfied that it was less likely that she would have awaited the ultrasound in Noumea, a matter for which Ms Waine pressed. This is so notwithstanding that the obstetrics experts regarded it as appropriate for the doctor to assist in facilitating the disembarkation of Ms Waine at her cost if that was her desire.
It might have been different if a miscarriage could be positively diagnosed on the ship, by an ultrasound. But that did not occur. There was also no evidence that a cruise ship should possess both an ultrasound and a person capable of using it. I am not satisfied that Carnival was in breach of its duty in failing to have an ultrasound device and qualified person on board, again largely because of an absence of evidence on that issue.
In the result, the breach of duty by Dr Pretorius on 4 April 2018, in failing to give competent advice likely had no impact on Ms Waine's movements and would not have resulted in her returning to Australia earlier. She may have adopted a "plan of management" as stated earlier, involving rest and reporting changes, she may have become more aware of the risks of miscarriage, but that course would not have produced changes to the timing of the discharge of the products of conception, or the timing of her travel.
Thus, competent advice could only have prevented Ms Waine's damages of having the miscarriage in an uncontrolled environment and any psychological sequelae if it postponed Ms Waine's flight to Australia. Once she was of necessity going to arrive in Noumea, any advice would be informed by the status of her pregnancy disclosed by the ultrasound in Noumea. Accordingly, it is advice after the ultrasound that is material to her conduct thereafter.
This issue involves an assessment of what Ms Waine would have done had she been properly advised on 6 April. Her view on that matter, informed by hindsight, is barely relevant, and, in any event, she is unable to give direct favourable evidence on it by reason of s 5D(3)(b) of the Civil Liability Act. She was asked in cross-examination about her preference for how the products of conception would pass, a different matter, and she answered, "I would have preferred it in a hospital". [324]
I have determined that proper medical practice would have resulted in Ms Waine being informed of the dangers of heavy bleeding and discharging the products of conception while travelling, and the inability to know when that would occur. Any travel prior to the discharge of those products would carry these risks, and could only be avoided by staying in Noumea until the miscarriage had been completed, either naturally or with surgical or medical intervention. The particular danger was the inability for her to get proper medical treatment in an uncontrolled environment if she was travelling, which carried the physical risks mentioned, but also the unquantifiable [325] risk of psychological harm.
Matters that are relevant to assessing how Ms Waine would have responded include are how she has responded to medical advice previously. There is no suggestion that prior to the cruise she was disinclined to follow medical advice. On the cruise, she did not fully follow Dr Pretorius' advice about the vaginal douche with a syringe and saline, but she did obtain and take the antibiotics prescribed. She did attend upon the specialist to undergo the ultrasound, which was administered both externally and internally. There is no indication of any warning or advice given to Ms Waine that she did not heed, even if she did not feel able to persist with the unorthodox procedure of self-inserting a syringe into her vagina.
It may be supposed that she lacked a high level of trust in either Dr Pretorius or Dr Marchand. She found both to be lacking in one way or another. But concerns about the questionable advice by Dr Pretorius, such as dismissing the need for an ultrasound or attributing the bleeding to sex, cannot be informative of how Ms Waine would have responded to proper advice. What she would have done when given proper advice is not informed by what she did when receiving no, or incorrect, advice. When the ultrasound was arranged, there is no suggestion of reluctance or hesitation because it involved a foreign doctor or a Noumean location or was arranged by Dr Pretorius. Both her dealings with the specialist in Noumea, questioning him about what she should do, and her immediate phone call to Dr Pretorius when she returned to the ship, indicate that she craved advice for her situation and a proper plan to deal with her condition. It seems unlikely that she would disregard medical advice when she was so desirous of obtaining it.
The evidence does not establish that Ms Waine was opposed to attending a hospital in Noumea. In her discussions with her husband and his queries of the staff at the Ramada Hotel about their concerns did not betray any desire to avoid the hospital and medical system in Noumea. [326] Her decision to travel appears to have been based on a misconception that her limited bleeding indicated that she had time to get to Australia and no other options were available. To give that decision great weight is to ignore her misunderstanding of her physical signs and the circumstance that she received no proper advice about the risks of a discharge of the products of conception while in transit, and about available alternative options.
Ms Waine's understanding that the miscarriage could happen at any time does not mean she understood that it would not be preceded by the warning of increased bleeding or that she understood the risks and complications of passing the products of conception at a particular time, on an aircraft or in an uncontrolled environment. She knew that her body could naturally expel the pregnancy products but believed it would happen gradually. She had found her spotting and discolouration to be unchanged over the two or three days until she arrived in Auckland.
To have the risks explained to her would, in my view, likely resonate with Ms Waine as matters of importance. I am not persuaded that costs were a big factor. She had travel insurance, [327] and savings, [328] and she had shown in the past, and on the cruise, in attending Dr Pretorius and in having the ultrasound, that her health trumped questions of cost.
All these factors were matters that would likely lead to a decision that it was safer for her to deal with the problem in Noumea, at the hospital, in care, had the doctor explained this to her.
Carnival relied on evidence that Ms Waine was told by Dr Marchand that she should have the products "sucked out". That is not an answer to her claim. She was aware that medical options existed as she had availed herself of them with her second miscarriage the previous year. Having medical treatment was presumably the reason for her desire to return quickly to Australia. The advice and warnings that were required concerned why, when and where she should have medical treatment, if at all, and that was not part of Dr Marchand's advice.
So Ms Waine opted to take the chance of the discharge of the products of conception not occurring at a particular time, but she did so uninformed of the significant risks, even if some risks were low, or, in the case of psychological trauma, unquantifiable. [329] She never was given the opportunity to make that decision fully or properly informed. And I am persuaded that had she been properly informed, on the balance of probabilities, it is a risk she would not have taken.
This conclusion is supported by the past treatment she had undertaken with her previous miscarriages, where the process was undertaken with specialist assistance in a hospital, a matter that corroborates her expressed "preference" for passing the products of conception in a hospital, especially as her April 2018 pregnancy was more advanced than her previous miscarriages.
Ms Waine and her husband were deeply concerned about her health. If she had concerns about the particular specialist or ignorance about the hospital, these are matters to be completely and properly explained, which was part of the duty to which Dr Pretorius was subject. None of his evidence, or any other evidence in the case, suggested any real risk in a D&C procedure in Noumea compared to Australia. I infer that there was available in Noumea a hospital, or hospitals, that deal with these health issues, including for tourists. Without evidence, I would assume that the hospital treatment would be satisfactory and would be advised to be such by the doctor. Such a conclusion is consistent with the competent advice identified by the experts. It did not include any warning about substandard medical care in Noumea. Neither Dr Lynch nor Dr Roach were minded to temper their advice about options because of any perceived difference in standard of the medical and hospital system in Noumea. And perhaps more importantly, Dr Pretorius referred Ms Waine for an ultrasound examination in Noumea initially, and he believed it to be in a hospital, [330] and he decided to keep her on the ship awaiting that treatment in Noumea. These matters indicate his belief and experience of a satisfactory and appropriate hospital and medical regime there.
In my view, the prudent choice would be to have treatment in Noumea ensuring the miscarriage was complete before returning to Australia. There is nothing in the evidence to indicate that Ms Waine was not prudent in respect of her health. From her enquiries before cruising about the medical facilities available on the cruise, to her willingness to immediately seek medical advice when she noticed discoloured urine, to her early morning attendance on Dr Pretorius, to her attendance upon the specialist in Noumea, to her immediate contact with the doctor on returning to the ship with concerns about what she should do: all show she was open to information, advice and medical assistance. I believe she would have been prudent in deciding her course of action had she been given the appropriate advice, and prudence dictated not travelling indirectly back to Australia with an incomplete miscarriage.
In my view, the defective advice of Dr Pretorius was a necessary condition of the occurrence of the harm of discharging the products of conception in an uncontrolled environment.
Section 5D(1)(b) of the Civil Liability Act also requires consideration of whether it is appropriate that liability should extend to resultant damage, including her psychiatric condition. A denial of this was not strongly pressed by Carnival. In any event, where the proper medical advice would include warnings about the risk of the physical harm that actually occurred - heavy bleeding and discharging the products of conception in an uncontrolled environment, as well as the risk of psychological damage - it seems reasonable and appropriate for liability to extend to the risks eventuating, risks about which she was negligently not advised. There is a real, not merely coincidental, connection with the absence of proper advice and the fulfilment of the risks about which the proper advice would have dealt. [331]
The other causation question is whether the events in Auckland caused her mental illness. Ms Waine suffered physical damage in Auckland Airport, discharging the products of conception in the manner she described, losing blood, being taken by ambulance to a hospital, having a blood transfusion, [332] and taken to an operating theatre and feeling that she might die. The question of whether she suffered a recognised psychiatric condition by reason of these events is a matter to which I will come.
It follows that I am satisfied on the balance of probabilities of a negligent breach of duty causing personal injury and damage.

I. Damages

Ms Waine gave evidence of the assistance provided by her mother and mother-in-law since the cruise. That included washing dishes, cleaning benches, folding clothes, driving Dominic to lessons and sports, feeding the family pets of a cat and a bird. All these things Ms Waine managed by herself before the cruise. At the time of trial, she was seven and a half months pregnant, and with her husband, Scott, working seven days away as a mining electrician before returning for seven days. It seems likely she would have received some assistance from her mother and mother-in-law, at least whilst she has young children. The plaintiff submitted that most of the care is attributable to her reduced capacity since the cruise.
Ms Waine finds it difficult to do five days a week work. She does not look forward to work as she once did. She has not applied for any promotions as she lacks confidence. She is presently working four days a week, but feels better able to cope with three. She had eight months of maternity leave with Dominic, [333] and a similar period might be supposed with her new child.
Ms Waine gave evidence that she sleeps poorly, gets up and checks herself for vaginal bleeding 5 to 10 times per night, has a fear of knives and has irrational thoughts of falling on them and piercing her belly causing bleeding. She thinks of the events of the bleeding in the toilet cubicle daily, described as being like nightmares except they are bad daydreams that happen while she is awake. She feels these recurring memories cause her heart problems, although she has been assured that is not so. She gets benefit from her monthly psychological counselling regarding the techniques taught to her as helpful in reducing her anxiety, helping her go to "a safe, calm place". [334] She hopes that it will help her to fully recover although that has not happened yet. [335] She gave evidence that the counselling has helped preserve her marriage and her work.
Ms Waine also gave evidence of nightmares of dying as she felt she did in the New Zealand hospital. She says she would receive psychiatric treatment if it was offered. Her weight has increased by 30 kgs since the cruise, far more than the pregnancy explains, but she accepts her inability to do domestic duties and a full workload is not due to physical problems.
Ms Waine has had training as an assistant in nursing in 2001, [336] and as an enrolled nurse in 2012, [337] but has never functioned as a nurse save for assisting in the administration of COVID testing swabs for some months during the pandemic. She worked initially in a retirement or nursing home providing care like bathing, feeding, and now works as a rehabilitation officer. She resists social engagements and is stressed by having to reject invitations.
Just as she does at night-time, she says she checks herself, perhaps 20 times per day, to see if she is bleeding. [338] She has taken prescribed antidepressants from 6 to 12 months after the cruise, [339] more recently at an increased dosage of "100" (presumably mg) per day. [340] She has relied more on help from her mother and mother-in-law to manage with Dominic, getting him to school and activities whereas before the cruise, as mentioned, she says she did the cleaning and managed Dominic and her home herself.
Ms Waine claims damages from mental illness occasioned by the circumstances of the miscarriage. She relies on the reports of Dr Andrew Byth, psychiatrist.
Dr Byth diagnosed Ms Waine with post-traumatic stress disorder ("PTSD") with Adjustment Disorder with depressed mood or Major Depression. [341] Her depressive symptoms were more severe than usually present in uncomplicated PTSD.
Dr Byth attributed the psychiatric condition to her difficulty coping with the pain and bleeding associated with the miscarriage, and her distress, anxiety, and shock when subsequently hospitalised. [342] He concluded that her usual work in health and safety would be moderately impaired by her current psychological state, with crying spells, social withdrawal, reduced confidence and intrusive negative thoughts to be a product of her condition. [343]
In a subsequent report, after reviewing Dr Lynch's report, Dr Blyth believed her psychiatric injury would have been "greatly reduced or obviated altogether" had she had proper medical advice and treatment on the cruise. [344]
Dr Doron Samuell, clinical and forensic psychiatrist, was retained by the defendant to review Ms Waine. Dr Samuell expressed some reservations about Dr Byth's conclusion about the cause of the ongoing PTSD, noting uncertainty about whether that could be known "definitely", [345] although he identified "the predominant stressor" of the PTSD which he diagnosed to be "the delivery of her foetus in the Auckland airport". [346] Dr Samuell found the medical records to be consistent with Ms Waine's assertion that she experienced psychological difficulty following the subject incident, and accepted: "The act of miscarriage itself was highly traumatic for her and the manner in which she delivered her foetus in the Auckland airport was extraordinarily traumatic". [347]
Dr Samuell agreed with the diagnosis of Dr Byth. [348]
Dr Samuell was "guarded" about Ms Waine's capacity to make a full remission and was "in considerable agreement" with Dr Byth's view that Ms Waine would make only a partial recovery". [349] Dr Samuell noted she had worked full-time before the cruise but only three of five days up to October 2021. She was taking the antidepressant, Desvenlafaxine, 100 mgs having started on 50mgs, which she found helpful with sleep though she remains unmotivated.
Ms Waine gave evidence of being 34 weeks' pregnant while giving evidence, [350] which means that by now the pregnancy has concluded. Whether a recent birth has any impact, positive or negative, on her condition is unknown as there was no evidence about that, although her inability to fall pregnant since the cruise was expressed to be a matter of concern.
As Dr Samuell and Dr Byth both attribute her psychiatric condition to the events of the miscarriage in Auckland Airport, I am satisfied on the balance of probabilities that the negligence of Dr Pretorius was a necessary condition of the occurrence of the psychiatric harm. She had no similar consequences with her previous miscarriages that occurred in controlled environments, and I accept the common view of the expert psychiatrists that the circumstances of the miscarriage rather than having a miscarriage itself was the "predominant stressor" or cause of the psychiatric condition.

(a) Treatment expenses

Since 2018, Ms Waine has consulted monthly with a psychologist, and has taken prescribed antidepressant medication. Dr Byth recommended two years of treatment with a psychiatrist, and to try higher dosages, up to 200mg daily, of Pristiq, together with mood stabilising medication, low dosages of a major tranquiliser, and rapid eye movement desensitization. This would cost approximately $6,000 over two years, and $8,000 over four years.
Dr Byth expected only partial improvement with treatment, leaving her with chronic markedly severe PTSD, anxiety and depression. He assessed Ms Waine as having moderate impairment with self-care and personal hygiene - referencing her inability to do housework and clean - and her social functioning, characterised by her anxiety, agitation and distress, including in her relationship with her husband, severe impairment in social and recreational activities because of her social withdrawal, anxiety, low moods and crying spells, and with her concentration and persistence, where she cannot focus, has difficulty following instructions, is forgetful, and distracted by flashbacks.
Dr Samuell accepted that there were "no major differences" in terms of treatment recommendations, save that Dr Samuell did not support EMDR treatment. Dr Byth noted an antidepressant cost of $46 per month (or $552 per annum) and $150 per session for the psychologist together at cost of about $2,352 per annum.
Dr Samuell recommended both the continuation of her psychological treatment and quarterly treatment by a psychiatrist , at a cost of about $4,000 over two years, presumably plus medication costs.
The parties agreed on past out of pocket expenses of $4,819.18.
Future expenses of $8,000 for the psychiatrist plus $1,800 per annum for the psychologist whether over the same period or subsequently, in circumstances where Ms Waine's condition is chronic and likely to persist, indicates that I should prefer the $18,000 claimed by the plaintiff rather than $11,378.32 submitted by the defendant, save that I would accept Dr Samuell's conclusion on the EDMT treatment. That was not separately costed. I would allow $17,000 for future medical expenses.

(b) Non-economic loss

Ms Waine's condition is a serious form of PTSD with features of depression and anxiety, perhaps with an adjustment disorder.
The experts agree that it seems likely to persist and only can be improved rather than healed by treatment and medication. It is a condition that, while exacerbated by circumstances such as accounts of childbirth, blood, nightmares, and other events that trigger memories of her experience in Auckland, impacts much of her daily life, social interactions, spousal connection, and work and career.
The submission of 20% of a most extreme case by the defendant is below what I think is appropriate. The plaintiff submits 38%, which may be appropriate, I think, if there was no prospect of improvement, but some improvement is expected. In that event, I would assess Ms Waine as 30% of a most extreme case, equating to a sum of $162,000. [351]

Ms Waine was working full-time before the cruise, but has worked three or four days per week since. She gave evidence that she could not manage five days per week. I accept that evidence, once her condition, agreed by the experts, is accepted. Dr Samuell said, "[H]er current work is a good reflection of her work capacity". [352]
Ms Waine provided a schedule of work and days missed from the month after the cruise. This indicates that she often took sick leave. Unfortunately, the schedule does not cover the previous year so that a control period before the cruise is unavailable to use as a comparator.
Ms Waine's income tax returns and statement of earnings show a relatively stable income other than a substantial reduction in 2020, but the figures do not show a comparison with full-time earnings in the years after 2018. When she appeared to work three days per week, she was taking a number of paid sick days for which she is entitled to compensation. Paid sick leave would not reduce her income recorded in her tax return. However, in the 2018 and 2019 tax years, her tax returns show a separate business number where she earned more than $10,000 over the two years. There was no explanation of this. Nor was there a challenge to her reduced work hours, only whether the reduction was necessary.
Ms Waine's employment role since October 2013 to the present is as a Workplace Health and Safety Advisor, [353] with a full-time workload of 76 hours per fortnight. [354] Her work income identified from her tax returns or annual statement of earnings is as follows: Tax year Income ($) 2015 65,304 [355] 2016 51,738 [356] 2017 52,312 [357] 2018 64,331 [358] 2019 63,683 [359] 2020 48,054 [360] 2021 65,217 [361]

Ms Waine's pay advices in the two months before the cruise show minimal sick leave save for two and a half days in late February. She was working 76 hours of 9 days at 8.5 hours per day (1 day at 8 hours). Thereafter, she took a month of sick leave in May, [362] after her recreation leave ended. [363] After that she seemed to take leave of one day per fortnight [364] often, and worked one half hour less per day. Taking one day of sick leave per fortnight continued until late in 2018.
In November 2018, Ms Waine worked a full 9-day, 76-hour fortnight [365] for the 8 weeks until Christmas, and into the New Year. No clear sick leave, paid or unpaid, appears on her pay advices until April.
In April 2019, Ms Waine commenced 6 days per week at 8 hours per day, or 48 hours rather than 76 hours, a substantial reduction in her work hours. This sometimes involved (with sick leave) as much as 30 hours less than a full-time load per fortnight, which would result in a reduced gross income of about $1,200, perhaps $800 net, per fortnight. Had that continued over four years, that loss would be in excess of $80,000. [366] By July 2019, she was working 9 days some fortnights [367] and 7 days or 8 days [368] on others. [369]
Ms Waine gave evidence, as mentioned, that she worked four days a week, although she struggles with that workload. [370] This is a reduction of one day per fortnight on a full-time load of nine days a fortnight depending on the hours per day. By January 2021, Ms Waine was working 8 days per fortnight at 7.6 hours per day, being 2 days of 7.6 hours less per fortnight than a full-time load of 76 hours. This continued largely to the present.
If Ms Waine was only working at 80% of a full-time load, effectively a four-day rather than a five-day week, as was the case for the past 18 months, doing 60.8 hours of a 76-hour fortnight, she would be losing $653.60 gross per fortnight. [371] Applying a 32.5% tax reduces the amount to $441.18 per fortnight, or $11,470.68 per year.
I would allow this amount for the four and a half years from the April 2018 cruise to date as lost earnings. This calculates to $51,618.
For the future, I would reduce this amount by half, because of the perceived likely improvement as a result of psychiatric treatment. This would calculate to $5,735.34 per year or $110.29 per week for the future, were she to work one day less per fortnight.
If Ms Waine worked until 65, she would work until 2047, or another 25 years. The present value of this loss must be assessed by applying a discount rate of 5%. [372] The 5% tables provide for a multiplier of 754 for a 25-year period (until Ms Waine reaches 65). Although the aged pension is not available until 67, a superannuation pension is ordinarily available at 65, retired or not, and that age seems a more appropriate guide of the anticipated working life for a government employee such as Ms Waine.
The multiplier of 754 on the weekly loss of $110.29 produces a present day value of $83,159. I would discount this by 15% for vicissitudes, and award the sum of $70,685 for lost future earnings. No claim was made for lost superannuation benefits.

(d) Care

Ms Waine's mother and mother-in-law provide care and domestic assistance, principally when Mr Waine is away working, and primarily in respect of her child, Dominic. Much of that care might be expected of Dominic's grandparents irrespective of Ms Waine's condition, and is likely to continue, especially if she now has a newborn, as is likely.
As Ms Waine is able to take on a substantial workload in her job, I should not exaggerate her need for self-care. Dr Samuell thought it reasonable "due to her mental health difficulties" that she receive assistance "from her mother and an external cleaner". [373] He opted for a period of two years. No compensation for gratuitous care is to be awarded unless the services are provided for at least six hours per week for at least six consecutive months. [374]
Given that Ms Waine is expected to improve with psychiatric treatment, that there is uncertainty as to how much of the care given by her son's grandmothers can be attributed to her mental condition, that the need for care for the children would diminish with their age and the presence of her husband who also plays a role in the domestic tasks, my conclusion is that little amount for self-care is appropriate for Ms Waine as she works close to a full-time load. But much of her claim is based on her inability to provide domestic services to her husband and child or children, which is also compensable under s 15B of the Civil Liability Act. I am of the view that a buffer of $20,000 should be awarded for past and future care under ss 15 and 15B.

(e) Conclusion

Accordingly, the damages to be awarded are: Head of damage $ Non-economic loss at 30% of Most Extreme Case 162,000 Past economic loss 51,618 Future lost earning capacity 70,685 Buffer for domestic care 20,000 Past out of pocket expenses (agreed) 4,819 Future medical expenses 17,000 Total 326,122

J. Other claims

There is no utility in considering the additional elements of the contract and statutory claims. Nor were they the subject of submissions by Ms Waine.

K. Contributory negligence

Carnival maintained a claim for contributory negligence, and included a one-paragraph submission in its closing submissions. That submission concluded: "she paid no heed to the warning advice that Dr Pretorius [gave] her on the phone on 6 April 2018". I have not found this to be established. It would provide a proper basis for a claim for contributory negligence if it were proved, at least if it was not a complete answer to Ms Waine's claim. But no warning was given, and contrary to the submissions, Ms Waine did seek "medical treatment [and] advice". [375] In the result, there is no contributory negligence.

L. Costs

As a result of an offer of compromise served by the plaintiff and disclosed to the Court after judgment was given, the defendant did not oppose the cost order sought.

M. Orders

The orders of the Court are: 1. Judgment for the plaintiff in the sum of $326,122. 2. Order the defendant to pay the plaintiff's costs, those costs to be assessed on an indemnity basis from 22 June 2022.

Endnotes

Amended Statement of Claim ("ASOC"), 20/7/22, at [22].
Defence to Amended Statement of Claim, 20/7/22, at [22(c)].
ASOC at [14B(b)].
Plaintiff's Outline of Submissions ("POS") at [58(d), (e)].
POS at [58(f)].
POS at [58(g), (i)].
POS at [58(h)].
ASOC at [22(j)].
Cf ASOC at [22(i)].
Cf ASOC at [22(e)].
Cf ASOC at [22(f), 22(g)].
Cf ASOC at [22(h)].
POS at [60(e), (f) and (g)].
Tcpt, p 129(41-48).
Tcpt, p 36(32-36).
Tcpt, p 36(8-9).
Tcpt, p 36(16-19).
Tcpt, p 69(20).
Tcpt, pp 93(36)-94(12).
Tcpt, p 36(42).
Tcpt, p 37(15-19).
Tcpt, p 45(13-21).
Tcpt, p 37(22-43).
Exhibit E.
Tcpt, p 37(29).
Tcpt, p 38(45)-39(10).
Tcpt, p 39(17).
Tcpt, p 46(8).
Exhibit A, p 94.
Tcpt, p 45(2).
Tcpt, p 45(39-43).
Tcpt, p 45(29).
Tcpt, p 46(33-37).
Tcpt, pp 46(40)-47(3).
Tcpt, p 47(6).
Tcpt, p 47(25-37).
Tcpt, p 48(15-22).
Tcpt, pp 48(43), 49(12-17).
Tcpt, pp 49(17), 96(45-49).
Tcpt, p 48(46), p 49(33).
Tcpt, p 49(3).
Tcpt, p 49(4).
Tcpt, p 49(8), see also ASOC at [7(f)].
Tcpt, p 49(35-41).
Tcpt, p 49(40), cf ASOC at [7(g), (h)] and Exhibit 1, p 1.
Tcpt, p 49(46).
Tcpt, pp 49(50)-50(3).
Tcpt, p 98(48-50).
Tcpt, p 53(39).
Tcpt, p 50(7-16).
Tcpt, p 50(26-27).
Tcpt, p 50(28-29).
Tcpt, p 51(13-21).
Tcpt, p 51(46-47).
Tcpt, p 53(1-39).
Tcpt, p 53(41).
Tcpt, p 54(13), p 101(48).
Tcpt, p 102(2).
Tcpt, p 55(18).
Tcpt, p 55(17).
Tcpt, p 56(2).
Tcpt, p 106(10).
Tcpt, p 56(10-13).
Tcpt, p 56(37).
Tcpt, p 56(46).
Tcpt, pp 56(50)-57(2).
Tcpt, p 104(15-16).
Tcpt, p 57(2-9).
Tcpt, p 57(12-29).
Tcpt, p 57(27-28).
Tcpt, p 57(36).
Tcpt, p 57(42).
Tcpt, p 106(30).
Tcpt, p 107(6).
Tcpt, p 107(31).
Cf Tcpt, p 58(1).
Tcpt, p 108(26).
Tcpt, p 58(6).
Tcpt, p 58(9-35).
Tcpt, p 58(19, 35).
Tcpt, p 58(25-28).
Tcpt, p 108(30).
Tcpt, p 108(41).
Tcpt, p 110(15).
Tcpt, p 110(21-30).
Tcpt, p 111(6).
Tcpt, p 58(39-41)
Tcpt, p 116(26).
Tcpt, p 58(44).
Tcpt, p 118(26, 50).
Tcpt, pp 116(37), 118(4).
Tcpt, p 58(47).
Tcpt, p 117(6-11).
Tcpt, p 116(46).
Tcpt, p 118(15-22).
Tcpt, p 59(27).
Tcpt, p 59(19-21).
Tcpt, p 59(36-42).
Tcpt, p 60(8).
Tcpt, p 60(11-13).
Tcpt, pp 60(25), 122(48).
Tcpt, p 60(17).
Tcpt, p 127(24-27).
Tcpt, p 128(23-26).
Tcpt, p 129(15).
Tcpt, p 61(31).
Tcpt, p 61(35).
Tcpt, p 61(47).
Tcpt, p 61(40-44).
Tcpt, p 63(14).
Tcpt, p 63(25).
Tcpt, p 63(20).
Tcpt, p 63(33).
Tcpt, p 63(29-35).
Tcpt, p 127(38).
Tcpt, p 127(35).
Tcpt, p 63(43).
Tcpt, p 64(20).
Tcpt, p 65(13).
Tcpt, p 64(24-27).
Tcpt, pp 65(16)-66(20).
Tcpt, p 66(22-41).
Tcpt, p 67(22).
Tcpt, p 67(33).
Tcpt, p 68(6).
Tcpt, p 68(36-43).
Tcpt, p 69(20-24).
Tcpt, p 69(28).
Tcpt, p 69(33).
Tcpt, p 70(14).
Tcpt, p 71(11).
Tcpt, p 134(18).
Tcpt, p 71(35-43).
Tcpt, p 72(2-12).
Tcpt, pp 132(36)-133(3).
Tcpt, p 133(6).
Tcpt, p 72(16).
Tcpt, p 72(19).
Tcpt, pp 72(22-30), 74(18-23).
Tcpt, p 134(5-12).
Tcpt, pp 177(48)-178(6).
Tcpt, p 179(26).
Tcpt, pp 179(10)-180(26).
Tcpt, p 181(40).
Tcpt, p 181(49).
Tcpt, p 183(47-50).
Tcpt, p 183(38).
Tcpt, p 183(15).
Tcpt, p 184(28).
Tcpt, p 183(26).
Tcpt, p 185(12).
Tcpt, p 185(20-25).
Tcpt, p 189(10-20).
Cf Tcpt, p 201(9-11).
Tcpt, p 141(45).
Tcpt, pp 141(47)-142(18).
Tcpt, pp 142(47)-143(5).
Tcpt, p 142(48).
Tcpt, p 144(10).
Tcpt, p 144(11-15).
Tcpt, p 160(42).
Tcpt, p 144(25-27).
Tcpt, p 145(24-31).
Exhibit 5
Tcpt, p 143(14), p 273(40).
Exhibit 5.
Exhibit 5.
Tcpt, p 49(36).
See also ASOC filed in court, to the same effect.
ASOC at [7(a)].
Tcpt, p 96(42).
Tcpt, p 98(10).
ASOC at [10(a)].
Tcpt, p 108(10).
Tcpt, pp 104(15), 124(23).
Tcpt, p 123(24).
Defendant's closing submissions ("DCS"), 25/7/22, at [16].
Exhibit 4; Defendant's Court Book ("DCB"), p 424.
Tcpt, p 144(11-20).
Exhibit 5, p 9; DCB, p 436.
Tcpt, p 143(42-48)
On April 4, 2018 09.34 UTC+11.
Exhibit 5, pp 3, 4, 7, 10 at 3.2.
Exhibit 5, p 6, at 6.9; DCB, p 433.
Exhibit 5, p 9, at 9.8 in bold; DCB, p 436.
Exhibit 5, p 7; DCB, p 434.
Tcpt, pp 153-154.
Tcpt, pp 154(7-10, 23-30), 158(25-31).
Tcpt, p 154(33).
Tcpt, p 154(38).
Tcpt, pp 252(40)-253(22).
Tcpt, p 160(1-10).
Tcpt, p 274(45).
Tcpt, pp 160(42)-161(1).
Tcpt, p 161(13-19).
Tcpt, p 142(46).
Tcpt, p 178(33-38).
Exhibit 5, p 6 in bold; DCB, p 433.
Exhibit 5, p 6.8; DCB, p 433.
Tcpt, pp 142(43), 143(42-48), 142(45)-143(7).
Tcpt, p 142(43).
Exhibit 5, p 6 in bold; DCB, p 433.
Tcpt, p 162(23).
Tcpt, p 164(11-20).
Tcpt, p 169(29).
Tcpt, p 169(36-48).
Tcpt, p 171(17).
Tcpt, p 267(39).
Tcpt, p 269(5).
Tcpt, p 269(10-20).
Tcpt, p 271(43-46).
Tcpt, p 272 and especially p 273(20-25).
Tcpt, p 274(30).
Tcpt, p 141(36-45).
Tcpt, p 152(25-30).
Tcpt, p 290(3-27).
Tcpt, p 290(36).
Exhibit 5, p 2.9; DCB, p 429.
Tcpt, pp 145(13)-146(1), 149(50)-150(3), 281(26)-282(8), 281(56)-282(8), 283(24)-(30).
Tcpt, pp 161(23), 162(7-25).
E.g. Tcpt, p 289(24-27).
Tcpt, pp 144(11-13), 159(18-20), 161(13-.19).
Tcpt, p 156(17).
Tcpt, p 156(1-10).
Tcpt, p 157(33).
Tcpt, p 153(4).
Tcpt, pp 145(23), 145(41), 146(3-7).
Tcpt, p 273(46-50).
Tcpt, p 144(23-26).
Tcpt, p 146(27).
Tcpt, p 146(22).
Tcpt, p 160(42).
Tcpt, pp 286(15)-287(32).
Tcpt, p 290(27).
Tcpt, p 145(22-25).
Tcpt, p 145(30).
Exhibit 5, p 2; DCB, p 429.
Tcpt, pp 288(43)-289(20).
Exhibit 5, p 6; DCB, p 433.
Cf Exhibit 5, p 2, at 13:09; DCB, p 429.
Tcpt, p 158(12-22).
Tcpt, pp 287(40)-288(2).
Exhibit 5, p 2; DCB, p 429.
Exhibit 5, p 2; DCB, p 429.
ASOC, 20/7/22, at [10(a)].
Tcpt, p 290(10-23).
Tcpt, p 290(29).
Tcpt, p 145(24).
See Tcpt, p 291(33-34).
Paul v Cooke [2013] NSWCA 311 at [93].
Tcpt, p 145(41).
Tcpt, pp 145(42)-146(1).
Tcpt, p 267(35-39). Exhibit 5, pp 5-6; DCB, pp 432-433.
Exhibit 5, p 4; DCB, p 431.
Tcpt, p 268(48).
Tcpt, p 269(15).
Tcpt, p 279(27).
Tcpt, p 280(7).
Tcpt, p 285(48-49).
Exhibit 2, DCB, p 377.
Ibid at DCB, p 378.
Exhibit 2; DCB, p 383.
See Ibid at DCB 378.
Exhibit 2; DCB, p 379.
Exhibit 2; DCB, p 379.
Ibid at DCB, p 380.
Ibid.
Cf Exhibit 2; DCB p 383.
Exhibit 2; DCB, p 388.
See Exhibit 2, DCB, p 392.
Exhibit 2; DCB, p 392.
Exhibit 2; DCB, p 392.
Exhibit 2; DCB, 393.
Tcpt, p 248(43).
See Exhibit A, pp 233-234.
Exhibit A, p 234.
Exhibit A, p 252.42.
Exhibit A, p 253.19.
Exhibit A, p 253.30-45.
Exhibit A, p 255.39.
Exhibit A, pp 256-257.
Exhibit A, p 257, Q&A 18.
Exhibit A, p 258, Q&A 19.
Exhibit A, p 258, Q&A 20.
Exhibit A, pp 259-260, Q&A 24.
Exhibit A, p 260.
Exhibit A, pp 260-261.
Exhibit A, p 261, A26.
Exhibit A, p 261, A27.
Exhibit A, p 263.
Exhibit A, p 264.
Tcpt, p 233(11).
Tcpt, p 234(9).
Tcpt, p 234(15-25), see also tcpt, p 239.
Tcpt, p 248(20-33).
Tcpt, p 250(11).
Tcpt, pp 253(25)-254(8).
Tcpt, p 271(43-46).
Tcpt, p 273(20-25).
Tcpt, p 275(29-33).
Tcpt, p 281(33).
Tcpt, p 281(40).
Tcpt, p 284(5).
Tcpt, p 292(33).
Tcpt, p 295(10).
Tcpt, p 297(43).
Tcpt, p 285(44).
Tcpt, p 291(41).
Tcpt, p 291(45).
Exhibit 5, p 6; DCB, p 433.
Exhibit A, p 236.
Exhibit A, p 246.
Tcpt, pp 294(33)-295(27).
Tcpt, p 296(27-36).
Tcpt, p 297(2).
Tcpt, p 281(33).
Tcpt, p 281(28).
Tcpt, p 281(44).
Tcpt, p 282(2).
Tcpt, p 282(7).
Tcpt, pp 281(25)-284(12).
Exhibit A, p 260.
Tcpt, p 271(43-46).
Tcpt, p 276(49), p 298(35-42).
Tcpt, p 108(26).
Tcpt, p 243(15).
Tcpt, pp 64(10), 207(1-40).
Tcpt, p 39(17).
Tcpt, p 192(46).
Tcpt, p 243(15).
Tcpt, p 296(42-44).
Cf Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19.
Tcpt, p 66(41).
Tcpt, p 138(6-10).
Tcpt, p 86(34-36).
Tcpt, p 86(50).
Tcpt, p 89(6-13).
Tcpt, p 89(23-27).
Tcpt, p 72(40-44).
Tcpt, p 73(20).
Tcpt, p 73(29).
Exhibit A, p 272.
Exhibit A, p 274.
Ibid.
Exhibit A, p 287 at [6].
Exhibit 3; DCB, pp 408-410.
Exhibit 3, p 16.9; DCB, p 411.
Exhibit 3, p 15.7; CB, p 410.
Exhibit 3, p 12.4 at DCB, p 407.
Exhibit 3, p 12.9; DCB, p 407.
Tcpt, p 135(28).
By reason of the statutory reduction to 23%, see Civil Liability Act, s 16(3).
Exhibit 3, p 18.7; CB, p 413.
Exhibit A, p 546.
Exhibit A, p 550.
Exhibit A, p 556.
Exhibit A, p 558.
Exhibit A, p 574.
Exhibit A, p 590.
Exhibit A, p 606.
Exhibit A, p 623.
Exhibit A, p 620.
Exhibit A, pp 650-657.
Exhibit A, p 647.
E.g. Exhibit A, pp 652, 655-657.
Exhibit A, p 666.
26 fortnights x 4 years x $800.
Exhibit A, p 684.
Exhibit A, pp 691, 693, 704, 706, 708.
Exhibit A, p 690.
Tcpt, p 134(18).
20% of 76 x 43 gross.
Civil Liability Act 2002, s 14(2).
Exhibit 3, p 18.4; DCB, p 413.
Civil Liability Act 2002, s 15(3). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2022

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Judgment (25 paragraphs)

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