New South Wales Court of Appeal CITATION : EAGLE & ANOR. v. PROSSER [1999] NSWCA 166 FILE NUMBER(S) : CA 40677/98 HEARING DATE(S) : 7 April, 12 May 1999 JUDGMENT DATE : 4 June 1999 Sandra Eagle (1 Appellant) PARTIES : North Coast Area Health Service (2 Appellant) Sarah Kimball Prosser (Respondent) JUDGMENT OF : Spigelman CJ at 1; Priestley JA at 2; Powell JA at 54 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 20460/94 LOWER COURT JUDICIAL OFFICER : Bruce J COUNSEL : P.L.G. Brereton SC (Appellants) P.M. Donohoe QC/N. Perram (7 April 1999)/R. Butler (12 May 1999) (Respondent) SOLICITORS : Blake Dawson Waldron (Appellants) Colquhoun Murphy (Braddon ACT) (Respondent) CATCHWORDS : APPEAL AND NEW TRIAL - Interference with primary judge's findings of fact - Functions of appellate court - General principles - Manner of re-evaluation of trial evidence; DAMAGES - Negligence - Causation - Proof of - As the or a cause of loss; NEGLIGENCE - Essentials of cause of action - Damage - Causation - Medical negligence - Alleged defective advice by medical practitioner - Alleged defective diagnosis - Whether established - Whether caused loss DECISION : Appeal allowed in part - Limited new trial ordered 21 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40677/98 CLD 20460/94 SPIGELMAN CJ PRIESTLEY JA POWELL JA 4 June 1999 EAGLE & ANOR. v. PROSSER JUDGMENT 1 SPIGELMAN CJ: I agree with Priestley JA. 2 PRIESTLEY JA: PRIESTLEY JA: Mrs Sarah Prosser gave birth to her first child on 25 December 1985 and her second on 11 September 1988. She was living at Coffs Harbour at the time of both births. The doctor she consulted during both pregnancies and who delivered both of her children was Dr Sandra Eagle. After the birth of her second child, Jordan, Mrs Prosser suffered considerable pain and a series of illnesses and operations. These ended with her being disabled in a number of ways, she became unable to work and her enjoyment of life was very significantly affected. She brought proceedings as plaintiff against Dr Eagle as first defendant and the North Coast Area Health Service as second defendant. The second defendant conducted the hospital in which her children had been delivered. The plaintiff claimed it was the defendants' negligence that had caused all the damage she suffered following the birth of her second child. Her case was heard by Bruce J who found in her favour. He awarded $1,047,064.55 damages against the first defendant and $1 damages against the second defendant (which I will call the hospital). He found the first defendant had been guilty of an act of negligence on a specific day (either 7 or 9 September 1988) before the birth of Jordan, and both she and the hospital of different negligence, after the birth. 3 The defendants appealed. In my opinion the plaintiff did not make out a case before Bruce J that Dr Eagle had been negligent on 7 or 9 September 1988. Put shortly, in ordinary language, I do not think that the unhappy events which overtook the plaintiff after the birth of her second child resulted from any fault on the part of Dr Eagle before Jordan's birth. It follows, in my opinion, that the judgment against her cannot stand on the basis upon which the trial judge decided it. At this point, I will not go into the other issues that must be decided because of this conclusion, but will explain why I have reached it. Bruce J's reasons . 4 The way in which Bruce J reasoned towards his conclusion that the defendants were liable to the plaintiff was as follows. 5 Factual findings. Bruce J narrated the history of what happened to the plaintiff. Many of the facts were common ground, some were disputed. The following is a summary of the relevant events as he found them to be. 6 The plaintiff's second child was conceived some time in December 1987. On 14 January 1988 the plaintiff saw Dr Eagle about her pregnancy. From then on she saw her from time to time. Bruce J found that "Ante-natal investigations were all normal". 7 On 19 February 1988 when the plaintiff consulted Dr Eagle concerning a pain in her abdomen, Dr Eagle diagnosed a hernia which she said had developed because of rapid increase in the growth of the plaintiff's abdomen. The plaintiff was concerned at this stage that she was putting on weight much more quickly than she had during her first pregnancy. She was worried also that delivery of her second child might be painful because of the hernia. Although her preference was to have a vaginal delivery, if the hernia were likely to cause strong pain she said she would prefer to give birth by caesarean section. Bruce J accepted the plaintiff's recollection that Dr Eagle had said a caesarean would not be necessary as pain from the hernia would not cause a problem. 8 On 28 April 1988 the plaintiff consulted Dr Eagle regarding the possibility of giving birth by caesarean section. The plaintiff was still concerned by the weight she was putting on. Dr Eagle thought there was no medical reason for a caesarean birth. 9 From July to August 1988 the plaintiff saw Dr Eagle on a number of occasions. The plaintiff said she recalled discussing a caesarean birth with Dr Eagle again at the end of July. In a further consultation at the end of August 1988 the plaintiff again raised the possibility of having a caesarean birth, because she was worried about the weight she was carrying and the probable rapidity of the labour, which made her think that a natural birth might be painful. Dr Eagle said the birth would be "fine". At another consultation in August the plaintiff similarly raised concerns about possible complications with a natural birth. Dr Eagle at all times told the plaintiff that there was no reason for the birth to be by caesarean section. 10 What turned out to be, in Bruce J's opinion, the critical consultation between the plaintiff and the first defendant, took place on 7 or 9 September 1988. Not stated by Bruce J when describing this consultation was the fact that when it took place the baby was thought to be overdue. Dr Eagle told the plaintiff she intended to bring about the birth by induction on 12 September if the child had not previously been born. The plaintiff said that she would prefer an epidural caesarean to an induced birth. She told Dr Eagle of horrible experiences she knew of with induced births. She mentioned her mother had had one of these. Bruce J accepted the plaintiff's evidence that the first defendant had said that epidural caesarean was "not an option" as it was "a major operation and you may be laid up for six weeks and you don't want to be caught up with that". Bruce J also recorded that the plaintiff understood that if the need for a caesarean arose it would be done. 11 On 11 September, the day before the date of the proposed induction, the plaintiff went into spontaneous labour and was taken to the hospital. Bruce J accepted the following account of the birth: "Mrs Prosser's cervix was fully dilated but she was told that the ring of the cervix was slipping down. Dr Eagle informed Mrs Prosser that she would lift the ring of the cervix up with her hand while Mrs Prosser pushed. Mrs Prosser felt a violent contraction, and both heard and felt popping, snapping and tearing inside her, akin to the sound made when one's joints are popped. When the baby's head emerged Dr Eagle told Mrs Prosser that his shoulders were stuck, and that she would place her hand inside in order to rotate the shoulders and deliver the child. Upon this occurring Mrs Prosser experienced another large contraction, and her son was born." At birth Jordan weighed (in the old measurement) almost ten pounds. 12 After the birth the plaintiff experienced considerable pain. Bruce J set out the details. At first the first defendant and the persons attending the plaintiff in the hospital thought, and told the plaintiff, that her pain was the aftermath of having had a big baby. On 14 September 1988 the hospital physiotherapist, (Mrs Muir), told the plaintiff that her opinion was that the symphysis pubis had separated. The symphysis pubis is the meeting place of the two pubic bones and consists of a disk of fibre cartilage and two connecting ligaments. The physiotherapist did not tell Dr Eagle of this. Nor did the plaintiff, as she thought the hospital would have done so, or already knew. In following months the plaintiff continued to have pain and other problems for which she was treated by the first defendant and other doctors. 13 In February 1989 the plaintiff went to live in Canberra. There she was examined and treated by a different set of medical practitioners. X-rays disclosed "disalignment at the symphysis pubis". This was related to the popping and snapping which the plaintiff had felt in the course of the delivery of the baby. Her now attending doctors agreed that she needed stabilisation of her pelvis. In September 1989 she underwent surgery during which contoured plates were inserted to stabilise her pelvis and a compression plate and screws fixed to her symphysis pubis. She continued to have pain and problems and eventually (June and July 1990) had successive operations in which the pubic plates and screws were removed and then the two plates and screws holding the fusing symphysis pubis were removed. These operations in turn caused further problems. Attendances and operations continued. The description of the plaintiff by one of the doctors as "unfortunate" is an understatement. Again however I do not include full detail in this summary of Bruce J's fact finding, because the long history of what happened to the plaintiff after the birth of Jordan is not relevant to the question raised by the defendants in the appeal, which became narrowed to whether the first defendant was in breach of duty in what took place between her and the plaintiff in the consultation of 7 or 9 September 1988. It is sufficient to note that among a number of other procedures, the plaintiff underwent a hysterectomy in 1992, her symphysis pubis remained unstable, causing problems with walking, among other things, and she continued to have bladder problems and problems with defecation. 14 Reasons for finding liability. Bruce J said there was a wide field of medical opinion which lent substantial weight to the plaintiff's allegations of negligence against the defendants. However, as far as I can see, the only expert evidence relevant to the actual finding of negligence that he made was that of Dr Chiragakis. Dr Chiragakis said he himself would have agreed to the plaintiff's request for a caesarean section at thirty-eight to thirty-nine weeks. Bruce J then recorded him as having been of the view that the first defendant was negligent in telling the plaintiff that a caesarean was not an option without any further discussion regarding risks. In Dr Chiragakis's opinion, said Bruce J, a caesarean was an option and it was misleading to say it was not. Dr Chiragakis was also of the opinion that if the plaintiff had had a caesarean section on the balance of probabilities the diastasis (separation) of the symphysis pubis would not have been so severe although it would have happened to some extent in any event due to "the Relaxin effect of the pregnancy". This was a reference to the softening of the symphysis pubis naturally occurring in women about to give birth caused by a hormone called Relaxin. This opinion by Dr Chiragakis concerning the relation between the birth not being by caesarean section and the problem with the symphysis pubis was disputed by other expert evidence, which attributed the diastasis entirely to the Relaxin. There is no need for the purposes of the appeal to consider this dispute, which Bruce J resolved in favour of the plaintiff. The whole argument raised by the defendants (both being named as appellants in the appeal) was whether the first defendant was negligent in her advice to the plaintiff on 7 or 9 September. 15 Bruce J recorded at this point that Dr Chiragakis had also given evidence concerning what happened in the immediate post natal period and had expressed the opinion that the diastasis should have been picked up by the first defendant at the six week post natal check which she held, by simply arranging an x-ray; had this been done the plaintiff's suffering probably would have been much less. 16 Bruce J then summarised the evidence of a number of other medical experts which he said supported the views of Dr Chiragakis. This evidence was to the effect that the plaintiff's subsequent problems were probably caused by the pelvic disruption which happened during the delivery. They did not go to the issue of the advice given by the first defendant to the plaintiff on 7 or 9 September. Next, Bruce J summarised the expert opinion of the defendants' witnesses. His summary related the parts of their evidence that dealt with the causal link between the plaintiff's not having had a caesarean and her subsequent major problems. 17 Having summarised the evidence the trial judge then said he accepted the evidence of Dr Chiragakis that the plaintiff's injuries were a result of the birth and that all the physical consequences flowed from the injuries suffered during the birth. 18 The trial judge then passed to the question of breach of duty. The entirety of his reasoning about this was as follows: "Mrs Prosser was entitled to a standard of care of an ordinary skilled person exercising and professing to have that special skill (Rogers v Whittaker (1992) 175 CLR 479 at 483). In my view the evidence established that Dr Eagle was in error in informing Mrs Prosser (as I hold she did inform her) that a caesarean 'was not an option'. I accept the version of the conversation given by Mrs Prosser and I do not accept Dr Eagle's denial that the words were spoken. The evidence of Dr Chiragakis establishes that in the circumstances of the present case a caesarean delivery was an option and in the event was an option which should have been pursued. Mrs Prosser was entitled to have been referred to a medical practitioner who was able to perform a caesarean birth with the support of Dr Eagle and I do not accept that Dr Eagle gave appropriate advice to Mrs Prosser or made any appropriate attempt to refer her to such a medical practitioner when Mrs Prosser sought the birth technique in the circumstances of Mrs Prosser's medical condition as it was known to Dr Eagle (including the assault to which she had been subjected). In my view on the balance of probabilities the plaintiff would not have sustained the injuries which she did sustain had there not been a breach by Dr Eagle of the duty which she owed to Mrs Prosser of referring her for the performance of a caesarean birth when requested to do so and in the circumstances of Mrs Prosser." 19 Bruce J went on to say that if the first defendant had referred the plaintiff for a caesarean birth, such a birth would have been arranged. He then referred to an alternative basis for liability relied on by the plaintiff based on the non detection of the diastasis of the symphysis pubis in the immediate post natal period. His view was that basis was also made out but that no significant damages flowed from it. It was this basis which had been relied upon against the second defendant. About this Bruce J said "...I accept that the physiotherapist employed by the second defendant, Mrs Muir became aware of the problem but apparently did not communicate the information to any treating doctor or record it in the hospital records. In my view such conduct constitutes an actionable breach of duty but the damages are minimal." 20 It was this view which led him to award only $1 damages against the second defendant. Submissions for first defendant in the appeal . 21 On the liability of the defendants, their counsel submitted to this court that (1) the trial judge's findings of fact on matters essential to his conclusion the first defendant was in breach of duty were vitiated by inadequacy of reasons, (2) the trial judge was in any event wrong in law as to the first defendant's breach of duty, (3) the trial judge was either wrong in law, or had given inadequate reasons, in holding there was a causal link between the breach of duty and the damage suffered, and (4) that the alternative basis for finding liability was vitiated for lack of reasons. 22 There were some further arguments about the method of calculating some aspects of damages. 23 I will deal first with submission (2). This in itself has two parts. The finding of breach of duty, it was submitted, depended upon two things. One was the meaning the judge attached to the words "was not an option" which he found were used on 7 or 9 September 1988, and the other was his understanding of Dr Chiragakis's evidence about duty. I have earlier set out, in describing the trial judge's summary of the evidence what he said in that summary was Dr Chiragakis's view. When he came to deal with it again, in the reasoning part of his opinion, he attributed to Dr Chiragakis's evidence the opinion that the caesarean delivery was an option which in the event should have been pursued. 24 In Dr Chiragakis's report letters which were in evidence there are two passages which, taken in isolation, support the trial judge's view that Dr Chiragakis was of this opinion. In a report letter dated 6 February 1996 Dr Chiragakis said "I would have given her a Caesarean Section and yes, Dr Eagle should have arranged for a Caesarean Section". 25 Part of the last report letter (dated 16 January 1997) written by Dr Chiragakis before the trial was as follows: "I have been asked to assume that Sarah Prosser had asked Dr Eagle for a Caesarean Section at about 39 to 40 weeks as she was concerned about the size of her babe and so did not want a bad birth experience. I suspect there may have been an underlying fear of worsening her compromised bowel function (motility and defecatory disorder) but I do not understand Sarah to have told Dr Eagle about that condition on that day. Apparently Dr Eagle, when asked for a Caesarean, told Sarah that a Caesarean was not an option without any further discussion regarding risks. In fact, a Caesarean was an option and it was misleading to say it was not. I would have expected a reasonably competent doctor of Dr Eagle's experience, when asked for a Caesarean at that stage of her pregnancy, to put her in touch with a doctor who would do one rather than mislead her by saying it was not an option." 26 The trial judge appears to have based his own opinion on these parts of the two report letters. 27 The sentence from the earlier report letter was an answer to question 3 in a letter to Dr Chiragakis from the plaintiff's solicitors, dated 18 January 1996. The question in the letter referred to an enclosed photograph of the plaintiff three weeks before Jordan's birth and then asked, in view of the plaintiff's size as indicated in the photograph, "would you have given her a caesarean if it had been requested. If your answer is in the affirmative, do you believe that if requested, Dr Eagle should have arranged for a caesarean delivery in the circumstances?" 28 These passages in Dr Chiragakis's letter reports need to be considered in the light of the evidence given by the plaintiff of what happened at the consultation of 7 or 9 September and of Dr Chiragakis's oral evidence. The plaintiff's evidence in chief of her discussions with the first defendant about the possibility of a delivery by caesarean section was as follows. 29 Some time in February 1988 she developed a sharp pain in her abdomen which the first defendant said was from a hernia. The plaintiff said in evidence: "I asked her if she felt the pain flared up during labour because it was very sharp and she said she didn't think it would. Q. Did you say something at that stage in connection with the method whereby you might have the baby? A. Yes, in discussing the pain from the hernia whether or not it would interfere with the labour and I said because my birth with Jarryd had been so wonderful I didn't want anything to go wrong with this one and if she felt the pain would flare up I would prefer to have a caesarean. Q. Do you recall what her reaction was? A. It won't be necessary. Q. I am sorry? A. She said it would not be necessary, it was not going to be a problem." 30 The next evidence on this point was as follows: "Q. Did there come a time in August of 1988 when you went to see Dr Eagle and had a certain discussion? A. Yes, I was asking her about the size and she said that she felt the labour would probably be quick and possibly early because I was carrying so much weight and I asked then, because it was so quick, would it be manageable, would it be something I could cope with or could we give it a miss and have a caesarean and she said no, it would be fine, like Jarryd's was. Q. Within a week or two of that visit do you recall there being another visit where similar matters were discussed? A. Yes, she examined my abdomen and said one reason I was so large was because he had not curled up in the foetal position, he was in a position as if sitting on a chair. Q. Was there any discussion on that occasion about method? A. Just that I couldn't figure out how he would get out if he was in that position and I was worried about being damaged. Q. Do you recall any discussion on that occasion about the method of the birth? A. I asked her again if there were going to be any complications that I just didn't want to have a horrible birth experience and I would rather have an epidural caesarean. Q. What did she say to that? A. No, it would be fine, everything would be fine." 31 The next occasion was that of 7 or 9 September 1988. This was the consultation during which the trial judge thought negligent advice had been given. 32 The plaintiff had been of the understanding that the child was due, in the ordinary course, on 27 or 28 August. She was asked what her purpose was in seeing the first defendant on 7 or 9 September. Her evidence proceeded: "A. At that stage I was having frequent check ups to see how things were progressing and she said at that appointment if the baby was not born by Monday she was going to put me into hospital for an induction. Q. Did you say something to her then? A. Yes, I began to cry and I told her that I didn't like the idea of an induction at all, that I had grown up with horror stories of induction because of experiences my mother had, and also experiences of friends who had induction and for me at that time it was just the worst possible scenario and I would rather have an epidural caesarean. Q. What did she say to that? A. She said technology had changed since my mother's day and they had better drugs since Jarryd's birth. I said that may be but to me it was the scariest thing, I would rather not face that at all, I would rather have an epidural caesarean. Q. What did she say? A. She said it was not an option, epidural caesarean is a major operation and you may be laid up for six weeks and you don't want to be caught up with that." 33 In cross-examination she was asked whether the first defendant had not said a number of things to her in the course of her pregnancy consultations, which she denied. (The first defendant later gave evidence of discussion of the kind denied by the plaintiff. As the judge did not accept the first defendant, there is no need to refer to the first defendant's version except when it makes it easier to understand the evidence which the judge either explicitly or implicitly accepted.) The relevant parts of cross-examination are: "Q. At this point in time during the course of Dr Eagle's management, those couple of days or so before the delivery, do you recall the length of time that it took to discuss the possibility of a Caesarean section? A. We were not discussing the possibility of a Caesarean section. I recall trying to explain to her my fears, how they were so deep-seated about induction, when I asked for an epidural Caesarean it was not discussed, it was dismissed." ..... "Q. Would you have undergone a Caesarean section even though there was a greater chance of you having a longer recovery period? OBJECTION. ALLOWED Q. If you were told that you would have a longer recovery period if you had a Caesarean, opted for a Caesarean as opposed to natural delivery, would you have gone ahead with the Caesarean? A. Would the natural delivery have included an induction? Q. Yes? A. I would still have gone with the Caesarean had the natural delivery included the possibility of an induction." ..... "Q. You have told us that you would have gone ahead with a Caesarean section and obviously without any detailed explanation of the increased risks of a Caesarean section over and above natural delivery in your case - I take it your preference was if it was reasonably possible to have a Caesarean section, is that right, because you wanted to avoid the possibility of an induction? A. I did not want to be induced." ..... "Q. In particular is not this the situation, that on a number of occasions during the course of these antenatal visits, you informed Dr Eagle that your preference was for the delivery of Jordan to be by way of epidural caesarean section, that is in preference to natural vaginal delivery? A. In preference to a difficult and complicated natural vaginal delivery, yes. Q. Are you telling me that your preference was to have a vaginal delivery? A. Yes." ..... "Q. It was fairly clear to you from what Dr Eagle had said to you that in her view it was preferable for you to deliver this child vaginally? A. Yes. Q. You have no doubt about that whatsoever? A. No. Q. That was in circumstances where you had expressed to her your preference to have the child delivered by a caesarean section? A. Yes. Q. You trusted Dr Eagle, didn't you? A. Yes, I did. Q. Even though your preference was to have the child delivered by a caesarean section after having discussed the matter with her you accepted her advice to the effect that it was better to have the child delivered vaginally? A. I accepted her advice that it would be a similar birth to Gerard's, yes. Q. Firstly, I suggest to you that there was nothing that Dr Eagle said to you during the course of these antenatal visits that conveyed to you a guarantee by her that the birth was similar. You knew that there were no guarantees? A. That'' correct. Q. You understood from what she said to you that there was nothing untoward? A. That's correct. Q. You also understood I suggest to you, by what Dr Eagle told you, that there were different types of risks associated with a caesarean section? A. No, we didn't discuss caesarean sections. Q. You said in any event, I do not care from what source, that there would have been different risks associated with a caesarean section to the risks with a child being born vaginally? A. Yes. Q. You also understood during the course of these antenatal visits that the risks of a caesarean section generally speaking would be greater than the risks of a normal vaginal delivery? A. I would have thought of them as being different, not necessarily greater. Q. You knew that if you had disagreed with the views of Dr Eagle strongly enough that you could have gone elsewhere to another doctor. You were aware of that, weren't you? A. Yes. Q. You never sought to go to another doctor, did you? A. No." ..... "Q. Indeed Dr Eagle did discuss with you trial labour, didn't she, at one point in time during these consultations? A. I don't recall. Q. Did you understand that trial labour has to commence to deliver the child vaginally and if problems or complications arise there is the option to deliver the child by caesarean section? A. I understood that. Q. You understood that before the birth of Jordan A. Yes." 34 The plaintiff was asked whether she remembered being told by Dr Eagle that if a caesarean became necessary it would have to be done by another doctor. She did not recall this. The cross-examination continued: "Q. Is that something that possibly could have been said to you? A. I have no idea. We didn't discuss problems. Q. What I am asking you is this, is that something you cannot deny? It is something that was possibly said but you cannot recall now? A. Possibly, yes. Q. You do not recall what your understanding was at the time as to who would carry out the caesarean section if the need arose? A. I just thought if she could do it, fine. If she couldn't do it then she would call somebody who could. Q. Is this the position, that you understood there was the possibility of Dr Eagle having to call in someone else such as a specialist if the need for a caesarean arose? A. Yes." ..... "Q. You discussed the induction with Dr Eagle? A. Yes, I did. Q. You had a discussion with her about that? A. Yes, I did. Q. She said to you in effect that although there was the possibility of problems arising out of an induction, they were fairly remote and words to that effect, do you recall that? A. I recall her saying that technology had changed a lot and the drugs they use these days were different from the ones when my mother had me and they had a lot more control these days. Q. You never refused to have an induction in the terms you conversed with Dr Eagle? A. No. Q. You didn't seek other medical advice? A. No. Q. You didn't ask for a referral to anyone else? A. No. Q. In other words although given your history and the history of your mother, you were unhappy about it, you were willing to receive Dr Eagle's advice on the matter? A. I trusted her judgment." 35 Dr Chiragakis's oral evidence never reached the level of what he said in his report letter of 6 February 1996 where he had said (in answer to a question including a number of assumptions) that the first defendant should have arranged for a caesarean section. In cross-examination he made it clear that in the circumstances of the plaintiff's case, and if he had been her doctor, he would probably have arranged for a caesarean section birth. One reason he gave was that the baby had been expected to be as heavy as eight pounds. He also said he would take into account the patient's wishes. The cross-examination then proceeded: "A. I think you can't put aside patient's wishes. Q. I am asking you to do that for the time being. If a patient comes to you and says: I don't care which way but I do want you to advise me about it? A, Yes. Q. In those circumstances, are you suggesting in a case such as this, I want you to assume Mrs Prosser, the baby, the baby is near enough to 10 pound, would you advise that a Caesarean section was preferable to a vaginal delivery? A. I am an interventionist and therefor I would, would probably carry out a Caesarean section on that request." ..... "Q...I want you to assume that a request was made by a patient such as Mrs Prosser to Dr Eagle for a Caesarean section. I appreciate that you might have a different point of view, but firstly I would suggest to you that despite that request, it was nonetheless within the province of a medical practitioner exercising reasonable care and skill to at least attempt to reassure the patient for the purposes of persuading her that in the circumstances of this case a vaginal delivery was preferable to a deliver by Caesarean section? A. Yes, as long as all options had been discussed. Q. Of course in the circumstances of the case, as you have been asked to assume, the events that occurred, a doctor in the position of Dr Eagle, if she were able to refer a patient off to an obstetrician/gynaecologist at this late stage could only refer for the purposes of opinion as opposed to directing that obstetrician/gynaecologist to carry out the Caesarean section? A. Absolutely. Q. And of course the attitudes of the medical profession as to the propriety or desirability, to use a neutral word, of carrying out Caesarean section in circumstances such as this, have varied over the period from 1988 to 1997. A. Absolute." ..... "Q. During the course of the management of this birth I would suggest to you that right up until the time of the birth it was reasonable despite any requests from the patient for the medical practitioner managing this mother to have a preference for vaginal delivery as opposed to delivery by caesarean section? A. All things being equal, yes. Q. And I would suggest to you that in light of that answer that even though you may be of a different view yourself it was nonetheless within the bounds of that which was available to a medical practitioner exercising reasonable care and skill to attempt to reassure the patient so as to encourage her to abandon any preference for a caesarean section in favour of a vaginal delivery? A. Mmm. Q. And that is despite any request by her for a caesarean section? A. Yes." 36 When the whole of Dr Chiragakis's evidence is considered it seems to me to be quite insufficient to support a finding that the first defendant was in breach of any professional duty to the plaintiff on 7 or 9 September. I do not think the trial judge was entitled to rely on opinions expressed in Dr Chiragakis's report letters, written on a particular basis, which were substantially qualified in his oral evidence, in light of a fuller version of the facts. The effect of Dr Chiragakis's evidence overall was that there were medically legitimate differences of opinion about whether Dr Eagle should either have agreed to arrange for a caesarean section to be performed or have referred Mrs Prosser to a gynaecological surgeon for further advice. Dr Chiragakis himself would probably, he said, have agreed to the patient's request for caesarean section, but he did not go so far as to say that those who disagreed with him were wrong, or unprofessional. He referred to himself as an interventionist and his evidence, and that of other experts who gave evidence made it clear that there was a perfectly respectable school of thought which could be described as non interventionist or less interventionist and that Dr Eagle's treatment of Mrs Prosser and her discussion with her constituted acceptable practice in accordance with that school of thought. 37 Further matters which in my opinion lead to the conclusion the trial judge was wrong in his finding of breach of duty on 7 or 9 September concern (1) the meaning he attached to the words "it is not an option" and (2) his not taking into account the whole of the plaintiff's evidence about what happened at the consultation of 7 or 9 September. 38 As to the first of these matters, the trial judge appears to have given the words "it is not an option" a virtually absolute meaning, as if the first defendant were saying "Under no circumstances can you have a caesarean section", when, in the circumstances in which the words were spoken, they had a much more obvious meaning. The circumstances were that the plaintiff, having given birth to her first child without problems, and being some days overdue for giving birth to her second, and being in the opinion of her doctor, known to her, to be in quite healthy shape for having a second delivery safely and normally, was asking for advice about whether she could have a caesarean section rather than an induction if she did not go into ordinary labour within the next few days. She knew that if it became medically necessary to have a caesarean section at some stage in the course of delivery, it would be available. In those circumstances it seems to me that the meaning communicated by the words the judge found had been used by Dr Eagle should, in my opinion, be taken to be, in substance, "It's not practical to consider an elective caesarean section at this stage when you could come into labour at any time". Thus understood, what Dr Eagle was saying was a perfectly sensible observation; other doctors may have responded differently, but there was no evidence before the trial judge to support the view that there was anything professionally wrong or improper about the giving of such advice. 39 The other aspect which in my view the trial judge did not take properly into account was the full effect of the plaintiff's evidence of what happened on 7 or 9 September. In summary, in my opinion the effect of her evidence was that she again asked Dr Eagle whether she should have a caesarean delivery, but the question was asked in the context of the caesarean delivery being a preferable alternative to an induced one; she was asking Dr Eagle's advice in the circumstances and, trusting Dr Eagle, accepted her advice. The event she was hoping to avoid by the caesarean delivery, namely the induced birth, did not in any event occur. That is, the contingency about which she was asking for advice never happened. The advice therefore had nothing to do with what happened to her afterwards. 40 The result is that in my opinion the trial judge was in error in finding the breach of duty that he did. Judgment in favour of the plaintiff on that basis therefore cannot stand. In the initial oral hearing of the appeal (7 April 1999) counsel for the plaintiff sought to support the judge's breach of duty finding and in substance all the submissions for the plaintiff were directed towards repelling the arguments of the defendants and supporting the basis on which the trial judge found for the plaintiff. The court reserved its decision. 41 Very shortly after the ending of the oral argument the plaintiff moved the court for leave to make a further submission. The further submission was to be that Bruce J's judgment should stand on the alternative basis of liability he had found, or that at worst, there should be a new trial limited to assessing the damages flowing from that liability. 42 The motion first came before me on 15 April 1999. It was then enlarged to add a request for leave to file a notice of contention upholding the judgment on the basis of the alternative ground of liability found by Bruce J. After hearing the opposing contentions, I directed that the defendants file written submissions dealing with the plaintiff's various applications. 43 One submission was that the defendants would be unfairly prejudiced if deprived of the opportunity to address the court orally on the matters that had been raised. Upon consideration of the matters raised for the plaintiff and the defendants' written submissions, the court considered it appropriate to sit to hear further argument on the various matters. 44 At the further hearing (12 May 1999) it was submitted for the defendants that prejudice would be caused by allowing a notice of contention to be filed at this stage of the hearing this now being said to be for the different reason that the prospects of the plaintiff getting any significant damages on the alternative basis were so small that further litigation should not be permitted. A related submission was that the matters sought to be raised had insufficient prospects of success to justify reopening argument in the appeal. 45 To assess these arguments it was necessary to consider the argument raised under the notice of contention in any event and accordingly the court heard that argument. 46 The alternative liability referred to was that of the hospital for not acting on the physiotherapist's correct report of diastasis of the symphysis pubis and not reporting it to the first defendant; and of the first defendant for not at least having an X-ray done at the six week post natal check. 47 What the trial judge had said about this liability and damages was: "The alternative basis put for liability is also made out in my view but there are no significant damages which flow from the breach." (Red AB/78) 48 For the defendants it was submitted that these words reflected a submission made at the trial by their counsel that even if the alternative breach of duty of care were found, there had been no damage or any significant damage, that is that there was no causal connection between the breaches of duty and the later sufferings and misfortunes of the plaintiff. In my view this submission should not be accepted. I think that what his Honour was (successfully) trying to convey was that there were no damages from the alternative basis of liability over and above those that flowed from the primary breach of duty he had found. The damages from the later breaches of duty were included in those caused by the first breach of duty found. Those later damages could be materially contributed to by both alleged breaches. 49 On that footing, once the judge's finding on the first basis is set aside, it follows that that part of the overall damage to which the later breaches of duty materially contributed, comprises the damage she can recover from the defendants. The plaintiff asked the court to uphold the judge's findings of liability on the alternative basis, and assess the damage, without the need for a new trial. 50 It was argued for the defendants that there were no sufficient reasons given by the trial judge for his finding of liability on the alternative basis. In my view that submission is correct. Ordinarily, that would mean there should be a new trial limited in this case to the issue of the alternative breaches and damages flowing from them. It was argued for the defendants however that there was insufficient evidence of any particular damage flowing from the alternative breaches of duty, if they were found to be such on a new trial, to show that any damage flowed from them, with the result again that there could be no point in ordering a new trial. 51 In my opinion this submission does not succeed. The evidence of Dr Chiragakis was quite clear on these points in the final report letter of 16 January 1997 already referred to. He said in the last paragraph: "Even if the pubic diastasis was not picked up in the immediate post-natal period it certainly should have been picked up by Dr Eagle at the six week post-natal check by simply arranging an X-ray. Sarah was having great difficulty in walking at the time, indicating severe pelvic instability. If it had been picked up by her at the six week post-natal check-up stage, her suffering probably would have been much less." 52 There was other expert evidence, on this aspect of the case, some to the contrary of what Dr Chiragakis said in the foregoing passage. That seems to me quite clearly to raise issues not decided at the trial which should have been, and which are not suitable for this court to decide. It seems to me there should be a limited new trial on liability, and on damages. 53 The orders I propose therefore are: 1. Judgment set aside. 2. New trial ordered limited to the issues whether (i) there were breaches of duty by either defendant in the care and treatment of the plaintiff in the period from the birth on 11 September 1988 to the date of the post natal check on 20 October 1988 and (ii) if so, the amount of any damage suffered. 3. The plaintiff to bear half the defendants' costs of the appeal; and to have a Suitors Fund Certificate; costs of the first trial to be in the discretion of the trial judge at the second trial. 54 POWELL JA: I agree with Priestley JA. ****** 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.