New South Wales Supreme Court CITATION : Simpson v Diamond & Anor [2001] NSWSC 925 FILE NUMBER(S) : SC 12791/87 HEARING DATE(S) : 05/03/01, 06/03/01, 07/03/01, 08/03/01, 09/03/01, 12/03/01, 13/03/01, 14/03/01, 15/03/01, 16/03/01, 19/03/01, 20/03/01, 21/03/01, 22/03/01, 23/03/01, 26/03/01, 27/03/01, 28/03/01, 29/03/01, 30/03/01, 02/04/01, 03/04/01, 04/04/01, 05/04/01, 06/04/01, 10/04/01, 11/04/01, 12/04/01, 17/04/01, 18/04/01, 19/04/01, 20/04/01, 23/04/01, 24/04/01, 26/04/01, 27/04/01, 30/04/01, 01/05/01, 02/05/01, 03/05/01, 04/05/01, 07/05/01, 08/05/01, 09/05/01, 10/05/01, 11/05/01, 14/05/01, 15/05/01, 16/05/01, 17/05/01, 18/05/01, 21/05/01, 22/05/01, 23/05/01, 24/05/01, 25/05/01, 29/05/01, 30/05/01, 01/06/01, 04/06/01, 05/06/01, 06/06/01, 07/06/01, 08/06/01, 14/06/01 JUDGMENT DATE : 5 November 2001 PARTIES : Calandre Simpson by her tutor William Charles Simpson v Robert Diamond & Anor JUDGMENT OF : Whealy J at 1 Mr L. Levy SC; Miss J. Lonergan - Plaintiff COUNSEL : Mr P. Brereton SC; Mr I. Butcher - 1st Defendant Mr P. Hall QC; Mr S. Woods - 2nd Defendant/Cross Defendant Turtons - Plaintiff SOLICITORS : Blake Dawson Waldron - 1st Defendant Makinson & d'Apice - 2nd Defendant/Cross Defendant Long Service Leave Act 1955 LEGISLATION CITED : Minors (Property & Contracts) Act 1970 Superannuation (Guarantee Administration) Act 1992 Allen v Walters (1935) 1 KB 200 Beck v State of New South Wales & Anor [2001] NSWSC 278 Bennett v Minister of Community Services (1992) 176 CLR 408 Blundell v Musgrave (1956) 96 CLR 73 Briginshaw v Briginshaw (1938) 60 CLR 336 Burnicle v Cutelli (1982) 2 NSWLR 26 Chappel v Hart (1998) 195 CLR 232 Commercial Union Insurance Co Australia Limited v Pelosi (unreported NSWSC Barr AJ 28 February 1995; NSWCA 2 February 1996 Cotton v Big River Timbers Pty Ltd (NSWSC 12 June 1998, Grove J) Cunningham v Harrison (1973) QB 942 Dallas v Morrison (NSWSC 3 December 1996, James J) Dixon v Bell (1816) 1 Spark 287 Donnelly v Joyce (1974) QB 454 East v King (1999) NSWSC 314 Grove J Garling v Manufacturer's Mutual Insurance Co (1980) 24 SASR 321 GIO (NSW) v Mackie (NSWCA (1990) ATR 81-053 at 68) Griffiths v Kerkemeyer (1997) 139 CLR 161 Grincelis v House (2000) 74 ALJR 1247 at 1252 para 20) Hines v The Commonwealth of Australia (1995) ATR 81-338 Kars v Kars (1997) 187 CLR 354 Lindhe v Royal Children's Hospital SCV Eames J 28 August 1992 CASES CITED : Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 at 639 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449 Norris v Blake (No2) (1997) 41 NSWLR 49 Nguyen v Nguyen (1990) 169 CLR 245 G.T. Pettersen v Bacha (NSWCA unreported, 9 March 1995) Ren v Mukerjee (ACT Supreme Court unreported 12 December 1996, Miles J) Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Rosniak v GIO (1997) 41 NSWLR 608 Rotumah v NSW Insurance Ministerial Corporation (6 April 1998, unreported) Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sharman v Evans (1977) 138 CLR 563 State of NSW v Moss (2000) NSWCA 133, 31 May 2000 Sturch v Willmott (1997) 2 Qd R 310 Sullivan v Gordon (1999) 47 NSWLR 319 Taylor v Bristol Omnibus Company Limited (1975) 2 All ER 1107 Thomas v Eyles NSWCA unreported 10 September 1998 The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Todorovic v Waller (1981) 150 CLR 403 Van Gervan v Fenton (1992) 175 CLR 327 Zammitt v Pasminco Australia Limited (NSWSC 8 May 1996, Badgery-Parker J DECISION : DAMAGES: See Paragraph 921 CROSS-CLAIM: See Paragraphs 1458 and 1459 SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST WHEALY J MONDAY 5 November 2001 12791/87 - Calandre SIMPSON by her tutor William Charles SIMPSON v Robert DIAMOND & Anor JUDGMENT Introduction 1 HIS HONOUR: The plaintiff was born damaged at about 2.17pm on the afternoon of 5 July 1979. She was barely alive. She was taken to intensive care immediately for urgent treatment. Her mother, Gail Simpson was roused from the anaesthetic following caesarean section and given the grim news that she had a daughter but that the Sisters were "praying for her" in the Hospital Chapel. By a "miracle", according to her mother, the child survived but she has, since birth, been severely disabled by athetoid cerebral palsy. This is a rare type of cerebral palsy characterised by changing tone (dystonia) and abnormal movements which are induced by attempts at normal movement or maintaining posture. Athetoid cerebral palsy typically occurs after a very severe acute hypoxic insult to the mature term brain. A consequence of the resultant loss of oxygen is damage to parts of the deep grey areas of the brain. One characteristic of this type of cerebral palsy is that intelligence is often preserved. The plaintiff has normal intelligence. At the time of the hearing, she was twenty one years of age, about to turn 22. She was able, with great difficulty and considerable effort on her part, to give evidence by way of a communication board and an interpreter. She is unable to speak, is confined to a wheelchair and is totally dependent on others for all her needs. She described herself as "a person inside a body which does not work" (T 451 line 55). Miss Janet Crowe, an Occupational Therapist who first saw the plaintiff in May 1995, described her, during the hearing as "a person locked inside a body" (T 346). 2 The first defendant was Mrs Simpson's obstetrician. He was, in 1979, a regular visiting obstetrician at St Margaret's Private Hospital. At about 1.45pm on 5 July 1979, the first defendant attempted to deliver the plaintiff's mother of the plaintiff by forceps delivery. These attempts were unsuccessful and subsequently the first defendant delivered the plaintiff by caesarean section. The plaintiff's charge is that as a result of the methods adopted by the first defendant, the plaintiff suffered hypoxia and was born with a damaged brain which resulted in cerebral palsy and her present substantial disabilities. The second defendant at that time, managed and conducted St Margaret's Private Hospital, although it has since closed. 3 At the commencement of the hearing on 5 March 2001, it was announced that the first defendant had admitted liability to the plaintiff. There was then filed in court "Notice of Grounds of Defence" of the first defendant to the Amended Statement of Claim. This document contained the following paragraphs: - "1. In answer to paragraphs 9 and 10 of the statement of claim the first defendant admits that the plaintiff's cerebral palsy was caused by his negligence in the manner, timing and circumstances of his use of forceps and the negligence of the second defendant. 2. In answer to paragraph 11 of the statement of claim the first defendant admits that the plaintiff's injury, loss and damage were caused by the negligence specified in paragraph 1." 4 Thereupon the plaintiff, having secured this late admission of liability from the first defendant, discontinued against the second defendant. The second defendant had at an earlier point of time lodged a cross-claim against the first defendant and this was also discontinued. The original Statement of Claim, alleging negligence and breach of duty against each of the defendants had been filed in the Supreme Court on 3 April 1987. There was an additional defendant at that time namely, Dr Hakim, who had been the assistant surgeon at the caesarean, although proceedings had been discontinued against him on 6 October 1992. 5 The first defendant had filed a cross-claim against the second defendant on 27 February 1991. This sought contribution or indemnity from the cross-defendant without disclosing any specific matters. Correspondence first emerged between the first and second defendants relating to a substantial amendment to this cross-claim in September 1999. This, together with the exchange of expert reports, continued throughout 2000 and early 2001. On 2 March 2001, shortly before the proceedings came to hearing, the first defendant, after substantial argument, was granted leave to file an amended cross-claim which, in its final form, had been served on the solicitors for the cross-defendant on 26 February 2001. The essence of the Amended Cross-Claim was that the hospital nursing staff had given an excessive dose of Syntocinon - the drug used for induction of labour - to Mrs Simpson; and had failed in and about their task of monitoring the well-being of the foetus and attending to the progress of Mrs Simpson's labour. 6 The tasks confronting the Court are these: First, to assess damages. Secondly, to determine the validity of the cross-claim, and, in the event that the cross-claim is made good, to determine contribution between the parties to the amended cross-claim. The Proceedings 7 The case proceeded over some 65 sitting days, a time period which spanned over three and a half months. There were some 3,500 pages of transcript, 283 exhibits, including a great number of extensive reports from experts of many persuasions. The parties were represented by counsel of experience and ability who represented their client's interests with diligence and persistence. My Levy SC and Ms Lonergan appeared for the plaintiff; Mr Brereton SC and Mr Butcher appeared for the first defendant, and Mr Hall QC and Mr Woods for the second defendant. On 14 June I reserved my decision. Further written submissions were received after judgment was reserved, during June, July and August 2001. Assessment of Plaintiff's damages 8 For the sake of convenience, unless formality or context requires otherwise, I will refer to the plaintiff "as "Calandre", the first defendant as "Dr Diamond" or "the Doctor". Similarly, I shall refer to the cross-defendant as "the hospital" or "St Margaret's Private Hospital". 9 I shall begin with a brief statement of the events of 5 July 1979. As will be seen when the cross-claim comes to be examined, there are a number of contentious issues of fact arising between Dr Diamond and the hospital in relation to those events. As a result of the Doctor's admission of liability, it is not necessary, at this stage, to recite or explore any of those contentious matters in connection with the assessment of damages. The Events of 5 July 1979 10 Mrs Simpson had in fact arrived at the hospital the evening before at about 8.30pm. After a quite night she was taken to the labour ward at about 8.10am where Dr Diamond performed an artificial rupture of membranes. Syntocinon was administered to help induce labour and Mrs Simpson, according to the hospital records, went into labour at about 10.30am. Dr Diamond, who had gone to a nearby hospital at Randwick to conduct a surgical list, was called to the hospital by a telephone call about 12.30pm. He arrived about 1.25pm or 1.30pm and determined upon a course of delivering the baby by forceps. According to Dr Diamond's evidence, there were three different types of forceps used. They were first, Wrigleys forceps, (a short forceps used for "quick and easy" delivery), a longer curved forceps with an optional traction handle, known as Neville Barnes forceps and a straight forceps used for rotational purposes known as Kiellands forceps. In all, there were some five attempts, at least, to deliver the baby but no descent was achieved. During the final attempt with the Kiellands forceps, Dr Diamond rotated the baby's head, applied traction with no success, and re-rotated the head back to its previous position. During these manoeuvres, the baby's heart dropped down to between 60 to 80 beats per minute whereupon the instrumental attempts at delivery were ceased immediately. These attempts had taken place over a period of between 15 to 20 minutes. Then it was decided, as an emergency, to deliver the baby by caesarean section. Because the instrumental attempts had taken place in the labour ward, it was necessary to take Mrs Simpson to the fourth floor where the operating theatre was located. In addition, there was a further delay in commencing the caesarean section because of the need to obtain an anaesthetist, to prepare Mrs Simpson for the operation and to obtain her husband's consent to the proposed surgical procedure. The first caesarean cut was made at approximately 2.15pm and the baby was delivered at 2.17pm. Accordingly, there was a total delay of about 27 minutes between the conclusion of the attempts at instrumental delivery and the moment when the baby was born. On the balance of probabilities, it was, during this time she sustained her asphyxial injury. 11 Present at the operation, in addition to the nursing staff, were Dr Williams the anaesthetist, Dr Hakim who assisted, and Dr Van Vliet a neo-natal specialist. Neo-natal History 12 Calandre was in extremely poor condition at delivery weighing 3.3 kilos with a head circumference of 33cms. She was a normally grown female infant. She was given an Apgar score of 1 at 1 minute, 1 at 5 minutes and 1 at 10 minutes (see paediatric notes, Exhibit "A"). According to this scoring system, she was barely alive. Dr Van Vliet noted a "persistent bradycardia" and arranged for immediate intubation and ventilation. According to one of the notes, the baby took 10 to 15 minutes "to pink up", then took occasional gasps. She was admitted to the nursery where she was "very cold" with a temperature of 34 degrees. A blood glucose reading was satisfactory. She was extubated shortly after 5pm. 13 On 6 July 1979, Calandre developed convulsions. She had at least eight convulsions on this day. She was described as lethargic and irritable and had a very bad night between 6 and 7 July. It appears she had continuous episodes of generalised fitting during this evening. She was treated with Valium and Phenobarbitone. These epileptic seizures continued for about three days, and they became easier to control only after the dosage of anti-convulsant Phenobarbitone was increased. Calandre continued to be lethargic and jaundiced in the days following her birth. Feeding was slow for many days. 14 By 12 July 1979, Calandre was more alert and was opening her eyes a little. She was tolerating feeds by now but she had a very weak cry and a weak response to pain. By 14 July, she was taking some oral feeds albeit, slowly. On 19 July the Phenobarbitone dose was decreased to 3mgs three times a day and antibiotics were stopped. On 26 July, Calandre was discharged home. 15 On 19 September 1979 the hospital RMO, Dr Cooper wrote to Dr Diamond and summarised the various treatments given and the progress of the baby. The final diagnosis was "cerebral hypoxia resulting in convulsions". Dr Cooper summarised the various matters I have already set out and concluded that: - "There was a gradual improvement of lethargy and there were no further convulsions. Dosage of Phenobarbitone was reduced. … She was discharged well on 26 July 1979 on oral Phenobarbitone 3mgs tds." History after discharge. 16 Upon discharge, Calandre was a restless and difficult baby. Mrs Simpson gave evidence that Calandre cried a lot, and it was necessary to buy a papoose and walk Calandre around in it in order to placate her (T 10). Caring for her was time consuming, and it required patience in a number of ways. Feeding Calandre was always difficult as she could not suck from the bottle, and Mrs Simpson had to hold her mouth in a particular way so that she could swallow the milk (T 10). Mrs Simpson also had to administer the Phenobarbitone medication for Calandre's epilepsy every eight hours. This medication was administered by way of a syringe placed in Calandre's mouth, and again Mrs Simpson had to be especially careful to ensure that the fluid was ingested by Calandre because Calandre could not swallow easily (T 11). Mrs Simpson was vigilant in watching Calandre for signs of epileptic episodes, and she had been instructed by medical practitioners as to what she should do in the event of such an emergency. 17 Shortly after her discharge from hospital, Calandre was again examined by Dr Van Vliet. The hospital paediatrician referred her to Dr Feller, a Consultant Paediatrician, in November 1979. He continued to treat her until at least 1990. In turn, Dr Feller referred Calandre to Dr Graham Wise, a Clinical Child Neurologist, shortly after she had turned one in about August 1980. Dr Wise saw Calandre regularly from that time until April 1987 in the context of overseeing her neurological development and monitoring and treating her seizures (T 526-527). Calandre's development is conveyed in evidence by correspondence between Drs Feller and Wise especially (Exhibits "M" and "O") and through the records of the Spastic Centre dating from September 1981 (Exhibit 10). 18 Calandre ceased taking Phenobarbitone medication when she was around the age of five to six months. On 9 August 1980, however, she was admitted to the Prince of Wales Children's Hospital for "convulsions associated with fever" and remained there until 12 August 1980. Dr Wise had seen her for the first time just prior to this, and had found at that time, as reported in his letter of 5 August 1980, that Calandre was at the stage of a six months old in a motor sense, though he thought she may have been more developed intellectually. She could wriggle forward a little when placed prone and could get up to an all fours position (letter from Dr Wise to Dr Feller, part of Exhibit "O", dated 5 August 1980). Following the 1980 hospitalisation for convulsion, Calandre was placed on the anti-convulsant drug Prominal, in December 1980. 19 It is convenient at this stage to mention a number of later hospitalisations for Calandre and to trace her treatment for epilepsy. She was hospitalised on 3 August 1980 for treatment of an upper respiratory tract infection, and discharged on 2 November 1980. Some years later, on 18 July 1983, she was admitted into hospital for an epileptic fit but she was discharged the following day. It appears that she has not suffered from any epileptic seizures since 1984 (T 531) and anti-convulsant medication was discontinued when she was around twelve years of age (T 11). Many years later, Calandre was admitted into the Prince of Wales Children's Hospital for surgery for the relocation of the submandibular gland ducts to avoid excessive drooling. Calandre then attended hospital on 27 October 1994 for treatment of abdominal pain, the cause of which was unknown. In 2000 Calandre had her appendix removed and was in hospital for five days (T 49). Therapy and General Development 20 Mrs Simpson said that she knew Calandre was "not normal" from birth. She said that she watched the child carefully and compared her with children of similar age and "the pattern certainly wasn't that of a normal child". It seems the true situation regarding Calandre was brought home to her in 1980 when she was referred to a physiotherapist at the Prince of Wales Hospital. The therapist examined Calandre and said "This child is grossly damaged". Mrs Simpson said that no one had really said that to her before. She rang Dr Feller and discussed the matter with him and it was at this time she was "officially" informed that there was "gross damage". 21 For the first three years of Calandre's life, Calandre received therapy treatment at the Prince of Wales Children's Hospital. She attended physiotherapy every day, though between the ages of three and four, physiotherapy treatment was cut to about three times a week because of funding cuts (T 12-13). Mrs Simpson would take Calandre to these therapy sessions and would help her participate in them. She would also help Calandre with the exercises developed in physiotherapy at home. Often physiotherapy sessions were followed with occupational therapy treatment or speech therapy, though often occupational therapy was conducted on different days (T 13). 22 Mrs Simpson's description of the degree to which she became involved in the physiotherapy, speech therapy and occupational therapy sessions showed outstanding devotion to her daughter's care. Mrs Simpson said it was very difficult to assess how many hours she spent looking after Calandre in this way over and above "normal mothering". She said it was constant. She looked after Calandre's needs at night and, when she had carers in the home, she attended to Calandre on the days the carers had off. Her estimate of hours actually involved in looking after her daughter in this way was somewhere between six and ten hours for a period of about four years until Calandre went to school at the age of four and a half. 23 In September 1981 Calandre gained admission for treatment at the Spastic Centre at Mosman. From May/June 1982 she attended the centre as an outpatient for a combined speech and occupational therapy session each week. These assessments yielded significant information about Calandre. For example, the assessments noted: · She appeared to comprehend all that was said to her and much of what was discussed around her. She had a head gesture - a "Yes and No" - which was consistently and appropriately used. Calandre used facial expression and eye glance to indicate her wishes (Speech Therapy Report 24 September 1982 by Dr P. Baldwin, part of Exhibit "T", page 495 of the plaintiff's bundle volume 2). · She had fluctuating tone, overlaid by an ATNR to both sides (greater on the right hand side than the left). With effort, Calandre had associated reactions in her lower limbs and trunk. She could roll, her only independent sitting position was "W" and her only method of independent locomotion was "combat crawling". · She had gross reach, grasp and release and required verbal prompt and facilitation to be achieved. She could point in a gross manner using her left upper limb. · She had very limited fine motor skills. She could match red, blue and yellow, knew most body parts, though she did not consistently match shapes. It appeared that she was functioning at that time between two and half to three years level regarding developmental concepts (Occupational Therapy Assessment by Dr M Llewelyn, September 1982 part of Exhibit "T", Vol 2 of the plaintiff's bundle 496-497). 24 As I mentioned earlier, Calandre commenced school at the Spastic Centre School at Mosman at about the age of four and a half years. Concurrently with this schooling, she participated in a comprehensive program of physiotherapy, occupational therapy and speech therapy. 25 At this time, Calandre had been able to walk slowly when supported under the arms. Mrs Simpson gave evidence that between the ages of three and seven, Calandre could take some weight bearing on her legs, if she was assisted in this way (T 16-17). A review report prepared by the Spastic Centre in September 1987 notified improvements in Calandre's walking ability, as indicated by her promotion from a walking frame with forearm support to a Rollator frame which provided less support. Her trunk stability had improved to the degree that she could usually maintain trunk elongation on the weight bearing side when she took a step with her other leg. Further, it was reported that the plaintiff had been successfully fitted with orthotics following one set of leg plasters, and these were worn when standing and walking in physio (Physiotherapy Report by L. Bonella, 25 June 1987 part of Exhibit "T", plaintiff's bundle Vol 2 page 465). 26 Mrs Simpson said that, in fact, Calandre did walk, albeit with a lot of help. She had to be held up under the arms but she could move her legs slowly. 27 As Calandre has grown, however, her ability to maintain such movements has decreased as her muscle tone has become tighter. Today, with help, she can still move by moving her legs in a scissor movement (T 29). She is unable, however, to walk at all now (T 74). Calandre obtained her first wheelchair at the age of eight and she operated this by way of a chin switch. She graduated to an adult electric wheelchair, controlled by a joy stick when she was twelve. She obtained her current electric wheelchair about the age of nineteen which is more suitable to her present stature in that it has a higher back than the previous one. It also gives her some support for her head because of the height of the chair's back. 28 Calandre transferred to the Allambie School for specific purposes in February 1988. It is significant to note, however, that a gap occurred in her schooling because of the extent of the therapy she was receiving. This was between the age of nine and fifteen years. It is for this reason that Calandre, now an adult in her twenties, attends as a senior student studying for her HSC. She continues to receive Spastic Centre services which include physiotherapy, occupational therapy, speech therapy, hydrotherapy and social work intervention. 29 Calandre has in the past attempted other drastic therapies to reduce the level of her disability, but these have not always been successful. For example, at the age of sixteen, she entered upon Japanese Isowgai Therapy. This therapy involved plastering Calandre with a type of wooden splinting from the waist down in an attempt to change the pattern of her hips (T 18). She would be placed in this type of plaster for a week, have it taken off for a night, and then be replaced in the splinting after this temporary respite. This process was maintained for a period of three months but was ultimately abandoned. This was because Calandre was not eating well and had become very thin and because there had been no improvement. Mrs Simpson had said that she had looked at the condition of her child during this time and had taken the view that she "would die if the treatment continued" (T 18). Calandre's current position 30 The plaintiff is a severely and multiply disabled young woman, and impairments caused by her athetoid cerebral palsy have been so severe and so sweeping that she requires assistance with every aspect of her daily life. It is common ground she needs care 24 hours a day, seven days a week. Despite her profound physical injuries, she has preserved intelligence and presented as an insightful young woman. She has abundant "grit and determination" (T 348 lines 40-50). 31 Athetoid cerebral palsy affects Calandre's muscle tone in limbs, trunk, head control, the muscles controlling her oral motor functions (eating, drinking, speaking and saliva control). There is also a capacity for an affect on her bladder and bowel control, although this is generally manageable. Abnormal muscle tone, spasticity and the retention of primitive reflexes limit her ability to move or attain normal patterns of movement and positioning, and inhibit her ability to undertake functional tasks or activities and to interact independently with others (Ms French's report June 2000, page 8 - Exhibit "EE", Vol 2 of plaintiff's bundle, page 717). 32 Calandre is confined to a wheelchair for mobility. She has no functional movement in her right arm or hand. When in her wheelchair, her right hand is strapped inside a Velcro cuff so that the right arm is stabilised. This effectively anchors her trunk and allows her increased function in her left arm and hand. If her right hand is not strapped in, she flings her arms around a lot more (T 28). The right thumb fits between her forefinger and middle finger, and her right hand cramps because it is impossible for her to keep that hand open (T 28). In these circumstances, Calandre is able to use her left hand to point, and she is able to manoeuvre her wheelchair with the interaction between her left hand and the joystick. 33 Calandre is unable to stand without the assistance of two or more people. As I noted earlier, she can no longer walk (Mrs Simpson T 74). If she is assisted and held up under her arms, "she can put her feet down but the toes go up" (T 74), and can help a little bit through the performance of scissor like movements with her legs (T 29). Generally, she has to be moved in and out of her bed by means of a mobile hoist or sling apparatus. She is placed on a "goanna" chair on wheels for toileting and showering. Movements in her legs are affected by head movements due to the lack of trunk stability and balance. If Calandre flexes her head, her legs also flex, if she extends her head, her trunk and legs are extended with an associated retraction of her arms at the shoulders (Michelle French's report pages 12-13, Exhibit EE plaintiff's bundle Vol 2 pages 721-722). 34 Calandre can roll, but does not crawl as such (T 30). She is, surprisingly, able to push herself along the floor with her legs and her torso (T 74) but it is a fairly tortuous process. She is also able to move herself on her waterbed. Mrs Simpson gave evidence that recently Calandre has learnt to roll to the end of her bed and throw her legs over the side of the bed and pull herself up into a sitting position where she places her legs apart and puts her hands between her legs on the bed (T 30). However, when asked whether Calandre could sit without support, Mrs Simpson said "No" (T 81), and she stated that Calandre could sit on a couch or armchair for a reasonable amount of time, though she had to keep propping Calandre up because she would slide down (T 81). It is appropriate to mention at this stage that the evidence concerning the plaintiff's ability to sit unsupported was refined later in the evidence. It became necessary to examine the plaintiff's abilities in this area in relation to her place, if any, in the statistical material available on life expectancy. Somewhat to her mother's surprise, Calandre was able to sit unsupported on a lounge for in excess of thirty minutes (Video - Exhibit "PPP"). 35 The plaintiff is non-speaking and has never been able to articulate predicably intelligent speech. She can indicate "Yes" and "No" with head movements and is able to make sounds to express pleasure or displeasure (T 19). She screams quite frequently, though these sounds are very similar and can indicate singing or laughing or screaming in the usual sense (T 19). Her own evidence indicated that because of the distortion of these sounds, people often become afraid of her when they first meet her, and this upsets her. In a telling phrase, she said she is still "a person inside a body which does not work" (T 451). 36 More than this, her difficulties in communicating her thoughts and feelings have had unpleasant consequences in the past. She related the experience when, while in hospital last year for the removal of her appendix, she attempted to convey to the nurse that she would like her bed lowered so she could sleep. The nurse thought she was in pain and gave Calandre an enema. The plaintiff kicked around to try and resist but the nurse held her down and gave her the enema. Afterwards, Calandre cried in frustration because she had just wanted to sleep (T 451). 37 Calandre communicates through the use of a communication board, positioned on her wheelchair tray, which displays over 640 words, phrases and letters. Calandre accesses the words, phrases and letters on the board either manually (she points with her left thumb) or via a small laser light pointer mounted on the peak of her baseball cap. The laser light is activated by a switch at the back of her cap and Calandre hits her head against the back of a chair to activate the switch (T 23). Communicating with her takes a lot of time and requires concentration and focus from Calandre and the person with whom she is communicating (T 22). At times, when Calandre needs to spell out a word and is unsure of the spelling, she points to the phrase "I am not sure of the spelling", alerting the other person that they will have to deduce what she trying to say, and then attempts to spell the word by pointing to individual letters. 38 She has abnormal muscle tone in the muscles associated with swallowing and chewing. She has a tongue thrust (the tongue is projected forward instead of retracted during the act of swallowing) (Report of Michelle French, June 2000 page 26, Exhibit "EE" plaintiff's bundle Vol 2, page 735). This creates considerable problems in feeding her. Mrs Simpson gave evidence that feeding can be a messy and troublesome process. Food needs to be cut up into small pieces, and feeding her is slow because if she thrusts her tongue while she is being fed the food will fall out of her mouth (T 31). Care must be taken to position the plaintiff's head correctly, and she has to be fed while her tongue is in her mouth (T 31). 39 Calandre recalled an incident when she had been fed too much pizza at once, and she began to choke. Her carer took her out of her chair, put her on the floor and called Calandre's father. This occurred about four years ago, and a similar incident has not happened since because Calandre choses to stay away from food with which she knows she will have trouble (T 455). The incident is very instructive in emphasising the importance of properly trained carers and the need for empathy between carer and client. 40 Calandre's difficulty in swallowing entails that she has poor saliva control. In August 1992, as I have already mentioned, the plaintiff had surgery for salivary gland diversion and her drooling improved markedly (Letter from Dr Peter Carter, Surgeon, to R B Monteith and Co Lawyers, dated 21 July 1999, Exhibit "U", plaintiff's bundle Vol 2 page 453), however she still encounters problems when she is excited. When she needs to concentrate, for example when she is communicating through use of the communication board, she forgets to swallow and she has to be reminded (T 51). This causes an accumulation of saliva (Mrs Simpson described it as "foaming in the mouth") and so Calandre needs her face to be wiped (T 51). It is important to note that this distresses the plaintiff more for the fact that it is unsightly than for any other reason (Mrs Simpson T 51). Indeed, the main risk associated with poor swallowing - that saliva and liquids will be aspirated into the lungs and cause pneumonia - has not eventuated as a problem in Calandre's medical history. Calandre has not, since 1980, been hospitalised for chest infections, nor has she ever suffered from pneumonia. These matters became the subject of intense scrutiny as part of the issues concerning the vexed question of life expectancy. 41 In spite of the profound impairments Calandre has suffered as a result of the circumstances of her birth, in communicating her evidence in court she presented as an alert young woman of some awareness and perception. She has been assessed, by a number of experts, to possess average intelligence. Indeed, Dr Phillips, a Consultant Psychiatrist, gave evidence that he had been confirmed in his belief that the plaintiff's intelligence was in the average to high end of average range by observing her evidence in court. He said: - "I don't have any doubt that Miss Simpson's intelligence, particularly in terms of verbal matters, is well into the average range and probably at the high end of the average range. I state that principally watching her in action this afternoon; her ability to grasp concepts, to think about matters and to respond in a most difficult situation in a very articulate manner." (T 717). 42 I should add my own observations to this: The transcript does not adequately reveal the determination, effort and difficulty involved in Calandre's decision to give evidence. The energy, both emotional and physical, involved in this courageous effort was prodigious, not only did she give evidence, she endured the trauma of sustained cross-examination. It must have been an exhausting and difficult experience for Calandre, but it was clearly a journey she was determined to make. There was revealed for all to see, humour, tears, resolve and an acceptance of her lot that was truly inspirational and informative. 43 Professor Reid, a Neuropsychologist, has assessed Calandre on a number of occasions. He has substantially altered his views over time. Following her first attendance on him, in August 1994, (she was fourteen at the time) he concluded that she would not progress academically much beyond the level of functioning she had already attained (Report by Dr Reid 8 September 1994, part of Exhibit "X", plaintiff's bundle Vol 2, page 634). In assessments he made this year, he found that she showed at least average verbal and non-verbal reasoning skills and verbal memory (she had no problems in learning and retaining new verbal information) (Supplementary Report dated 13 March 2001, part of Exhibit "X"). Dr Reid believes that Calandre's abilities have significantly improved, and that this highlights the benefits of mental stimulation received through continuous education (T 988-989). With further stimulation, the prospect is that her intellectual and cognitive abilities will continue to improve, though it is hard to know when this maturation will cease (T 1186). However, Calandre continues to possess deficits in arithmetical skills, general knowledge and visual integration. Some of these were poignantly exposed during her cross-examination. It must be said, however, that given the substantial gap in her education between ages nine and fifteen, and her almost complete lack of exposure to the general world, especially in the light of her limited ability to communicate, her progress in educational matters has been quite remarkable in recent years. I have little doubt that her "grit and determination" will see a degree of improvement in these deficit areas. 44 Dr Wise, Calandre's Neurologist since she was a year old, has maintained for years that Calandre is of normal intelligence, and has become increasingly convinced of it (T 530). He has been especially impressed by what he has considered to be "her lively intelligence and sense of humour" (T 530). 45 On the other hand, Calandre has displayed some particular weaknesses in her psychological development. As recently as 1999, she was observed by Dr Phillips (Consultant Psychiatrist) to possess "nihilistic thoughts", explained by reference to mid-adolescent years, where she had found herself falling in love (or having considerable affection for boys of a not dissimilar age group) and where she felt that the feelings were not properly reciprocated (T 716). Calandre, at this time, felt that the future did not offer her much, and that there was not a great deal of reason to live (T 716). She was also observed to have an inability to delay gratification - when she wanted something and was told that it was impossible, she had trouble accepting this (T 718). Further, there was some "stickiness" in her communication in that, when the interviewer wished to move on to a different topic of conversation, and gave the plaintiff every indication of this, she wanted to stay with the topic which was important to her and had trouble making the mental shift (T 718). 46 However, her improvement in maturity over the past eighteen months, as noted by Dr Phillips, has ameliorated the consequence of these issues. He has noted, in his oral evidence and his second report dated 19 February 2001, that Calandre had matured significantly since her first attendance on him in June 1999 (T 718-719, report 19 February 2001, page 3 plaintiff's bundle Vol 2 page 629). 47 Dr Phillips described Calandre's improvement in maturity in the eighteen months since that first consultation as something that "he had not anticipated" (T 718-719). It is said to demonstrate that Calandre is developing psychologically in an age-appropriate manner, and that "she looks at her world very similarly to other sensible intelligent women of her age group" (T 719). Like other women of her age group, Dr Phillips has suggested that Calandre is somewhat naive about the complexities of child rearing (T 718). 48 Certainly, the plaintiff's "substantial insight into her problems, particularly in relation to her degree of handicap" (T 718), noted even at the time of the first consultation, (see first report 2 August 1999, page 4, plaintiff's bundle Vol 2 page 622) reflects a significant degree of psychological development and maturity. Calandre's Major Achievements 49 Calandre has displayed considerable determination and strong resolve in pursuing her goals. She appreciates her level of disability acutely and refuses to accept it as a reason for not pursuing activities which she sees as desirable and enjoyable. Calandre displays a conviction that, even within the level of dependency that frames her world, she can achieve fulfilment and success through participation in a wide range of activities. 50 Calandre has displayed, for example, an enormous amount of tenacity and diligence in her school studies, in circumstances where her schooling has been interrupted by intensive and wide ranging therapy. She started school, at The Spastic Centre, when she was about four and half years old (T 15). She left primary school when she was about nine years old because she had found primary school very difficult due to the level of therapy she was receiving at the time (T 456), and this created a gap in her schooling which continued until Calandre was fifteen years old and started High School. 51 Calandre completed her Year 10 School Certificate in 1999. In all of her subjects- English, Mathematics Standard, Science, Commerce, and in Technology/Applied Studies (Life Skills) and Language (Life Skills)- she achieved a grade of D (Satisfactory achievement). Three courses are externally assessed in the School Certificate- English-literacy (Calandre gained a mark of 59/100), Mathematics (42/100) and Science (36/100) (Exhibit "FFF"). 52 She is now participating in a program to complete her HSC at Allambie Special School, and hopes to complete her HSC in September 2002 (T 453). She currently studies the HSC subjects of English, Personal Development Health and Physical Education (PDHPE) and Legal Studies. As part of her pathway to her Higher School Certificate, Calandre has satisfactorily completed the Preliminary (Year 11) courses of 2 unit English Standard, 2 unit Legal Studies and 2 unit Personal Development, Health and Physical Education, as recorded by a Record of Achievement from the Board of Studies (Exhibit "FFF"). 53 It should be said that Calandre is unhappy at school at the moment. This is because she is frustrated that she is 21 years of age and still at school (T 452-3). Despite this sense of frustration, she is determined to complete her Higher School Certificate because she would like to attend university (T 456-457). Her motivation is evidenced through the considerable amount of hours she devotes to her study. She completes about three hours of homework every night. She commences her homework before the evening meal, and finishes it afterwards if necessary. She also has homework on weekends and during school holidays (T 27). For the last three years, she has had extra help from a tutor and she has described this as "fantastic" in that she has been able to catch up on her work (T 457). 54 In September of last year, Calandre received an achievement award recognising her entry into Year 7 (in cross examination it emerged that the school had been "slow" in giving this award, because Calandre had in fact started Year 7 years ago- T 699). On this occasion, Calandre prepared a speech. It is instructive to quote it:- "Ladies and Gentlemen and fellow recipients. I'm honoured to except this award and would like to thank my teacher's for nominating me. I had to work very hard to get to this point in my schooling. I had many obstacles to overcome. My biggest obstacle was catching up in Maths as this was my weakness, then I had this good teacher who made me work very hard each afternoon. I was as tired as anything and would fall asleep in class, but my teacher soon put a stop to that. She told me to get my goal which was to get the school certificate I had to get my act together, which luckily I did last year. I reached my biggest goal, I got my higher school certificate (sic) with a good mark Now I am working towards my higher school certificate which is a big challenge. I have one big thing going for me, my determination comes from mum and dad." 55 The plaintiff's effort and perseverance in her school studies, in circumstances where impediments resulting from her disabilities have served to delay the progress of her education and create obstacles to learning even on a daily basis, is quite extraordinary; and the level of achievement that she has reached is, in all the circumstances, remarkable. 56 Calandre's belief in her own capabilities, and her desire to experience in her own life similar moments to those experienced by her sisters, is perhaps best presented through the journey towards, and her celebration of, her Bar Mitzvah in February 1992. Calandre's older sister Bianca had made her Bar Mitzvah when she was thirteen years old, and it had been a significant event in the Simpson family. A few years later, Calandre expressed to her parents that she would also like to make her Bar Mitzvah, and her mother's immediate reaction was that this was impossible because she could not speak (T 61). Calandre persevered and confided in a teacher at her school, who rang the Jewish Board of Deputies on her behalf. When they were unable to assist, more inquiries were made and a Rabbi who was willing to instruct Calandre (Rabbi Lampert of the Temple in Chatswood) was found. Calandre was able to take a very active part in the ceremony through the use of a device called the light talker (T 62). In her evidence, Calandre said: - "It was so special because at first mother and father said, 'no, you can't have this', but like everything in my life I had to fight for." (T 696). 57 After Calandre had made her Bar Mitzvah, she felt "fantastic" and proud (T 696). 58 Another significant event in Calandre's life was the occasion of a party for her 21st birthday, which she marked with a speech that had taken her four days to write, and which her older sister Bianca read on her behalf (T 696). Calandre identified this occasion as a major achievement in her life (T 696). The speech, which is Exhibit "CCC", expresses gratitude to her family and friends for their support, and resonates with a bright sense of humour and an affectionate recollection of family moments. It is worth setting out some of the speech at length: - "Welcome family and friends to my very special night, it's hard to believe how many people are here and I didn't even have to pay anyone to come (so you think Cals). Over my 21 years like everybody in this room I've had to face a lot of hardships, but I always had the support of the Simpson's and family friends. In my life, people have asked me on numerous occasions if my parents treat me differently to the other children. My answer is always "no". I still got a mouthful (especially from mum, and try hard mum Jade) when I gave cheek. However, like they say the good times outweigh the bad." 59 And later: - "When I was a little kid my mum use to take me from therapist to therapist each day. She always trys do what she sees is best for me and she's 99.9% right. For that I am greatful. I have to say that I don't know a mother who has been through the kind of things that she has been through and still has the energy to love each of us. As for dad, well what can I say! He has always been the best father that anybody could hope for, well almost. He's just like a big brother only he acts younger. Always willing to let me tag along to the snow, and occasionally to the movies with him. Oh yeah and dad next time we go to the pup can you wear a t-shirt stating that you are my father, so the older people don't mistake you for a dirty pervert trying to get a handicap child drunk and ask 'and what do you plan to do with her after this'. To my three sisters, Biancha Jade and Cloe. We have always given each other hell! But anyone else with sisters would understand. I constantly find myself saying things like 'what is my dress doing on you'." 60 Calandre also thanked her carers, friends who had travelled from interstate, and her closest school friend, Angie. 61 While these impressive milestone achievements are indicative of the extent of the plaintiff's determination, it is her pursuit of her own interests and activities on a daily basis, and her possession of similar likes and dislikes to those of able-bodied girls of her own age, that perhaps best reveals her desire to be as unexceptional as possible. 62 She loves watching television (especially the soapies at night) (T 24), has enjoyed horse riding with the help of two people on each side (T 23), and has participated in snow sports (through the use of specially made toboggans) (T 25). Calandre loves music, and has met her favourite performer, John Farnham, three times (T 459). She has also been to the ballet (T 459), and she enjoys playing chess (T 80). Above all, it seems, she delights in the company of people her own age, whether able-bodied or disabled, in social settings such as the pub where she likes to drink alcohol (sometimes) (T 458). Calandre's Hopes and Aspirations 63 Calandre has envisioned, in detail, what she would like her future to hold for her. Her desire to make certain experiences part of her future is strongly felt and expressed with a sense of conviction. 64 First, Calandre has given evidence that she would like to live independently. Mrs Simpson stated that Calandre has been adamant for a few years that she would like to live independently of her family (T 43). Calandre said "I really want to move out of home into my own house with carers" (T 605). She thinks that her home should be "all special for me", and that it should always meet her needs (T 605). 65 Secondly, Calandre would like to attend University. When asked why she wants this, she responded: "I have a brain and I want to use it. Why should I sit around?" (T457). 66 Calandre hopes to study social work so she can assist people with special needs. Her first choice had been to study law, because she wanted to help people get the "right justice", but she came to the realisation that she had to be realistic. She knows she will not get the mark required for entry into this course (T 458). With support (help from an educational tutor), Calandre does not see any problems with attending university (T 458). 67 Calandre also hopes to compete in the next Paralympic Games (in 2004) in Bocce (T 694). Calandre enjoys playing Bocce and became involved in this sport through school. She plays this game with the help of an assistant, she tells the assistant where to position a ramp and the ball is thrown down the ramp (T 24, T 694). The assistant follows Calandre's instructions, they cannot watch the game (T 694). 68 Bocce is an example of an activity that she has pursued independently and with determination. When Calandre's ramp assistant left, she was told that she couldn't participate any longer because another ramp assistant could not be found, and so Calandre found her own ramp assistant through her own "begging and pleading and finding" (T 62). 69 Calandre's hopes to marry one day and have children. She has had a boyfriend, and he asked her to marry him about a year ago, at first she accepted the proposal but she later changed her mind (T 697). Calandre believes that she would not like to marry before she is 28 years old, because there are many things, like travel and getting a university degree, that she would like to do first (T 698). 70 Calandre hopes to have two children, two years apart. She does not envisage that she would have difficulties in raising children if she had the right help (T 698). When asked in cross examination whether there was a risk that her children might bond or attach to their carer, she replied "No, because I will give them all love as a mother should", though she agreed that if this did happen, she would find that distressing, "but carers come and go and the mother will always be around" (T 710). The Issues 71 Despite an early prospect that there might be a measure of agreement between the parties in relation to a number of the heads of damages, this was not to be. This is regrettable since it requires the court, following an extended hearing, to determine 31 heads of damage in relation to the overall assessment. Many, if not most, of these were hard fought. This extended not only to major items such as the cost of future attendant care but to relatively minor items as well such as pharmaceutical costs and the selection of a motor vehicle for modification to enable the plaintiff's transport. 72 In these circumstances, it is necessary for the court to start, as is conventionally done, with an assessment of general damages and then to work its way through 31 contested heads of damage. 73 The first matter to be determined however, is that which occupied the bulk of the time devoted to the assessment of the plaintiff's damages. This is the issue of the plaintiff's life expectancy. Life Expectancy 74 The plaintiff's life expectancy is an issue which bears upon all those heads of damage which have been claimed by the plaintiff on a continuing basis for the whole of her life. In the general run of cases, the conventional basis upon which such an issue has been resolved is by resort to the Australian Life Tables, which provide the life expectancy for Australian males and females. There is then applied to those tables, where appropriate, expert medical opinion focusing on those aspects of the plaintiff's condition and individual circumstances which may yield a variant to normalcy. These opinions may affect the averages reflected in the life tables. In most cases, the conventional situation is that the different estimates in those expert opinions provide the court with a range from which the court itself may make an assessment of the likely or probable extent of the plaintiff's remaining years. Once this finding has been made, a plaintiff is entitled to the discounted capitalised value of the continuing loss for the length of years so determined. This is often a practical assessment but it is also, for the reasons stated by Handley JA in G. T. Pettersen v Bacha (NSWCA unreported, 9 March 1995) a most critical and important one. A significant underestimate, for example, could leave a plaintiff without adequate care at a critical later point in his or her life. A significant over estimate, on the other hand, could result in a windfall for others. 75 The issue of life expectancy in this case has been most complicated. At one level, it tended to develop into an all out battle between the clinicians on the one hand and the statisticians on the other. On the plaintiff's side there has been an array of medical evidence (Drs Wise, Buckley, and Professor Breslin) plus bio-statistical, epidemiological, and actuarial evidence (Professor Berry, Dr Staines and Mr Cumpston). In turn the defendants called a Rehabilitation Specialist, Dr Bowers, Dr Antony a Paediatric Neurologist, and an American Researcher and Statistician, Dr Shavelle. In reply, the plaintiff called Professor Yeo, a well known spinal injury Rehabilitation Physician. 76 The presence of this impressive body of expert evidence has resulted in, a virtual avalanche of evidence and submissions from the contesting parties. Despite this, the issue poses a simple and stark question: What is the probable span of the plaintiff's remaining years? 77 The first defendant's position starts with the recognition that Calandre has cerebral palsy - a non-progressive condition attended by a range of disabilities which, in turn, carry a number of risk factors predisposing the plaintiff to death at an earlier than normal age. One such risk factor, for example, is the risk of respiratory tract infections as a result of aspiration, leading to pneumonia. 78 Mr Brereton SC's principal submission is that the primary question is best answered - indeed can only be answered - by an examination of acceptable relevant statistical material, if available, which will reveal whether Calandre is at an elevated risk of mortality. If there be such material and she is shown thereby to be at risk, this material will also reveal the incidence of the mortality risk. Alternatively, at the very least, an examination of this kind of statistical material will provide an appropriate starting point for the necessary examination. 79 The second step in senior counsel's argument was to identify, through Dr Shavelle, a customised life table for Calandre based on a well recognised Californian database. This is a routine data system known as the "Californian Mental Retardation Database". The system derives from information regarding patients who have developed mental disabilities and received health services from the State of California. It is one of the largest studies of people with disabilities and contains a large number of people who have cerebral palsy. 80 Dr Shavelle provided a number of progressive reports containing his estimates of the plaintiff's life expectancy. Essentially, the estimates progressed upwards as more accurate information was provided to Dr Shavelle. His final estimate, which corrected a coding error in his previous reports, concluded that Calandre's life expectancy was an additional 40 years (to age 61) or, making some assumptions in her favour about her hand function, an additional 42.9 years to age 62. The third and final step taken by Mr Brereton SC in his submissions involved the making of some further assumptions in the plaintiff' s favour. These in essence depended upon the possible acceptance of views which had been expressed by Professor Berry who gave statistical evidence for the plaintiff. Senior counsel urged that the statistical evidence supported a life expectancy, on the most optimistic reasonable view, of 45 additional years at age 20. He submitted that, on the probabilities, Calandre would survive to age 65 (a further 44 years from judgment if given at age 21). 81 Mr Levy SC took quite a different approach. He argued that the fundamental inquiry required an examination of a further question: Is there any specific reason to suppose that the plaintiff will die early and, if so, how early? This was the question which had been posed by Dr Staines. The answer to this question, Mr Levy maintained, was not to be found in the statistics. It was to be found essentially by having regard to the body of expert clinical evidence especially that assembled on the plaintiff's behalf. This included the evidence of a Neurologist of long standing, Dr Wise; Dr Buckley a rehabilitation expert and Professor Breslin, an eminent respiratory physician. Regard could also be had, albeit with reservation, to the clinical views expressed by Dr Antony, an experience child neurologist and Dr Bowers, a rehabilitation physician, each called on behalf of the first defendant. The range of views of these experts varied from no reduction at all from the norm reflected in the Australian life tables (60.25 years) (Dr Wise); a two per cent reduction from normal (Dr Buckley and Professor Breslin) down to the possibility of death at age 55 (Dr Antony). The views of Dr Bowers and Dr Antony purported to take into account statistical material, but, at least in the case of Dr Antony, not in a particularly precise manner. It must also be said that Dr Bowers, while purporting to rely on scientific statistical material, rejected Dr Shavelle's estimate because it was "not correct". 82 Mr Levy's preferred position was that the best of this clinical evidence ought prompt a finding that there was no sound medical basis upon which to found a justifiable argument that Calandre would die earlier than normal. That is, he urged a finding that the plaintiff's remaining years should be assessed at an additional 60.25 years. The absence of any negative medical factors in her particular circumstances and the presence of positive individual factors, combined with the likely life prolonging effect of proper and adequate care, eclipsed, he submitted, any risk of an earlier than normal death. 83 The fundamental point of difference between Mr Levy and Mr Brereton on this issue was the plaintiff's assertion that statistics do not provide the appropriate measure for estimating survival in the plaintiff's case and do not substitute for sound clinical assessment. This assertion was founded on the proposition that it is important that an individual such as Calandre "not be buried in the statistics". Secondly, it was pointed out that, in this case, there was no one in the Californian database who had the plaintiff's precise characteristics and very few who closely resembled the plaintiff. Thirdly, there was extensive criticism of the systems employed in the compilation of the database and of the data itself. Fourthly, there was the possibility that mistakes could be made by the statistician either through the supply of incorrect information as to the variable characteristics of the plaintiff or by the inadequacy of the characterisation or definition of the variables themselves. All these matters were likely to affect the accuracy, precision, and hence reliability of any estimate of the plaintiff's life expectancy. 84 Although Mr Levy's preferred position was as I have stated it, the plaintiff's side itself had itself assembled a volume of statistical and epidemiological evidence to answer Dr Shavelle's assertions. Mr Cumpston, an experienced actuary, had estimated a life expectancy of a further 55 years (or 58.6 with allowances for improvement in mortality) based on material from an unpublished study in Western Australia. (Exhibit "NNN" in its revised form). Professor Berry, employing the same techniques as Dr Shavelle had used, and in reliance upon the Californian database, allowed a further 45.8 years depending on the assumptions made about the functionality of the plaintiff's hand use and capacity to sit (or 47 to 48 years taking into account differences between the mortality experience in Australia and America). Mr Levy SC, while insistent that the statistical material was not to be preferred to sound clinical judgment, acknowledged the force of Dr Staines' concession that Dr Shavelle's methodology and statistical analysis (using the Californian database) might provide a starting point for the necessary analysis. He maintained, however, that a clinical assessment had to be made as to whether the group estimate applied to the individual. For example, as Dr Staines had said, the categorisation of the plaintiff for the purpose of fitting her within a statistical model was a medical matter, not a matter for debate amongst statisticians. 85 Mr Levy SC's alternative position, if his primary and preferred position were not upheld, was that the evidence did not justify a discount from the norm to an estimate lower than 55 remaining years. A General Commentary on the Life Expectancy Submissions 86 It will be apparent from this brief statement of the conflicting opinions on the issue of life expectancy that this case potentially involved "a head on" conflict between scientific statistical methods on the one hand and expert clinical assessment on the other. Dr Shavelle was rather scathing in his opinion of medical practitioners who purported to pass judgment on life expectancy issues without regard to the statistical studies (or at least adequate understanding of them ) and in circumstances where clinicians could call on only limited numbers of previous or existing patients with characteristics similar to the person whose life span was to be assessed. Some of the medical experts were equally scathing about the statistical approach. Dr Wise referred to it as "ticking boxes". He argued that the statistical method ignored the individual characteristics of a person such as the plaintiff. 87 I have come to the conclusion that it will not be necessary for me to resolve, in any definitive way, this potential conflict in the present case. Indeed, this is not a suitable case for resolving the potential battle between statisticians and clinicians. In my opinion, it is possible and appropriate to assess the plaintiff's remaining years by having regard to the whole of the evidence both statistical and medical in the particular circumstances of this case. In coming to this decision I have been especially assisted by the evidence of Dr Staines whose careful and analytic approach has made it clear to me that a holistic approach is to be preferred rather than one which focuses either on statistics or medical judgments alone. Dr Staines' Evidence 88 Dr Anthony Staines is the College Lecturer in Epidemiology at University College Dublin. He is a qualified medical doctor with degrees from both Trinity College and London. He obtained his Phd in Epidemiology from the University of Leeds. He has a background in paediatrics as well as a scholarly history in epidemiology. The latter field he defined as the study of factors which influence the health of people, particularly in population groups. It is the study of the factors that lead to particular causes of death and the acquisition of particular diseases. 89 Dr Staines had been provided with two reports from Dr Shavelle. These had been compiled in December 2000. In his first report of 7 December 2000 Dr Shavelle, a Researcher with the Department of Statistics at University of California, had expressed various estimates of the plaintiff's life expectancy. The information on which he had based his estimates was taken from a document known as a "Patient Evaluation Questionnaire" (PEQ) which had been completed on 21 November 2000 in Australia by Dr Jayne Antony who had, on the first defendant's behalf, seen and examined the plaintiff. Dr Shavelle also had the benefit of other materials sent to him by the solicitors for the first defendant. There were varying estimates provided in the first of these two early reports because Dr Shavelle, who is not a medical doctor, considered that some of the facts he had been given about the plaintiff were not clear. The most favourable of his estimates was a further 33.3 years. 90 (For completeness, and in order to understand the ensuing sequence, it is necessary to say that Dr Shavelle provided a further estimate on 26 February 2001 in which he computed the plaintiff's life expectancy to be 34 additional years. This was following additional information provided to him by Dr Bowers, the Rehabilitation Physician retained on behalf of the first defendant. On 26 March 2001 he provided the defendant's solicitors with a new report in which he said that the life expectancy in his report of 26 February 2001 (an additional 34 years) was incorrect. There was a coding error in his computation and, in addition, the model he had used was arguably inappropriate. Because of these errors, he revised his estimate and computed the plaintiff's life expectancy, on a revised basis, at 40 additional years. He also noted that, based on Dr Bowers evaluation, he had assumed that the plaintiff had no functional use of her hand. He was asked to provide a revised estimate which assumed that the plaintiff "uses raking motion or grasp with hand". On this assumption he gave an alternative computation of life expectancy at 42.9 additional years. 91 On 28 March 2001, he provided a final report which, inter alia, gave details of the manner in which the coding error had been made in the earlier report and why it was that the model chosen in that report was considered inappropriate. Although it appears that the two March reports were in the possession of the first defendant's solicitors when Dr Staines gave his evidence on 28 and 29 March 2001, it appears, presumably for reasons of forensic advantage, they were not provided to the plaintiff's solicitors until after Dr Staines had completed his evidence and returned to Ireland. For this reason, Dr Staines did not have the opportunity in examination in-chief to comment on the errors which had been made by Dr Shavelle, nor was he asked directly about such matters in cross-examination. 92 Dr Staines had been asked to comment on Dr Shavelle's December reports. He was asked, essentially, whether they were a reasonable or reliable method of estimating the plaintiff's remaining life expectancy. He was also asked to consider whether Dr Shavelle's statistical approach to estimating future life expectancy was methodologically sound from "an epidemiological point of view". Dr Staines was retained and instructed on 4 January 2001 and provided a succinct but thorough report on 24 February 2001. 93 First, Dr Staines explained the methods used by Dr Shavelle. He described these as "sophisticated and appropriate statistical methods" in the analysis of the survival of people with cerebral palsy in California. These methods estimate a quantity known as "the hazard rate". This can most simply be thought of as the risk of dying immediately after having lived to a given age. He gave as an example a twenty year old woman. What is estimated for her, as an example, can be thought of as the risk of her dying before the age of twenty one. This estimate is based on the actual survival of twenty year old women in the population under study. More precisely, what is estimated is the instantaneous hazard rate - that is the risk of dying immediately upon reaching the age of twenty. For practical purposes, the hazard is usually calculated over a period of time, typically a single year, for the hazard of dying between age twenty and twenty one. 94 Dr Staines explained that, given a set of estimates of hazard, it is straight forward to calculate a life expectancy. At this point, he made an important distinction. He said that it was very important to be clear as to what an estimated life expectancy is. It is the expected duration of life from a specified age, for a hypothetical person who experiences the estimated hazard rates in question. Life expectancies are usually calculated for entire populations not for individuals. He said that it was important to emphasise that no real person experiences this set of risks of death. 95 Dr Staines developed this point in his oral evidence. First, he said that individuals do not have life expectancies. Life expectancies are properties of groups of individuals only. It only makes sense to talk about the life expectancy of a large number of people. When one comes to examine the likely remaining years for an individual, it is not a straight forward process and it cannot be simply done by taking the number shown as life expectancy for the group and applying it to the individual. The second point made by Dr Staines in this context is that epidemiologists normally would not be concerned to estimate the remaining years of an individual within a group possessing particular characteristics. Epidemiologists study populations the whole time. As a rule, they do not have a clinical background, although in his case he did have a clinical background in paediatrics. He expected that a treating clinician would be able to estimate the remaining years of an individual patient. A clinician would take the life expectancy of a large group of people with similar characteristics as background. He would then apply that knowledge, and the other knowledge generally inherent in the clinician's experience, to the individual characteristics of the person and, based on all those matters, anticipate the likely number of years left for that person to live. 96 The third point he made in connection with this introduction was that "calculated life expectancies are not exactly what a non statistician might expect. They are not estimates of how long an individual can expect to live, rather they are convenient summaries of a set of hazards". He went on to explain that this does not invalidate their use. For example, calculating life expectancies in this way permits the profitable operation of Life Assurance Companies. While life expectancies are tools for summarising sets of hazards rates for populations, the application of the method to an individual, he cautioned, was "fraught with difficulty" (Report page 10 section 5.1). 97 (I interrupt this summary of Dr Staines' discussion to state that, I shall from this point endeavour to refrain, unless the context requires it, from using the expression "the plaintiff's life expectancy" but rather speak of "the plaintiff's remaining years". It must be said that when examining the various medical and statistical reports, the two expressions are often used without the necessary and relevant distinction. This applies also to the entirety of the transcript where the subject is discussed). 98 The second matter discussed at length by Dr Staines in his report is an examination of the caution which needs to be applied to the database itself and to the method of prescribing a life table for Ms Simpson, as Dr Shavelle had done. These matters were discussed to make points regarding the possibility that statistical errors might arise; and to examine the precision of the estimates. First, he pointed to the quality of the Californian Mental Retardation Database itself. Dr Staines made the point that cerebral palsy is not a diagnosis. It has a range of different origins. This fact, in itself, may result in a source of statistical difference. Secondly, he pointed to the methods used to gain the information which is contained within the database. The data comes from forms completed as part of the routine activities by people from many different professional backgrounds. More importantly, Dr Staines pointed to his own experience with large scale epidemiological studies. This experience suggested that, without suitable training and the most scrupulous supervision of the participants, the quality of data recorded may well be variable. Some will be of good quality and some will be of poor quality. Thirdly, he pointed to the PEQ which Dr Antony had given to Dr Shavelle. Dr Shavelle had calculated an estimated life table for the plaintiff using this PEQ. It was quite apparent to Dr Staines that the information which Dr Antony had obtained was, in a number of important respects, inaccurate in so far as it purported to give details of the plaintiff's characteristics. There were clear discrepancies. These included an estimate of the plaintiff's mental condition, and the report that she suffered epilepsy (although she has had no seizures for years). Also of importance was the statement that she "had no functional use of her hand" when in fact she can use the thumb of her left hand to point to her communication board; she has increased function in her left hand and can control the wheelchair with her left hand and has some voluntary control of her left upper limb. There were other matters as well including the PEQ information that she "does not crawl, creep or scoot" whereas the plaintiff was able to move around in her bed; she could roll over in the bed and on the ground, and was able to pull herself forward by use of her limbs when lying prone on the floor. 99 The point that Dr Staines made was that any discrepancy between the plaintiff's actual condition and the data provided to Dr Shavelle through the PEQ was likely to lead to errors in the estimation that he gave. The statistical result achieved would be rendered less precise. The greater the errors, so too would be the extent of the imprecision. The potential magnitude of such errors was illustrated by the various estimates given by Dr Shavelle in his first report which varied between 15.5 and 33.3 for further years of life. No doubt, had Dr Staines been given the two March reports of Dr Shavelle, he might well have made an equally telling point that the coding error and inappropriate modelling contained in the earlier report of Dr Shavelle also demonstrated tellingly the potential for error arising out of inherent imprecisions in the process. 100 A related potential imprecision was the document which enabled the collation of material in the Californian Database. This was known as the California Client Development Evaluation Report (CDER). Although Dr Staines had not seen a copy of this document at the time, the point he was making was that, for one reason or another, inaccuracies or ambiguities could arise in the completion of this document which might further lead to less precision in the final estimate. 101 (I should interrupt to say that Dr Antony herself gave evidence in the proceedings. She explained how it was that the discrepancies had occurred when the PEQ form was completed. She confirmed that she would perhaps have answered some of the questions in the form differently if she had seen the videos of the plaintiff's physical abilities (Exhibits "EEE" and "PPP") which were shown to her in court. Of more importance, she agreed that there were a number of problems with the PEQ classification system itself. She gave examples of this: For example, she was not given any definitions which aided her completion of the form and she said she had to make "her own interpretations" (T 2385 lines 35-53). She agreed that there were some confusing aspects of the form which "confounded" the examiner when it came to filling in detail (T 2388 lines 15-18)). 102 Dr Staines was also concerned that there may be room for confusion in relation to the completion and interpretation of forms occurring in different countries. He said that doctors and health care professionals in different countries use the same terms with systematically different meanings. This is a further source of potential error. 103 Another matter which required considerable caution was this: The plaintiff was, by any standards, an unusual person. She had severe motor difficulties but essentially normal intellectual ability. The implication of Dr Shavelle's comments in his report as to the small number of people in the database who were comparable to the plaintiff meant that the estimate made by Dr Shavelle would be "less precise" than his estimates for people with more common patterns of cerebral palsy. Dr Staines was at pains to say that this was no criticism of Dr Shavelle's professional competence but, "an inevitable limitation of epidemiological methods when applied to sparse or limited data". 104 The next matter discussed related to the precision of the estimates themselves. This introduced first, the difficult concept of confidence intervals. Differences in confidence intervals, however, might affect the precision of the statistical estimates. Dr Staines turned then to another complicated issue. This related to the fact that there had been a need to include two different components in the life table prepared for the plaintiff. First, Dr Shavelle had calculated life expectancy from age 20 to age 35 directly from the Californian database. Secondly, he calculated life expectancy from age 35 onwards with reference to the Australian Life Table for the years 1996-1998. In other words, he made an assumption that the plaintiff had an elevated risk of death at age 35 equal to the ratio of mortality amongst 35 year old Australian females and that among 35 years females with cerebral palsy in the Californian Database. The assumption was then made that the extra risk of death experienced by the plaintiff, as compared to other Australian women, would decline smoothly towards a zero excess risk by the time the plaintiff reached the age of 100. From a statistical point of view, this assumption of a linear decline in the log of the relative risk of death with age, was reasonable. However, as no other studies had documented survival among people with cerebral palsy born much before 1960, the assumption was both untested and untestable. 105 There was a further area which raised issues of precision particularly in the light of a recent unpublished Western Australian study which suggested that the population of people with cerebral palsy born before the 1960's in Australia was quite different from populations born in the later decades of the century. 106 Dr Staines, having made these various cautionary points, then turned to the estimates themselves and to the central question he had been asked. First, he made a point of great significance. This was that there was a manifest difference between the approaches of Dr Wise and Dr Buckley on the one hand and Dr Shavelle on the other. It was in this context that he made the point already mentioned that the sophisticated statistical methods used by Dr Shavelle, although perfectly correct for selecting hazard rates for populations, were "fraught with difficulty" when applying the methods to an individual. Dr Wise and Dr Buckley were, in reality, answering a different question, namely - is there any specific reason to suppose that the plaintiff will die early, and if so, how early? Dr Shavelle was posing and answering quite a different question, namely, one which was concerned with a population of people like the plaintiff, as obtained from the Californian database. 107 In this context, Dr Staines returned to the point he had made in relation to the distinction which he thought necessary in relation to the term "life expectancy". Dr Staines took as an example one of the Shavelle estimates, namely the figure of an additional 33.3 years. This was stated to be "Ms Simpson's life expectancy" by Dr Shavelle . This was statistically correct, Dr Staines said, but "potentially very misleading". The obvious interpretation of the estimate was the plaintiff could expect to be dead by the age of 55. This was not correct, and such an inference represented an unwarranted shift from the very precise and technical meaning of expectancy, in probability theory, to the every day meaning of expectation. 108 Dr Staines then added back into the equation the various cautions he had expressed. With the addition of these matters to the equation he thought that "great caution" should be exercised in accepting the estimate so far as it related to the individual. 109 Finally, Dr Staines came to his conclusion. He did so against the background that certain clinical and related features that he had been informed of regarding the plaintiff suggested that her "life expectancy" (in the technical sense) might be "quite good" relevant to other people with cerebral palsy. For a number of reasons, he said that the survival experience of the Californian population in Dr Shavelle's study was not likely to fairly represent the plaintiff's future expectation of life. An important aspect of this opinion was the rarity of people like the plaintiff in the Californian database. Dr Staines expressed his conclusion in these terms:- "For the various reasons discussed above it does not seem to me that any very credible estimate of Ms Simpson's real life expectancy can be made based on the Californian data, and the PEQ provided to Dr Shavelle. This does not reflect errors in Dr Shavelle's methods, which seem to me to be correct. Rather it reflects a failure to acknowledge the many sources of error in the data, in the clinical information available, and the statistical imprecision inherent in all estimates. The fact that Ms Simpson is a rather unusual person only makes matters worse. It is not disputed that most people with cerebral palsy will have a reduced life expectancy. The evidence for this is overwhelming. The issue is the degree of credibility which can be placed in Dr Shavelle's estimate that Ms Simpson can expect to live a further 33.3 years as opposed to the 60.8 which other Australian women of her age can expect. While it seems plausible that Ms Simpson will live fewer years than her non disabled counterparts rather than more, because of the multiple sources of uncertainty, it is not clear to me that any useful estimate of Ms Simpson's own life expectancy can be made in statistical terms. In this circumstance an estimate made on the basis of an individual assessment, by a person with suitable clinical experience would be useful." 110 It is necessary to note that Mr Brereton SC was very careful in cross-examination of Dr Staines to eliminate, to a degree, some of the cautionary concerns Dr Staines had about the accuracy and utility of the Californian database. Some of his concerns were clearly alleviated, for example, the possibility of there being inconsistency between the PEQ and CDR forms. However, despite this careful cross-examination, an overall impression was left that there were various areas in which imprecision might well remain. In this regard, Dr Staines made a further useful point. Statisticians are used to dealing with imprecision, they are able to make allowances for it. However, imprecision can often turn into unreliability and this is so, particularly where small sampling is involved (T 963 lines 26-37; line 47 to T964 line 10). 111 Secondly, Mr Brereton SC secured Dr Staines agreement to a proposition which he had conceded in the text of his report, namely that the plaintiff's life expectancy would not be the same as that of a non disabled counterpart (T 982 lines 10-15); and finally, Senior Counsel secured the witness' agreement to the proposition that the statistical material and the Shavelle type exercise provided "a starting point" for the adjustment to be made. This was a more accurate approach than that of Drs Buckley and Wise who had taken as their starting point the Australian Life Tables. This agreement was, of course, subject to the qualification as to whether the results of the Shavelle exercise were correct (T 969 lines 30-45). 112 There was one final matter dealt with during cross-examination which requires comment. Between pages T 976 and T 982, there was considerable dialogue between Mr Brereton SC and Dr Staines in relation to the proper methodology involved for clinicians who had taken the statistical material as a starting point for assessing the position of an individual and determining remaining life span in that context. The entirety of these pages is instructive for the methodology I regard as appropriate to the present case. There was a particular passage at T 976 line 45 which, to my mind, succinctly emphasised a real danger of imprecision in applying an estimate of life expectancy based on statistical material to the issue of a particular plaintiff's remaining years. The passage occurs against the background of a discussion that centred on the fact that only 22 people involved in the vast Californian database were similar to the plaintiff. Counsel had asked whether the fact that there were 22 like people would be likely to give a far better basis for a starting point than any experience that would be involved in a single clinician's experience. Dr Staines replied that because the sample was so small the 22 might be "atypical". He said that the possibility or even "modest errors" in the CDER could substantially affect precisely the make up of the 22 persons. He said at line 45: - "I cannot speak to the quality of the California database, I know nothing about it. I have been unable to find, from the papers and documentation that I have been able to secure, what the procedures are for ensuing quality in the database. I have very considerable experience working with other large routine health databases and I would be very concerned about using other large routine health databases to make inferences about rare events or about small groups of people." 113 Dr Staines said that, in his view, this was "potentially a major issue here" (T 976 line 35). The Methodology 114 It will be apparent that I have obtained considerable assistance and guidance from Dr Staines' evidence. I consider that he was a most reliable witness. He did not himself attempt to make any estimate of the plaintiff's remaining years as he had not had the opportunity to examine her clinically. I propose to adopt, in assessing the plaintiff's remaining years for the purpose of assessment of damages, the methodology Dr Staines suggested. In practical terms this means that I propose to examine the medical and scientific material with the following propositions in mind: - 115 (i) I accept that many, if not most, people with cerebral palsy will have a reduced life expectancy. 116 (ii) I do not accept the assumptions inherent in the evidence of Drs Wise, Buckley and Professor Breslin that one begins an assessment of the plaintiff's remaining years by having regard to the Australian Life Tables. These are appropriate for use in cases where there is "normal" life expectancy. This does not mean that I necessarily diminish in any way the force of the medical evidence given by each of those doctors. Dr Wise, in particular, has seen the plaintiff over many years and has been her treating neurologist since she was an infant. Dr Buckley and Professor Breslin are experts of the highest repute in their field and their medical opinions warrant respect and attention. Their views, however, on scientific and statistical matters, are of less weight and those views need to be modified, save and except for the obvious validity of the proposition espoused by each of them that it is very important to ensure that an individual plaintiff does not become "lost" in the statistical material. Of course, in an individual case, a particular plaintiff may well be largely encapsulated by statistical material but that is, as I will show, far from the case here. 117 (iii) It is not necessary, in the circumstances of this case, to resolve the difference in statistical estimates made as between Dr Shavelle and Professor Berry. Nor is it necessary to analyse in any detail the estimate made by the actuary, Mr Cumpston. In relation to his estimate, it is sufficient to say that this was based on the unpublished Western Australian Study. At this time, this study is inadequate, as the authors expressly stated, for predicting survival over eighteen years and there was no data at all relating to survival over forty years of age. 118 (iv) The reason why it is not necessary for me to make a final choice between the estimates of Dr Shavelle and Professor Berry is that, according to the views expressed by Dr Staines which I have accepted, the result would be essentially academic. I propose to make findings however as to the plaintiff's "characteristics" which take into account the differences between those two experts. 119 (v) I shall take, as the starting point for an examination of the clinical evidence and other matters relevant to the assessment of the plaintiff's remaining years, the estimate made by Dr Shavelle most appropriate and nearest to my findings in relation to the plaintiff's "characteristics". Those characteristics include, for reasons I will explain, that she does have functional use of her left hand and that she is able to assume and maintain a sitting position. In taking this modified estimate as the starting point, I shall also pay regard and take into account the estimate made by Professor Berry. I propose to put to one side however, the opinions expressed by Mr Cumpston for the brief reasons I have already given. The Starting Point 120 Dr Staines (and for that matter Professor Berry) identified Dr Shavelle's methodology for estimating life expectancy as providing "a starting point". Dr Staines said that, assuming the results of the Shavelle exercise were correct, it would make a starting point for the adjustments to be made rather than, as Doctors Buckley and Wise had done, using the Australian Life Tables as a starting point. Dr Staines made it clear, however, that the next step in the process is not to make a statistical adjustment to this starting point. Rather there is a need to approach the next stage from a different perspective altogether: that is to superimpose upon the statistical estimate a clinical appraisal from experienced practitioners to ascertain whether, and to what extent, a particular individual falls within that group estimate. 121 It is important to note further that Dr Staines demonstrated that, before moving to that next step, it may be necessary first, to make an adjustment to the starting point to make allowance for a number of variables which might make the statistical estimate itself less precise. Clearly the two tasks are different. A revision of the statistical estimate for reasons associated with aspects of statistical imprecision can only be expressed in statistical terms because it affects the group estimate. On the other hand, the clinical assessment of the individual will yield a result that is directly relevant to the individual and not the group. 122 It is necessary to recognise at the outset, as I do, that there are factors which necessarily affect the precision and reliability of Dr Shavelle's estimate itself. It will be recalled that in his revised estimates of 26 March 2001, Dr Shavelle, in the broader estimate, computed the plaintiff's life expectancy to be 42.9 additional years. This was on the basis of his assumption that the plaintiff had a functional use of her hand to the extent that she "uses raking motion or grasps with hand". 123 There were a number of matters which were said to be likely to affect the precision and reliability of Dr Shavelle's estimate. These were identified in the report and oral evidence of Dr Staines (even though he was not favoured with the ultimate March estimates by Dr Shavelle or provided with the information that mistakes had been made in coding and the selection of an appropriate model) and the evidence of Professor Berry both in his report and the revisions he made during his oral evidence. I accept the force of a number of these matters and especially the following: - (i) Most importantly, there arises for consideration the question as to whether the Californian database enables a reliable estimate to be made of the plaintiff's life expectancy in statistical terms. The original database comprised more than two hundred thousand persons. Of those, there were some 10,409 people who had cerebral palsy, who had reached the age of 21 and who were not tube fed. Out of those, 774 had died by the time the database was supplied for the purposes of the modelling exercise. In Exhibit "QQQ", at paras 11.3 and 11.4 Professor Berry, having made an analysis of the database of 10,409 persons, confirmed that the plaintiff "is an unusual case in that there are only twenty five in the whole data set in the MOB-HIGHCOG category, and only three of these are also in the R/SITS-C category". (These terms relate to "variables" which in turn focus upon mobility and functional factors, both physical and mental). At the hearing, however, Professor Berry revised the conclusion he had drawn in Exhibit "QQQ" because, by that time, he had been given the opportunity to observe the plaintiff's functionality by way of videos of the plaintiff (Exhibits "EEE" and "PPP"). These confirmed him in his view that the plaintiff had functional use of her left hand, and that she was able to assume and hold a sitting position for a considerable period of time. She was also able to crawl. The later video demonstrated that the plaintiff was able by using her left thumb and hand to manoeuvre her wheelchair down a narrow passage way and around a room reasonably cluttered with furniture. These manoeuvres were done in quite a skilful manner. Additionally, she was shown assuming and holding a sitting position on a lounge for approximately thirty minutes. She was able to perform other tasks with her left hand, such as wipe her forehead, change TV channels, make adjustment to the volume of the speaker set and other functional actions such as pointing and touching. As well, she could stand in her chair upon request. As a consequence of the confirmations Professor Berry received, he prepared a table with extended classifications (Exhibit "SSS"). This table showed that there was in fact, not one person in the entire database of 10,409 people who had the variable characteristics represented by the extended classifications Professor Berry gave the plaintiff, after viewing the video. Professor Berry stated the consequent problem in relation to the precision of the statistical analysis at transcript pages 1254 to 1255 where the following questions and answers were given: - "Q. Professor Berry, just dealing with a few other matters not mentioned in the report per se, but we have heard in the evidence mention of the word "outlier". What is the meaning of outlier in statistical terms? A. An outlier is a value of a variable which doesn't fit in with other values of that variable over a group of people. So say, for example, you had a data set with 1,000 people in it and you plotted out a distribution and it was a single point which added quite a different value to any of the other 999, then you would say that is an outlier. There are statistical tests for working out whether something is an outlier, so it can be done in a formal sense, but it is essentially a point which doesn't fit in, or a value of a variable which doesn't fit in with other values of that variable in a group as a whole. Q. We have heard from the medical experts who have given evidence in this case that Calandre's position is unusual in that she has an unusual form of cerebral palsy, and it is said that she has survived quite a number of hurdles which posed threats to her life expectancy thus far. How do unusual features such as that get factored into a modelling of life expectancy? A. Well, when one is fitting a model of life expectancy, then essentially one is modelling the death rates in relationship to a number of variables which influence the death rate and that's what has been done in this case. Then using the estimated coefficient in that model, it would be applied to a particular individual, who has particular values for those variables, so it can be applied to Calandre Simpson, noting the values she has of those variables. The difficulty that could arise, or has arisen, is that as there is nobody in this database with the same values of those variables as Calandre has, then the fact of applying the model to Calandre involves extrapolation beyond the range of the data and that makes it difficult to know the extent to which that extrapolation has validity. Indeed, in general terms it is regarded as possibly misleading to extrapolate a model much beyond the range of data used to fit that model." Dr Staines had made the same point in relation to the plaintiff in his report albeit in different terms. At 4.2 of his report (Exhibit "DD") he had said: - "Ms Simpson is, on the reports provided to me, an unusual person with severe motor difficulty and essentially normal intellectual ability. I emphasise again that I have not seen or examined Ms Simpson. As Dr Shavelle comments in his report, only 5% of Californians with cerebral palsy and motor difficulties comparable to Ms Simpson could sit, and only 3% had unimpaired intelligence. The implication of this is that there is very little data in Dr Shavelle's database relating to people similar to Ms Simpson. Hence Dr Shavelle's estimate of Ms Simpson's life expectancy will be less precise than his estimates for people with more common patterns of cerebral palsy. At 5.3 of Exhibit "DD", Dr Staines repeated his observation that Miss Simpson was "an unusual individual". He suggested that "some caution" should be used in applying the Californian experience to her. It is fair to say that Mr Brereton SC cross-examined Professor Berry about his extended classifications related to the plaintiff's mobility and functionality. These endeavours did not effectively traduce Professor Berry, in my opinion, mainly because there was, in the ultimate, a lack of precision in relation to the definitions of the terminology in the CDER (part of Exhibit "SSS"). Although there was said to be in existence a manual of definitions, it was never reliably extracted or produced at the hearing. (ii) The second factor related to possible discrepancies between the terminology in the CDER and the PEQ. These were not tangibly demonstrated to exist but there was ambiguity, at least in relation to the terminology employed in the PEQ. I have already adverted to this in the earlier brief reference to Dr Antony's evidence. It will be recalled that Dr Antony had filled out and completed the PEQ form which had been faxed to Dr Shavelle in California back in November 2000. He had, in turn, used this form for the purpose of calculating life expectancy in the earlier reports. It became necessary for Dr Antony, during the course of her evidence in chief, to correct some of the matters in her original report and to correct matters which had been reported by her to Dr Shavelle. These related to the plaintiff's ability to roll on her waterbed and her use of the wheelchair in her home. They also extended to the plaintiff's ability to move herself forward on the floor using her limbs and to her ability to assume a sitting position from a lying position on a couch and to maintain that position for thirty minutes or so. Dr Antony agreed, in cross-examination, that there were certain aspects of the PEQ that were "confusing" and "possibly ambiguous". She agreed that she would probably have filled out a couple of matters differently in this form if she had seen the video of the plaintiff before being asked to complete it. The inadequacies or ambiguities included the inadequate use of the word "quadriplegia"; there were ambiguities about questions relating to the plaintiff's ability to sit for a time, and questions relating to functional hand use and communication. She agreed that these questions "may possibly confound the examiner when it comes to filling in details" (T 2388). She also agreed that she would have put different details in the form in relation to questions relating to the plaintiff's ability to crawl, to sit independently and to use her wheelchair. Dr Antony agreed that, in general terms, restricted definitions of the kind used in a database classification system can result in a "misleading statistical analysis of life expectancy". She said that she had always been critical of "things like this" (T 2389 lines 40-45). She said that there was an inherent scope for error which could lead to an incorrect statistical analysis "when one is ticking boxes or circling options on forms such as the PEQ" (T 2390 lines 20-25). (iii) Dr Staines listed a number of other matters which necessitated a cautious approach to Dr Shavelle's estimates, even though he was in general agreement with the methodology used. These included matters, which I have already mentioned, such as the correct use of confidence intervals; the untested assumption of a linear decline in the log of the relative risk of death with age, and the pattern of survival of adults with CP into middle age in Australia. Dr Staines queried the comparability of the Californian survival data in so far as it related to Americans mostly born before 1970 to the birth and survival position of the plaintiff. (iv) A further point related to the possible suggestion indicated by the unpublished Western Australian study, namely that intellectual impairment may be a more significant risk factor in Australia than it had been shown to be in the United States studies. At this stage, it was too early to tell but the position might well indicate a further need for caution in applying the Californian material. The plaintiff, of course, had normal intellectual capacity. (v) There was the further possibility that future studies might possibly demonstrate that life expectancy in the cerebral palsy population may increase in line with the increase of life expectancy in the general population in developed countries. Although Dr Staines agreed that this was "unknown" at this stage it was yet another reason for some caution in accepting estimates made by reference to the Californian database. Professor Berry made a similar point in relation to Dr Shavelle's calculations. He argued that there was a need to adjust these calculations to reflect the more favourable mortality experience in Australia when compared to the American situation (Exhibit "QQQ" para 7.2; T 1276 lines 25-55; T 1305) although he accepted his re-calculation was an "estimate", he thought there was evidence to justify it (T 1296 line 45). 124 I shall endeavour to bring these considerations to account when I come to express my final views on the calculation of the plaintiff's remaining years. The Clinical Assessments - What Negative Factors were likely to impact on the Assessment of Plaintiff's remaining years? 125 The next step is to depart from the statistical analysis of life expectancy and to make an overall assessment of the plaintiff's remaining life span as an individual from within the group. It is trite to say that it is impossible to predict when an individual will die or how long an individual will live. Notwithstanding the impossibility of precise prediction, the methodology requires that an assessment be made by competent clinicians of the negative and positive factors which are likely to influence and impact on the assessment of the particular individual's remaining years. 126 This assessment of damages requires me to determine, inter alia, the reasonable and proportional cost of future care made reasonably medically necessary by the plaintiff's disabilities. The plaintiff is entitled to full compensation in this regard. Such compensation, to be assessed adequately, must be neither too much or too little. The fact that absolute precision in prediction for the life of an individual is not humanly or intellectually possible does not mean that an attempt to estimate it should not be made. Indeed, it is my duty, notwithstanding the limitations of human capacity, to undertake that very task. The Plaintiff's General Health 127 Despite her severe disabilities, Calandre is in quite good health. She is now 22 years of age and is generally free from illness. In the past she has had occasional urinary tract infections. These have occurred about three times annually. The last such episode was about eight months prior to the hearing. It appeared to be common ground between Doctors Buckley and Bowers that these episodes were probably due to perineal soiling. Such infections are appropriately treated with antibiotics, and do not foreshadow more serious consequences. 128 An intravenous pyelogram had been carried out by Dr King at the request of Professor Yeo. He was of the view, as a result of the IVP and bladder ultrasound results that there was no renal tract abnormality. Dr Barrowclough confirmed that the plaintiff's renal function tests were normal (Exhibit "WWW(2)" paras 1 and 3). 129 In addition to these satisfactory tests, the plaintiff was viewed as having normal sensation. This means that she would be able to feel the effects of urinary tract infection. In such a situation, she has the ability to communicate so that appropriate treatment can be obtained. 130 Consequently, I accept, in general terms that, although the plaintiff has the potential for future urinary tract infections, she is at no particular risk in this regard provided she receives adequate medical attention. This appears assured as she is likely to have in place a very effective health care regime. 131 As a young child, the plaintiff had epileptic seizures. These have now not occurred since approximately 1984. It seems generally accepted in the medical evidence that there is little chance that such seizures will re-occur. Dr Wise thought the risk of epilepsy re-occurring was "highly unlikely" and Dr Antony agreed, as well, that it was highly unlikely that the plaintiff's seizures would return. (Dr Wise T 528 lines 39-43; Dr Antony T 2374 line 55). Dr Bowers thought there was a 5-10% chance of recurrence although he modified this view downwards during his evidence (T 1499 lines 30-40; T 1516 line 30). 132 It is important in this regard to note that the plaintiff's neurological condition is "non progressive". Dr Wise had expressed this view in his report of 29 May 1992 and repeated it in his evidence at T 527 lines 25-28. There is no contest but that this is the situation. 133 Calandre has never suffered from undetected pressure areas such as are likely to cause pressure sores, septicaemia and possible death. Unlike severely injured patients with spinal cord injuries she has normal sensation and also the ability to shift her weight in her wheelchair. In fact, as video Exhibit "PPP" shows, she can "stand" in her wheelchair, actually taking all weight from her bottom and the upper part of her legs. 134 It seemed to be ultimately accepted by all of these doctors that, with the continuity of proper care, there is very little possibility, if any, of the plaintiff developing pressure areas and their related consequences. The plaintiff's particular type of cerebral palsy means that she has an excess of movement although it is not generally well controlled. Patients with severe immobility are far more at risk in this regard. 135 The areas in which Calandre appears to be at greatest risk are the possibility of choking, related to difficulties in her swallowing mechanism; potential respiratory problems due to aspiration, possibly resulting in aspiration pneumonia; and respiratory problems due to untreatable pneumonia. There was, as well, the general question whether ageing in cerebral palsy brings earlier or different physical deterioration than occurs in the general population. There was clearly an overlap in relation to these potential problems. Dr Buckley's Evidence 136 I shall endeavour to summarise the clinical assessments in relation to each of these areas, noting any relevant differences between doctors called on behalf of the plaintiff and the defendant. Where necessary, I shall resolve those differences. 137 Dr Stephen Buckley is a rehabilitation physician with considerable experience. He saw Calandre on 9 April 1998 and again on 9 November 2000. In the first of these visits Calandre attended with her then carer, Trudi Calder. During the course of this consultation Calandre apparently reported to Dr Buckley that she was particularly frightened of choking. He noted: - "In addition, when eating she has a tendency to swallow 'the wrong way' and consequent 'choking'. She said her worst food was pizza, but she likes it nevertheless. She has never had pneumonia or bronchitis as a result of this difficulty in swallowing. She said she has a bladder accident approximately once a month and has significant urgency of micturition. She said she also gets constipated frequently, often only going once a week. She says she has no accidents unless overdosed with anti constipation medication." 138 (The choking incident was apparently that described in more detail at page 18 of these reasons). 139 Having examined Calandre, Dr Buckley expressed the following opinion: - "There is no illness which is likely to deteriorate or cause an increasing burden of disease which may shorten her life. As noted above, she has a slightly increased risk of the development of pneumonia due to her altered swallowing capacity. This has not happened in the past, but there is a small risk of such happening in the future. Normally a development of bronchitis or pneumonia is easily treated with antibiotics. However, in the increased risk of the occurrence of pneumonia, Miss Simpson is a higher risk of more episodes of pneumonia than other people which may ultimately slightly reduce her life expectancy". 140 During the second visit, Calandre was accompanied by her mother, Gail Simpson and her father, William Simpson. 141 Dr Buckley was informed by the family that Calandre had had no specific health issues in the two and half years since he had seen her. She had suffered no serious illnesses nor did she require any operative intervention. He noted, however, that "Miss Simpson continues to occasionally cough with swallowing when food goes the wrong way. She said, however, that if it does go the wrong way, she "gags" and coughs it up. She said that once or twice she has actually vomited when something went the wrong way. She has had no episodes of pneumonia". 142 Dr Buckley also noted, that despite her severe spastic athetoid quadraparesis, she had a capacity to roll over and over "vigorously". She was able to demonstrate a "creeping forward movement" when lying prone on the floor. This was slow but nevertheless, demonstrated intent and progression across the floor. At T 392 he added to his description of her rolling ability: - "She really is very vigorous in these sort of movements. The slow creeping forward movement is only because she has difficulty in coordinating her arms and legs to produce forward motion. In fact, she exercises her arms and legs very vigorously and when asked to roll over her arms and legs went flying in every direction and she rolled wildly across the floor, somewhat to my concern, I must admit, … very vigorously indeed". 143 This indicated to Dr Buckley that the major extent to which her inability was related was poor coordination of her movement rather than to lack of movements. He thought that was an important issue in identifying the type of risks that she might face in the future. 144 At T 392 lines 30-55, Dr Buckley developed the views he had expressed in his written report relating to the possibility of Calandre developing life threatening pneumonia as a result of her swallowing. He thought that there was a possibility that she might suffer from an attack of pneumonia and require more intensive treatment than would normally be the case. He continued: - "However, the risks posed by pneumonia in this day and age are relatively small. It can usually be treated quite adequately with ordinary antibiotics and ordinary good nursing and medical care and the risk of pneumonia causing an otherwise fit person to die is very small. Still, Calandre does have more of a risk of that than others, so I suggested 2%." 145 In further explanation of his remarks, relating to mobility, he said: - "The principal risk is that in a person who is very immobile, such as the person who is paralysed in their chest quadriplegic for example, then there tends to be a pooling of the tracheal excretions in the lungs and difficulty in ridding that, up through the airways, and swallowed usually, but in a person such as Calandre, who has such vigorous trunk movement, I think that the risk of that occurring is much less and the fact that she has not had bouts or episodes of pneumonia in the past is good evidence of that." 146 In general terms, Dr Buckley explained (T 393 lines 10-20) that persons who have complete paralysis carry the risk posed by, for example, a paralysed bladder so there tends to be a stasis of urine in the bladder. This brings with it a higher risk of infection and a higher risk, again because of the paralysis of the bladder muscle, of that infection rising to the kidneys. Such a risk, in Dr Buckley's view, did not exist in the case of the plaintiff. He said that this was "a very unlikely risk". Her history of urinary tract infections were, he thought, explicable on the basis of perineal soiling and were not related to stasis in the bladder. He was also reinforced in his opinion by the fact that she had had a recent ultrasound and there was no evidence of damage to her kidneys. He also considered the possibility of deep venous thrombosis. He noted that a person who was completely immobile was at high risk of developing clots in the leg veins which can go to the lungs. However, he thought this was also very unlikely because the plaintiff had leg movement. 147 In short, he thought that the only realistic negative feature in her case which suggested some threat to her life expectancy was the swallowing difficulty which might increase the risk of soiling in the lungs. He was of the view that this risk would be "minimised", provided that the care regime included the instruction of carers to carefully observe her during her eating; and to have a plan of management in the event that any food was swallowed the wrong way. The main issues would relate to the speed of eating, correct posture during eating, and correct consistency of the food. Carers would need to know the necessary techniques to clear any major aspiration from the airway. There is a technique, he explained, which is commonly taught and used known as the Jendrassik manoeuvre. This involves the carer standing behind and sharply pulling on the abdomen up towards the chest. The effect is to compress the chest and "pop out" the offending lump which has been aspirated. It is not a difficult manoeuvre but it takes "confidence" and "some strength". 148 Dr Buckley was cross-examined by Mr Brereton SC to some effect on statistical life expectancy issues. First, he agreed, ultimately, in the light of errors which were demonstrated to him that the Eyman studies could not be relied upon as authoritative studies of life expectancy in the field (T 422 line 46). Secondly, he agreed that the statistical studies of Strauss and Shavelle, on the other hand, would have standing in identifying the range and combination of physical effects in the presence of cerebral palsy leading to a reduction in life expectancy. 149 Thirdly, Dr Buckley was taken to three papers published by the American authors. The first of these was "Causes of Excess Mortality in Cerebral Palsy" (Exhibit 120). This was a paper published in 1999. This article suggested that there was a significant elevation of mortality in cerebral palsy sufferers from diseases such as breast cancer, brain cancer, bowel cancer, cardio-vascular disease and cerebrovascular disease. The study noted that, although respiratory diseases accounted for some 36% of the causes of death of persons who suffer from cerebral palsy, the majority of causes of death came from sources other than the respiratory system. 150 The second paper Dr Buckley was required to examine was a study entitled "The Life Expectancy of Children with Cerebral Palsy" (Exhibit 117). Ultimately, Dr Buckley said that he did not think that this article dealing with survival of children with cerebral palsy was of much utility in the present case. I took him to mean that the plaintiff had survived the difficult early years and was now in an adult category (T 432). 151 The third paper (Exhibit 118) did however relate to the issue of life expectancy in adult palsy sufferers. It was principally the matters in this study which were put to Dr Buckley to challenge his estimate of a two per cent reduction from normal life expectancy. 152 Dr Buckley was clearly not an expert on life expectancy matters especially in the field of statistical study. He agreed, however, that if the study (Exhibit 118) could be applied to the plaintiff's circumstances, then his two per cent reduction figure would have to yield to a higher percentage. Dr Buckley did not however, concede that the Californian database was the "complete answer" to the question. More relevantly from the point of view of his clinical assessment of the plaintiff's condition and his consideration of factors which might clinically bear upon her as an individual, he said that the identified series of risks in the Californian studies might well be reduced if cerebral palsy sufferers had proper medical review and care during their life time. He gave, as an example, the early detection of breast cancer in women. A second example was proper medical review of a person's diet and the regular review of blood pressure. From a medical perspective, Dr Buckley was very reluctant indeed to accept that cerebral palsy itself could lead to any greater risk of breast cancer or for that matter, any of the other identified cancers in the study (T 120). 153 In re-examination, Dr Buckley stated that the prospects of good care in Calandre's case and the advantages that this might have for her in relation to any risk of early death were important. Secondly, he repeated that her level of mobility and in particular the vigour of her arm and trunk movements, associated with head and neck movements, led him to question putting her into the relevant category of immobility in the Strauss and Shavelle publication on adults. It was his belief that people "need to be individually assessed". Their own personal characteristics are "the most important factor in trying to identify their life expectancy" (T 446 line 42). He repeated his observation relating to the wide range of potential causes of death discussed in the first study. In particular, he addressed issues of improvement about outcome, such as early detection, proper diet, regular attendance for blood pressure testing, bowel cancer tests and the like. He could see no connection whatsoever between brain tumour and cerebral palsy. Dr Graham Wise 154 Dr Wise was the plaintiff's treating child neurologist. He saw her regularly between 1980 and 1987 and he was involved particularly in the monitoring and treatment of the epileptic seizures which she sustained until about 1984. He saw her more recently in 1999. 155 Dr Wise had specialist training over many years in the field of Paediatric Neurology including holding the position of Staff Paediatric Neurologist for the Prince of Wales Children's Hospital (now "The Children's Hospital"). He had written widely in the field of his speciality which was Clinical Paediatric Neurology. 156 Dr Wise made a number of sweeping statements concerning life expectancy issues for the plaintiff. For example, in his report in March 1992 (Exhibit "O") Dr Wise had said: - "I do not believe that this severe degree of cerebral palsy will necessarily alter her life span." 157 In his later report on 29 May 1992 (Exhibit "O") Dr wise said: - "She will remain severely handicapped all her life. There is nothing progressive about this illness but I think it is likely that she will live out a normal life span." 158 He saw her seven years later on 27 May 1999 and provided a further report dated 1 June 1999. On page 2 of this report (Exhibit "O") Dr Wise said: - "She is going to remain severely handicapped and dependent. Since there have been no problems with seizures, nor problems with chest infections, I can see no reason why her life expectancy would not be normal." 159 In his evidence in chief (T 528-529) Dr Wise said that about 60% or so of people with cerebral palsy who die do so as a result of respiratory complications. A further 10% die from epileptic seizures. In Calandre's case, he thought it was likely unlikely that her childhood epilepsy would re-emerge. Her history of no respiratory problems was also a positive factor. Thirdly, he thought the fact that Calandre had survived to her present age was significant since early mortality in cerebral palsy was, in his view, particularly striking. 160 Dr Wise also expressed the opinion that the form of cerebral palsy suffered by Calandre was a relatively uncommon form of cerebral palsy. He also thought that her unimpaired intellect had a positive predictive value for her survival. It was his view that children with cerebral palsy who displayed drive and intellectual capacity were showing features which were positive in terms of life expectancy. Dr Wise thought that over the years Calandre had developed a lively intelligence and a lively sense of humour and he had become increasingly convinced of the fact that she was of normal intelligence. He thought that she was right 'at the very top of the factors' that might promote or extend life expectancy (T 530). 161 It was at this point that Dr Wise mentioned the literature on life expectancy. He introduced the topic of an unpublished Western Australian study and claimed that it was likely to be more reliable than the Californian study and that it suggested that the presence of intellectual capacity was a relevant factor in cerebral palsy patients. He claimed that the Western Australian study pointed out that 20% of the whole population of cerebral palsy sufferers who had "normal or near normal intelligence" were at a very low risk. 162 At it turned out, this was a dangerous topic for Dr Wise to introduce. This was principally because, as subsequent extensive cross-examination demonstrated quite clearly, Dr Wise had not been familiar with the literature on life expectancy when he completed his reports in 1992 and 1999. It was clear that he had endeavoured to bring himself "up to speed" with some of the literature by the time he gave his evidence at the hearing. The cross-examination showed that he had not made a particularly good fist of the job. For example, he had said (at T 539 lines 20-30) that the Strauss paper led him to believe that the two major determinates of mortality were intellectual handicap and the severity of physical handicap. Later (at T 553) he was forced to agree that his statements in this regard, in so far as they related to severity of intellectual handicap, were "utterly wrong". This was so because the study had found that cognitive skills were factors that did not contribute significantly to life expectancy. 163 It is fair to say that his attempted espousal of the Western Australian unpublished study in preference to the Californian study was bound to fail, as became clear during his cross-examination. This was essentially because Dr Wise had not made a sufficient study of the relevant materials to enable the formation of a reasoned conclusion. 164 I do not propose to pause to examine the intricacies of the cross-examination in this regard, nor the various areas in which Dr Wise's grasp of the relevant studies was demonstrated to be deficient. I have already accepted, for the purpose of the methodology I have determined to adopt on the issue of life expectancy, that it is appropriate to regard Dr Shavelle's estimate as a relevant starting point for the assessment of the plaintiff's remaining years. There is, in my view, little purpose in examining the attempts by Dr Wise to denigrate the overseas statistical studies, just as there is little purpose in demonstrating the inutility of Dr Shavelle's persistence in asserting that clinical assessments are no substitute for statistical analysis. In the particular circumstances of this case, I am quite satisfied that a resolution of the ongoing debate between statisticians and clinicians is not necessary in so far as the task is to examine the clinical and related characteristics of this particular plaintiff, in order to assess her probable remaining years, against the background of the statistical estimate made by Dr Shavelle and derived from the Californian database. 165 Nevertheless, there were some important points made by Dr Wise in relation to his clinical assessment of the plaintiff which reflected on the statistical method, at least so far as its precision was concerned. 166 At the outset, Dr Wise conceded he had not been involved personally in any research in relation to the assessment of life expectancy in children or adults with cerebral palsy, nor had he undertaken any form of research in that regard (T 537 lines 10-30). The only training he had in the area was the type of training gained by a practitioner with experience as a general neurologist dealing with long term prognosis of many conditions. As a child neurologist, he did not have patients over the age of 21 and he had not been involved in managing of treating cerebral palsy in persons who were over the age of eighteen. He had considerable experience, however, with children who were severely affected by cerebral palsy, and whose life span had been reduced (T 538 lines 40-45). 167 The straight forward opinion he expressed was that, as Calandre's problems with seizures had gone away and there were no actual problems with chest infection, her life expectancy was good. At T 547 line 25 he agreed that immobility was a very powerful predictor of mortality in those affected by cerebral palsy but he did not think that it was as powerful as intellectual status in the study he had taken into account. (This was presumably a reference to the unpublished Western Australian study). He was critical of the Strauss & Shavelle studies because of the difference in functions between statisticians on the one hand and clinicians on the other. At T 549 line 5 he said: - "This is what Strauss' paper says statistically, but the problems are always the problems of a person with a set of skills being buried in the statistics, so that a person gets included in a group when there are good reasons to believe, in my view, that her performance to this point has not indicated that she is at risk from that point of view." 168 Dr Wise went on to say "This girl is an exception" (T 549 line 29). This was because of her intellectual ability, the fact that she has not had respiratory problems to this point of time and the fact that she was "a determined girl". 169 It had been Dr Wise's experience as a child neurologist that most of his patients who had died had done so as a consequence of respiratory illnesses. Many of them died before the age of one and a lot of them before the age of five. There were some who died of seizures compounded by respiratory illness. His experience was overwhelmingly that it was "repeated" respiratory infections that signalled to the practitioner that the patient was going to have a shortened life from recurrent respiratory infections (T 550 lines 35-40). 170 Dr Wise was also cross-examined about the Strauss paper entitled "Causes of Excess Mortality in Cerebral Palsy" (Exhibit 120). Dr Wise was not familiar with this paper but its contents were summarised to him on 16 March and he was given the opportunity to consider its contents before the continuance of his cross-examination on 20 March 2001. Dr Buckley had been cross-examined in relation to this study but thought it had little application to the plaintiff provided she received good care. 171 Dr Wise agreed that the paper demonstrated that there were increased causes of death in all the common systems with the exception of lung cancer (T 627 lines 30-35). These common systems included cancers, cerebrovascular, diseases of the respiratory system, and diseases of the circulatory system. 172 Dr Wise made a detailed response to the proposition that the particular study had ramifications for Calandre. Between T 614 and 627 he was permitted to expound his views and was then cross-examined in relation to them. I took him to say, generally, that the Strauss paper was not "logical or biological" in relation to its conclusions. He explained that cerebral palsy is a label of administrative convenience. It groups together people with motor handicaps who have similar medical needs. It is not a medical diagnosis (T 615 lines 5-10). Calandre's medical diagnosis, he said, was dyskinetic cerebral palsy due to intrapartum hypoxia. Hypoxia from this cause represents well under 10% of the causes of cerebral palsy. The other 90% are due to either pre-natal causes, and some known and some quite unknown. So far as the incidence of increased mortality was concerned, it could be caused in those situations by the symptoms or by the nature of the primary cause. He gave, as an example, bowel obstruction caused by malformation occurring during the development of the bowel and early pregnancy. He said it was quite possible that, whatever it was that caused the bowel maldevelopment, could also have caused the brain maldevelopment and hence the cerebral palsy. It was quite clear that intrauterine brain development causes were absent in Calandre's situation. 173 A second cause for an increase in mortality according to the study was cardiac disease. In the same way, maldevelopment of the heart could take place at the same time as maldevelopment of the brain causing the palsy. This was not the situation in Calandre's case and she has no signs of congenital heart disease. 174 Similarly, Calandre's cerebral palsy had nothing to do with intrauterine stroke or with the causal situation which might lead to the presence of a brain tumour, slow growing or otherwise. 175 Dr Wise also drew the Court's attention to a passage at the end of the Strauss study which was quoted a number of times throughout the hearing and subsequent submissions. The authors had said: - "Large epidemiological studies such as this deal only with gross patterns, and leave many questions unanswered. They compliment in - depth clinical observations rather than serve as a substitute for them. It is hoped that the findings will stimulate more focused research on the reasons." 176 At T 618 lines 11-17, Dr Wise (in dealing with the article) said: - "It addresses the causes of cerebral palsy and doesn't address their associations except to say that the patterns that emerge from that article are gross and that one has to rely on clinical analysis to try to work out what the reasons and the causes are of the excess mortality." 177 Dr Wise agreed with Mr Brereton SC in relation to a number of propositions which flowed from the analysis he had conducted in relation to the article. First, he accepted that a higher incidence of mortality from breast cancer might be due to a lack of early detection. This was related, he said, to the question of the way the patient was cared for (T 618 line 30). There may have been, he explained, a lesser standard of care back in the 1950's. He accepted that a person with severe cerebral palsy would be unable to perform regular self-breast examinations but considered that, with an appropriately trained carer, regular examinations could be achieved. 178 Secondly, Dr Wise accepted that to the extent that increased mortality in breast cancer might be due to late detection of that disease, together with accidents and external injuries, this would not be likely to be attributable to the original cause of the cerebral palsy. 179 Thirdly, although Dr Wise would not be shifted from his position that chromosomal causes for cerebral palsy might carry with them other malformations, which would explain the possibility of increased risk of mortality arising from those other malformations, he accepted that cerebral palsy, arising from a chromosomal basis, was found in only five or ten per cent of cases. He cautioned, however, that the ability to make chromosomal examination was very much superior now than it had been in the past. 180 Fourthly, he accepted that diseases of the respiratory system were mainly caused or attributable to the fact that patients had difficulty in getting food down the right way. Also there was the fact that reflux from a child's stomach could spill over into the trachea. All this he said could occur as a result of a disturbance of the swallowing mechanisms plus a disturbance of the protective reflexes which deal with the problem if it did in fact arise. The abnormality, he accepted, was not physical but functional and is attributable to whatever is causing the cerebral palsy (T 624 lines 5-20). 181 In the context of respiratory disease, Dr Wise insisted that such disease was not related only to the motor deficit caused by the cerebral palsy but to intellectual problems which contribute to the motor difficulties. Finally, Dr Wise said that he had not been able to identify any specific reason why the plaintiff should die early. He said she had survived to the age of twenty, she had none of the complications that relate to respiratory disease or that relate to swallowing and inhalation of food or that relate to reflux; and her epilepsy was under good control. She was "an overall healthy person" and he could not see reasons for her having an early demise (T 648 line 10). 182 In this context, Mr Brereton SC suggested to Dr Wise that this conclusion he had reached was a different thing to the question as to whether somebody might have a reduced life expectancy because their condition put them at greater risk from causes of mortality which had not yet occurred or arisen. Dr Wise would not accept this proposition. He repeated, first, his statement that the excess mortality described in Strauss' 1999 paper could be accounted for in a number of instances by factors related to the cause of the cerebral palsy rather than the physical disability. He accepted, of course, that the potential for respiratory illness was directly related to the motor and perhaps intellectual deficit but asserted that Calandre at 21 years of age, had no problems in that area; and that he thought her outlook "from that point of view was excellent" (T 469 line 20). 183 Secondly, Dr Wise repeated that he did not believe Calandre fitted easily into any of the categories because the cause of her cerebral palsy was relatively rare and prognostications about her could not be fitted into the general statistical assessment of "a whole group of children" with cerebral palsy (T 648 line 55). The following question and answer is instructive as to his general position: - "Q. So are you saying that the average time for which people like Calandre will live is the same as a female of the same age in the general community without disabilities? A. What I am saying is that I think I can see no logical reason why she should die, having account of what her disabilities are, and having account of the fact that despite these disabilities from a very early age, she has not had any of the complications which I would anticipate would kill her." (T 649 lines 50-58) 184 Again at T 650 lines 15-25, Dr Wise said when asked whether in each article he had looked at there had been an increased risk of mortality: - "A. Yes, but that does not take into account - I mean, it is not just ticking boxes, adding up a score, giving it to a statistician who puts it into a computer and presses a button. This girl's clinical condition is really important and has to be taken into account and there are reasons why the statistical information that is presented in the papers that you have presented, do not necessarily represent Calandre." 185 In summary, it was Dr Wise's view that Calandre was an exception. This was because her general health was good, she had intellectual capacity, humour and drive; she had not to date experienced complications which would lead to a prognosis of early demise, and he did not think, for various clinical reasons, that she was at risk in relation to the wide array of illnesses or diseases mentioned in the study (Exhibit 120). The Evidence of Dr Susan Balandin 186 Dr Susan Balandin was a senior lecturer in the School of Communications Science and Disorders at the University of Sydney. She was by formal training a speech pathologist specialising in communication disorders. By subsequent research, however, she had acquired a special interest in cerebral palsy and augmentative assisted communication. Her special interest and research had also taken her into the topic of ageing, as it impacts upon patients suffering from cerebral palsy. 187 Dr Balandin visited the plaintiff at her home and spoke at length with her on 21 February 2001. She observed Calandre eating and drinking, assisted by her mother. She then prepared a report in which she considered issues relevant to the ageing process and its ramification for Calandre. This became Exhibit "Z" in the proceedings. The conclusion of this report was expressed in the following terms: - "Although there are currently relatively few older people (aged 65 plus) with cerebral palsy, we would expect that this will change as those who have had the advantages of improved approaches to meal time management, antibiotics and community integration age. There are currently many questions relating to ageing with cerebral palsy that have yet to be answered. The focus of these would appear to be good medical and health care (including how best to build a good rapport with the medical/health professionals involved), and the impact of different types and severity of cerebral palsy on the ageing process. In addition, there is little information on what services and support networks are required for people with cerebral palsy to enjoy a good quality of life as they age. Notwithstanding this lack of research, it is clear that good health, communication, financial security and appropriate housing are key elements in ensuring that older people with cerebral palsy have a good quality of life and a successful ageing process. From the reports that I have read it would appear that Miss Simpson is likely to live to be older and it is important that strategies are in place to ensure that she has every opportunity to have a healthy and fulfilling ageing process." 188 The report dealt in detail with the need to provide the plaintiff with well maintained communication systems to meet her needs arising from her substantial disabilities. As well, she needed appropriate preventive health education and the presence of a trusted attendant who could give her help with, for example, monthly breast examination. She agreed the plaintiff should be provided with the type of communication and assisted devices which had been suggested by Mr Graeme Smith in his report of 18 December 2000, and made a considerable number of helpful suggestions for matters relating to health, medical assessment, financial security, housing and retirement. 189 In the course of these discussions Dr Balandin described her observation of the plaintiff eating and drinking. She said at para 2.4 of Exhibit "Z": - "Miss Simpson requires assistance with eating and drinking but during the meal I did not observe any episodes of choking. Her mother noted that if Calandre is fed appropriately and reminded to concentrate, she manages meal times well without choking or coughing." 190 Dr Balandin noted from the medical reports that the plaintiff had not had problems with aspiration pneumonia. She said that there were reports, however, from adults with cerebral palsy (Balandin & Morgan 1997) and anecdotal reports from clinicians, that swallowing may become more problematic with ageing for people with cerebral palsy. This might be exacerbated, she said, by the normal changes in saliva that are part of the ageing process, coupled with re-routing of salivary ducts. For this reason, Dr Balandin recommended that the plaintiff have a meal time and swallowing assessment annually together with ongoing dental care for her teeth. 191 During her oral evidence, Dr Balandin was asked some further questions (T 793 line 45 to T 794 line 40) regarding the potential for choking. She said: - "I guess, yes to some extent Calandre has a very good cough reflex so her potential for choking may not be very different from anybody else's, in that if something goes down the wrong way she is able to cough it up and she is able to say foods she is not able to eat with ease, she knows the meal time practices that are suitable for her, so she is able to take some responsibility for what happens and therefore, I feel that her risks of choking are low." 192 Dr Balandin suggested also that Calandre should have her communication system available when taking her meals so that she could communicate any problem to her carer. 193 In relation to the anecdotal reports of people perceiving their swallowing to be getting more difficult as they aged, Dr Balandin thought this problem, if it existed, could be met by regular assessments to maintain Calandre's meal time management. 194 Although Dr Balandin accepted that she was not qualified as an expert on life expectancy in cerebral palsy, she mentioned that she knew, or had encountered people in surveys, who were cerebral palsy sufferers in the older age group. There was a person she knew personally who died at the age of seventy five from cardiac problems related to a family history of cardiac failure. This person had been afflicted by cerebral palsy. 195 During her cross-examination Dr Balandin agreed that she had encountered "reports" of increased problems with swallowing with people in their 30's and 40's. These anecdotal reports were that people in their 40's stated they wanted to change the consistency of the food they were eating, because they were finding they were no longer managing eating as well as they had at an earlier age. These did not necessarily relate to swallowing problems of the kind related to aspiration but included, for example, chewing problems because such persons had poor teeth (T802 line 30-35). Her description of people having changes in saliva production as they aged related really to people in their mid-70's. Professor Breslin's Evidence 196 Professor Breslin is a Specialist Respiratory Physician with wide clinical experience. His report became Exhibit "V" in the proceedings. In his report, Professor Breslin analysed both the present and past health of the plaintiff from the point of view of her respiratory system. 197 Professor Breslin said that he examined the plaintiff on 23 November 2000 with particular focus on the respiratory issues. His findings are set out in his report. He repeated that she had no chronic symptoms, absolutely no shortness of breath, no wheeze, no cough, no sputum, no chest pain, there were absolutely no chronic symptoms. She gave a history of having two or three colds a year for a few days only. He considered this to be entirely normal for somebody of her age. On examination, her chest was perfectly clear. Calandre has never had pneumonia and there was no evidence of any respiratory damage from her long standing spastic quadraparesis. 198 Professor Breslin's examination and the history he took led him to the conclusion that the plaintiff had never had any significant aspiration of material, either food or any other material, into her lower respiratory tract and that she had been able to cope with the potential for aspiration very effectively (T 1106 lines 10-15). In other words he was satisfied that her cough was "working well" and that she had no significant aspiration of material into her lower airway. The consequence of this, he said, was that this was predictive of how she was going to do from that point of view in the future. He said she had been able to cope with it well when her airways were smaller, when she was younger. She had avoided getting lower respiratory tract infections. That suggested to him that she was handling that aspect of her disability very well. 199 Professor Breslin had said, in his report, that the plaintiff was at a higher risk of developing pneumonia than a normal individual because of her relative immobility and the possibility of aspiration of foods etc into her respiratory tract. He had noted that, to date, this had not been a problem and had not produced pneumonia. He was asked to deal with this again in his evidence in chief (T 1107 lines 30-55). He was asked what the main threats were to her respiratory system, so far as infection and illness is concerned. He replied: - "A. There are two main ones, it seems to me, one is because she is relatively immobile and not able to exercise in the usual way that people do and so she is at slightly higher risk of getting infections that might spread to her from other people, such as cold, flu, that sort of thing, even pneumonia but due to an infection rather than aspiration. So she is at increased risk of that. To date she has not demonstrated that the risk is real. Predictively I suspect that that risk, although being a little greater than in normal individuals with normal mobility … is a little greater than in such an individual. She hasn't demonstrated that that is the case. Even if it were, there are things you can do to minimise it such as flu vaccine and pneumonia vaccine …. The other, the aspiration of oropharyngeal content; she has salivary diversion, that risk is minimised. She has not demonstrated a propensity to aspirate food and get infections from it, but that remains a risk greater than in the general population. A risk that is extremely difficult to quantify but in her, provided that she has good carers who are skilled, and that she is fed very carefully and not rushed, … I consider that risk in her, based on her past history and what I have seen, I consider that risk to be quite small." 200 Professor Breslin went on to say that even if she suffered aspiration pneumonia, it was "eminently treatable". He said that people do not die of aspiration pneumonia these days except in the very, very elderly (85 and over). Where there is aspiration pneumonia, the patient presents with fever, chest pain and coughs up blood. It is "eminently treatable", he said, with current antibiotics. He thought the fact that she had not had any gastro oesophageal reflux was also a good sign in her case. 201 In his report Professor Breslin had commented on the fact that Calandre did have some cough with feeding, but not with every meal. This suggested to Professor Breslin that there may be some food starting to go the wrong way but that she is able, fortunately, to cough it. He thought that she had a good cough reflex and that this had protected her airway to date. In the report, he went on to discuss the situation where her feeding may have been too rushed or forced, causing her to choke. This related to an episode with one particular carer, details of which Professor Breslin obtained from the plaintiff's mother, father and from Calandre herself. 202 He agreed that this indicated that the plaintiff had the potential for difficulties in swallowing, which she had so far been able to cope with, because of her coughing mechanism. He agreed that there was a risk, though it was not one which had yet manifested itself, of aspiration of food into the trachea bronchial tract. This is a risk which, if it eventuated, might then lead to aspiration pneumonia. Professor Breslin was also invited to discuss anecdotal reports from people with cerebral palsy, that they perceived their swallowing to becoming more difficult as they age. Professor Breslin agreed that although there had been no problems to date this did not mean that there would be "none in the future". He thought however, the chances of there being swallowing problems in the future were "not great". He accepted however that, in the event that greater difficulties were experienced with swallowing with ageing, it was conceivable that problems could arise in the future notwithstanding that those problems had not arisen in the past. 203 Professor Breslin also expressed the opinion, having regard to Calandre's history, that terminal pneumonia was an unlikely event for her. He said that in the general community, the chances of an individual developing pneumonia from birth to death would only be one or two per cent. He estimated that over her full life time Calandre would have by comparison, a "20% risk of acquiring pneumonia at some stage" (T 1114 lines 10-15). 204 Interestingly, Professor Breslin had never seen anybody die from pneumonia, that is anybody who had cerebral palsy (T 1118 line 55) nor had he ever looked after anybody with cerebral palsy who had died of respiratory illness (T 1119 line 20). Surprisingly, he was not aware of any material suggesting that respiratory illness was a major cause of death among those with cerebral palsy (T 1126 line 5). Professor Breslin was invited to trespass into the life expectancy field, when he was asked about his familiarity with statistical or epidemical studies dealing with risks of death from particular causes where cerebral palsy was involved. He said that it was "absolutely critical" in clinical practice that one did not apply an epidemiological study to a particular individual. He went on to say "such studies are an assistance but that you cannot move from the group to the individual. You must look at the individual to ascertain what difference or distinctions there are between the individual and the group" (T 1116 line 30; lines 45-55). 205 In short Professor Breslin took a very positive view about the plaintiff in relation to his field of clinical expertise. He was optimistic about the condition of her chest. He thought her cough reflex was good and the swallowing mechanism was operating effectively to protect her airways. She was at a greater risk than the general population of getting pneumonia, although modern treatment of pneumonia he thought, would, if it eventuated, be effective in her case. It was clear, however, that his knowledge of statistical literature on life expectancy in cerebral palsy was very limited, even though he, like other practitioners, was sceptical of its application to the individual, and to Calandre especially (T 1118 lines 25-35). Dr Bowers' Evidence 206 Dr David Bowers was a Rehabilitation Physician employed at Royal North Shore Hospital. He had been a rehabilitation physician for about eight years. He was called on behalf of the defendant. 207 In his report dated 5 February 2001 (Exhibit 102) Dr Bowers made a brief reference to the life expectancy literature. At the top of page 9 he said: - "According to the paper, "Life Expectancy of Adults with Cerebral Palsy" by Strauss, published in 1998, Calandre has 66% of the normal years remaining compared to the average female of her age." 208 In the earlier part of his report, Dr Bowers traced the history of Calandre's present illness and examined her current symptoms. It would be fair to say that, in general terms, there was no significant difference between Dr Bowers' view of the plaintiff, her disabilities and symptoms and the views of other experts called in the case. He did however, throughout his report, and later in his oral evidence, draw attention to a number of clinical matters which had possible ramifications for the plaintiff's longevity. These included the following matters: - (i) The possibility of a recurrence of epilepsy: He thought that "perhaps" there was a five or ten per cent chance of this (T 1437 lines 40-45) although he later conceded that he would place weight on the opinion of the plaintiff's treating neurologist and that, if the latter's opinion were that the prospect of the plaintiff having a recurrence of epilepsy was very low, he would agree with that opinion (T 1499 lines 30-40). He reduced the estimate to five per cent (at T 1516 line 30). (ii) There was a possibility that the plaintiff would be prone to developing pressure areas (T 1437). Again, Dr Bowers modified this opinion in cross-examination. He thought the prospect would be "substantially' lessened, having regard to a number of factors. These included the fact that the plaintiff was able to shift in her chair, that she had normal sensation and that she could sit, in family situations, on a chair or couch. This last consideration, he agreed, would "lessen the risk" (T1460 lines 1-5; T 1461). Dr Bowers also accepted that the nature of the plaintiff's cerebral palsy was such that there was considerable movement in her body in other areas which would lessen the potential for pressure areas in these various positions (T 1460 lines 25-40). (iii) One of Dr Bowers principal concerns was the fact that the plaintiff was unable to control her swallowing in a completely normal fashion (T 1440 lines 45-55). He said in his report that her "swallow reflex is poor" (Exhibit 102 page 5). During his examination of her - a consultation of about one hour - he noticed she had abnormal control of the muscles of the mouth and throat. But she did not aspirate (T 1458). He agreed that her cough reflex was effectively protective of her airways and that she was able to do this effectively as a matter of routine T 1549 line 42-45). The fact that she was not able to swallow in a completely normal fashion gave him some concern for the risk of aspiration pneumonia and respiratory infections in the future. Dr Bowers said that, as she aged, cerebral palsy problems would compound making her prone to such problems in the future. On the other hand, he agreed that he obtained no history of feeding difficulties (T 14443) and there was no history of any aspiration (T 1444 line 5). (iv) Dr Bowers accepted that there was no history to suggest any chronic respiratory problem. He accepted that it was important in clinical terms that she had no pneumonia (T 1450 lines 45-50). In fact, he suggested that her life expectancy would be somewhat greater than suggested on the other factors from the Shavelle paper (T 1451 lines 45-50). That is, the fact that she had not had pneumonia so far in her life was a positive clinical factor in relation to life expectancy, although it was not dealt with in the scientific literature. (v) Dr Bowers also expressed a concern in relation to the problem of ageing patients succumbing to overwhelming pneumonia as they developed resistance to antibiotics (T 1451 lines 30-35). In this regard, he seemed to be at variance with Professor Breslin who took the opposite view. In fact Dr Bowers went so far as to suggest that increased levels of care were not likely to prevent patients succumbing to overwhelming pneumonia, although he conceded that he had not had the experience of any cerebral palsy patients succumbing to overwhelming pneumonia (T 1452 lines 35-40) (vi) The final matter related to the plaintiff's history of urinary tract infections. Dr Bowers agreed that the history of Calandre's urinary tract infections (occurring three or so times a year) were consistent "with normality" (T 1457 line 40) but he was reluctant to accept that perineal soiling was a final explanation. He suggested that a satisfactory ultrasound would not be the final word and that it would be necessary to undertake x-rays of the abdomen, an intravenous pyelogram or a cystometry assessment. He agreed however that the last type of investigation would be unnecessary if there were no complaints of pain and no recurrent urinary tract infections. He accepted that a good prognostic feature for inferring that her urinary tract was normal would be if her urinary tract infections were appropriately treated with antibiotics (T 1457 lines 10-45). Dr Bowers and Life Expectancy 209 Dr Bowers was cross-examined in relation to the methodology he had adopted in making his brief assessment of the plaintiff's life expectancy (Exhibit 102 page 9). Dr Bowers said the scientific paper in which he had most confidence was the paper by Strauss - "Life Expectancy of Adults with Cerebral Palsy" (Exhibit 118). Surprisingly, he said he did not have confidence in the Strauss study Exhibit 120 (T 1448 lines 35-45). Even more surprisingly, Dr Bowers said, in effect, that he did not have confidence in Dr Shavelle's 26 March 2001 revised estimate of life expectancy. This was the estimate which had corrected the earlier coding error. He said that he would not take that re-calculation into account at all because he thought there was information in Dr Shavelle's report which made it "not correct" (T 1495 lines 20-40). 210 In other words, Dr Bowers maintained, on the one hand, that he made use of the scientific literature for the purposes of working out a statistical estimate. He identified the relevant study being Exhibit 118. On the other hand, he refused to make use of the "customised life" table prepared for the plaintiff by one of the principal authors of that very study. His stated reason was that he thought the more precise study was likely to be incorrect. Further, Dr Bowers said that he adjusted the statistical estimate derived from Exhibit 118 by increasing it by five per cent in view of the fact that the plaintiff had never had pneumonia. While such an approach coincides in theory with the methodology I consider to be correct, it was not a course authorised by Exhibit 118. Moreover, Dr Bowers made only one adjustment and refused to make any others, because they were not warranted by the scientific literature. 211 Mr Brereton SC maintained, in his written submissions, that Dr Bowers, unlike the medical experts called on behalf of the plaintiff, utilised the methodology espoused by Dr Staines, that is to take the statistical literature as a starting point and to adapt it having regard to clinical features. This, on its face, appears to be correct although Dr Bowers did not claim to have ever read Dr Staines' report. A more careful examination of Dr Bowers approach however, leaves me in considerable doubt that he approached the manner in accordance with acceptable methodology. First, while he purported to have regard to Exhibit 118, and to calculate his estimate from this study, it is clear that the plaintiff's variable characteristics were assessed by him outside the discourse of the definitions or categories in the scientific literature. 212 For example, Dr Bowers did not accept that the plaintiff had functional use of her hand (T 1465). He agreed that she had some use of her left hand and that this usage enabled her to perform a number of functions. He, however, had his own definition of "functional use of left hand". This wider definition, which did not derive from the scientific literature, involved a patient being able to maintain self care and perform a reasonably full range of self care activities related to daily living, for example, feeding, grooming, dressing etc. (T 1465 lines 50-55). There was no parallel between this definition and the variable concept mentioned by Dr Shavelle in his evidence, namely "using raking motion or grasps with hand". It will be recalled that this one variable made a difference to the life expectancy table computed by Dr Shavelle of 2.9 additional years. The variation made in relation to this assumption appears in the March report which Dr Bowers rejected as being "not correct". The second problem with Dr Bowers' approach of commencing his life expectancy evaluation from the scientific literature is this: Because a person with the plaintiff's "variables" was not well represented in the Californian database, it became necessary for Dr Shavelle to "customise" a life table for the plaintiff which took into account more precisely the value of variables corresponding to the plaintiff's condition. Dr Bowers, however, went straight to the tables in Exhibit 118, where the full range of those variables was not available. There is a striking difference between his estimate taken from Exhibit 118 and Dr Shavelle's "customised" life table. Allowing for the assumption made by Dr Shavelle as to the plaintiff's use of hand, the difference is close to six years. The difference is even greater when Dr Bowers' estimate is compared to Professor Berry's final estimate making future allowances for the assumptions he made in the plaintiff's favour. It is to be borne in mind that these differences arise before any clinical appraisal is made. 213 In my opinion, it is quite clear that Dr Bowers' estimate, purportedly based on the scientific literature, is imprecise and reflects his lack of understanding and experience in relation to statistical and epidemiological studies. There was, for example, no suggestion that he had read either Dr Staines report or that he was provided with any of the material from Professor Berry. It may well be true that he made a better fist of dealing with the life expectancy material than did Drs Buckley and Wise and Professor Breslin. The end result however, was necessarily well wide of the mark. 214 Finally, it is necessary to mention, in this context, the fact that Dr Bowers expressed the opinion that Calandre was unable to sit unsupported. Despite the fact that he was shown Exhibits "EEE" and "PPP", he maintained this position (T 1498 lines 20-45). In my view, he was clearly wrong in this regard, as the videos clearly demonstrate. 215 So far as Dr Bowers clinical assessment of the plaintiff is concerned, I have already indicated sufficiently the differences between his approach and that of experts called on behalf of the plaintiff. During the latter part of his cross-examination he said that the principal threat to the plaintiff's life expectancy (in the technical sense) was the likelihood of problems with respiratory infection (T 1496 line 5). Dr Bowers was prepared to accept that there were a number of factors which would promote life expectancy. Without stating these exhaustively, they included regular and appropriate therapy including exercise; good and controlled nutrients; screening for treatable life threatening conditions, such as cancer and the like; the provision of suitable housing and provision for all necessary therapies; a sense of fulfilment, and the provision of adequate psychological support together with social inter reaction with friends and family. 216 Dr Bowers said that he did not make any specific allowance for these factors. In so far as his clinical assessment was concerned, he did not think that Calandre's general state of good health or her intellectual functioning or positive outlook on life, or the presence of drive and determination had any bearing. In re-examination, Dr Bowers asserted that the scientific literature indicated that it is only physical and functional characteristics which had a bearing in relation to estimating life expectancy (T 1501 lines 25-25). 217 In terms of methodology these opinions also showed some circularity of reasoning. The task was to examine the plaintiff clinically to see whether and to what extent, she fitted into the group. A refusal to consider matters which might set her apart from the group because of conclusions in the group study necessarily precluded Dr Bowers from embarking on, or at least adequately dealing with, the clinical individual assessment. I shall have more to say on this topic when I come to make an overall assessment of the plaintiff based on the totality of the clinical evidence. Dr Antony's Evidence 218 Dr Antony's contribution to the debate in relation to life expectancy was very helpful. I was quite impressed by a number of aspects of Dr Antony's evidence and thought she showed considerable insight into the clinical assessment of the plaintiff. Notwithstanding this, I came to the view that her estimate of life expectancy was markedly flawed. Despite her generally insightful and compassionate assessment of the plaintiff, her estimate of life expectancy was by far the most conservative and was significantly less than that of Dr Shavelle's statistical estimate. This would not, of itself, demonstrate a flawed approach but taken with a number of other matters it did, as I shall explain, mean that little weight could be placed on the statistical side of her analysis. 219 In fairness to Dr Antony she made it quite clear (T 2393) that she regarded the exercise as "speculative" and "guess work". She said (lines 5-25) when it was pointed out to her that there was a discrepancy between her views and those of Dr Shavelle: - "Well I mean, I have to rely on first of all there is no exact knowledge of how long people survive with cerebral palsy, okay, and it is impossible there could be people in their 70's or 80's because penicillin came into use in the 40's, okay, so all of this is speculation and statistics and I rely on, to some extent as a guide, these statements or these studies that are published in reputable journals and I add my own sort of idea where they are an over or under estimate, so I am quite happy to say that there are other factors that he has found that changed as time has gone on, and I think it illustrates what an inexact sort of assessment of things this whole area is and how we are in the middle of this and with all the new rehabilitation, with all the things available electronically, all of this is just guess work and these are guidelines and I am not going to argue with Dr Shavelle if he has looked at other factors and says that this puts her in a category that makes even longer life. If she enjoys life, that's great." 220 In fact Dr Antony was prepared to go even further: At T 2393 line 45 she had agreed that the plaintiff, given her foundation of good health was more likely to stay healthy if cared for well. The following exchange then took place: - "Q. Well cared for? A. I agree with that, but I don't agree, I think it is still unlikely that she will have what's a normal life span of a female 75, 80. I still doubt that she will attain that, but I think that she has enough factors in her favour that she has many years to go. That's a different story. Q. Does it follow that you would be reluctant to put firm time on survival? She could well survive for a long, long time? A. I never, ever, make predictions like that. I try to assess, balance things the best I can, but I never, I know too well from dealing with patients that people do things that are outside the limits of what is expected. Q. So you would accept it is quite likely in Calandre's case that she would confound the statistics and survive for almost a normal life expectancy? A. I think it is unlikely, but I can't say anything is impossible." 221 Dr Antony went on (T 2394-2395) to adhere to her view that, although she was prepared to concede that the plaintiff would live a longer life span, she said she had "sincere and honest doubts that she would live a normal life span of an adult female". She said she thought it would be a decade or so less. 222 Dr Antony was clearly of the view that there were limitations in statistical estimates. For example, she was asked and answered the following question at (T 2397 lines 13-20): - "Q. Have you ever discussed with Dr Wise the concept that unusual patients such as the plaintiff run a risk of getting buried in the statistics if one applies it purely statistical analysis to their survival? A. Yes. Q. Do you agree with that sentiment? A. I certainly do." 223 Dr Antony's first report was the 19 April 2000. She had seen Calandre and her mother on 7 April 2000 and interviewed them for a brief period, probably not exceeding one hour. On examination, she noted that Calandre had very severe athetois, "flinging her arms in all directions spontaneously and when she tried to do some purposeful activity". Calandre's understanding of what went on during the consultation was quite good and she was able to explain herself on her communications board. With her left arm, she had some very minimal control in that she was able to point to her communication board with her left thumb. When asked to do finger-nose pointing, she was very inaccurate and had severe athetotic and severe posturing of her head and mouth opening when she tried to do any thing. She looked voluntarily to the right but had difficulty voluntarily looking to the left. She was extremely rigid generally and had wasting, especially of her legs, and typical foot deformity of cerebral palsy. She had severe contractures of her hips, hamstrings and Achilles tendons and her deep tendon reflexes were all pathologically brisk. She controlled her head reasonably well being able to flex it, extend it and turn it from side to side. There was no evidence of scoliosis. Her back was "surprisingly straight". 224 In the course of her summary (part of Exhibit 103) Dr Antony said: - "From the point of view of her life span, the negative factors are, of course, her total lack of mobility and total dependence. However, some of the negative factors which I believe could have been an issue have resolved, such as her epilepsy, which has not been active for many years. She does need help with feeding in the form of having her food either blended or cut into small pieces and the mother still has to assist her with chewing by putting pressure under the chin. However, she has obviously had enough nutrition to grow reasonably well and there have been no episodes of aspiration pneumonia according to the history. In fact Calandre now at the age of 20 years is in quite good health despite her very severe disabilities. From the article by David Strauss et al on The Life Expectancy of Adults with Cerebral Palsy written in 1998, I think that Calandre most closely fits into the group that are fed by others and, even though she does not roll well, she does sit reasonably well in a wheelchair. She is not actually able to sit on her own. Therefore, her chances of surviving for another sixteen years or more are very good. I think it is very likely that Calandre will live into her early 40's and maybe up to 50. As I have stated before, despite her severe disabilities, her general health and nutrition are quite good. However, because of her severe disabilities, I would be doubtful whether she would have a normal life span for an adult female." 225 In her evidence in chief, Dr Antony corrected a number of statements made in her original and second report and she made some important concessions during cross-examination. The matters in chief included the plaintiff's better ability to roll than had been mentioned by Dr Antony in her report; her effective use of the electric wheelchair around the home and her ability to crawl or move herself along the floor using her limbs. Dr Antony accepted that these things did add some positives to her mobility and to her activity (T 2364 lines 15-20). She said that these matters and the fact that the plaintiff was able to move from a lying position on a couch to a sitting position and sit independently for thirty minutes or so "put a more positive light on it" (T 2364 lines 40-45). In fact, Dr Antony said that she was prepared to add another three or four years to the age of 50, which has been the upper level of her first prediction. 226 In relation to the four clinical negative factors that Dr Antony listed in her report, her cross-examination revealed the following: - 1. As to her total lack of mobility and total dependence, Dr Antony agreed that the expression "total lack" was excessive. She maintained nevertheless that the plaintiff's mobility was "extremely poor" and that was "the worst aspect of her problems" (T 2378 line 55). She was meaning to describe, she said, a lack of mobility to walk and to transfer. 2. In relation to the plaintiff's total dependence on others, Dr Antony agreed that with the provision of proper care, this would be a very positive thing although in her view it did not "totally overcome the negative factor". 3. As to Calandre's epilepsy she agreed that this was highly unlikely to occur and it was not "a big deal" as a negative feature (T 2379 lines 50-55). 4. In relation to the plaintiff's need to be helped with feeding, she agreed that, provided aspiration were not a problem, this was "very good … very positive" T 2380 line 5). 227 In relation to the positive clinical features for Calandre, Dr Antony agreed that the fact that there had been no episodes of pneumonia was a good prognostic sign. The fact that Calandre was well nourished and appeared to be taking adequate food was also positive. The fact that she was receiving good care was likely to be a good sign for an enhancement of her life expectancy, as was her general good health. She also thought that a positive mental state was a good sign, as was apparent drive and determination. She said (T 2380 line 55): - "She certainly is a determined girl, sometimes that could be a bit of a negative direction in that she gets very frustrated. She certainly knows her mind and she is certainly trying to complete the HSC which I think is very admirable." 228 Dr Antony said that she would not expect pressure sores so she did not think that was an issue. The absence of scoliosis was a very positive sign. This was especially so since she had now passed through puberty. 229 Generally, Dr Anthony accepted the statistical description of the plaintiff as "an outlier" (T 2381 line 44), although she explained the unusual combination of severe spasticity and good intelligence was "recognised". 230 Mr Levy SC asked Dr Antony about the methodology she had used in forming an opinion about life expectancy. She referred to the study she had mentioned in her report (Exhibit 103) dealing with life expectancy with adults in cerebral palsy. She said that this was not the only article that she used, she used it in combination with other things. She was asked whether she would agree that the higher estimate she had given in her oral evidence was a very rough guess and whether she would accept that it should not be put forward as a foundation upon which to base an accurate life care plan. She replied "All these are rough guesses" (T 2382 line 49). She said that Calandre had many features in her presentation which put her "on the edge of the group prognosis within a group where there was a worry about longevity" (T 2382-2382). 231 In Dr Antony's second report dated 16 January 2001, she had been asked to comment on statements made by Drs Wise and Buckley that Calandre would have a normal life span. She did not agree with these statements. She was also somewhat critical of Professor Breslin. She accepted that, as a respiratory physician, he was qualified to analyse the plaintiff's respiratory status. She thought however, he would not have any knowledge of the issues related to survival in cerebral palsy. 232 Her attention had also be drawn to Dr Shavelle's correspondence. Dr Antony said that she did not have any sophisticated knowledge of statistics and therefore could not adequately analyse his analysis of survival and cerebral palsy. She accepted that his statement was accurate to the effect there was concurrence that physical handicap and mental handicap "do affect longevity in a significant way". She said (at the foot of page 1 of the report):- "However, statisticians deal with numbers and not actual individual patients and clinicians all recognised that despite statistics and characteristics of a medical condition, that patients do not always follow the rules." 233 Throughout the remainder of the report she referred to Dr Shavelle's correspondence dated 7 December 2000 and said that his estimates which, at the worst, were that the plaintiff could be expected to live 15.5 years and, at the best, 33.3 further years, concurred with her comments that survival to the early forties and possibly fifties would be a reasonable comment. At the end of the report she said she did not wish to change her opinion in regard to Calandre's projected life span. 234 Of course, Dr Antony could not have been aware, at the time she provided her second report dated 16 January 2001, that Dr Shavelle would later revise his estimate upwards from 33.3 years to a possible 42.9 years. Nor could she have known that the original estimates were made as a consequence of a coding area and an inappropriate modelling exercise. As with Dr Bowers, it seems quite startling that Dr Antony, who professed to place some reliance upon scientific and statistical literature and information, was not prepared to revise her estimates of life expectancy when one of the principal authors of the very study upon which she placed reliance later provided a more statistically accurate and correct estimate. 235 From a clinical point of view, Dr Antony expressed a number of positives about the plaintiff's characteristics away from her examination of the plaintiff. She had, during her evidence, the additional opportunity of looking at the videos of the plaintiff carrying out a number of functional movements and manoeuvres. She did not note any abnormal chest musculature nor did she note any problems in the structure of the chest. Calandre had no difficulty in aerating her lungs. Dr Anthony had not tested the plaintiff's cough reflex but she accepted that a respiratory physician would be in a good position to assess whether there was any problem with her cough reflex or swallow. She also accepted that a speech pathologist would be able to assess adequately any problems with the swallow. Dr Antony said that, although Calandre remained in a wheelchair during the consultation, she would not have been surprised were she able to use all four limbs to crawl upon the floor or roll around on a bed or couch. She simply did not, during her brief consultation, have an opportunity to observe these matters. 236 Dr Antony remained concerned however, that the onset of ageing would mean that problems such as any difficulty with the swallowing function would get "a little bit worse" as there was a further decline in motor function with her ageing process (T 2372 lines 5-10). In relation to the absence of any evidence of respiratory problems to date, Dr Antony accepted that this would be a sign warranting an assumption that the absence of such problems would continue in the future unless "the vexed question of ageing changes anything" (T 2392 line 10). It was her further opinion that if the plaintiff were to receive vigilant attendant care in future this would enhance her prospects of survival in that she would be protected from the adverse effects of her cerebral palsy. In fact, Dr Antony said this was "very important" (T 2392 lines 15-20). 237 Notwithstanding the generous concessions Dr Antony made regarding the plaintiff, she remained of the view that, from a clinical point of view, there was a potential for the plaintiff to lose motor function as she aged and that this could have a number of potential effects on, for example, her ability to fight infection. She added at T 2394 lines 26-35: - "We can only say that motor abilities and you know, joint problems and everything are found to be worse as she grows older, I think, and we all degenerate as we grow older and I think if you have a motor disability - there is some anecdotal evidence, and I have talked to people with cerebral palsy and there is preliminary evidence that suggests that people with cerebral may not tolerate the ageing process as well as the average person." 238 She explained that with the plaintiff's degree of physical disability, she did not believe that anything was going to convert her into "having normal circulation, normal muscle tone, normal bones". Exercise, medical attention and therapies would help circulation and would be a positive thing but she remained of the view that the plaintiff would have "more trouble with these type of things" (T 2394 lines 50-55). 239 In fact, as it transpired, Dr Antony did not know of any individuals in the community, who were either in their 60's or 70's, and who were cerebral palsy patients. She said she would be "surprised to learn that there were people in their 60's and 70's who had survived" (T 2395). 240 These last statements by Dr Antony led to something of a sidewind in the case. The plaintiff tendered Exhibit "YYY" which demonstrated, inter alia, that one female resident of an institution run by the Spastic Centre in Sydney, Venee Burges Hostel, had been born on 24 June 1932 and was now 68 years old. This resident was present in court and at one stage, it had been Mr Levy's intention to call her as a witness. The purpose of the tender was, as I understood it, to render it unnecessary to call her, but to make the point that Dr Antony had been wrong in thinking it was unlikely that a cerebral palsy patient could survive into his or her 60's or 70's. In other words, the tender was designed to weaken Dr Antony's clinical views on ageing. Mr Brereton SC endeavoured to turn the tender into a positive advantage for his case. He prepared a table which was handed up in the course of oral submissions. This purported to analyse the data provided by the Spastic Centre (Exhibit "XXX") as to deaths of patients since 1990. This enabled the development of an oral written submission which, in a semi statistical manner, endeavoured to examine the material contained in both Exhibits "XXX" and "YYY" to make various points about the longevity and survival experience of cerebral palsy sufferers within the narrow framework of the relatively small population in the hostel and those in the Spastic Centre data. 241 Notwithstanding senior counsel's ingenuity in constructing this argument, I found it of no real assistance either as a clinical or statistical exercise. As a purely anecdotal series of observations on longevity within the narrow framework of a period of time in the Spastic Centre's history, it was of very little, if any, assistance to me in resolving the issue which arises in relation to the plaintiff's particular circumstances. 242 Essentially, Dr Antony's evidence confirmed a reasonably positive clinical appraisal of the plaintiff. The two main features which remained of concern for Dr Antony were the plaintiff's general lack of mobility and the compounding effect the ageing process might have on her health, particularly in relation to the possibility of a further decline in motor function. 243 As to lack of mobility, it is clear that the video demonstration convinced Dr Antony that Calandre, in some respect, was more mobile than she had thought during the examination. This was not surprising since the consultation was a brief one and Dr Antony had relied on information given to her by Mrs Simpson rather than insisting on a physical demonstration. The videos demonstrated that Calandre could roll over and over; that she could use her left hand for pointing, moving the wheelchair and for other limited functional purposes; and that she was able to sit on her own on a couch. These observations in part, led to Dr Antony's upward revision of another three or four (or perhaps 5) years into her 50's. As I have earlier noted, this new estimate was markedly below Dr Shavelle's revised estimate which did not itself (as it could not) make the generous allowance which Dr Antony's clinical assessment had afforded the plaintiff. 244 That this was so pointed to a fundamental flaw in Dr Antony's estimate. In my view, Dr Antony was led into error for four main reasons. First, I think her reading of Exhibit 120 and Dr Shavelle's December 2000 estimate placed her thinking into an overly conservative position on the statistical position. Secondly, this was compounded by the error or inaccuracies she had made in filling out the PEQ (and perhaps the "confounding" nature of the document itself). Thirdly, there was some confusion in her approach, perhaps contributed to by her reading of Exhibit 117, the study of children with cerebral palsy (T 2397 lines 1-10). Clearly, this study no longer had any application to Calandre as she had survived to adulthood. Fourthly, her overall impression that there were no aged cerebral palsy patients still living in the community clearly played a part in her ultimate appraisal. This impression, although understandable in a paediatric neurologist, was not warranted in fact, nor by any information which Dr Antony had acquired in her professional experience. The final matter which requires mention is that while Dr Antony (T 2395 lines 10-12) purported to take the scientific and statistical studies into account in making her clinical assessment, she clearly had little faith in them. I do not suggest this was necessarily a valid point of view but her scepticism about the value of the statistical method, coupled with her flawed approach, based as it was on an inaccurate view of the appropriate statistical starting point, did not give confidence that she had applied a satisfactory methodology to the assessment she made. Plaintiff's Evidence in Reply 245 This included, first, the further evidence of Professor Breslin. The plaintiff was clearly concerned with the state of the evidence as it had been left by Dr Bowers in particular. As a consequence Professor Breslin addressed the following three topics: - (i) It was his view that there was no evidence that the cough reflex or the swallowing reflex deteriorate with age in normal people until the very geriatric years. The corollary to this proposition was that, although there was no evidence to suggest with any precision that sufferers of cerebral palsy were in any different position than the normal population in relation to deterioration of cough reflex or the swallowing reflex, Professor Breslin thought in Calandre's case there was not likely to be any significant difference between her situation and that of the normal population. This was because, he said, her cough reflex had worked adequately for the last 21 years, and because she had no lower respiratory tract infections outside the general range. Her cough reflex appeared to be perfectly intact and not in any way abnormal. Her past history demonstrated this. So far as her swallowing reflex was concerned, it was, he agreed, critical that she be fed carefully. The need for this care did not involve the conclusion that there was anything "wrong" with her swallowing at the present time but rather that it needed to be taken into account that she did not have "the luxury of feeding herself" (Exhibit "VVV" pages 1-2). In relation to this point, Mr Brereton SC brought Professor Breslin to the concession that there was a considerable body of literature which suggested that there were alterations during the ageing process in normal people so far as the cough reflex was concerned. There was also evidence of changes in the swallow response as part and parcel of the ageing process. While Professor Breslin made these concessions, he made the further point that the literature addressed "change" rather than "deterioration". In his view, the ageing process had not been demonstrated to affect the overall efficiency and safety of the oropharyngeal swallowing of liquids. Importantly, the relevant changes identified in the literature did not appear to impair the efficiency of the capacity to protect the lower airway, at least not until the geriatric stage (T 2707 lines 50-55; T 2707 lines 5-10; T 2710 lines 5-10). From Professor Breslin's perspective the changes identified by the literature in relation to the swallowing mechanism did not cause inefficiency in either getting food to where it was supposed to go in the lower gastroesterinal intestinal tract, nor did it suggest that there was any resultant inefficiency in the capacity to protect the lower airway. Professor Breslin was reminded of Dr Balandin's evidence at T 798 line 48 where there had been a reference to reports from people with cerebral palsy and speech pathologists indicating that there appeared to have been changes with swallowing as part of the ageing process. Dr Balandin had said that, as yet, there was no knowledge of what the changes were and how they should best be managed. Professor Breslin maintained however, that the real question was not whether there were changes in the swallowing ability but whether those changes in fact led to aspiration. He said that was "the critical point" (T 2715 lines 50-55). He accepted that if there were not care with feeding, there would be a greater than normal risk of aspiration in Calandre's case. Senior counsel, in this context, addressed a further point, namely whether Calandre's athetoid cerebral palsy was likely to have had an effect on the skeletal muscles and in particular the intercostal muscles. The proposition he advanced to Professor Breslin was that the intercostal muscles, as a consequence of the disability, were unlikely to be working normally. Professor Breslin said that he saw nothing to suggest to him that the intercostal muscles were working abnormally. He explained that this meant that they appeared to be moving the lungs normally. In fact in his report he had said there was no significant abnormality of Calandre's chest wall or respiratory muscles. Dr Antony had in fact, said the same (T 2376 lines 42-55). Professor Breslin disagreed with the statement by Dr Bowers that Calandre was unable to aerate her lungs in a normal fashion. This, he said, was not supported by the evidence and in fact her lungs were aerating quite normally. Her breath sounds were of normal intensity and there was no evidence that her lungs were functioning in any other way than normally (Exhibit "VVV" page 2). Mr Brereton SC suggested to Professor Breslin that given Calandre's athetoid cerebral palsy and its apparent effect throughout her body, it would be "very unlikely that her intercostal muscles were not affected". Professor Breslin said he was unable to answer this question but as she was moving a normal amount of air; as she had not complained of cramps in the intercostal muscles, and as her cough was effective and had been so for 21 years, he thought the intercostal muscles were "working well" (T 2718 lines 20-25). As to whether the condition put her at a greater risk of chest infection than someone with perfectly functioning intercostal muscles, Professor Breslin said it had not done so in the past. That was, in his view, "the critical bit". (ii) In his report Professor Breslin disagreed vehemently with Dr Bowers that there was any validity in the proposition that the more antibiotics that were given to Calandre, the more likely she would be to develop "a resistant pneumonia". He said that the lungs were remarkably efficient with the consequence that when pneumonia was treated in somebody who did not have an underlying lung disease, the organism was eliminated, pneumonia was cured and there was no increased risk in that individual of any subsequent pneumonia. He explained that the medical movement against the widespread use of antibiotics in the community really focused on a different matter altogether namely that the use of antibiotics tended to breed resistant organisms "in the wild" - for example, in institutions such as hospitals. He was very positive in his assertion that the treatment of pneumonia in an individual would, in otherwise normal lungs, not increase the risk of subsequent attacks of pneumonia, Further, the early diagnosis and prompt treatment of pneumonia in individuals prevented further lung damage. Calandre would be under constant supervision and given regular medical check ups. For this reason, he thought there was no real risk in her case, of delayed or late detection and treatment of pneumonia, leading perhaps to bronchiectasis. (iii) Finally, Professor Breslin dealt with the potential for overwhelming pneumonia. This happens where the pneumonia episode occurs as a result of highly virulent and/or resistant organisms. He thought that the continued development of better antibiotics would be a relevant factor in this regard. In his view, a particularly important point was that Calandre had not had pneumonia to date, an important prognostic feature for the future. Her lungs were normal at the present time and these matters did not warrant any increase in her risk of pneumonia at present. Professor Breslin reminded the Court that he had in fact qualified the normalcy of the plaintiff's life expectation in his original report. This had been based on his agreement with Dr Buckley's suggestion of a two per cent increased risk of overwhelming pneumonia in Calandre, directly related to her cerebral palsy. He also accepted the possibility that the ageing processes in normal people might happen to those in the cerebral palsy population at an earlier point of time. But he did not think that the data supported that beyond "a possibility" (T 2723 lines 40-50; T 2726 lines 50-55). At the conclusion of his further evidence, Professor Breslin maintained that any swallowing difficulties the plaintiff might have at present related to her cerebral palsy, and any potential for changes in her swallowing ability, were not "a recipe for aspiration pneumonia". He said the principal matter was "reliance on the feeder". Skill in the carer's ability to feed, was the more critical feature. Of course, he had already stated on a number of occasions that the existence of an effective cough mechanism was also important T 2732 lines 35-55). Professor Yeo 246 The second body of reply evidence came from Professor Yeo. The assented need for his evidence arose from a series of paragraphs in Dr Shavelle's report of 26 March 2001 (Exhibit 104). In this report Dr Shavelle had said: - "3. For an upper limit to Miss Simpson's life expectancy we may compare her with a spinal cord injured complete paraplegic. Such persons, like Miss Simpson, are unable to walk and are wheelchair bound. Their life expectancy must be higher than hers, however, because: (a) Their loss of function was due to an acquired rather than congenital injury; thus, at the time of injury they were in better health than a patient with a congenital condition such as cerebral palsy. (b) They retain full upper body function, including fine motor skill. (c) They have unimpaired communication and intelligence." 247 Dr Shavelle, in the following paragraph, computed the life expectancy of a complete (Grade A) paraplegic of Miss Simpson's age in the range of 43 to 47 additional years. He did so based on, inter alia, the studies of Professor Yeo. Dr Shavelle concluded that "it could not reasonably be argued that the plaintiff's life expectancy exceeded these figures". 248 The cross-examination of Dr Shavelle in this area demonstrated quite clearly that, as a statistician, Dr Shavelle really had no medical qualifications which enabled him to raise a medical comparison between the plaintiff and a spinal cord injured complete paraplegic. Professor Yeo's evidence was given in reply to address the Shavelle argument and comparisons. Professor Yeo's report was Exhibit "WWW". He said that it was important, in attempting to assess the life expectancy of a person suffering from cerebral palsy, to differentiate those patients who had sensation, and also who had bowel and bladder control, from patients who were suffering from tetrapraresis as a result of traumatic spinal cord injury. The latter group had profound sensory loss as well as paralysis, and loss of normal bowel and bladder control. These factors resulted in serious risks which might lead to morbidity and in some cases an increased risk of mortality. There was a likelihood, he said, of less risk from these complications in the case of a cerebral palsy sufferer. 249 Professor Yeo was called and cross-examined in relation to the opinions he expressed. He also provided a further report of 20 April 2001 (part of Exhibit "WWW") in which he stated that had seen the plaintiff in consultation on 19 April 2001, and had taken a history from her. He expressed a view that her life expectancy was between "92% and 96% of the years that would normally remain". This estimate was based on her history, her present levels and degree of disability and with reference to the publication "Mortality Following Spinal Cord Injury" of which he was the principal author. He explained at some length why he had formed the view that he did in relation to life expectancy and he was extensively cross-examined on the opinions he expressed. Mr Brereton SC argued that his report was flawed in a number of respects. He had, for example, changed from using years in his report to percentages and then applied those percentages to current life tables, producing an overly optimistic result. The report was also flawed, it was argued, by a failure to apply the Frankel scale accurately, and by the failure to have accurate regard to the literature available in respect of life expectancy in cerebral palsy situations. Mr Brereton SC was critical of the very notion that an assessment of life expectancy should be carried out in relation to a cerebral palsy patient based on scientific literature arising out of studies involving spinal cord injured patients. 250 In relation to a broad assessment of potential clinical matters affecting risk, Professor Yeo agreed that the inability to feed oneself, the difficulties with swallowing and a tendency to choking were matters which did not affect the typical complete spinal cord injured paraplegic. So, while it was true there were a number of risks affecting the paraplegic, there were risks of a different kind facing the cerebral palsy sufferer. Professor Yeo agreed that Calandre was, in fact, more at risk than a paraplegic. To that extent, his opinion supported the general comparison Dr Shavelle had made in his report albeit Dr Shavelle had not been qualified to do so from a clinical point of view. Professor Yeo's concession, however, was made in a very general sense, rather than by way of a specific clinical assessment of two individual patients each suffering with particular disabilities as a result of separate injury and disease respectively. Moreover, Dr Shavelle's conclusion had been highly argumentative rather than scientific and did not take into account an individual clinical assessment of the plaintiff. 251 One further matter of significance was the statement made by Professor Yeo at T 2790 lines 35-55 that the plaintiff did not have "a present increased risk of respiratory tract infection". He agreed it did not mean that in the future a person with her disabilities would not be more at risk than others with such infection. In fact, Professor Yeo said other specialists had recognised the same situation in relation to the plaintiff. He also agreed that she had dysfunctional skeletal muscle due to cerebral palsy, including her intercostal muscles. He agreed that this implied, to some extent, a reduced lung function (T 2790 lines 35-55). 252 I did not understand Professor Yeo to make these statements as a consequence of any specific observations made during his clinical assessment of the plaintiff. Rather, he appeared to be expressing a general view of the likelihood of there being dysfunction in the intercostal muscles carrying with it an implication that there would be the possibility, to some extent, of a reduced lung function. He had earlier however, said that he would defer to a respiratory physician in relation to respiratory issues (T 2745 lines 30-35). Professor Breslin had said following his specific examination of the plaintiff that he had not detected any chest abnormality and the lung function appeared to be normal. As the question of lung function was part of Professor Breslin's specific discipline and his assessment was focused on this very matter I am inclined to place more weight on his statements in this area than those of Professor Yeo. That said, it is undoubtedly the fact that there would be likely to be some degree of dysfunctionality in the plaintiff's intercostal muscles as a consequence of her athetoid cerebral palsy. The real question was whether this factor had, or would be likely to have, an impact on the plaintiff's lung capacity and function. 253 I have taken into account Professor Yeo's expressions of opinion in relation to life expectancy and also the submissions made by Mr Brereton SC suggesting that the results were overly optimistic. In particular, I have noted that Professor Yeo's clinical assessment of the plaintiff was very positive and in line with other medical experts called on the plaintiff's behalf. These clinical views from a practitioner with the wide experience and repute of Professor Yeo are entitled to considerable weight. 254 With no disrespect to Professor Yeo, I have come to the conclusion that his opinion in relation to life expectancy, while generally helpful, is something of a distraction, since it is based essentially on estimates arising from studies dealing with persons with a significantly different injury or condition. For this reason, I propose to put to one side his opinions and it will not be necessary for me to express a final view in relation to whether his view on the plaintiff's life expectancy is correct or needs to be modified. In the end, it is my view that a generalised comparison between the life expectancy of a spinal cord injured patient and that of a cerebral palsy sufferer is, apart from its use as a tool of forensic emphasis, of no real value. As I have said, I found that that Professor Yeo's clinical assessment of the plaintiff was quite helpful and corroborative of views expressed by other experts called on behalf of the plaintiff. Assessment of the probable span of the Plaintiff's remaining years 255 It is clear the plaintiff does not fit well into the group estimate represented by Dr Shavelle's customised life table. This is so both clinically and, to a degree, statistically. I accept that, in a generalised sense, Calandre does have a degree of functional use of the left hand and left arm. Whatever be the CDER definitions, she has in ordinary parlance, an ability to "use raking motion or grasp with hand". The general mobility of her frame, her head and neck and upper limbs, place her in an unusual position compared to sufferers from other types of cerebral palsy. Most importantly, her preserved intellectual function takes her further away from the group. There is also the fact that she is able to assume and maintain a sitting position for a considerable period of time. Whether she does it consistently or not, she has the ability to do so at will. It is not easy for her but she can do it. She can roll on the ground vigorously and on her bed. She can virtually crawl albeit slowly and with difficulty. All these functional characteristics are well demonstrated on the various videos in evidence. 256 The statistical problem with the Shavelle model is that, in my view, its precision is compromised, as both Professor Berry and Dr Staines demonstrated by the fact that Calandre is not well represented, perhaps not at all represented, in the Californian database. This does not of course mean she is to be treated as normal. Nor does it mean the estimate is to be disregarded or ignored. Her unfortunate condition must posit the recognition that she has a life expectancy that is less than the norm as expressed in the Australian life tables. Indeed, the adult study (Exhibit 118) suggested that life expectancy for the highest functioning group with full motor and feeding abilities was, on average, five years less than the general population. This is, of course, itself a statistical generalisation which needs to be approached with caution in relation to its application to an individual. As a generalisation however, it can hardly be ignored. 257 As I shall shortly turn to estimate the plaintiff's remaining years, it will be necessary to consider whether an allowance should be made, which gives due recognition to this inherent lack of precision. Such allowance were it be made, would need to take into account in some manner, the various matters of caution which I consider flow from my acceptance of Dr Staines' strictures and Professor Berry's analysis. 258 Mr Brereton SC's response to the plaintiff's repeated argument, that Dr Shavelle's analysis was weakened by the fact that there were very few, if any people, in the Californian database who corresponded with Calandre, was twofold. First, he argued that Dr Shavelle had used well established statistical analysis and modelling techniques to produce a table which incorporated the best guide available as to the mortality ratios which confronted someone like the plaintiff. This is, to some extent, a circular argument because the customised life table presented by Dr Shavelle is founded on the database in which the plaintiff was not well represented. It is true the Californian database does contain over 10,000 people with cerebral palsy, who are female and aged 21. On the other hand, it is quite possible there is no one in the Californian database who is like the plaintiff. Dr Shavelle really made this concession himself (T 1334 line 49 - T 1335 line 10) although he later qualified it (T 1335 lines 15-20). 259 The second response was to this effect: whatever force there might be in the criticism of Dr Shavelle's approach, at least his approach was to be preferred to that of Drs Buckley, Wise and Professor Breslin. In this regard, it was said that none of those practitioners had any great experience in dealing with adults patients with cerebral palsy. Mr Brereton argued that there was more force in the criticism which could be made of those doctors, deriving from the fact that they could point to no experience with anyone like the plaintiff and they had very limited experience with cerebral palsy patients generally. This was said in the context of a comparison with a database which had over 10,000 people in it who were female, over 21 and had some form of cerebral palsy. 260 This second argument may be best addressed by the recognition that the statistical function is very different from the clinical assessment of an individual. In my opinion, the criticism of Dr Shavelle's method is plainly correct at least so far as it relates to an individual like Calandre. An endeavour to construct a "customised life" expectancy table is nonetheless an attempt to present a group picture. If the plaintiff is not well represented in that group, or, as is likely, not represented at all, the resulting life table must, as a matter of logic, lack precision. Its statistical value is reduced as its precise reliability may be affected. I accept that Dr Staines' views in this regard are patently correct. There is a need to make a clinical assessment which identifies the position of the particular individual. 261 The qualification which Dr Shavelle lacks is a medical qualification. This is the matter which prevents him from proceeding to the next important step, namely the clinical assessment of the individual. Medical practitioners of high quality and repute such as Drs Buckley, Wise and Professor Breslin are not well equipped, without express training and study, to express generalised statistical conclusions about their patients. They are able to answer the very different question which Dr Staines identified and which is a necessary question to be answered to enable a court to fulfil its function of assessing the plaintiff's damages. It is of course not the only question but it is a important and valid question, provided it is posed against the background of the relevant scientific studies. All of the medical practitioners called in this case, both for the plaintiff and the defendant, were suitably qualified to express opinions to address the question - Is there any specific reason to suppose that the plaintiff will die early, and if so, how early? This was not a statistical question at all. In my opinion, the fact that the various medical doctors were not able to extrapolate significant numbers of cerebral palsy sufferers from among the body of their patients who had died or survived was no valid criticism to the strength of those clinical opinions. I accept, however, that, especially the doctors called on behalf of the plaintiff, did demonstrate a lack of knowledge of the scientific literature, both European and American, which had addressed the issue of life expectancy in cerebral palsy patients. Additionally, for reasons which I have pointed to, I do not think that Dr Bowers, who purported to pay adherence to the scientific studies, allowed those studies to guide him, in so far as they could, to his reasoned conclusion. Dr Antony, again as I have explained, clearly paid some attention to the scientific literature but approached it in a flawed manner when making her clinical assessment. 262 Whatever criticism may be levelled at the medical doctors in this case in relation to their failure to deal adequately with the scientific material, the fact remains that this criticism does not rescue Dr Shavelle from the charge which I think have been demonstrated against him. These were, first, that, in terms of precision, his life table has an inherent degree of unreliability. Secondly, his lack of medical qualification prevented him from assessing the plaintiff in other than statistical terms. Thirdly, to apply the statistical method to an individual such as the plaintiff was, as Dr Staines said "fraught with difficulty". 263 While I have accepted the criticism levelled at Drs Buckley, Wise and Professor Breslin, I do not think this acceptance precludes me from placing value on their clinical findings even though I am satisfied their ultimate conclusions on life expectancy were inherently flawed. 264 Where their collective reasoning led them into error was the assumption that, if their present clinical assessment of the plaintiff showed little or no prospect that the plaintiff might die early, they might confidently come to the conclusion that she would probably live out a life span equal to that of 21 year old females not suffering from cerebral palsy. 265 Mr Brereton SC is quite right in making the point he did so emphatically in his written submissions that persons who suffer from cerebral palsy have, as a group, a reduced life expectancy when compared to the general population. Mr Brereton SC correctly identified the flaw in the medical approach which focussed on whether there was any reason to adjust life expectancy downwards from an assumed starting point of normal. 266 In my view, however, Mr Brereton must accept on his client's behalf, that Dr Shavelle's approach to the plaintiff in this case is equally flawed for the reasons I have identified. It is my view that an assessment of the detailed conclusions of the medical doctors, both those called for the plaintiff and the defendant, will enable me to make the necessary findings as to probable span of the plaintiff's remaining years. I should make it clear that a consideration of those clinical evaluations has persuaded me that a reasonably significant allowance, well beyond that argued for by the defendant, should be allowed in the plaintiff's favour. Clinical Assessment of the Plaintiff 267 In my view, the relevant conclusions regarding the plaintiff are as follows: - 1. Calandre was in good health generally. Now at the age of twenty-two years, she is generally free from illness. 2. Although Calandre had suffered epileptic seizures in her early years there had been none since 1984. It seemed to be generally accepted that there would be very little chance of a recurrence of epilepsy. Such recurrence was "highly unlikely". Dr Bowers thought there was a five per cent residual chance but, in my view, the prospect is quite unlikely, according to the preponderance of medical evidence. 3. The plaintiff's renal function tests were normal. She was at no particular risk in relation to future urinary tract infections, although an effective health care regime would need to be in place to monitor this aspect of her health. The two most important features were that she had normal sensation and could therefore feel the effects of any urinary tract infection. Tests which had been carried out showed that retention of urine in the bladder was minimal. Antibiotic treatment was available for any future infection. There was no medical indication that this was likely to be a problem in the future. 4. Although Dr Bowers had initially expressed some concern about the possibility of pressure sores and their consequences, it seemed to be ultimately accepted by all doctors that as the plaintiff had normal sensation and the ability to shift her weight in her wheelchair, this was an unlikely problem area. I might add not only could she shift her weight, she could, in fact, stand in her wheelchair, as the video (Exhibit "PPP") showed. 5. To the extent to which it was relevant (and I shall deal with the relevance of this matter separately), Calandre had normal intelligence, a great deal of drive and determination, and an awareness of the matters that might pose a threat to her health and longevity. 6. Calandre's principal areas of risk were the possibility that she might choke while being fed, and the potential for respiratory problems due to aspiration, especially aspiration pneumonia. There was a third possibility namely the possibility of early death by overwhelming pneumonia. 268 The first two of these problems (and to a limited extent the third) arose from the fact that Calandre had some difficulties in relation to her swallowing mechanism. Aligned to these difficulties was the possibility that, as she continues to age, any difficulties she might at present have with swallowing and coughing may become worse for her. Further, as the years pass, the strength and functionality of her skeletal muscle system may deteriorate and this may have an impact on her in relation to the possibility of chest infection. This was so particularly in relation to her intercostal muscles, the strength of her diaphragm, and her lung function. 269 In general terms, I have accepted the evidence of Professor Breslin in relation to these matters, albeit with some reservation. In this area, I prefer his evidence to the evidence of Dr Bowers where there is a conflict of opinion between them. This area is a particular speciality of Professor Breslin even though it must be conceded that Dr Bowers has among his patients a number of cerebral palsy sufferers. I accept Professor Breslin's clinical assessment that, at present, the plaintiff is able to aerate her lungs fully and that her respiratory function is not at present reduced. This appears to have been the view of Dr Antony as well. I mentioned earlier in these reasons, that Professor Yeo had stated that the plaintiff's intercostal muscles would, at this point, be affected by her cerebral palsy. He made no clinical assessment of the degree of affectation and I understood him to be saying that he would accept that this would be a general consequence of the cerebral palsy. There is no evidence, however, to suggest that any present effect of cerebral palsy on Calandre's intercostal muscles has occasioned any problem in relation to her lung function. In particular, she has never suffered from pneumonia and Dr Bowers himself conceded that this was a positive factor and made a reasonably generous allowance in terms of life expectancy related to this very point. 270 My view is that, looking at the plaintiff's present respiratory situation, it is an appropriate conclusion, based on the whole of the medical evidence that, despite her swallowing difficulties, she has been able to cope adequately with the consumption of food, external liquids and her own saliva without aspiration. She has not had any bouts of pneumonia. These matters are very positive as to her present state of health and they augur well for her future. 271 The undoubted reality, however, is that the plaintiff is a sufferer from cerebral palsy and, leaving aside the debate as to the percentages involved, there is no doubt that respiratory infection is a real danger for cerebral palsy patients. Present medical studies do not appear to demonstrate in any conclusive fashion whether cerebral palsy sufferers find that their motor skills deteriorate more rapidly or more aggressively than ageing people in the general population. There is nothing in the evidence of Dr Balandin, Dr Bowers or Professor Breslin which leads me to any positive contrary opinion. I accept that there are studies which show that people in the normal population, particularly in the geriatric years, suffer deterioration in relation to swallowing. The best the literature shows for the general population, prior to these geriatric years, is that ageing mechanisms do change but that these changes do not necessarily result in effective deterioration. In particular, the changes do not affect the capacity of effective cough and swallow mechanisms to be protective of the patient's airways. Such changes, in the normal community, are not predictive of infection or aspiration pneumonia. 272 Calandre has, at present, an effective cough mechanism and, although she has difficulties with the swallowing process, she can swallow carefully prepared and administered food and liquids without danger of aspiration. She can respond, by cough, in protection of her airways and she has the ability to communicate with carers, if food is not properly prepared or administered. She is obviously very conscious of this particularly as a result of the one incident some years ago where a real danger of choking threatened her well being. 273 The conclusion I draw from this extended discussion of the particular matters which pose a potential threat for Calandre's longevity may be briefly stated. First, an assessment of her cough and swallow mechanisms, her history of the absence of bouts of pneumonia and the likelihood of future care at a reasonable level persuade me that there is no immediate risk of any danger to Calandre's longevity. Secondly, this must be tempered by the fact that Calandre is a sufferer from cerebral palsy and, as the statistical studies show, this is likely, in general terms, to have a marked effect on her life expectancy. Thirdly, while all of the prognostic signs are generally favourable to her as an individual, there is and must be a question mark over the manner in which the ageing process may affect her chest muscles, lung function, swallowing mechanism and cough reflex. Fourthly, while these matters clearly have the potential to represent a danger for Calandre, it seems to me that they are already well taken into account by the fact that the starting point for this assessment has been made based on Dr Shavelle's life table and against the background of the general scientific and statistical information which addresses reduction in life expectancy for cerebral palsy patients generally. Fifthly, the prospect of an adequate care regime, regular medical attention, and modern day improvements in antibiotic treatment enhance her individual position. 274 My overall conclusion in relation to the plaintiff's clinical position is that she is much better placed than many, if not most, in the group which is represented in Dr Shavelle's customised life table. For reasons which I shall shortly develop, this particular characteristic of the plaintiff's individual position is further enhanced by other factors which, in my view, require a further allowance to be made in her favour when assessing the probable span of her remaining years. 275 There is one further matter with which I need to deal, however, before I pass to a consideration of these other positive features which operate in the plaintiff's favour. This matter arose out of the defendant's argument that it was wrong for the clinicians to focus, to the extent they did, on the presence or absence of respiratory complications. Mr Brereton SC argued that there were many risk factors associated with the disabilities flowing from cerebral palsy as, for example, Exhibit 120 demonstrated. Senior counsel argued that it was an error to focus on a few only of these risks because, to do so, underestimated the mortality ratios for persons in the group to which the plaintiff belonged. It was an error essentially because this focus disregarded other significant risk factors. 276 In my opinion, there is no substance in this argument, when one has proper regard to the clinical conclusions arising from the extended consideration of the plaintiff's condition. I do not consider that the plaintiff has been shown to be at any special or increased risk from the broad range of other causes mentioned in the American study (Exhibit 120). Dr Bowers said he had no confidence in the study, his principal concern being the unreliability of data obtained from death certificates. I prefer to find, however, as a positive matter, that the overall clinical assessment of the plaintiff does not show any predisposition to early mortality for any of the causes mentioned in the study other than, as I have found, the possibility of respiratory infections or possible problems associated with the effect of ageing on the cough and/or swallow mechanisms. In relation to cardiac problems, for example, it is clear that the plaintiff has excellent blood pressure, no genetic predisposition, and no family history of cardiac disease. As well, she is on a satisfactory diet, does not smoke and consumes very little alcohol. In relation to other illnesses such as cancers, there appears to be no genetic predisposition or other indication. It is clear that she will have regular check-ups and the availability of medical avenues to enable early detection and treatment. 277 I do not propose to analyse every possible cause of death mentioned in the study (Exhibit 120) but, as I have stated, I am satisfied by the clinical evidence that there is nothing to suggest that there is any specific factor in her case which raises any of these matters for her as a real threat for the future. It may well be that, as Exhibit 120 shows, for most people in the cerebral palsy population, these matters may pose a risk of increased mortality rates. In my view, the plaintiff has been shown to stand apart from the group in this regard. This is not to say that she may not, at some future time, be struck down by an unexpected disease or tumour but she has not been shown, as an individual, to be at greater risk in this regard than the general community. No medical doctor called by the defendant identified any such risk in her individual circumstances. Other Positive Features 278 Dr Bowers was prepared to allow an increase of five per cent over the calculation he had first made based on the tables in Exhibit 118. This brought him to his opinion that Calandre had 66% of the normal years remaining compared to the average female of her age' (T 1494 line 45 to T 1495 line 15). This allowance derived from the life prolonging feature that he accepted namely that the plaintiff had never contacted pneumonia. He thought that this was "a positive prognostic feature" (T 1493 line 55). 279 Although Dr Bowers agreed that there were a number of physical, environmental and emotional factors that were relevant as factors which would tend to promote longevity, (T 1496 line 10 to T 1498 line 15) he did not make any allowance for those factors when he came to estimate Calandre's life expectancy (T 1498 lines 15-20). 280 Some of the matters which Dr Bowers had agreed were likely to have enhanced life expectancy were the presence rather than the absence of care; good and controlled nutrition; regular and appropriate therapies, including exercise to lessen the impact of ageing; provision of regular and comprehensive medical checks to enable detection, diagnosis and treatment of life threatening conditions, avoidance of risk-taking behaviour; adequate social inter-reaction with friends and family; appropriate treatment and counselling for any episodes of depression or unhappiness, and positive self esteem. Dr Bowers, in the course of his re-examination, (T 1515 line 54 to T 1516 line 20) explained that consideration of those factors would be "unscientific in terms of the medical literature available". All of these matters, he said, were not required to be taken into account in the scientific literature. 281 Of even greater significance was the debate which centred on Dr Bowers' assertion that the plaintiff's general good health had no particular bearing, one way or the other, on the life expectancy issue. Into the same category fell his assertion that her intellectual function had no bearing on the issue, nor her positive outlook on life; nor her drive and determination (T 1494 lines 5-20). During his re-examination, he said that Calandre's general health did not have a bearing on her life expectancy. He said that this was because the scientific literature lists certain factors which may be taken into account and her general good health "does not come into play" ie, it is not a relative factor to be considered. Nextly, he said there was no association between intelligence and life expectancy. He modified this to say "there was no cause and effect" between intelligence and life expectancy. Finally, he said that it had never been shown one way or the other whether "drive and determination" affects life expectancy (T 1510 lines 5-30). It is clear that Dr Bowers was in conflict with the views of Dr Wise. It will be recalled that in his evidence, Dr Wise had asserted that, in his clinical experience with children, both intellectual capacity and questions of drive and determination were important. Additionally, all the doctors called on the plaintiff's behalf were impressed by her good health and thought it was a clinical feature which should be taken into account in relation to the assessment of her remaining years. The question of intellect had been referred to by Dr Staines. He had suggested the need for caution in applying the American studies because of the fact that the Western Australian study suggested the possibility that intellectual impairment may be a more significant risk factor in Australia than it had been in other countries. 282 Dr Shavelle also contributed to the debate. He stated that statisticians and actuaries sometimes pay regard to factors which tend to enhance or prolong expectation of life in the disabled. He agreed that some of these factors fit into categories including physical, environmental and emotional. He agreed that good care and good nutrition would have a positive effect; the provision of appropriate therapies for exercise and maintaining flexibility would have a positive effect. So too, regular and comprehensive medical checks and treatment would have a positive effect. The absence of risk taking behaviour would be as well positive. In short, he agreed that most of the factors which had been agreed to by Dr Bowers would have a positive effect. He insisted, nevertheless that these things "would not amount to much" (T 1410 line 50 to T 1412 line 45). 283 He was asked how a statistician would go about putting "a positive value" on the factors which he had agreed were capable of potentially impacting upon life expectancy. He explained that he would consult the literature and see if those factors were related to important factors which were generally considered relevant. He said, however, an actuary working in a life insurance company would not use those matters in any way in calculations (T 1412 lines 30-45). 284 To my mind, Dr Shavelle's response to these matters demonstrates a narrow focus and a circularity of reasoning. The statistician is not well placed to assess these positive factors other than by examining the statistics. They may tell him that such matters are not generally significant. But they may be significant in the case of a particular individual. 285 In my opinion, it is necessary, in making the necessary individual assessment of the plaintiff, to make a reasonably significant allowance for a number of these factors. The factors requiring most attention are these: - 1. Calandre's unimpaired intellect and her level of intellectual capacity 2. Calandre's general good health (although this has already been taken into account to a large extent by the findings I have earlier made in relation to the clinical medical assessment generally). 3. Calandre's drive and determination. These characteristics, like her level of intellect, tend to place the plaintiff as an "outlier" in statistical terms. They are also, in my view, powerful factors in relation to an individual clinical assessment of her characteristics for the purposes of determining her remaining years. 4. The likelihood that Calandre will, as a consequence of a verdict in these proceedings, receive good care, appropriate medication, regular medical checks and therapies. 5. Generally, the presence of the wide range of environmental and emotional factors listed by the plaintiff's legal representatives although, in my opinion, a number of these matters are, in effect, already taken into account in relation to the characteristics already listed. Care is needed not to "multiply" or reproduce the same concepts under different labels, as Dr Shavelle rightly pointed out. 286 Let me explain why I have taken the view I have in relation to these important prognostic factors. First, it seems to me to defy common sense to suggest that these matters would not, in the present case, have an obviously beneficial and positive effect on Calandre's prospects of survival. Take the question of her intellectual capacity as an example: Here is a young lady whose intellectual capacity and understanding enables her to comprehend easily the risks that face her for the remainder of her life. In fact, she is very well aware of those risks. She is likely to continue to be acutely conscious of any form of illness, especially illness associated with anything in the nature of respiratory or urinary tract infections. She is likely to be equally conscious of pain in any one of its manifestations and the need to have this checked and attended to promptly. If she develops discomfort in her back or lower limbs, she has the capacity to sense this, and move her body to relieve pain or soreness associated with pressure. She has the further ability to communicate the presence of pain, discomfort or other symptoms to her carers, doctors or family. She has the intellectual capacity to know the importance of reporting pain, soreness and other symptoms to her wide range of attendant carers. A substantial award of damages will provide her with the economic ability to have regular medical check ups and tests throughout the whole of her life. In the light of all these matters it is, in my view, an affront to common sense to suggest that her intellectual abilities are not highly relevant to her prospects of longevity. 287 Whatever general conclusion the statistical studies may have revealed to Dr Shavelle as to the comparative importance of intellectual impairment as a factor in relation to life expectancy, the plaintiff's level of intellectual capacity in the circumstances of this case cannot, in my view, be ignored. Nor can Calandre be compared, despite her level of physical disability, with the unfortunate sufferers who have no awareness, or only limited awareness of their bodily problems. Nor can she be compared with those who have no intellectual capacity to initiate treatment for their health problems or symptoms. 288 Secondly, Dr Bowers' decision to give the plaintiff an allowance for a good prognosis based on her history of past absence of pneumonia is readily understandable, yet his rejection of the other matters is not. It seems to me to be a mainly circular argument to suggest that because Exhibit 118 concluded that severity of mental retardation (other than profound retardation) did not contribute substantially to the prediction of mortality, it followed that an individual clinical assessment of Calandre could not make an allowance, in the unusual circumstances of her case, for her spared normal intellect. It does not follow that, because the generalised study concluded that cognitive communication skills did not contribute substantially to the prediction of mortality when compared to functional factors, Calandre's very significant abilities to understand and communicate should not earn for themself a reasonable allowance. Dr Buckley thought this was a very important factor and I consider that he was correct in his assessment. The very fact that Dr Bowers was prepared to make the allowance he did, negated the logic of his argument that allowances for other matters unrecognised in the study could not be made. 289 Thirdly, I consider that Mr Brereton's general argument on this point was guilty of the same degree of circularity as infected Dr Bowers' approach. Mr Brereton SC argued that while many "so called" positive prognostic factors were referred to on the plaintiff's behalf (such as drive, determination etc), they were not really positive: they are the norm, he said, for most people and to that extent, are already incorporated in the statistical analysis. Mr Brereton submitted that the plaintiff's clinicians did not identify any special factors peculiar to her, other than "intangible" notions of drive and determination, which would lift her life expectancy above that of similar persons in her condition, except that she had not had various respiratory problems so far. 290 But can these so called "intangible" notions be put to one side? And why for that matter, are they "intangible"? The argument that simply points to the conclusion in Exhibit 118 is essentially a circular argument because, although it is appropriate to take the statistical material as a starting point, it is nevertheless necessary to assess the plaintiff to see where she fits into the group. If her intellectual capacity, her cognitive abilities and her drive are so marked as to make her a unique individual among the group, as I think she is, it is not to the point to repeat the generalised conclusions in the American study in relation to intellectual impairment and cognitive ability. Moreover, an intelligent person's high level of drive and determination, even a person afflicted with the serious disabilities Calandre has, may well be a very significant characteristic, in a practical sense, in relation to the prospects of her living a longer life than she otherwise would as a disabled person. These characteristics would not transform her into a completely normal person, but they should be allowed for and quantified realistically, as part and parcel of the necessary individual assessment. In that sense, they have a very tangible quality and a tangible value. 291 Finally, it must be said that the provision of a customised life table is not a real alternative to the task of individual assessment which must be performed. It is quite possible for an individual patient, like Calandre, to be "buried" in the customised life table. That has been the "catch-cry" in the plaintiff's case throughout. It was supported by Dr Antony. To attempt, as I think Mr Brereton has done, to confine the plaintiff within purely statistical parameters is to strait-jacket the methodology itself. 292 For these reasons, I reject Dr Bowers' and Dr Shavelle's assertion that no allowance should be made for the factors which I have listed as being of reasonably significant importance. To that extent, I accept the plaintiff's submissions that the evidence suggesting that the plaintiff has limited survival prospects is based, in part, on an incomplete analysis which is in turn based on a view of the statistics which, at least in the case of this individual plaintiff, is not warranted. A more balanced and overall view of the plaintiff is to be obtained from the evidence of Dr Staines and the medical doctors called on behalf of the plaintiff. This view is, in fact, corroborated by the evidence of Dr Antony, even though her estimates were, as I have said, flawed. In the case of Dr Antony, as I have said, she was prepared to agree that unusual patients such as the plaintiff run a risk of getting buried in the statistics if one applies a purely statistical analysis to survival (T 2397). It is that view which I prefer and accept. The Probable Span of the Plaintiff's remaining years - the Assessment 293 There are two matters which have to be evaluated. The first is whether any change should be made to the starting point of 42.9 years. The second is to make an actual assessment, arising out of the clinical conclusions, of the probable span of the plaintiff's remaining years. 294 As to the first matter, it is necessary to say something further. 295 Dr Shavelle had first estimated the plaintiff's life expectancy to be 34 additional years. This was the estimate provided on 26 February 2001 and it had been made on the basis that the plaintiff was at that date 21 years and eight months of age. On 26 March 2001, Dr Shavelle reported that the life expectancy in his earlier report was incorrect. He revised his analysis and produced an estimate of 40 additional years or 42.9 years assuming the plaintiff "uses raking notional grasps with hand". I assume that these estimates were made on the basis that the plaintiff was twenty years and nine months of age at the date of the revised estimates. 296 Professor Berry made an ultimate assessment, accepting that the plaintiff had use of her hand and was able to assume and maintain a sitting position, that the plaintiff's life expectancy was a further 45.8 years (T 1267 lines 18-25; T 1275 lines 25-55; (Exhibit "SSS")). In addition, he thought that there were grounds for adding approximately a further two years to the estimate of 45.8 additional years. This meant that the life expectancy would increase to an additional 47 or 48 years (T 1276 lines 45-55). He arrived at this further adjustment by making a mathematical allowance for possibly more favourable mortality experience in Australia as compared with the United States of America (T 1276-1277; T 1284; T1294 line 40; T 1296 lines 15-35; T 1305; para 7.2 of Exhibit "QQQ"). 297 I have assumed, again, that Professor Berry made his estimates on the basis that the plaintiff was aged 21 years and nine months at the date of Exhibit "QQQ", and that she was one month older at the date of Exhibit "SSS" when Professor Berry's revised estimate was made. The final submission of Mr Brereton SC was that the statistical evidence supported a life expectancy, on the most optimistic reasonable view of Calandre's characteristics, of 45 years at age twenty. Consequently, it was his submission that, on the probabilities, the plaintiff will survive to age 65 - a further 44 years from judgment if given at age 21. It is not clear to me why the ultimate submission was said to support a life expectancy of 45 years at aged twenty, as all the statistical estimates appear to have been made on the basis that the plaintiff was 21 years of age relevantly. 298 In any event, the range of statistical estimates relied upon by the statisticians (leaving aside Mr Cumpston) is between 40 years and 47-48 years. This wide variation in estimates reflects and enlivens the various cautions I have earlier expressed in relation to Dr Shavelle's "starting point". 299 I have come to the conclusion that the statistical evidence does not, of itself, permit me to make by way of review, a precise allowance either in percentage terms or numbers of years in relation to the "starting point" of 42.9 further years. Such an allowance can only be estimated accurately by statisticians and the evidence before me has been left on the basis of a wide variety of statistical estimates rather than with the necessary tools to make a precise statistical adjustment to the starting point estimate. The methodology, which I have accepted as being appropriate in the present case, enables me, however, to make a clinical allowance to the starting point estimate which is designed to demonstrate my overall assessment of the probable span of the plaintiff's remaining years. I propose to make use of the various cautions and hesitations surrounding the precision of the statistical starting point as a yardstick or measuring device in confirming or otherwise checking the reliability of the overall assessment. Final Estimate 300 In my opinion, having regard to all of the material I have examined, the probable span of the plaintiff's remaining years is a further 51 years from age 22. This means that I estimate that the plaintiff will probably live to the age of 73. On the assumption that judgment is given on or about 5 November 2001, this means that the plaintiff will have, at that date, 50.67 remaining years. It is necessary for me to say that this estimate has not been calculated by precise mathematical means but rather by an overall appreciation of the accumulation of clinical material in relation to the statistical starting point. 301 I am reinforced in this conclusion by a number of considerations. First, the wide variation in the various statistical estimates gives strength and credence to the likelihood that an accurate and balanced clinical perception of the plaintiff will, in all probability, set her apart from the group. Secondly, a probable life span of a further 51 years from age twenty-two is beyond, but not dramatically beyond, the highest of these statistical estimates. Thirdly, the estimate is, in the end, quite significantly below the life expectancy of a twenty-two year old female according to the Australian life tables 1997-1999 (60.51 additional years). This in my opinion gives due recognition to the plaintiff's unfortunate condition. It is not so far below the norm, however, as to disregard the fact that the plaintiff has exceptional qualities and characteristics which collectively, posit a longevity prospect greater than many, if not most, cerebral palsy sufferers with her range of disabilities and impairments. 1. General Damages 302 There is no need for me to repeat matters which have been detailed at great length relating to the plaintiff's medical history, her range of disabilities both present and past and the general circumstances relating to all aspects of her life and daily living. Those details paint a portrait of a life which, in many respects, is capable of being regarded as profoundly depressing but the response to which, on the plaintiff's part, has been profoundly inspirational. 303 In general terms, the plaintiff has suffered the virtual destruction of many, if not most, of the amenities of normal life. The ability to participate in and enjoy many of the features of normal life that most of us take for granted are lost to Calandre. She has neither the ability to speak nor the ability to communicate easily; she does not have the ability to move around when and where she will. She does not, with the exception of bocce have the ability to play sport, nor the ability to enjoy outdoors activities easily. The ability, capacity and opportunity to attend concerts, the theatre and the movie theatre, aspects of daily living which most of us take for granted, are available only with great difficulty and in limited situations. In short, she has never personally known, has never had and will never have the ability and capacity to enjoy life to the full as normal able bodied people do. 304 One particularly distressing loss the plaintiff must face relates to the estimation of the realistic possibility that she may not have children of her own. This topic is examined in detail later in this judgment but it is my view that although she may well recover her fertility she has markedly diminished prospects of a normal married life and no realistic prospects of a normal married life and no realistic prospect of motherhood, despite a keen desire to have children. This is an important aspect of general damages. 305 Calandre is confined to a wheelchair and dependent on others for the basics of dressing, showering, toileting, feeding. She is reliant on others to be placed in her wheelchair, her bed and motor vehicle. She is dependant upon sensitive and attentive carers in relation to all these aspects of her daily life including the ability to communicate. For her, in all of these areas of her daily existence, there is an inherent loss of dignity and susceptibility to humiliation and embarrassment. Frustration and annoyance with her own shortcomings have inhabited and will inhabit every aspect of her life. The nature of the continuous and uncontrolled movement of her head, mouth, tongue, limbs and body requires untold patience and concentration both on her part and the part of those looking after her. 306 One especially devastating feature of this life long dependence and life long absence of amenities is that there is no hope of improvement. Financial security and the attendant ability to afford good care arising from a generous award of damages will provide some measure of amelioration but will not go anywhere near full compensation for this particular plaintiff. The fact is that every day, from birth to death throughout a relatively long life, she will have the knowledge that this unending experience of frustration and disablement will not improve. This knowledge has been with the plaintiff since she was first able to comprehend her true situation and it will be with her every moment of her life. She is, truly, a person who is imprisoned in her own body. For many, such a situation would be an invitation to despair. 307 Despite this, the plaintiff has shown truly inspirational qualities of cheerfulness and willingness to participate in normal life as much as she can. She has shown the drive and determination to improve herself, and a willingness to further her education and her experience of the human condition. Once, a person like the plaintiff would have been confined to an institution, perhaps even to a mental institution, in circumstances where her spared intellectual capacity would not have been recognised or appreciated. She provides, in many respects, an inspiration to all disabled people. This is not to say that she does not at times experience anger, frustration and bitterness. It is not to deny she has the capacity to be difficult at times with those who look after her including her mother and family. It would be contrary to the reality of human nature if this were not so. The fact remains that the word "inspirational" has loomed large in this case since the day, many months ago, when the hearing commenced. It is an accurate description of the manner in which the plaintiff has endeavoured to cope with her tragic and devastating disabilities and the impact her courage has had, and is likely to have, on others especially those like her, who are seriously disabled. 308 It has been submitted on the plaintiff's behalf that the starting point for the consideration of an appropriate figure for general damages is $450,000. The defendant, on the other hand has submitted that $300,000 is an appropriate sum for general damages for Calandre's past and future injuries and disabilities. 309 The defendant has submitted that the plaintiff is far from the "top of the range" for awards of general damages. In particular, the defendant has stressed that the plaintiff is not tube fed, she is not ventilated, she is able to operate the mechanism of an electric wheelchair; she has some ability to roll, crawl and attain a sitting position. In particular she is not in pain and has not had to be subjected to a series of surgical procedures. Importantly, her intellectual capacity is intact and she is not and will not be confined to an institution. 310 One of the ironies of this case is, that, in relation to the life expectancy issue, the defendant has been at pains to portray the plaintiff as much more disabled in functional terms, than the plaintiff's side asserted. On this issue, however, the defendant has retreated to a more conventional approach. 311 In a number of respects, however, some of these points are well made by the defendant. I have endeavoured, so far as they are accurate, to keep them in mind when assessing general damages. There are, however, limitations on the extent to which Mr Brereton's brief submissions in this regard may be entirely accepted. For example, while it is true that, generally, the plaintiff is not in pain, a description of her bodily movements attributable to the cerebral palsy, and the disabilities which have resulted, show a rather distressing situation. For example, in his report of 13 April 1998 (Exhibit "U") Dr Buckley described the results of his examination of the plaintiff in the following terms: - "She has severe ballistic movements of the right arm which was held down to her chair with a Velcro strap to assist in keeping her body still. She had a marked flexion dystonia of the right arm and a mild left flexion dystonia with similar but lest severe ballistic movements. Both legs were severely hypoplastic with marked spasticity, the right having the ankle in the mid anatomical position, but the left with a mild equinovarus position. Cranial nerve examination revealed full visual fields with a convergent squint and poor gaze to either side, requiring head turning to look to the side. Her tongue frequently protruded but was symmetrical in its movements. He voice was extremely dysarthric with completely incomprehensible sounds reminiscent of loud yawning." 312 Dr Buckley also noted that Calandre's severe spasticity would require physiotherapy to reduce the likelihood of the development of contractures requiring operative intervention. In addition, there was the likelihood of acute musculoskeletal problems, such as sprains and strains, again requiring the active assistance of a physiotherapist for acute management. These requirements highlight the ongoing and regular discomfort and distress occasioned by her severe movement disorder. 313 Another illustration of the same problem, from a different perspective, is to be observed in the evidence of Michelle French, an Occupational Therapist. Miss French was the author of Exhibit "EE". At T 312-313, Miss French had been explaining that long periods of "abnormal pull and tension" on major joints in people with severe disabilities can bring about a situation where the joint integrity itself is compromised. In such situations there is the possibility of early onset arthritis and the development of very painful joints. She was asked to provide some examples and did so at T 313 lines 5-15: - "In terms of physical, it can be the development of early arthritis, the further increase in contractions (sic) and the development of contractions around major joints. It can be where people have only functional use of one part of their body, they can develop an over use syndrome where again pain becomes a factor. So on top of the physical disability you also introduce pain which further limits a person's ability to participate in activities and use their equipment. For example, in Calandre's case, if the contractions (sic) increase in her arm she might develop pain which might have a carry over effect to her left arm which may interfere with her ability to be able to operate a wheelchair independently. We need to put in place as many preventative measures as we can to guard against any of those disabilities or further problems that eventuate." 314 Miss French gave a further illustration relating to the amount of energy and work required by Calandre in using her communication board. Because of the effort required to target the small squares on the board, there was, she explained, a consequent toll on the plaintiff's neck area. This might well result in her developing pain in her neck region. 315 In short, for all these reasons, it is quite clear that the plaintiff has known pain to date, and will be no stranger to pain for the duration of her remaining years. 316 Secondly, the fact that Calandre's intellectual capacity is intact means that she has been and will always be acutely aware of her own disabilities and difficulties. In a number of respects, this acute awareness of her plight makes her suffering markedly greater than if she had no consciousness of it. 317 In my view the plaintiff is entitled to a substantial allowance for the non-economic aspects of general damages. Taking all the matters which I have mentioned into consideration, I award the plaintiff by way of general damages the sum $390,000. 2. Interest on Past General Damages 318 The plaintiff has claimed interest on one half of the general damages calculated at 2%. The defendant argues that, as the plaintiff's general damages are in the nature of continuing disabilities, there is no reason to apportion them other than rateably over the plaintiff's lifetime. Given that the defendant had argued that life expectancy should be confined to a further 44 years from judgment, it has been submitted on his behalf that an appropriate figure would be one-third of general damages apportioned to the past. It is agreed that two per cent interest should be calculated on the amount in fact apportioned to the past. 319 Although the defendant's approach has a certain mathematical logic to it, I do not consider that this aspect of the matter can be disposed of quite so neatly. In many personal injury cases, the plaintiff will have suffered considerable pain and discomfort arising out of, for example, a catastrophic accident causing major physical injuries. The pain of initial suffering, hospitalisation and rehabilitative treatment will occur during the first year or the years immediately following the accident. In those type of circumstances, it is easy to see why there has arisen a conventional apportionment of 50% of general damages to the past. In the present case, the situation is not quite so clear. It is necessary however to determine each case on its own merits. 320 The plaintiff's brain injury was occasioned at her birth. She was for some five years after birth the subject of epileptic seizures. They were quite serious. Her physical mobility in fact deteriorated over her years as a young girl and teenager. The realisation of the nature of disabilities, its causes and her plight generally would have come to the plaintiff after the first seven or eight years of her life and the full extent of the whole situation would not have been made fully clear to her probably until she was in her early teens. There has been ongoing physiotherapy, Spastic Centre treatment and medical attention required through these difficult years. In my view, the treatments and their endless nature and number, would have been made the more difficult because of the need that the plaintiff had to come to grips fully with her own situation and to come to an acceptance of her disabilities and of the realisation that they would be with her for the remainder of her life. All these matters would have been likely to have occasioned her considerable pain, and suffering as she came to the mature realisation of the many years of hard work and difficulty ahead of her. She now has acquired, with maturity, a resignation in relation to these matters and an acceptance of her lot in life. A consideration of all these matters has convinced me that it is not inappropriate nor unreasonable to apportion 50% of the general damages to the past, notwithstanding the rather unusual circumstances of this case. 321 A period of 22.33 years has elapsed from the plaintiff's birth on 5 July 1979 and the estimated date of judgment namely, 5 November 2001. Interest on $390,00 at 2% over 22.33 years yields $174,174. 3. Past Loss of Earning Capacity 322 The plaintiff has presented two alternative factual scenarios relating to the claim for past loss of earning capacity. Option A assumes a likelihood that the plaintiff, had she not been injured, would have attended University after completion of her Higher School Certificate; Option B proceeds on the basis that after completion of her HSC, the plaintiff would have pursued full time employment. It is necessary to set out the detail involved in each scenario. Option A 323 According to this option, the plaintiff would have undertaken paid work whilst still at school, on a part-time basis, from the age of sixteen and a half years until the age of eighteen and a half years, when she would have completed her secondary schooling. The extent of this employment was submitted as consisting of $100 per week (that is, $10.00 per hour for ten hours of work each week). Over this two year period, the total loss is calculated to amount to $10,800 net (this is within the tax free threshold for each year). 324 Thereafter, upon completion of the her HSC, the plaintiff would have undertaken University studies, specifically she would have chosen a five year Arts/Law degree, and she would have continued to pursue part-time employment during the period of this study, between December 1997-January 1998 and December 2003. Gain at a rate within tax free thresholds, at $100 per week, and calculated to 30 June 2001 (a date selected for convenience as the notional date of assessment), this limb of Option A amounts to $18,200. 325 According to calculations provided by the plaintiff, the total of Option A at 30 June 2001 is $29,000, which translates to $25,000 after a general discount for vicissitudes is made. This figure would need to be adjusted to date of actual judgment and a further allowance for vicissitudes to the same date would be made. Option B 326 In the alternative, that is if the plaintiff's attendance at University is not accepted as likely, it has been submitted that the plaintiff would have worked on a part-time basis in her final two years at school, as outlined in Option A above ($10,800). Then, from the age of 18.5 years to the present, it is suggested that the calculation proceed on the background of current net Average Weekly Full Time Adult Total Earnings, with an allowance of 50%. Calculated to the notional date of 30 June 2001, this amounts to $55,120. 327 In total, the plaintiff has submitted that the claim contained in Option B is $65,920, which, it is suggested, could be rounded to $60,000. Again this figure would need to be adjusted to the date of the judgment. The Defendant's position 328 The defendant rejects both of these scenarios, and has submitted that the appropriate basis for the assessment of this head of damages resides in the likelihood that the plaintiff would not have obtained casual employment during her final years at school, and that following the completion of her HSC, she would have pursued casual employment. Specifically, for the three and a half years between January 1998 (following the completion of her HSC) and July 2001, the assessment for past loss of earning capacity should be based on a rate for casual employment of $15.00 per hour, for six hours of work each week. This amounts to $16,450. 329 The defendant's submission is based on a number of propositions. The first is that the plaintiff would not have accepted casual employment during her final years at school. Secondly, that it is reasonable to assume that the plaintiff would not have assumed full time employment upon leaving school. Both of these propositions are based on the defendant's estimation of the experience of Calandre's siblings. That is, Mr Brereton SC pointed to the fact that the evidence did not establish that any of her sisters had sought or obtained part-time or casual employment while completing their secondary education, nor did it establish that either of her two sisters who have left school obtained full time employment. 330 These bases for the assessment advanced by the defendant must be rejected. As I shall explain further when dealing with future loss of earning capacity, it is too glib a prophecy to glean, from the experience of Calandre's sisters, a forecast of the future Calandre might have had, had she not suffered from cerebral palsy. Calandre has distinct characteristics and qualities, and it is inaccurate to estimate her capabilities by a neat reference to the apparent characteristics and qualities of her sisters, as manifest in their life choices. As has already been explored, Calandre is a unique individual of some determination and insight, and this individuality would be lost in any comparison which seeks solely to group her with her sisters, as proposed by the defendant. Moreover, the development and experience of Calandre's sisters cannot be separated from the family circumstances which have been overwhelmed by the ordeals arising from Calandre's disability. Indeed, Mrs Simpson gave evidence on a number of occasions as to the disruptions in the family. She has said that hers is not a "normal family", she related that the presence of carers was an intrusion and the family lacked privacy (T 43). Further, she stated that "we have had a lot of problems within our lives" (T 43) and described times when there has been "unhappiness" in the home (T 68). It is possible that had Calandre not been injured, the lives of members of her family might have taken different courses. Resolution 331 It is necessary to say however, that the factual scenarios presented by the plaintiff are underpinned by a high degree of speculation as well. I have come to the conclusion that I am unable to find that the plaintiff would have been likely to have entered into a University course after completing her secondary education. On the other hand, there is sufficient material to satisfy me that there is a higher possibility that the plaintiff had a capacity for, at the very least, average prospects so far as future earnings are concerned. Indeed, she had quite probably a realistic possibility of becoming a high earner. This means, in practical terms, that, with certain stipulated reservations, I accept that the plaintiff's approach to this head of damages is reasonable in terms of Option B. 332 First, I think there is no justification in suggesting that no allowance should be made for the period from age fifteen to eighteen. In my opinion, it is perfectly reasonable to assume that the plaintiff would have undertaken some part-time paid work prior to completion of her secondary schooling. It may be that there is not a great deal of evidence from which one can draw this inference but the plaintiff's innate "drive and determination" together with her attractive personality are enough to persuade me that the inference is available. Although not stated in any submission, there appears to be possibly, an underlying assumption in the defendant's case that because the plaintiff came from a well off socio-economic background there may not have been an incentive for her to undertake part-time work prior to the completion of her schooling. If this assumption exists, it should be rejected on the facts of this case. The mere fact that the evidence falls short of showing whether the plaintiff's sisters have ever done or undertaken this type of work does not appear to me to carry any significant weight especially in the light of the plaintiff's own particular characteristics and personality. Casual part-time work which might have been undertaken by the plaintiff could have been done on evenings or weekends or in holiday periods outside of school time. I accept as reasonable that a student could earn part-time in the order $100 per week being the equivalent of about $10.00 per hour for ten hours each week. I consider that it would be reasonable to round these figures off as $5,000 per annum giving a total of $10,000. In each of the relevant years, the sum which would have been earned for casual work was below the tax free threshold. 333 In relation to the second component of Option B, Mr Levy SC has acknowledged that the estimation of the earnings which the plaintiff would probably have derived over the period between December 1997 when she was aged 18.5 years and the judgment date of approximately November 2001 is "necessarily a difficult exercise". Mr Levy submitted that a reasonable approach to assessment would be to regard current net Average Weekly Full Time Adult Total Earnings as a background yardstick by which to assess past loss earning capacity. Counsel suggested that an allowance of say, 50% of such earnings should be made over the period in question. 334 In my view this is too high. The task is, as counsel frankly conceded, a difficult one. There are numerous other approaches which might have been taken. The problem with an approach that takes 50% of the earnings rate nominated by the plaintiff is that the average wage thus advocated, is undoubtably influenced upwards to a degree by the earnings of groups of high income earners. Such a rate will, no doubt, be an appropriate yardstick for calculation of loss of wages in certain circumstances but it must be approached with some caution in the case of a fledging worker in the open market between the ages of roughly eighteen and 22 years of age. I am prepared to accept, however, that the choice of wage rate is justifiable provided that the percentage allowed reflects the very junior starting position the plaintiff would have occupied in the workforce during these years. For that reason, I am prepared to identify a percentage of 33-1/3% as a reasonable approach as a method of assessing likely earnings in the relevant years. 335 On this approach, the identification of this percentage of such earnings proceeds as follows: - (a) Between December 1997 and 30 June 1998 at 33-1/3% the average weekly earnings rate of $573.75 per week net rounded down to say $190.00 per week for 26 weeks ie, $4,940 net. (b) Between 1 July 1998 and 30 June 1999 at 33-1/3% of the average weekly earnings rate of $593.56 per week net rounded down to say $195.00 per week for 52 weeks ie, $10,140 net. (c) Between 1 July 1999 and 30 June 2000 at 33-1/3% of the average weekly earnings rate of $611.93 per week net rounded down to say $200.00 per week for 52 weeks ie, $10,400 net. (d) Between 1 July 2000 and 5 November 2001 at 33-1/3% of the average weekly earnings rate of $667.08 per week net rounded down to say $220.00 per week for 70 weeks ie, $15,400. 336 The sum of the amounts referred to in paragraphs (a) to (d) above total $40,880. 4. Interest on Past Loss of Earnings 337 The plaintiff is entitled to claim interest on the combined total of the two amounts comprehended by Option B namely, $50,880. This, at the rates prescribed by the rules, amounts to $20,360.48, rounded down to $20,000. 5. Future Loss of Earning Capacity 338 This is a major claim. It is accepted that the plaintiff has had her future earning capacity completely destroyed with the result that she has no residual earning capacity whatsoever. 339 Consistently with the position adopted by the plaintiff in relation to past loss of earning capacity, the plaintiff has put her claim for future loss of earning capacity upon two alternative bases. These are: - (a) Lawyer's Income set out in Option A namely $1.2 million (b) Average weekly full time added total earnings as set out in Option B namely, $685,491. 340 The defendant argues that the plaintiff would not have undertaken tertiary studies and contends that the plaintiff's loss should be assessed on the basis of average female weekly earnings. In this regard, the defendant argues that where the earning capacity which the plaintiff would have developed is speculative and cannot reliably be predicted, average weekly earnings for the appropriate category to which the plaintiff belongs are the conventional and appropriate guide (Taylor v Bristol Omnibus Company Limited (1975) 2 All ER 1107, 1115; Garling v Manufacturer's Mutual Insurance Co (1980) 24 SASR 321). In short, the defendant argues that there is no reason in this case to depart from average weekly earnings. Although, in other circumstances, courts commonly resort to evidence which cast light on what a plaintiff might have achieved in terms of employment to see whether there is any reason for thinking that the relevant earning capacity might have been above or below average, no such material presents itself in the present case. The defendant points again to the evidence of the plaintiff's sisters in relation to their employment history. Secondly, the defendant argues that the qualifications required for a career as a lawyer are such that there is no justifiable reason for thinking Calandre had higher than average prospects so far as future earnings are concerned. 341 The plaintiff said that it was her present desire to go to University. She said that her first choice was Law but, being realistic, she knows that she would not get the mark necessary to undertake this course (T 457 lines 20-30). Mrs Simpson had said that Calandre had for some reason always wanted to be a solicitor. She said that the family explained to her that it was not going to be possible and so her current wishes were that she should become a Social Worker (T 41 lines 25-35). These statements by the plaintiff have been made, however, in the context of her disabilities. See also Exhibit "FFF" plaintiff's copy bundle p 812 B-C. 342 Evidence was given by Mr Jason Johnson of the Legal Recruitment Form, Morgan & Banks. (Exhibit "PP" includes a summary of survey material concerning the average earnings of Lawyers at five yearly career intervals). Mr Johnson gave evidence that generally speaking entry to the legal profession requires that a student has completed the HSC or its equivalent, with a percentile ranking of 80 or better - that is to say in the top 20% of those who attempt the HSC. There was no dispute that academic performance is an important indicator in terms of gaining employment with a CBD law firm (T 366 lines 30-35). Mr Johnson reported the current prospects of employment for law graduates was good; there were trends towards a higher demand for lawyers generally, and, "almost positive discrimination towards female lawyers" (T 361 lines 37-40). 343 To address the prospect of whether the plaintiff would have undertaken tertiary studies, the defendant submitted a careful examination of the academic and employment history of the plaintiff's sisters. Her eldest sister Biancha attended private schools. It appears that she did not do well in the High School Certificate. She commenced under graduate studies for the degree of Bachelor of Arts at Macquarie University but did not complete this course. On the other hand, she subsequently gained a qualification as a Dental Nurse and Radiographer over three years part-time while working in her father's practice as a Receptionist Assistant. Calandre's next younger sister, Jade was educated at private schools but left school in 1997 before attempting the School Certificate. It does not appear that she has done any academic course since leaving school. She currently works with Cue Design on a casual basis and lives with her boyfriend's family (T 68-69). 344 Calandre's youngest sister, Chloe, has also been educated at private schools and is currently in Year 9. Her academic performance is described as "average" (T 69 lines 37-58). Would the plaintiff, uninjured, have become a successful lawyer? 345 The plaintiff argued that there was evidence from which one might determine that it was quite likely that the plaintiff would have followed a career in law had she not been injured. The evidence, it was said, addressed two answers to the arguments based upon the academic hurdles in the way of the plaintiff's prospects. First, it was pointed out that opportunities exist for applicants to gain an entry into law courses either on merit or by paying fees. Similarly, the Law Extension Committee of the Legal Practitioners Admission Board accepts part-time students for the Diploma of Law Course. Secondly, much was made of the plaintiff's "drive and determination" and of her, at least, average intelligence. Moreover, it was again argued that it was inappropriate to assess the likelihood that the plaintiff would have completed a law course successfully by a comparison based on career paths undertaken by her two adult sisters. 346 In relation to the last mentioned matter, I have earlier referred to the evidence which suggests that Calandre's disabilities had a substantial effect on the normalcy of her family environment. No doubt, it is a reasonable inference that there were effects on her sisters as well. There is also the fact that her father is a highly successful professional, indeed described in the evidence and submissions as "a workaholic". Her mother, Gail Simpson, is a redoubtable woman of significant determination, perseverance and aptitude. These aspect of the family's situation are countervailing considerations in the context of the submissions made by the defendant regarding the plaintiff's sisters. 347 After allowing for the force of the plaintiff's submissions in response in relation to these hurdles, I have nevertheless come to view that I am not satisfied that there was any real possibility that the plaintiff would have undertaken a successful career as a lawyer had she not been injured. First, in his written submissions, Mr Levy SC has acknowledged that it is, indeed, "difficult to determine whether the plaintiff would, in fact, have become a lawyer". Secondly, as has been observed, it is extremely difficult, in the case of a plaintiff injured at or shortly after birth, to make a precise prediction about the worth of a loss of capacity to earn in such circumstances. In this case there is really nothing to support the likelihood of such a prediction beyond the plaintiff's own evidence, her personal characteristics and her parents background, especially her father's profession. These matters are, of course, appropriate for consideration in relation to estimating the value of the lost chance. 348 As to her evidence, and the light it sheds on her present resolve, it must be said that these ambitions have emerged from a consideration of her disabilities rather than from any innate desire to be a professional person. There is nothing to suggest, for example, she would have been driven to follow in her father's footsteps. Calandre's personal characteristics certainly support the proposition that she would have become at least an average earner, and quite possibly a higher than average earner. They do not, however, enable me to predict with any really positive persuasion that she would probably have gone into a legal career. The family situation with all its positives and negatives, certainly supports and reinforces the same conclusions. The difficulties as to predictions of a legal career remain, in my opinion, formidably in the plaintiff's path. 349 These difficulties were referred to recently by Hayden JA (with whom Mason P and Handley JA agreed relevantly) in State of New South Wales v Moss (2000) NSWCA 133, 31 May 2000. His Honour said (para 71 at page 33): - "In Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said 'the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history'. They approved Lord Diplock's statement in Mallett v McMonagle (1970) AC 166 at 167; "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages …". The majority (Deane, Gaudron and McHugh JJ) in Malec v J. C. Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within the very broad parameters. The trier of fact may have to form conclusions on "slender materials". Callaghan v W.C. Lynch Pty Ltd .(1962) NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ." 350 His Honour considered a broad range of cases in which future loss of earning capacity had been examined as an exercise "in estimation of possibilities, rather than proof of probabilities". (Para 71) Of particular relevance to the present situation are his Honour's observations at para 84: - "An illustration of the court's readiness to award damages for diminution of earning capacity arises when very young children are injured. Strictly speaking it would be impossible to prove that the child would have had an earning capacity as an adult or would have exploited it. But it is conventional to rely on the occupations, attitudes to life and work, histories of parents and other relatives: Kalo v Bristol Omnibus Co Limited (1975) 1 WLR 1054; Gowling v Mercantile Mutual Insurance Co Limited (1980) 24 SASR 321; Bullock v Miller (1987) Aust Torts Reports 80-128; Burford v Allan (1992) 60 SASR 428. See also the position in England described in McGregor on Damages 16th Edition paras 1381-1382". 351 Finally at para 87, his Honour made the following observation: - "The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility." 352 I have also derived assistance from the observations of Clarke AJA in Rosniak v GIO (1997) 41 NSWLR 608 at 627-628. There his Honour had said: - "I would, however, like to add some short observations on the question of the appropriate tables to adopt in assessing economic loss. At the outset it must be said that a court faced with the task of assessing economic loss for a plaintiff who was injured as a young child must be accorded a very wide discretion. Clearly enough, precision is impossible. The exercise is one which in many ways involves guesswork." 353 His Honour noted the practice that had been followed for many years in New South Wales by which a plaintiff's loss had been calculated by adopting an average wage and making appropriate adjustments to fit any factual circumstances which might be thought to be relevant in dealing with the vicissitudes. (I interpolate that his Honour's remarks were specifically dealing with a selection between an average wage as opposed to a medium wage as a basis for assessing economic loss). His Honour continued: - "In these circumstances it would seem to me that unless there is no reasonable possibility exposed on the evidence that the person under consideration may have become a high income earner, it is appropriate to adopt a figure which takes account of the higher earnings, viz, an average figure. It may be that in a given case the facts strongly support the conclusion that there was no realistic possibility that the injured plaintiff would become a high earner. If so, a proper exercise of judgment may support the adoption of the median figure. It should not, however, be overlooked that in the case of the type under discussion the court is necessarily dealing with possibilities and is doing so with very little information on which to assess to those possibilities. It also should be borne in mind that, where propitious possibilities are disregarded in fixing the primary figure for loss, care needs to be taken in dealing with the vicissitudes to ensure that there is not something in the nature of a double deduction. In my view, where little is known beyond that the child is an average child from a family with no background of tertiary education, broad justice is better accommodated by adopting an average wage and taking account of all the possibilities in fixing an allowance for the vicissitudes." 354 The present case does not involve any selection between an average or median wage. His Honour's general approach, on the other hand, has some application to the present case. Calandre Simpson is a young lady of considerable drive and determination. She has average intelligence. There seems no basis, in my opinion, for excluding the possibility that she may have gone on to become a high earner in the workforce. It is possible that she may have gone on to a tertiary education and there is some support for that proposition in her own character and the background of her father especially. There is, however, very little else to support the possibility and I am not satisfied overall that any real possibility of a legal career based on tertiary education has been established as likely. I acknowledge that in many ways my conclusion involves a degree of guesswork and that precision is simply impossible. What Basis should be Utilised for Future Loss of Earning Capacity? 355 Once the finding has been made that it was not a likely or real possibility that the plaintiff would go on to tertiary education as a lawyer, the dispute between the parties on this ground rests on a narrow basis. The plaintiff's approach focuses on a net weekly amount of $667.08. This is the current net rate for AWE for full time adults (Exhibit "AAAA" para 4). The plaintiff projects this rate over the plaintiff's remaining working life of 44 years to age 65 using the three per cent multiplier of 1284.5. (This may have been an error in the written submissions as the correct number, appears to have been 43 years). There is then applied a discount of 15% for conventional adverse vicissitudes. This yields a calculation of future loss of earning capacity in the sum of $723,334. The plaintiff then submits that no more than an additional five per cent discount should be applied, representing a fair and appropriate acknowledgment of the possibility that the plaintiff may have taken some time out of the work force for child rearing. On the basis of this further discount, the calculation of future loss of earning capacity is $685,491. 356 In determining whether the full time adult figure is appropriate, it is necessary to revisit the findings already made from a slightly different perspective. 357 The conclusion that I had reached recognised the possibility that the plaintiff may have undertaken tertiary education and, for that matter, may have entered upon and practiced in the legal profession. It recognised a number of possibilities the plaintiff's career path may have taken. In the end, the fact that Calandre was injured at birth resulted in a situation where very little indeed could be known, or, for that matter, guessed at regarding the precise nature of the plaintiff's likely career path, had she been born uninjured. 358 The best I have been able to do is to determine that she would have most likely developed into and become a person who would have undertaken and succeeded at a business career which probably would have put her in at least an average earning position and, quite possibly, a better than average earning position. The mere fact that little is known, and that a degree of guesswork is involved, is not sufficient to condemn the plaintiff to an unjustified average category. The facts which are known about the plaintiff include the positive personal characteristics I have already described such as her drive and determination. There are as well her personality, intelligence and lively humour. In addition there is her father's successful professional background as a dentist and his obvious capacity for hard work. There are, as well, her mother's qualities of determination and perseverance and aptitude. Contrary to the defendant's submissions, I do not see the plaintiff's socio-economic ground as a negative factor in the circumstances of this case. Rather given the range of other factors I have mentioned, the plaintiff's background gives me an assurance that she was likely to have done well in her business career. I have little doubt that she would have married and had children but I am prepared to accept as quite a likely possibility, indeed a probability, that the plaintiff would have maintained a business career notwithstanding marriage and the burdens of parenthood. 359 Mr Brereton SC has argued that the appropriate category is average weekly earnings for adult females. This category, he argues, takes into account the distribution of full time and part-time employment, which Calandre might have pursued and obtained. Additionally, he argued that there was no evidentiary basis for assuming that full time employment would have been the only basis on which she was likely to have worked, especially given her intention, even now, to have a family. So far as this last matter is concerned, it seems to me that it may be taken into account in relation to a consideration of a discount for vicissitudes. This is so particularly in the light of my assessment that it would have been quite likely the plaintiff would have rejoined the workforce after having children. 360 I have no hesitation in rejecting the category urged by Mr Brereton on behalf of the defendant. The adoption or utilisation of any category needs to take into account, so far as one can, the career path that has been found to be the most likely in relation to a particular plaintiff. Even then, as Rosniak (supra) makes clear it may be necessary to make an adjustment. The category urged by Mr Brereton includes all the lesser rates for part-time earnings and casual earnings that intermittent female workers, absent a specific degree of ambition, pursue. The defendant's suggested category is too low a yardstick for this plaintiff as Mr Levy has rightly submitted. 361 What category then best applies? The choice appears to lie between the current net rate for AWE for full time adults and the current net rate for full time adult females. Details of these rates are found in Exhibit "AAAA". On its face, the second of these two categories appears to be the more appropriate because it is directly dealing with adult females in full time employment. If this rate were chosen, however, it would still be necessary to make an adjustment to reflect the particular level of earning capacity I have found Calandre is likely to have achieved had she been uninjured. 362 On balance, I think that the appropriate course is for me to accept the submissions of the plaintiff in this regard. In my view, Mr Levy has successfully argued that the correct and most proximate rate is the full time adult rate. If selected, this, at least, requires no further adjustment and is the most convenient of all the rates. Importantly, the selection of this rate enables the court to take into account the very real possibility that the plaintiff may have become a high income earner in the pursuit of a business career. This category, being the highest, includes within it those persons who earn an income above the average. There will of course be a need to make a discount to reflect the vicissitudes of life which would have been likely to have doubt affected her situation. This discount will reflect the usual vicissitudes of injury, unemployment, illness and especially the real likelihood that the plaintiff would have married and had children and thus been out of the workforce for a time before resuming work. I propose to use the current net AWE for full time adults of $667.08 and to project this rate over the plaintiff's remaining work life of 43 years using the three per cent multiplier of 1270.1. I will then apply a discount of 15% for conventional adverse vicissitudes and consider whether any further discount is necessary. 363 This approach yields an initial calculation for future loss of earning capacity in the sum of $720,169.55. 364 It is necessary then to consider whether the "conventional" deductions for vicissitudes needs to be re-visited to take account of the specific finding I have made that there was a real likelihood that the plaintiff would have married and taken time out of the workforce for child rearing. Before determining this issue, I should add that the reason I have selected, in the first instance, a conventional discount for vicissitudes is that a great deal of guesswork, rather than precise estimation, is as well involved in this aspect of the determination affecting the plaintiff's loss of future earning capacity, had she been uninjured. Again, there is very little material to work with and the better view seems to be to take a conventional approach. This is especially the case since there is a complete absence of identified factors which may be taken into account to lessen or increase the allowance above the conventional percentage. 365 Returning however to the matter at issue, it is my view that an additional 10% represents a fair and appropriate acknowledgment of the matters relating to time out of the workforce for maternal and parenting issues. This is considerably greater than the discount Mr Levy urged on me but I think it is a fairer estimate of this particular plaintiff's likely involvement in the parenting role, notwithstanding the aspirations I consider she would have had in relation to a business career. 366 I do not propose to apply this additional discount, however, because I have decided that I should accept the submissions of Mr Brereton on behalf of the defendant in relation to the further head of damage related to the lost financial benefit of marriage. I shall deal with this separately but the result is I accept, that this is a case in which there is no need to allow vicissitudes at greater than 15%. This finding in the plaintiff's favour eliminates the need for a separate allowance for the lost financial benefits of marriage. (Rosniak v GIO (supra) Mason P page 618A-C; 620C-D). 367 The conclusion is that I allow $720,169.55 for future loss of earning capacity. 6. Past Loss of Employer Funded Superannuation Contributions 368 On the assumption of the conclusions I have found that the plaintiff would not have pursued a University degree but instead would have entered the workforce at the age of approximately 18.5 years in December 1975 and that she would have derived earnings to the date of judgment, the plaintiff has claimed $4,339.97. Upon application of a 15% discount for adverse vicissitudes, the rounded sum of $3,500 has been claimed. 369 The defendant denies that any allowance should be made for past loss of superannuation benefits. It is argued on his behalf that past earnings are assumed to have been derived from casual work. In my opinion, there is no warrant for this assumption for earnings between the time when the plaintiff would have been likely to have left school and the date of judgment. Accordingly, I propose to make a small allowance in this regard. 370 Consistently with the findings of net weekly earnings between December 1997 and the date of judgment, it is possible to state the commensurate figures for gross earnings (see Exhibit "AAAA" para 3). These are as follows: - (a) In 1998/1999 the plaintiff's gross weekly earnings would probably have been 33-1/3% of $813.12 gross rounded down to $270.00 per week gross. (b) In 1999/2000 the plaintiff's gross weekly earnings would probably have been 33-1/3% of $846.22 rounded down to $280.00 per week gross. (c) In 2000/2001 the plaintiff's gross weekly earnings would probably have been 33-1/3% of $872.20 rounded down to $290.00 per week gross. 371 The sum which emerges from the superannuation calculations is $2,479.62 before discounting. After discounting this by 15% on account of adverse vicissitudes, there is yielded the sum of $2,107.68. 372 Rounding this off, I allow $2,100 for past loss of employer funded superannuation contributions. 7. Future loss of Employer Funded Superannuation Contributions. 373 The defendant acknowledges that the plaintiff is entitled to the loss of the benefit of employer funded superannuation contributions at the rate specified by Superannuation (Guarantee Administration) Act 1992, s 20. The defendant has accepted that an allowance in respect of future loss equivalent to the applicable statutory rate - this is currently eight per cent (and increasing to nine per cent in 2002/2003) on gross earnings. 374 On this point, the only difference between the parties is the method of calculation. The plaintiff has relied on two highly complex schedules. In view of the findings I have made, it is only necessary to have regard to that which relates to "Option B". The process (which Mr Levy SC frankly described as "pseudo mathematical") resulted in a claimed loss of $107,249. The plaintiff acknowledged the possibility that there would be a lesser accumulation in the event of time out of the workforce on account of child rearing and discounted this to $100,000. 375 The defendant approached the matter much more simply. The defendant's preferred position was that the gross earning figure should be selected from the adult female's average work weekly earnings category. It was suggested that the gross weekly figure should have applied to it nine per cent as the applicable statutory rate and then recapitalised to age 65 and discounted at three per cent. The resultant figure should have applied to it a reduction for 15% for vicissitudes. On this simpler approach, the figure calculated was $54,045. 376 I agree with counsel for the defendant that this approach appears more appropriate. It treats the lost employer's contribution as if it were part of the plaintiff's remuneration package and it is an approach which has been adopted in this court (Zammitt v Pasminco Australia Limited (NSWSC 8 May 1996, Badgery-Parker J); Dallas v Morrison (NSWSC 3 December 1996, James J); Cotton v Big River Timbers Pty Ltd (NSWSC 12 June 1998, Grove J). 377 I propose to adopt the defendant's approach and method of calculation, although substituting as the gross weekly figure the relevant average taken from the full time adult earnings category, namely $872.20 gross per week. 378 Nine per cent of $872.20 is $78.50. Capitalised to aged 65 and discounted at three per cent that produces $99,702.85. This amount, when reduced by 15% for vicissitudes, results in $84,747.42 rounded to $84,700. I allow $84,700 for future loss of employer funded superannuation contributions. 8. Long Service Leave 379 The plaintiff claims the actual loss of future long service leave entitlements. Under Option B, the plaintiff's claim is for $5,000. This claim arises from statutory entitlements pursuant to s 4 of the Long Service Leave Act 1955. The plaintiff has calculated that over a total working life of 43 years, the entitlement to long service leave is for 34.4 weeks. The submission is that the value of 34.4 weeks long service leave at the rate applicable to net weekly earnings (full time adult category) is $22,947.55. 380 Application of the three per cent multiplier for 43 years (0.281) yields $6,448.26. After application of a 15% discount for vicissitudes, this yields $5,481. There is then applied a further discount which arises out of the possibility of a slightly lesser accumulation of funds in the event of time taken out of the workforce on account of child rearing. This brings the claimed amount to $5,000. 381 Mr Brereton asserts that this claim should be disallowed in its entirety or, if it is not disallowed, it should be allowed at a very low chance. This is so for three reasons. First, long service leave is not an additional earning capacity. Mr Brereton referred to a number of decisions of the Industrial Court under the Long Service Leave Act which make it clear that long service leave is intended to provide the employee with time off work. Although the employee is paid to be off work in this sense, he argues that it is not an additional earning capacity. Secondly, Mr Brereton argued that the plaintiff will have already been compensated for the earnings which she would have made over the period until retirement. To add in this additional component for long service leave will have the impact of compensating her twice for the same period. 382 The third reason is that an assumption has been made in relation to this claim that the plaintiff would have remained in the same employ. This, counsel argues, is entirely speculative, particularly for a woman who is likely to have taken significant time off work to bear children. For this reason a very substantial Malec v Hutton discount should be applied as to the prospects of recovering long service leave. 383 Although this is not a major part of the plaintiff's claim, the question does raise some interesting points for consideration. As to the first two points, I consider it is undoubtedly true that this is a statutory entitlement which does have a value. Although it was plainly the statutory intention to provide an employee with time off work during which the employee continues to receive his or her ordinary pay, it is not only enjoyed in that way. It is not uncommon for employees to take long service leave at the end of a career and then pursue other employment which enables savings to be made prior to, or even after retirement. 384 As to the third point, I agree that there is a degree of speculation involved but, in relation to the findings I have made about the likelihood of the plaintiff pursuing an active business career and the fact that she would have returned to work after having children, I consider that there is sufficient material to warrant my valuing the lost chance as a real prospect. 385 I allow $5,000 as the value of the loss of future long service leave entitlements. 9. Past Gratuitous Services 386 A measure of the difference between the plaintiff's stance on this issue, and that taken by the defendant, can be best appreciated by the following stark recitation of their respective bottom line figures. The plaintiff, for example, says the market cost of providing the services actually provided by Mrs Simpson to her daughter between birth and 30 June 2001 was $506,140. The defendant, on the other hand, says the claim should be allowed at no more than $15,110. 387 A careful examination of the competing submissions shows, somewhat surprisingly, that there is no marked difference of principle in relation to this question as between the parties, nor is there any argument between them as to the correct principles of law to be applied. The difference lies mainly in the evaluation of the factual situations relating to the provision and extent of past gratuitous services. 388 The principles which underpin and warrant an assessment of the value of gratuitous services are well established. Griffiths v Kerkemeyer (1977) 139 CLR 161 at 173-4; 192-3; Van Gervan v Fenton (1992) 175 CLR 327 at 338-340; Kars v Kars (1997) 187 CLR 354. Those principles are:- (a) Modern principles of assessment of damage will permit, in appropriate circumstances, recovery of damages for a sum which represents the value of services rendered and to be provided gratuitously arising from incapacity or disablement. (b) The relevant loss is the plaintiff's incapacity to look after himself or herself as demonstrated by the need for caring services. The loss is to be quantified by reference to the value or cost of providing those services. (c) Damages for such gratuitous assistance should, as a general rule, be assessed by reference to the cost of having the service provided commercially. It is necessary to identify the market cost of providing those services. (d) In more recent times the High Court of Australia has confirmed that the true basis of a claim for damages of this kind with respect to care or services provided gratuitously for a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Further, the majority of the Court held that where damages are assessed in relation to this aspect of the plaintiff's claim by reference to costs prevailing from time to time during the period between the cause of action accruing and judgment, the interest calculation should be made in a way that reflects the fact that damages comprise amounts accruing over time, not a simple lump sum. The approach adopted by the High Court in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 was rejected. ( Grincelis v House (2000) 74 ALJR 1247 at 1252 para 20). 389 At the outset, Mr Levy frankly admitted that the part of Mrs Simpson's evidence which attempted to reconstruct the detail of 21 years of past care without the benefit of accurate records was understandably imprecise. This "concession" extends not only to the provision of details in relation to paid care but to the establishment of the precise day to day estimation of gratuitous care provided by Mrs Simpson herself. For example, when Mrs Simpson was asked to prepare a list of the carers that had been employed over the years, she said that she found this "a very difficult task" T 58 line 10). She said that it was "a very difficult thing over 21 years to reconstruct". At T 925 she continued: - "I mean I would not in my wildest dreams have thought that I would have to sit here and give it in evidence so it was not documents I kept or whatever. I kept more sentimental things about my daughter, rather than monetary things. To me it was just life that I had to go on with and I find that I have done as best as I can and I couldn't sit here and recite exactly what has been put on paper now because it was a very difficult chore to put together …. I have done as best as I can, that's all I can say really." 390 Given this admitted lack of precision, Mr Levy has argued that the court should not decline to make an appropriate monetary assessment in respect of this head of damage. In the absence of records, the plaintiff suggests that a "broad brush" be applied to the assessment of this head of damage. I did not understand Mr Brereton, on behalf of the defendant, to take issue with this as a general proposition. 391 As a consequence it will be necessary for me to take something of a "broad brush" approach. Nevertheless, the brush must be applied reasonably and fairly and with due regard to the factual material which has emerged. The fundamental factual issues seem to me to emerge from the following questions: - (i) Were the range of services suggested by the plaintiff provided in fact by Mrs Simpson? If so, were they provided to satisfy a requirement for care which was created by Calandre's compensable injuries? (ii) Were those services provided additionally to the care provided by paid carers or were they simply the general supervision of those carers without any additional content related to the plaintiff's need for those services? 392 Mr Levy has argued that an examination of the factual material shows that either Mrs Simpson, or other members of the household, have in fact provided past gratuitous services over the entire period of the plaintiff's lifetime to date in addition to any care which was provided by paid carers. 393 The defendant's submissions focus upon these same factual matters but point to a different conclusion. For example, in the early period of Calandre's life, the defendant says that Calandre - like any baby - would have required total care and attention, with her mother being "on call if not, on duty" 24 hours a day. Although Mrs Simpson said that she had no help during the first six months of Calandre's life and that the care requirements of Calandre were constant (T 14 lines 21-28), this, according to the defendant, would have been the case for any infant. From the age of six months until four, the defendant accepts that some period of time would have been involved in Mrs Simpson taking Calandre to physiotherapy, and later, to the Spastic Centre for treatment. In all other respects the defendant maintains that in this period and thereafter to the present time, Calandre's need for attendant care, to the extent that the need exceeded that required of an able bodied child, was satisfied by the paid attendant care for which she will otherwise be fully compensated. 394 A summary of the defendant's position is this: From the period of birth to age three, the plaintiff should be allowed 7.5 hours per week being the time spent by Mrs Simpson accompanying her to physiotherapy. In respect of the period from three to four and a half years, the plaintiff should be allowed six hours a week being the time spent by Mrs Simpson accompanying Calandre to the Spastic Centre. In respect of the period from 4.5 years of age to the present, no allowance should be made for gratuitous care at all. Rather, a full allowance should be made for the cost of paid attendant care, since Calandre was provided with carers from an early age. The defendant accepts that the plaintiff is entitled to be recompensed for the actual cost of paid care which commenced at about the time Calandre was 10 months old and further accepts that the plaintiff is entitled to recover the cost of paid care with interest. Generally, the defendant's position is that the paid care, so far as the past is concerned, covered any additional requirements for care that the plaintiff had over and above that of an able bodied child. 395 In relation to the issue involving care for a plaintiff in very early years, Mr Brereton referred to two decisions of single judges. The first of these was Ren v Mukerjee, an unreported decision of Miles J, ACT Supreme Court 12 December 1996. The second was an unreported decision of Donovan AJ in Rotumah v NSW Insurance Ministerial Corporation 6 April 1998. In each of these cases, the trial judge had taken the view, that there should be no award for compensation for past care in the early years but that the entitlement generating a proper claim for past gratuitous services had validly arisen at a later age, having regard to the facts in that case. 396 Of course, as Mr Brereton acknowledged, each case must turn on its own merits. For example, in this case the defendant was prepared to make an allowance from birth to age four and half years, whereas Donovan AJ in Rotumah, for example, commenced an allowance for care at a much later age in that case. 397 Generally, the defendant has placed considerable reliance on the evidence of Dr Bowers (Exhibit 102 page 9). In this part of his report, Dr Bowers addressed the various paragraphs of the particulars which had been filed on the plaintiff's behalf. He made a number of comments about the allowance of a reasonable component for past care in his report. These are the estimates on which the defendant now places considerable reliance for the contentions made. It must be kept in mind, however, that Dr Bowers was expressing an opinion based upon particulars framed in a court document rather than by having regard to any actual factual situation revealed by the evidence. Indeed, the evidence of Mrs Simpson, imprecise though it was in a number of respects, considerably "fleshed out" the factual events which occurred from the plaintiff's birth to the present time so as to illuminate considerably the dimensions of an allowance for past gratuitous services. Mrs Simpson's evidence - the first period 398 It is necessary to summarise the evidence relating to the plaintiff's first ten months following her discharge from St Margaret's Private Hospital on 26 July 1979. I had, at the commencement of these reasons, given considerable detail in relation to this period and I have also described something of the treatment received by the plaintiff both for physiotherapy purposes and at the Spastic Centre. There is no need to repeat this detail otherwise than in summary form. 399 It is important to note, however, that Mrs Simpson described Calandre as very difficult to feed. She cried a lot, she was restless and was "very difficult" (T 10 lines 8-17). Later, Mrs Simpson said it was "very hard" for Mrs Simpson to pacify Calandre (T 106 lines 47-48). Mrs Simpson had to walk Calandre around in a papoose to combat her restlessness and movements. Feeding required a considerable amount of time an patience because the plaintiff could not suck from a bottle. It was necessary for Mrs Simpson to hold Calandre's mouth in a particular way for feeding. Mrs Simpson said she had to be taught this method and then apply it T 10 lines 28-32). 400 Of particular importance was the fact that Calandre suffered epilepsy and was fitting at this stage. It was necessary for Mrs Simpson to administer phenabaratone every eight hours to combat the fitting. Moreover, Mrs Simpson had to remain vigilant because of this fitting. This involved more than the task required for ordinary motherhood as Mrs Simpson had to remain alert and needed to be watchful if fitting occurred (T 10 lines 57 to T 11 line 3). Calandre continued on anti-convulsant medication until she was around twelve years of age. Her last epileptic seizure was in about 1984. 401 Mr Brereton SC challenged Mrs Simpson directly in relation to the extent to which it might be said that Calandre required attention differently from her other children. At T 105 line 55, the following appears: - "Q. What I am suggesting is that, aside from her disabilities, Calandre would have required more attention for six to eight hours active duty a day, in any event? A. Different. Q. Well, different in what way, what did you have to do for Calandre in that first six month period that you did not have to do for the other girls? A. For the other girls? Q. Yes. A. She was just - first of all, mentally it was hell. It was depressing. Q. But what needs of hers? A. She cried and she cried. She had to be on medication. It was well over and above any normal child that sleeps a lot of the time. When you are with them, it is fun, fun, fun. It was basically, an intense time that was unpleasant. It was depressing and it was very demanding. It was not normal time with a child, with a happy, healthy child." 402 From the age of six months until four years of age, Mrs Simpson took the plaintiff to the Prince of Wales Children's Hospital for daily therapy sessions. Each of these sessions involved a three hour around trip. Mrs Simpson participated in the sessions and then continued the therapy at home. This was clearly a very time consuming pastime and it was directly related to the plaintiff's disabilities and the need to provide her with therapy both at the hospital and in the home. 403 Mrs Simpson also explained that, after the carers were engaged, she still attended to the night duties. She did not expect the carers to get up at night. For example, around 10 o'clock at night it would be necessary to give Calandre her medication. If she were asleep, it was necessary to wake her and then to make sure that after the medication that she went back to sleep. She explained that this did not always happen that easily. In this way, she attended to Calandre at night "above and beyond normal mothering" (T 14 lines 35-45). As well, Mrs Simpson explained that she always did the two days that the carers had off. 404 At T 14 lines 50 to T 15 lines 10, Mrs Simpson dealt with the question of her estimate of the time that she gave to Calandre over and above the normal mothering. The transcript records: - "Q. Leaving the carers to one side for the moment, we will come back to that, if you had to estimate how many extra hours of day, including the nights that you have just spoken of, you spent over and above normal mothering caring for Calandre's needs because of her disability, how can you help us with an estimate of that? A. Actual doing hours, or on Calandre hours? Q. Well, either or both? A. Well I would say on Calandre hours at least, as I say the twelve to fourteen hours. Actual doing hours, maybe anything between six and ten, six and eight hours." 405 Mrs Simpson confirmed that she was referring to the period from six months to four and a half years of age. 406 I should mention that during the oral submissions in June, there was some dispute between Mr Levy and Mr Brereton as to the accuracy of this part of the transcript. My recall of the evidence is that Mrs Simpson mentioned "on call hours" rather than "on Calandre hours". I took her to mean that she was "on call" for twelve to fourteen hours a day but that she was actually involved in doing things, over and above normal mothering, for about six to eight hours or six to ten hours each day. This was, of course, merely a general estimate and not an attempt at precision. Second Period - between ages 10 months and 4.5 years. 407 As a matter of convenience, the end point of 4.5 years was selected for this period. This was the time at which Calandre commenced attending the Spastic Centre for schooling. In the preceding period of approximately three and a half years, the evidence shows that Mrs Simpson continued to provide the following services to her daughter: - (i) Her anti-convulsant medication was continued every eight hours. (ii) The plaintiff was taken to the Prince of Wales Hospital for therapy on a daily basis. Mrs Simpson continued to provide therapy for her in the home on a regular basis, applying the techniques taught at the hospital. (iii) Mrs Simpson undertook two days of duty each week on the carer's days off. This involved at least twelve to fourteen hours each day on call of which six to eight hours were "doing hours". (iv) From the ages of three to four years the attendance at the Prince of Wales Children's Hospital was reduced in frequency because of a cut in services (T 12 line 52). (v) Between the ages of four and four and a half, Mrs Simpson took the plaintiff to the Spastic Centre at Mosman two or three times per week for treatment. This involved a return journey of about three and a half hours. (vi) In addition to the two non carer days each week Mrs Simpson also undertook the night duties. This included the giving of anti-convulsant medication to the plaintiff and settling her down after this had been given. These duties clearly embraced a commitment to a provision of services which went quite beyond ordinary responsibilities of motherhood. In her unstated manner, Mrs Simpson said: - "I certainly put in many hours a day" (T 57 line 15). This included the time when the carers were otherwise in attendance. The Third Period - between age 4.5 years and the present time. 408 The written submissions addressed the period to the date of trial and, as a matter of convenience, to 30 June 2001. There is no suggestion that there has been any change during this year in the level of care provided, except for the fact that Kevin, one of the regular helpers, left the Simpson's employ. 409 As might be anticipated, the evidence is particularly imprecise in relation to the span of 16 years involved in this period. Generally, the evidence establishes that a considerable number of carers were employed on and off over a period of time. A list of these carers (itself very imprecise) is contained in Exhibit "XX". A further copy of Exhibit "XX" was annotated as Exhibit "YY" to show when carers were employed for six days per week rather than five days. 410 The evidence established that carers were not always successful. There was clearly a difference in quality and the competence of the carers varied from time to time. Some were not competent at all (Mrs Simpson at T 56 lines 23-25). 411 As a generality it seemed that Mrs Simpson provided either two days of care per week or one day, depending on whether the carers took one or two days off. There were obviously periods when there were no carers there at all. When his happened, Mrs Simpson was obliged to provide all of the services for the entire period. The exact nature of these periods is not stated with any precision. 412 Mrs Simpson said from about the age of four and a half until "Kevin arrived on the scene" (T 57 lines 6-7) which occurred in about December 1999, Mrs Simpson put in "a lot of hands on hours" each day. Generally, Mrs Simpson continued to do the night duties and there were often occasions when she was required to do the cooking for Calandre when a carer was not competent to do so. 413 The general picture painted by Mrs Simpson is that throughout the time since Calandre was about four and a half and went to school, she has continued to provide a considerable amount of time to the care of her daughter, despite the presence of paid carers throughout the years to the present time. In particular, she has provided care on the days when the carers were not working whether that be for one day or two days a week. Moreover, she has provided nightly care and other aspects of care, even on the days when the carers were working. It is a fair inference that she has, on many occasions, needed to supervise the carers and to compensate for their lack of skill or attention when this has become necessary. My general impression is that Mrs Simpson has under estimated significantly the attention she has given her daughter. She was not a woman given to overstatement of the situation, quite the contrary. 414 At the time the hearing commenced there were two carers. These were Maria and Kevin. Maria has helped Mrs Simpson out on many occasions over the years whereas Kevin had been with her for about 14 or 15 months. Maria was paid $600 per week for a six day week and Kevin was paid $250 per week for a six day week. Later, during the hearing, Kevin left Mrs Simpson's employ. An analysis of the Plaintiff's claim 415 The plaintiff's claim is broken down into the three periods I have identified. 416 In relation to the infancy period, a period of about 10 months from 26 July 1979, the plaintiff's claim is for eight hours a day additional care. Applying the rates supplied by Mrs Jackman (Exhibit "HH") the plaintiff calculates this period of the claim at $15,716. 417 The plaintiff maintains that in formulating the claim at this amount, it has allowed for imprecision; the fact that "mothering" would normally require 24 hours attendance on a new baby; and takes into account the further fact that Mrs Simpson would have been attending to the plaintiff's needs and, no doubt, other family requirements. It is argued that an allowance of eight hours a day in this period is "a fair assessment". 418 I agree that this is an unusual case in which the early period of infancy does contain within it periods of the provision of care which are of a special nature and which relate solely to the baby's disabilities. I have identified these in the factual analysis above. 419 I do not think however, that the claim as assessed reflects fairly enough the factors for which allowance is claimed to have been made. 420 I would reduce this part of the claim by 1/3 and allow a rounded off figure of $10,500. 421 In the second period of 10 months to age 4.5 years (a period of roughly 190 weeks) the plaintiff has claimed an additional two hours each day when the carers were employed plus a 24 hour attendant care claim on the two days when the carers were not working. The claim is accordingly for 58 hours additional care each week. This yields, by application of the varying rates set out in the plaintiff's schedules, $93,718. 422 I agree with Mr Levy's submission that the mere fact that the Simpson family were in a financial position to engage carers during this period, and indeed to trial, is not a disqualifying factor. The evidence I have recounted sets out in a fairly understated fashion the degree of care provided by Mrs Simpson. The evidence demonstrates the enormous amount of time Mrs Simpson put in to looking after her child. At one point in her evidence, Mrs Simpson, with an understandable degree of emotion, spoke of a feeling of guilt on her part associated with her belief that she should have "put a lot more effort and time into Calandre" (T 97 lines 40-45). When one looks dispassionately at the full fabric of the hours, days and weeks spent by Mrs Simpson in looking after her daughter, it is difficult to see that any feeling of guilt or inadequacy is justified. Rather, one is left with a sense of admiration for the perservance and endurance involved. 423 Nevertheless, a fair assessment of a moderate and reasonable allowance is called for, unaffected by emotional considerations. In my opinion, a fair assessment of this period would proceed on the basis that Mrs Simpson provided two hours each week day (ie 10 hours per week) together with the "doing hours" on the days when the carers were relieved of their duties. This means a total of 26 hours per week rather than the maximum claimed 48 hours. 424 I consider that it is also reasonable to allow a small amount of time over and above the "doing hours" to reflect the time Mrs Simpson would have needed to devote to the general organisation of the care regime for Calandre. 425 For this second period, having applied the rates contained within the schedules, the amount of gratuitous care is valued at $42,011.97, rounded to $42,010. 426 Both in relation to this period and the next, Mr Brereton SC has argued that a discount as high as 33-1/3% should be allowed against the cost of paid care to reflect the fact that carers provided other general services for the family. While this is undoubtedly true, it is very difficult to be dogmatic about it in relation to the question as to whether the discount should be allowed and, if so, the amount of any such discount. Mrs Simpson's evidence allows for the propositions that there were period of time when there were no carers and she had to undertake all of the tasks; there were period of time when the carers were not competent and Mrs Simpson had to do their duties so far as Calandre was concerned. It is reasonable to draw an inference that there would have been some give and take between Mrs Simpson and competent carers in relation to the duties they were each performing. It is not really possible to make any precise assessment about all of these matters. 427 It seems to me to be not unfair to make a moderate allowance in this regard. I propose to deduct 10% from the cost of paid care. This adjustment will be made in the head of damage relating to out-of-pocket expenses. 428 In the period 4.5 years of age to 30 June 2001, the plaintiff has calculated by way of an elaborate series of schedules that $396,706 should be allowed. 429 In the period between January 1984 to December 1990, the carers worked five days a week and Mrs Simpson made up the difference of the remaining two days. From the 1 January 1991 to 30 June 2001 the carers worked six days a week and Mrs Simpson made up the difference on the one remaining day. 430 At a combined hourly care level of either 38 hours or 26 hours per week, the plaintiff has claimed, having regard to the relevant rates set out in the schedules, the identified sum of $396,706. 431 Generally, the factual material demonstrates Mrs Simpson provided a similar level of care to her daughter during this extended period although no doubt it varied from time to time depending on the competence of the carers and other factors. As a generalisation she said that she put in "a lot of hands on hours each day" (T 57 lines 5-29). Certainly this was the case until Kevin arrived on the scene about 14 months ago. He has, as I have said, ceased employment at a point of time after the commencement of the hearing. The plaintiff has urged that a broad and conservative approach would allow a fair estimate of two hours per day on the days when the carers were in attendance. 432 I agree this amount is a fair estimate. Consistently, with my findings in relation to the period to age four and a half, however, I consider that there should be a reduction in the allowance affecting the "hands on" care time for the days or day (as the case may be) when the carers were not in attendance. 433 Consequently I propose to allow in the period between January 1984 and December 1990 two hours per day for five days per week together with a further eight hours per day for each of the two days the carers were not in attendance. I propose to make a further small allowance for organisational matters of three hours per week. This means that I am prepared to allow 29 hours for care rather than the 38 hours per week claimed. 434 In the next period from January 1991 to 30 June 2001 I have allowed two hours per day for six days per week together with an allowance of eight hours per day for the one day when the carers were not in attendance. Because of the general diminution in the time frame required for Mrs Simpson's level of care reflected in the increased working hours of the carer, I have not made an allowance for organisation in this period. This means that I have allowed 20 hours per week rather than the 26 hours per week claimed. 435 Applying the rates contained in the schedules which have been prepared to the hours I have allowed, this means that the amount of gratuitous care provided between January 1984 and December 1990 is valued at $114,608, and between January 1991 and June 2001 it is $189,800. 436 Judgment will not be delivered prior 5 November 2001. For this reason (as a matter of convenience) it is necessary to make a further allowance in the plaintiff's favour for the period of 18 weeks from 30 June 2001 to 4 November 2001. This is a period of approximately 18 weeks. Although I do not have any evidence for the circumstances in this period of time I will assume that nothing has changed in the plaintiff's household to affect the calculations as at 30 June and I will also assume the rates are unaltered. On that basis the plaintiff will be entitled to a further $9,360. 437 The value of past gratuitous services totals $366,278. Summary 438 The resultant calculations total $366,278 as follows: - (a) The first 10 months - $10,500 (b) Between the age of 10 months and 4.5 years - $42,010 (c) Between age 4.5 years and the 4 November 2001 - $313.768. Total - $366,278 Offset Calculation for Respite Care 439 It is common ground between the parties that the plaintiff has received respite care from the Spastic Centre of New South Wales between 9 May 1986 and 28 March 2001 (Exhibit "AAAA" para 35). It is further agreed between the parties that this respite care has been to the value of $246,544.76. The plaintiff in its written submissions has volunteered that "for expedient calculation" this sum is to be offset against the plaintiff's claim for past gratuitous services. There is no dispute about this from the defendant's camp. In its submissions the defendant suggested that the offset be allowed against the cost of paid care but this was, no doubt, because the defendant's submission in relation to past gratuitous services yielded a much lower figure than the offset amount. 440 The respite care is, in truth, an offset against either or both of paid past care and past gratuitous services. The rationale is this: While the plaintiff was receiving respite care, the theory is that her mother and the paid carers were "at ease", so that the calculations which are designed to reflect the cost of paid care and the market value of gratuitous services need to have an offset to reflect the cost of the value of the period of respite care. While the theory is explicable, the practice may have been somewhat different. There is no doubt that both Mrs Simpson and the carers may well have had duties to perform in relation to Calandre's needs arising from her disabilities, even when she was in respite care. A whole range of services suggest themselves: For example, washing, cooking, telephone calls, arrangements, making medical appointments and arranging therapy. 441 The practical reality of this situation is sufficient, in my view, to cater for all of the various suggestions made on the defendant's behalf which suggests that there should be further reductions or diminutions affecting the assessment of past gratuitous services. The plaintiff has offered to give credit for this very substantial amount of money and I propose to accede to the request. When the agreed offset in the sum of $246,544.76 is applied against the plaintiff's claim for $366,278 the resultant balance is $119,733.24, rounded down to $119,730. 442 This is the amount I propose to allow as the final figure for past gratuitous services. 443 Before leaving the topic, it is necessary to say this: It will be apparent that I have not attempted to deal with every single matter raised in the written submissions related to this topic. Mr Levy, for example, branded Dr Bowers' assessment of the hours necessary for gratuitous care as "miserly". It is not necessary for me to resolve whether this label is appropriate or not. It is quite clear that Dr Bowers did not have the advantage, when compiling his report, of the extensive evidence provided in the hearing by Mrs Simpson. Another matter related to the tension between paid care and gratuitous services. Mr Brereton maintained with a degree of force that the provision of paid carers in the Simpson family simply eradicated the need for Mrs Simpson to provide any services. It will be recalled that it was his submission, that once the plaintiff went to school, no allowance for gratuitous services should be made at all. It has not been necessary for me to deal with this submission in any extended manner because the evidence of Mrs Simpson's devotion to, and diligent attendance upon her daughter simply outweighed the propositions advanced by Mr Brereton. It does not automatically follow, in my view, merely because carers are provided, either in the past or in the future, that the role of a parent, relative or friend is brought to an end so far as the provision of gratuitous services are concerned. Of course, in an ideal world it would be hoped that this might possibly be the situation. Reality is very different. This case is a good illustration of the reality which endures. Mrs Simpson's devotion and attention to her daughter remained at a very high level notwithstanding the relief that was afforded from time to time by the presence of paid carers. These comments will have a degree of impact as well when I come to consider the claim for future gratuitous care. 10. Interest on past Gratuitous Services 444 The plaintiff claims interest on the value of past gratuitous care which has been provided by Mrs Simpson. There is no dispute between the parties in relation to the awarding of interest as a matter of principle (Grincelis v House (2000) 74 ALJR 1247 at 1252 para 20). 445 In conformity with the decision in Grincelis, the applicable interest rate is half the rate provided for in Schedule J. This has been identified by Mr Cumpston to be 6.86% (T 1060 lines 34-38; Exhibit "MMM"). It is necessary of course to allow an offset in relation to interest on the respite care offset itself. Interest on the amount of $246,544.76 at 6.86% over the 14.18 years between 9 May 1986 and 28 March 2001 when respite was received is $250,197.55. 446 The calculation of interest on the claim which has been allowed for past gratuitous services at $366,278 at 6.86% over 22.33 years yields $561,078.54. Applying the interest offset of $250,197.55 to the primary interest calculation, the balance is $310,880.99, rounded to $310,880. 447 I allow $310,880 as interest on past gratuitous services. 11. Future Gratuitous Services 448 The plaintiff claims $186,329 representing the value of probable future gratuitous services. The elements of this claim are: - (a) Short term gratuitous service which will be necessitated by the plaintiff's transition from living in the parental home to full independent living. The plaintiff claims $11,206. (b) Long term gratuitous services arising most probably from the plaintiff's inability to speak. The plaintiff claims $129,038. (c) A continuous life long need for the plaintiff's family and/or friends to receive instructions in the use of the plaintiff's communication equipment, assistive devices and associated technology. The plaintiff claims $44,284. 449 Mr Brereton labelled this claim as "one of the boldest and most outrageous claims in the case". 450 Mr Brereton pointed out that while, no doubt, the plaintiff's family and her mother, in particular, will continue from time to time to visit her and engage with her and check on her, none of this is in the satisfaction of a need created by her injuries. It was senior counsel's contention that damages for future gratuitous care on top of a full future paid care regime would be double compensation. As a subsidiary argument, Mr Brereton argued that, in the event any allowance is made for future gratuitous services during the transitional period when the plaintiff moves from her parent's home to her own independent living, this should be reflected by a reduction in the level of paid care allowed to her. 451 I am unable to agree with senior counsel for the defendant that this claim should be rejected out of hand. In a general sense, the provision of an appropriate level of paid attendant care will, in many cases, diminish the need for future gratuitous services, if not eliminate them entirely. It is necessary, however, to scrutinise the situation and circumstances of each individual case to see whether this is necessarily so. On the other hand, I accept that such a claim must be approached with a considerable degree of caution and a sense of moderation and reasonableness. The Transitional period 452 Calandre gave evidence that she would like to live in her own home with her carers independently of her family as soon as possible (T 453 lines 26-31). Mrs Simpson was of the view that the plaintiff's intention to live independently of the family was achievable. She went so far as to say that the family had no choice but to permit the plaintiff to live independently. She recognised the family would have to be involved in many ways with the plaintiff's living arrangements for this independent way of life to be successful (T 62 lines 25-55). 453 Mrs Simpson made it clear that it would be her intention, once Calandre commenced to live independently, to keep an eye on her daily to ensure that she was being treated correctly and that her needs were being met adequately. She thought that independent living arrangements would be set up within 6 to 12 months, allowing the plaintiff time to adjust. 454 There was expert evidence from Occupational Therapists and from Mr Kennedy-Gould, (a practicing Social Worker and accredited court visitor within the Protective Division) which supported Mrs Simpson's views and gave them the imprimatur of professional approval. The overwhelming conclusion from this body of professional evidence was that in a situation such as the plaintiff was likely to find herself in the course of establishing independent living, there would be a reasonably significant role for the family to play. At a practical level, this involved a number of consequences. First, the move from the secure position of the family home to independence was likely to be, for the plaintiff, "a fraught experience" (T 382 line 2). Secondly, the establishment of an appropriate relationship with carers in the independent living situation and the role of the case manager would require family assistance. Thirdly, decisions would have to be made regarding the plaintiff's housing requirements. Fourthly, the oversighting and supervision of all of these aspects of the plaintiff's independent living particularly in the early period, would entail the need to call on the family for considerable assistance. 455 Having regard to this body of evidence, I am satisfied that an allowance of some kind should be made for the provision of future gratuitous services during the transitional period. Mr Levy in his submissions suggested that a total time of approximately 430 hours might be required during the relevant 12 month period. In my estimation, a little less than this would be reasonable. I allow $10,000 for these services. Long Term Gratuitous Services related to personal communications 456 This is the largest component of this claim for future gratuitous services. Mr Levy argues that the plaintiff will need to maintain continuing relationship with member of her family and friends. In some of these areas, it will be appropriate for this communication to proceed on a face to face basis. Since the plaintiff is unable to speak, these communications will need to take place by way of personal attendance. 457 For example, family members will need to spend additional time with the plaintiff to communicate with her patiently in order to maintain an intimate family or social conversation. These communications will take considerably longer than they would if the plaintiff were not disabled, perhaps double the time they would normally take. 458 The argument concludes by asserting that the plaintiff's family and friends will have to willingly ie, gratuitously expend at least three and a half hours per week of additional time to assist the plaintiff with her need to maintain such relationships. It is on this basis that a claim for $91.00 per week has been made. Projected over 55 years - the period of life expectancy urged by the plaintiff, - the claim for $129,000 was ultimately fashioned. 459 I am not satisfied that this part of the claim has been established. Clearly, the plaintiff will have a need to continue relationships with her friends and family. Equally, those persons will have a social need to continue their friendly and loving relationships with her at an appropriate level. Neither of these needs, in my view, amount to a need created by her injuries. Nor will the extra time needed to communicate with the plaintiff in this social aspect of her life be the satisfaction of a need created by those injuries. I am not prepared to accede to this aspect of the claim as being allowable in law. Instruction of non carers and use of equipment 460 The plaintiff has argued that family and friends will need to have some knowledge and familiarity with her equipment in addition to the knowledge acquired by the carers. I accept that this is reasonable so far as it relates to an additional safety measure for the plaintiff's benefit. 461 Mr Levy correctly concedes that there is no direct evidence in support of this claim but suggests that, in any event, the absence of precise evidence does not detract from the reasonableness of the claim. He points to the evidence given by Ms French that it would be necessary to allow some 8 to 12 hours per annum for the training of carers in the use of this specialised equipment. By analogy, it is suggested that this estimate could justify a training period of eight hours per annum for each of eight persons, being family and friends. 462 Again, applying the market cost of providing assistance to adult disabled persons in the community (Exhibit "HH") that is $26.00 per hour, a claim for $32.50 per week is made. This was projected over the span of the plaintiff's remaining years - according to the plaintiff's contention a further 55 years - to yield $46,000 approximately. 463 In my opinion, this is an unnecessarily precise way of attempting to estimate a necessarily imprecise allowance. I agree some sort of allowance should be made but it needs to be considerably less than the claimed amount. In my opinion $15,000 would represent a reasonable allowance. 464 As a consequence, I have allowed the first and third of these claims for future gratuitous services and disallowed the second. 465 In relation to this head of damage I allow a total of $25,000. 12. Future Attendant Care The scope and complexity of Calandre's care requirements. 466 The plaintiff requires high calibre care, structured in a regime designed to serve her particular needs, and provided by well qualified, experienced and vigilant carers. As has been described, the plaintiff is unable to perform any of the tasks of daily living on her own, and relies completely upon the assistance of employed carers for dressing, showering and feeding and all aspects of daily living. She requires 24 hour care. There is no dispute about this between the parties, though the form in which this care will be structured, and the costing components, remains a matter of contention. 467 In these circumstances, the quality of the plaintiff's life experience and indeed her survival depends upon the provision of proper and thorough care. This is manifest in a number of ways, all of which have been acutely appreciated and expressed by the plaintiff and her mother in their respective oral evidence, and confirmed by experts from the fields of occupational therapy, rehabilitative medicine and social work. 468 Firstly, it is the task of the carers to ensure that the plaintiff is in good health, and to maintain that situation through the provision of vigilant care. The level of Calandre's susceptibility to illness and complications depends upon the manner in which her carers assist Calandre in the most basic of tasks, and any shortcoming in the standard of care provided to Calandre has the potential to cause quite serious consequences. The most striking example of this, and a risk flagged by a number of experts, involves careless feeding of Calandre. In her evidence, Calandre described an incident already mentioned, when her carer had tried to feed her too much at once, and she started to choke. Following this incident, Calandre has been very conscious of the problems she can have with food and stays away from food that she knows will cause her trouble (T 455). Calandre has also said that she has learnt from this experience that she cannot have carers who make her upset (T 456). 469 Mrs Simpson stated that if the plaintiff was fed carefully and the carers fed her properly as instructed, there should be no reason whatsoever for the plaintiff to choke (T 50). Mrs Simpson has never seen her child choke, she has seen occasions when Calandre has coughed her food up (T 77). Extra care when feeding is needed because she has difficulties in swallowing, and if this care is not taken she will just vomit up the food (T 76). As has already been described in this judgment, feeding Calandre is a long and messy process. This is because of involuntary tongue movements. The carer must wait until Calandre's mouth is open before she can be fed, her head has to be positioned correctly and she has to be reminded to try and keep her tongue in her mouth (T 31). 470 Professor Breslin confirmed the importance of proper feeding as a vital factor in promoting Calandre's good health. In his report dated 23 November 2000 (Exhibit "V"), he said: - "It is absolutely critical that her carers look after her feeding needs. It is important that she have empathetic and trained carers who will feed her appropriately and will detect early signs of respiratory infection or tracheo-bronchial aspiration. This requirement will be life-long" (page 3 of report). 471 Dr Buckley (consultant in rehabilitative medicine) acknowledged that it was necessary for Calandre's carers to carefully observe her during eating, and to develop a plan of management should she have difficulties in swallowing (T 394). That is, her carers would have to ensure that the speed of eating was appropriate, that Calandre had correct posture during eating and that there was correct consistency in her food. They would also have to be vigilant in seeing that any signs of lung difficulty was treated at an early stage, and be equipped with knowledge and skill about techniques of clearing the airway in the event of major aspiration of a large lump, for example (T 394). 472 Secondly, on a more emotional level, the plaintiff's enjoyment of life correlates with the extent to which her carers are able to minimise the impact of her disability on a daily basis. This has been described as a "barrier free" environment by the occupational therapist Mrs Crowe (T 347). It is the carers' role to facilitate and encourage Calandre's participation in activities and relationships that she herself has chosen, and this in turn requires that her carers have particular qualities and competencies. Ms French, an occupational therapist with extensive experience in treating children with cerebral palsy, described the sensitivity and balancing involved in a role which requires carers to co-ordinate the activities of a person physically incapable of doing so, without commanding what these activities are and how they are to be undertaken. In her oral evidence, she said: - "They have to understand their role very clearly and that's where it is difficult with someone who requires such high levels of carer input, to strike the balance of being an assistant without being a director, and respecting the client's rights and wishes. I mean, there are many instances where the client may say "well, I want to go and do X", and the carer will say "no, I don't think that's good for you", so because the carer is in the role of being dominant, and the one most in control in lots of situations, there is often conflict that is brought up with well, you know, the carer wants to do, or doesn't agree with the client doing what they are doing, so they have to be given good instruction on their role and how to facilitate without directing, and being there, being there in a person's place 24 hours a day without being invasive and that's a delicate balance" (T 319). 473 And later: - "… there is lots of intimate activities that have to be engaged in as a carer with a client so there has to be a respect of that level of intimacy and being able to maintain a person's dignity throughout that personal care, those very personal and intimate activities that have to be performed on a daily basis" (T 319). 474 This sensitivity and respect for the client, required of carers, is especially significant in Calandre's context. Calandre strongly conceives of her own capabilities and has a clear vision of what she would like her life to hold for her. In her evidence she emphasised that she could not have people running her own life (T 708), and related her experience with a carer who "almost ran her life", and the feeling of desperation and sadness it had engendered in her. Calandre recalled that this had made her feel "frustrated and so down", so that she almost wanted to kill herself (T604). Mrs Simpson stated that after an occasion when Calandre had felt especially humiliated by this carer, and before Calandre had left her home for respite care, she had said to her mother "If she's here when I get back, I will fire her personally". Mrs Simpson discontinued this carer's employment that day (T 80-81). 475 Moreover, Calandre has lived with the help of carers for almost all of her life and has a well developed sense of what constitutes appropriate care for the satisfaction of her needs. Calandre believes that her carers would need to have worked with people with cerebral palsy before (T 707), they would have to be skilled in first aid (T 708) and she would want to ascertain whether they were very patient and whether they did, or did not, get frustrated (T 706). She explained that when she becomes frustrated with her carers (and herself), she performs tantrums (T 461). Mrs Simpson has described that it is very hard to control Calandre when she is upset, often she has to walk away for a while and then come back and try to reason with her (T 19). The plaintiff is a very determined person, and when she is displeased or unpleasant it is very hard to "bring her back down" (T 19-20), and the tantrums can last for up to an hour or more (T 20). 476 The demands likely to be placed upon the plaintiff's carers are considerable because of the very severe nature of Calandre's disability and the all encompassing scope of duties necessitated by it, and the level of training and competence required is substantial. In her report, Mrs Crowe outlined the duties to be performed by carers and the competencies called for. These passages are informative and are worth quoting at some length: - "During her lifetime Ms Simpson will require high caliber (sic) carers who: · Understand cerebral palsy and can cope with personal care issues, basic handling and transfer techniques · Are sensitive to issues that may come up such as health, changing relationships with family, carers and friends · Are physically fit · Have the patience to cope with slow communication · Are computer literate and have the ability to work with and maintain sophisticated electronic equipment · Can ensure that expensive equipment is maintained in good working order · Contribute their unique skills within the team Ms Simpson's carers would require ongoing consultation and training in various aspects of Ms Simpson's care including manual handling techniques to make their workplace safer and prevent injuries to themselves. Duties would include: · All personal care including bathing, grooming, nail care, toileting, dressing and undressing. · Assistance with all transfers · General health and skin care, administration of medication. · Supervision and care during the night- especially if not well. · Preparation of meals and assistance at meal times · Supervision, assistance and guidance with all activities during the day · Emotional support and companionship · Purchase and care of clothing · Housekeeping including light cleaning, laundry and some household shopping · Supervision of cleaner doing heavy cleaning. In addition, they would be responsible for overall household management and some day-to-day financial management." 477 (Exhibit "FFF" (3), plaintiff's bundle pp 813-814; which is Supplementary Report 18 June 2000, pp 6-7). 478 Finally, the high level of responsibility for physical care placed upon Calandre's carers, and the consequent physical exertions, should not be underestimated. As has already been described, in detail, Calandre has multiple physical disabilities caused by her athetoid cerebral palsy. The abnormal muscle tone that is integral to this condition affects her limbs, trunk, head control, and the muscles controlling her oral motor functions, to the extent that she is incapable of attending to any daily tasks independently. The task of transferring Calandre from bed, first thing in the morning, is illustrative. Calandre must be moved into the sling of a hoist so that she can be lifted out of bed, and this is especially demanding on carers in a physical sense. As he watched the video that depicted Calandre's transfers from bed (Exhibit "ZZ"), Dr Buckley observed that as the carer lent over and pulled the sling underneath Calandre, the carer's back was at considerable risk (T 444). Participants in the care industry are notoriously prone to physical injury, such as lifting type injuries (T 377). Mr Kennedy-Gould presented the view that, because of the unremitting nature of the demands made by clients, carers themselves need to be aware of their own responses, levels of energy and suitability to continue with the work (T 378). 479 Dr Buckley also gave evidence that fit carers would be required to care for Calandre (T 394). Notably, manoeuvres that would be applied in the event of Calandre experiencing major aspiration problems call for "some strength" and confidence on the part of the carer to apply the technique with sufficient vigour so as to ensure success (T 395). He pointed to the Jendrassik manoeuvre, where a carer would need to stand behind Calandre and sharply pull up on her abdomen, towards the chest, in this way compressing the chest and dislodging the piece of food (T 395). 480 The combination of the severity of Calandre's physical incapacities and her demanding character places extensive obligations on her carers, and the scope of these obligations and the consequent burdens placed upon carers are considerable. The proposed care arrangements. 481 The question of the structure of the regime for future attendant care has been the subject of considerable contention in this case, however both parties have based their submissions as to reasonable future care for Calandre on the basis that she will shortly live independently of her family, in her own home. Before the various alternatives which have been proffered in this case are outlined and assessed, it is important to note that the organisation of the care to be provided to the plaintiff should be based on an individualised approach, and an approach that is predicated on the fact that Calandre's circumstances - her physical circumstances and social environment - will change (Mr Kennedy-Gould, T 375). It is also important to note at the outset that the level of effectiveness of any care regime depends upon its detail - co-ordination in matters such as the continuity of carers, transport arrangements, physical access to educational, leisure and medical facilities impacts upon the success of the care regime as a whole. Providing care to the plaintiff has been said to be analogous to a jigsaw puzzle, and if one interlocking piece is missing, then problems arise (Ms Crowe, T 347). The alternative care arrangements in this case are to be considered with these observations in mind. 482 Three care regimes have been suggested as being suitable arrangements for the plaintiff. They are a 24 hour rostered care regime arranged in 8 or 12 hour shifts (more lately 12 hour shifts), a live-in house couple arrangement, and a regime based on daily shifts of 24 hours supplemented with a second shift of an hour per day to facilitate the performance of heavier and more intensive duties. The plaintiff submitted that the arrangement based on 12 hour shifts was not only the most appropriately analogous to her needs, but also that the other two arrangements, contended for by the defendant, were unworkable and unreliable. The defendant submitted that the costs involved in the 12 hour shift arrangement were unreasonable and that the 24 hour live-in shift care, or the house couple regime in the alternative, adequately catered to Calandre's needs and at costs that were not disproportionate to the level of care she required. (a) The Live-in House Couple Arrangement. 483 The plaintiff has been cared for by a live-in house couple in the recent past. This arrangement lasted for three months, until the woman left to return to her country of origin (T 712). Further, the plaintiff has claimed care by a house couple until recently, it was only in the Further Amended Part 33 Statement, filed 3 November 2000, that the current claim for care by multiple daily shifts emerged. 484 The plaintiff agreed that in her experience the house couple arrangement had sometimes provided a good working relationship, and that she had built a very strong bond with these carers at the time. However, she stated that this had not been the case all of the time, because she had to "think about their relationship sometimes" and there had been occasions when her carers had planned her care according to their own inclinations (for example, if they wanted to go to bed early she had to also, which she thought was "unfair") (T 714). 485 She thought this arrangement could create problems in the future, because she envisaged that problems in the relationship between the carers would encroach into her life and she asked "why would I need that?" (T 706). Even if the live-in carers were not involved in a relationship, she perceived that they could still fight between themselves, and she had seen that "100 times" (T 706). 486 Despite the plaintiff's preference against this alternative, there has been some evidence to recommend this type of care arrangement. One of the plaintiff's experts, Dr Buckley suggested a House Couple in his first report dated 13 March 1998 (Exhibit "U" p 6, Plaintiff's copy bundle p 605), and in his oral evidence he justified this recommendation by citing a number of perceived advantages. He felt that care by two people simultaneously was preferable in that it avoided slow and inconvenient transfers by hoists and made the task of lifting easier for carers and the disabled person, and he had understood that it was a relatively inexpensive way of providing care from two people, which he thought the plaintiff required (T 399-400). Dr Buckley also stated that in the last decade some of his own patients had been cared for by house couples, and he observed that these arrangements had worked well for the patients and he had not encountered any reason why this arrangement should not continue to work well for his patients (T 400). Dr Buckley changed his opinion in his second report (9 December 2000, Exhibit "U"(2), p.3, Plaintiff's copy bundle p. 612) only because he had been informed by the plaintiff's solicitors that there were difficulties obtaining a house couple on a practical basis (T 391). He said in his evidence that in these circumstances, he came to conclude that an alternative arrangement could be by shift carers, though he agreed that the preferable arrangement would be a live in house couple (T 401). 487 This type of arrangement was recently endorsed by this Court (Beck v State of New South Wales & Anor [2001] NSWSC 278 where a weekly allowance of $3,472 was accepted). 488 While appreciating that there is much in this evidence to recommend the engagement of a House Couple, there are significant aspects that militate against its applicability in this case. Several experts have commented upon its flaws. Ms French and Dr Kennedy-Gould both gave evidence that in their experience House Couple arrangements have not worked successfully for any period of time (French T 322, Kennedy-Gould T 379). Often, for example, the people attracted to this employment include people who are looking for a refuge themselves through economic necessity, and often one member of the house couple would have had experience in the care industry and the other might not have (T 379). The intensity of a live-in relationship between carers and client, in circumstances where a high level of care is required to be provided by them, and the difficulties associated with situations where one of the carers becomes sick, or where the couple leave the employment, render the impact of this care arrangement to be more negative than positive (T 323). 489 However the most significant and telling factor against the suitability of this care regime is that its availability is extremely uncertain. Mrs Blackman (Director and Senior Consultant to Dial-An-Angel, a national agency that provides home help services) gave evidence that it is difficult today to find a suitable house couple. She had recommended this arrangement in her report of 20 April 1998 as the most realistic way of providing intensive domiciliary care for the plaintiff, and she had noted advantages such as the possibility of incorporation of handyman garden services into the duties performed by the house couple (T 781). Mrs Blackman's opinion has not changed (T 778). However, she believes that it is harder today than it was between 1995 and 1999 to find a suitable house couple, because during that time people with the appropriate skills moved from country areas for this work (T778). Dial-An-Angel does not have a house couple available for employment at the moment, and in the last two years, no house couple had applied to the agency for employment (T 779). The last house couple placed by Dial-An-Angel, in 1999, were placed at a cost of about $1,850 per week (that cost covered five days, and the couple had their own self contained unit and facilities) (T 781). 490 Certainly, Mrs Blackman stated that if requested, her agency would locate a house couple, she had never not been able to fill a client's requirements and she had never "left a client in the lurch". She had no idea about how long it would take to find a house couple, and so the need arises for a suitable care arrangement to be implemented in the time before a house couple can be found (T 780-781). 491 The questionable availability of this type of care, and the uncertainty of its longevity, even if availability difficulties are surmounted, renders this alternative inappropriate in a practical sense. It remains a possibility but it would be unwise, in my view, to base a care regime around it. The likely cost of such an arrangement, which was one of the options preferred by the defendant, is a useful parameter against which to assess the various contentions. The plaintiff needs, quite reasonably, a care regime that can be depended upon as reliable in that it at least has the potential for continuity. Certainly, the plaintiff's needs may change from time to time and a care regime must be flexible to adapt itself to her changing context and expectations, however this by no means equates with an arrangement that is inherently unstable and unpredictable from the outset. (b) One carer on a 24 hour shift, with an extra carer for an hour every morning. 492 The defendant proposed an alternative care regime for the plaintiff which would comprise a 24 hour a day live-in carer, with assistance from another carer for an hour each morning to help with personal care tasks. This arrangement was suggested by Dr David Bowers, a Consultant Physician in Rehabilitation Medicine (Spinal Care units at Royal North Shore and Westmead Hospitals) in his report dated 5 February 2001, p 8 (Exhibit 102), and costing estimates for this type of care were provided by HANDS (Home Assistance 'N Domestic Services) (Exhibit 106). 493 Dr Bowers believed that the plaintiff did not possess a medical requirement for two people to care for her other than an extra hour of assistance in the morning, and he stated that if a patient such as the plaintiff was being discharged from his spinal unit he would not insist that two people be present throughout the course of the day to care for them (T 1472). Indeed, it should be mentioned here that the care regime favoured by the plaintiff does not incorporate care by two people at once. 494 According to Dr Bowers, it was not unreasonable in Calandre's case for one single person to provide 24 hour care for her (T 1471), and he did not agree that it could be fatiguing for one person to look after Calandre's needs on a 24 hour basis (T 1472). Dr Bower's recommendations were based on his consideration of what was "reasonably medically necessary", a standard which, in turn, was devised in relation to a contemplation of the care requirements of his spinal patients (T 1476). 495 Two criticisms must be levelled against the suitability of this care arrangement - the viewpoint upon which the proposal for this arrangement has been founded, and its inapplicability to the plaintiff's situation. 496 Firstly, Dr Bowers candidly revealed that his estimation of what constituted reasonable care for the plaintiff was based on his experience in assessing care requirements for his patients in the spinal care unit of the Royal North Shore Hospital (T 1475). At the time of giving oral evidence, Dr Bowers stated that there were no patients in his spinal unit who suffered from cerebral palsy, though from time to time there had been, and the unit has always had out patients who have cerebral palsy (T 1508). This equation of the plaintiff's care requirements with those of a spinal injured patient is unsatisfactory. Her impairments are particular to her disability and distinguishable from those of a patient who has sustained a spinal injury, especially a recently discharged patient with a spinal injury. 497 It is also important to note that Dr Bowers according to his definition, did not accept that the plaintiff has high demands for care. He said that his definition of high demands would encompass a patient who requires attention close to that of a registered nurse or registered nurse care (T 1471). Dr Bowers had examined the plaintiff for one hour. Certainly the plaintiff does not contend that registered nurse care is necessary in her situation. To assert however that the plaintiff does not have high demands for care on this basis alone, and in apparent ignorance of the circumstances where she is dependent upon the care of others for every activity of daily living, is in my view, unacceptable. The contrary has been readily established by the medical and therapeutic evidence called by the plaintiff. 498 Further, Dr Bowers' consideration of the plaintiff's attendant care needs must be understood in light of his concerns with the allocation of resources and "economic efficiency". Dr Bowers' concern with issues of resource allocation was evident in his opinion that the House Couple arrangement was "inappropriate", not only because he did not believe that the plaintiff needed two carers, but also because his preference would be "to save resources for other disabled patients" (T 1474). He conducted his own assessment of the cost of his proposed care arrangement, and found that an approximate cost of $2,000 per week for 24 hour live-in care was commercially available, an additional carer for an hour would cost about $25.00 an hour, and in his judgment he thought this was a reasonable cost (T 1475). The figure of $2,000 a week was based, however, upon an inquiry made about 12 months ago (T 1477). He recalled that the most "economically efficient" agency was HANDS (T 1477), and that the Dial-An-Angel agency was not used to assist with the discharge of patients from the spinal unit because it was generally found that more competitive quotations could be obtained from other agencies (T 1507). 499 Additionally, this care arrangement is impractical and cannot adequately cater for the plaintiff's needs. There are two aspects to this. The first is that there must be serious concerns about the capacity of the HANDS organisation to assess and provide this level of future attendant care. The second is that there are features within the arrangement itself which do not augur well for its successful implementation in Calandre's circumstances. 500 In relation to the limitations apparent in the HANDS organisation, it should be mentioned at the outset that HANDS has never placed carers to look after someone with cerebral palsy requiring 24 hour care at least in the period between 1998 and present (T 1519). Further, although in the last six months, HANDS has placed 24 hour support for clients, none of these clients suffered from cerebral palsy (T 1520). HANDS has not had any experience in providing care for a client with similar disabilities and care needs to those demonstrated by Calandre. Even in the context of this inexperience, HANDS did not seek to undertake a detailed assessment of Calandre's circumstances prior to preparing its report. HANDS' representative, Ms Phuong, agreed in her evidence that an intensive and detailed assessment would be required before any arrangement for such care (T 1519). She considered that in providing a costing, consideration of material from a care agency or rehabilitation specialist would not have made any difference (T 2070). In my opinion, this showed a complete lack of knowledge of the appropriate methodology required to make an accurate costing. 501 Ms Phuong estimated, in her report dated 2 March 2001, (Exhibit 106) that the cost of high support care for a 24 hour live-in carer, including meal allowance, started from $2,251.90 per week. The cost of an additional carer to work one hour per day, for a week, commenced at a cost of $220.85. The total cost of a 24 hour live-in carer and an additional carer started at $2,472.75 per week. In its submissions, the defendant suggested that $2,500 per week should be allowed for this level of care. 502 In my opinion, this costing is likely to be deficient in a number of respects. Ms Phuong agreed that the figures in the reports were "starting points", and that there could be increased charges beyond these figures (T 2062). She cited the example of when a carer is required to get up more than once in a night, since additional rates then accrue. She conceded that if more than one night time attendance was required then it would be impossible, in advance, to estimate the cost of care from her report (T 2062). 503 The selection process and employment structure of carers in the HANDS organisation generates misgivings about the appropriateness and consistency of the care capable of being provided to the plaintiff. HANDS has not produced written protocols of characteristics and skills required of carers who are tasked with providing high level support (T 1523). Ms Phuong gave evidence that the organisation's criteria for determining whether or not competence by a carer has been demonstrated is mainly "client satisfaction" (T 1524). When asked about the steps taken to ensure a carer's suitability, she responded that HANDS contacts clients to appraise whether they are happy with the services provided, and she could not say how the client's interests are safeguarded while the trial and error process of assessing a carer's competence is being undertaken in this way (T 1524). 504 Ms Phuong understood that the carers provided by HANDS were contractors, and by that she understood that they were self-employed. In circumstances where HANDS is responsible for finding replacements when carers are ill, the fact that carers have a substantial degree of independence from the organisation may prove to be unnecessarily troublesome and disruptive to the order of Calandre's care regime. Moreover, in a context where no clear expectations and requirements of carers have been established, this level of carer independence may prove to be significant. As has been delineated, Calandre's needs can only be satisfied through a care arrangement that is steady and continual, and where the provision of high calibre care is secured through the selection of carers with proven experience and qualifications. 505 I consider that the key question, namely whether the multiple shift care regime is necessary from a medical point of view, should be answered in the plaintiff's favour. Moreover, at a functional level, I do not consider that the 24 hour single shift regime is appropriate. 506 The risk of fatigue to carers is considerable and goes to the heart of the question of the standard of care to be provided to the plaintiff. In circumstances where the conditions of work for carers are less than optimal and consequently less than conducive to sensitive and competent performance of work, the risk that this could result in a compromise in the level of assistance provided cannot be underestimated. Ms Phuong, the representative of the organisation that offered the arrangement of 24 hour live-in care, agreed that if one carer was to manage a 24 hour shift, there would be a probability of fatigue; and that, if the carer became fatigued, then a situation might develop whereby the client would not necessarily receive full attention from the carer (T 2064). Miss Phuong also accepted that in 24 hour care settings, where one carer manages a 24 hour shift, there is usually a high turnover of carers (T 2064). 507 The likely pressures from this arrangement on carers are inconsistent with the realisation of a lifetime care plan designed to ensure the plaintiff's safety, good health and quality of life. (c) 24 hour rostered care regime arranged in 12 hour shifts. 508 The plaintiff claims the cost of a comprehensive care arrangement which incorporates itemised weekday, weekend and public holiday care, and is based on 12 hour shifts of attendant care each day, as well as domestic/housekeeping services, spring cleaning services and keep for carers, provided by the Dial-An-Angel care agency. There are several aspects to this: - (i) General advantages of a care regime based on shifts 509 A care regime organised in shifts has certain advantages. It has a definite structure and plan and this lends itself to predicability and order. This arrangement has been likened by Mrs Blackman of Dial-An-Angel to the organisation of regular shifts in a hospital, and she explained in it terms of a patient who has the same morning nurse every morning, that is the patient will develop a relationship with that nurse but they would not "go to pieces" when the night time nurse begins her shift (T 785-786). Indeed, Calandre has indicated that the proposal of shift care is attractive for the reason that it gives carers and herself a break from one another (T 706). 510 This care arrangement provides continuity of care, and in a physically demanding care regime, it ensures that carers are resilient and capable of undertaking their shifts (Mr Kennedy-Gould, T 379-380). Mr Kennedy-Gould gave evidence that he had, in his experience, seen some extremely effective 12 hour care regimes (T 380). 511 In my view, the plaintiff has demonstrated quite clearly that a shift care regime of this kind is medically needed. There are clear medical advantages which are likely to accrue to the plaintiff. These will have an important benefit to her safety, good health and quality of life. The absence of a 12 hour shift program, on the other hand, is likely to bring significant and real medical disadvantages. The position is far more complex than asserting, as the defendant did, that since the plaintiff does not need active care during the night, one single shift is sufficient with a bit of extra help in the morning. All the evidence negates the validity of such a simplistic approach. (ii) Managed Care . 512 The plaintiff asserts that this care arrangement should be a managed care arrangement, as opposed to a referred care arrangement. Managed care entails that Dial-An-Angel is contracted to supply staff to fulfil a client's requirements- that is the agency employs, pays, trains and cares for the staff members who form the team charged with a client's care (T 763). Referred care, on the other hand, occurs when a client gives Dial-An-Angel a brief of what they require, and then the agency selects appropriate carers, charges a placement fee and a contract of employment is drawn up between the client and carer directly. 513 It is easily conceivable why the managed care regime is preferred by the plaintiff. Experts have often expressed the undesirability of a situation where Calandre, or her family, had to interview and employ carers, as entailed by a referred care regime. Mr Kennedy-Gould recommended in his oral evidence that an agency, such as Dial-An-Angel, should be involved in the recruitment of carers because of their resources and wide ranging experience in terms of successful and unsuccessful care regimes. He noted the importance of expertise in staff supervision and recruitment to a client who does not have significant capacity to change their program, and concluded that the utmost rigour needs to be exercised in the recruitment of staff within this field (T 388). He expressed that he would be concerned about Calandre interviewing and employing her own carers directly because recruitment is a complex procedure, and the most effective care regimes have been those where a variety of people (client, family and agency staff) have been involved in this process (T 383). Calandre has herself stated that she believes that the agency will select suitable candidates, and then she will "interview and hopefully get the right person" (T 606). She said that she did not think this would be an easy task, but she wanted some say in who her carer would be (T 606). When asked whether she wanted to be responsible for employing carers, she replied "No, but with help yes" (T 606). 514 Counsel for the defendant directed attention to the fact that long term care arrangements, as Calandre requires, are most often implemented as referred care arrangements or placements. Mrs Blackman conceded that it was her opinion that usually wages for long term or permanent staff are negotiated between employers and carers (T 775). She stated that in the care of the seriously handicapped, most arrangements are private contractual arrangements between the client and agency referred workers (T 774), and she accepted that when she had been requested to provide costing estimates for Calandre's care in April 1998, based on the requirement of 24 hour live-in care, she had calculated them on a referred care basis (T 776). It is her practice to calculate costs on a referred care basis unless advised otherwise (T 776). Ultimately, Mrs Blackman said Calandre's care regime could be organised on a managed care basis (T 788 lines 30-35). Moreover, the defendant says there is no warrant for managed care for further reasons. First, it is disproportionately expensive. Secondly, since a case manager will be appointed, it represents an unnecessary doubling-up of activities. (iii) The components of the care regime. 515 The plaintiff has proposed a care regime that is extremely comprehensive, and covers all services which she would reasonably need performed for her. The elements of the regime include- (a) Rosters for weekdays, weekends and public holidays for care attendants in shifts of 8 or 12 hours (managed care) (Exhibit "HH" (3) p 4 - Plaintiff's copy bundle p 842). Weekday rates are set at $446.00 per 12 hour shift, that is $892.00 per day over 250 days each year, totalling $223,000. per year. Weekend rates are $482.00 per 12 hour shift, that is $964.00 per day, over 104 days a year, totalling $100,256. Public Holiday rates are $1,115.00 per 12 hour shift, that is $2,230.00 per day, over 11 days a year, totalling $24,530 per year. That is, the roster shift system of attendant care, where shifts are of 12 hours duration, comes to a total cost of $347,786 per year. (b) Keep for carers (based on average household expenditure, and not including the value of accommodation) (Exhibit "HH" (3) p 9 - Plaintiff's copy bundle p 847). Estimates of cost of keep in Sydney (November 1999) ranged between $28.06 and $32.66 per person, per day, for each of the seven days. The plaintiff has submitted that an average cost of $30.00 per person per day is acceptable, this is $210.00 per week, and $10,920 per year. (c) Domestic cleaner/ housekeeper (including washing, ironing, changes of bed linen, bed-making, the general maintenance cleaning of the home, attentions to hot plates, oven, refrigerator, freezer, preparation, cooking and service of meals and shopping for household provisions) (Exhibit "HH" (3) p 8 - Plaintiff's copy bundle p 846). At a cost of $17.00 per hour, plus GST, the plaintiff suggests that a minimum of 6.5 hours, per week, is required- this is $6,320 per year. (d) "Heavy Duty" Spring Cleaning (consists of the cleaning of windows, ceilings, walls, venetian blinds and the like). It is suggested that 4 hours of this work is required every 6 months, at a cost of $127.50 per visit, this is $255 per year. 516 In total, these four elements of a managed care arrangement constitute $365,281 per year, or $7,024.63 a week. 517 The defendant has contended that if multiple shift arrangements are to be preferred in this case, the costing and structure of care provided by HANDS is reasonable. Specifically, HANDS has suggested an arrangement that includes providing care on two shifts of 12 hours each day, with an additional carer to provide personal care assistance for one hour each day. The total cost quoted by HANDS for this care commences from $4,071.75. 518 It is necessary to state that HANDS does not normally provide shift cover for 24 hour care. Ms Phuong gave evidence that this type of care is too costly, and HANDS' funding body (the insurers with which it deals) has not approved the provision of care at a shift rate (T 1521). It is plainly unreasonable in circumstances where, not only is this organisation inexperienced in the provision of shift care, but where it has consciously chosen, as a business decision, not to offer this type of care, to place reliance upon HANDS for the provision of to provide care to the plaintiff. It is quite unsafe to attach responsibility for the complex and involved care required by Calandre to an agency that is anything less than thoroughly prepared and skilled. Nevertheless, the quotation from the agency provides a market estimate for the range of services under consideration. Conclusion on future attendant care 519 The various categories of care regime have yielded a wide range of market estimates. These range from as little as $2,400.00 per week to $7,000.00 for a managed care regime based on two shifts of 12 hours each day. In the middle stand quotations for a house couple in the vicinity of $3,500.00 per week approximately. 520 Against the background of these varying quotations, there are three other major matters relied upon by the defendant. The first that is not necessary for the court to "prescribe" a particular care regime for the remainder of Calandre's life. Realistically, the defendant says, it is quite likely that care regimes will change from time to time. Calandre may wish to move into institutional care such as the Venee Burges Home. She may wish to live in group accommodation. The best that can be aspired to is an overall estimate of what her reasonable needs for care will be and how they can reasonably be satisfied. Secondly, the point is made that long care term arrangements are frequently negotiated privately at rates below those charged by agencies. For example, the joint salaries of carers such as Kevin and Maria, who were working for the Simpson family at the time that the hearing commenced, came to $800.00 per week. Although Mr Brereton rightly pointed to the fact that this was very considerably below any of the quotations from the agencies, I do not consider that the salaries paid to these two carers enable a fair comparison to be made. Their employment was against the background of the family situation where Mrs Simpson was undoubtedly the overall and ultimate carer, and the supervisor of those carers. The hypothetical situation for the future assumes independent living by the plaintiff in her own home separately from her mother and family. 521 Thirdly, Mr Brereton placed reliance upon well established principles in relation to the assessment of damages in this type of case. These principles require that considerations of reasonableness and proportionality need to be applied. In particular, he stressed that the judicial task in assessing damages is to address what is required to meet the plaintiff's "reasonable requirements" and not her "ideal requirements". Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649, 661; Beck v State of New South Wales (supra) at 282). 522 While it is clear from my previous remarks that I have some reservations about Mr Brereton's second point, I am certainly in agreement with the first and third matters raised by him. Particularly in relation to the first point, I accept that it is neither necessary nor possible to prescribe a particular and absolutely precise regime for the remainder of Calandre's life. On the other hand, it is important not to select a regime which is unattainable, impracticable or likely to leave her uncared for in her later years. 523 So far as managed care is concerned, the plaintiff has identified a weekly care regime costing $7,024.63. On the assumption that the plaintiff will live for 55 years (the period alternatively contended for by the plaintiff) the projection yields a figure of $9,960,925 for future attendant care. In general terms, this may seem quite disproportionate and extravagant when compared to other satisfactory regimes. The difference between quotes from Dial-An-Angel for referred care and managed care reflect no doubt an allowable commercial margin of profit that the care market will either bear or reject. The difference between the two rates is so marked that, in my opinion, it is unreasonable to visit the difference of the more expensive rate on the defendant in relation to a life long care regime. Moreover, as Mr Brereton has rightly pointed out, the allowance of provision for a case manager may, generally speaking, remove the need for the advantages of managed care. 524 Nevertheless, there will be occasions during the plaintiff's life when the ability to call on managed care may be significantly important. The evidence clearly identifies a difference in function between the case manager and the agency which provides managed care (Mr Kennedy-Gould T 383 lines 4-21; T 388 lines 29-31). 525 In my opinion, the appropriate resolution of these issues is to allow the plaintiff a lifetime care plan based on the Dial-An-Angel quotes for referred care. It is, however, not unreasonable, in my opinion, to allow a further moderate component which reflects that for some periods of her life, Calandre may require managed care. The assessment of this percentage poses difficulties because it is impossible to foresee the future or to predict accurately difficulties which may arise from time to time. It is also necessary to bear in the mind that there may be periods when the plaintiff will be able to obtain attendant care of good quality at less than agency rates. All these matters are necessarily imprecise and are uncertain. 526 I consider that a fair and reasonable approach to the problem is to allow the plaintiff in any particular year 25% of the cost of care at the managed care rate and to allow the remaining 75% at the referred rate. Assuming a rounded off figure of approximately $4,000 per week for referred care on the basis of two 12 hour shifts, this means that $3,000 per week would be a reasonable allowance per week for three-quarters of the year. For the remaining quarter of the year, on the figures set out in Mr Levy's detailed submissions, an amount of $1,756 per week would result. 527 The total of these is $4,756 per week. This amount is necessary, in my view, to provide for the reasonable medical safety, well-being and longevity of the plaintiff for the remainder of her life. It is my intention to take into account those periods when managed care is necessary not only to take into account emergency situations, but where, for special reasons, it may be that the usual regime of referred care is not sufficient. The figure is intended to reflect and allow for the various contingencies for the provision of future attendant care which may emerge at certain times during the plaintiff's lifetime. 528 It is necessary to project the weekly figure at three per cent over the plaintiff's remaining life expectancy. I have already found this to be 51 years from her age of 22 years. This means that a further 50.67 years will remain from the anticipated date of judgment, 5 November 2001. I have calculated the multiplier for 50.67 years to be 1370.5. The projection of $4,756 per week at three per cent over the plaintiff's remaining life expectancy from judgment of 50.67 years (x 1370.5) yields $6,518,098. 13. Home Building and Architectural costs 529 The plaintiff claims the cost of modifications to the family home at Vaucluse ($159,963), to the family home at Palm Beach ($42,359), to the family home at Thredbo ($86,646), and the probable extra costs associated with a suitable home for the plaintiff to live independently of her family ($310,000). The total of this claim is $598,000. 530 The defendant has accepted that the plaintiff should be allowed the reasonable additional cost of a purpose built or modified home for Calandre's independent living, as costed by their own expert Mr Baker (estimator and quantity surveyor). However the defendant has contended that the plaintiff should not be allowed the cost of modifications to the Vaucluse, Palm Beach and Thredbo homes. Specifically, it has been submitted that it is unreasonable to impose the costs of modifying these three homes, all of which are owned by her parents, merely to increase the amenity to the plaintiff. It is asserted that the benefits to the plaintiff's health to be derived from such modifications will not justify making the defendant pay for them. In the alternative, the defendant submits that the costing estimates provided by Mr Baker, in relation to Palm Beach, Thredbo and the modified home for the plaintiff should be accepted, though the defendant accepts Mr Hardiman's estimate with regards to the Vaucluse home. (a) Modifications to Vaucluse home 531 The plaintiff claims that she will be an occasional visitor to her parents' home, and will stay there overnight. Presently, Calandre lives on the ground floor of this home, and her sisters' and parents' rooms are upstairs. She is not able to interact with the rest of her family in their bedrooms as she can only access the ground floor, and in order to access living areas of the home she must move through the kitchen and a minor corridor (Mr Hardiman T 834). Her parents have made some alterations to her living area to cater for her difficulties in mobility. For example, ramps have been placed at the front door and into her room. Additionally, her bedroom window has been removed and replaced with doors so she can go straight into her room (T 89). Mrs Simpson felt that she and her husband had done what was "adequate" in the way of renovations, and she agreed with the proposition that, to the extent that it had been necessary to make modifications to facilitate Calandre's accommodation in that home, they had been performed. When asked about her bedroom, Calandre responded that it was "awful" and that she hated it (T 460). She said that it is so small that she can't drive her wheelchair around in it and she hits the cupboard all the time. She said that her bathroom, similarly, was too small (T 460). Mrs Simpson gave evidence that Calandre is able to get around within her own home, though she does scuff some of the doorways and walls (T 89). A viewing of the video confirmed that Calandre's living quarters are far too uncomfortably cramped for the reasonable well-being of an adult disabled person. 532 The plaintiff proposes a number of modifications to the Vaucluse home, contained in the report of Mr Hardiman, dated 5 October 2000 (Exhibit "RR" 3). These include repaving the entry area and part of the path to eliminate steps, the installation of a passenger lift between the ground floor and the first floor, construction of a new guest en-suite to replace the facility demolished as a result of the lift's installation, construction of two new en-suites at first floor level and the provision of wardrobes to new rooms (that is Calandre's room and carers' room). 533 In answer to this, the defendant has argued that these modifications should not be allowed. The defendant points to the fact that the plaintiff will not continue to reside in this home as her primary residence as she intends to live independently, and that she has lived in this home for the last decade and is able to use the property in its present condition. In these circumstances, it is contended that to incur modifications that would increase her accessibility to other parts of the house, principally the first floor, do no more than increase amenity to the plaintiff and the cost incurred on the defendant cannot be justified. 534 In the alternative, the defendant accepts the cost estimate provided by Mr Hardiman of $159,963. Resolution 535 There can be no doubt that it is reasonable for the plaintiff assuming she has moved into her own independent home, to visit her parents and family from time to time and indeed, to reside there from time to time. There may well be occasions, arising from health concerns or medical treatment, which will require that Calandre return to the family home for extended periods. Her quarters at Vaucluse are uncomfortably cramped, poorly designed and badly laid out. They may have been barely adequate for her as a little girl, but they are no longer adequate. In my view, this part of the plaintiff's claim is established and goes well beyond mere amenity or convenience. In the scheme of things the amount involved is both proportional and reasonable. (b) Modifications to Palm Beach home 536 The Simpson family have owned a home in Palm Beach for about five years (T 92). Before they acquired this property, the family would holiday in Palm Beach, in other accommodation, every Christmas, and they have been doing so since Calandre was about two years old (T 91). Calandre has been included in holidays to Palm Beach because it is convenient in a geographical sense (T 38). It is definitely a place where Calandre has accompanied the family "quite often" (T 26). 537 In recent years, however, Mrs Simpson said that the family has spent very little time at their Palm Beach home (T 93). Calandre said that the house is rented out in the peak Christmas period, and family reasons have prevented the family from spending more time there (T 690). Mrs Simpson agreed that over the last four to five years, Calandre has travelled with her family to Palm Beach on occasional weekends, and that if these weekends were added, they would amount to about two weeks every year over the last five years (T 94). For this reason, she said that the only modification made was a ramp and that they "just manage" (T 92), additional costs are not considered by the family to be "justified at the moment" (T 93). 538 Calandre gave evidence that she would use the Palm Beach home more often if alterations were made to it, because she said it is "beautiful up there" (T 691). She drives her wheelchair across the grass, and she has been in the water (her father carries her), though not on each visit (T 691). 539 Calandre cannot circulate around the Palm Beach home on her own, she needs help (T 92). The first bedroom is her bedroom, and though entry into it is ramped, it is very small and basic (T 92). She cannot access the bathroom as steps lead up to it (T 92). 540 Mr Hardiman described the Palm Beach home as a two storey house, which has been renovated and extended a number of times, containing a number of different floor levels within the ground floor, the main bedroom is upstairs (T 827). 541 The modifications proposed by Mr Hardiman are based on the assumption that Calandre will only use the ground floor of the home. The modifications include the renovation of an en-suite adjacent to her room, new ramps at the entry at the east end of the home, in the lobby and from the living areas of the house to the beach, and the construction of a raised floor to eliminate changes in the floor level and to allow access to the bedroom and living areas of the home (Report of 11 September 2000, Exhibit "TT"). 542 The cost of modifications to the Palm Beach house is disputed between the parties. Mr Hardiman provided an estimate of $42,359, Mr Baker calculated a cost of $34,588. The defendant argues, firstly, that modifications to the Palm Beach house are not justified- the house can be used by the plaintiff in its current condition, and so again it is contended that the modifications do no more than increase its amenity to the plaintiff. Secondly, the defendant has submitted that if the cost of the modification of Palm Beach is to be allowed, the costing provided by Mr Baker should be accepted over that of Mr Hardiman. 543 It is appropriate at this point to evaluate the difference between the approaches of Mr Hardiman (called on behalf of the plaintiff), and Mr Baker (called on behalf of the defendant). 544 Mr Hardiman is an architect with extensive experience in consulting people with disabilities, companies and Government Departments in the area of alterations that are necessary to make their homes and buildings accessible. In preparing his reports for the plaintiff, he had regard to occupational therapy, physiotherapy, social work and speech pathology reports prepared in relation to the plaintiff's circumstances. 545 Mr Baker is a quantity surveyor, and also has extensive experience as a consultant in the area of costing construction works. He is also a consultant to "Rawlinsons Australian Construction Handbook", one of the authorities on construction costing. His understanding of the plaintiff's disabilities and needs was not based on occupational therapy reports, but on two medical reports that have not been tendered into evidence in this trial. Mr Baker conceded that he did not know how the plaintiff handled her wheelchair at the time he wrote his reports (T 1224), though he was shown the video Exhibit "PPP" which depicted the plaintiff's passage through her home in her wheelchair, and after watching this he felt that his opinion as to Calandre's ability to negotiate corridors was reinforced (T 1232). It is important to note, however, that there was no evidence as to the width of doorways shown in this video. 546 In addition to the difference in experience and expertise between the experts, the costing estimates provided by them were based on different texts. Mr Hardiman based his calculations on a number of texts, including "Cordells Building Cost Guide Housing", "Rawlinsons Australian Construction Handbook" and a number of texts specifically covering Australian Standards in adaptable housing and design for access and mobility. Mr Baker, in comparison, based prices in his report on the text "Rawlinsons Australian Construction Handbook", a text for which he works as a consultant. He conceded that Rawlinsons contained a "fairly limited section" on domestic construction as compared with commercial costings (T 1215), and accepted that the costing provided in "Cordells" was not unreasonable (T 1216). 547 The experience and knowledge of Mr Hardiman in building design and construction for disabled people with very specific needs, and his comprehensive and detailed approach in attempting to cater to these needs, is to be preferred to the approach of Mr Baker. Mr Baker's focus lies not with facilitating a living arrangement suited to the needs of the plaintiff, and costing consequently, but with minimising costs where possible. This is not to denigrate Mr Baker's skills but, it must be said, those skills in general terms, were not focused as appropriately on the plaintiff's disabilities as were those of Mr Hardiman. 548 The claim of $42,359 is in my opinion not unreasonable. Although close to the line, it is my view that the plaintiff should be allowed the costs of these comparatively minor changes to her parents' home at Palm Beach. (c) Modifications to Thredbo home 549 The Simpson family has owned a ski lodge in Thredbo for about one year longer than they have owned their house in Palm Beach, that is they have had it for about six years (T 95). According to her evidence, Calandre has only been to the Thredbo house on three occasions (T 690). On each of her visits, she stayed there for just the weekend (T 706), and her most recent visit was about two years ago (T 612). Indeed, when Mrs Simpson was asked whether the cost had been the reason why alterations had not been made, she replied that this was not really the case because Calandre had not been taken down to Thredbo that often (T 96). 550 Calandre has loved her visits to the snow. She said that she had been able to ski with the help of an instructor and in a special kind of toboggan. She said that it had been "fantastic" and that she could not put the feelings flowing from this experience into words. It had made her forget for a little while that she had a disability (T 612). However, she said that she managed inside the house only with great difficulty (T 612). Mrs Simpson noted that the house did not contain an adequate showering facility for her and there were steps into the house (T 95-96). 551 The Thredbo house is a multi level house with a top floor of mainly bedroom accommodation, a middle floor which is the main entry and which has a kitchen, dining room and some living space, and a sunken area which is a living room and part of another bedroom (T 828). Mr Hardiman's recommendations assume that Calandre will only use part of the ground floor, and there is no assigned carers' room or housekeepers' quarters. A new extension will provide a bedroom and en-suite, and both will allow for Calandre's wheelchair access, and the entry from both the street and car parking area will be paved with bitumen, including a ramp from the car park (Exhibit "UU", Report dated 29 January 2001, p 1071 of plaintiff's bundle). It is also proposed that a foyer area leading into the new room and en-suite will be added, as well as 3 internal doors and three track sliding systems (T 831). 552 Mr Hardiman costed these modifications at a total of $85,744. Mr Baker generally agreed with this level, however he noted that Hardiman had added an allowance of 28% as a locality allowance (to adjust the cost levels of the capital cities to make allowance for the additional cost of cartage of materials and the cost of importing and accommodating the labour necessary to carry out the works in more remote areas) yet he had not allowed for GST on this amount at a rate of 7.5%. Mr Baker also thought it necessary to increase the professional fee allowance that had been estimated by Mr Hardiman. Mr Baker's calculation was $86,646, and the plaintiff accepted this figure over Mr Hardiman's. 553 The defendant contends that the proposed modifications to Thredbo should not be allowed. Given the sparsity of her visits there in the past, the defendant presents that Calandre is unlikely to use Thredbo with much frequency in the future, and even if she were to do so, she is able to visit the property in its present condition. Moreover, the defendant has relied on the evidence of Mr Hardiman (T 832) to suggest that the proposed modifications would increase the value of the property in her parents' hands. Again, the benefit in amenity to the plaintiff is said to not justify the additional costs of the modifications. 554 I have come to the conclusion that I should accept the defendant's principal submission on this matter. Although the plaintiff has, not unnaturally, derived a good deal of satisfaction from her snow experiences, her visits to the Thredbo home have been few. I propose, later in this judgment to make an allowance in the plaintiff's favour relating to holidays generally. Such an allowance counter balances and takes into account the disallowance of this item. (d) Probable extra costs associated with a suitable home for the plaintiff to live independently of her family 555 Calandre has a strong desire to live independently of her family, in a home that is constructed or modified especially to facilitate comfortable living by addressing specific difficulties arising out of her disabilities. Indeed, she has been educated, as part of the Spastic Centre program, that with appropriate support, equipment and the right environment, she can live independently and be a participating member of the community (Ms Crowe, T 345). 556 Calandre has said in her evidence that she thought that her house should be "all special for me", and that it should always meet her needs (T 605). She said that there couldn't be any stairs, the doorways would need to be wide enough for her wheelchair, and her possessions would need to be within her reach (T 605). Her home would need to be spacious so that she could move around without worrying about hitting anything (T 606). 557 The plaintiff's case is that either of two proposals could facilitate an independent living arrangement, the first is the modification of an existing home, the second is the construction of a purpose-built home for the plaintiff. The plaintiff claims that her home should be located in the Randwick district of Sydney, which is reasonably close to her family's residence. The defendant has agreed that the plaintiff should be allowed the additional cost (over a standard home) of a purpose-built or modified home to suit her requirements for independent living, however the aggregated cost of this, including air conditioning, has been estimated by the defendant to total $132,697, whereas the plaintiff has claimed a cost of $310,000. This disparity in the estimations should be explained by reference to an assessment of the costing exercises involved with regard to each proposal. (i) Modification of an existing home 558 The plaintiff's proposal (contained in Mr Hardiman's report of 27 February 2001, Exhibit "SS") is based on the assumption that the home to be converted will comprise an average three bedroom brick or brick veneer house on level land, with a minimum block size of 750 square metres. The home must have room for additional accommodation requirements, double garage and hydrotherapy facility to be attached. At first this cost was estimated to be in the range of $363,720 and $366,096 (that is, these figures were arrived at by estimating that homes in the Randwick area, after conversion, cost between $1,063,720 and $1,116,096, and from these amounts deductions were made to allow for the price of land between $700,000 and $750,000). The plaintiff submitted that the average cost of the modification of an existing home was $365,000, however this was replaced with the figure of $294,709 after a number of items, totalling $68,291, all conceded as not necessary by Mr Hardiman during his cross examination, were deducted. In its written submissions, the defendant has "re-costed" these concessions at $80,029. If this exercise is the more accurate, Mr Hardiman's modification would be $284,971. 559 Modifications to an existing house that have been anticipated as necessary, and costed in Mr Hardiman's report dated 27 February 2001 (Exhibit "SS"), include:- 1. External Circulation - construction of new paths and ramps to the doorways to provide access to the house from the street and from the house to outdoor recreation areas (Exhibit "SS", p 1037 of plaintiff's bundle). 2. Circulation - all house areas will require access by Calandre, so some doorways will require widening, some rooms will have to be increased in size to allow easy manoeuvring. The windows in the rooms where Calandre spends most of his time should have the sills lowered to allow easy viewing when seated. A second skirting should be added to walls in heavy traffic areas to prevent wall damage by the wheelchair (Exhibit "SS", p 1038 of plaintiff's bundle). 3. Remote controlled external doors- including an electric motor to open the door and a door closer (Exhibit "SS", p 1038 of plaintiff's bundle). 4. In-wall insulation 5. Additional rooms, including Equipment Store, Carer Accommodation - new master bedroom (including storage area) with space for wheelchair access and easy access to own specially adapted bathroom; additional rooms for attendant carers (ie double bedroom, living area and en-suite/laundry with kitchenette, including external access with security locking system); furniture package for carer facility including electrical, linen and crockery, as well as for relief carer's facilities; provision of carer off- street parking (near to entry of the accommodation of the person being cared for) (Exhibit "SS", pp 1038-1040 of plaintiff's bundle). 6. En-suite - Existing bathroom to be kept for domestic helpers/ visitors and new bathroom to be built adjoining the plaintiff's bedroom allowing for a wheel-in shower area (and which will include accessible fittings, grab rails and hand-shower) (Exhibit "SS", plaintiff's bundle p 1040). 7. Ceiling hoist - built-in ceiling battery operated hoist and track from the main bedroom to the en-suite. 8. Accessible Kitchen - adjustment/modifications for wheelchair accessibility. 9. Electrical Services - new electrical mains service to ensure the safety of the service, and to allow for additional loads required by the new equipment including the light and power switches required by additional space requirements, air conditioning, hydrotherapy facility and security; provision and installation of intercom from front door to main areas with remote door release for main door (Exhibit "SS", plaintiff's bundle pp 1041-1042). 10. Carpet - new wool tufted medium use carpet throughout the house (Exhibit "SS" plaintiff's bundle p 1042). 11. Security system with external alarm - alarms on external doors with hard wired smoke alarms with controls at a level able to be accessed by carers (Exhibit "SS", plaintiff's bundle p 1042). 12. Additional items - additional window furnishings, equipment store/ heavy duty cupboards and shelving (Exhibit "SS", plaintiff's bundle p 1042). 560 There are a number of other items which I have not included in this summary since it appears, generally, they relate to items conceded by both sides. 561 The proposals suggested by the defendant, as contained within Mr Baker's report dated November 2000 (Exhibit 101), contained areas of modification that have been advanced by Mr Hardiman in his report. Mr Baker suggested that the existing en-suite be altered and extended to form a new wheelchair accessible bathroom for the plaintiff; an extension to accommodate a live-in carer couple (consisting of a double bedroom, living room and en-suite bathroom, and provision for a kitchenette); battery operated ceiling hoist between plaintiff's bedroom and bathroom; construction of an external covered recreation area; ramps to the main entry door and from door to external recreation area, and external paving; removal of internal doors, alteration to opening and supply and installation of 3 new doors with electric operators; carpet; and furniture and equipment for carer's accommodation (Exhibit 101, pp 5-6). 562 However, Mr Baker costed modifications to an existing home to make it suitable to the plaintiff at $130,905. (ii) Purpose- built home 563 The plaintiff proposes that an alternative to the conversion of an existing house would be to purchase a vacant site and have a purpose built home constructed. The block would need to be of sufficient size to hold the home, additional accommodation requirements, hydrotherapy facility and garaging (absolute minimum size of 750 sq metres). It is suggested that as Randwick is a well established area, a home in poor order would need to be purchased and then demolished (Exhibit "SS", plaintiff's bundle p 1044). 564 In summary form, the costing provided by Mr Hardiman is as follows- 565 The cost of a purpose designed residence in Randwick is between $1,158,455 and $1,240,353 (this comprises the cost of land in the area between $650,000 and $680,000, demolition of $7,500, a typical 3 bedroom brick veneer house would cost between $134,820 and $182,000, purpose built requirements would total $269,529, and amounts to cover GST, Council fees and professional costs). From these sums, land costs and costs of an average residence are deducted, bringing the range to between $373,635 and $378,353, averaged at $375,000. In turn, after the cost of conceded items are deducted from the average (that is average of $365,000 as presented in written submissions, and conceded items total $38,583), the plaintiff claims that the cost of this type of residential arrangement will be $326,417. 566 The defendant has calculated that the items conceded by Mr Hardiman total $50,294, and the result is that the cost of Mr Hardiman's purpose built home should cost $325,000. 567 Purpose designed requirements cover much of what has been suggested by Mr Hardiman as necessary alterations in the conversion of an existing home scenario, though other notable suggestions include widening of doorways and alteration of doors from hinged to cavity sliding or surface mounted; widening of corridors; larger living, dining and bedrooms to accommodate wheelchair manoeuvring; en-suite to be attached directly to bedroom; and cost of window furnishings (curtaining, blinds). 568 In response, the defendant has recommended a specific project home as a model of a home that would be suitable for the plaintiff- a modified "Dalton 7" five bedroom home with extended rumpus room and study (Masterton Homes). The plans for this home have been included as part of Mr Baker's November 2000 report, which is Exhibit 101. In calculating the additional cost for the plaintiff for a home built to cater to her needs, Mr Baker compared the cost of a modified "Dalton 7" with the cost of a project home that was considered suitable for an able-bodied person (the "Allenby", a three bedroom home with single garage), and found that the difference amounted to $109,490. 569 However, this basis for Mr Baker's costing estimate, in my view, does not withstand scrutiny. The "Dalton 7" model home is, in a number of ways, quite inappropriate for the plaintiff. The foremost criticism of this home is that the width of the corridors and doorways are considerably less than the standard necessary for comfortable wheelchair accessibility. For example, the corridor between bedrooms two and three (it is proposed that bedroom two is for visitors, bedroom three is a carer's bedroom) is "approximately 1 metre wide" (T 1223), and the doorway into bedroom two has a clear opening of only 790 millimetres (T 1212). It is quite likely Calandre will have disabled wheel-chair visitors. Mr Baker asserted that though the standard corridor width for wheelchairs is 1.2 metres, he has seen many people in wheelchairs travel through corridors that are only 800 millimetres wide without difficulty (T 1223), and later he said that he has seen people in wheelchairs go through door openings that are 760 millimetres wide (T 1225). Mr Baker accepted that travel through this corridor would be less convenient than access through the rest of the house (T 1224), but when asked about travel from this corridor into the corridor that is perpendicular to it, he stated that he did not think Calandre would need to venture this way, as this area was the carer's accommodation "where they are entitled to a bit of privacy, surely" (T 1224). Mr Hardiman expressed in his oral evidence that in order to access this proposed guest room for disabled/wheelchair bound guests (bedroom 2), Calandre or her guests would need to negotiate a 90 degree turn to get through a standard door, and that this was not possible (T 854). Quite apart from the inappropriateness of providing Calandre with difficult access to the accommodation of her carers, the judgment involved in such a statement - that it is not necessary to facilitate ease of accessibility for Calandre in every part of her own home - must be rejected. In circumstances where narrow doorways and corridors might be constructed, the very aim of a purpose built home is to lessen the impact of Calandre's disability on her everyday living arrangements, and, in this way, to facilitate a comfortable domestic situation. I was quite unimpressed with the unstated theory underlying Mr Baker's approach. He appeared to be saying if a disabled person could move along a difficult corridor and negotiate a narrow and difficult opening, that would do. In my view, appropriate planning and costing for a disabled person's home needs to be more generous than this. 570 Several other criticisms can be made of Mr Baker's "Dalton 7" proposal. The same bedroom is to cater for relief carers and Calandre's guests (T 1212). This was the subject of some criticism by Mr Hardiman , who noted the flexibility of carer arrangements between live in carers and relief carers and the need for this to be translated into available accommodation (T 854). Mr Baker did not consider it was necessary to make any allowance for kitchen conversion to permit extra circulation space for Calandre (T 1222). Mr Baker believed kitchen conversion was not necessary because he did not think that Calandre would cook, and when he was questioned in cross examination whether he had considered that Calandre might like to be present in the kitchen with her carers as they prepared her meal, he replied "possibly" (T 1222). In total, the model home proffered by the defendant as suitable for the plaintiff cannot, in its present form, be accepted as such, and this casts some concern over the costing exercise undertaken by Mr Baker which was based upon it. (iii) The additional cost of independent living arrangements for the plaintiff . 571 The plaintiff submits that the cost of modification of an existing home amounts to $294,709, the additional cost of a purpose built home is $326,417. The plaintiff has averaged the cost for the plaintiff for independent living to be $310,000. 572 The defendant submits that modifications to an existing home will reach a cost of $130,905, the additional cost of a purpose built home is $109,490. The average of these two figures is $120,197, to which the defendant adds $12,500 for the cost of air conditioning, producing a total of $132,697. 573 In its written submissions, the defendant was critical of Mr Hardiman. It was particularly pointed out that Mr Hardiman was forced to make a number of significant concessions, as indeed, he was. Secondly, Mr Brereton argued that the expertise of a cost estimation is inherently more useful than that of an architect. In a colourful phrase he said "Architects may design, but quantity surveyors cost". 574 I prefer to base my conclusion on a broad acceptance of the proposition that Mr Hardiman, as a specialist architect with a special interest in catering for the needs of the disabled, has produced a product which is more appropriate for the plaintiff's needs. Indeed, I would consider the design as necessary for those needs. The "concessions" he made need to be taken into account in the costing exercise to enable determination of the final figure. There were further adjustments made to those figures in the written submissions which were not traversed by the plaintiff. 575 Accordingly, I allow the sum of $300,000 as a reasonable average for the allowable cost of the plaintiff's independent living. Summary 576 The final allowance for this head of damage is: - (a) Modifications to Vaucluse home - $159,963.00 (b) Modifications to Palm Beach home - 42,359.00 (c) Modifications to Thredbo home - ---------- (d) Independent living - 300,000.00 - $502,322.00 14. Hydrotherapy 577 The plaintiff claims the cost of a heated hydrotherapy pool with associated paving, covering, enclosed fencing, heating and the provision of a hoist. 578 There is no doubt that the evidence of occupational therapists and other medical experts in this case has demonstrated the potential health benefits to Calandre flowing from involvement in hydrotherapy programs. Ms French said that hydrotherapy assists in the relaxation of muscles and the minimisation of muscle tone problems, and the very buoyancy of water provides an opportunity for more freedom of movement (Ms French, T 317). That is, hydrotherapy maintains muscle and joint integrity so as to increase the range of movement of the participant. In Calandre's case, if she were to have contractures in her right upper limb, hydrotherapy could possibly minimise them and increase Calandre's range of active movement at least to some degree (T 318). Dr Bowers, who had been called by the defendant, echoed these thoughts in his evidence, agreeing that the principal benefits of hydrotherapy include maintaining limb and joint flexibility, as well as exercise (T 1468). In Calandre's circumstances, where the degree of athetosis is quite severe, the capacity of hydrotherapy to relax her muscle tone, and the importance of this treatment, cannot be under estimated. 579 Hydrotherapy is an essential part of an integrated and comprehensive approach to therapy, and takes its place beside Occupational Therapy, Physiotherapy and Speech Pathology in a regime aimed at easing, and managing, the impact of Calandre's disability (Ms French, T 314). Several experts gave evidence in the trial that this form of therapy should be available to, and utilised by, Calandre throughout the year. This opinion was expressed by both the plaintiff's and the defendant's representatives. Dr Buckley (T 444), Dr Antony (T 2394), and Dr Bowers (T 1470). All agreed that it would be suitable for Calandre to undertake hydrotherapy on a year round basis. In fact, Dr Bowers went so far as to state it was reasonable that the pool be enclosed and heated so as to lessen the risks of developing respiratory complications following exposure to weather extremes (T 1471). Moreover, the potential impact of this therapy on Calandre's life expectancy was noted by Dr Balandin, who gave evidence that some clinicians believed that some difficulties experienced by people with cerebral palsy, as they age, could be attributable to reasons such as insufficient hydrotherapy (T 803). 580 Calandre herself, and her mother, have both spoken of the positive effects of hydrotherapy. The benefits are not confined to the physical, but encompass a positive impact on Calandre's daily outlook. She said that hydrotherapy makes her feel "fantastic" and like a new person, and that it makes her feel "really relaxed" (T 694). Mrs Simpson added that Calandre enjoyed the weightlessness and repeated her daughter's sentiment concerning the relaxative value of the therapy (T 87). Calandre currently receives hydrotherapy for one hour every week, though she expressed the hope that she might have a choice as to when she could swim, including in the colder months of the year, in a special heated indoor pool (T 693-694). 581 The defendant concedes the cost of a hydrotherapy pool, but relies on the estimate by Mr Baker, amounting to $45,165. The plaintiff's claim is based on the reports and estimates provided by Mr Hardiman (Exhibit "SS" pp 13-14, plaintiff's bundle pp 1047-1048). 582 The total cost of Mr Hardiman's suggestions is $95,467. I find that the suggestions and cost provided by Mr Hardiman are reasonable. His report provides for the construction of a pool enclosure which will also partly cover the recreation area adjacent to the pool, and which will enable some use of the pool while protected from weather all year. This is far preferable to the recommendation of Mr Baker of a covered access way to the pool, a covered area over the pool and the placement of screens around the pool to "cut down the wind chill factor" (T 1229). In view of the evidence from clinicians that all weather access is appropriate, precautions must be taken so that in the event of poor weather conditions, accessibility to this therapy is not precluded and the safety of the plaintiff is not jeopardised. On the other hand, Mr Hardiman's recommendations and costings appear to me to address these issues. This extends to the solar pool heater and the pool hoist. It is unnecessary to repeat in detail the potential that chest infections pose for her, especially in the light of the clinical and statistical evidence dealing with life expectancy. The recommendations provided by Mr Baker are inadequate to this task. 583 For the combination of items under this head of damages, I allow $95,467. 15. Home Maintenance and running costs 584 A claim has been made for the additional cost of home maintenance and running costs. This is based on the proposition, undoubtedly correct, that the plaintiff is unable to attend to even the most rudimentary of household tasks on her own. Again there is a disparity between the submissions on behalf of the plaintiff and the defendant concerning the tasks to be covered by this head of damage, as well as a wide disparity between costing estimates provided by both sides. It is necessary, therefore, to outline the components of this head of damage, as presented by each party. 585 The plaintiff claims $496,498 for the cost of additional home maintenance. The items within this claim, as presented by Mr Hardiman in his report 27 February 2001, Exhibit "SS", plaintiff's bundle pp 1050-1051) include:- 1. Painting (internal and external painting every 6 years at a cost of $14,533). 2. Plumbing (allowance for two visits by a plumber each year, for repair of damaged taps, tap washers, clearing drains and the like, amounting to $3,090 over 6 years). 3. Electrical (allowance for two repairs per year to items such as lights, switches and fuses, power outlets, at a cost of $2,781 over 6 years). 4. Appliance repairs (allowance for one repair a year to items such as a stove, washing machine, which is at a cost of $1,545 over 6 years). 5. Garden Care (allowance for mowing, removal of garden debris and edging, based on fortnightly service at $35.00 per visit, and a major garden treatment once per year, costing $30,549 over 6 years). 6. Air conditioning (maintenance of filters, equipment checks and cleaning, at a cost of $4,730 per annum). 7. Heated Swimming Pool (maintenance of pumps, filters, cleaning equipment and chemicals, at a cost of $8,387 per year). 586 Mr Hardiman makes allowance, within the items of plumbing, electrical and appliance repairs, for the fact that the plaintiff is unable to perform those chores which an able-bodied adult would normally undertake, and will need commercial assistance for the performance of these tasks. 587 Total additional maintenance costs, assessed on a weekly basis and presented in the plaintiff's written submissions, is $350.14. 588 The defendant has submitted that the additional cost of home maintenance, as costed by Mr Baker, should be accepted. His report of November 2000 (Exhibit 101, pp 11-12) outlines the components, they are - 1. Building Maintenance (including repainting, with a cost of $250.00 per annum). 2. Plumbing and Drainage (cost of $150.00 per annum). 3. Electrical ( cost of $300.00 per annum). 4. Air conditioning, maintenance running and replacement (for maintenance, cleaning air filters and the like, costing $3,082 per annum). 5. Ceiling Hoist (servicing of the equipment is required every 18 months to 2 years, as well as maintenance charges and replacement costs, at $1,180 per year) 6. Hydrotherapy Pool (maintenance and replacement costs of $1,700 per year). 589 Mr Baker makes no allowance for appliance repairs nor garden care. 590 As presented in the defendant's written submissions, the annual total of home maintenance and running costs is $6,662, which is $128.11 per week, and capitalised for the defendant's estimate for the plaintiff's life expectancy, 44 years, this produces the figure of $164,564. 591 An explanation of the differences in costing between the plaintiff and the defendant must take the following point into account. The defendant submits that Mr Hardiman's allowances for the fact that the plaintiff must rely on assistance arranged commercially for the performance of chores normally undertaken by able-bodied adults, such as changing lights, washers and the like, are inappropriate. This is because there is no reason why carers cannot perform those minor tasks. Certainly, this is an acceptable proposition, at least, in part. There will be opportunity for the carers to tend to minor tasks when the plaintiff is not present in her home, when she is at school for example. However, the extent of the involvement of carers in this way should not be overestimated. I find that it is reasonable to allow for the assistance of carers in minor tasks such as the changing of light bulbs, the replacement of tap washers and minor repairs of this kind. I do not believe however, that the contribution that can be expected from the carers will impact upon the work to be performed to the extent that the level of commercial help needed, and the cost consequent, will be significantly reduced. Mr Hardiman's allowance for two visits per year for plumbing allowance, and for two repairs a year for electrical servicing, are, for example, reasonable, and the costings for these items do not need to be adjusted downwards to account for the involvement of carers in these areas. 592 I now turn to assess each of the components of additional maintenance in turn - 1. Painting - I find that although on the high side, the plaintiff's cost should be preferred to that of the defendant. The defendant's submission that this cost will approximate $250.00 per year is not tenable. 593 I accept the plaintiff's submission that the additional maintenance cost in this area is $14,533 for 6 years, that is translated to a cost of $46.58 a week. 2. Plumbing - The plaintiff's costing should also be accepted in relation to this component. $3,090 over 6 years is not an unreasonable cost to cover the plumbing and drainage expenses that might be incurred by the plaintiff. I accept the calculation of this cost at $9.90 per week. 3. Electrical - I accept that there will be a need for repairs to electrical outlets, and that a sum should be set aside for this, however I do not concur with Mr Hardiman's opinion that a difficulty in the use of appliances, damage to electrical points in the plaintiff's home will be greater than in an able-bodied person's home. (see Mr Hardiman's report, Exhibit "SS", plaintiff's bundle p 1050). The plaintiff is not able to access and use appliances herself, and relies upon the assistance of carers for all such needs. However, I do not feel that this consideration warrants a reduction in the allowance for this item, and I accept the plaintiff's claim for $2,781 for every six years, or $8.91 a week. 4. Appliance repairs - Again, the calculation by Mr Hardiman for this component presupposes that appliance damage will be much greater in the plaintiff's home because of difficulties in use of appliances, and though I do not accept this, I find that his allowance for one repair visit per year is reasonable. The amount of $1,545 for 6 years, translated to $4.95 per week, is appropriate. 5. Garden care - I accept that an allowance should be made for expenses for mowing, edging and debris removal, and I believe that Mr Hardiman's estimate of $8,600 for six years is appropriate, especially when it is considered that this represents a sum of $27.56 per week. 6. Air conditioning - The plaintiff contends that the difference in relation to the cost of air conditioning maintenance is attributable to the fact that the defendant's proposal regarding this item includes air conditioning only to parts of the house used by the plaintiff (Mr Baker's report, November 2000, Exhibit 101 p 10). The yearly cost for air conditioning maintenance, as submitted by the plaintiff, equals $4,730, the defendant submits it is $3,082, and as pointed out by the plaintiff, this amounts to a difference between the parties of $31.69 per week. However, I take Mr Baker's reference to "the parts of the house used by the plaintiff" to mean that the system can be activated in some parts (phases) of the house and not others, depending upon the plaintiff's requirements. This reference does not indicate the suggestion of a less comprehensive system. Moreover, the air conditioning system proposed by the defendant is not dissimilar to Mr Hardiman's recommendation of a reverse cycle ducted air conditioning system, where the sleeping and living areas are air-conditioned as separate zones (Exhibit "SS" plaintiff's bundle p 1047). Mr Baker also suggests a reverse cycle, split, ducted system with a three phase electrical supply (Exhibit 101 p 10). 594 Nevertheless, the air conditioning running costs suggested by the plaintiff are not unreasonable, and should be allowed at a cost of $4,730 per annum, which is $90.96 a week. 7. Heated Swimming Pool. 595 The plaintiff claims $8,387 for total yearly pool costs, including GST, the defendant in response submits that the sum should be $1,700 each year. While Mr Hardiman's recommendations are reliable on a number of points, I find that his costing has not been justified and appears excessive. In my opinion, a reasonable allowance is $5,000 a year. This translates into a figure of $96.15 a week. 596 In total, the cost of additional home maintenance is $285.01 per week. The projection of this amount over the plaintiff's estimated remaining life expectancy of 50.67 years gives an amount of $390,606. 597 I allow $390,606. 16. Therapeutic Aids, Appliances and Equipment. 598 The plaintiff claims $476,972 for the cost of recommended additional therapeutic aids, appliances and equipment, based on the recommendations of occupational therapists Ms French and Mrs Crowe, and architect Mr Hardiman. The costs of the items claimed are set out in the reports of Ms French (Exhibit "EE") and Mr Hardiman (Exhibit "SS"). The defendant contests only a few of the amounts claimed, and it is appropriate to assess each of these in turn- 1. Power Lift Recliner Lounge chair. 599 The defendant submits that this particular item is an unreasonable expense, and that the plaintiff has not expressed dissatisfaction with wheelchairs or conventional seating in her evidence, nor has this item been purchased for the plaintiff's use to date. Ms French expressed a variety of benefits, physical and emotional, offered by the use of this chair. This chair will enable Calandre to change her position independently, through modification by a controller; it has an in-built massage unit which will assist with the management of her muscle tone and spasticity; and from a social and emotional point of view it offers an opportunity for Calandre to sit and talk with friends in a piece of equipment that is seen as a normal chair, rather than a wheelchair (T 327). It can also be adjusted so that it can assist Calandre in standing up (T 327). 600 The recliner power lift chair is an appropriate, and reasonable, item with identifiable physical and social benefits to the plaintiff. It aims at more than a mere increase in amenity to the plaintiff. The chair has considerable therapeutic value and is reasonably required on medical grounds- this alterative type of seating will allow Calandre to move her body into different positions and will provide pressure relief (see Exhibit "EE", plaintiff's bundle p 718). 2. Splints. 601 The defendant contends that in the past, the plaintiff has not benefited from the use of splints. Certainly the evidence of Ms French establishes that Calandre had splints when she was quite young, though they have not been offered to her since (T 328). Ms French also raised the need to impress upon Calandre the therapeutic benefit to be gained from the use of splints, especially in light of the fact that, in a cosmetic sense, it will not be considered attractive by a 21 year old woman to wear cone splints on her hand (T 328). 602 Ms French has recommended that two types of splints be specifically manufactured for the plaintiff- a right padded cone splint (cone splint for the right hand) and bilateral right resting splints (covers the palm and upper arms and holds the hands in functional positions). Splints seek to maintain joint integrity and minimise the possibility that the joints become worn and painful through constant movement and abnormality of muscle tone (T 315). Specifically, a small padded cone splint would position Calandre's hand in a more functional and anti-spastic pattern, bilateral night time hand resting splints will provide a prolonged stretch to her long wrists and finger flexors, and taken together, they will assist in maintaining Calandre's current range of movement and minimising the worsening of her current contractures (Exhibit "EE", plaintiff's bundle p 720). 603 Despite the possibility that these splints will be rejected by the plaintiff, because of their unattractive nature, it is not unreasonable that these items be provided for the plaintiff. I consider that there is a real probability that the plaintiff will come to accept the desirability of splint treatment. The health benefits flowing from the use of splints is not a matter of dispute, and nor could it be. In so far as the defendant has pointed to the lack of benefit to the plaintiff in the past, it is difficult to assess the force of this submission in circumstances where the plaintiff's use of splints in the past has been quite limited. I find that the allowance for hand splints is appropriate. 3. The Tilt-in-Space Electrical Wheelchair. 604 The defendant has submitted that this type of wheelchair is unnecessary, that it has not been suggested in evidence that Calandre's current wheelchair is inadequate, and that the essential advantage of this wheelchair is that it is more cosmetically appealing. On a costing level, the relative costs are high- the proposed wheelchair is $11,000 (Calandre's current wheelchair costs between $6,000 and $7,000) and the servicing costs are estimated at $700 per annum (Exhibit "LL", plaintiff's bundle p 863). 605 Ms French stated that Calandre's current chair is not comfortable, and nor is it cosmetically appealing. The tilt-in-space mechanism in the proposed wheelchair allows the user to change the angle of the chair, and that in turn assists with the distribution of pressure, minimising the effects of sitting in one position over a long period of time. It would enable Calandre to attain various positions (T 330). In her report, Ms French emphasised the importance of specialised seating to ensure that Calandre is well supported and positioned when sitting and to minimise the possibility of secondary impairments, such as scoliosis developing as a consequence of abnormal muscle tone and imbalance (Exhibit "EE", plaintiff's bundle p 718). 606 It is appropriate, in my view, that Calandre acquires a new wheelchair for her daily use. Ms French stated in her report that Calandre's current chair is in need of replacement, as several parts on this chair are broken and/or need replacing (Exhibit "EE", plaintiff's bundle p 718). In circumstances where Calandre is confined to a wheelchair for mobility, it is not unreasonable that a chair with a tilting mechanism, enabling her to change her position for pressure relief, be allowed. Calandre's current chair contains this feature. Any other approach would be quite mean. I accept the costing of a new wheelchair, provided by Ms French, and allow $11,000 for this item. 4. 4 wheel drive motorised wheelchair. 607 The plaintiff claims a 4 wheel drive motorised wheelchair to be used in recreational and family outings (on the beach or in bush walking), and for travel across rough, uneven dusty terrains. Ms French alluded to the limitations upon Calandre's ability to participate in her family's activities, such as walks upon the beach, and suggested that this type of wheelchair might enable greater participation by Calandre in a greater range of family activities (Exhibit "EE", plaintiff's bundle p 723). An appropriate model is said to be the Magic Mobility "Extreme 4 x 4' wheelchair, at a cost of $8,770 initially, and when projected for the rest of the plaintiff's life, the cost is calculated to be $24.09 each week. 608 The defendant contends that there has been no evidence that the plaintiff wishes to have the opportunity to pursue bushwalking activities. Further, past outings and holidays to the beach have been conducted without the need for a 4 x 4 electric drive wheelchair, and the plaintiff has not commented upon the lack of this equipment in her evidence. It has also been submitted that it is unlikely that the plaintiff will attend the beach regularly, and in circumstances where a full time carer will be present to assist her, the 4 wheel drive wheelchair is not reasonably necessary. The manual wheelchair, conceded by the defendant, is said to cater suitably to the needs of the plaintiff it will enable participation in beach activities, and its only disadvantage is that it requires someone to push it. 609 The four wheel drive motorised wheelchair represents an "ideal" requirement of the plaintiff. It is not medically necessary, and its provision will do no more than increase the plaintiff's amenity on the few occasions in which this piece of equipment is used. No allowance should be made for this type of wheelchair. 5. "Pathfinder" communication device and Zygo head pointer. 610 The defendant asserts that these items have been double counted - that the claim for them has been repeated under the head of damages concerning computer equipment as "Mardis Eclipse" communication head device and head pointer. 611 There is a significant price disparity between these two combinations - the Pathfinder and Zygo head pointer suggested by Ms French cost $15,805, translated to a weekly cost of $61.54; the Mardis Eclipse with Optical Pointer suggested by Mr Smith in his report of 18 December 2000 (Exhibit "NN"(2)) cost $7,300, resulting in a weekly cost of $28.07. 612 I agree that only one of these combinations should be allowed, and propose to accept the recommendations of Ms French. Having considered the features of this device, as presented in the annexure to her report (Exhibit "EE", plaintiff's bundle p 773) I am satisfied that this device appropriately caters to the communication needs of the plaintiff. It not only prepares synthesised speech, but also icon and word prediction, and infared head pointing. It can be interfaced with computers and environmental communication units. I am not left in any certainty concerning the exact features of the Mardis Eclipse model suggested by Mr Smith, as his report does not point to any detail concerning this type of communication device. Moreover, Mr Smith conceded in his report that the Mardis Eclipse model is one likely option, but that the exact model for Calandre should be selected by an expert in this type of device (Exhibit "NN"(2), plaintiff's bundle p 916). 6. Environmental Control Unit 613 The defendant submits that this item has been claimed under both this head of damages and under head of damages relating to computer equipment. However, it is not necessary to make any allowance for this as though it was listed in the schedule in the plaintiff's written submissions, no allowance was claimed for this item and it did not feature in calculations for therapeutic aids, appliances and equipment (Part J, item 39). It does, however, comprise part of the calculations for computer equipment. 7. Gewa page Turner. 614 As suggested by the defendant, the Gewa page turner has been brought to account. Again, it features under the items claimed as computer equipment. I accept the costing supplied by Ms French and calculated under this head of damage. 615 After the cost of the four wheel drive motorised wheelchair, which has not been allowed, is excluded from the calculations, the cost of therapeutic aids, appliances and equipment is $312.28 per week, and calculated at three per cent over the plaintiff's remaining life expectancy of 50.67 years, this provides a total of $427,980. 616 I allow $427,980 for this head of damage. 17. Maintenance on Aids, Appliances and Equipment. 617 The plaintiff is entitled to provision for future expenditure on the maintenance of necessary aids, appliances and equipment, though there are wide cost discrepancies relating to the maintenance of two of these items. Maintenance and servicing costs are claimed for the power lift recliner chair, the tilt-in-space electric wheelchair and the light weight manual wheelchair, as it has been submitted that other equipment will be serviced pursuant to Mr Hardiman's recommendation for electrical servicing. 1. Servicing of power lift recliner chair. 618 The plaintiff claims an annual cost of $149 for the maintenance of this piece of equipment, and relies upon the estimates provided by Ms Karen Stevenson (occupational therapist) in her report dated 14 February 2001 (Exhibit "LL"). On a weekly basis, this is a cost of $2.86. Ms Stevenson pointed out in her report that the figures she has quoted are based on information provided by major organisations which service the equipment specified, and the suppliers have emphasised that they are unable to predict the exact maintenance costs of equipment as this is dependent upon the extent of wear and tear (Exhibit "LL", plaintiff's bundle p 862). 619 In relation to the power lift recliner chair, Ms Stevenson suggested that reasonable expected maintenance costs would be approximately $99.00 per year, and the chair would require bi-annual cleaning, at an average cost of $50.00 per year. 620 There has been no suggestion by the defendant that this cost is unreasonable. Consequently, I propose to allow it. 2. Servicing of tilt-in-space electric wheelchair 621 The cost of servicing this item is of some contention between the parties. The plaintiff again relies upon Ms Stevenson's report (Exhibit "LL") and the costing provided therein of $700.00 per year, or $13.46 a week. This estimate is an average figure, taking into account estimates provided by suppliers that range from $470.00 to $1,500 per year. The defendant contends that as there is no explanation for the difference in these estimates, the estimate of Ms French for the maintenance of the Tilt-in-Space Electric Wheelchair should be adopted, that is $180.00 per year (Exhibit "EE", plaintiff's bundle p 748). 622 I accept the cost estimate provided by Ms Stevenson. Her estimate was based upon a survey of suppliers. Ms French's report, however, does not reveal the source of costing her estimate for this particular wheelchair. For this reason her cost estimate cannot be tested against Ms Stevenson's estimate. It is reasonable, in circumstances where the plaintiff is confined to this piece of equipment for her mobility on a daily basis, that a more generous allowance for the cost of maintenance is made. A well maintained and serviced Tilt-in-Space Wheelchair is vital for the promotion of Calandre's good health and emotional well-being every day. No reason has been advanced to reject Ms Stevenson's estimate other than that it is more expensive. It appears to be the more reliable of the two estimates. 3. Servicing of light weight manual wheelchair. 623 The plaintiff has submitted that the cost of servicing this item amounts to $135 on an annual basis, translated to a cost of $2.59 a week, as costed by Ms Stevenson (Exhibit "LL"). She noted that though the manual wheelchair does not require a regular service if maintained well by the user, there are ongoing maintenance costs which include replacing tyres, tubes and upholstery. The defendant argues that the maintenance cost supplied by Ms French of $45 is reasonable and adequate (Exhibit "EE", plaintiff's bundle p 749). 624 Again I accept the cost estimate supplied by Ms Stevenson. This chair is likely to be used in conditions and environments in which the motorised wheelchair cannot be used. These environments and more robust conditions are likely to impact significantly on the wear and tear of the wheelchair. In these circumstances, it is not unreasonable to allow the greater amount for maintenance costs. The cost has been properly estimated by reference to quotes by suppliers. 625 Maintenance costs on aids, appliances and equipment recommended for Calandre total $18.91 a week. Projected at three per cent for her remaining life expectancy yields $25,916.16. 626 I allow $25,916 for this head of damage. 18. Computer 627 A claim is made for Calandre's future computer needs, as assessed by Mr Graeme Smith of Ability Research Centre (a "not for profit" organisation). This claim amounts to $397,747. Mr Smith has assessed Calandre's needs on a number of occasions - in her home and at her school in June 1995, followed by a review assessment in her school in April 1998 (see report dated 21 April 1998, Exhibit "NN"(1)); and in November 2000 (see report dated 18 December 2000, Exhibit "NN"(2)). 628 Calandre's dependence upon computer technology and communication devices is profound. She relies upon technology in order to communicate in a variety of circumstances. Apart from primitive methods, this is her only real method of communicating effectively with the world outside of her "locked-in" body. The principal area reflecting this, to date, has been in her education, and she has used computers at school since the late 1980s. Calandre prepares all of her assignments on a computer, and accesses information on computer sources such as CD-ROM facilities. She is able to use the computer keyboard independently through the use of a head pointer, and her computer table is adjusted to a height where she can reach the keys with this head pointer (Exhibit "NN"(2), plaintiff's bundle pp 904). 629 In the past Calandre has also used a Light Talker communication device, accessed by way of an optical head pointer. This has fallen into disuse however, and currently Calandre relies upon the symbol board and laser pointer attached to her cap. 630 Mr Smith, both in his reports and oral evidence, emphasised the important role that computers and related technology have in ameliorating the disadvantages faced by people with disabilities. These systems can give people with disabilities additional capabilities in many areas of life, and give them a way of achieving desirable outcomes in affected areas. In relation to the benefits available to Calandre, the possibilities are great. Technology can provide an expansive form of communication, under her control and widely accessible, which in turn will be essential for her participation in relationships in future years. Calandre will be able to use a computer as a reading device and consult important reference works, vital for her intellectual and creative development, in this way. Computer programs can also provide outlets for creative activity and recreation (for example Calandre already uses computerised chess programs), and can provide avenues for personal control and independence (personal organisation programs which include diaries and calendars, financial programs and Internet access can be significant here). Finally, an Environmental Control System, enabling the control of appliances, lights and other electronic devices from a computer, central control unit or by voice, will give Calandre the ability to control aspects of her own home environment (Exhibit "NN"(2), plaintiff's bundle 908-911). Mr Smith concluded that technology, specifically the technology he had recommended in his reports, will make a "dramatic difference to her life prospects, her options in life, her level of independence and her overall quality of life" (T 660). 631 The recommendations provided by Mr Smith fall into three categories:- 1. Initial set-up and training. 632 This includes customisation and installation costs, and training. It also encompasses the cost of a six month traineeship offered by Mr Smith's company, Ability Research Centre. Mr Smith said in his oral evidence that this traineeship would allow Calandre to trial different types of work activities as well as develop her computer interests. The scheme would also involve the staff of this organisation working with her to ensure that the equipment is suitable, and to adjust the equipment so that it correlates with Calandre's specific interests and potential (T 664). 633 These costs are estimated to total $13,448, including the amount of $8,800 to cover the cost of the six month traineeship with Mr Smith's organisation. 2. Initial outlay for capital items. 634 The total cost for the items suggested by Mr Smith is $45,205, as calculated within the schedule in the plaintiff's written submissions. The items claimed comprise hardware, software and furniture components, as well as an Environmental Control System. 3. Recurring Expenses. 635 Expenses cover outgoings for software and hardware upgrades, technical services and support visits by trained computer engineers. They also cover the cost of consumables like disks, paper ink cartridges, and household insurance. The plaintiff submits that the weekly recurring expense will amount to $269.02. 636 It is submitted, on behalf of the plaintiff, that Mr Smith's recommendations are reasonable recommendations to cater for very real needs, principally revolving around communication difficulties, possessed by the plaintiff. 637 The defendant has made a number of submissions in relation to this head of damages. The first is a concession that computer aids that have been specially adapted for Calandre's disabilities should be allowed as part of the plaintiff's claim. However, items which would have been acquired and used in the ordinary course of the plaintiff's life should not be allowed. The argument is that they are items which are part of a standard computer, which all students studying for the HSC (and not necessarily from an affluent family) would be likely to own today. Items said to fall into this category include computer hardware, replicator, printers, screen and scanner, table, basic software, Microsoft Office and recreational software, basic set up and training and consumables like Internet access fees, support services and the like (a full list is set out in Annex D to the defendant's written submissions). 638 Generally, it has been submitted that items for which the need has not been created by the injuries caused by the defendant, should not be borne by the defendant. There is no argument with this principle on the plaintiff's part. Its application, however, to the plaintiff's situation is very much in issue. 639 Secondly, it is submitted that the claim for a traineeship is too speculative to allow. Such a traineeship has never been offered before (T 678), and even if the plaintiff were to be a candidate, whether she would be successful in obtaining the position over other candidates is entirely unknown. Moreover, it is said to be unreasonable to ask the defendant to pay for Calandre to work and train with a company for whom she is going to provide a benefit. Indeed, Mr Smith had stated in his evidence that work tasks to be undertaken by Calandre could include reception, typing, Internet-based activity, accounts and testing of equipment (T 677). 640 I am satisfied that provision should be made for the plaintiff's future computer needs on the basis contended for by the plaintiff. I do not accept that it is only the additional costs of this equipment, over and above the costs which would have been incurred by the plaintiff in the ordinary course of events, which should be allowed. This equipment, in total, is required by Calandre as a medical necessity, and a number of experts, from a number of fields, have alluded to this reality. As Calandre is non-speaking and unable to write, she is dependent upon technology in order to communicate (Exhibit "NN"(2) plaintiff's bundle p 908). Ms French has expressed that the symbol board and laser pointer she currently uses places considerable limitations upon her ability to communicate effectively with others- the person with whom she is communicating must be in a position to see her communication board and must be familiar with her patterns of word and sentence construction (T 309). 641 Further, use of the communication board is a fatiguing and often frustrating process for Calandre, and as the process continues over time, her ability to accurately point to her selected word or symbol on the board decreases (Exhibit "EE", plaintiff's bundle p 21). In these circumstances, the opportunity to utilise an electronic communication device will have significant physical and emotional benefits for Calandre. This device will enable Calandre to store a large selection of words, phrases and whole sentences which could be accessed by a head pointer. It will significantly increase the rate of communication and decrease Calandre's frustration levels, and will enable Calandre to communicate when she is lying in bed or sitting in her wheelchair (Exhibit "EE", plaintiff's bundle p 731). 642 Computer technology also facilitates Calandre's education and study. As she cannot access books, it provides the means through which she is able to broaden her knowledge about new topics as well as show her understanding of concepts learnt in school. She is currently completing her Higher School Certificate at Allambie Heights Special School, and uses a computer to complete all of her school work (Exhibit "EE", plaintiff's bundle p 740). Ms French has suggested that a computer system is essential to enable her to complete her studies (both now and in the future), complete a range of personal tasks (potentially, this could include activities such as banking) as well as having an increased range of recreational activities (Exhibit "EE", plaintiff's bundle p 741). As has been submitted on behalf of the plaintiff, computer access and associated communication devices are a life line for the plaintiff in an intellectual sense. They are a life line, in my opinion, in a very real and practical sense as well. 643 In these circumstances, I find that the cost of all of this equipment, with a few exceptions to account for double counting across the heads of damages, should be allowed. Devices that approximate to the Mardis Eclipse communication device and head pointer ($7,300) and GEWA Page Turner with joystick ($4,895) have already been accounted for in damages for Therapeutic Aids, Appliances and Equipment, and so no allowance is made here. Also, the claim for a Door Control Mechanism (aligned to the Environmental Control System, estimated cost here of $3,500), has been covered by the recommendations in Mr Hardiman's report (see Exhibit "SS", plaintiff's bundle p 1038) and so this cost will also be deducted from the claim for computer equipment. 644 I have decided to allow the cost of the traineeship of $8,800. It provides an opportunity for Calandre to develop her computer skills, and for people working in the area to foster her learning in this area and monitor the development of her interests. In light of the importance of computer technology in Calandre's everyday life, this occasion for Calandre to familiarise herself and enhance her understanding of this equipment will be of considerable benefit to her. The cost is proportional to the benefit received. Calculation. 645 Deducting the cost of the Mardis Eclipse with Optical Pointer, GEWA page turner and door control mechanism (these items total $15,695), the capital cost of computer equipment equals $29,510. When added to the cost of initial set-up and training ($13,448), the capital outlay costs amount to $42,958. 646 Recurring expenses, when adjusted to delete amounts for the items above, come to $203.96 per week. 647 The plaintiff submits that recurring costs will be incurred annually for some items and every three, four, or five years for other items, and that after an allowance is made for the initial outlay it would be reasonable to assume deferral of the need for the recurring replacement expenditure until 3 years have passed. That is, in consideration of this, when calculating the projection of the weekly sum, it must be calculated for a period of 48 years. The projection of $203.96 per week at three per cent over the period of 48 years yields $272,919. 648 This sum for 48 year projection is then deferred for three years at three per cent (x 0.915) and this equals $249,721. 649 When the capital outlay costs of $42,958 are added to the deferred projection of $249,721, this yields a total of $292,679. 650 I allow damages in the amount of $292,679 for computer and related equipment for the plaintiff. 19. Educational Tutoring 651 The plaintiff claims $194,511 for future educational tutoring. The financial basis of this calculation arises from the evidence of Mrs Pisk, a Consultant Vocational and Careers adviser. She was the author of Exhibit "OO" and gave evidence at the hearing. Mrs Pisk recommended the engagement of a full time special needs teacher for four years to assist the plaintiff with her studies. The period of four years represented her final year of secondary schooling and a further three years for a tertiary course. Mrs Pisk identified the cost of such a teacher ranging from $35,000 to $40,000 per annum gross. The maximum range was selected and adjusted upwards to make allowance for compulsory superannuation contributions of nine per cent per annum. 652 The plaintiff's calculation was based on the need to make provision for five years rather than four. 653 This calculation led to a weekly amount for salary and superannuation of $943.27 per week. Applying the three per cent multiplier for five years (24.26) and allowing for 15% for possible adverse vicissitudes yielded the claimed amount of $194,511. 654 This claim generated a degree of "heat" in both the force and length of submissions both oral and in writing. The defendant's responses were these: - (i) There is no occasion for the award of damages in this respect, because the plaintiff has not lost the ability (without such assistance) to pursue tertiary study: she never had that ability. (iii) An award of damages under this head is not compensation for something the plaintiff has lost but is a contribution made to her out of sympathy for her position "to give her every conceivable benefit". (iii) The evidence establishes that the plaintiff would not have pursued education at the suggested level but for her injuries. This is corroborated by the educational achievement of her sisters and, more importantly, by her current level of educational attainment. Although she is not intellectually impaired, she is, in her class, - designed for disabled persons - performing towards the bottom. Such a level does not suggest that she would otherwise have been a candidate for education at a tertiary level. (iv) Since the plaintiff would not otherwise have undertaken tertiary education, the assistance claimed will not enable her to complete, albeit at an increased cost, a course which she would otherwise have taken; but rather, is sought to permit her to embark upon a course which she would not otherwise have followed. In relation to these matters, Mr Brereton SC pointed to the report of Professor Cooney dated 5 April 2001 (Exhibit 138). He had expressed the opinion that it was unlikely, based on her current performance, that Calandre would gain admission to a tertiary institution. Although the plaintiff had argued that Professor Cooney was unaware of special entry procedures by which the plaintiff might be able to enter University, the plaintiff in fact, had not identified any such programs. (v) The defendant maintained that it was unlikely in the extreme that Calandre could successfully complete a tertiary course, even if she gained admission. The evidence on both sides established that the academic standards of tertiary institutions are not relaxed for students admitted pursuant to special entry provisions. Based on Calandre's performance at school, the likelihood of her performing to the level of those academic standards was "remote in the extreme". 655 For all these reasons, the defendant argued that it was not reasonable that the defendant should be required to pay for the plaintiff to attend a course which she would not have undertaken but for injuries and which it was improbable that she would be able to complete successfully or put to remunerative use. The Plaintiff's evidence - her desire to pursue her studies 656 The plaintiff's history shows that she encountered a very considerable educational difficulty at an early age clearly related to her disabilities. Calandre said that, as a result, she had fallen behind in her schooling and had been discouraged by her teachers from going on to High School (T 456 lines 55-58). There is a very significant gap in her schooling between the ages 9 to15 because she had "a lot of therapy" (T 456 lines 48-54). Her education virtually ceased between these years. 657 Calandre resumed her schooling at the age of 15. It is for this reason that now, at the age of 22, she is studying for her Higher School Certificate. She described that she had benefited from extra tuition in recent years in that she was able to catch up with her work (T 457 lines 31-45). 658 In relation to her wish to pursue tertiary studies, Calandre said: - "I have a brain I want to use. Why should I sit around" (T 457 line 6). 659 It is clear, from the plaintiff's own perspective, that she does wish to complete her Higher School Certificate and progress to some type of tertiary education. It was in this context that she said that she wanted to go to University to study social work to assist people with special needs (T 457 line 15). There is no doubt that this is the plaintiff's wish and that she has the drive and determination to achieve it if she has the intellectual capacity to do so. The Plaintiff's mental capacity 660 A number of the experts have carefully considered this question in relation to the plaintiff and they have concluded that she is of normal intelligence. These include Dr Wise, Professor Reid ( a Neuro-Psychologist who first saw the plaintiff in August 1994), Mr Kennedy-Gould and Dr Phillips, an experienced and well respected psychiatrist. 661 It is of interest to note that Professor Reid, in 1994, "doubted" that the plaintiff would progress academically (Exhibit "X" (1) p 3 - plaintiff's copy bundle p 635 T-U). Calandre was then about 13. 662 By March 2001, Professor Reid had substantially reassessed his earlier opinion. In Exhibit "X" (4), he stated that, after further testing, Calandre showed at least average verbal and non verbal reasoning skills and verbal memory. He stated that she had no problems learning and retaining new information. During his oral evidence, he said that he now believed that her abilities had improved significantly and, with the passage of time, it was now evident that she was within the normal range in a number of areas of her cognitive ability which had not previously been evident. It was his belief that with her determination and drive to succeed, and with the appropriate supports, she had the intellectual capacity to complete a course such as a welfare course at a tertiary institution (T 990 lines 10-15; T 991 line 50). 663 Professor Reid said that, although he had doubts about her ability to achieve a social work degree at University, in a tertiary education system where welfare courses were offered to people of average intellectual ability, she would manage such course with appropriate support. He said this notwithstanding his opinion that she would not gain a University TER score to get into a social work degree course (T 1191 lines 4-20). 664 Professor Reid offered some insight into the plaintiff's apparent lack of general knowledge when he pointed to the fact that she had not been exposed to the world in the same way as a person without disabilities. For that reason, she "does not have the opportunity to acquire knowledge about different worldly events" (T 1194 lines 41-45). 665 Finally, Professor Reid, who assessed the plaintiff's IQ at around normal, supported the concept that the plaintiff should be given extra educational assistance. At T 1199 line 50 to T 1200 line 7, he said: - "A. Yes. I feel there are things that could be done to improve Miss Simpson's ability to achieve good results, considering her physical disabilities, in a tertiary education system. Some of those ways may be appointing a personal tutor to assist her with her studies by taking notes for her, going back over information that has been covered in the lectures to make sure she has either heard it, seen it, and has acquired that information in order to learn and retain it." Mrs Pisk's evidence 666 The focus of Mrs Pisk's evidence as I have earlier said, was a consideration of the plaintiff's opportunities for tertiary education. She too noted the plaintiff's wish to attend a tertiary institution. 667 Mr Pisk expressed the opinion that persons who obtained results equivalent to Calandre's results in the School Certificate had been able to access University study successfully. She identified a number of pathways for entry into various classifications of tertiary colleges and universities including entry into non award courses. She identified a number of facilities offered by Universities and TAFE Colleges for the disabled ranging from alternative assessments, take home exams, and the provision for note takers (Exhibit "OO" pp 2-4). 668 Mrs Pisk emphasised that the plaintiff would need maximum assistance in the form of a Special Needs Teacher rather than a simple note taker. She considered that such a Special Needs Teacher would not be expected to provide personal care or transportation. She explained that the work of a special education teacher would be not to do assignments for the plaintiff but to help her cope with her obvious perceptual difficulties. Such a teacher would explain things a little more slowly and carefully than would be the case in a large group situation in order to supplement the lecture system (T 756 lines 8-20). The task would extend to assistance with information processing, analysis and discussion to ensure that the material was understood. The need for this special assistance, according to Mrs Pisk, was directly related to Calandre's physical condition. Professor Cooney's evidence 669 As I have already indicated, that there is no doubt that Professor Cooney, though sympathetic to the plaintiff, took the view, based on a projection from her school results, that it was unlikely that Calandre would gain admission to a tertiary institution. He thought that it was unlikely that she would attain a score of more than 30 within the UAI scoring system. In his report, Exhibit 138, he had said that it was impossible to estimate the plaintiff's likely HSC achievement on the basis of school results. (I should add that I did not understand him to invalidate his own methodology by this comment). 670 Professor Cooney, however, did not examine or interview the plaintiff. He acknowledged that there were schemes which were university specific which provide for entry but he could not comment on the likelihood of the plaintiff entering into such a course (Exhibit 138 p 2 paras 3 and 4; T 2072 line 30). In general terms, Professor Cooney agreed that the personal characteristics of determination to succeed and to achieve gaols in education provide "a good predictive basis for future achievement" where there was average ability and average academic performance (T 2075 lines 24-30). While Professor Cooney accepted that the plaintiff had demonstrated a satisfactory result in English, he described this as a "bare pass" (T 2074 line 55 to T 2075 line 10). Resolution 671 It is not that easy to resolve the issues involved in relation to this head of damage. In the end I have decided to allow it albeit with a significant increase in the discount related to vicissitudes. 672 The first submission which I will address is that made on behalf of the defendant namely that the first question is whether Calandre would have pursued education at a tertiary level but for her injuries. In assessing the lost chance as to whether the plaintiff would have had an earning capacity reflected by professional employment following tertiary education, it was my view, expressed earlier in these reasons, that I could not be satisfied, that the plaintiff would have undertaken a successful career as a lawyer had she not been injured. The present question seems to me to be quite a different one. The question to be addressed is whether the plaintiff had and has retained the ability to pursue some type of tertiary education rather than whether, uninjured, she would have chosen that particular lifestyle. 673 It is undoubtedly true, as Mr Brereton has argued, that, if the plaintiff did not have the ability to attend a tertiary course, it would not be an appropriate compensation to impose the cost of additional tutoring on the defendant. On the other hand, if the plaintiff does possess the ability to undertake and complete some form of tertiary education (whether it be in the form of a formal university degree, a non award course or at a private university or TAFE institution) then it is appropriate to award her compensation if her injuries have given rise to the need to have special educational assistance to achieve that aim. The mere fact that the aim, if successful, will not lead to the earning of remuneration, as I am satisfied it will not in the plaintiff's case, is not a disqualifying factor. 674 Secondly, there is no doubt that the plaintiff has the intellectual capacity to achieve her object of undertaking and completing some form of tertiary course, in the sense that she is not intellectually impaired. That much is conceded by the defendant. Nevertheless, the evidence shows that there has been a significant gap in the plaintiff's schooling and that her disabilities have placed very specific barriers in the way of her attainment of educational excellence. Her mathematical abilities have not progressed and her general knowledge is, in a number of respects, below par. On the other hand, she has shown a capacity to improve herself educationally and there seems every reason to suppose that this process will accelerate, particularly if she has educational assistance. 675 Thirdly, while I accept that Professor Cooney's opinion is entitled to respect and has value, the combined effect of the evidence of Mrs Pisk and the expert evidence pointing to Calandre's general level of improving academic achievement, has persuaded me that there is a realistic probability that the plaintiff will be able to conclude her school studies and pursue some form of tertiary education in the area she has nominated. It will be recalled that Professor Reid had said that Calandre could get into a Diploma Course in Welfare offered at a TAFE institution. At T 749, Mrs Pisk (in relation to a similar topic) had said: - "We are talking about subjects which don't require maths or science; Bachelor of education, habilitation at the Catholic University, Social work type courses where they are not looking at their ability in statistics in science, general essay writing, and we are not talking about merchant banking or law subjects." 676 Fourthly, I consider that the plaintiff has demonstrated a need, related to her disabilities flowing from the defendant's negligence, that warrants the allowance of this head of damages. Her education was stopped in its tracks for a significant period of time by reason of her disability and the provision of this additional tutoring will allow her to catch up and continue her personal and intellectual development even though it is quite unlikely that the completion of the proposed course will provide the plaintiff with any capacity for paid employment. 677 I propose to allow the cost of a Special Education Teacher to help the plaintiff complete her final year of secondary schooling and to assist her for a further four years of a tertiary course. This is assistance for a total of five years. I consider that the additional year is reasonable. 678 The plaintiff has argued that a discount of 15% on account of this head of damages would be sufficient to balance the possibility that she may not fully pursue the course. Against this concession is the realistic submission that she may take a lot longer than four years to complete such a course. 679 I have given consideration to these particular submissions but it is my view that a higher percentage should be allowed for vicissitudes. I propose to discount the head of damages by 25% rather than the 15% suggested by the plaintiff. 680 The projection of $943.27 per week at 3% over five years (x 24.26) less 25% for possible adverse vicissitude yields $171,628. 681 I allow the sum of $171,628. 20. Motor Vehicle expenses 682 The plaintiff claims the sum of $178,167 for future motor vehicle expenses. There is no dispute that the plaintiff has special mobility and transportation needs. The plaintiff relies on the evidence of Mr Derek Wood, a Vehicle Economist from the NRMA Automotive Technical Services Department. He considered the plaintiff's situation and provided a report dated 14 September 2000 (Exhibit "VV"). It was his recommendation that the plaintiff's motor vehicle needs could best be addressed by a 2000 Volkswagon Transporter Automatic Van with a Trakka wheelchair conversion at a cost of $81,099. Mr Wood was not required for cross-examination. 683 The calculation of the plaintiff's claim involved the identification and comparison of the combined weekly standing and running costs of a special vehicle with modifications as compared to a standard vehicle. The suggested comparison was with a 1995 Toyota Camry Sedan (Exhibit "VV" p 13). 684 The combined standing and running costs of a 2000 VW Transporter Automatic Van fitted for wheelchair use on a five year replacement cycle, is $8,618 per annum or $165.73 per week. The average standing cost of the 1995 Toyota Camry Sedan (assuming the usage of 15,000 kms per annum on a five year replacement cycle) is $4,492 per annum of $86.38 per week. The difference in standing and running costs between these two vehicles is $79.35 per week. 685 The plaintiff's claim is calculated by projecting $79.35 per week over the plaintiff's remaining life expectancy. There is then added to this projection an allowance for the initial capital cost of the specially modified vehicle namely $81,099 less the capital cost of a 1995 Toyota Camry Sedan namely $15,450. This figure is $65,649. 686 When the allowance is added to the projection of $79.35 per week over the plaintiff's remaining life expectancy (estimated by the plaintiff at 55 years) there is yielded the claim of $178,167. 687 There was regrettably no agreement between the plaintiff and the defendant in relation to this claim. The defendant focused its examination on three types of possible transport for the plaintiff. First, the use of taxis and the family's four wheel drive: This is the system by which the plaintiff has, until now, been transported. Secondly, Ms French in her report (Exhibit "EE" p 13) had specified as "an appropriate van" a Holden Quinto. This is more moderately priced than the VW Transporter Van. Thirdly, the defendant examined the prospect of the selection of the 2000 VW Van as had been recommended by Mr Derek Wood (Exhibit "VV"), together with the likely costs involved. 688 The defendant accepted that the plaintiff is entitled to the additional cost of a specially adapted motor vehicle, plus additional standing and running costs. The defendant accepted Mr Wood's methodology but suggested that the alternative more reasonable motor vehicle recommended by Ms French, namely the Holden Quinto, should be substituted. 689 The defendant's argument began with an extensive review of the cost of using taxis for the plaintiff on an annual basis. It was suggested that the use of private vehicle provides no significant advantage over the use of a taxi. It was not the defendant's submission that the plaintiff should not have the costs of an appropriately modified motor vehicle, rather that the court should take into account, when fixing an allowance, the very real possibility, if not the likelihood, that at some time in the future, the plaintiff may decide not to own a vehicle at all but rather rely on the taxi option. 690 As with many of the arguments advanced by Mr Brereton SC on behalf of the defendant, this had an attractive ring to it. On this occasion, however, the premise is not a realistic one, in my view. Although the court is not assisted by any evidence on the point, it would be to turn a blind eye to reality to think that taxi services provided to disabled people in the community are always convenient. Indeed, anecdotally, the position is often regrettably very much the reverse. Disabled people are often left waiting for considerable periods of time for transport by taxi and often in situations of real discomfort. 691 Be that as it may, the major point made by Mr Brereton under this head of damage is a reasonable one. There appears to be no medical reason advanced why the more expensive vehicle is preferable to the Holden Quinto. Although Ms French said that she would defer to Mr Wood, there appears to be no reason related to Calandre's disabilities that would lead to the rejection of Ms French's view in relation to the Holden vehicle. More importantly, there does not appear to be any medical reason, as I have said, that warrants the VW as the preferred vehicle. 692 Mr Brereton suggests that the adjustment which should flow from favouring the Holden Quinto may be addressed in the following manner. First, it may be assumed (in the plaintiff's favour) that the running and standing costs with the exception of depreciation are the same. A consideration of the depreciation factor requires an adjustment because there is a large difference in capital value between the two vehicles. The average yearly depreciation on the Volkswagon over seven years is $136.00 per week. On a pro rata calculation, the depreciation on the Holden would be $75.00 per week. 693 Making allowance for this factor, the total weekly cost for the Volkswagon of $270.13 (as appears from the Wood report) can be reduced by approximately $60.00 per week, and the "difference" figure reduced from $157.93 to $117.93. The weekly difference for the figure may then be capitalised for the remainder of the plaintiff's life expectancy. 694 This appears to be a reasonable way of allowing for the difference between the capital value of the two respective vehicles. 695 The amount of $117.93 will be capitalised at 50.067 years from the estimated date of judgment 5 November 2001. 696 I allow $161,623.00 for this head of damage. 21. Future Medical Treatment 697 Details of this claim, together with the following two claims for future paramedical and pharmaceutical costs, emerge from a significant body of evidence assembled on the plaintiff's behalf. Medical and paramedical experts have assembled a series of reports in which opinions have been expressed regarding the extent and rate of treatment likely to be required by the plaintiff for her future care throughout the remainder of her life. At least nine experts addressed these issues throughout the hearing. 698 The defendant called Dr Bowers who, in a number of respects, agreed with suggestions that had been made by the plaintiff's experts. In other areas, however, Dr Bowers took, generally, a more conservative view. It must also be said that there were differences between the plaintiff's experts, even among their own opinions. 699 Mr Brereton SC, on behalf of the defendant, has counselled that the range of estimates prepared on the plaintiff's behalf may represent the upper end of what is reasonable or acceptable. Senior counsel suggested that, in many first instance cases, an exercise in resolving issues of this kind commonly requires the court to compromise between the views on behalf of the plaintiff and those matters recommended by the defendant's experts. 700 My task, as I see it, is to scrutinise each part of the claim carefully and to assess whether the recommendations made on the plaintiff's behalf are reasonable. I shall, of course, take into account any contrary views expressed, for example, by Dr Bowers. I shall also take into account the submissions of the parties. I do not see it as an exercise in compromise but rather the selection of a reasonable future care program for a person with the severely disabled characteristics of the plaintiff. The measures suggested should relate to the plaintiff's disabilities engendered by the defendant's negligence and should be both proportional and reasonable (Sharman v Evans (1977) 138 CLR 563). General Practitioner 701 Dr Buckley had recommended two monthly consultations at level C and ten consultations at level B. The former are more expensive and are likely to take longer. There is no doubt that the plaintiff will take longer than average in consultation because of the range of issues which may need to reviewed by a general practitioner and because of the difficulties involved in communicating with her. It has been agreed that the current AMA recommendation for the cost of a level B consulting rooms consultation with a general practitioner is $40.50; and the recommendation for a level C consultation is $75.00 (Exhibit "AAAA" paras 11 and 12). 702 Dr Bowers recommended only four visits per annum. In its written submissions, the defendant suggested that a reasonable allowance would be visits each two months at an average of $70.00, that is $420.00 per annum. 703 In my opinion, a reasonable allowance would be ten visits per year level C recommended cost. This represents $14.43 per week. Neurological consultations. 704 Dr Bowers was in agreement with Dr Buckley in relation to the desirability of an annual neurological consultation. Although the plaintiff's epileptic condition has long been dormant, it is clearly desirable that she be given the "safety net" of an annual consultation. 705 The current AMA recommendation for the cost of a consultation with a neurologist is $184.00 for the initial consultation and $92.00 for subsequent consultations (Exhibit "AAAA" para 13). 706 The defendant submits that yearly visits to a neurologist at $92.00 would be reasonable that is, that the allowance be $92.00 per annum or $1.77 per week. 707 I agree that this would be a reasonable amount. Hospital Admissions - Pneumonia 708 Dr Buckley has suggested that an allowance be made for two weeks of hospitalisation every five years. Dr Bowers said one week every five years (Exhibit 102 p 7). Professor Breslin, the respiratory specialist did not agree with the estimate which had been made by Dr Buckley. This evidence posed something of a dilemma for the plaintiff as there was disputation within her own camp. Professor Breslin, in fact, said that it would be "extraordinarily unlikely" for an individual to be hospitalised for pneumonia five times in their life time (T 1111 lines 53-57). 709 From both a clinical and statistical point of view, there was little doubt that the plaintiff remains at risk of respiratory infection and pneumonia as a consequence of her disabilities flowing from cerebral palsy. Mr Levy SC suggested that the plaintiff should be given the benefit of palliative treatment to avoid the possible consequences of respiratory health problems and that a generous allowance in this regard would take into account such palliative treatment. It was Mr Levy's suggestion that Dr Bowers estimate of $5,000 per week as hospital costs be accepted and that two weeks be allowed every five years. There should be an allowance, however, to discount the contingencies which might be advantageous to the plaintiff, for example, continued good health due to good care. The plaintiff's final submission was that a calculation in this manner discounted by say 25% would lead to an estimate of $28.84 per week. 710 The defendant accepted that the plaintiff is, on all the evidence, at an increased risk of pneumonia. Mr Brereton suggested that the time allowance by Dr Bowers of one week every five years at a cost of $5,000 was reasonable. This approach would yield an allowance of $1,000 per annum of $19.23 per week. 711 In this instance there does seem to be a need to resolve the tension between the views of Dr Buckley and Professor Breslin. One is an expert in rehabilitation matters generally and the other is an expert in respiratory matters. 712 In my view an allowance of one week for hospitalisation every five years is reasonable in all the circumstances. Accordingly, I allow this item at $19.23 per week. Rehabilitation Physician 713 Dr Buckley has suggested an annual consultation with a rehabilitation physician. Dr Bowers has agreed with this suggestion (Exhibit 102 p 7). The rates are agreed at a yearly cost $184.00 yielding a weekly amount of $3.53. Psychiatric Consultations 714 Dr Phillips had proposed one psychiatric consultation per month. This was very much in the nature of a guess (T 729 lines 1-10). The possible need for psychiatric consultation arose out of the possibility that the plaintiff would experience mild to moderate depression. Dr Phillips described that the plaintiff could develop mild to moderate depression at points of set back in her life (T 727 lines 13-15). He said that the "big tests" for the plaintiff were ahead of her, not behind her. His view, on the balance of probabilities, was that there would be times when she would react to adversity with significant depressive symptoms requiring professional assistance (T 730 lines 15-20). 715 Dr Phillips thought that consultations with the plaintiff would take about double the usual time (T 734 lines 1-3). For this reason, the plaintiff has submitted that when an allowance is made for future psychiatric consultations, higher rate for such consultations should apply because of the extra time involved (Exhibit "AAAA" paras 14 and 15). The higher consultation level is $240.00. This relates to a consultation of more than 60 minutes but less than 75 minutes. 716 The defendant is sceptical about the need for psychiatric treatment. Mr Brereton noted that Dr Phillips had in fact withdrawn his suggestion that hospitalisation for psychiatric treatment might be necessary at different stages of the plaintiff's life. It appears that Dr Phillips had made a more positive reassessment of the plaintiff in February 2001 which resulted in a revision of some of his earlier views (T 731 line 19). 717 Mr Brereton argued that the better approach, allowing for a consultation rate at $215.00, would be to make a round figure allowance of about $2,000 for the chance that the plaintiff might need future psychiatric care. 718 I agree that the prospect of the need for psychiatric consultation is somewhat speculative, having regard to all of the evidence. I consider that the defendant's general approach is to be preferred, although I think an adjustment is necessary to the figures. This adjustment should reflect the fact that there may be a need for consultations at the higher rate and that my estimate of the plaintiff's life expectancy is greater than that advocated on the defendant's behalf. Further, while I accept that there is a degree of speculation involved in this item, it is not, in my opinion, at the level of speculation mentioned in the defendant's written submissions. 719 In my opinion, a reasonable allowance is $5,000 for the chance that the plaintiff may need future psychiatric care. Renal Ultrasound 720 The plaintiff has suggested that the plaintiff will require a renal ultrasound every five years. Dr Bowers had said that this was the appropriate test for bladder infections (T 1502). The cost is agreed at $213.00 (Exhibit "AAAA" para 34). I accept that this is a reasonable provision since it is designed as a check upon any negative developments in the plaintiff's urinary tract. Regular testing will enable curative treatment. 721 Allowance of this item at the agreed rate of $235.00 yields a weekly allowance of $0.90. Dental Consultations and Dental Treatment - an overview 722 Dr Baetz, a Prosthodontist gave evidence. His reports dated 4 and 8 March 2001 were tendered as Exhibit "GGG". Dr Baetz stated that the plaintiff's teeth were clearly more worn than one would expect for a normal 21 year old (T 879 line 58). The plaintiff's mother had described that the plaintiff, as a consequence of her condition, ground her teeth "terribly" (T 50 lines 1-6). 723 Dr Baetz gave evidence of treatment the plaintiff might possibly require in the future. This included the following possible components: - (a) Periodontic work to be completed within six months prior to any restoration work being carried out. Periodontic treatment would then continued at $1,000 per annum for two six monthly treatments. The additional cost of these six monthly dental consultations would be $1,000 per annum less $400.00 being the costs for two standard treatments during the year. This yield a weekly amount of $11.53. (b) Daily treatment with fluoride gel. The cost of fluoride gel is dealt with under the claim for future pharmaceutical expenses. (c) Full arch composite restoration in ten years time with a prospect of this restoration treatment having a limited life of five to ten years (T 875 lines 45 to T 876). The alternative would be the more expensive treatment of full arch cast restoration gold crowns at an estimated cost $45,000. These would last 20 to 30 years. 724 Possibilities relating to the time frame for this composite restoration work were shown to be as follows: - (i) Compost resin onlays in 5 to 10 years time (ii) Repeat treatment with composite rein onlays after a further 5 to 10 years (iii) After a further 5 to 10 years, full reconstruction which could last 10 to 20 years. 725 Each of these procedures would probably involve at least two anaesthetics each being of five hours, if not more. The cost of a five hour anaesthetic has been identified as $5,050 (Dr Shakenovsky's report 2 March 2001, Exhibit "HHH" p 2). The Cost of Major Dental Treatment 726 There is quite detailed evidence about the cost of these possible treatments. The cost of a full arch composite resin restoration was said to be probably $20,000 for the restoration and $10,100 for the two five hour anaesthetics, that is, a total of $30,100 (see Dr Baetz's report 4 March 2001, Exhibit "GGG" p 2). The first restoration would be likely to last about 10 years (T 875 line 55) at which time the treatment would be repeated at the same cost. This second restoration would last a further 10 years when the plaintiff would be about 52 years of age at which time full cast restorations costing $45,000 would be required plus two further anaesthetics at a cost of $10,100 totalling $55,100. 727 The plaintiff has carefully analysed the relevant costs allowing deferral on the three per cent tables where appropriate. For example, the first treatment would probably not arise for 10 years when the plaintiff was about 32. The amount of $30,100 was deferred on the three per cent tables for 10 years (multiplier 10.744) to yield $22,394. Defendant's Submission on Dental Treatment 728 The defendant said very little in its written submissions about the major dental matters, and, so far as I can see, really made no detailed submission regarding the small weekly allowance of $11.53. In its written submissions, the defendant disputed the future pharmaceutical costs relating to the dental gel treatment on the basis that it was far from certain that the plaintiff would undergo such treatment. There was, it was submitted, merely a chance of it happening. 729 So far as the prosthodontics are concerned, Mr Brereton had argued, on 6 June 2001, that what was really in issue was the chance of future periodontic treatment. He submitted that the evidence did not show that the plaintiff would definitely require this treatment nor had it been shown that she might definitely need some type of restoration treatment. He elaborated that Dr Baetz's evidence was very much expressed in the terms of what might possibly be required in the future. More detail was promised in the written submissions on this point but it does not appear to have emerged. Nevertheless, it remains true that what is to be determined is the estimate of the chance that both periodontic treatment and major restoration work will be required. I observed the plaintiff in the witness box and noted that her mouth movements continuously involved a degree of grinding which clearly explains the very poor condition in which her teeth were found to be by Dr Baetz and others. I would estimate that there is quite a high chance that the plaintiff will need to have the types of treatment detailed by Dr Baetz. In my view, the better way to handle the contingency that this treatment might not be needed is to allow a reasonably moderate discount of 15% to the sum of $61,770. This discount reduces the already discounted capital cost by $9,265 to $52,505. 730 Consistently with this additional reduction, I consider that the weekly amount $11.53 should be discounted by 15% to reflect the same contingency. This reduces the weekly allowance to $9.80 for the additional cost of six monthly dental consultations. Extra Cost of Caesarean Section 731 The final matter sought by the plaintiff in this category was an allowance of $5,000 for two Caesarean section deliveries as distinct from normal vaginal deliveries. It is necessary to mention at this stage that the plaintiff has made an additional claim for child care costs of $697,500. This arises out of the plaintiff's express intention to marry and her desire to have two children. I shall consider this aspect of her claim in more detail at an appropriate point in this judgment. 732 For present purposes, it is necessary to note that this claim is made to reflect the possibility that if the plaintiff does have children, it will be necessary for her to have them by way of caesarean section. Mr Levy admitted that this was "a broad brush approach". He argued, that although the head of claim was not agreed between the parties, the court should make an appropriate allowance for this item. 733 Mr Brereton made no specific submissions in relation to this portion of the plaintiff's claim, although, as will be seen, he made a forceful submission in relation to the claim relating to the additional costs of child care. In that regard, one of his principal submissions was it was unlikely that the plaintiff would marry and that it was even more unlikely that she would have children. I take it that I can safely assume the same submission would be made to this claim of additional medical costs relating to possible childbirth procedures. 734 For the reasons outlined in dealing with the plaintiff's principal claim for the additional costs of childcare, I decline to make an allowance for the costs of possible caesarean sections. Calculation 735 The calculation of the summary of the weekly costs of future medical treatment needs in accordance with the allowances I have made yields a final weekly amount of $49.66. Capitalised for Calandre's life expectancy of 50.67 years from the estimated date of judgment, this amount yields $68,059.03. 736 There is then a need to add in the following amounts: - (a) The discounted capital cost (less further discount for contingencies) related to major future dental treatment - $52,505 (b) The discounted cost of future psychiatric consultants - $5,000 737 All these amounts taken together bring the amounts I have allowed to a total rounded down figure of $125,564. 22. Future Paramedical costs 738 This is yet another head of damage where, despite extensive opportunities for agreement between the parties, there are considerable differences between their respective estimates. 739 The plaintiff claims $492,721 for her future paramedical needs. The defendant suggests that a reasonable allowance is $29,494. 740 One major difference between the parties arises out a particular submission made by the defendant which, in my opinion, cannot be supported at all. This submission infects the defendant's views on the need for future physiotherapy, occupational therapy and speech pathology. There is an abundance of evidence to suggest that the plaintiff needs ongoing treatment in all these areas although there are various estimates of the amount of therapy required on a regular basis. The particular submission of the defendant purports to examine the plaintiff's needs by reference to the records of the Spastic Centre. In other words, the argument is that if one looks at the treatment, for example, the plaintiff has received at the Spastic Centre for physiotherapy, this will determine her needs for future physiotherapy treatment. 741 To spell out this aspect of the submission more fully, it is necessary to remark that the Spastic Centre records show that for the year ended 30 June 1999, the plaintiff received only 8.25 hours. The defendant submits that there is no evidence that, in recent years, the plaintiff has required anything over and above what the Spastic Centre has provided to her or that she has sustained any particular problems through any lack of further therapy. This argument extends to the overall area of occupational therapy generally. 742 The second limb of the argument is this: the defendant has purported to conduct an analysis of Exhibit "XXX". This analysis examines the extent to which residents of Venee Burges House have received physiotherapy and occupational therapy over the years. It is argued that this analysis shows that an average of 30 minutes per year physiotherapy was received by each of the residents, and that an average of 45 minutes per year of occupational therapy was received by each resident. 743 This is an unconvincing argument for at least three reasons. First, an analysis of the physiotherapy and occupational therapy experience of residents at Venee Burges House throws no light whatsoever on the plaintiff's needs. Secondly, there is, as I have said, an abundance of evidence which specifically analyses her needs and makes estimates for the amount of therapy she should receive in the future. The defendant's approach ignores this. Thirdly, the plaintiff's experience and the degree of therapy she has received at the Spastic Centre is not a reliable indication of her future needs as she continues to age. Moreover, there is more than one reference in the evidence to the fact that the Spastic Centre has had cut backs on its funding and has become increasingly under resourced. For example, the nursing home is at present no longer taking new residents (T 3148 lines 30-40). 744 I have no hesitation in accepting that the plaintiff will need extensive physiotherapy and occupational therapy treatment. In my opinion, matters such as those I have outlined in Mr Brereton's argument lack real force. 745 The plaintiff's claim is made up of two categories. The first part relates to the "one off" costs for establishing a routine for paramedical therapies. This has been calculated at $12,204. 746 The second part of the claim relates to the recommendations for recurring paramedical costs. It is calculated, in its entirety, at $338.87 per week. The plaintiff has projected the amount of $338.87 per week over the plaintiff's life expectancy and has added the "one off" cost of $12.204. The result is the total claim of $492,271. 747 The defendant denies that the plaintiff needs any nursing assistance. It is argued that six hours per year is sufficient physiotherapy to be allowed. In relation to occupational therapy the defendant asserts that Ms French's allowance of 16 hours per year is too generous and that the recommendations of Dr Buckley and Dr Bowers that four hours per year would be appropriate is the better view. Ms French's recommendation of 16 hours per year involves four hours equipment review and 12 hours for the manufacture, review, adjustment and replacement of splints. The defendant says that no allowance should be made for so much of the occupational therapy as accommodates the manufacture and replacement of splints. 748 In relation to speech pathology, the defendant says that Dr Balandin's recommendations are overly generous. The defendant argues that one hour per year for speech pathology would be sufficient. 749 The defendant has made no submissions in relation to the remaining matters. These matters are carefully assembled and itemised in the schedules contained in the plaintiff's written submissions. Resolution 750 At the outset, may I say that nothing has been put to me which persuades me that there is any part of the "one off" costs which should be rejected. While it is true that there is evidence that Calandre has resisted the use of splints in the past, it seems to me clearly beyond doubt that it will be necessary for her to accept this as part of the recommended therapy. For a young woman of 22, the wearing of splints is no doubt a nuisance and cosmetically unsightly. There is no reason, however, to suppose that Calandre will refuse to accept properly based therapy and treatment for the future. I have little doubt that she will come to realise the need to embrace the requisites of the various carefully prepared plans for her future health regime, including the use of splints. I accept the combined total of $12,304 as an amount to be added to the capitalised weekly costs of paramedical items. 751 The recurring costs include physiotherapy advice for the supervision of carers implementing the hydrotherapy program; physiotherapy in relation to the hydrotherapy program itself so far as the plaintiff's physical exercise is concerned; general training of carers by physiotherapists and general programs to maintain the plaintiff's level of function and to prevent pain; the manufacture, monitoring and adjustment of splints; speech pathologist attendances for review of communication board and meal time assessments to maintain meal time management; and assistance with the family and carer training in relation to the electronic communication device. 752 Provision is also made for a rehabilitation engineer to assist in technology adjustments and equipment costalisation at one hour per annum. There is provision for four hours per annum for an occupational therapist to review the equipment and finally a provision of three hours per week for carer counselling and training. 753 There is no doubt that these recommendations are pitched at a high level. The plaintiff needs good care and a thorough care regime for her health, well-being and longevity. No specific matter had been identified by the defendant which would cause me to doubt the reasonableness of these claims. While it is true that some Doctors were not as generous in their allowance as was Ms French and/or Dr Balandin, there is no warrant for discounting their specialist expertise on that account. 754 I propose to allow the calculated weekly allowance of $338.87. Over the plaintiff's remaining life expectancy of 50.67 years from the estimated date of judgment, this yields $464,421.33. To this is added the "one off" cost of $12,204. 755 The total allowance is $476,625.33. 23. Future Pharmaceutical costs 756 The plaintiff claims $19,029 for her future pharmaceutical needs. The defendant disputes the quantum of fluoride gel and the claim for Ansell rubber gloves. 757 Consistently with previous findings, I allow the claim for fluoride gel but apply a discount of 15% for contingencies. This reduces the weekly amount to $7.55. 758 I do not consider that the weekly cost of approximately $3.00 for gloves is excessive and I consider that the allowance of three pairs daily is not unreasonable. For example, feeding the plaintiff can be a messy and untidy procedure. The defendant did not identify any matter which would point to this moderate allowance as being unreasonable. 759 The final weekly allowance for future pharmaceutical costs is $12.09. The projection of this amount over the plaintiff's remaining life expectancy over 50.67 years from the date of estimated judgment at three per cent (multiplier 1370.05) yields $16,569. 24. The Claim for increased Holiday costs 760 The plaintiff claims $429,654 for future additional vacation expenses. Dr Yeo had expressed the opinion that the plaintiff will need to take at least two carers with her for her safety and well being when travelling (Exhibit "WWWW" (2) p 2 para 1). 761 The basis of the plaintiff's claim is that she would be reasonably likely to take an Australian holiday for two weeks each year and that she would travel overseas (for example to the Paralympic Games) for three weeks once every four years. She expressed a desire to participate in these games in the future. 762 In its usual comprehensive manner, the plaintiff's team has assembled a series of reports from Travelaw providing original and update estimates which cover a period up to the end of the year 2000. Both in relation to the Australian and overseas estimates, an average has been struck. The result is that the average additional cost for the Australian annual two week holiday is $149.00 per week. The average additional cost for a three week overseas holiday is $255.00 per week. In each case, an offset has been applied to ensure that "keep" is allowed in the defendant's favour. 763 As a result of these calculations, the plaintiff submits that a reasonable assessment of the additional costs associated with vacations is $404.00 per week being a combination of the average weekly sums mentioned above. 764 The plaintiff has projected the sum of $404.00 per week over the plaintiff's remaining life expectancy at three per cent discounted by 25% for imponderables. This yields the claimed amount of $429,654. 765 The defendant takes issue with the level of holidays. It seeks to confine the plaintiff to a typical average Australian location such as the Gold Coast once a year. The defendant seeks to allow the plaintiff the additional costs of only one carer, not two. 766 This exercise, taking into account a 50% discount on full economy class fares, bring the additional cost to the plaintiff with a carer in relation to a Gold Coast holiday to approximately $2,000 per annum. Capitalised, the defendant suggests the plaintiff be allowed no more than approximately $50,000. Resolution 767 The plaintiff has sought the costs of additional care on vacations with a rather generous travel plan in contemplation. The defendant's response has been, not unsurprisingly, at the lower end of the scale. 768 I am satisfied that provision should be made in the plaintiff's award for increased costs that will be incurred when the plaintiff takes holidays. I accept that there will be a need for holidays. Indeed, this is not in issue. I consider that the amount claimed, however, is too high to be regarded as reasonable. I consider that the claim should be reduced to reflect a number of general considerations. First, it might be thought that the desire to travel overseas every four years is capable of being regarded as excessive. If the plaintiff were likely to have married and had children, as I think she would have if uninjured, and if she had pursued a successful business career, the amount of likely overseas travel would have been at a lower level. With all the hurdles which the plaintiff must face in relation to her studies, her health and her future treatment, I doubt whether her overseas travel pattern is likely to be at the suggested level. Secondly, the advent of more comfortable seating and provisions in business class on some overseas airlines may mean that a full first class facility would not always be necessary for the plaintiff. Thirdly, depending on the relevant seating configuration, it may be possible for the principal attendant carer to travel in business class rather than first class. This would also depend on the length of the trip and the destination. 769 In relation to the defendant's submissions, I think it is necessary to reject the suggestion that the plaintiff should be confined to an average Australian holiday such as a trip to the Gold Coast. There is, despite Mr Brereton's arguments to the contrary, more to life than this. In my opinion, the Travelaw estimates are more reasonably based reflecting an opportunity to holiday in various parts of Australia. Secondly, I accept that the plaintiff would need more than one carer in attendance for both Australian and overseas travel. Thirdly, although it is the fact that disabled persons and carers will be granted 50% discount on the full economy class fare, I would consider it unreasonable that the plaintiff travel in economy class within Australia or, for that matter, overseas. 770 In my opinion, the better way to resolve this issue is by approaching it in a broad and generalised manner. It is also necessary for me to take into account the fact that I have disallowed the plaintiff's claim so far as it relates to improvements to her family's Thredbo home. Disallowance of that item recognised that the plaintiff would legitimately require an allowance for the additional costs of regular vacations. 771 In considering a broad response to the claim, it is also necessary for me to take into account the fact that I have not accepted the plaintiff's estimate of life expectancy and that I have found it to be 51 years from her present age of 22 years or 50.67 years from the date of estimated judgment. 772 In my view, taking all of the various factors I have identified into account, an appropriate allowance is $330,000. 25. Loss of Financial Benefits of Marriage 773 The plaintiff claims $250,000 for the loss of financial benefits of marriage. 774 The evidentiary basis underlying this claim is the plaintiff's evidence that she wanted to marry although not before the age of about 28 (T 698 line 6). Calandre described that she had already received a proposal of marriage from a man who was also disabled but she declined this proposal because the time was not right. There were many things she wanted to do first (T 698 lines 1-12). 775 Mr Levy argued that it was a proper inference to draw both from the evidence and from commonsense assumptions related to the behaviour of young people generally in our society that Calandre would probably marry. He said it was probable, however, that her marriage partner would also be disabled. He allowed for the possibility that the plaintiff may not in fact marry or that if she did, the marriage may not last as a consequence of her severe disabilities, particularly her inability to walk or talk. 776 In the circumstances arising from these various possibilities, Mr Levy maintained that, either as a consequence of the plaintiff not marrying at all or as a consequence of the plaintiff marrying a disabled partner, the plaintiff would be likely to lose the benefit of the financial support of the life time earnings of a marriage partner. 777 The plaintiff's submissions entailed a consideration of the approach taken in a number of different cases decided in the court. These included Commercial Union Insurance Co Australia Limited v Pelosi (unreported NSWSC Barr AJ 28 February 1995; NSWCA 2 February 1996); GIO (NSW) v Mackie (NSWCA (1990) ATR 81-053 at 68, 214); Hines v The Commonwealth of Australia (1995) ATR 81-338; East v King (1999 NSWSC 314 Grove J). It was common ground that each of these cases involved different factual situations from one another and from the situation revealed by the facts in this case. 778 In attempting to quantify the plaintiff's claim, Mr Levy pointed to a mathematical approach which took as its foundation the figure for average weekly full time adult total earnings. This was done to reflect the earning capacity of a non disabled marriage partner. The average weekly sum of $660.00 per week was halved then projected over a joint working life expectancy between say ages 30 and 65. After making an allowance for vicissitudes, this mathematical approach gives the loss of financial benefits of marriage in the order of $300,000. This was said to be a conservative estimate because financial benefits from marriage would be expected to continue after the partner's retirement from work through superannuation and the capital growth of assets. There was also the prospect that the plaintiff might have married a high earning professional and, on that analysis, her loss would be much more. 779 An alternative but less expensive estimate was made adopting the figures noted by Sheller JA, as had been allowed by Barr AJ in Pelosi, and applying a vicissitudes discount to it. This yielded a figure of about $106,500. 780 Finally, the plaintiff suggested that an intuitive approach might be taken which could vary between $100,000 and $400,000 according to the parameters of sound discretionary judgment. 781 The defendant's principal submission was that no separate allowance should be made for the loss of financial benefits of marriage but rather it should be reflected in the allowance for "vicissitudes" in relation to loss of future earnings. The defendant cautioned that care must be taken to avoid double recovery when considering both loss of earnings and loss of support. 782 It was submitted that the preferable approach is to consider the loss of opportunity to marry as "weighing in the scales" in determining the deduction for vicissitudes, potentially leading to a lesser deduction for vicissitudes in the assessment of lost income. It was necessary to bear in mind the possibilities that the plaintiff may never have married; may have left the workforce on marriage, or on the birth of a child; and may have had a short and disastrous marriage, or a highly successful one. (GIO (NSW) v Mackie supra 68, 214-68, 215). 783 An analysis of the various possibilities and the likelihood of their occurring was undertaken, accurately in my view, by the defendant. The various possibilities might be considered as follows: - (i) But for her injuries, the plaintiff may never have married in any event. This was probably unlikely, but had it occurred, she would have suffered no compensable loss. (ii) But for her injuries, had she married, the marriage might have been short and unsuccessful or produced no real financial benefit. On that footing, she would have suffered no loss under this head of damage. (iii) But for her injuries, if she had married successfully and gained a financial benefit, the benefit might well have amounted to her being supported financially with the consequence that it was unnecessary for her to engage in employment and exercise her earning capacity, either at all after marriage, or from the birth of her children, or at least for a substantial period. In respect of these various possibilities, she will have suffered a loss but it is one which is offset against her claim for lost future earnings. (iv) She may have married but have been obliged to support a husband to her financial detriment. (v) She might have married successfully and, additionally, derived economic benefits from marriage while still exercising her earning capacity to a significant extent. The recognition of this possibility allows for a compensable loss. The defendant argues that because it is only one of several possible scenarios, a large discount - perhaps 80% - would have to be applied to the value of that benefit reducing it to 20%. 784 Moreover, there is a chance - a remote one - that the plaintiff may still marry or enjoy a relationship, notwithstanding her injuries. On account of that possibility, a further discount - perhaps 10% must be applied to the 20% leaving a residual chance of something in the order of 18%. 785 Taking all these considerations into account, the defendant's position is that, on balance, the better approach supports retention of the conventional 15% discount for vicissitudes in relation to compensation for lost future earnings. Resolution 786 Support for the defendant's approach is to be found in Mackie (supra) at 68, 215 where Clarke JA said: - "There is, in my opinion, much to be said for this approach in the circumstances of this case. Bearing in mind the possibilities that she may never have married, may have left the workforce on marriage, or the birth of a child, may have had a short or disastrous marriage and had to support her husband or, on the other hand, may have worked continuously in a successful partnership with her husband and thereby enjoyed a very high standard of living, that approach would recognise a vicissitude which worked in her favour. However, I think that any adjustment would need to be small to avoid what is a real risk of over compensation. In this way the claim for the destruction of marriage prospects is not simply disregarded but is taken into account, albeit that the claim is reflected in a minor adjustment to the compensation for the loss of earning capacity." 787 In Rosniak v GIO (supra) at 617, Mason P gave consideration to the rejection by the trial judge of a separate claim based on loss of successful marriage and family life. In that case, the plaintiff had been horrifically injured when, aged 11, she had been involved in a motor vehicle accident. His Honour noted that the grounds of appeal challenged the trial judge's rejection of an application to include in her claim for damages a specific sum to compensate for the loss of financial support of a husband. In the course of dealing with future economic loss, his Honour noted that it had been submitted that the plaintiff, had she not been injured, might well have, and indeed would have, married and raised children. This led to the submission that the plaintiff had lost forever the financial support which she would otherwise have received from her husband and the possibility of support in her old age from the children she would never now have. The submission continued that the plaintiff had effectively lost the probable economic value (to a woman) of the "average" marriage. Against the background of these submissions his Honour said (at p 617 at line G): "The proposition that loss of support from a marriage partner may be compensable where the defendant's wrong has deprived a plaintiff of that support is uncontroversial in principle. However, the traditional approach has been that voiced by Samuels JA in Warringah Shire Council v Jamieson (CA 19 December 1980 unreported) at 35 that: 'Generally it will be appropriate to assume that a female plaintiff would have sought, and obtained in marriage financial benefits roughly equal to those which she could have got in commercial or industrial employment'." 788 Mason P then referred to Sharman v Evans (supra) at 583-584; and Mackie (supra) at 68, 214. His Honour continued: - "The latter case demonstrated that care must be taken to avoid double recovery when considering both loss of earnings and loss of support. In GIO (NSW) v Mackie Clarke JA recognised that different cases needed to be dealt with differently. In the instance the case of a young lady who was engaged to a wealthy man and who established that she had not planned to work after marriage. For such an injured plaintiff 'the destruction of marriage prospects could not simply be swept aside' (at 68, 215). For other cases, the matter may be more appropriately weighed in the scales in determining the extent of any deduction for vicissitudes (Ibid)." 789 His Honour said that he did not see the later cases of Hines (supra) and Pelosi (supra) as introducing any new principal. He said: - "They certainly do not establish the general proposition, relied upon by the plaintiff, that any woman who loses the realistic prospect of marriage in consequence of a defendant's negligence, may recover a separate head of damages on that account." 790 At 619 line D his Honour noted that there were many financial contingencies facing a young woman about to enter marriage, not all of them favourable. He added: - "The uncertainties are multiplied considerably when the plaintiff whose marriage prospects are destroyed is injured at a very young age." 791 Mason P found that, for procedural reasons, the trial judge had not been shown to have erred in the exercise of his discretion when he had refused the plaintiff leave to amend her claim to add this matter as a separate head of special damages. This was, he said, "all the more so where the matter was taken into account in the plaintiff's favour in the assessment of discount for contingencies" (618 line F). 792 At the conclusion of Mason P's decision on the point at 620 lines C-D, he confirmed his view that "the traditional approach to such matters", in an ordinary case, short of the exceptional type of case which Clarke JA had envisaged, is best dealt with by an adjustment to the vicissitudes. 793 For relevant purposes both Meagher JA and Clarke A-JA agreed with Mason P. 794 In my opinion, the observations of Mason P have even greater force in the case of a plaintiff, such as Calandre, who was injured at birth. In particular cases, such as Hines (supra) and Pelosi (supra) a specific amount has been allowed for this head of damage. The factual differences show why this is so. For example, in Hines the plaintiff had been engaged to be married to an accountant before her tragic accident. In Pelosi, the plaintiff was 18 years of age when injured. She was, prior to the accident, an intelligent personable well educated and attractive young woman. 795 In a case such as the present, where the plaintiff has been injured at birth, and where there are no other special features, it seems to me that I am bound both by principle and logic to approach the matter by way of "the traditional approach" mentioned by Mason P in Rosniak. This is to allow for the possibility of the lost chance of financial benefit by adjustment in the plaintiff's favour to the vicissitudes affecting future lost earnings. The determination to confine the allowance for vicissitudes at no more than 15% has already been made and recorded earlier in these reasons. 796 In these circumstances, I decline to allow the claim for a separate specific monetary allowance. 26. Future care of Child Care 797 The plaintiff has made a very significant claim of $697,500 for future child care costs. In fact, the claim as outlined by the plaintiff is $933,000 but has been discounted by 25% to reflect the contingency that the plaintiff may not have children or that alternatively she may only have one child. 798 The genesis of the claim is the plaintiff's evidence that she intends to marry and her express desire to have two children (T 698 lines 22-24). 799 There are number of reports from Dr Barrowclough who has been endeavouring to assess the plaintiff as to whether she would be able to have children (Exhibit "BB"). Dr Barrowclough is a Consultant Obstetrician and Gynaecologist. He gave evidence at T 1202-1209 on Day 25 of the hearing. He gave further evidence on 8 May 2001 in the nature of an update. He said that the result of the hormone assay test he had conducted indicated to him that it was probable that ovulation would occur. It is necessary to say that, due to the difficulty of her periods, the plaintiff, until a short time before the hearing, had been taking a drug Depo-Provera. The effect of this medication was to suppress ovarian function and to prevent difficulties associated with menstruation. The plaintiff had ceased taking the drug before the hearing. The repeat hormone assay tests by Dr Barrowclough were designed to see whether ovarian function was, more likely than not, on the way back to normal. 800 As at the 8 May 2001 he thought that ovulation would occur "within two or three months". Dr Barrowclough also raised the possibility that medication could be used to stimulate ovulation if the function did not return normally. He said that this treatment yielded over 70 to 80% success rate. 801 With the consent of the solicitors for the first defendant, the plaintiff filed an affidavit sworn by her solicitor, Mr Monteith on 14 September 2001. This was filed by consent on 24 September 2001. In the affidavit, Mr Monteith refers to the evidence which had been given by Dr Barrowclough during the hearing. The affidavit contained a short report dealing with a further hormone assay in relation to the plaintiff. The report, which is in the form of a letter to the plaintiff's solicitors, says this: - "Dear Mr Monteith, Enclosed herewith a copy of Miss Simpson's last blood report. The Progesterone level does not yet indicate a mature ovulation but it is steadily improving and I am satisfied that within a few months such an ovulation will occur." 802 Expert evidence arranged by the plaintiff provided a full and comprehensive method of the costing involved for child care in the event that the plaintiff entered into a relationship, married and had two children. These very detailed reports addressed child care costs from infancy to age 17. The projection of costs in fact goes until the age of 19 for the eldest child, as this would be when the youngest child would reach the age of seventeen. 803 The figures yield, when rounded down, a total of $933,000 to which a 25% discount has been applied to achieve $697,500. 804 It appears to have been accepted by both parties that, in principle, the need for assistance to do that which the negligence had deprived Calandre of the capacity to do was not limited to self care (Sullivan v Gordon (1999) 47 NSWLR 319, 322 and 331. 805 In Sullivan, the appellant had suffered extensive injuries in a motor vehicle accident when she was 16. Her principal injury had been frontal lobe brain damage which gave rise to her main ongoing disability. Before trial, the appellant gave birth to two children. Her mother provided personal assistance for the appellant and also for one of the children. This gave rise to a Griffiths v Kerkemeyer claim which included the relevant claim for child care. 806 Beazley JA gave the principal decision of the Court. It became necessary for the Court to reconsider Burnicle v Cutelli (1982) 2 NSWLR 26. In that case, the Court had held that while the loss of the capacity to care for dependant children was compensable, it only sounded in general damages. In Burnicle, the plaintiff's lost capacity was one which she had exercised prior to her accident - that is, she already had a family for whom she cared at the time of the accident. 807 Beazley JA (with whom the other members of the Court agreed) held that Burnicle was no longer good law. In the judgment of Beazley JA, there were identified three propositions which had been advanced on behalf of the respondent in that case. These had been made to support the argument that the appellant was not entitled to be compensated on a Griffiths v Kerkemeyer basis for the loss of her capacity to care for her children, otherwise than by way of general damages. The three propositions were these: First, the case was to be distinguished from Sturch v Willmott (1997) 2 Qd R 310) where the plaintiff had children at the time of the accident. Secondly, the matter was to be determined as a matter of causation and, in the instant case, the loss of capacity to care for children was not caused by the accident, but by the plaintiff's own action in having children; and thirdly, the plaintiff had not acted reasonably in having children. 808 Her Honour dismissed the first proposition as lacking both legal and practical logic. In relation to the second and third submissions, Beazley JA, with whose judgment the Chief Justice agreed, was satisfied that the brain damage the plaintiff had suffered in the accident had "reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children". Her Honour found (at para 67) that: - "The plaintiff's conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent's negligence and consequently there was no break in the chain of causation". 809 In the present case, the defendant submits that the cost of future child care will be the result of the voluntary, informed and possibly imprudent decision of the plaintiff. Thus, if Calandre were to have children, it could not be said that her conduct in doing so was caused by the defendant's negligence; rather, it would have been caused by her own informed and deliberate subsequent conduct. As a consequence, it is not reasonable to impose upon the defendant the cost of care for children voluntarily borne by the plaintiff after the injury. This submission raises the question - if the plaintiff were to have children of her own violation, would this break the chain of causation? 810 I agree with Studdert J in Beck v State of New South Wales ((2001) NSWSC 278 at para 237) that Sullivan leaves this "difficult question" open. Mason P in Sullivan agreed with the order proposed by Beazley JA but the President said this (p 324 para 14): "The birth of children is also linked to the accident, in a sense, because the appellant's brain damage impacted upon her ability to determine whether it was appropriate or responsible or sensible for her to have children: see at (para 67) of Beazley JA's reasons. I am inclined to the view that it would make no difference if this unusual link were absent, but I express no final view on the matter. An injured plaintiff's own need for personal care includes changing needs occurring throughout his or her life time. Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasors door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of the law". 811 The question raised by the defendant in the present case, as to whether it is reasonable as a matter of principle and policy to lay the cost of care for children born after the injury at the tortfeasor's door, is also left open in Sullivan. 812 It might be thought, at least according to the Judaeo-Christian tradition, that it is an unusual proposition to suggest that conception pregnancy and child birth, following upon marriage, is anything other than a demonstration of the natural order. On the other hand, from the point of view of a social behaviourist, at least in affluent western society, it is now days quite common for women to make decisions as to whether they wish to have children, and if so, when and by what methods. Modern medicine and scientific technology make these decisions achievable in terms of their reality. Despite the complexity of these possible approaches (and no doubt others), the question falls to be decided by legal principle. It seems to me, although I express the view with considerable hesitation recognising that it is the probable prerogative of an appellate court to make a decision in this area, that the causation argument smacks of a return to the "but for" test in relation to causation. In March v E & M H Stramare Pty Limited (1991) 171 CLR 506 the High Court discussed the proper approach to questions of causation. As Mason CJ held in that case, causation in negligence is a question to be determined by applying commonsense to the facts of a particular case. This test also applies to the question whether some particular damage resulted from the negligent act or omission: see Medlin v State Government Insurance Commission (1995) 182 CLR 1. As a matter of commonsense, the need for the expense will have been caused by the negligent act that resulted in the damage giving rise to the disability. The expense is a product of the negligence as is the disability. It would normally be compensable unless it is of a kind that a defendant could not reasonably foresee. 813 If a severely disabled plaintiff is eventually able to have a child but requires additional help in rearing the child as a consequence of the disabilities caused by the negligent defendant, it is difficult to see why, in terms of causation, the cost of that additional expense should not be borne by the defendant. 814 In my opinion, however the difficult but interesting questions raised by the defendant's submissions do not need to be answered by me in relation to the consideration of this head of damage. This is because I have come to the clear view, contrary to the very careful submissions of the plaintiff, that it is quite unlikely that the plaintiff will ever marry. I find it even less likely that she will have a child, let alone children. I will state my reasons briefly. 815 There is no doubt that Calandre has expressed a wish to be married and has expressed a strong desire to have her own family. Such a wish is perfectly natural and understandable. It is particularly understandable given the example of the strong loving relationship shown to her by her own mother. 816 There are, however, a series of hurdles confronting the plaintiff which appear to me to take the possibility of her having children into the field of mere speculation. First, there is the evidence of Dr Barrowclough himself. I accept that there is a probability that the plaintiff's ovulation function will return to normal but it has not happened yet. Further, I accept that, as Dr Barrowclough explained, there are medications which will assist in the restoration of ovulation and fertility. These treatments have a good rate of success, but complete success is not guaranteed. Secondly, there is the evidence of Lidia Fegan, a Clinical Psychologist who provided a report Exhibit "AA". Her speciality was sexuality in the disabled. In her report, Ms Fegan spoke at length of the difficulties facing people with disabilities generally in securing and maintaining relationships and with conducting sexual relationships and bearing children. She said at p 6 Exhibit "AA": - "Despite of all these difficulties, some people with cerebral palsy are known to have formed relationships, and a small number of them have even borne children. Others have opted for a relationship for companionship and mutual emotional support". 817 Ms Fegan was cross-examined by Mr Butcher on behalf of the defendant. She acknowledged that the plaintiff faced "double obstacles" in forming a long term relationship and, secondly, in terms of overcoming the problems associated with having children. Ms Fegan agreed that these were "major challenges" (T 866 lines 20-25). Mr Butcher put the following questions to her at T 866 lines 25-25: "Q. Do you agree that when one looks at the situation as much as one would wish the best for Calandre, its really very unlikely that she will be able to have children in the circumstances? A. Well, I think that's beside the point if I may say so, with respect, because I think that she has a right, as anybody has a right, to pursue her dreams. Q. Well, she certainly, putting aside the question of whether she has the right to pursue her dreams, would you please answer my question and that is that looking at the reality of whether her dreams come to reality, its unlikely that she will be able to have children the way she is dreaming? A. Again I can't say that." 818 At the conclusion of her cross-examination, Ms Fegan answered some further questions which indicated that she knew a number of people with cerebral palsy who had borne children. She indicated that there were "probably about half a dozen". She indicated, however, that most of those probably had a smaller level of disability than Calandre T868 lines 5-10). 819 Mr Butcher took this up in further cross-examination at line 50: "Q. Do I take it from your answer to his Honour that you are actually not aware of any individual case where someone with the same degree of disability as Calandre has had children? A. I know one couple where both people have very serious physical disabilities and they did have two children. Q. The same as Calandre or not quite the same? A. Almost the same, yes. It's very hard to compare but if I remember the person I am thinking of is in a motorised wheelchair and she has more movement and control of her arms and fingers I think, than Calandre." 820 Fourthly, as I have noted, Ms Fegan had agreed that Calandre would face very great obstacles in forming a relationship and very great obstacles in maintaining a relationship (T 863 lines 5-15). 821 Fifthly, there was evidence from other experts such as Dr Phillips and Dr Bowers who thought the chances of the plaintiff having children were remote (T 858-859; Exhibit "W", T 733.05; Exhibit 102 T 1439.6) 822 While I have considerable sympathy with the desire of the plaintiff to become a mother I am forced to conclude that this aspect of her claim must be viewed as speculative. Accordingly, I do not consider that it would be proper to make any specific allowance for the claim (Malec v J.C. Hutton Pty Ltd (supra) at 642-643). I have, however, taken into account the diminished prospects of the benefits of a normal married family life including parenthood in the assessment of general damages. 27. Case Manager 823 The plaintiff claims $405,548 for the cost of future case management. 824 There is no dispute between the parties that the plaintiff should be allowed the cost of a case manager. The dispute arises in relation to the various estimates of the time to be made available to the plaintiff for case management. 825 The various estimates were these: Dr Buckley thought that eight hours a month would be the initial requirement followed by four hours a month over a life time average (T 397 lines 15-19). He deferred however to Mr Kennedy-Gould's greater experience and to his opinion (T 397 lines 38-46). Ms French proposed an initial 12 hours per week, reduced to four to six hours per month over a life time average. Mrs Crowe did not give any specific estimate of time but described it as an "onerous task" (Exhibit "FF' p 6). 826 Mr Kennedy-Gould thought two hours per week as a life time average was appropriate (T 376 line 20; T 379 lines 21-22; Exhibit "Y" p 3). Mr Kennedy-Gould explained why he thought two hours per week would be necessary. He stressed the unpredictable nature of the client's life. There may be crisis, he said, and there are times where there would be a need for a high level of clinical supervision. Consequently, there needed to be a flexibility so that there could be responsiveness. He cautioned against the risk of disabled persons becoming institutionalised in their own home unless there was adequate and aware case management. 827 Mr Kennedy-Gould said the case manager must constantly be in contact with Calandre to know what is going on. The case manager needed to know what her perceptions were and her views in relation to her care program. It was also necessary for the case manager to be in contact with her family to ensure that their views were receiving proper weight as well. He pointed out that more time has to be spent where a client has "insight". In addition, there was the practical factor that Calandre needed to have face to face meetings with the case manager. He said at T 377: - "Well, it means that the case manager can't breeze in and breeze out and there has got to be a patient approach to allowing Calandre to spell out her ideas on the communication board. Also given Calandre's physical disabilities, it is somewhat harder to read her non/verbal communication. … There is simply no short cuts in communicating effectively with someone such as Calandre." 828 There are two further areas in which Mr Kennedy-Gould justified the time which would be necessary in relation to a case management program. He cautioned that Calandre might become quite isolated within her own care program. Consequently, the regular involvement of the case manager provides her with an opportunity to express herself. The second matter he stressed as being "extremely important", was that there was a need for the case manager to regularly examine the notes, the progress notes, the communication book kept by the carers to make sure there was proper follow up on the issues and reference to the care plan (T 377 lines 30-55). 829 It became quite clear that the case manager has significant duties not only in relation to the patient but also to the carers themselves and to members of the family. 830 Dr Bowers thought that the input of a case manager would require one hour every two months. Mr Levy SC was highly critical of this estimate pointing out that it would allow "approximately seven minutes per week". I agree that this estimate is not sustainable and indeed the defendant submitted that a case manager should be allowed at around two hours per month (at the cost of $120.00 per hour as stated by Mr Kennedy-Gould (T 379 line 1)). 831 In my opinion, the provision of adequate case management is a very important part of the plaintiff's care regime. Given the severe nature of her disabilities it seems to me that Mr Kennedy-Gould's estimate is a reasonable one and is based on a genuine medical need. In fact, Mr Kennedy-Gould said that unless there is adequate and flexible clinical supervision, care regimes fail (T 379 line 25). Case management also reflects and impacts on other issues such as the need for a funds manager and court visitor. In my opinion, this aspect of the assessment should be made on a generous basis. 832 There appears to be a dispute between plaintiff and defendant as to the cost per hour properly allowable. In Exhibit "Y", Mr Kennedy-Gould had said at p 3: - "It will be necessary for the appointment of a case manager with qualifications in the areas of psychology, occupational therapy, social work or nursing who would undertake the above tasks and also ensure integration with Calandre's family and co-ordination of activities and services. (Two hours per week at a cost of approximately $120.00 per hour plus GST)." 833 At T 379 Mr Kennedy-Gould had been discussing the possibility that an appropriate case manager might be drawn from the ranks of occupational therapists. He responded by suggesting that case managers could come from within a range of clinical disciplines. He confirmed (at T 379 line 1) that the cost he mentioned in his report, namely $120.00 per hour plus GST, was "still the current general figure". 834 He then gave an hourly costing for Occupational Therapists, Physiotherapist and Hydrotherapists in situation such as Calandre's. The costing for this item was in the general range of $130.00 plus GST. 835 It is not clear to me whether this slightly higher cost was meant, in an oblique fashion, to replace the amount of $120.00 per hour plus GST. I have assumed that it was not for the purpose of the calculation that I propose to make. 836 Accordingly, I propose to allow $120.00 per hour plus GST on the basis that two hours per week is reasonable. I bear in mind and repeat that I have disallowed a major part of the plaintiff's highest claim for future attendant care namely, managed care. One basis for this was that there would be a generous allowance for a case manager. I allow $264.00 per week for the remainder of the plaintiff's life expectancy namely 50.67 years from the date of estimated judgment. This amount to $371,812. 28. Court Visitor 31. Funds Management 837 The plaintiff claims $13,015 to cover the future cost of the services of a court visitor. 838 This claim is tied up with the potential need for the plaintiff to have a Trustee to manage her affairs. It is submitted that a prudent Trustee would engage a court visitor (such as Mr Kennedy-Gould) to visit and report to the Trustee about client welfare and the proper deployment of trust managed funds. 839 Mr Kennedy-Gould had explained that, in circumstances where a client's affairs are controlled and managed by the Protective Commissioner or a private manager or Trustee, the Trustee appoints a person to visit the client in an official capacity. Details were provided by Mr Kennedy-Gould of the likely cost per annum of a court visitor's report. 840 These costs resulted in a projection of $8.65 per week. Calculated over the plaintiff's remaining life expectancy this yields $11,855. Mr Kennedy-Gould estimated that there would be a cost of between $550.00 to $750.00 for the initial court visitor's report. Adding say $550.00 to the projected figure, this identifies, in the plaintiff's calculation, the costs of the court visitor at $12,405. 841 The defendant argues that no allowance should be made for the cost of a court visitor. Mr Kennedy-Gould had made the assumption that Calandre fell within the normal range of intellectual capacity. He said however, the reality is, she was effectively dependent for a great degree of her day to day living on others, although he made an assumption that there was no degree of mental retardation involved in her case. He had pointed out that, generally, people who have suffered a severe range of disabilities who are dependant and who have not had a flexible lifestyle tend to show a more immature presentation than others of their same age. This is, he said, not a reflection necessarily of capacity, but the realities of their environment (T 387 lines 40-55). 842 The defendant's essential submission is the cost of a court visitor would be appropriate only if the plaintiff were an incapable person and she does not answer this description. Discussion 843 The plaintiff does have a number of physical disabilities which are plainly capable of affecting her ability to manage her own affairs. On the one hand, she is desirous of being independent, she has drive, determination and a capacity and willingness to learn. Many of the pieces of equipment which are recommended for her therapeutic betterment and health welfare will, in turn, give rise to an increased capacity in the ability to manage her own affairs. Nevertheless, her disabilities will remain and they are quite severe. She has eye problems with her gaze paresis. Secondly, the athetoid nature of her cerebral palsy gives rise to a range of excessive uncontrolled movement and cramps and spasms from time to time. She has some deficits in relation to her arithmetical abilities and has a poor grasp of general knowledge. Her level of maturity and worldly expertise are, not unnaturally, at a restricted level at this stage. 844 Mr Levy has suggested in relation to the closely connected issue of Funds Management that the plaintiff's level of physical disabilities, combined with the other matters to which I have drawn attention, make it clear that the plaintiff is vulnerable to exploitation and in many respects unable to manage her own affairs. All these matters would be fairly addressed in Mr Levy's submission, if a Trustee were appointed for the purposes of Funds Management. 845 In order to resolve this issue, it is necessary at this stage to consider head of damage No 31 relating to Funds Management charges. The parties have agreed that I should address this issue in principle leaving the final resolution of it until after the reasons for decision have been published. As a practical matter, the parties will, if Fund Management charges are to be allowed, either come to an agreement as to the appropriate method of assessing the charges or present the court with a short argument for resolution of the differences between them. Obviously, it would be far preferable if the parties could come to an agreement on this matter if fund management charges are allowed, or failing those charges, in the event that some other type of allowance is permitted. 846 If Fund Management charges are not allowed, the defendant accepts that at least in theory, the plaintiff's physical disabilities might well give rise to a claim for the additional costs, if any, of expenses of managing her financial affairs to the extent that the defendant's negligence has caused expense to the plaintiff in carrying out those day to day financial functions. A moderate allowance for future training in relation to financial management might also be contemplated. As I understand it, the plaintiff wishes to make no monetary submission in respect of this head of damage until a verdict has been entered. In other words, the plaintiff has reserved the right to make further submissions about the calculation of the amount once the question is resolved in principle. 847 The defendant has made some brief submissions in relation to the possibility of an alternative allowance, if it be found generally that Funds Management charges are not to be allowed. Essentially, the defendant maintains that the costs of any additional expenses in arranging the plaintiff's financial affairs are adequately catered for in the cost of future attendant care and the provision of a case manager. Alternatively, the defendant allows that a moderate training amount may be awarded. Relevant Principles 848 The principles are clearly established in The Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 52, 57, 62 and 67. At p 54 McHugh J said: - "If a defendant's negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day to day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and expense of managing those tasks. The expense is just as much a product of the defendant's negligence as is the disability. It is compensable therefore unless it is damage of a kind that a defendant could not reasonably foresee." 849 At the foot of the same page his Honour said: - "Damages may therefore be awarded for the expense of managing a plaintiff's verdict monies when the plaintiff's disabilities prevent him or her from managing those monies and the disabilities are the foreseeable consequence of the defendant's negligence. Damages may also be awarded for the expense of investment advice where, as a result of the defendant's negligence, the plaintiff is no longer able to make adequate decisions concerning his or her own financial affairs. In both cases, damages are payable by the defendant because the expense is the necessary product of the defendant's negligence and is not the result of the free informed and voluntarily act of the plaintiff. The expenses have been brought about by the loss of a plaintiff's ability to do what that person was capable of doing before the occurrence of the tort which gives rise to the claim for compensation." 850 McHugh J (at page 55), made it clear that where an expense arises merely from the size of an award of damages and the exercise of a choice by the plaintiff as to how to invest those damages, this is not a recoverable expense. This is because the expense of exercising that choice is not the consequence of the plaintiff's injury. It is the result of the plaintiff's decision to invest his or her money rather than to spend it or to invest it in a fixed asset or some other form of investment. Consequently, unless a defendant's wrong has caused a disability that requires the plaintiff to obtain assistance in managing verdict monies, the cost of such assistance is not caused by the defendant's negligence and is not recoverable as damages from the defendant. 851 Later at page 60, McHugh J made the additional point that, generally, the Court is not concerned with the manner in which a plaintiff uses the sum awarded. His Honour said: - "However, this contention misconceives the role of a court in awarding common law damages. Except in those cases where the plaintiff is under legal disability, the court has no interest in what happens to the plaintiff's damages. It has a duty to assess fair compensation for all the effects, physical, mental and financial, that the defendant's negligence has had on the plaintiff. But at common law, compensation is given on a one off basis; there are no periodic payments of compensation. The court awards a single sum and enters judgment. Its role is then finished …. What the plaintiff does with the verdict monies is a matter entirely for the plaintiff." 852 In Gardikiotis, the plaintiff was 21 years old at the time of the accident. She had a condition of multiple sclerosis which was aggravated by the accident to such an extent that she was confined to a wheelchair for the rest of her life. She also suffered a permanent impairment of her ability to write. She was of sound mind and suffered no mental injuries as a result of the accident. The trial judge had found that the "plaintiff was not brain damaged, she is a reasonably well educated girl and in fact a very impressive young lady who will not work and who will have ample time to invest her money and manage her interests". The trial judge had refused to award damages to compensate the plaintiff for the cost of Fund Management. At p 62, McHugh J concluded that the Fund Management fee was not recoverable. He said: - "The defendant's negligence has not affected the plaintiff's intellectual capacity to invest her monies. Accordingly, the defendant is liable in damages for the expense of managing her financial affairs only to the extent, if any, that its negligence has caused expense to the plaintiff in carrying out those day-to-day financial functions that she could have performed herself but for the accident. The plaintiff has difficulty with her writing. She is also confined to a wheelchair. It seems likely therefore that she now incurs and will continue to incur expense in managing her financial affairs as a result of the defendant's negligence. The principles of just compensation require that she be indemnified for that expense in addition to any award of damages for her disabilities." 853 Gummow J, in his separate judgment (with whom Brennan CJ, Dawson, Toohey and Gaudron JJ agreed), did not, in essence, disagree with the statements of McHugh J. His Honour agreed that there was no finding that the tortious act gave rise to the need to incur the cost of Fund Management and there was no suggestion of intellectual disability preceding or consequent upon the accident (p 69). His Honour added: - "However, as McHugh J points out in his reasons for judgment, while the tortious injury has not affected the capacity of the respondent to invest her monies, her physical state, with confinement to a wheelchair and difficulty in writing, makes it likely that some expense will be incurred, as a result of the tort, in managing her financial affairs. It is for the Court of Appeal, failing agreement by the parties, to determine what, if any sum, should be allowed for this expense." Resolution 854 There is no doubt that the large amount of the likely verdict in these proceedings will require, if invested, funds management. The question is whether the consequent expense is necessarily incurred as a result of the disabilities caused by the defendant's negligence or whether it results from the exercise of a choice by the plaintiff as to how to invest the damages. 855 This is not so clear a case as that of the plaintiff in Gardikiotis. Calandre suffers from a range of disabilities all of which were clearly caused by the defendant's wrong. Do they, either individually or in combination, prevent the plaintiff from managing the damages? Is the situation that, as a consequence of those disabilities, the plaintiff is not able to make adequate decisions concerning her own financial affairs? 856 I have come to the ultimate conclusion that her disabilities are not such as to prevent her from managing and making decisions regarding her own financial affairs. I regret to say that I am unable to accede to the plaintiff's argument that the possibility of "exploitation" by carers is an adequate basis for allowing funds management. The carers are there to attend to the plaintiff's needs arising out of her disabilities. The case manager is there to supervise the carers and to otherwise address the plaintiff's needs. Her family are there to provide a general level of support and to provide further supervision of the carers and the case manager. Exploitation is regrettably possible at any of these levels. The relevant point, however, is that the plaintiff who is a very capable and determined young woman has the capacity to manager her own affairs. Her disabilities, although profound, do not remove this capacity. 857 Two points in qualification need to be made. The range of the plaintiff's disabilities I have identified will plainly cause expense to the plaintiff in carrying out a number of the day-to-day financial functions that she may well have performed herself but for her injury. She is confined to a wheelchair; the nature of her athetoid cerebral palsy result in her physical actions being involuntary and undisciplined. She cannot write in a conventional sense and she is unable to speak. She needs 24 hour care in relation to all her activities. There will plainly be a need to compensate her for the expenses of carrying out a number of financial functions that she might otherwise have been able to do but for the injury. It is too glib an answer to point simply to Internet banking as eliminating the need to take account of these additional expenses. In my view, an appropriate but moderate allowance should be made but it may be necessary for me, failing agreement, to hear the parties before deciding the amount. Secondly, the defendant conceded that it may be likely that a further allowance should be made for a one-off sum to cover the cost of tuition and training for the plaintiff in relation to financial management. I agree that this additional fee is appropriate. I urge the parties to come to a sensible compromise in relation to both these aspect of the claim. If not, I will determine the additional amounts. 858 The final point is this: the large amount of the likely verdict would make it unwise in the extreme for the plaintiff, at this stage of her maturity, to make unaided decisions regarding the investment of the monies. It would be plainly sensible for her to engage a Funds Manager. The effect of my conclusion however is that this is not to be at the defendant's expense, save for the allowances I have mentioned in the last paragraph. 859 For the same reasons, I have come to the conclusion that no allowance should be made for a court visitor. Again, this is not to say that the plaintiff should not give earnest consideration to engaging a court visitor if funds management is utilised. It should not, however, be at the defendant's expense. 29. Out-of-Pocket Expenses 860 The plaintiff claims $1,166,537.39 as out-of-pocket expenses. The components which lead to this total are as follows: (a) Amounts paid by the plaintiff's family for treatment and equipment $ 40,952.39 (b) Amount paid by the plaintiff's family to the Spastic Centre for respite care $ 17,765.70 (c) Amount paid by the plaintiff's family relating to extra tutoring at school $ 3,200.00 (d) The amount representing the value of distances travelled by Mrs Simpson in taking the plaintiff to therapy $ 12,953.00 (e) Amount paid by Mrs Simpson to carers from when the plaintiff was aged 10 months to 30 June 2001 (Exhibit "XX" and "YY" $435,671.00 ** ( ** There is some difference between the parties in relation to this item in the written submissions, although the differences are not explained or justified. For example, the plaintiff refers to the amount as $435,671 in the submissions relating to Head of Damage 29 whereas the schedule attached to those submissions identifies the amount as $433,871. The defendant, in its submissions at page 57, refers to an amount of $431,941. For the purposes of the various argument I will utilise the figure claimed by the plaintiff in the body of its submissions, leaving the parties to resolve the ambiguity prior to the entry of final judgment.) (f) Amounts claimed for unpaid Spastic Centre invoices $655,995.37 Total $1,166,537.39 The Defendant's Position 861 The defendant has conceded the first four items of the plaintiff's claimed out-of-pocket expenses. These total $74,871.00 862 In relation to the fifth item - payment to carers - it will be recalled that, in opposing the claim for past gratuitous services, the defendant, for the purpose of its submissions, accepted the amount of paid attendant care. The defendant had made an alternative submission that if, contrary to defence submissions, an amount were to be allowed for past gratuitous services, the paid care should be discounted (to as high a percentage as 33%) to reflect that the carers spent two-thirds of their time on Calandre and one-third on the family. 863 It was my view that an allowance should be made for past gratuitous services notwithstanding that paid carers were used in the Simpson household from an early stage in Calandre's life and are still utilised at the present time. It was my further view that the appropriate manner to deal with the assessment of past gratuitous services was to allow a 10% discount in relation to paid care services so as to recognise the "cross-vesting" of duties between the Simpson family and the carers from time to time. 864 I propose therefore, to allow the fifth item as specified in the written submissions but reduced by 10%. This yields $392,094. There remain however, the discrepancies to which I have referred as to the precise amount which is involved. There is one further possible variation namely that, if paid carers have continued to the estimated date of judgment, this will yield (according to my calculations), a further 18 weeks at $600.00, namely an increase to the claimed amount of a further $10,800. Presumably this can be a matter of discussion and agreement between the parties before the entry of judgment. I would expect that it be resolved and placed before the court at the same time as the clarification of the claimed out-of-pocket expense amount related to paid care. Any additional expense should be reduced by 10% as well. The matter in dispute 865 This leaves the sixth item which is the out-of-pocket claim in substantial dispute between the parties. The amount involved is $655,995.30. This represents the balance of unpaid Spastic Centre invoices. They were tendered as part of Exhibit "XXX". The invoices relate to professional services and accommodation/respite charges provided by the Spastic Centre to the plaintiff between 1 September 1981 and 30 June 2001. There is no need for me to set the details out in full as they are conveniently listed at Tab 2 of Exhibit "XXX". There is common agreement between the parties that the amount fairly represents the value of the services provided to the plaintiff by the Spastic Centre. There is no dispute that the services were in fact supplied and the market value of those services is not in dispute. The only dispute is whether there is a legal liability on the defendant to reimburse the plaintiff or to pay the plaintiff the costs for services and care which, in the defendant's contention, the plaintiff is not legally liable to pay. 866 In short, the plaintiff's argument is that the circumstances entitle the court to infer that there is a legal obligation on the plaintiff to pay the amount in question and that accordingly the amount should be regarded as an out-of-pocket expense. The alternative submission is that the unpaid Spastic Centre invoices are recoverable as gratuitous services in accordance with the principles in Griffiths v Kerkemeyer (supra). The irony of the alternative submission is that if the court finds that it is made good, the defendant will be required to pay interest in respect of the amounts of those invoices. (Grincelis v House (supra)). The defendant's response is that it is not liable to compensate the plaintiff in respect of the value of services provided by the Spastic Centre, including respite care, to the extent that they have not been paid by or on behalf of the plaintiff, because the plaintiff is under no obligation to pay them. Alternatively, they do not fall within the Griffiths v Kerkemeyer principle. If contrary to the defendant's submission, liability be found in respect of services provided by the Spastic Centre, there should be a set off for the costs of the private schooling which Calandre would otherwise have had (Mrs Simpson's evidence T 66 line 20, T 8 line 25 and T 101 line 35). The circumstances 867 As a consequence of the agreement reached between the parties, there is no detailed evidence in relation to the supply of services and the provision of accommodation and respite care. All these services, it is agreed, were certainly supplied and a summary of them is contained in the material in Exhibit "XXX". The services were likely to have included speech therapy, occupational therapy, physiotherapy, medical, and psychology therapy where necessary. There is no doubt that these services were provided by the Spastic Centre as a consequence of a need created by the defendant's negligence. 868 The material in Exhibit "XXX" supports the following factual circumstances: - (i) Calandre first received medical and allied professional services from the Spastic Centre in the years between 1981 and 1987. These occurred at the Mosman Spastic Centre. (ii) Further services were provided on a regular annual basis between 1988 and the present time at the W C Allen Centre. (iii) Respite care and accommodation were provided from at least 1994 and thereafter, from time to time on a regular basis, up until the present. (iv) Mrs Simpson became a member of the Spastic Centre on 9 September 1988. This, presumably, had some benefits for her in relation to the costs of services provided after that date. (v) Correspondence between the plaintiff's solicitors and the Spastic Centre in 1994, 1995, 1999 and 2000 resulted in the issue of a number of invoices and/or correspondence relating to the costs of services and respite care provided by the Spastic Centre. Details of Correspondence 869 On 8 August 1994 a letter was sent to the solicitors for the plaintiff in which the Manager of the W C Allen Centre said: - "The Spastic Centre of New South Wales contains in its by-laws a clause which reads: 'All disabled children and adults who are admitted for treatment and training and have a reasonable expectation of compensation by way of damages may be required to give an undertaking to reimburse the centre for all expenses incurred in treatment training, transport etc but any reimbursement shall not exceed the amount of compensation received'. As Calandre will be in this category, I will be forwarding to you in the near future an invoice for professional services provided by the centre from 1983 to date. It is expected that this invoice will be added to Calandre's claim for compensation and if she successfully receives damages that our invoice would be paid out of that amount. Please do not hesitate us if we can be of any further assistance." 870 On 27 October 1994 the Manager of the Spastic Centre wrote to the plaintiff's solicitors enclosing two invoices for various amounts representing professional services rendered between 1991 and October 1994. This letter concluded: - "It would be appreciated if the amount of our invoice could be added to Calandre's claim for compensation and if she successfully receives damages that our invoice is paid out of that amount". 871 Letters to like effect were subsequently sent from the Spastic Centre to the solicitors enclosing further invoices for professional services. On 10 May 1995 Invoice No 20030 was raised. This related to professional services provided between September 1981 and 31 March 1995. This letter concluded: - "We request that this debit be added to the claim for compensation which we understand that you are making on her behalf. Payment would only be expected if an when compensation is successful and it is complete". 872 On 19 August 1999, the Spastic Centre wrote to the plaintiff's solicitors referring to a request which had been received from the solicitors for further information regarding services provided to Calandre. This letter included a complete summary of the Spastic Centre's costs for the provision of professional services and accommodation costs to the plaintiff between 1981 and August 1999. The letter concluded: - "Please advise the Spastic Centre of New South Wales when this case is settled and arrange payment to us for these services." 873 There is an update provided by the centre to the solicitors on 3 August 2000 covering the period from June 1999. 874 The final letter in the sequence is again from the Spastic Centre. It is dated 21 May 2001. The letter was in the following terms: - "As requested we attach Invoices 20238, 20220, 20235 in respect of services provided by the Spastic Centre of New South Wales. We confirm that the Spastic Centre of New South Wales expects payment in respect of the provision of these services from your client in the event that the litigation in which your client is engaged has been successfully resolved and that the services are being provided on that basis. In the event of a successful resolution of the litigation in your client's favour, the Spastic Centre will therefore look to your client for payment for the provision of the services. We will continue to forward invoices from time to time as services are further provided. The Spastic Centre of New South Wales would appreciate your acknowledging the existence of the debt comprised by the invoices payable on the contingency referred to above, by signing and returning this fax." 875 It does not appear that the acknowledgment which was sought was ever given. Mr Cannon, an officer of the Spastic Centre, gave evidence on 24 May 2001 and acknowledged that, in so far as the by-law referred to in the correspondence was concerned, no undertaking had ever been obtained from Calandre Simpson or her parents (T 3132 line 25). Mrs Simpson's Evidence 876 The evidence establishes that when Calandre first started attending at the Spastic Centre, there was no correspondence or discussion between the Simpsons and the Spastic Centre about costs for the services provided by the Spastic Centre and that, prior to invoices being provided by the Spastic Centre to and at the request of the plaintiff's solicitors in 1995 and 1999, there had been no conversation or correspondence between the Simpsons and the Spastic Centre about the financial basis upon which services were being provided for Calandre (T 109 lines 15-45). The following exchange then occurred between Mr Brereton SC and Mrs Simpson: - "Q. Is this the position that when you arranged for Calandre to attend at the Spastic Centre and until your solicitors asked the Spastic Centre for an invoice, so far as you were concerned, you were never going to have to pay the Spastic Centre? A. Yes." 877 Mrs Simpson was asked about this topic in re-examination at T 133 line 50:- "Q. You were asked a couple of questions about the fees from the Spastic Centre, some $360,000 and $500,000. What is your intention with regard to those sums at the conclusion of litigation? A. Well, I have to be advised by you I guess; I don't know if I have to pay that. From where it comes I don't know; I would have no idea, but if it has to be paid, it has to be paid." The Spastic Centre 878 The Spastic Centre is a community based public charity. It is a Company limited by guarantee and a non profit organisation. As Exhibit 153 makes clear, its objects include: - "(a) To provide and to arrange access to a range of service and facilities to people with cerebral palsy and their families and, where practicable, to people with disabilities who can benefit from the type of services provided by the company; (b) To promote the rights of and justice for people with cerebral palsy and their families; (c) To raise awareness of the abilities of people with cerebral palsy and their special needs. (d) To create a positive image and profile of people with cerebral palsy and (e) To do anything which the board considers appropriate in connection with or to facilitate the attainment of the above objects." 879 Persons who are admitted to membership may be a category (a) members ("member with a disability") or category (b) ("support member"). This category typically would include the parents, legal guardians or relatives or friends who have assumed the role of primary carer or guardian of any person who has been registered as receiving or having received services from the company. There is also a provision for honorary life members, invited members and associate members. (Exhibit 153). 880 It is a matter of undisputed public knowledge that the Spastic Centre, as a community based organisation, provides services for the sufferers of cerebral palsy. It is dependant upon philanthropic and charitable donations, community fund raising and, to a degree, it is reliant upon government assistance. The evidence suggests there is a general pattern of diminishing resources from Government assistance. The organisation's by-laws include provisions that a person receiving services who has a claim for damages may be asked to give an undertaking to reimburse payment for those services, if successful, out of the compensation funds. 881 As I have said, it appears to be common ground that no such undertaking was given by the Simpson family in the present case. Is there a legal liability to pay the Spastic Centre? 882 The written submissions identify that it is common ground that, where an expense has been incurred but not yet paid by a plaintiff, the amount of the expense may be included in damages for out-of-pocket expenses, if and only if, the plaintiff is under a legal liability to pay the third party (Dixon v Bell (1816) 1 Spark 287; Allen v Walters (1935) 1 KB 200; Blundell v Musgrave (1956) 96 CLR 73). 883 There is nothing in the evidence which I have set out above which enables me to conclude that, either expressly or by implication, a contractual obligation has arisen between the plaintiff, her family and the Spastic Centre under which a liability to pay has arisen. Moreover, I am unable to infer the existence of any intention to enter into contractual relations to pay for services arising out of the provision of services and respite care in the period between 1981 and the present time. It is significant that an undertaking was not given by the Simpsons nor was the acknowledgment requested by the Spastic Centre given either orally or in writing. Mrs Simpson's evidence makes it clear that at no time did she regard herself under any legal obligation to pay for either the services or the respite care accommodation. 884 There are only two matters which point in a contrary direction. First, there is the fact that certain amounts were paid to the Spastic Centre for respite care namely $17,765.70. Secondly, there is the furnishing of invoices to the plaintiff's solicitors. So far as the respite care payment is concerned, the evidence does not precisely establish in what circumstances Mrs Simpson paid these monies but, in my opinion, payment is not sufficient to render the plaintiff or Mr & Mrs Simpson responsible for payment of the amounts which are now in dispute as between the plaintiff and defendant. This payment, so far as I can understand the surrounding circumstances, was in the nature of a contribution towards subsidised services. It involved no obligation to pay any additional monies. The raising of the invoices, requested by the plaintiff's solicitors for the purposes of preparation for the litigation, does not, in my opinion, afford evidence of the existence of a legal obligation to pay. In circumstances where the Spastic Centre is a charity, and its rules make specific provision for requiring an undertaking to pay, and where no such undertaking was ever given, it is impossible to infer a contractual obligation. 885 An alternative submission was put by the plaintiff in its written submissions, although not adverted to when the oral submissions were made. The plaintiff has submitted that the treatment and care afforded to her by the Spastic Centre amounted to presumptively binding beneficial civil acts within the meaning of the Minors (Property & Contracts) Act 1970. As a consequence, of s 19 of this Act, there arose, it is argued, a legal liability to pay the Spastic Centre invoices. 886 Section 6 of the Act defines a "Civil Act" as meaning - "(a) A contract; … (e) An acknowledgment of receipt of property; … (h) An assent or consent to, acquiescence in, or acknowledgment of waiver of, any matter by a person affecting his rights or obligations under a contract or relating to property; … (m) With limiting the generality of the foregoing, any act relating to contractual or proprietary rights or obligations or to any chose in action; whether having effect at law or in equity." 887 Section 19 provides: - "19. Where a minor participates in a civil act and his participation is for his benefit at the time of his participation, the civil act is presumptively binding on him." 888 In my opinion, the legislation does not create a contract out of a voluntary act, but merely prescribes those circumstances in which a minor will be presumptively bound by his or her contracts, notwithstanding minority. I agree with the submissions of the defendant that there is nothing in the nature of a contract revealed in the circumstances which I have set out above. At most, there was a charitable provision of voluntary services by a community based charitable organisation. Alternative Submission - are the amounts in the Spastic Centre invoices recoverable as gratuitous services? 889 The Griffiths v Kerkemeyer doctrine recognised that a plaintiff might be allowed the cost of gratuitous services which were required to satisfy the need to which the plaintiff's disability gave rise. This was so notwithstanding that the plaintiff had not paid for those services, had no legal liability to pay for them and would not pay for them. 890 The defendant's submission is that the doctrine does not extend to services provided not by family members or friends, but by public institutions (Griffiths v Kerkemeyer (supra) 394-413; Cunningham v Harrison (1973) QB 942, 952. In particular, the defendant argued that the doctrine is not concerned with compensation on account of services provided by persons or institutions whose very purpose it is to provide those services. The Spastic Centre is a public charity and the essence of it being, is to provide, for people like the plaintiff, the very services which are at the core of this present claim. The defendant conceded however, that an award of damages may be made in respect of such services in the future if it appears that the plaintiff will be charged for future services once the institution becomes aware that an award of damages has been made (Lindhe v Royal Children's Hospital (SCV Eames J 28 August 1992). 891 The plaintiff submits that the unpaid Spastic Centre invoices are recoverable as gratuitous services and that the doctrine in Griffiths v Kerkemeyer extends to cover the situation of the Spastic Centre. The Spastic Centre is not a State institution providing services under legislation generally making a full range of services available to all persons requiring those services. It is a community based association of people, comprising especially the parents and friends of children who suffer from cerebral palsy. It is supported, perhaps inadequately, by Government assistance but relies essentially on philanthropic donation and community help, especially community fund raising. The plaintiff argues it would be wrong, in such circumstances, to limit the doctrine so that the tortfeasor could "reap the benefit" of the charitable services provided by the Spastic Centre to the plaintiff rather than the plaintiff. Reliance was placed on the following passage by Mason CJ in Griffiths (supra) at 192-193: - "If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable." 892 The plaintiff also made reference to an unreported decision of the New South Wales Court of Appeal in Thomas v Eyles (NSWCA unreported, 10 September 1998), although I do not think that the application of the Griffiths principle in that case is specifically relevant to the present dispute. More importantly, the plaintiff made the point that the Spastic Centre therapies and services represented "subventions" which have served to otherwise mitigate the defendant's liability for paid treatment. 893 In reply, the defendant conceded that the distinction in the authorities was between friends and relatives on the one hand and the State on the other. Mr Brereton SC argued however, that the ratio of Griffiths was that a claim for compensation emerges from the value of services provided by friends or relatives, namely the people who are called to go out of their ordinary way to assume burdens they would not normally assume. By contrast, he argued that the doctrine does not establish that such services are compensable when provided by an institution set up for the very purpose of providing those services. The community, he said, sets up the various mechanisms for loss sharing. Insurance is one, but the provision of public services by a charitable body is another. Resolution 894 It is clear that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. (Van Gervan v Fenton at 327; Grincelis (supra) at 327; Kars v Kars at 369-70). 895 There is no dispute, as I have earlier noted, that the plaintiff had a need for the services and care provided by the Spastic Centre nor is there any dispute that the sum in question under this head of damage represents the market cost of providing the relevant care and services. 896 The sole question is, since the services were not provided by a family member or friend but by the Spastic Centre, is whether the plaintiff is entitled to recover damages which includes the market cost of the services, those services having been supplied to meet the need caused by the disabilities flowing from the defendant's negligence? 897 In Nguyen v Nguyen (1990) 169 CLR 245 at 262-3, the High Court identified the "novelty" in Griffiths in the following terms: - "What was novel about the decision was the application of that principle even though the plaintiff had not borne and would not bear the cost of the services. The novelty was not in valuing the necessary services, both respectively and prospectively; there was nothing new in that. The novelty lay in giving the plaintiff the cost of those services even though he had not paid, and would not pay, for them, in order that he, and not the defendant, should reap the benefit." 898 The question as to whether the wrongdoer should "reap the benefit" of hospital, medical and nursing services having been provided to an injured plaintiff by the State was, as I have already noted, adverted to in Griffiths. Gibbs J (at 169) said: - "Notwithstanding that Lord Reid, in the passage cited from Parry v Cleaver equated public with private benevolence, I consider that if the hospital, medical and nursing services provided by the state are such that the plaintiff has been and will be supplied with all the services that he reasonably requires at no charge to himself, the case will, as a general rule be, one in which the wrongdoer should have the benefit of that circumstance. There appears to me to be strong grounds of policy which distinguish services which the state makes available for all persons, or for all in a certain category, on the one hand, from services provided as a result of a sacrifice made by a relative or friend of the plaintiff on the other hand." 899 His Honour did not specifically identify the strong grounds of policy to which he made reference. 900 In the same case, Mason J briefly touched on the same matter. In addition to the passage at 192-193, at p 194, his Honour said: - "Here no problem arises in connection with the provision of a service by the state for which no charge is made. Although there is no occasion to decide the question now, I should in passing express my inclination to agree with Lord Denning MR in Cunningham v Harrison that the defendant is not bound to pay for it." 901 The rationale for the discussion in relation to the issue appears most clearly in Stephen J's decision. His Honour in dealing with the relevant passage in Blundell v Musgrave (supra) referred to the distinction drawn by Fullagar J in that case (at 93) between "expenditure with which a plaintiff seeks to be credited" and "subventions with which the defendant seeks to have the plaintiff debited". Stephen J, in relation to Fullagar J's second category, and the impact on it of Donnelly v Joyce (1974) QB 454, said (at 175): - "The plaintiff should in the light of that decision, be regarded as having suffered a compensable loss, represented by his accident-caused need for services, and the defendant's task would be the difficult one of persuading the court that in such a case, within Fullagar J's second category, the charitable subvention of services should be debited against the plaintiff, so as to reduce or extinguish this otherwise established entitlement of the plaintiff to damages." 902 His Honour then states the essence of his views on the central issue in the case in the following terms: - "The principle in Donnelly v Joyce readily enables an injured plaintiff to recover damages for his accident-caused needs met by a third party subventions in those very cases most calling for it. I refer to those deserving cases concerned with charitable subventions by friends or relatives who, to benefit the plaintiff, and with no thought of relieving the wrongdoer , gratuitously provide him with funds, services or goods. In such cases the courts would clearly not treat the gratuitous subventions as properly to be debited against the plaintiff. It is just such a case with which this appeal is concerned." (Underlining added). 903 Stephen J noted that no hard and fast rule could, or should be laid down as applicable to all of that "great variety of other types of subventions which may come before the courts". In that context his Honour referred to the analysis of both Dixon CJ and Windeyer J in The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569 at 573, 598-600. Stephen J continued: - "As Windeyer J pointed out, in appropriate cases the intent of the provider will be determinative, so that, where the intent is that the injured person shall enjoy the benefits of the subvention in addition to whatever rights he may have against the wrongdoer, the value of the subvention will not go in diminution of damages to be awarded to the injured person". 904 In the latter case, Windeyer J had under consideration whether a government pension for the blind given to a plaintiff, who had lost his eyesight in a motor vehicle accident, should go in diminution of his damages. This led, in turn, to a general consideration whether aid given by friends and philanthropic persons to ameliorate the lot of a sufferer ought or ought not be taken into account in assessing damages. His Honour accepted that generally this should not reduce damages. In examining why the benefits of the benevolence ought not reduce damages recoverable, his Honour said (at 598): - "The most satisfying of the reasons that have been given for refusing to diminish damages because of voluntary gifts is that they are given for the benefit of the sufferer and not for the benefit of the wrongdoer. … A donor can say who is to benefit by his generosity. If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances." 905 At p 600 Windeyer J went on to say that the second description (benefits given or promised to the plaintiff by way of bounty to the intent that the plaintiff should enjoy them in addition to and not in diminution of any claim for damages) covered a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. His Honour said the test was "by purpose rather than by cause". 906 Applying these principles to the present situation, it seems to me that the market cost of the services provided by the Spastic Centre was not "intended" to be debited against the plaintiff so as to reduce or extinguish the otherwise established entitlement of the plaintiff to damages. First, applying the theory of loss distribution, it is my view that the Spastic Centre is not an appropriate institution to be saddled with the ultimate loss (Stephen J in Griffiths at 176), or, at least not as appropriate a vehicle as an insurance company expressly meeting claims for professional negligence. As I have elsewhere observed, the Spastic Centre is an institution whose resources and reserves are constantly in the balance. In any contest relating to the policy of loss distribution flowing from the provision of services, it is likely the Spastic Centre will be a long way behind an insurance company set up to provide funds for damages arising out of negligence by professional persons. 907 Secondly, at a broader level, the provision of services by the Spastic Centre plainly relieve the State of a significant burden in relation to the care of the cerebral palsy community, as well as alleviating the burden on the families involved. The distribution of loss between State and charitable provider has already taken place. It should not be "doubled up" in the contest between plaintiff and defendant. 908 Thirdly, when consideration is given to the character of the benefits provided and the circumstances in which services were provided to the plaintiff, it is most likely that the "gratuitous subventions" were intended to be "diverted from victim to wrongdoer". The Spastic Centre is a charity which, by its rules, makes provision for obtaining an undertaking to pay in the event that an injured plaintiff successfully recovers damages. It seems that it was no more than oversight or perhaps inadvertence that resulted in the failure by the Simpson family to provide this undertaking at the appropriate time. Whether this be so or not, the fact that the rules contain this provision is an indication that the Spastic Centre, in providing its services to the plaintiff, generally intended that the loss referrable to the provision of gratuitous services would, where compensation is recovered, fall on a negligent defendant rather than be borne by the plaintiff. 909 Fourthly, it seems clear that the relevant "subventions" have served to otherwise mitigate the defendant's liability for paid treatment. 910 For all the forgoing reasons, I have decided that the Spastic Centre's unpaid invoices are recoverable as gratuitous services. Those services do not equate, in my view, with the provision of services by the state but fall on the side of the line more closely proximate to services provided by friends, relatives and members of the community generally. 911 Accordingly, I allow the claim at $655,995.30. If interest is to be allowed (head of damages 30) it will be calculated on $655,995.30 at 6.86% over 19.56 years. This would yield an interest component, according to the plaintiff's calculation, of $880,224. 912 No submission has been made that interest should not be allowed on past gratuitous services in relation to this aspect of the plaintiff's claim, if it has otherwise been made out. It has been suggested, however, that an allowance be made in the defendant's favour for the costs of private schooling. If such an allowance is made, this may affect the interest component. 913 On the other hand, the plaintiff does not appear to have responded to the defendant's submission relating to the cost of schooling or any other appropriate set off or deduction. 914 In the circumstances, I will refrain at this stage from determining the necessary interest component to allow the parties to consider whether agreement may be reached in relation to the net value of the past gratuitous services and, if payable, the interest on such a component. It seems I am bound to allow interest (Grincelis) although the defendant has made no submission on this point. I might add, were I not bound by authority on the point, I would be reluctant to allow interest. This is because the claim might more appropriately have been viewed, had it not been for oversight or inadvertence, as an out-of-pocket expense. Had it been possible to characterise it in this way, it would not have carried interest. Summary 915 Subject to the above reservations, the plaintiff's claim for out-of-pocket expenses and interest may be summarised as follows: - 1. Amount agreed as having been paid by the family for treatment and equipment - $40,952.39 2. Interest - $39,948.45 3. Amounts paid by the plaintiff's family to the Spastic Centre for respite care $17,765.70 4. Interest $9,332.28 5. Amount for educational tutoring $3,200.00 6. Interest $607.38 7. Value of distances travelled in taking the plaintiff to therapy $12,950.53 8. Interest $33,654.18 9. Amounts paid by Mrs Simpson to carers (Exhibit "XX" and "YY") to 30 June 2001, - $435,671.00 less 10% deduction $392,094.00 10. Further amount paid to carers between 30 June and 5 November 2001 (possibly) ie, $10,800.00 less 10% $9,720.00 11. Interest claimed under items 9 and 10 $455,901.00 12. Spastic Centre - past gratuitous services $655,995.30 13. Interest claimed on this amount $880,224.00 Final Remarks 916 There is at the end of these remarks a summary sheet which sets out the amounts awarded for each head of damage together with a total figure. This figure is $12,932,479. It needs to be said that a number of matters need to be clarified by agreement or otherwise before entry of final judgment. This will affect the amount of the final verdict. The matters in issue are: - (a) The amount paid to carers to 30 June 2001. (b) The amount paid to carers since 30 June 2001. (c) Interest calculation in relation to items (a) and (b). (d) The amount, if any, to be set off against the Spastic Centre invoices (Head of Damage 29) (e) Interest on gratuitous services allowance related to Spastic Centre invoices (f) Agreement as to calculation of interest on out-of-pocket expenses generally (g) Any correction of mathematical calculations in relation to all heads of damage. 917 As presently calculated on the summary sheet, the damages are in a sum not less than $12,932,479. The summary figure does not include, at this stage, allowances for interest under head of damage 30. 918 On present indications, it is fair to say that the interest component of the damages claim is likely to be substantial. When added to the presently calculated summary the final amount awarded will be a very significant figure. I have given consideration to this amount and I have examined it in the context of determining whether it reflects proper compensation for this particular plaintiff (Norris v Blake (No 2) (1997) 41 NSWLR 49 at 80). 919 The plaintiff's life was substantially altered at birth by the defendant's negligence. Her disabilities and losses are life long. They commenced on the day she was born and they will endure until the day she dies. Calandre is likely to lead a long life, although less than the remaining years of a normal young woman. The purpose of damages in the present situation is to award such a sum of money as will, as nearly as possible, put the plaintiff in the same position as if she had not been injured by the defendant's negligence. Damages for one cause of action must be recovered once and forever and, in the absence of a statutory exception, must be awarded as a lump sum (Todorovic v Waller (1981) 150 CLR 403 at 412). 920 Taking into account the presently calculated amount and the further amount likely to be calculated or agreed between the parties, it is my opinion that the amount of damages to be awarded to the plaintiff is just and proper compensation to her. Orders 921 In relation to the plaintiff's claim for damages there will in due course be a verdict and judgment for the plaintiff. I make no orders at this stage. I direct that Short Minutes be brought in to reflect, after mathematical correction, if necessary, the amounts awarded in this judgment. I stand the matter over for mention on a date to be agreed between the parties. If necessary I will hear argument on that day in relation to any outstanding issues. I urge the parties to come to a sensible agreement on these issues, if that is possible Damages Summary 1. General damages $390,000 2. Interest on past general damages 174,174 3. Past loss of earning capacity 50,880 4. Interest on past loss 20,000 5. Future loss of earning capacity 720,169 6. Past loss of employer superannuation 2,100 7. Future loss of employer superannuation 84,700 8. Long service leave 5,000 9. Past gratuitous service - $366,278 Less offset - 246,544 (Rounded down - $119,730 119,730 10. Interest on past gratuitous services 310,880 11. Future gratuitous services 25,000 12. Future attendant care 6,518,098 13. Home building & architectural costs 502,322 14. Hydrotherapy 95,467 15. Home maintenance and running costs 390,606 16. Therapeutic aids, appliances and equipment 427,980 17. Maintenance on aids, appliances equipment 25,916 18. Computer 292,679 19. Educational tutoring 171,628 20. Motor vehicle expenses 161,623 21. Future medical treatment 125,564 22. Future paramedical costs 476,625 23. Future pharmaceutical costs 16,569 24. Additional holiday costs 330,000 25. Loss of financial benefits of marriage (See future loss of earning capacity ------ 26. Future child care ------- 27. Case manager 371,812 28. Court visitor ------- 29. Out-of-pocket expenses 1,122.957 30. Interest To be calculated 31. Funds management -------- _________ $12,932,479 Cross-Claim 922 For the sake of convenience, unless formality requires otherwise, I will refer to the cross-claimant as "Dr Diamond" or "the Doctor". Similarly, I shall refer to the cross-defendant as "the hospital" or "St Margaret's Private Hospital". I have already mentioned the broad history of the cross-claim at the commencement of the damages assessment. At risk of being repetitious, I will repeat some of the matters already mentioned and place them in a more specific context. 923 The original cross-claim dated 26 February 1991 did no more than repeat the allegations made by the plaintiff against the first defendant and claim contribution or indemnity against the cross-defendant. The further amended cross-claim, however, raised a new and substantial case against the hospital. 924 Dr Diamond's solicitors first flagged the amended cross-claim on 16 September 1999 when they wrote to the solicitors for the hospital enclosing two reports by Dr Robert Lyneham. The letter comments: - "Dr Lyneham has raised a number of issues concerning the management by the hospital staff of Mrs Simpson's labour prior to Dr Diamond entering the hospital at 1.30pm. Accordingly our client has instructed us to file and serve an amended cross-claim against your client raising additional allegations concerning the management of labour before 1.30pm by the hospital staff. We will serve you with the amended cross-claim shortly." 925 A draft of the amended cross-claim was sent and received on 28 October 1999. On 26 February 2001, shortly before the commencement of the hearing, a further amended cross-claim was sent to the hospital's solicitors, it being indicated at the time that this document would be the subject of an application for leave to file to be made on the first day of the hearing. The difference between the two amended cross-claims is the inclusion in the later document of a wider range of particulars than had been provided in the earlier one. Although amplified in this way, the later document did not depart from the essential nature of the new and substantial case outlined in the draft cross-claim sent on 28 October 1999. On 2 March 2001, immediately prior to the commencement of the hearing, I granted leave to the cross-claimant to file the amended cross-claim which had been served on the solicitors for the cross-defendant on 26 February 2001. On 5 March 2001, I gave leave to the hospital to file a defence to the amended cross-claim. During the hearing on 15 May 2001, I gave leave to the hospital to file a further amended defence to the amended cross-claim. It will be necessary at a later stage of this judgment to refer to the amended defences filed on behalf of the hospital. The nature of the Amended Cross-Claim 926 The essential nature of the case against the hospital focuses upon the allegation that hospital nursing staff inappropriately (and contrary to Dr Diamond's protocol) prepared and administered a Syntocinon infusion to Mrs Simpson which effectively "overdosed her" causing hyperstimulation of her uterus. The allegation is that 10 units of Syntocinon were added to 700mls of fluid instead of 1,000mls of fluid as Dr Diamond normally prescribed. It is important, however, to understand, for reasons I will explain later, that the case is not that the hyperstimulation of the maternal uterus itself occasioned the injury to Calandre's brain. Nor or is it that the consequences of the hyperstimulation occasioned the plaintiff's injury. Rather it is said that the process of uterine hyperstimulation depleted the foetal reserves so as to bring about a situation where the foetus, although normally it might have been expected to recover from the onslaught of the forceps, did not do so. There were, thus, two factors bearing on causation: the first was the forceps and the second was the predisposition to injury as a consequence of uterine hyperstimulation. Since the hospital staff were responsible for the administration of the Syntocinon, and for monitoring the mother and child during the major part of her labour, the charge is that the hospital contributed in this way to the catastrophic outcome. 927 During the argument in relation to the proposed amended cross-claim on 28 February 2001, Mr Brereton SC outlines the essential nature of his client's case in the following terms: "The plaintiff's case is that her cerebral palsy is caused by an hypoxic incident late in labour and that hypoxic incident caused the brain damage which results in her present condition. In turn, the plaintiff says that the hypoxic incident was attributable to attempts at forceps delivery or repeated attempts at forceps delivery by Dr Diamond. … The nub of the case is attempting to deliver the plaintiff by forceps repeatedly in a non trial of forceps circumstance which resulted in a delay … for about half an hour during which it is said the hypoxic incident lasted for long enough to cause the severe brain damage which the plaintiff then suffered. Dr Diamond's case is, inter alia, that the time frame between the attempt at forceps delivery when the drop in heart rate - which is indicative of an hypoxic incident - was seen and delivery, a period of about 25 to 30 minutes, was insufficient in the ordinary case to cause the catastrophic outcome which was seen in this case …. What Dr Diamond contends is that while normally one would have expected a baby, such as the plaintiff, to recover from the hypoxic incident once the forceps were no longer applied, rather than to deteriorate as this plaintiff did, this foetus' reserves must have been sapped by previous experiences during the labour … we point to hyperstimulation of the maternal uterus during labour, particularly between the hours of 11am and noon on the date in question. … So Dr Diamond's case on causation is that there were at least two factors at work. The forceps may well have been one of those factors, but also at work was the fact that the foetus was predisposed to this injury by uterine hyperstimulation earlier in the labour and that uterine hyperstimulation was the responsibility of the hospital which administered an excessively high dose of Syntocinon, the drug administered to induce and promote and maintain labour, and a failure adequately to monitor her during labour while she was in that state of hyperstimulation. So essentially, the case we seek to run against the hospital is that by the excessively high dose of Syntocinon, and by inadequate supervision and management during the early part of labour … the hospital contributed in a very major way to the ultimate outcome." The methodology in the emergence of the amended cross-claim 928 Before coming to the detailed evidence in the cross-claim, it may be helpful if certain matters of a general nature are noted. 929 First, the court has been assisted by some eight eminent medical experts who have dealt with issues of causation, liability and standards of professional medical practice in the obstetric field. Almost all of those experts have turned their mind to the interpretation of the events of 5 July 1979. Those events occurred over twenty years ago and, although they are within a relatively short and small compass, the passage of time has not made it an easy task for those interpreting the events to do so with any degree of certainty. 930 Secondly, the experts on both sides have only come to consider the interpretation of the events surrounding the plaintiff's delivery in relatively recent times. For example, Dr Lyneham, who first expounded the Syntocinon argument, was engaged in August 1999. As is often the reality in litigation, a considerable focus on the events in question emerged during the hearing itself. All this has meant that the experts on both sides have had to assess the probabilities of the events of 5 July 1979 within a relatively limited frame work. Initially, their endeavours have focused essentially on the hospital records. 931 Thirdly, it is common ground that the relevant hospital records were poorly kept. The central record utilised by the nursing staff at St Margaret's Private Hospital in 1979 was a document known as a partogram. This was a relative novelty at the hospital, having been introduced sometime in 1978. There is no evidence to suggest that standardised practice had yet emerged at the hospital in relation to the making of nurse's entries in the partogram. This has made the task of interpreting the document quite difficult. That difficulty has been compounded by the admittedly poor method of entries made in relation to this particular labour. 932 Fourthly, the experts had, in general terms, reached their conclusions in relation to the interpretation of the records without much assistance from the major participants. Those participants were Mrs Gail Simpson, the plaintiff's mother; Dr Diamond, and the midwife who assisted Mrs Simpson in the labour ward, Sister Geraldine Ranclaud. None of the experts had the advantage of Mrs Simpson's recollection of the events on the day in question when their reports were prepared. Most experts had, however, some information from Dr Diamond in the form of answers to interrogatories. As is to be expected, these answers hardly "fleshed out" Dr Diamond's narrative of events as appeared subsequently in the transcript of his evidence. Most regrettably, Sister Ranclaud passed away at a relatively early age from complications arising from breast cancer in October 1993. A statement from Sister Ranclaud was admitted into evidence as Exhibit 25. This statement is dated 1 February 1988 and provides only very limited assistance in the resolution of the issues which have arisen. It does not focus at all on the Syntocinon induction as that issue was not raised until Dr Lyneham had furnished his reports in September 1999. 933 The matters I have mentioned were scarcely designed to make the task of the various eminent experts an easy one. The court at least has had the benefit of Mrs Simpson's evidence and the full evidence of Dr Diamond. In addition, the events of 5 July 1979 have to some extent been elucidated by the evidence of Dr Hakim, Dr Diamond's partner who assisted at the plaintiff's delivery by caesarean section, and the evidence of Dr McGuinness, the Anaesthetist who set up and installed Mrs Simpson's epidural. Dr Lyneham's Reports - The Evolution of the Amended Cross-Claim 934 Dr Robert Lyneham is a Clinical Lecturer at the University of Sydney. He is the visiting medical officer and head of the Department of Gynaecology at King George V Memorial Hospital and the Royal Prince Alfred Hospital. He is an attending medical officer at St Luke's Private Hospital and The Prince of Wales. He is also a college appointed panel member of the HealthCare Complaints Commission. In addition to being elected to Foundation Fellowship of the Royal Australian College of Obstetricians and Gynaecologists in 1978, he was elected to Fellowship RCOG in 1998 and graduated with a Bachelor of Law Degree from the University of New South Wales in 1999. He was elected to Fellowship of the Australian College of Legal Medicine in the same year. 935 Dr Lyneham was engaged by Blake Dawson Waldron for the first defendant on 13 August 1999. He was given background briefing material and provided with a copy of the statement of claim, the hospital notes of Mrs Simpson for the period 4 July to 15 July 1979; Dr Diamond's records, and answers to interrogatories by Dr Diamond. He was initially engaged to provide an opinion on the obstetric management provided by Dr Diamond and by the staff at St Margaret's Private Hospital during Mrs Simpson's labour and delivery. In particular, he was asked to express an opinion on whether Dr Diamond departed from proper professional practice. On 10 September 1999 he was provided with some further material including copies of Mrs Simpson's records relating to her first pregnancy and the hospital notes for Calandre Simpson. 936 In fact there were two letters of 10 September 1999 provided to Dr Lyneham and there was some conflict between them as to precisely his task. It may be said, generally, however, that he was asked in this correspondence to express an opinion relating to the management of labour before 13.30 by the hospital staff on 5 July 1979. He was asked to make specific comment on circumstances relating to the administration of Syntocinon and whether it was likely, in the circumstances, that there was hyperstimulation of the maternal uterus and, if so, he was asked to consider whether hyperstimulation of the uterus could cause hypoxia to the foetus. 937 He was also asked to make comments regarding the recordings of the foetal heart rate by nursing staff and to make comment as to whether the nursing staff at St Margaret's Private Hospital had departed from proper professional practice during the management of labour. The first report of Dr Lyneham is dated 12 September 1999. It does not appear that he has ever provided a report, as he had been initially requested to do, relating to the question of Dr Diamond's departure from proper professional practice. It is important in reading this first report to realise that there are two matters in it which required correction. The first of these is the reference on pages 2 and 3 to "the St Margaret's Hospital Protocol" for the infusion of Syntocinon. In fact, the evidence does not disclose that such a protocol existed at the time and the reference to this in Dr Lyneham's reports should have been a reference to Dr Diamond's protocol. Secondly, the report had annexed to it an analysis of Syntocinon administration and a comparison with other protocols. Again, one of these was a reference to St Margaret's Protocol whereas it should have been a reference to Dr Diamond's protocol. The second matter requiring revision in the analysis is that Dr Lyneham had worked on an assumed drop rate of 30mls in one drop. When he gave evidence he explained that this assumption had been incorrect and that the correct drop rate at the time was 50mls per drop. He prepared a corrected table which became part of Exhibit 121. The body of the report required revision where this analysis was carried forward to statements made in the text. To avoid further confusion, I shall endeavour, when referring to the text of the report (Exhibit 121), to refer to the corrected figures rather than those which appeared in the original text. 938 It is necessary to add that since the actual drop content was somewhat greater than the assumed drop content, the overall consequence was that more infused Syntocinon would have been administered to Mrs Simpson than Dr Lyneham had first thought. 939 I shall now endeavour to summarise this first report. Dr Lyneham's First Report 940 Dr Lyneham first explained that the purpose of the induction of labour is to bring the patient into labour artificially by the rupturing of the membranes and by the institution of an intravenous Syntocinon infusion. The aim of the induction of labour is to introduce a labour that will more or less mimic a natural labour. It is often the case, he explained, that an induced labour becomes established rather more quickly than it would naturally, but the dose of Syntocinon and the rate of administration can be controlled and indeed, started at a low dose, so that excessively strong, excessively frequent or excessively long contractions, can be avoided. 941 Dr Diamond's protocol appears to have been that 10 units of Syntocinon were added to 1,000mls of fluid. The rate of administration was commenced at 20 drops per minute (dpm) and increased by 10 dpm every half hour until a maximum of 60 dpm was reached. The maximum dose need not be reached if effective contractions were obtained on a lower dose. The rate of administration is maintained, or even lowered depending on the strength, duration and frequency of contractions. 942 Dr Lyneham noted that the nursing records indicate that 10 units of Syntocinon were, in fact, added to 700mls of fluid. This concentration is approximately 40% higher than "the recommended dose". He then turned to the interpretation of the partogram and the fluid balance chart, the latter also being part of the relevant hospital records. He noted that the drip was commenced at 9.30am at a rate of 20 dpm. At 10am it was increased to 30 dpm and at 10.30am increased to 40 dpm (he noted that this last increase was equivalent to 56 dpm of a 10 unit in 1,000ml solution, almost the maximum permissible rate of administration). This rate was reached just one hour after commencing the induction. If administered according to Dr Diamond's protocol, a rate of 60 dpm would not be commenced until two hours after the commencement of the infusion. The rate of administration of the solution was decreased to 30 dpm at 11am and it appears that this rate was then continued until 12 midday although it is not clear whether the administration of the infusion continued or ceased after 12 midday. If it continued, the records did not demonstrate the drop rate. Dr Lyneham then continued: - "The hospital record is poorly kept and incomplete, and on that basis it is difficult to clarify what exactly occurred with the Syntocinon infusion, with no details at all documented after 1200. On my calculations, 225ml would have been administered between 0930 and 1200, if the rate was exactly as shown on the labour ward record. The other clearly defined detail is that the 700ml infusion was completed by 1415. This is documented on the fluid balance chart … the fluid balance chart makes it clear that the 700ml infusion was completed at 1415, just before the caesarean section was commenced. It would seem to me that there are two possible explanations for this circumstance. Either the rate of Syntocinon administration was more or less as described until 1200, but much more rapid thereafter, until 1415. The other possibility is that the rate of administration was consistently excessive from 0930 to 1415. However, whatever the explanation, assuming the fluid balance chart is right and all or most of the 700ml was infused by 1415, the fact remains that 10 units of Syntocinon were administered over four and three quarter hours. This equates to an administration rate of 35 mU per minute or 2100 mU per hour for nearly five hours". 943 Dr Lyneham then turned to consider Mrs Simpson's progress in labour. He noted that her progress in labour was "slow" until 11am when the cervix was documented on the partogram to be only 2cms dilated. There then followed a "rapid dilatation from 2cms to full dilatation in an hour and a half". He said that this would not be unknown in someone having their second baby, but it clearly reflected the presence of "very strong contractions". He said that this was confirmed by documentation on the partogram of contractions that were described as 60 second contractions "occurring at intervals of 1 minute both at 11am and 11.30am". He said: - "The partogram indicates that the contractions were lasting 60 seconds and coming at minutely intervals which is somewhat difficult to explain, for that would suggest there was virtually no break between contractions". 944 He noted at 12 midday the contractions, by that time, were described as lasting 60 seconds and occurring at two minutely intervals. He said this would be the sort of pattern that one would expect to be associated with "a very efficient labour". 945 Although the dose of Syntocinon was lowered from 40 dpm to 30 dpm at 1100, Dr Lyneham said "all the evidence indicates that that dose was continued for at least the next hour despite the presence of 60 second contractions occurring at minutely intervals. As already noted it is possible that the rate of administration was even higher than that". 946 (I take this last sentence to be a reference to the possibility, arising from his interpretation of the entry on the fluid balance chart, that the whole of the 700ml infusion had gone into Mrs Simpson and was "completed" by 2.15pm). 947 Dr Lyneham concluded his discussion by noting that there was no record of the duration, strength or frequency of the contractions after about midday. He noted that full dilatation was documented at 12.30pm, so, in his view, "clearly the patient was in strong labour at that time". 948 Dr Lyneham then turned to consider the four questions he had been asked. As to the first, he expressed the opinion that if the patient had been experiencing "tonic contractions, meaning prolonged and excessively strong contractions without breaks between", the Syntocinon infusion should definitely have been turned off. If, however, the patient was experiencing moderate to strong contractions, lasting 60 seconds and coming at intervals of two minutes, it would have been appropriate to continue the Syntocinon infusion at whatever rate was necessary to maintain that pattern of contractions. 949 The second question required Dr Lyneham to assume that the whole of the 700mls of Syntocinon was infused into Mrs Simpson as one possible interpretation of the fluid balance chart suggested. On this assumption Dr Lyneham was able to say that there would be no circumstances in which such an administration would ever be "an appropriate administration rate to introduce labour with a live baby". 950 The third question required Dr Lyneham to consider whether it was likely that there had been hyperstimulation of the uterus. Dr Lyneham answered this question in two ways. First, on the basis that the rate of administration was increased to 40 dpm after sixty minutes, this was almost the maximum permissible rate of administration. In this setting, where the patient's contractions were described as 60 seconds coming at minutely intervals, this, in his view, certainly suggested that there was hyperstimulation of the uterus. Secondly, on the assumption that 10 units of Syntocinon in 700mls were administered completely over a period of less than five hours, (the fluid balance chart entry) he believed it was "highly likely" that there was hyperstimulation of the uterus. 951 The final question considered by Dr Lyneham was the question whether hyperstimulation of the uterus can cause "hypoxia" to the foetus. Dr Lyneham answered this in the following terms: - "Some degree of foetal hypoxia is a feature of normal labour. With each uterine contraction blood flow in the intervillous space in the placenta is impaired and the oxygen supply to the foetus is reduced. These changes are intermittent, and the healthy foetus recovers well between contractions. Hyperstimulation of the uterus, such as that which may be caused by excessive administration of Syntocinon producing prolonged tonic contractions without episodes of relaxation during which placental blood flow can return to normal, can be associated with hypoxia to the foetus." Dr Lyneham's Second Report 952 Exhibit 122 was furnished to Blake Dawson Waldron on 13 September 1999. It was explanatory of the first report, but did not contain any essential change to the views that he had earlier expressed. He had been asked to respond to five questions and I will briefly summarise or state the conclusions he reached. 953 First, he was asked whether in all the circumstances the Syntocinon dose should have been reduced or stopped altogether at any time. He said that his main concern about the frequency and intensity of contractions related to that which was documented between 11am and 12 midday. The records showing that at 12 midday or shortly thereafter, the contractions were lasting 60 seconds and coming at 2 minutely intervals revealed "an ideal pattern of contractions for an efficient and effective labour". Probably because of the difficulty in interpreting the hospital records, Dr Lyneham was somewhat inconclusive in relation to his answer to this question. 954 The second matter required him to consider whether, if the assumptions made in relation to the entries on the fluid balance chart were correct leading to the conclusion that the rate of administration had been 35 mU per minute, this rate of administration was appropriate. Not surprisingly, Dr Lyneham said that it was not. 955 The third question required Dr Lyneham to consider the recordings in the partogram relating to the foetal heart rate. One way of interpreting those entries was that they consistently recorded 140 beats per minute (bpm) during the various examinations conducted between 8am and 12.45pm. He noted that there were in fact ten heart rate recordings made between the stipulated times and that these were "exactly 140 bpm". He said that it would be "decidedly unusual" for the foetal heart rate to be maintained at such a precise level, exactly in the mid range without any variation at all over a period of four hours. He thought the heart rate had probably been counted for a period of some fifteen seconds and then multiplied by whatever was an appropriate number to give a rate per minute. The result would have been, therefore, an approximation and this would account for the pattern recorded. He did add that there is a severe form of foetal distress where the heart rate remains flat with virtually no variation. That pattern does require a foetal monitor to enable detection rather than the type of instrumentation which apparently was being used at St Margaret's for these particular readings. He said that this pattern probably would not continue over a period of four hours and it would usually be associated with episodes of bradycardia (drop in foetal heart rate). 956 In conclusion, he thought that the recordings suggest that the readings were "incorrectly recorded". 957 The fourth question was a variation on the third in relation to the foetal heart readings and it does not need to be set out for present purposes. 958 The final question required Dr Lyneham to express an opinion as to whether the nursing staff at St Margaret's Hospital departed from proper professional practice during the management of labour. He was critical of the records which were kept. He said the records of the baby's condition during the labour were quite inadequate. It seemed that an excessively high dose of Syntocinon was administered and the rate of infusion was maintained at an inappropriately high level despite the presence of contractions strong enough and frequent enough to result in the cervix advancing from 2cms to full dilatation over ninety minutes. He concluded:- "In such a situation, tonic uterine contractions producing foetal hypoxia cannot be excluded. Considering the baby's condition at birth and afterwards, it is my opinion that it is more likely than not that such contractions were present. The accuracy of the foetal heart rate recording, I believe, must be at least questioned, if not discounted." 959 He said that all the matters he noted "reflect a departure from proper professional practice and a falling short of the standard of care expected of trained nursing staff fulfilling their role in the management of labour". Dr Lyneham's Third Report 960 This report did not come into existence until 30 June 2000. It became Exhibit 123 in the proceedings. It seems from its context that it arose as a consequence of a discussion between Dr Lyneham and Mr John Pavlakis of Blake Dawson Waldron. Dr Lyneham introduced this report by saying that he was providing "a brief report as to what effect a period of hypertonic contractions would be expected to have on an unborn infant". Dr Lyneham repeated, in effect, his description of the fact that some degree of foetal hypoxia is observed in normal labour where the foetus normally recovers well between contractions. He explained why this was so. He went on to say: - "If there exists hypertonic uterine contractions, with strong contractions close together, or without periods of relaxation between contractions, the blood flow through the placenta is further compromised and so the foetus must utilise its compensatory capacity to a greater extent. That is, I believe it is quite feasible for the blood flow through the placenta to be diminished to the extent that a foetus is compensating but there is not yet actual damage to the brain, rather such damage is impending". 961 In the last paragraph he concluded: - "I have already indicated in my earlier reports that it is my opinion that the rate of Syntocinon administration and the rapid progress that Mrs Simpson made in her labour is likely to have been associated with hypertonic uterine contractions. In such a situation, the infant could have compensated satisfactorily and thus not have been subjected to prolonged hypoxaemia. However, if superimposed on this compensated condition there occurred a failed forceps delivery, with three different sorts of forceps being used and some inevitable delay before caesarean section, then the trauma to the infant from a forceps delivery that might not have been expected to be associated with cerebral damage, when superimposed on a compensated and potentially hypoxaemic infant, may have been sufficient to produce cerebral injury which, according to the neonatology experts, was due to a relatively brief episode of hypoxaemia rather than prolonged exposure." The Position as at the end of June 2000. 962 There were two major areas of development regarding the position which had been reached in relation to the issues raised by the amended cross-claim as they are reflected in Dr Lyneham's reports, especially the last one. First, although Dr Lyneham does not identify the neonatology experts referred to in the last paragraph of his third report it appears that he has accepted that the particular injury sustained by the plaintiff to her brain was one which occurred as a result of "a relatively brief episode of hypoxaemia rather than prolonged exposure". It is reasonable to infer however, that acceptance of this opinion arose out of the report of Dr Janet M. Rennie, a Senior Lecturer in Neonatal Medicine at King's College Hospital, London dated 13 August 1998 (part of Exhibit 8). She had provided a report to the plaintiff's solicitors at that time. It may well have been that Dr Lyneham was referring additionally to Exhibits 23 and 24 which were respectively reports by Dr Brian Kendall, a Consultant Neuroradiologist at the Royal Free Hospital, London made in May 1998 and November 1999; and a report prepared in August 1999 by Dr James Christie, a Specialist Radiologist at Royal North Shore Hospital in Sydney responsible for paediatric imaging. There was also a report from Dr Christie of 15 February 2000. Dr Kendall's reports had been provided for the plaintiff. Dr Christie's reports were provided for Dr Diamond. These reports were the first major development affecting the evolution of the Syntocinon argument. 963 The second major development was that on 15 June 2000 Professor Nicholas Fisk, who had been engaged by Dr Diamond's solicitors, provided a substantial and extensive report which fully addressed the issues of mechanism, causation and, especially, the Syntocinon argument which had been elaborated by Dr Lyneham. Professor Fisk is a Professor of Obstetrics and Gynaecology and an Honorary Consultant Obstetrician and Gynaecologist at Queen Charlotte's and Chelsea Hospital, London. Before dealing with his opinions and conclusions, it is necessary for me to make brief reference to the MRI examinations and the views expressed in relation to them by Dr Christie and Dr Kendall, and to the report of Dr Janet Rennie as they, together with Professor Fisk's report, underlay the conclusions reached by Dr Lyneham in his third report of 30 June 2000. Neuroradiological Opinion in relation to the Plaintiff's Injury 964 A cranial MRI was performed on 17 December 1997 when the plaintiff was 18 years of age. A further and more detailed MRI was performed at St Vincent's Private Hospital, Sydney on 5 November 1999. Dr James Christie concluded that the MRI findings were predominantly of thalamic/putaminal infarction with a single cortical infarct. These findings, he said, fit best into the findings associated with the so called "acute" hypoxic-ischaemic event. 965 Dr Kendall, a London Neuroradiologist, reviewed both sets of films and offered his opinion that there was an abnormal high signal seen in the posterior two-thirds of the lentiform nuclei and the lateral nuclei of the thalami. These changes were indicative of brain damage and, particularly in the context of athetoid cerebral palsy, typical of the damage caused by a short period of profound asphyxia. He found no evidence in either film of the type of brain damage caused by prolonged partial hypoxic ischaemia. He said that profound asphyxia around the time of birth lasting for longer than ten minutes tended to cause irreversible damage at this time of gestation. If the asphyxia lasts for longer than 25 minutes it generally caused death or more extensive irreversible brain damage. It was his view that the MRI showed the underlying pathology accounting for the neurological deficit which explained the existence of the plaintiff's cerebral palsy. 966 It will be seen as a result of these conclusions that both the Specialist Radiologist and the Consultant Neuroradiologist were in substantial agreement on a most important point. The plaintiff's brain injury, to repeat Dr Lyneham's terminology, was consistent with or due to a relatively brief episode of hypoxaemia rather than prolonged exposure. The significance of this in relation to the further amended cross-claim, will become apparent when I come to examine Professor Fisk's report. The Report of Dr Janet Rennie 967 This report became Exhibit 8. Although this report was obtained on behalf of the plaintiff, Dr Rennie was called and her report was tendered by Mr Hall QC on behalf of the hospital. Dr Rennie is a Consultant and Senior Lecturer in Neonatal Medicine at King's College Hospital, London. She is a Consultant Neonatologist who has developed a special interest in brain injury in very young babies. Dr Rennie explained that athetoid cerebral palsy is the form of cerebral palsy which typically occurs after a very severe acute hypoxic ischaemic insult to the mature term brain. Such an insult typically damages the parts of the basal ganglia known as the lentiform nuclei or the putamina. These lie within the deep central grey area of the brain. The reason for typical damage to this part of the brain is because the basal ganglia, which control movement, have a high metabolical rate and are particularly vulnerable to acute deprivation of glucose and blood supply. In her view MRI imaging had excluded a congenital abnormality of the brain and entirely supported the existence of a brief total asphyxial insult. She said that Calandre had the abnormal high signal on T2 weighted imaging which is absolutely typical of these cases. She said that in her opinion 10 to 20 minutes of total asphyxia would have been enough to produce this picture. It was her opinion that Calandre's brain insult was acquired at a time beginning at about 1.50pm prior to her delivery at 2.17pm on 5 July 1979. If the insult had not been sustained, or had lasted for less than ten minutes, she would have survived intact. Professor Fisk 968 Professor Fisk's report is Exhibit 126 in the proceedings. A summary of the position advocated by Professor Fisk may be briefly stated. This summary, however, is principally concerned with the Syntocinon argument. There are other important matters in the report which I will consider at a later stage. First, he accepted that Calandre was born with birth asphyxia and hypoxic- ischaemic encephalopathy (HIE). Secondly, he came to the same view as did Dr Rennie that dyskinetic (also referred to as "athetoid") cerebral palsy is associated with late onset birth asphyxia in term babies, and is often attributed to an acute onset catastrophic reduction in fetoplacental profusion and oxygenation. The chief mechanism is considered to be damage to the deep grey matter of the basal ganglia. Secondly, he agreed with the reports of both Dr Christie and Dr Kendall, namely that the brain damage shown on the imaging was typical of the damage caused by a short period of profound hypoxia. There was no evidence of the more profuse white matter or cortical changes more typical of prolonged partial hypoxaemia. Thirdly, he remained unconvinced, particularly having regard to the literature, that a failed forceps delivery was itself a sufficient explanation for major oxygen shortage in an otherwise healthy foetus delivered without evidence of intracranial haemorrhage. Fourthly, he considered that it was possible that the consequences of uterine hyperstimulation could not be excluded in the present case. He thought that this was so particularly because of the studies which showed a relatively high incidence of hyperstimulation where high oxytocin infusion rates were involved in the induction of women. He also thought that there was clear evidence of overdosage of Syntocinon in the present case. This was based on the same matters referred to by Dr Lyneham in his reports, namely the infusion rates, the incremental consequences of the high infusion rate, the recording of frequent contractions between 11am and 12 midday and the possibility of the entire contents of the oxytocin solution having been infused into Mrs Simpson by 2.15pm on 5 July 1979. Fifthly, he had doubts about the accuracy of the foetal monitoring during the labour and thought it was not possible to exclude the possibility of foetal distress during the first stage of labour and during the second stage prior to the attempts at forceps delivery. (Professor Fisk made it clear that of the two forms of uterine hyperstimulation ie, uterine hypertonus - a prolonged elevation in the resting uterine tone, and uterine tachysystole - excessive contraction frequency, he was dealing with the second in the present case, it being the more common of the two forms.) 969 Sixthly, although he acknowledged the possibility that there may have been an acute insult resulting in an acute and severe interruption to oxygenation in the last 20-30 minutes before delivery, he preferred a second possible view, based on foetal sheep studies. This was that the plaintiff had suffered significant oxygen shortage for less than an hour but for more than 15-30 minutes before delivery. One thing he was quite clear about, in this context, was that the dyskinetic type of cerebral palsy suffered by the plaintiff made it unlikely that she sustained recurrent partial intermittent oxygen shortage over the last hours of labour, such as might otherwise be expected if uterine hyperstimulation had been solely causative. 970 It was, accordingly, his opinion that it was "likely" that the plaintiff was exposed to impaired uteroplacental blood supply, and thus impaired oxygen supply, secondary to Mrs Simpson's uterine hyperstimulation. This was of insufficient degree on its own to result in profound acidaemia or damage secondary to oxygen shortage, but rendered the plaintiff "in poor condition and with reduced reserves to cope with the added, albeit transient, stresses of 4-5 attempts at forceps delivery, possibly including cord traction from attempted rotation on the cord tightly around the baby's neck". 971 He expressed his conclusion at paras 131 to 133 in the following terms: - "In my opinion, Calandre's apparently rapid decompensation and oxygen deprivation in response to the forceps attempts cannot be explained entirely by her failed forceps delivery. Mrs Simpson received a Syntocinon infusion to induce labour that appears to have been given in both an excessive concentration, and at an excessive infusion rate. There was evidence of uterine hyperstimulation which, in my opinion, was a direct result of the Syntocinon overdosage. In my opinion her rapid decompensation at around the time of the attempted forceps delivery is more probably than not explained by hyperstimulation. This either reduced her reserve to cope with the stresses of the failed forceps delivery, and/or led to a tonic contraction which acutely and substantially compromised her oxygen supply. 132 In my opinion, if Calandre had been successfully delivered by caesarean section between 1335 and 1350 hours, then on the balance of probabilities her disability would have been prevented. If she had been delivered shortly afterwards, say, just before 1400 hours after a failed trial of forceps in the operating theatre, then on the balance of probabilities, her brain injury, in my opinion, would have been either prevented or substantially lessened in severity. 133 In my opinion, if Mrs Simpson had not received an overdosage of Syntocinon, and thus had not been hyperstimulated, then on the balance of probabilities Calandre's brain injury would have been substantially lessened in severity if not prevented." Dr Keogh's Report 972 A third specialist, Dr John Keogh provided a report and commentary on 23 May 2000. This was done at the request of Dr Diamond's solicitors. His report dealt principally with the actions of Dr Diamond and the question whether those actions fell within or without the boundaries of acceptable obstetric practice. Dr Keogh, who is a Consultant Obstetrician and Gynaecologist at Hornsby Kuringai Hospital and a Lecturer with the Department of Obstetrics and Gynaecology (Sydney University), also expressed opinions regarding the Syntocinon argument and the management of labour before 1.30pm on 5 July 1979 by the hospital staff in this case. 973 At pages 2 and 3 of his report Exhibit 125, he said: - "It is clear that the usage of Syntocinon in this labour however was not standard …. ten units of Syntocinon should be added to a litre of fluid but in this case the 10 units of Syntocinon was added to only 700mls of IV fluid, resulting in a concentration of Syntocinon in the fluid being infused being 40% higher than expected …. The method of the Syntocinon infusion used in this case was a significant departure from protocol and had the potential to cause hyperstimulation, a potentially damaging condition as far as the baby is concerned …. The partogram describes the contractions as lasting 60 seconds and there is no doubt that the progress of labour is rapid though not outside the normal range for a second labour. However, I am uncertain from the record as to the frequency of the contractions. The partogram records the frequency in the box marked 5 initially and states that the contractions lasted 20 seconds. I take this to mean that they occurred every 5 minutes early in labour rather than being 5 every 10 minutes which might be a more routine way of recording frequency. If however, this is the case then from 11am to 12 midday the contractions are said to be occurring every minute and lasting 60 seconds which suggests hyperstimulation …. Therefore, depending on the interpretation given to the notation on the partogram one contraction every one to two minutes lasting 60 seconds would be excessive and would represent sub-optimal control during induction …. It is of concern here that the fetal heart rate recording is minimal (one recording of 140 bpm between 11am and 12 midday) over the period when the contractions were most intense which means that for over an hour, possibly in the context of uterine hyperstimulation, we have no reliable information about the fetal status. Therefore by the time Dr Diamond came to deliver the baby it is possible that the reserve of the baby had already been considerably diminished prior to any forceps attempt by the nature of the management of the first stage which was under the direct supervision of the midwives." 974 And again at page 5 Dr Keogh said: - "Secondly, in labour there is a fairly clear indication that the Syntocinon was not managed according to either Dr Diamond's or the hospital's protocol. The recording of the intrapartum course in the notes is unclear but despite the concern I have over the constancy of the fetal heart recording at 140 bpm the first clear record of a bradycardia does not occur till the attempt with the Kiellands. It is really quite uncertain whether a bradycardia for 32 minutes would be enough to cause cerebral palsy and in this case it is not possible to exclude underlying pre-labour compromise. Indeed, we have reason to believe that this baby may well have experienced a period of hyperstimulation of the uterus, and this may well, even if it did not cause direct injury to the fetus, have diminished the fetal reserve to tolerate the bradycardia which it experienced in the second stage, or perhaps more exactly, to tolerate whatever led to that bradycardia. This is a question to address to the fetal physiologists." The Hospital's response 975 The basic premise on which the amended cross-claim is founded namely that the dosage of Syntocinon in the present case was 10 units in 700mls of solution, is not seriously in dispute. The hospital asserts however that it was Dr Diamond who prescribed this dosage. Alternatively, if, by chance or intention 300mls of fluid was run into the plaintiff's mother before the Syntocinon was added to the solution, the hospital maintains that there was no uterine hyperstimulation involved and, even if there were, no damage was occasioned to the foetus. The hospital takes issue with the experts called on behalf of the cross-claim and especially with their opinions suggesting that there is evidence of hyperstimulation. 976 The first witness called in the hospital's case was Mr Roger Clements. He is a highly qualified and eminent Obstetrician and Gynaecologist practicing in Harley Street, London. He had prepared reports on behalf of the plaintiff but, following upon the admission of liability, his evidence was not required by the plaintiff. Mr Hall QC called Mr Clements in his case and tendered his reports, Exhibits 1 and 2. The first of these is a most thorough, comprehensive and very helpful analysis of a number of the complex issues in this case, particularly those dealing with causation and standards of professional practice in relation to instrumental delivery. Exhibit 1 attempts the difficult task of interpreting the hospital records and Dr Diamond's own records. In the light of those various possible interpretations and other materials submitted to him, Mr Clements concluded that Calandre suffered a period of near total hypoxia/ischaemia at the very end of labour, went on to develop hypoxic ischaemic encephalopathy (HIE) and now has athetoid cerebral palsy with typical MRI imaging. 977 He concluded that the period of near total asphyxia occurred during and after the attempts of forceps delivery between about 1340 and 1417 on 5 July 1979. It was his view, on the balance of probabilities, that the period of hypoxic injury would not have occurred but for the attempts at forceps delivery. 978 It was also his view that the critical errors in this case occurred in relation to the "ill conceived and poorly executed" attempts at forceps delivery. Dr Diamond made four or five attempts, according to his own statement, at forceps delivery with three different instruments and failed. In Mr Clements' opinion, Dr Diamond had made two critical errors in his attempts at forceps delivery. First, he applied the forceps before full dilatation. Secondly, he applied conventional curved forceps to a head which was not in the occipito-anterior position and which, on the balance of probabilities, was in the occiput-lateral position. Neither of those errors, Mr Clements thought, was compatible with a reasonable standard of care. No responsible doctor, exercising reasonable care, ought make those errors in the conduct of forceps delivery. Moreover, no responsible doctor in 1979, in his opinion, should have made four or five attempts with three separate instruments, whatever the circumstances. He was further critical of Dr Diamond in that the instrumental attempts were made in the labour ward and not in circumstances described as a trial of forceps in the operating theatre. 979 At page 23 of Exhibit 1, Mr Clements said: - "The mechanism of fetal distress may have been cord entanglement but it is not necessary to speculate on cord entanglement to explain bradycardia in a fetus exposed to recurrent attempts at operative vaginal delivery. It is every obstetrician's experience that repeated attempts at vaginal delivery, particularly when associated with rotation, lead to fetal bradycardia. Provided that the fetus can be rescued quickly there are usually no serious consequences. In this case, because Dr Diamond was not in the operating theatre and was conducting his forceps delivery without rapid recourse to caesarean section, there was a delay of some 27 minutes between the time he says he finished his attempts at operative vaginal delivery (1350) and 1417 when the baby was born. On the balance of probabilities it was during this period that Calandre Simpson suffered her asphyxial injury. In my opinion, that asphyxial injury was directly caused by Dr Diamond's incompetence." 980 Mr Clements, in this report, did not deal with the Syntocinon argument. This first report was dated September 1999. 981 Exhibit 2 did briefly comment on the Syntocinon argument as prepared by Dr Lyneham and elaborated on by Professor Fisk and Dr Keogh. This report was provided to the plaintiff on 20 February 2001. It is not without significance that this second report was furnished to the plaintiff's solicitors at a time when the plaintiff's proceedings were directed not only against Dr Diamond but also against the hospital. At pages 18 and 19 of Exhibit 2, Mr Clements said this: - "I suspect that it will be common ground between the experts that it is not the absolute dose of Syntocinon which matters, rather the effect of the Syntocinon on the uterine contractions and upon the baby. There is huge variation in the requirement for Syntocinon between one woman and the next, between one labour (of the same patient) and the next. In practice the Syntocinon is titrated against the uterus and the dose held, or reduced, when the contraction frequency is optimal. Any abnormality of the fetal heart requires cessation of oxytocin infusion. The effect of the drug on the uterus is, in the absence of a cardiotocograph trace, to be interpreted by the midwife by the frequency and duration of contractions, palpated by hand. I have already drawn attention to the difficulty in interpreting the midwife's recordings on the partogram in this case. What the midwife recorded and what she intended that recording to mean are once again matters of fact upon which the court will have to decide. … If the midwife intended to record that the contractions were occurring every 60 seconds, with 60 seconds in between, that would not, in my opinion, necessarily indicate excessive uterine activity, likely to cause fetal compromise. Several of the experts have gone further, to speculate that the oxytocin was in some way responsible for causing "tonic contraction" …. Whilst it is possible to produce tonic contraction with intravenous oxytocin there is no evidence that I have seen to show that it occurred in this case. It would be remarkable if midwives and doctors, present during a tonic sustained uterine contraction failed to notice it and failed to take remedial action to stop it. If that tonic contraction occurred during Dr Diamond's attendance on the patient he, like the midwives, should have noticed it and should have dealt with it by discontinuing the oxytocin infusion and applying intrauterine resuscitation". 982 At page 19 Mr Clements considered the possible effect of Syntocinon on the foetus. He noted that there were three possible ways in which the Syntocinon might have affected foetal well-being. The first involved tonic contraction of the uterus. He said that no foetus could survive more than about 15 minutes of such sustained contraction and would die. The second mechanism involved excessive uterine contractions over a long period with relaxation but with insufficient relaxation to permit adequate refilling of the intervillus space in the placenta. He explained that in this condition, frequently seen when Syntocinon is abused in long labours, the foetus is exposed to a form of chronic intermittent partial hypoxia which produces an entirely different form of brain damage from that seen in Calandre. He thought it unlikely, from his understanding of the paediatric reports, that this mechanism could have operated to damage the foetus in this case. 983 As to the third alternative he said this: - "The third alternative is that the excessive use of Syntocinon occurred, as in example 2 above, but was insufficient to damage the fetus, sufficient only to deplete her metabolic reserves and to make her specially vulnerable to a short period of near-total asphyxia towards the end of labour. That is a feasible notion and one which Professor Fisk appears to be advancing. There is no evidence for it but there is no evidence which would exclude it. I believe it to be a possible background to Calandre's problems. She would not have been injured by the chronic intermittent partial asphyxia but for the final insult of the short period of near total asphyxia at the end." 984 In the second part of his supplementary report (Exhibit 2), Mr Clements explained why it was he believed that the mechanism which caused a profound and prolonged bradycardia in the present case was the repeated attempts at forceps delivery. He said that compression of the head causes bradycardia which, in an uncomplicated case, immediately improves when the forceps are removed. If however, the forceps are repeatedly applied with several attempts at traction and rotation then the effect on the baby is often to produce a much more profound bradycardia which takes a much longer period to recover. If the procedure is sufficiently prolonged bradycardia may become terminal because the bradycardia, of itself, causes damage both to the baby's heart and to the brain. He also described another entirely separate mechanism which involves the umbilical cord. Particularly with the application of Kiellands forceps, the cord may become entangled in the forceps. This mechanism may lend to bradycardia or foetal compromise. 985 In his summary at pp 24-25, Mr Clements said that he remained of the view that the principal cause of Calandre Simpson's injury was "the incompetence of Dr Diamond in his repeated attempts of vaginal delivery, before proceeding to caesarean section". In relation to the possible role of Syntocinon in causing or contributing to the damage he said: - "I believe it to be most unlikely that the Syntocinon caused the damage by achieving a tonic contraction of the uterus which went completely unnoticed by the midwives and doctors. There are so many uncertainties concerning the Syntocinon regime (because of the paucity of the hospital records) that it is difficult to form a clear opinion concerning its use. If a court were to find that Syntocinon was continued in excessive dosage beyond 12 noon then I would concede that this may well have contributed to Calandre's problem in that it may have deprived her of her metabolic reserve, setting up the conditions in which a period of severe near total asphyxia would be more damaging than to a normal fetus. Only in that respect can I envisage any role for the Syntocinon in this case. I believe that if the Syntocinon alone were responsible for Calandre's damage, by several hours of hyperstimulation, her brain damage would be of a different type. On the balance of probabilities Calandre Simpson's injuries are due to repeated incompetent attempts at vaginal delivery; over dosage with Syntocinon, if it occurred, may perhaps have made her vulnerable to that event." Dr Rennie's Second Report 986 Dr Rennie provided a supplementary report to the plaintiff's solicitors dated 25 February 2001 which became Exhibit 9. Dr Rennie commented on a number of aspects of the various expert's reports which had been provided by the first defendant to the plaintiff. In the course of her commentary she touched briefly upon the Syntocinon argument at page 8: - "Professor Fisk discusses the possible mechanisms whereby attempts at forceps delivery might have induced a prolonged bradycardia. I agree with him that in general babies born after forceps are abandoned are not damaged, and in general a bradycardia which occurs during pressure on the fetal head (which is common) recovers once the attempt at operative delivery ceases. Professor Fisk invokes a further contributory cause; he feels that Calandre must have been made more vulnerable, either by Syntocinon hyperstimulation (scenario 1) or a tonic contraction (scenario 2). In principle I agree with this, mainly because I agree that an entirely healthy fetus would have recovered once the attempt at rotational forceps was abandoned, although the same may not be true for a fetus who had already undergone several attempts at forceps delivery. It is rare to see so many attempts so my personal experience of this scenario is limited. The obstetric experts may be able to shed some light on this. It may be that the 3-4 previous attempts (with perhaps 4-5 pulls) had served to render Calandre vulnerable even without invoking previous stress from Syntocinon". Dr Frederick Hinde 987 In 1998 a further expert had been retained on behalf of the plaintiff. This was Dr Frederick Hinde, a very experienced and eminent Australian Obstetrician. He had in fact been the President of the Royal Australian College of Obstetricians and Gynaecologists for some years in the early 1990's and had acted as a Consultant to the New South Wales Health Complaint Commission. He had been a member of the New South Wales Medical Board between 1978 and 1984. His reports were tendered and he was called by the hospital in relation to the issues raised by the cross-claim. 988 I shall touch briefly on each of his reports which were admitted as Exhibit 15 in the proceedings. Dr Hinde's First Report 989 This is dated 9 April 1998. It contains quite a long examination of the events leading up and including the 5 July 1979 and expresses various opinions. First, Dr Hinde believed that Dr Diamond may have been in error in relation to his assessment that Mrs Simpson's pregnancy was post term as at 4 July 1979. I will not pause to discuss this aspect at this stage but will return to it as necessary at a later time. Secondly, Dr Hinde interpreted the entries on the partogram at 11am as implying a contraction having a duration of one minute with a one minute interval before the next contraction. He noted that the 10 units of Syntocinon were added to 700mls of fluid. In this regard, he said the oxytocin regime could only be regarded as aggressive, even by the 1970's standards. He was not aware whether this had been ordered by Dr Diamond or the anaesthetist or the nursing staff of the hospital at the time. He said at page 4: - "The use of a vehicle volume of 700mls is highly unusual and suggests the oxytocin was added to a litre fluid container from which 300mls had already been infused to the mother. …. The main risks of excessive infusion may be rupture of the uterus from hyperstimulation or embarrassment of the fetus as manifest by irregularities in the heart rate. The latter is consistently recorded here as 140/minute which is unusual as an unvarying rate. If this is a true record, there is no evidence of fetal distress in the first stage, no meconium staining of the liquor being recorded (another sign of possible fetal compromise). In fact, the colour of the liquor is not recorded at any point during the first stage, a further deficiency in recording events. 990 Dr Hinde then considered the second stage of labour. After a detailed examination of the material he concluded that he had "the greatest reservation" about accepting Dr Diamond's description as to the position of the baby's head when he made his decision to begin instrumental delivery. It was his belief that Dr Diamond had displayed considerable shortcomings in the professional skill which would have been reasonably expected of a specialist obstetrician in 1979. Additionally, he said that Dr Diamond's persistence to the extent of 4 or 5 attempts at forceps delivery in 1979 represented "a gross departure from standard practice of the day" 991 Dr Hinde considered that the delivery failed because of the likelihood that the baby's head was in a position consistent with "deep transverse arrest". This implies that the head was in a more posterior presentation with the back of the head (occiput) at least lying 90% to the midline to one side. He also allowed for the possibility that there may not have been full dilatation of the cervix. He said that he rejected completely the concept that the delivery was not possible because the umbilical cord was wrapped around the body of the baby. Such a proposition he said was quite untenable. 992 Finally, he came to the view that the mechanism of the cause of the plaintiff's cerebral palsy was the forceps delivery. He said: - "While a cord entanglement if present could cause severe fetal hypoxia, it has to be recognised that forceps delivery even if skilfully done, can cause significant fetal bradycardia (slowing of the fetal heart rate with reduced cardiac output). Repeated attempts at forceps will induce a profound bradycardia with consequent severe reduction in oxygen supply to the fetal brain. I think this to be a more likely explanation of the outcome than cord entanglement (for lack of supporting evidence) or direct trauma to the fetal skull and its contents as a result of the use of forceps." Dr Hinde's Second Report - 16 April 1998 993 In this report, Dr Hinde provided the plaintiff's solicitors with his views about the standard of care exercised by hospital staff. He noted that the rate of administration of the oxytocin drip was unusual. He said that if the decision to put 10 units of oxytocin in 700mls of fluid was made by the midwifery staff, then he believed they had departed from standard practice. Secondly, he was critical of the poor hospital records collected in relation to the course of the labour. Thirdly, he noted that the consistently recorded foetal heart rate of 140 during labour "was unusual". This suggested to him a failure to count accurately and with care. He was not critical, however, of the failure to record the foetal heart readings during the forceps deliveries. This was not unusual or necessarily indicative of deficient care. This was because staff energy "is normally directed to the clinical care and support of the woman and not spent in secretarial duties during urgent instrumental procedures". He explained that checking of the foetal heart rate during a forceps delivery is often done quickly between attempts at traction or change of forceps, the result being conveyed to the obstetrician in simple form; for example, by indicating each beat with the finger, or counting over a short time, and verbally giving an estimate. Dr Hinde was critical however, of the absence of recordings of the foetal heart rate in the second stage of labour over the hour prior to the commencement of the forceps delivery. He stressed the need to record data appropriately, particularly as there may be staff changes during the second stage. Dr Hinde's Third Report 994 This takes the form of a letter of comment to the plaintiff's solicitors dated 21 February 2001. Dr Hinde expresses his views on the reports of a number of the experts. For present purposes, the relevant points he makes are those I now describe. 995 In relation to Professor Fisk's report, he disagreed with a number of points. First, he said that the failed forceps was clearly a sufficient mechanism for the catastrophic outcome. In his experience, manipulative intervention could set up a continuing state of severe foetal embarrassment. This, he said, was also supported by the literature. Secondly, he thought that Professor Fisk's calculation of the Syntocinon dose infused into Mrs Simpson, while mathematically correct, was not likely having regard to the factual situation appearing on the partogram. He noted for example, that the staff turned down the drip rate at 11am and that for the best part of an hour from midday, the staff were involved in producing a satisfactory epidural response. It would be unlikely, he felt, that there would have occurred an inadvertent and unrecognised drip acceleration over the last two hours on a scale to support the mathematical calculation. Dr Diamond, he noted, was there for the last half hour of the period and there is no record that he questioned the drip rate. 996 Thirdly, he thought it unlikely there was any foetal distress occasioned as a consequence of the Syntocinon administration because Dr Diamond, when making all the necessary assessments before embarking on the forceps delivery, "surely would have detected foetal heart rate embarrassment". 997 Fourthly, there was absolutely no evidence of a tonic contraction. The midwife's statement conveyed that during the second stage of labour she was listening to the foetal heart rate "between contractions". The existence of relaxation between contractions was inconsistent with the presence of a tonic contraction. 998 In relation to Dr Lyneham's reports, Dr Hinde noted that these pursued the hyperstimulation theory advanced by Professor Fisk. Dr Hinde said he disagreed. He discounted the theory for the reasons he had already advanced. 999 He also took issue with a number of views expressed by Dr Keogh. One of these related to the readings which suggested a steady heart rate. Dr Hinde said this, at the time, would not have been regarded as a cause for concern but rather satisfaction that it was well away from the parameters of "too high or too low". He also noted, contrary to Dr Keogh's claim, that the staff did in fact turn the drip down in response to a perceived excessive contraction pattern. Dr Hinde's Fourth Report 1000 On 20 April 2001, Dr Hinde provided a report to the solicitors for the hospital. This was provided well after the hearing had commenced and after Mrs Simpson had given her evidence. It is clear that, by this time, Dr Hinde had agreed to give evidence in the Hospital's case even though his earlier reports had been provided with a view to his being called in the plaintiff's case. While a detailed reference to this report might be more appropriately left, chronologically, to a later time in this narrative, it is convenient, for completeness, to refer to it briefly at this stage. 1001 Dr Hinde had been provided with copies of parts of the transcript of evidence of Mrs Simpson. He was asked three questions. The first sought his opinion in relation to the clinical indications of uterine hyperstimulation being: (i) uterine hypertonus; (ii) uterine tachysystole. 1002 (It will be recalled that Professor Fisk in his report had largely discounted the possibility that hyperstimulation experienced by the plaintiff's mother could be categorised as "hypertonus". He had given his opinion essentially on the basis that there occurred, more probably, hyperstimulation in the form of "tachysystole"). 1003 Dr Hinde said that excessive uterine action can manifest itself in two ways. First, hypertonus is an abnormal increase in base line pressure within the uterine cavity but it can also include contractions lasting longer than two minutes. This is also known as "hypersystole". The second manifestation, he said, is called tachysystole. This is defined as a contraction frequency in excess of five every ten minutes. The contraction of more than this frequency may not necessarily affect the foetus adversely. However, when the foetus shows evidence of embarrassment, by abnormal heart rate pattern, then hyperstimulation (syndrome) is said to exist. 1004 The second question asked of Dr Hinde was whether there was any clinical indication of uterine hypertonus present during Mrs Simpson's labour on 5 July 1979. In this context, Dr Hinde referred to Mrs Simpson's evidence which I shall describe, in shorthand terms, as her description of her contractions as being "one minute on, one minute off". Dr Hinde said he could place little reliance upon the ability of a woman in labour to be aware of a mild increase in base line hypertonus but for what it was worth, the description did not suggest to him that it was present. If there had been any significant hypertonus present prior to the arrival of Dr Diamond, he would have expected the midwife to have encountered some difficulty in obtaining a satisfactory reading of the foetal heart rate through the tense uterine wall. Mrs Simpson's evidence was not consistent with such a condition. There were other indications which suggested to Dr Hinde that there were no clinical indications of uterine hypertonus present during Mrs Simpson's labour on 5 July 1979. 1005 The third question was whether there were any clinical indications of uterine tachysystole present during Mrs Simpson's labour. Dr Hinde said that Mrs Simpson's clear evidence that her contractions were "one minute on, one minute off" indicated a rate of five in ten minutes. Even with the epidural in place she was able to feel the contractions because sensation remained in part of one side. He said that, by definition, this was not tachysystole. There was no clinical indication of uterine tachysystole in his opinion. Professor Ellwood's Report 1006 Professor David Ellwood is a Professor of Obstetrics and Gynaecology at the Canberra Clinical School of the University in Sydney and is in clinical practice at Canberra Hospital where he is the Director of the Foetal Medicine Unit. He is highly qualified, well accredited and actively involved in both teaching and research in many areas of obstetric practice. He also has a busy clinical practice in obstetrics. He provided a report to the hospital solicitors on 15 February 2001 (Exhibit 20). 1007 He was provided with a bundle of material which included the hospital notes relating to Mrs Simpson's first birth and the birth of Calandre; Dr Diamond's notes and documents, and the statement by the deceased midwife, Sister Ranclaud dated 1 February 1988. He was also provided with a substantial number of interrogatories which had been administered between the parties and the expert reports to which I have already made reference. Once again, I shall endeavour to summarise those matters in exhibit 20 which especially relate to the Syntocinon argument. 1008 First, Professor Ellwood noted that the Syntocinon dose used in the present induction of labour was greater than that which would be used now days when inducing labour in a woman having her second baby. He also noted that the dose administered was 10 Units in 700mls as opposed to 1,000mls as specified in the public hospital protocol. He noted that the starting dose of 20 dpm was equivalent to about 30 dpm ie, three times the recommended starting dose. Nevertheless, the maximum dose reached at between 10.30am and 11pm was only 40 dpm which would be equivalent to 60 dpm if the 10 units had been in one litre. In other words, the dose never exceeded the maximum dose specified in the public hospital protocol. Secondly, after 11am, the rate of administration was reduced to 30 dpm and, on one view of the partogram, was ceased at 12 midday when the epidural anaesthetic was inserted for pain relief. Thirdly, he commented on the fluid balance chart and the different interpretations which could be made of the entries in relation to the entry "completed". He discussed the various possibilities in the following terms: - "If the partogram is taken as an accurate record it suggests that the Syntocinon infusion was stopped when the epidural was inserted and not re-commenced as she was shortly afterwards found to be fully dilated. If the fluid balance chart is to be believed there has been a very rapid infusion of a large proportion of the bag of fluid containing the Syntocinon over a 2 hour period before the delivery of the baby. This is very unlikely as that rate of administration would have been highly likely to cause a sustained contraction at the time that the forceps delivery was being attempted. What is more likely is that the Syntocinon infusion was ceased at 1200 and then the bag discarded at the beginning of the operation when another bag of 4% Dextrose/Saline was started. Another possibility is that the Syntocinon infusion continued at the rate of 30 dpm after 1200 and was ceased at some point before the start of the caesarean section." 1009 Fourthly, Professor Ellwood noted that the significance of the rate of Syntocinon infusion during the period of induction of labour was that an excessive rate could cause uterine hyperstimulation, usually by tachysystole but also by causing a tonic (sustained) contraction. In this context, he postulated that the entries in the partogram as to the contraction frequency and duration posed a different possibility. If the entries between 11 and 12 may have meant there was one minute between contractions of say 60 seconds duration, this would have been at the upper level of an acceptable rate of contractions (one every two minutes or five in ten minutes). If however, the entry means a contraction of 60 seconds duration occurring every minute this would by definition constitute tachysystole. On this point, it was Professor Ellwood's conclusion that it was not possible to say from these records whether or not there was evidence of uterine hyperstimulation. He noted that the foetal heart rate during this time was constant at about 140 dpm and there was no record of any bradycardia that would have been expected if hyperstimulation were present. 1010 He gave his final opinion at page 6 of Exhibit 20. Firstly, in connection with the attempts at forceps delivery, he noted that a severe foetal bradycardia resulted from the numerous attempts to deliver the baby including a rotational forceps. This bradycardia could have resulted from prolonged head compression with the forceps, or as a result of the rotation of the head with Kiellands forceps (which may have tightened the loops of cord around the body and/or neck of the foetus) or from both mechanisms. He was of the view that, if this bradycardia persisted for the 25 minutes it took to deliver the baby by caesarean section (and there was no documentation of any recovery) this was more likely than not to have led to severe and prolonged foetal hypoxia, and could account for the neurological damage that underlies the plaintiff's condition of athetoid cerebral palsy. 1011 In relation to the Syntocinon argument he said this: - "Dr Lyneham and Professor Fisk argue that uterine hyperstimulation prior to the failed forceps delivery could have contributed to the final outcome for this baby. Whilst it is true there is some evidence of uterine tachysystole between 1100 and 1200, there is no evidence of any fetal heart rate changes at that time. Indeed, the midwife made an appropriate response to this event and reduced the Syntocinon infusion rate, which resulted in a reduction of the contraction frequency. There is an assumption made that there was a high rate of Syntocinon administration between 1200 and 1415, based on the entries in the fluid balance chart. … This is very unlikely as it exceeds the maximum rate prescribed and is likely to have caused a significant tachysystole and possibly tetanic contractions. There is no record of this in the midwifery notes, nor does Dr Diamond comment on this fact in his answers to interrogatories. It is implausible that he could have carried out various attempts at forceps delivery without being aware that there was an excessive rate of uterine contractions …. In conclusion there is no objective evidence for an effect on fetal condition caused by uterine hyperstimulation either before midday when the partogram observations cease, or after that time and until the forceps delivery is attempted." 1012 By way of contrast he noticed that there was evidence of a foetal response to the Kiellands rotation and the possibility of a prolonged bradycardia which continued until delivery about 25 minutes later. This time frame of approximately 25 to 30 minutes from the first signs of foetal bradycardia until delivery, he said, would fit with the time frame given by other expert witnesses for the duration of foetal hypoxia needed to cause the irreversible neurological damage that underlies cerebral palsy. The position of the Syntocinon argument at the commencement of the hearing 1013 It is convenient to summarise the nature of the Syntocinon argument as, according to the experts on each side, it stood before the evidence was taken. It is convenient for two reasons: first, to set out clearly the matters which underlay the argument in summary form and to note the hospital's position in relation to each of those matters. Secondly, to anticipate and make more understandable the impact of Mrs Simpson's evidence, when she gave it, on the argument as formulated at that point of time. She, after all, was one of the principal participants in the events of the morning and afternoon of 5 July 1979, yet none of the experts had been given the opportunity to take into account her observations of those critical events. Her evidence was likely to have a dramatic significance in understanding those events as indeed, when she gave it, it did. 1014 Although Dr Lyneham had formulated the Syntocinon argument, it is probably correct to say that by the time the matter came to hearing, its banner was carried by Professor Fisk, a noted and eminent Foetal Physiologist. The cross-claimant's argument may be postulated at that point of time in the following terms: - (i) During Mrs Simpson's induction there was evidence of hyperstimulation. This was, on the material available to Professor Fisk, more likely to have occurred in the form of uterine tachysystole. This is usually defined as being present when there are more than five contractions in a ten minute period, or importantly, where there are fewer than 60 seconds between contractions (from the end of one to the commencement of the next). (ii) The first piece of evidence was a clear "overdosage" with Syntocinon. First, the regime administered was towards the more aggressive end of the regimes in use at the time. Secondly, the dose drawn up was 43% higher than that in Dr Diamond's protocol. Thirdly, the total volume administered suggested an average infusion rate of 34.5 milliunits per minute (this calculation assumes the entire contents of the Syntocinon solution were infused into Mrs Simpson by 2.15pm). Fourthly, accepting one possible interpretation of the "completed" entry in the fluid balance chart, the average infusion rate over the last two and a quarter hours up to the time of caesarean delivery was in the region of 50.3 milliunits per minute, an extraordinarily high rate. (iii) The entries on the partogram which suggested that there was one contraction lasting 60 seconds coming every minute, was in Professor Fisk's view, clear evidence of hyperstimulation in the contraction frequency record at 11am and 11.30am. Prior to this, the contraction frequency and the interval between contractions was not excessive, while at 12 midday it had returned to just within an acceptable level (one contraction every two minutes lasting 60 seconds). There was, also according to Professor Fisk, indirect evidence of hyperstimulation to be found in the rapid progress of labour and "possibly" in the marked pain Mrs Simpson experienced during the labour. Studies (such as "Foetal Distress in Labour" by Steer and Danielian 1999) had estimated that oxytocin infusion rates greater than 8-12 milliunits per minute were associated with a 30 to 40% incidence of hyperstimulation. On this basis, an overdosage in the present case resulting in an infusion rate of 50.3 milliunits per minute (such as appears to have existed after 12 midday), would on the balance of probabilities be expected to be associated with hyperstimulation. Professor Fisk accepted that if the assumptions he had made about the entries in the fluid balance chart were correct, the hyperstimulation would have been more pronounced after 12 midday than between 10.30 and 11am. (iv) So far as the effect of hyperstimulation on the baby was concerned, Professor Fisk accepted that it was not possible to determine from the records how the baby reacted. The records did include foetal heart readings which were recorded showing exactly the same value of 140 bpm. He thought that it was highly unlikely that the nine foetal heart rate readings between 10am and 12.45pm on 5 July were all exactly 140 bmp. It was his opinion that these readings did not exclude the possibility of there being foetal distress during the first stage of labour and the second stage prior to the attempt at forceps delivery. (v) As a consequence of these matters, Professor Fisk's opinion was that it was more probable than not that Calandre either had reduced reserves around the time of her forceps delivery secondary to uterine hyperstimulation or suffered acute oxygen shortage secondary to a tonic contraction during the attempted forceps delivery. It was possible that both these scenarios applied. A reduced reserve, of course, would also render her less able to cope with the added insult of a tonic contraction. (A tonic contraction is when a contraction does not abate after 20 to 60 seconds as normal but instead lasts several or more minutes). 1015 The range of response to these matters by Professor Ellwood, Mr Clements, Dr Hinde and Dr Rennie varied in detailed content. The general points of difference were these: - (i) First, it appeared to be accepted by all experts that the dosage of Syntocinon employed namely 10 units in 700mls of solution was "aggressive". The rate of administration of the oxytocin drip set upon Mrs Simpson commenced at 14 milliunits units per minute. On the other hand, the maximum dose prescribed was at a drop rate of 60 dpm and the maximum drop rate achieved was only 40 dpm (between 10.30am and 11am). The consequence is that although the starting rate dose was greater than normal, the maximum dose specified in the Doctor's protocol was not exceeded although it was equalled between 10.30am and 11am. The drop rate was turned down after 11am to 30 dpm. (ii) There were two matters requiring interpretation in the partogram related to the question whether the Syntocinon administration continued after 12 midday. The first was that the recording of the dosage ceased at that time. Some experts thought this was consistent with the dose having been ceased altogether, although noting the possibility that it may have continued on at 30 dpm. The second matter was the entry in the fluid entry balance chart which suggested, on one interpretation, that the entire solution had been infused by 2.15pm. Most experts thought that this was very unlikely and that the entry probably meant that the bag (containing whatever amount of fluid was left in it) was discarded at the beginning of the caesarean operation. It was very unlikely because, at the excessively high rate of administration necessary to exhaust the contents of the bag, there would have been almost certainly a sustained contraction at the time the forceps delivery was being attempted. There was no record of any such event. According to Mr Clements, Professor Fisk's calculation would suggest that the infusion rate must have increased, possibly almost doubled, in the period after 12 midday. He thought this reconstruction "extremely far fetched". (iii) The entries which, above all, had suggested the existence of uterine hyperstimulation were those which suggested contractions every minute of 60 seconds duration. Mr Clements made the telling point that this simply could not be: if the uterus had been in tonic contraction (contracting all the time) and never relaxing between 11am and 12 midday, the foetus would have died, the uterus might well have ruptured. Whatever the entry was intended to convey it could not mean that during every 60 seconds the uterus was contracting for 60 seconds for that would not be compatible with intra-uterine life. Professor Ellwood noted that there was no separate midwife record to suggest that tachysystole was present nor was Dr Diamond notified of this fact. He thought that it was simply not possible to say from the records whether or not there was evidence of uterine hyperstimulation. He noted that the foetal heart rate during this time was constant at about 140 dpm and that there was no record of any bradycardia that would have been expected if hyperstimulation had been present. It was in his view, that this militated against the presence of tachysystole. (iv) As far as the rate of progress to full dilatation was concerned, the experts agreed that this was rapid but was well within normal and acceptable limits. (v) The general view was that there was no evidence of any foetal distress or foetal compromise. All experts retained by either the plaintiff or the hospital were united in agreement that the method of recording the heart beats was not satisfactory but the overall view was that it expressed "normality". If the readings were interpreted in that way, there was no evidence whatsoever to suggest foetal compromise. (vi) Mr Clements thought there was no evidence to suggest that a tonic contraction was produced during the forceps delivery. He said it would be remarkable if Dr Diamond and the midwives had failed to notice a tonic contraction and had failed to take remedial action to stop it. Dr Hinde had made the point that if the midwife's statement were accepted, the foetal heart rate was being monitored during the forceps delivery. Importantly, it was being monitored between contractions, a situation inconsistent with the presence of a tonic contraction. (vii) All experts retained by either the plaintiff or the hospital were of the view that the failed forceps attempt was a sufficient explanation for the injuries sustained by Calandre. The course of the trial: The evidence of Mrs Simpson 1016 I have earlier referred to the fact that Mrs Simpson gave evidence regarding her estimates of the frequency and duration of the contractions she sustained during labour. It is necessary to look at this evidence now in more detail. 1017 Mrs Simpson, for relevant purposes, gave evidence on the second day of hearing, being 6 March 2001. She said she had four children, Bianca being the first born and Calandre the second. Her subsequent children were Jade, born in 1983 and Chloe born in August 1986. The last two were delivered by way of elective caesarean section. 1018 Mrs Simpson gave evidence that she was admitted to St Margaret's Private Hospital on the evening of 4 July 1979. She was transferred early the next morning to the labour ward where Dr Diamond performed an artificial rupture of her membranes. A drip was commenced at 9.25am and, although Mrs Simpson was unsure of how long it was before contractions came on, she recalled that they came on "pretty quickly". It was suggested to her that her contractions were stronger than, for example, she had experienced in her first labour but she said that she was unable to recall that this was so. The transcript then records the following at page 71: - "Q. In any event, after they came on, did they continue to increase in frequency and duration? A. They came on pretty quickly and pretty regularly. Q. To the point that between 11 o'clock and midday the records suggest that they were occurring for 60 seconds duration every minute? A. Again, time I have to go by the records, but I do remember they were a minute on and a minute off, because I remember watching that clock and thinking I've got minute, you know, just to take my breath again. Q. Do you remember looking at that sometime after about midday and noticing them at that stage being a minute on and a minute off? A. They were a minute on and a minute off for quite a while. His Honour: Q. For what? A. A minute off and a minute on for quite a long while, yes. Brereton SC: Q. Did the contractions become such that you asked for pethidine at about quarter past eleven in the morning? A. I remember I asked for an epidural earlier and they said that you couldn't have that until the contractions were at a certain level or whatever, or whenever you can. So they would have given me pethidine, yes, and then whenever it was I was able to have the epidural, I had the epidural. Q. Then you asked for the epidural when you were in pain after that, did you? A. Well I asked for the epidural because I was in pain earlier, yes. Q. And once the epidural was administered at about midday, did you continue to be in pain? A. I still had a feeling on my one side and pain, a bit of pain, yes. Q. And the epidural wasn't relieving all of that pain? A. No, I was certainly aware of the contractions on one side. Q. And by half past twelve, were you told that you were already fully dilated? A. If that's the time on the record, yes. Q. After midday, do you remember whether there were nurses around you at all? A. They were around all the time. Q. And do your remember whether anyone was monitoring you during that time? A. From when I was fully dilated till Dr Diamond was called? Q. Yes. A. I don't remember. I remember being, you know, them listening many times during, you know, on and off but not while we were waiting for Dr Diamond. Q. Do you remember … ? A. I am sure they would have. They were listening …. Q. I am just interested in what you remember. Witness: A. She did listen many times. Last four questions read. His Honour: Q. Does that help you? Back to answering that question, what you observed at that time? A. They used like the horn many a time and as far as I remember, there was, from when Dr Diamond was called, they would have listened a couple of times but not constantly. Brereton SC: Q. And from when Dr Diamond was called you were still having contractions? A. Yes. Q. And they were still causing you pain? A. Yes, I had all the time. Q. And you still, the pain was still such that the epidural needed to be topped up? A. It had been topped up I think. Q. Well it was topped up once at five minutes to one if you recall and a second time at half past one? A. So, obviously I was having pain. Q. When Dr Diamond arrived you were still in very considerable pain? A. I still had pain and could still feel the contractions." 1019 Mr Brereton SC took up further cross-examination on the topic as to the degree of foetal heart rate monitoring at page 112 of the transcript. Mrs Simpson was unable to recall how long, on any occasion, the nurse listened when using the horn to monitor the foetal heart rate. At the foot of page 112 the following exchange occurred: - "Q. Now in that evidence that you gave yesterday, you were speaking about the period in which you were waiting for Dr Diamond; is this the situation, that you recollect the nurses listening only a couple of times during the period that you were waiting for Dr Diamond to arrive? A. I honestly would not know how many times, but they did. They would come and listen and every now and again use the stethoscope thing or whatever." 1020 Mrs Simpson confirmed that in this answer she was referring to the one hour period prior to the arrival of Dr Diamond at about 1.30pm on 5 July 1979. She repeated, when pressed, that "they certainly listened during this time" but she was unable to say how many times with any precision. She said "They would have come and listened, you know, at their discretion I would imagine". She accepted that it was fair to say that she did not have much of a recollection of the number of times they were there during that one hour period. 1021 At transcript 114, Mrs Simpson confirmed that during the period whilst she was waiting for Dr Diamond she continued to have "one off and one on contractions". She said that she was conscious during this period, after the epidural had been inserted, of the contractions pulling on the one side. She confirmed this when she was cross-examined by Mr Hall QC at page 128. 1022 Mr Hall QC took up the question of the frequency of Mrs Simpson's contractions at pages 119 and 120. I shall set out this evidence in full: - "Q. You of course, as you made it clear yesterday, were, during your first and second stages of labour, in a position whereby, when contractions came on, there was a clock up there you could see and judge for yourself when a contraction would come and go and you would have another gap before another contraction, is that right? A. Mmhmm. Q. Mrs Simpson I want you to assume - and this may assist somewhat by referring to the data we do have on this matter - that after the induction was commenced in the morning following the rupture of the membranes, the first entry concerning contraction frequency would indicate that between 10.30 and 11 you were having contractions at five minute intervals, lasting about 20 seconds duration each, before it then moved on and increased. Firstly, does that generally accord with your recollection, that pattern? A. I don't remember the early ones; I remember the stronger ones. Q. I will perhaps come to those now then. You do remember that there was an alteration as the morning progressed in the frequency of contractions, I take it from that answer? A. Yes. Q. In between 11 and 12 o'clock, in so far as the partogram records, you were having contractions which were lasting … 60 seconds? A. Yes. Q. In that interval of time, 11 and 12, does it accord with your recollection you were indeed having contractions a minute on and a minute off as you described yesterday? A. Yes. Q. Then at 12 o'clock through to 12.30 entries indicating a change in the frequency of your contractions, but not the duration, namely intervals of two minutes and a contraction lasting 60 seconds. Do you recall generally that the pattern did alter? A. That before the one minute, one minute off …. Q. Following the one minute on, one minute off I am talking about? A. I remember only the one minute on and thinking of the minute off I am going to have because the epidural had only taken on the one side. Q. So you do not have a recollection now that after midday there was a change in the frequency, being a change from a one minute interval to two minute intervals? A. No. Q. You don't recall that? A. No. Q. What you do recall is after midday there was this pattern of one minute on and then you would be looking forward to having that minute break? A. Yes, I was of the opinion it was constant, the 1/1 Q. That is a constant pattern? A. Yes. Q. One minute on … A. One minute off. Q. And the one minute off was the period you were looking forward to? A. Yes, obviously." 1023 Mr Hall QC asked further questions regarding the attention Mrs Simpson had received from the nursing staff particularly in the period after midday. She confirmed that the nursing staff were around all the time during this period; she recalled that she called for the anaesthetist many times but he did not come back. She said that the staff rang him and he said "Just top up". She said she wasn't happy about that. (I take Mrs Simpson to be referring to the fact that she was unhappy that the anaesthetist did not personally come back to attend her in circumstances where the epidural was not working properly). She confirmed, however, that the staff who were there, did in fact attend to her in relation to the progress of her labour until Dr Diamond arrived. They were speaking to her to see how she was going and to check how her progress was being managed. 1024 Mr Brereton SC had put to Mrs Simpson that when Dr Diamond arrived she had said to him "Do something Bobby". Mrs Simpson denied that this had been said. She repeated this denial to Mr Hall QC but she said that she was not very happy at the time because the epidural had not taken. She said that she was distressed because she had asked for the anaesthetist "many a time" but he had not come back to see her. 1025 Mr Hall QC returned to the question of foetal heart rate monitoring at page 128 in the following passages: - "Q. So far as the labour ward staff at St Margaret's, on the occasion of your admission you have spoken about the fact they were all there, in answer to Mr Brereton's question of the team. They were there to carry out monitoring of your contractions, were they not? A. They did do it, yes. Q. And the monitoring of the foetal heart rate through this period as we have discussed before? A. Yes, up until the forceps, yes. Q. They were medicating you from time to time in relation to the pethidine and topping up the epidural - someone was doing those tasks through and until Dr Diamond arrived? A. Yes. Q. I think from time to time it may have been the nurse or midwife who adjusted the drip from time to time, do you recall that? A. I don't remember them adjusting the drip, but they could have." 1026 Mrs Simpson was also asked to describe her experience during the attempts at forceps delivery. At transcript 125 and 126 the following appears: - " Mr Hall QC: Q. I don't want to revisit unpleasant memories for you, but just one aspect of the matter; you have given evidence of your distress during the attempts at forceps delivery. What was causing that distress, what were the factors giving rise to it? What were you experiencing? A. There was a lot of fluid on the bed that I was in which I was - I questioned as to why and what was going on. I wasn't - I was told it was nothing to worry about and the forceps was quite aggressively, you know, I felt as though I was going to fall off the bed. I kept sort of saying "Bobby, I am going to fall off this bed if you pull any harder". He said to me "Not to worry, you can't possibly fall off". I do remember I was holding on for dear life, even though he said I wouldn't because I was clenching, I was in a lot of fluid. What the fluid was, I asked - I don't really know what it was but I was being pulled. I said many a time "I'm going to fall off this bed. You are going to pull me off" and he said "You won't fall off"." 1027 Mrs Simpson was also asked whether she was in a position to see whether Dr Diamond changed the forceps and whether he used different forceps. She said that she did not know how many he asked for although he asked for different ones. She said that there were so many attempts she did not know exactly how many he used, but she believed there were three forceps. She also said that there were many attempts with the different sets of forceps. So far as the attempts were concerned there were "Definitely more than four or five, definitely more". 1028 Finally, it is necessary to refer to the evidence given by Mrs Simpson as to events which occurred after she and the baby had left the hospital. Although it seems clear that Mrs Simpson attended Dr Diamond in his rooms after the birth on two occasions, she could only recall the one visit. She particularly remembers this visit because by then she had passed the stage of simply accepting Calandre's birth and was starting to ask questions as to what had gone wrong at the birth. On the particular occasion she remembers she asked Dr Diamond what went wrong. At page 123, she records his answer as follows:- "Q. What did he say? A. He didn't answer me immediately. He just went "Um" and I got quite upset about that and I sort of hit my hand on the table and clicked my fingers and said, "After such a delivery, it should be on the tip of your tongue. It should be nothing you are having to think about". And I had been told that other medical people, he had mentioned to them that he didn't know what had gone wrong, and to me he had given an explanation. I said "How can you say that? You told me the cord was around her neck" and he said "Oh, that's right" You know? To me it was questionable, the whole incident, and I didn't leave there feeling confident in any way". 1029 Mrs Simpson agreed that either on the occasion of that visit or possibly another visit Dr Diamond had fitted her with an interuterine device. This involved a vaginal examination. She said she was never told on this occasion or any other occasion for that matter by Dr Diamond that her cervix had been torn or that the anterior lip of her cervix was entirely absent (T 124 lines 50-55). 1030 Some months later she went to see a Dr Col Fisher at the Royal Hospital for Women. She had done research on finding another doctor to visit and she wanted a second opinion because she felt that her daughter had been "damaged". He performed a vaginal examination and afterwards had a discussion with Mrs Simpson in which he told her there was significant damage to her cervix. He told her that the anterior lip of her cervix was totally gone and this might cause a problem for her in having further children. Dr Fisher asked her whether Dr Diamond had ever mentioned this injury to her and she told Dr Fisher that Dr Diamond had never mentioned it. He said that he would write to Dr Diamond about the damage to her cervix. 1031 For completeness sake, I should mention that correspondence did pass between Dr Fisher and Dr Diamond. On 12 November 1979 Dr Fisher wrote to Dr Diamond in a letter which, omitting formal parts, was in the following terms: - "Mrs Simpson was referred to me for a check by her local doctor. On examination I noticed that the anterior lip of her cervix is entirely absent. I wondered if this situation was present before she embarked upon her recent pregnancy and I would be grateful for any information that you could supply me with about her recent labour and confinement." 1032 Dr Diamond replied in a latter which simply said: - "Gail Simpson had a very complicated second confinement. Following a normal ante natal course she in fact had a failed forceps followed (by) an emergency caesarean section. The failed forceps appears to be related to a short cord which was tightly wrapped around the baby's body leading to severe foetal distress." 1033 Dr Diamond made no mention in the letter of the question of the damage to Mrs Simpson's cervix. 1034 In Exhibit 27 Dr Diamond answered certain interrogatories administered by the plaintiff. At page 31 of this exhibit are set out questions and answers 92.2 and 92.3. These are in the following terms: - Q 92. Look at the attached copy of a letter from Dr C. Fisher dated 12 November 1979: - 92.1 Did you ever observe that Mrs Simpson's cervix was missing the anterior lip? A. The first defendant does not recall noticing. 92.3 What is the medical explanation for absence of the anterior lip of Mrs Simpson's cervix in just the position to the delivery of the plaintiff by you on 5 July 1979? A. The first defendant does not know but believes the absence of the anterior lip may have occurred during the attempted forceps delivery." The impact of Mrs Simpson's evidence on the Syntocinon argument 1035 I shall pause at this point to reflect on and summarise the potential impact of Mrs Simpson's evidence on the Syntocinon argument as it had been principally formulated at the commencement of the hearing. 1036 The first matter which had been thrown into considerable doubt by Mrs Simpson's evidence was the interpretation of the partogram which found evidence of hyperstimulation in the form of contractions occurring every minute and lasting 60 seconds. This was an interpretation which had been allowed for, albeit with some reservation, by Dr Lyneham; it had been embraced by Professor Fisk as "clear evidence" of hyperstimulation in the form of tachysystole in the hour between 11am and 12 midday, and had been adopted by Dr Keogh in Exhibit 125. Mrs Simpson's evidence was very convincing. The picture of a woman with an eye on the clock, counting, in effect, the time during which pain had abated before the onset of the next contraction carried considerable conviction. Mrs Simpson was not certain in her precise recollection of the duration of this situation although she accepted that it was certainly the position between 11am and 12 midday. Although she was unable to recall it being different during the period until Dr Diamond arrived, it seems very likely that there was no period when the frequency of the contractions exceeded the upper limit of normal. One thing is clear: if her contractions had strayed to any significant degree into a higher rate of frequency and duration, she would have recalled it. Mrs Simpson's evidence, unless it could be effectively traduced from some other more reliable source, meant that this important building block in the Syntocinon argument was simply not there. 1037 A second and equally significant factor in the proper interpretation of the partogram was that her evidence belied the suggestion that her contractions in any way became more pronounced after midday. The interpretation of the fluid balance chart which suggested that the entire contents of the bag were infused into Mrs Simpson precisely by 2.15pm simply could not stand with her evidence. Professor Fisk was quite clear that if the balance of the bag had gone into Mrs Simpson in the two and a quarter hours after midday her contractions would have become much more pronounced after midday. Mrs Simpson's evidence on this point made it clear that this interpretation of the fluid balance chart and partogram was not really available. The consequence of this situation was that either the Syntocinon infusion had been stopped at midday or shortly thereafter; or that it had continued but at the last recorded rate of 30 dpm, or that it may have been turned down to a lower drop rate, although this was not recorded on the partogram. 1038 The third matter which was indirectly related to the Syntocinon argument was that it seemed quite clear from Mrs Simpson's evidence that she had been reasonably well attended by the nursing staff particularly in terms of foetal heart rate monitoring. Although her recollection was insufficient to enable her to say how many times with precision this occurred, particularly during the hour before Dr Diamond arrived, the overall import of her evidence was that she was not in any sense abandoned or neglected by the nursing staff, and that foetal heart rate monitoring was a regular part of their attendance upon her. By contrast, as the evidence shows, she was "distressed" by the fact that the anaesthetist did not come back to see her even though the epidural was not working properly on one side. 1039 The fourth matter which also has an indirect bearing on the Syntocinon argument was her evidence relating to the number of instruments used by Dr Diamond, the frequency of the pulls or attempts at delivery and the degree of force used by him. This last matter is influenced by her description of the way in which she was (to her perception) being pulled off the bed, and the fact that her cervix was substantially damaged, probably during the forceps delivery. These matters are all relevant to the cause of Calandre's injury and the mechanisms necessary to explain that injury in terms of foetal physiology. These considerations in turn relate to the broader question as to whether it is necessary to look beyond the failed forceps delivery to a secondary contributory cause to account for Calandre's injury. The Evidence of Mr Clements 1040 Mr Clements was the first witness called by the hospital. He was called "out of turn" as he had come to give evidence in the plaintiff's case. Dr Diamond's admission of liability made this unnecessary. 1041 I should begin by making three comments. First, I was very impressed by Mr Clements and his evidence. His reports were extremely thorough, helpful and well balanced. I found his oral evidence also to be most helpful and balanced. Mr Clements made concessions where they were appropriate to be made and, importantly, conceded the possibility of the feasibility and validity of the Syntocinon argument. Notwithstanding these concessions, at the end, it was his measured conclusion that it was not necessary to look for a second cause, such as the Syntocinon infusion, to find an explanation for the catastrophic outcome to Calandre in this case. He remained of the view that there was no sufficient evidence of foetal compromise so as to warrant the finding of contribution to injury suggested by the first defendant. Mr Brereton SC was somewhat critical of Mr Clements, branding him as an "advocate". I must confess I found his approach quite even handed. The second comment is this: As this is a case in which the court has received, in both written and oral form, an absolute abundance of expert evidence, it will not be feasible or possible in practical terms to recite every particular piece of relevant evidence given by each expert. Subject to this practical limitation, however, I will endeavour to summarise, as far as is possible, the major points made by each of the experts in relation to relevant issues arising on the cross-claim. Thirdly, although Mr Clements is the first of these, I propose to make comparatively more detailed reference to his evidence and to use this material as the starting point from which other expert opinions are summarised and analysed. My final task however, will be to make relevant findings of fact and conclusions which take into account the entire spectrum of expert opinion, not merely that of Mr Clements, as well as the detailed lay evidence. 1042 With these general comments in mind, I turn to the oral evidence of Mr Clements. I propose to deal with this evidence under two separate headings. The first will be a consideration of Mr Clements evaluation of the impact of Mrs Simpson's evidence on the Syntocinon argument; and his evaluation in oral evidence of the Syntocinon argument generally. This will necessarily require a reference to his evidence in chief and cross-examination. Secondly, for the reasons I have already elaborated, I propose to set out some detail of Mr Clements' evidence on the related topics of: - (i) Reasons for Dr Diamond's failure to deliver Calandre by forceps, and (ii) The scope of Dr Diamond's actions and particularly their causative effect in relation to Calandre's injury. This in turn will require an evaluation of Mr Clements evidence in relation to Dr Diamond's departure from acceptable standards of professional obstetrics practice as at 1979. Mrs Simpson's evidence: Mr Clements' views. 1043 First, as general background, Mr Clements made the point that, in his opinion, the use of the term "overdosage" of Syntocinon needed to be cautiously approached. He made the point that, when considering the dose of oxytocin - the amount, the speed and concentration of the drug - it is important to understand that every woman is different, every uterus is different, and within the same woman every labour is different and every part of the pregnancy in the same woman is likely to be different. He said that what was meant by an "overdosage" of oxytocin is that there had been an "over achievement of the effect of the drug". This is described as hyperstimulation. The critical matter is not so much the dose as the effect of the hyperstimulation on the foetus. Secondly, he noted that, although it was unusual to have a concentration of 10 units in 700mls, the infusion in fact began at a relatively low drop rate of 20 dpm. It rose to 30 dpm at 10am; to 40 dpm at 10.30am, and back down to 30 dpm at 11am. Nextly, he noted that the amount of pethidine administered at 11.15am was a very small dose and that the amount of Marcaine (the drug used as the local anaesthetic to effect the epidural) was itself a standard dose. Neither the pain relief drug nor the epidural, I understood him to be saying, suggested a level of pain or contractions out of the ordinary. 1044 Against the background of these general observations, Mr Clements came to consider Mrs Simpson's evidence as to the duration of her contractions especially during the first stage of labour. During this stage, between 11am and midday, there occurred the entries in the partogram which gave Mr Clements (and all the experts in the case) considerable difficulty of interpretation. He repeated that he found the literal meaning which had been given to these entries impossible to accept because such a meaning represented "a biological impossibility". He repeated the observations in his report that if the uterus were contracting all the time, with no space for relaxation in between, this would not have been compatible with uterine life. The baby would have died within the hour. He said that Mrs Simpson's evidence would suggest that her contractions, which she had timed by the clock, were lasting 60 seconds with a minute's rest before the next contraction. He said that this was a very strong pattern of contraction but was within the permissible maximum. He thought such a pattern would make sense in terms of how the labour went because it went "fairly rapidly". His view was that the midwife may have simply made a mistake in writing the 60 in the top column, may have realised that mistake and then, for the third entry put it in the right column. Whatever the ultimate interpretation, he thought Mrs Simpson's evidence helped in "resolving the ambiguity he had dealt with in his report" (T 158 lines 5-10). 1045 The second major matter of interpretation was the interpretation of the hospital records to determine what happened with the Syntocinon administration after 12 midday. Mr Clements thought, looking at all the records, that there was probably no Syntocinon administered after midday. This was the view that had been taken by Dr Hinde as well (T 189). He considered the likelihood or otherwise that the full bag of Syntocinon was "completed" at 2.15pm. He thought, for example, that if there had been a very substantial increase in the dosage administered between midday and 2.15pm, this would be expected to produce an increase in the frequency and length of contractions. Even if this had occurred, there was no absolute relationship between doses of Syntocinon and foetal distress. He was highly sceptical, however, of the possibility that the drip rate would have been increased after 12 midday. He found it difficult to conceive that the midwife would have changed the dose to one which was "potentially dangerous" when there was no clinical indication for it. The second thing he found difficult to conceive was the precise coincidence of the bottle being completed "at this improbable rate" at the very moment of the baby's birth. All this led him to believe that the word "completed" in the fluid balance chart should not be given a literal meaning. He thought it could have meant, in common usage, that the Syntocinon infusion had been "discontinued" and thrown out (T 192 line 40). This would fit in well with the insertion of the cannula and the administration of the new solution necessary for the caesarean operation which appears on the fluid balance chart. 1046 The third matter of interpretation related to the degree of force involved in the forceps attempts. This had been evidenced by Mrs Simpson's description of the force used during the forceps attempts. It was also evidenced by the serious injury to the maternal cervix. As to the latter, Mr Clements explained that this was likely to have occurred when the Kiellands forceps blade was applied. This type of instrument, which is used for rotation purposes, would be capable of being in a position to damage the anterior lip of the cervix if the cervix had not been fully dilated at the time the forceps were applied. Mr Clements explained that if the Kiellands were put on with the maternal cervix intervening, the obstetrician then had to use much more than normal force to rotate the baby's head because he would be dragging the cervix around with it, injuring it in the process. This circumstance made it not difficult to understand how the forces required for rotation and traction would have been much greater than normal. Mrs Simpson's description of feeling that she was about to be dragged off the bed was, he said, entirely consistent with the operator having used "more than normal force". Was it necessary to consider the possible role of Syntocinon? Was the mechanism of the failed forceps delivery sufficient explanation for the outcome? 1047 These two questions assumed great significance in the case. According to the answers given by Dr Diamond to interrogatories, there had been three sets of forceps used. These were described as Wrigleys forceps, Neville Barnes forceps and the Kiellands forceps. The last mentioned forceps were used in an attempt to rotate the baby's head. In all, according to Dr Diamond, there were probably some five attempts to deliver the baby using these three sets of forceps. There were two attempts with the Wrigleys, probably two attempts with the Neville Barnes and one attempt with the Kiellands forceps. Despite the five attempts, there was no descent of the baby's head at all. At or about the time of the attempt to rotate the head with the Kiellands and the subsequent pull to achieve descent, the baby's heart rate dropped down to 60 to 80 bpm. It was at this time, in the labour ward, that the decision was made to move to caesarean section in the operating theatre which was situated on the floor above the labour ward. It took approximately 27 minutes from the time the profound bradycardia occurred to the moment when the baby was delivered by caesarean section. It was the view of Dr Rennie that, more probably than not, the bradycardia persisted throughout this entire period. This was in her opinion, the acute hypoxic insult which resulted in the plaintiff's brain injury. Both Dr Rennie and Mr Clements thought that the bradycardia persisted until after birth. Although there was no record of precise foetal heart rate at birth, it was, in accordance with the APGAR scores, less than 100 bpm. Dr Van Vliet, a private paediatrician, was in attendance. His notes suggested a "persistent bradycardia" at the time the baby was intubated immediately after birth. To answer the questions posed, Mr Clements considered it was necessary to understand, first, why the baby did not deliver; and secondly, the mechanism involved in the forceps applications. Mr Clements' views: why the baby did not deliver 1048 Mr Clements thought that the reason the baby did not deliver was, first, that the maternal cervix was incompletely dilated. Secondly, he thought it was likely that the baby's head was in the deep transverse position. The operation record at caesarean was completed by Dr Diamond's partner, Dr Hakim who assisted at the operation. The indication for the operation was given by him in the record as "foetal distress/deep transverse arrest/and failed forceps delivery". 1049 Mr Clements explained that in a well flexed foetal head with the chin tucked in, the back of the head when entering the maternal pelvis, rotates to the front. This is the mechanism of normal labour. In this situation, the position of the baby's head ie, its orientation in relation to the mother, is described as the occipito-anterior position. The second position, which is less common, is described as the occipito-posterior position. Delivery is easier in the anterior position of the occipito because the head is flexed, whereas in the posterior position the head is extended and the diameters are greater, making delivery less easy. Sometimes a baby will deliver spontaneously in the occipito-posterior position. Where this happens the baby's face emerges confronting the obstetrician. 1050 The position "deep transverse arrest" is a position where the head is engaged but where, by virtue of two possible mechanisms, the head is malpositioned. This, in a normal pelvis, makes it undeliverable unless treated. Mr Clements explained that the baby's head will negotiate the lower part of the pelvis much better if the head is either full occipito-anterior or full occipito-posterior. The head, however, does not enter the pelvis in that way. The head enters the pelvis in the transverse and then has to rotate. It may rotate in either direction. The direction of rotation will depends upon which part of the baby's head hits the muscle floor of the pelvis first. 1051 By use of a "doll" (Exhibit 6), Mr Clements showed that the muscles of the pelvis are shaped as a funnel and they run downward and forward to the opening of the vagina. He described the leading part of the head hitting the "funnel" and then rotating to the front. This is the rotation forward to the anterior position. The other way is if it rotates backwards in the posterior position. 1052 The possible mechanisms for achieving a deep transverse arrest are these. First, there may be a failed rotation in the occipito-posterior position. The head may get "stuck" half way in the long rotation. The second mechanism is that the foetal head never does rotate. It never rotates anteriorly or posteriorly. In this situation, the head descends as far as it can but it is not able to descend much below the level of the ischial spines because there is not room. (There is a diagram which well illustrates this position in Exhibit 2: see diagram p 22 and text p 23). 1053 For these reasons, Mr Clements was of the view that Dr Diamond made two critical errors in his attempts at forceps delivery. These were first, that he applied the forceps before full dilatation. In this regard, he pointed to the injury to Mrs Simpson's cervix. Secondly, he applied conventional curved forceps (Wrigleys and Neville Barnes) to a head which was not in the occipito-anterior position and which, on the balance of probabilities, was in the occipito-lateral (or transverse) position. Later in re-examination at T 1386, he repeated the two factors relevant to the position of the head: First that an experienced obstetrician failed to achieve delivery on five occasions with three attempts. Secondly, Dr Diamond must have assumed there was a malrotation as evidenced by his decision to use Kiellands forceps. 1054 Additionally, Dr Diamond should not have made four or five attempts with three separate instruments. Moreover, once he realised that this was not an easy forceps delivery, he should have moved directly to caesarean section or conducted a second attempt at forceps delivery in the operating theatre as a trial. The mechanism for damage - failed forceps 1055 Mr Clements explained the compression and traction forceps that are applied to the baby's head using firstly, the conventional curved forceps; and secondly, the rotational Kiellands forceps. One significant feature of the failure of the baby's head to descend when the forceps were applied was that the compressive effect was greater the more traction was applied. The rotational forces were the greater because of the entrapment of part of the maternal cervix in the manoeuvre. 1056 At page 178 the following question and answer appears: - " Mr Hall QC Q. There may be a view expressed that babies are delivered by forceps and you will have only a temporary bradycardia, baby recovers, incidents of on-going long term permanent consequences are very low, and what I am asking really is whether this case exhibits the hallmarks whereby it belongs to that category of case or it doesn't? A. I can answer that. No, it doesn't. It doesn't for a number of reasons; first of all that it broke a number of the rules for forceps delivery and it went on for much longer than I think any authority, text book or expert would seek to justify. It is the length of the attempt and the repeats of the attempts which make it unusual and which make the injury which follows, although a rare complication of forceps delivery, entirely understandable and explicable in this case." 1057 In his second report Exhibit 2 at page 20 Mr Clements had explained, in general terms how the mechanism occurs. I have already summarised this passage (Judgment p 378) but it is worth setting it out in full at this point: - "Repeated attempts at forceps delivery are, from time to time encountered in forensic practice and sometimes result in a profound and prolonged bradycardia. The mechanism is often unclear but there is no doubting that it happens. I have encountered it in my medico-legal practice on half a dozen occasions. The mechanism is not necessarily always the same and there are several possibilities. Compression of the head causes bradycardia which, in an uncomplicated case, immediately improves when the forceps are removed. If however the forceps are repeatedly applied with several attempts at traction and rotation then the effect on the baby is often to produce a much more profound bradycardia which takes a much longer period to recover. If the procedure is sufficiently prolonged, bradycardia may be become terminal because the bradycardia, of itself, causes damage both to the baby's heart and to the brain. The other entirely separate mechanism involves the umbilical cord. Particularly with the application of Kiellands forceps the cord may become entangled in the forceps; the cord does not have to be around the baby's neck, (although Dr Diamond says that he recalls that in this case it was) but just lying alongside the head. Once the forceps are removed there is often no trace of cord involvement although occasionally I have encountered cases in which there is contusion, to provide the confirmatory evidence. It is not clear whether in this case anyone looked at the cord but there is no description of it; the absence a contusion would not rule out this mechanism in any event." 1058 In his oral evidence, Mr Clements went on to explain that, for confidentiality reasons, he was not at liberty to provide the court with details of a number of the cases referred to in this passage. This was because they had been settled. There was one published decision, however, and that was a case known as Parry's case. Mr Clements said that there has been only one attempt at forceps delivery in that case, a rotational attempt by a hospital registrar, which failed. Mr Clements said the case provided an "example" of a failed rotational forceps followed by bradycardia and a form of cerebral palsy not unlike the present. 1059 Mr Brereton SC pursued Mr Clements in cross-examination in relation to this aspect of his opinion. His first line of attack was to challenge Mr Clements on the issue as to whether there was any evidence in the medical literature supporting the proposition that failed forceps, in the absence of foetal distress, can produce permanent brain damage in the foetus. There was discussion between senior counsel and the witness regarding a study by Lowe "Fear of Instrumental Failure" (T 199-204; T235-237). There was also discussion in relation to Parry's case (T 238). Counsel sought to elicit from Mr Clements that the one example in Lowe, upon which he placed reliance and the example furnished by Parry's case, were not true parallels to that of the plaintiff in the present case. Mr Clements, while recognising there were differences, maintained that they were capable of providing illustrations of the mechanism. During the course of the discussion in relation to the one example in Lowe (at T 236), senior counsel put to Mr Clements that, in that individual case, the mechanism which occasioned the permanent damage to the baby was not apparent or known. The answer is instructive: - "Q. Before we leave Lowe, the mechanism which occasioned that particular result in that individual case in Lowe's study is not apparent, is it? A. No. It is inherently improbable that the mechanism could be known. I can't envisage a trial, an experiment, a laboratory exercise which could know what the mechanism is. It is an observation of a rare clinical event and the consequences of it. Knowing the mechanism is I think beyond our present knowledge." 1060 (I should for completeness mention that a "side issue" arose later in the proceedings so far as this example in Lowe is concerned. Mr Clements was later re-examined by telephone link on 11 April 2001 as he had by then returned to London. Immediately prior to his re-examination he was further cross-examined by Mr Brereton SC who, by that time, had considered more carefully the particular example in Lowe. Senior Counsel pointed out to Mr Clements that there were two apparent differences between the example and the present case. The baby, in Lowe's article, had apparently recovered to some degree before birth and the cerebral palsy later observed was spastic quadraparesis rather than athetoid. Mr Clements accepted that there were differences but made two points. First, it was difficult, because of the brevity of the reference in the article, to have a clear understanding about the handicap, the neurological damage or its cause. Secondly, he maintained there was a clear parallel to this extent namely, that it provided an illustration, in the absence of pre-existing fetal distress, of a failed forceps delivery involving Kiellands and a severe foetal bradycardia). 1061 A forceful explanation by Mr Clements of the mechanism thought to have been likely in the present case appears in his evidence at T 211: - "Q. If the head was squeezed but not in a manner to cause any intracranial trauma or haemorrhage then one would expect the foetus to recover over 30 minutes? A. Well, yes and no. The answer to the straight question is yes but it doesn't take into account the mechanism which I have proposed and which I believe to be relevant here and that is not one squeeze of the foetal head which allows the baby to recover but a series of insults, not intended to be a perjorative word, a series of accidents to the baby's head, pressures on the baby's head by the repeated application of forceps. So that initially the baby recovers perhaps from the first, the second, there comes a time when the bradycardia does not recover because of the repeated insults and particularly if the last insult is more severe than those which preceded it and, if you like, softened up the baby for the final insult. In those circumstances the mechanism is not difficult to understand because the bradycardia goes on for sufficiently long to damage both the myocardium, the muscle of the baby's heart, and the baby's brain so that the baby is not able to recover in the way she would do if the stress on the head was temporary, of the kind we see in an average forceps delivery." 1062 It is necessary perhaps only to give two further transcript references to the same theme in relation to the mechanism. At the foot of page 211, Mr Clements said: - "Nobody is suggesting that Calandre had intracranial damage. What she had was bradycardia. Now the possible reason that she had the bradycardia was that her head was squeezed, because we know that squeezing the head causes bradycardia. We have to go a little further than that; whereas most such bradycardia recover if you squeeze the head for long enough, the bradycardia itself damages the baby. That is the proposition I am putting forward …. It is a functional disturbance brought about by the reflex which, when you squeeze the head, causes the vagus nerve to stimulate the heart and slow it." 1063 And further on page 212 when Mr Clements was asked whether he would expect, even after a number of squeezes, that the baby would recover if otherwise healthy, he said: - "Well you might expect it but it is my experience, and we discussed this this morning, that from time to time such manoeuvres on the head of a baby will cause a bradycardia from which the baby does not recover. It is rare, it doesn't happen often. I believe it to be this case and I have seen others like it." 1064 Against the background of these statements, senior counsel raised the third "model" which had been presented by Mr Clements earlier that day in his evidence in relation to the possible role that the Syntocinon infusion may have played. This was a reference to evidence given by the witness at T 193-195. In turn, this evidence related to the material in his report Exhibit "Z" at p 19. He had said that there were three ways in which the foetus could be affected by hyperstimulation; the first occurred if the hyperstimulation was of an extreme form and caused the uterus to go into spasm. In this situation the foetus would die within a matter of 20 minutes to half an hour. The second way in which hyperstimulation could injure the foetus, he explained, was the more common way in which hyperstimulation damages babies: this is where it produces a pattern of uterine contraction and relaxation which interferes with the secondary pump action of the placenta so that the foetus suffers what is called chronic partial asphyxial injury. All the experts were agreed that this had not occurred in the present case. This was so because this type of injury usually manifests itself by spastic quadriplegia not athetoid cerebral palsy. As well, it is usually associated with a serious diminution in intellectual function which did not happen in the present case. 1065 The third "model" is one where the foetus is deprived of oxygen, not to the point of injury but to the point where reserves are exhausted or depleted. In this model, the foetus gradually becomes more and more "acidotic". This means that the acid levels in the blood rise gradually as the foetus has to rely more and more on the generation of energy without oxygen. Anaerobic respiration costs the foetus in terms of the accumulation of lactic acid. This keeps the foetus alive but the acid is eventually damaging. Where this acidotic condition continues, there will be normally be a manifestation of its damaging progress. Gradually, the heart rate rises so that, by the end of the process, there is usually a tachycardia, a heart rate above the normal level. That can go on for some hours and the circulation eventually collapses whereupon the tachycardia becomes bradycardia. 1066 At T 213 Mr Clements accepted that this third alternative was "a feasible notion" and a "possible background" to Calandre's problems. He was then asked whether he would agree that as a matter of probability in this case, one would be looking for something additional to the failed forceps attempt which predisposed the foetus to the tragic outcome which eventuated. With this he would not agree. At T 214 Mr Clements said: "… This is a feasible notion and one which Professor Fisk appears to be advancing, there is no evidence for it but there is no evidence which would exclude it. So, in trying to assist the court, and not assume things which is not my business to assume, I go so far as to say I can't exclude what Professor Fisk is saying. If you ask me is it likely I say, no, I don't think it is likely because, as I explained this morning, if this foetus had been exposed to a period of chronic intermittent hypoxia there would have been signs of it and the signs of it would have been a contraction pattern which was more severe than previously. And more importantly there would have been an increase in the foetal heart rate because the foetus whose reserves have been exhausted develops a tachycardia before that foetus is injured. Now, the evidence is not wonderful either way but to convince me that it is probable I would need something to help me to believe it happened. I don't see any evidence that it happened, I can't absolutely exclude it because of the paucity of notes but on the balance of probabilities I don't think it happened. I think it is perfectly understandable that this foetus was injured by a series of insults to her head. You don't have to presuppose another mechanism beforehand." 1067 Mr Clements went on to say that this case was "different". He said he had not seen cases in which three different sets of instruments had been used in five attempts at forceps delivery. This case, he said, was "unique" in his experience. He said at T 214 line 40: - "I have never seen such a catalogue of attempts at forceps delivery. … All I can say is that as a very occasional consequence of failed forceps I am familiar with this outcome, I have never seen a case in which there was so many attempts with three different instruments." 1068 This discourse continued at different parts of the cross-examination. One more illustration will suffice. Towards the end of Mr Clements cross-examination the following exchange occurred between senior counsel and the witness (T 282): - " Brereton SC: Q. Would it not be a more likely outcome from the failed forceps if the foetus had been predisposed or at least made more vulnerable by something that had already happened? A. Yes, it must follow that a vulnerable foetus is more vulnerable than an invulnerable foetus. Q. And is a rare or uncommon outcome of the type apparent in this case not therefore more readily explained by the concurrence of two contributing causes than by one cause which, of itself, would not ordinarily be expected to produce that result? A. No, that I think is a completely false argument in logic. Rare events occur rarely. To say that a rare event cannot occur without some adjutant cause because it is a rare event is an illogical …. Rare events happen, they don't need an adjutant event". Mr Clements' Evidence - a Retrospective View 1069 Mr Clements' overall view was plain enough: he did not accept Dr Diamond's statements in his answers to interrogatories as to the position of the baby's head before the decision to implement an instrumental delivery. Dr Diamond had said the head was low down distending the perineum. Mr Clements thought the baby's head was higher in the mid-cavity and in a transverse position. Moreover, he thought Mrs Simpson's cervix was not fully dilated at the time. Had the baby's head been in the position described by Dr Diamond and the cervix fully dilated, the baby would have been easily deliverable. Having made these errors of diagnosis, Dr Diamond went on to apply forceps before full dilatation and to apply curved forceps to a head which was not in a suitable position for delivery by this type of instrument. 1070 The errors of diagnosis and the errors involved in using the forceps in these circumstances represented in Mr Clements' view, a departure from a reasonable standard of care. Further, no responsible obstetrician in 1979 should have persisted with further attempts when the first attempt failed. A reassessment was immediately required. There should have been an immediate decision to move to caesarean section or to conduct any further attempt at forceps delivery in the operating theatre ("a trial of forceps"). 1071 Mr Clements thought the repeated incompetent attempts at forceps delivery were the cause of the plaintiff's injury. The mechanism involved was that the repeated attempts set up an unremitting bradycardia which manifested itself during the use of the Kiellands forceps. The bradycardia persisted for a sufficient length of time to cause the acute hypoxic insult which led to the plaintiff's brain damage. Mr Clements acknowledged that brain damage following an unremitting bradycardia after failed forceps was a rare outcome but he thought it was perfectly explicable in this case. This was especially so because of the unique situation in this case, namely the number of instruments and the number of attempts. He had never seen such a "catalogue of attempts" at forceps delivery. 1072 While he accepted that it was possible that the Syntocinon dose may perhaps have made the foetus more vulnerable to the forceps events, he did not think it was necessary to look for an additional contributory explanation. In relation to this possibility, he did not think that there was any evidence to support it, although he acknowledged that there was no evidence to exclude it. So far as hyperstimulation was concerned, he thought Mrs Simpson's evidence excluded excessively frequent contractions and there was no evidence of a tonic contraction. The recordings of foetal heart rate, although improbable at 140 bpm, were probably the midwife's shorthand way of expressing "normality". These continued through 12.30pm to about 12.45pm. As such, they were not suggestive of any foetal distress. 1073 In the context of evidence relating to the existence or otherwise of foetal distress, Mr Clements also noted that Dr Diamond had stated in his answers to interrogatories that he was not aware of any foetal distress prior to the first application of forceps. He considered that a responsible obstetrician would have to satisfy himself whether or not there was foetal distress before embarking on instrumental delivery. His expectation was that Dr Diamond, when he arrived at about 1.30pm on 5 July 1979, would have either looked at the hospital notes or spoken to the midwife to obtain a resume of events to that point in the labour. He would then examine the patient in three stages. First, he would make an examination of the abdomen by palpation to ascertain the head level. Secondly, he would listen to the foetal heart rate either with a Pinnard stethoscope or with a Doppler aid. He would then conduct a vaginal assessment of the position and station of the head and the state of the cervix. These examinations, together with the information obtained from the midwife, would give the doctor information as to whether there were any long lasting or continuous contractions or other noticeable abnormality (T 183-187). In addition, the examinations were necessarily directed to ascertaining whether there was or was not foetal distress. 1074 Along the path of expressing these views, a number of contrary propositions or possibilities were put to and addressed by Mr Clements in cross-examination. It is not necessary to detail them all but, apart from those already traversed, they included the following: - (i) The proposition that the scientific and medical literature made little or no reference to examples of permanent brain damage following upon failed forceps at least in babies where there was no intracranial damage. (ii) The literature which recognised the increased risk of hyperstimulation from high doses of Syntocinon. These included the Steer study (already mentioned) and the study by Satin et al (Exhibit 145) (T 268-275). This latter study showed an association between high dose oxytocin levels in induction and hyperstimulation of 61%. (iii) The possibility of increased risk to Mrs Simpson in relation to hyperstimulation as a consequence of a comparison of the dose she received with the levels examined in, for example, the Satin study. (iv) The likelihood that, contrary to Mr Clements' views, the Syntocinon continued after midday until the time of caesarean section. (v) The possibility that there may have been, after midday, a more rapid infusion of Syntocinon because of a faulty drip set or movements of the patient's arm. (vi) The possibility that part of the solution, prior to the introduction of Syntocinon at 9.25am, may have run into Mrs Simpson; and the further possibility that there may have been 300mls left in the bag at 2.15pm when it was removed. (vii) The possibility that the hyperstimulation experienced by Mrs Simpson was of the type described as hypertonus, this being an abnormality categorised by "an elevated resting tone for the uterus". (viii) The possibility of hypertonus leading to a depletion of foetal reserves; and the possibility of a gradually increasing bradycardia developing between 12.45pm and the time when Dr Diamond arrived. 1075 At this stage, I do no more than identify these propositions and possibilities. It will be necessary to consider them in greater detail when I come to determine the facts and to evaluate the force of the Syntocinon argument, having regard to the facts so found. Dr Rennie's Oral Evidence 1076 Dr Rennie was called immediately Mr Clements had finished his evidence. She too, was called "out of turn" as she had come from England to give evidence in the plaintiff's case. She gave her evidence after Mrs Simpson had described the events in the labour ward but before Dr Diamond had given his evidence. 1077 Dr Rennie was asked whether Mrs Simpson's evidence regarding her pattern of contractions assisted in relation to the question whether there may have been evidence or possibility of hyperstimulation occurring at the time. Dr Rennie acknowledged that the foetus can be stressed by "very close together uterine contractions" but she said that she would expect changes in the foetal heart rate, for example, tachycardia, a fast heart rate, to develop. She said, however, that an assessment of contraction patterns would best be determined by obstetric opinion. Her concern was with "the foetus and foetal health". 1078 In relation to her area of expertise she described the relation between hyperstimulation and bradycardia in the foetal heart rate. She described it in the following terms (T 472): - "If hyperstimulation continues for a long period of time, the foetus, as we have said, begins to be stressed. The foetus begins to run a race. First, the foetal heart rate would become fast, then the foetal heart rate would show decelerations … reductions of the foetal heart rate associated with contractions, and these would be first perhaps early decelerations during contractions and then late decelerations continuing after the contractions had ceased and finally, if the foetus was stressed to the point of exhaustion and collapse, the foetal circulation would fail." 1079 Dr Rennie was asked to describe in general terms the mechanism for the consequence of applying forceps to the head of the foetus. She said that it was quite common to observe a bradycardia, a lowering of the baby's heart. It is possible to observe this effect when the an obstetrician applies forceps, compressing the soft bones of the foetal skull. In relation to the present case, she said of the forceps attempts: - "I have never seen a delivery attempted with this number of different forceps or this number of attempts. This is an exceptional sequence." 1080 In relation to the mechanism for injury she had described in her first report she added this (T 474 lines 12-35): - "That view is formed in part on the condition of the baby at birth. Calandre was born with an Apgar score of 1, which means that she had a low heart rate. She was white, floppy and not breathing. This suggests that the period of circulatory collapse had continued up until the moment of delivery and we know from other cases … that the period of circulatory collapse which causes brain damage of this kind lasts between 10 and 25 minutes." 1081 Dr Rennie was asked whether there was a need to inquire as to whether there may have been another possible factor which contributed to the mechanism she had described. She was also asked whether it was her opinion that the matters that she had referred to were themselves "sufficient in their entirety to explain the hypoxia that led to Calandre's injury". In answer to these questions she said: - "As far as I'm aware, I am of the view that this injury in this child is best explained by an acute profound collapse of the circulation, commencing with the application of Kielland's forceps and continuing until delivery. I do not think that it is necessary to understand the injury to posit another course." 1082 Dr Rennie went on to explain that there were three pieces of evidence that she thought informed as to whether the forceps were the sole mechanism. These were, first, lack of evidence of a foetal tachycardia, secondly, the kind of injury sustained by Calandre and thirdly, the baby's neo-natal course. 1083 In relation to the last matter she said that it appeared "not to be difficult" to maintain Calandre's glucose levels as a new born baby. There was no suggestion in the various tests that she had used up her stores of liver glycogen. Dr Rennie explained that on admission to the neo-natal unit there had been tests done in relation to the baby's glucose level. They were not low. They were found to be "185 milligrams percent", which was high for a baby but probably reflected the fact that she had been resuscitated. Secondly, Dr Rennie noted that Calandre, as is common with many ill babies, could not be fed milk. She was "poorly and having fits" and so a drip of sugar was given to her and she was given 10% glucose by drip which was "a standard amount". It would not have been uncommon to have given the baby more if the glucose stores had been used up. These facts relating to glucose levels and testing provided "a further piece of evidence" for Dr Rennie that did not suggest that the baby's reserves were exhausted at birth. 1084 The final matter addressed by Dr Rennie in her evidence in chief was a further elaboration of the mechanism associated with hypoxia. This was a topic she had discussed in her report. In particular, she had discussed the factors of head compression and cord compression. Dr Rennie repeated the matter she had discussed in her report, namely the possibility of the bradycardia arising from head compression as a consequence of the forceps application. She also referred to a second possibility, namely cord compression either because a knuckle of cord was compressed by the forceps; or from the trapping of the cord around the neck, or the blade of the forceps cutting off the oxygen and glucose and blood supply to the foetus. She allowed that, in general, removal of the blades of the forceps would permit a bradycardia to recover but said that this did not happen in the present case either because this was the culmination of a sequence of attempts and previous applications had caused stress to the foetus; alternatively, the cord could have become compressed by the forceps blade because it lay along the side of the head. It was not necessary, she said, in order to understand these forces of compression at work, for there to be necessarily any physical signs of trauma to the foetal head. If the cord is compressed and bruised, then it can become a permanent reduction. She said however, "the precise mechanism of this bradycardia, I suspect, will never be known. We can but speculate as to the possible mechanisms". On balance, she preferred the explanation that the bradycardia was due to repeated applications of forceps. 1085 In cross-examination, Mr Brereton SC elicited from Dr Rennie that the glucose level to which she had referred was in fact more than four times the upper limit of normal. She had explained that this was so because of the foetus' compensatory reaction to the resuscitation attempts. Dr Rennie conceded, however, that a foetus might have its metabolical reserves depleted or exhausted but still have at birth a normal glucose level. It was, she said, "a piece of evidence which is an observation in some cases". It was more that the baby did not need excessive doses of glucose for the first day or so to maintain a normal level. She admitted it was not "a perfect test" (T 516 line 5). 1086 Mr Brereton SC secured the agreement of Dr Rennie to two possible theories relevant to hyperstimulation. First, she agreed, that as a matter of possibility, an excessive Syntocinon dose would have the capacity, of itself, to bring about a situation where the foetus had become exhausted and had collapsed. Senior Counsel suggested that it was "at least a possible sufficient explanation" for the "totality of the outcome" in this case. Dr Rennie agreed that it was "a plausible and possible" explanation if, and only if, there were indeed uterine hyperstimulation and the Syntocinon was continued right up until the attempts at operative delivery. She suggested however, that the observations of the foetal heart rate suggested the rate was normal. Dr Rennie was taken to other litigation in which she had provided a medico-legal report. In that document (Exhibit 129) she had expressed an opinion that the foetus had become stressed because of an excessive Syntocinon dose. Dr Rennie pointed out however, that in that case there was evidence to show late decelerations, tachycardia and then a collapse. There had been foetal distress, in fact, for 2 hours and 25 minutes before the onset of a 40 minute period of bradycardia at the end of labour. She agreed however with the general proposition. 1087 The second "theory" put to Dr Rennie was the proposition that it was "plausible" in the present case that if the foetus' reserves had been diminished to some extent, that would render the foetus more prone to the possibility of not recovering from the forceps application. It would, she agreed, make the outcome in the present case "far more explicable", although she qualified her answer by noting that there had been an exceptional number of forceps attempts used by Dr Diamond. She added at T 514: - "It is not necessary for me to look beyond the fact that Calandre, as a foetus, collapsed with a complete circulatory collapse. That could have resulted solely and only from the use of forceps. It could have resulted, as you have said, solely from injudicious use of Syntocinon, although personally I don't see the evidence that she was pushed to exhaustion from Syntocinon even if it continued; or it could have resulted, as you suggest, from a combination of the two." 1088 Later in her re-examination, Dr Rennie said that although she had allowed that the Syntocinon argument was "possible and plausible" she did not consider that it was "probable" in this case (T 519 lines 45-55). 1089 Dr Rennie was also asked about the relatively rare form of hyperstimulation known as hypertonus. This was described as "a high resting tone of the uterus". Senior Counsel for Dr Diamond asked Dr Rennie whether hypertonus "might or might not" be apparent on abdominal palpation. Dr Rennie said that it was "possible" although she thought the question should be addressed to an obstetrician. She was asked at T 507 whether in writing her report she was conscious of the risk that regardless of the frequency of contractions, the foetus might be deprived of oxygen if there were "an elevated resting tone". She said that she did not make any assumption about elevated resting tone because there were "no real remarks about that". In this answer, I took Dr Rennie to be referring to the records she had examined for the purposes of preparing her reports on behalf of the plaintiff. 1090 The final matter which needs to be noted in the cross-examination is this: Mr Brereton SC tested Dr Rennie on the evidence she had given regarding the likely mechanisms involved in the present case. First, she agreed that it was "rare" to see a forceps delivery which produces a bradycardia which did not recover. She had not personally seen such a case reported in the scientific literature. On the other hand, she had personal experience in medico-legal practice of head compression from forceps producing a bradycardia which did not recover. The head compression had not been associated, in that case, with physical trauma. Secondly, she agreed that in general, babies born after failed forceps are not brain damaged and do not have an abnormal outcome. The "caveat" in this case, however, was the possible effect of the repeated attempts at forceps. Thirdly, she was asked whether she would agree with Professor Fisk, in particular with his remarks at paragraph 108 of his report, where he said "a failed non trial forceps per se in an otherwise healthy foetus without intracranial haemorrhage is insufficient explanation for a major oxygen shortage sufficient to cause this outcome". 1091 Dr Rennie said that this was where she and Professor Fisk "did not entirely agree". She said that it was the continued number of attempts which produced the bradycardia. She did not feel she had a need to find "an additional reason" for the bradycardia and she did not agree that because there was not physical trauma, that that made any difference. She repeated that she did not think Calandre "was a foetus who was exhausted by a long Syntocinon hyperstimulation of the uterus" (T 501). Dr Rennie thought that Dr Diamond would have made an assessment of the condition of the foetus to determine whether there had been any hyperstimulation before he embarked on his attempts at instrumental delivery. Dr Diamond's Evidence 1092 Mr Clements had stated his assumptions as to the action he would have expected Dr Diamond to have taken at the time of his arrival prior to the forceps delivery. These included taking a resume from the midwife, perhaps reading the hospital notes and carrying out and conducting a number of examinations himself. It is now necessary to examine the evidence of Dr Diamond to establish, firstly, what steps, if any, he took in relation to ascertaining maternal well being, contraction frequency and the presence or absence of foetal distress. His findings on these matters are plainly relevant to an examination of the Syntocinon argument. Secondly, it is necessary to examine Dr Diamond's evidence in the broader context of his overall handling of the pregnancy, the labour, the delivery and his subsequent treatment of Mrs Simpson. I propose to make this examination of the evidence by reference to three distinct time frames. First, I shall look at his evidence in relation to the pregnancy; secondly, the events surrounding the induction and delivery; and thirdly, the post-natal period. Dr Diamond's evidence - the Pregnancy 1093 Dr Diamond had acted as the obstetrician for Gail Simpson in relation to the birth of her first child Bianca. She had been born on 23 July 1977. In relation to Bianca's birth, Mrs Simpson's membranes had ruptured spontaneously. The birth process was augmented by the use of Syntocinon and the delivery was by way of forceps. The delivery was under epidural anaesthetic. 1094 Dr Diamond said that he first saw Mrs Simpson in connection with her second pregnancy on 31 October 1978. He obtained a history from her as to her last menstrual period and was told that it was on the 21 September 1978. From that he calculated an estimated date of confinement of 1 July 1979. He saw her on a regular basis throughout the antenatal period which was normal other than some bleeding which occurred in the thirteenth to fifteenth week. Dr Diamond had introduced in his practice the use of an ultrasound. In those days this was something of an innovation. There were three ultrasound examinations of Mrs Simpson. These were carried out by a technician stenographer who was employed by Dr Diamond. Details of these ultrasound readings appear in green ink on the Doctor's notes - Exhibit 128. 1095 The ultrasound dates were 3 January 1979, 17 January 1979 and 9 May 1979. In the course of his evidence, Dr Diamond discussed a possible discrepancy in relation to gestational age as between the dates of Mrs Simpson's last menstrual period and age by ultrasound. He said that he did not regard it as a discrepancy. He regarded the ultrasound as an aid but considered that the clinical findings and the last menstrual period dates as being the true gestational age. That is to say, the findings and dates were the more accurate guide to gestational age. 1096 He explained this in some more detail. He said that he had first seen Mrs Simpson on 31October 1978. His notes indicate that she was six weeks on date and size. These findings would have been reached by way of examination and in relation to the information given to him by Mrs Simpson in relation to the date of her last menstrual period. About a month later on 28 November 1978 he conducted a further examination and he records in his notes that the gestational age was ten weeks by dates and size. This fitted in exactly with Mrs Simpson's dates. For these reasons he considered that the estimated date of confinement as the 1 July 1979 was correct. He regarded the ultrasound as an aid rather than the best indicator of gestational age because it was at that stage still a new invention. 1097 The discrepancy to which Dr Diamond had referred may be best illustrated by reference the entry in the notes relating to the examination on 9 May 1979. There the Doctor had entered the following: - "33 weeks D & S and 30 weeks ultrasound". 1098 This entry indicated that on dates and size the gestational age was 33 weeks as at the 9 May 1979 although it was shown as 30 weeks on the ultrasound. Dr Diamond said he made the entry so that he could keep an eye on the baby's growth rate since there was a discrepancy arising out of the ultrasound which had been carried out on 9 May 1979. Dr Diamond said that, particularly in the third trimester of pregnancy, an ultrasound was a guide but it was not to be relied upon. He was satisfied that his examinations of Mrs Simpson, coupled with her history to him of the date of her last period, were sufficient for him to be correct in the estimate of the date when the baby would be born. He examined Mrs Simpson again on 27 June and was satisfied that the head was lying nicely in the brim of the pelvis and it appeared to be engaged in the pelvis. He said that it felt like it was pressing right down into the pelvis (T 1538). His entries for this day confirm his view. Gestational age, according to his professional judgment, was four days less term which was 1 July. 1099 Dr Diamond pointed to the note in his records ("for induction one week"). Although it was not written in his notes, he says that he remembers that the induction was Mrs Simpson's idea rather than his own. He said that in her first pregnancy she was a few days overdue and she did not want to go though that again. She had "had enough" (T 1539). 1100 He saw Mrs Simpson again on 4 July 1979 and examined her abdominally. He recorded that the head was down in the pelvis, the head was engaged, foetal hearts were present and she was now term plus three days. Following the consultation of 4 July 1979, arrangements were made for Mrs Simpson to be admitted to hospital. Dr Diamond said she would have been given a letter to take to the hospital and she would have gone to the hospital on the evening of 4 July with a view to the induction being performed early the next morning (T 1539). 1101 I should add at this point in the narrative that there is a lively dispute in the proceedings as to whether Dr Diamond was correct in his estimate of the date of confinement as 1 July 1979. Mr Clements, for example, maintained that Dr Diamond's assessment of gestation was persistently at variance with the ultrasound readings by at least two weeks in the early stage of the pregnancy and in the latter stage by about three weeks. Dr Hinde was even more critical. In Exhibit 15 at the foot of page 2 he said: - "It is my belief that a competent obstetrician in 1979 would have recognised that this pregnancy was not post term on 4 July 1979 and recommending induction on this basis can only be regarded as unsatisfactory and deficient practice. While I acknowledge that the 1970's were a decade of what is now regarded as excessive intervention, and an elective induction at or about term was widely practiced both for the convenience of the obstetrician and the patient, often at the request of the latter, nevertheless, it was upon the basis that the mother was to be accurately apprised of the true situation with respect to the stage of pregnancy at which induction was to occur. I can find only records which suggest that Dr Diamond indicated to Mrs Simpson that she was post term. Yet he had ample material available to him which showed this proposition to be untenable." 1102 On the other hand Dr Lyneham in his fourth report of 8 March 2001 (Exhibit 124) expressed serious reservations about the reliability of the ultrasound assessments which had been carried out in Dr Diamond's rooms. He noted in particular that where the ultrasound is performed by an obstetrician with little if any specific training in ultrasound medicine, in circumstances where the actual measurements are probably performed by a radiographer, the accuracy of such measurements would be in doubt. His conclusion was expressed at the end of page 3 of Exhibit 124 in the following terms: - "As Mrs Simpson attended for her first visit to Dr Diamond with her pregnancy confirmed and only being twelve days overdue, and with the uterine size being consistent with her dates at fifteen weeks, ten weeks, and presumably also at six weeks … I would believe it extremely unlikely that Mrs Simpson's pregnancy was two weeks less advanced than her dates would have suggested, which was the case if her two early ultrasound examinations had been accurate. Even today, an ultrasound at 30 weeks would not play any role in determining the estimated date of confinement." Dr Diamond's evidence - the Induction and Delivery 1103 Dr Diamond saw Mrs Simpson in the early morning of 5 July 1979 some time between 7 and 8 o'clock. She was then in the labour ward. He did an abdominal palpation, checked the foetal heart and carried out a vaginal examination. He then artificially ruptured Mrs Simpson's membranes. He did not have a recollection of any specific findings in relation to these examinations but he stated that if there had been anything abnormal, he would have written it down. 1104 Dr Diamond said he would have discussed with the nursing sister how Mrs Simpson was to be induced. He would have asked her to ring the anaesthetist to put up the drip and to put 10 units of Syntocinon into the litre of fluid. The anaesthetist was better than Dr Diamond in putting the drip up but additionally, this would enable Mrs Simpson to have contact with the anaesthetist who would be coming back to put in the epidural at a later time. He was unable to recall whether the nursing sister that day was Sister Ranclaud although he has seen a report from her since. He was also unable to recall the instructions he gave to the nursing staff regarding pain relief for Mrs Simpson but he said it would have been his instructions as he was very keen for people not to have pain. He had no other patient in the labour ward that day (T 1543). 1105 During the course of his evidence in chief, Dr Diamond said that he had never in his obstetrical career ordered 10 units of Syntocinon in 700mls of fluid. His standard or usual practice in respect of the use of Syntocinon was to order 10 units in a litre of fluid. So far as the rate of administration was concerned, his standard practice was to start at 20 drops a minute and increase by 10 drops every 15 minutes until a maximum of 60 drops (T 1540). It might be noted that this description by Diamond of his standard practice differed from the description of Dr Diamond's protocol given by both Dr Lyneham and Professor Fisk in their reports. The difference was between an increase every half hour (as they recorded) and every 15 minutes (as Dr Diamond described it). He said there was a book in the labour ward which listed "Doctor's Procedures" or "Doctor's Preferences". This book had recorded in it his practice or orders in respect of the dosage of Syntocinon. This was 10 units in a litre of four per cent dextrose and a fifth normal saline. There was also recorded in the Doctor's book in the labour ward his standard practice in relation to pain relief namely, a combination of Pethidine with Sparine and usually it was 100 milligrams of Pethidine and 50 milligrams of Sparine to be given together (T 1540-1541). 1106 Dr Diamond said that he was able to state with confidence that he had never ordered 10 units of Syntocinon in 700mls of fluid. He said: - "Because I never had. It would be a silly thing to do". 1107 He explained that it would be a "silly thing" to do because one would have to empty 300cc's out of the flask to do so. It would not be "rational". Syntocinon also comes in a small phial with 10 units so it was natural to mix the 10 units of Syntocinon with the litre of fluid (T 1541). 1108 So far as the events of 5 July 1979 were concerned, Dr Diamond said he had "a lot of recollection". This was because it was "such a traumatic experience". 1109 Dr Diamond was emphatic that it was not possible that it was he who had ordered the 10 units of Syntocinon in 700mls. He was asked by his counsel "Why not?" and he replied: - "I never have and I never did". (T 1544) 1110 He said that it had first come to his notice that Mrs Simpson apparently received 10 units of Syntocinon in 700mls about twelve months before the hearing of the proceedings. He was informed by his solicitor at that time of this apparent fact. Up until that time it had been his belief that Mrs Simpson had received 10 units in a litre of solution. He explained that the copy of the hospital notes which he had in his possession did not state that the Syntocinon was in 700cc's but he was shown another copy of the notes which had another page in it which did have the relevant entry (T 1543). 1111 I pause to note that there is a live issue on credibility as to whether Dr Diamond did or did not order the Syntocinon in the lower level of solution. He was cross-examined trenchantly as to the records in his possession and the knowledge he had of the administration of the dose, particularly in the light of answers given by him to interrogatories. These are matters to which I shall necessarily return when making the critical findings of fact. 1112 When Dr Diamond had completed the rupture of membranes and attended to the other matters to which I have referred, he left St Margaret's Private Hospital and went to another nearby private hospital where he had a surgical list for the morning. This was a hospital called Famenoth in Alison Road, just off Anzac Parade near Randwick Racecourse. This was only a short distance by car from St Margaret's Hospital, about seven minutes drive. The arrangement was that he would be notified of the progress of labour by telephone. Dr Diamond's partner, Dr Hakim was also involved in the surgical list at Famenoth Hospital. Dr Diamond thinks from recollection that he asked Dr Hakim to ring St Margaret's to see what was happening because he, Dr Diamond, was in the middle of an operation at Famenoth. There was a telephone in the operating theatre. It may have been that the sister from St Margaret's rang through to Famenoth but in either event, it appears Dr Hakim either made or took the call while Dr Diamond was in the course of an operation. The message he received from Dr Hakim was that Mrs Simpson was ready for delivery and that the epidural was in but it was not working well. The message indicated that, apart from the epidural not working, there was no serious problem with the labour. Nor was there any indication given that there was any particular urgency so far as delivery was concerned, apart from the presence of pain arising from the fact that the epidural was not working. The practice at St Margaret's at that time was that, if there were a problem noticed by the nurses in respect of foetal distress or otherwise, they were to ring immediately and if they were unable to contact the Doctor, they were to contact another obstetrician (T 1544-1545). 1113 Initially, Dr Diamond said that he received the message from Dr Hakim approximately half an hour before he arrived at St Margaret's Hospital, or "something like that". Later, it seemed to be common ground that the telephone call was made about 12.30pm. He said that he finished the operative procedures he was involved in at Famenoth and then went straight to St Margaret's Hospital arriving at the labour ward at approximately 1.30pm. 1114 Dr Diamond then described the sequence of events which followed. It is not entirely clear whether he spoke to Mrs Simpson first or whether he gloved and gowned first, although I assume that he would have prepared himself for the labour ward procedures before attending the patient. In any event, when he did see Mrs Simpson he said she was in pain. She told him she was in pain and she said "Bobby, do something". He says he did not look at the hospital notes or the partogram at that point because Mrs Simpson was in pain (T 1545). He said he did not have a recollection as to whether he had a conversation with any member of the nursing staff upon arrival but it was his practice to ask if everything was alright. He "prepped" the patient with a Savlon solution which was located next to the bed. He performed a "minimal" vaginal examination and found that the head was on view low down descending the perineum (T 1547). 1115 Dr Diamond says that he selected Wrigley's forceps as the forceps of choice because it was the easiest, quickest and the simplest way to deliver the baby. He explained that Wrigley's forceps are the forceps designed for delivering a baby when the head is right low down on the perineum (T 1553). At the time of the application of these forceps the bed was intact and Mrs Simpson was lying on the bed with her legs drawn up and her knees bent. Dr Diamond said he applied some traction "and nothing happened". He then took the forceps off. He said he would have done another vaginal examination, rechecking the baby's head position and then reapplied the forceps. He maintained that he was not using a lot of force in these two attempts. There was, he said, "very little force applied" (T 1555). He does not believe that he checked the foetal heart rate before applying the Wrigley's forceps but he assumes they were being listened to by the nursing staff when he took the forceps off and while he was reapplying them and checking. He was asked as to whether anything adverse concerning the foetal heart rate was reported to him at that time and he said that there was no change in the foetal heart rate (T 1555-1556). 1116 It was apparent after the second attempt at delivery with the Wrigley's that no descent had been achieved. Dr Diamond then took the Wrigley's forceps off. The end of the bed was removed. Stirrups were put into position and Mrs Simpson was pulled right down so that her bottom was over the edge of the bed about an inch or two overlapping the edge of the bed. He then rechecked the position of the foetal head and applied a second type of forceps known as Neville Barnes forceps (T 1556). (This type of forceps has long handles and it can have a traction handle put in place. It has the advantage of allowing greater traction and is generally used for delivery in circumstances where the baby is in the mid cavity or thereabouts). Dr Diamond had explained before applying the Neville Barnes forceps he attempted to perform a more detailed vaginal examination. This he did by pushing and inserting his fingers further into the vagina along side the baby's head. He was attempting to feel for any foetal small parts or the cord or "something that could be obstructing the head from coming down - from being delivered, I should say". He was not able to ascertain any reason why the head or the foetus would not deliver (T 1559). He said that he believed from this examination that the cervix was fully dilated (by way of contrast in relation to the brief vaginal examination before the first set of forceps were applied, Dr Diamond had said that, from the position of the head he had observed, he had "assumed" the cervix was fully dilated). 1117 During the course of this more detailed examination, Dr Diamond says he would have dislodged the head a little bit "upward" with his attempt. After the Neville Barnes forceps were in place, traction was applied but again nothing happened. There was no descent. Dr Diamond is not quite sure whether he took the forceps off and reapplied them a second time or whether he applied the traction handle to the Neville Barnes and then attempted by traction to achieve descent (T 1560). In any event, between the two attempts with the Neville Barnes forceps, Dr Diamond performed an episiotomy. Although he says he did not observe any fluid, he said there would be some bleeding from the cut. 1118 The second attempt with the Neville Barnes, however, achieved nothing. Again, there was no descent of the foetus. During the attempt with the Neville Barnes forceps, Dr Diamond said that he could hear the foetal heart rate being monitored. This was because, at his instructions, a Doppler had been applied which enabled those attending the patient to hear the heart beat. Prior to the application of the Doppler, the nursing sister had listened with the trumpet. Dr Diamond heard a deceleration after the Neville Barnes had been applied. That is, he heard the heart beat drop down. It dropped down to approximately a hundred beats a minute. However, it recovered immediately and went back up, presumably to normal. At T 1561 lines 13-25 the following is recorded: - "Q. What impact did that have on your thinking at the time? A. I still couldn't understand why the baby would not be delivered, and I was very concerned. Q. So far as the foetal hearts were concerned, what, if any significance, did you attribute to the deceleration in the foetal hearts which you have just described following the Neville Barnes? A. It is not that uncommon for the foetal hearts to decelerate when the forceps are applied and with them going back to normal I was reassured that there was nothing drastically wrong." 1119 Dr Diamond then decided to use a third type of forceps. These were Kiellands forceps. The Kiellands forceps are straight, having no pelvic curve. They are designed to be applied to the foetal head in any malrotated position. The forceps are then used to correct that malrotation and subsequently by traction to deliver the baby. They are appropriate only to be applied to a malrotated head, and would not normally be used for delivery in the occipito anterior position. 1120 Dr Diamond described his reasons for deciding to use a third set of forceps at 1561 lines 28-45: - "The baby's head was still low down in the pelvis. I still could not understand why it wasn't being delivered, why it couldn't deliver. I did another more detailed, again, vaginal examination looking for something that was preventing it from coming down. I couldn't find anything. I believe my diagnosis of the position of the baby's head was correct. I thought there must be, you know, it just didn't make sense that it wouldn't come out. The only thing I could think of was that for some reason sometimes the suture lines do become more difficult to examine than at other times and I felt maybe I had made an error even though I thought it unlikely and I asked for the Kiellands forceps in an attempt to rotate from, I thought, an occipito-posterior position, where you can sometimes confuse anterior and the posterior fontanelles, and I thought this is what I must have done, and therefore I applied the Kiellands forceps and attempted to rotate from what could have been an occipito posterior position." 1121 He applied the Kiellands forceps along the baby's head and attempted to rotate the head. He said that the foetal heart rate dropped down to approximately 60 to 80 beats a minute. He says that he stopped immediately. Mrs Simpson's legs were put down and the decision was made to go to caesarean section. Dr Diamond said that it had not occurred to him to conduct a trial of forceps in the operating theatre rather than to carry out the attempts at instrumental delivery in the labour ward. This was because the head was so low down that it wasn't necessary. Had he thought that there was a possibility of needing to go to a caesarean section, he would have carried out a caesarean section rather than a trial of forceps in the operating theatre. He said that the various attempts at instrumental delivery took between ten to fifteen minutes maximum. Issues arising from Dr Diamond's narrative of the delivery 1122 It is necessary to pause at this stage of the narrative to indicate that there are some aspects of the evidence given by Dr Diamond to this point which are very much in issue in the proceedings. It is also necessary to note that there was extensive cross-examination in relation to some aspects of the matters already described. As to the first, some of the matters in issue have been mentioned already. It may however, be convenient to summarise these issues. The first, obviously, is the question as to how it came about that the Syntocinon dosage was administered in 700 millilitres of solution. The second matter is whether Dr Diamond made use of the Wrigleys forceps at all. As will be seen, the contemporary hospital records suggest that he used only the Neville Barnes and the Kiellands forceps. The third matter is whether the baby's head was in the position described by Dr Diamond. A number of the experts, including Mr Clements, were of the clear view that the baby's head could not have been in the position he described and that Dr Diamond had made a serious misdiagnosis. There was also an issue about the degree of force used in the various attempts at instrumental delivery. Dr Diamond himself had said at T 1561 line 45, that the reason he had decided to use the Neville Barnes forceps was that he thought maybe he was not pulling "hard enough". At T 1562 he was reminded of Mrs Simpson's evidence that she felt she was being practically pulled off the end of the bed. He said that would be a very "normal feeling" when traction was being applied even though the forceps were applied "without using undue force". At T 1817, Dr Diamond said that the traction he required, once the forceps were in position, was not over a long period of time and even though three sets of forceps were used "they were used sparingly and gently and there was no undue force … the amount of pulling was not very much" (T 1817). The fifth matter was whether the maternal cervix was in fact fully dilated. 1123 There were extensive areas of cross-examination in relation to each of the above topics. For present purposes it is necessary to note especially the following: - 1124 First, it was put to Dr Diamond at T 1876 that his reference at T 1561 to his certainty as to the position of the head and the allowance he made that there may have been an error in his assessment of the position of the head, had not arisen from the presence of "caput and moulding". (These are two conditions that may effect the baby's head during descent into the pelvis. "Caput" occurs where there is a collection of fluid over the leading part of the baby's head, usually due to pressure on the cervix or to pressure coming through the pelvis. "Moulding" is where the bones of the baby's skull are squeezed together over the suture lines, so that the suture lines of the baby's skull are close together and approximated). Dr Diamond said categorically there was "no caput and no moulding, no excess moulding" (T 1816). He had, in fact, said this in his answers to interrogatories namely, that there was no caput and no moulding. He agreed that in those circumstances there was "nothing then to obscure his determination of where the suture lines were" so that he could determine the position of the foetal head (T 1876 line 15). Dr Diamond maintained (T 1876) that obstetricians can make mistakes in the diagnosis of an occipito posterior and confuse it with a occipito anterior and vice versa. He agreed however with Mr Hall QC (at T 1877) that there were no circumstances to which he could point relating to caput, moulding or anything else obscuring the suture lines which prevented him from determining "with certitude" the position of the head. It was also put to him, and he agreed, that he had in fact rotated the head of the foetus (rather than simply attempting to do so) (T 1877 line 30). Dr Diamond also agreed with the proposition put to him at T 1878 that, as it turned out, according to his own evidence, he was not wrong in that the head was not in the occipito posterior position. It was, according to his evidence, always in the position that he had imagined. In retrospect, he agreed that the use of the Kiellands was "totally useless as it turned out". He was satisfied, in a temporal sense, that the bradycardia was triggered by the use of the Kiellands subsequent to the application of the other types of forceps he says he used. He also accepted that it was not "an ideal situation" to subject a foetus to multiple attempts with different types of forceps but says he was not faced with an ideal situation and "that it why this chapter of events happened" (T 1879 line 15). 1125 Mr Hall QC asked some further questions at the end of his cross-examination (T 1890-1892), which clarified the action taken by Dr Diamond during the use of the Kiellands forceps. Ultimately, Dr Diamond agreed that had given an answer in response to interrogatories which made it clear that he had rotated the baby's head, endeavoured to effect delivery by applying traction and when the baby did not deliver, he rotated the head back again. By that time "and certainly, I think before that time", foetal distress was being monitored (T 1893 line 5). 1126 The second matter which should be mentioned relates to the reasons why the baby did not deliver naturally or instrumentally. Dr Diamond agreed, for example, that it would be a serious error on the part of an obstetrician if there had been a misdiagnosis in relation to the question as to whether the maternal cervix was fully dilated (T 1640). He did not believe that he had made that mistake. He was aware of the opinions expressed by Mr Clements, Dr Hinde and Professor Fisk which allowed for the possibility that he had been wrong in this regard. He said that he himself would have come to same conclusion had he simply had regard to "the records" in this case. At T 1843 he was asked about a proposition that he himself had advanced that a likely or possible explanation for the failure to deliver may have related to the fact that the cord was tangled around the baby and so prevented it from descending. He was referred to the expert evidence in the case which suggested that from a physiological point of view an entangled cord will not stop a baby from descending. He was asked whether he knew anything to suggest to the contrary of the opinion of Professor Fisk and other experts which suggested this to be the case. He said that had read one article which said that a short cord could prevent descent (T 1844 line 20). Apart from this suggestion, Dr Diamond was not able to explain why the baby did not deliver. 1127 Thirdly, Mr Hall QC vigorously cross-examined Dr Diamond in relation to his state of mind and actions during the application of the Neville Barnes and Kiellands forceps. Dr Diamond said that he did not consider caesarean as an option after the first failure of the Neville Barnes forceps. He persisted with his belief that the head was low down and said "It just seemed uncanny that it wouldn't deliver" (T 1668 line 40). He knew there was a problem that was preventing the forceps from working but he did not know what the problem was. He knew however, it was a "real problem" (T 1668 line 50; T 1669 line 15). It was put to Dr Diamond at T 1805-1807 that his decision to use the Kiellands forceps in circumstances where he was making an assumption about the position of the baby's head without knowing precisely its position was "flying blind". He would not accept this description and maintained that he was using "obstetric judgment". It is convenient to set out these passages in detail: - "Q. But to use Kielland's in the circumstances where you couldn't be sure of the position of the head by physical examination on the one hand and on the other hand not knowing what the problem was or what was causing the problem but to go ahead and use Kielland's that situation is, to use the expression "flying blind", isn't it? A. No, I don't accept that. Q. Well, we have earlier agreed, I think, that these various examinations are carried out so the position, station, presentation of the foetus and the position, in particular, of the foetal head can be ascertained with certainty so there is no unnecessary risk associated with using forceps, correct? A. Correct. Q. But by the time you got to the Kielland's you were not certain of the position of the foetal head or the position of the foetus, were you? A. I was. Q. But you just said a moment ago that you thought you might have made a mistake and it might have been in a different position to that which you had been assuming, isn't that right? A. Correct. Q. You had used the Kielland's without knowing quite what the position was, firstly? A. Because it was such an unusual circumstance which I had never encountered before I assumed I must have made a mistake. Q. Doctor, if in all your years of clinical practice it was so unusual at that point that you had never ever encountered it in any other case before, surely that of itself must have provided the most eloquent warning to you not to keep going, would you not agree? A. At this stage the baby was in excellent condition and there was no indication not to proceed, again because the baby's head was literally low down and still looked like it would come very easily but I couldn't understand why it didn't. In retrospect we can easily go over these facts again and again as you are doing sir, the answers are the same, I did what I thought was best; I rotated it when I thought I may have made a mistake, it turned out I hadn't, at that stage we developed some foetal distress, I stopped immediately, the baby was delivered as rapidly as possible with the short period of time with foetal distress and yet we had a baby very badly damaged without any trauma to the actual baby, which is still very difficult to understand. Q. If this was, in your clinical experience, an unprecedented case of difficulty why did you not stop your use of forceps so that the problem could be identified and in the light of accurate data then chart the appropriate course and follow it? A. Because I thought I had identified the problem which is that I had made a mistake. But when I attempted to correct, attempted to ascertain whether my calculation on having made a mistake was correct was when we first got the indication of true foetal distress and then I ceased immediately. Q. That which you thought was the problem was not the problem? A. Correct. Q. You remained from first to last, before the caesarean section, completely ignorant of what was causing this unprecedented difficulty, correct? A. Correct. Q. And yet in that situation you persisted with the Neville Barnes notwithstanding the sudden down turn of the foetal heart rate before it returned to normal? A. We have already accepted the fact that deceleration does occur with an application of forceps and not necessarily an indication of foetal distress when it returns back to normal. Q. Still not knowing what the cause of this unprecedented problem was you then turned and reached for Kielland's and employed that on the baby? A. Yes. Q. That's flying blind, isn't it? A. No, it's using obstetric judgment. Q. Using obstetric judgment with a deficiency in relevant facts to base a judgment upon? A. That may be your interpretation, it was not mine at the time. Q. The facts omitting on which you could make a proper clinical judgment I suggest to you were the nature and cause of this unprecedented difficulty, correct, that's the nature of the deficiency of material? A. I'm not sure what I am answering the question to. Q. I am putting to you that the fact that you had struck an unprecedented problem before you got to the Kielland's and you did not know what was causing that problem meant that you lacked necessary data to be able to base a sound clinical judgment upon before deciding to use the Kielland's, correct? A. I did not believe so at the time. Q. In retrospect it's plain, isn't it? A. It seems that way now." Delivery by Caesarean Section - Dr Diamond's evidence 1128 I return to a continuation of the narrative. It appears that the attempts at instrumental delivery ceased at around about 1.50pm on 5 July 1979. Dr Diamond said that the end of the bed was put back into position and the stirrups were removed from Mrs Simpson. She was placed on a trolley and wheeled along the passage way to the lift and then taken up to the next floor where the operating theatre was. Dr Diamond rang his partner, Dr Hakim who was still at the Famenoth Hospital to come and assist. He said to Dr Hakim "Come quickly. We are doing an emergency caesarean section. I have a problem with Mrs Simpson". He told Dr Hakim that the forceps had failed and that the foetal heart had "gone off". Dr Diamond also rang the switchboard to organise the paediatrician Dr Van Vliet to attend. The nursing sister made the other phone calls to arrange the other nursing staff in the theatre and prepared Mrs Simpson for the operation. The switchboard was also asked to get an anaesthetist and it was all done "as quickly as possible". 1129 Dr Hakim arrived and acted as the assistant surgeon at the caesarean section. The emergency call had resulted in Dr Tony Williams arriving to act as the anaesthetist at the caesarean. At T 1567-1568 Dr Diamond described the operation in the following terms: - "On this occasion, we were both scrubbed up, waiting to perform the caesarean section as soon as the anaesthetic was working, in other words Mrs Simpson had already been prepped and draped, and we were standing there with knife poised, waiting to be okayed by the anaesthetist to continue, to start …. The operation was very quick. As soon as the incision was made inside the uterus, in the uterus, I inserted my hand immediately into the incision and gripped (sic) the baby's head very quickly. Dr Hakim's role was helping me to do that. I then unwrapped the cord from around the baby and I left the rest of the operation just straight after that, after we clamped the cord and handed it to the paediatrician, I left the rest of the operation to Dr Hakim so that was his duty at that stage, and I, as I said, left with the baby." 1130 Dr Diamond unscrubbed immediately and went with the paediatrician to the neonatal intensive care unit. Dr Diamond said his findings at caesarean section were that the cord was very long and was wrapped two or three times around the baby's body. Dr Diamond described Dr Hakim's role during the operation. Dr Hakim closed and sutured the wound. He had been involved in mopping the wound and helping to retract the wound and endeavouring to stop it bleeding. Dr Hakim, during the operation, had been standing on the patient's left hand side. After the operation, Dr Hakim completed the operation note which forms part of the hospital records. In that note, Dr Hakim recorded the indication for the operation in the following manner: - "Foetal distress, Deep Transverse Arrest and Failed Forceps Delivery." 1131 At T 1568 Mr Brereton SC referred Dr Diamond to the finding in the operation report. He asked Dr Diamond whether he made a finding of deep transverse arrest. Dr Diamond replied "No, there wasn't one". He also said that he had no conversation with Dr Hakim about the finding at operation "at that time". 1132 Dr Diamond explained that he made no entries in the hospital notes because at the time he was too busy trying to do his best to help Mrs Simpson and the baby. He was asked why following the caesarean section he did not make any entry in the hospital notes. He said that he did not think of writing it up, he didn't worry about what would be written up "That was not my concern" (T 1569). 1133 He said he made a very brief entry in his own notes either that afternoon or the next morning when he went to his rooms in Macquarie Street. These were notes in his pocket. He said "I just mentioned that the cord was around the neck a few times". The notes are in Exhibit 128. They are in handwriting as follows: - "5.7.79. Arm Failed Forceps Cord around neck + + + L.S.C.S Apgar, Dr. D/Dr. H Girl 6.10" 1134 Dr Diamond said that he had first discovered that the finding of deep transverse arrest had been recorded in the operation report about six or twelve months later. (Later in his evidence he amended this aspect of his recollection to maintain it would have been within eighteen months to five years after the birth (T 1574)). At (T 1612) he said the more he thought about it, it was closer to five years than eighteen months). At (T 1570) he was asked in chief whether he took any steps "at that time" to have any change or alteration made so far as the entry was concerned. He said he had not taken any steps and explained why in the following passage T 1570 line 10: - "Any change would have been construed as trying to doctor the evidence, as such it was. I knew what had happened, I knew it was incorrect and I knew the day would come when we would - I would be stating this in the evidence box." 1135 In his re-examination at page 1988, Dr Diamond, at line 20, explained that he thought it was closer to five years than eighteen months when he attended the hospital and examined the medical file because at that time he had heard rumours in the community that the Simpsons were thinking of taking legal advice or had taken legal advice. 1136 Later in his cross-examination, Dr Diamond said that the reason he did not record any clinical observations of the events from 1.30pm on 5 July 1979 was that he was too distressed. He said that he did not feel like writing anything about it. He was very upset, very distraught. "I knew what had happened. I had no intention of putting it down on paper, I just couldn't. I couldn't come to do it". He agreed that he made no reference in his notes as to whether Mrs Simpson was distressed but said that he did not believe that was at all relevant and he did not want to make any notes. He was asked why he had not recorded in his notes or somewhere else all of the observations which he now places importance upon. He answered at T 1577: - "Because nobody would believe me. I could easily have written up my notes a week later, two weeks later, a few years later, but the answer would be the same, and I also, if I was called in as a medical expert witness, would give the same ideas as other experts called in." 1137 Dr Diamond agreed that he was nonetheless able, within a few very short time, to pick himself up and carry on a busy practice as an obstetrician not only at this hospital but at others as well. At T 1578 the following is recorded: - "Q. So then why, I am asking you, did you not, when you managed to recollect yourself and as it were carry on, faithfully record in your notes all relevant observations, so that if, as you anticipated, this matter would come to court, you would have a contemporaneous record of all that had happened? A. I don't know." The Post-Natal Period 1138 Dr Diamond records in his notes (Exhibit 128) that he saw Mrs Simpson in his rooms on two occasions after the birth. These post natal visits occurred on the 17 August and 20 September 1979. On the first occasion he carried out a Pap smear examination and inserted an interuterine device. On the second he did a pregnancy test and also carried out a vaginal examination to check on the IUD. He agreed that he had read the evidence of Mrs Simpson as far as the second post natal visit was concerned but denied that she became upset at the time. At (T 1821-1822) he said that, during this visit, Mrs Simpson was naturally distressed about the baby's condition but she was not "uptight and aggressive" about it. Dr Diamond agreed with Mr Hall QC that on this occasion he had indicated to Mrs Simpson that he did not know what had gone wrong with the delivery. Dr Diamond agreed with the cross-examiner that it was accepted practice that if anything goes wrong in delivering a baby that the obstetrician is encouraged to sit down with the patient and give "a full and adequate explanation". He agreed "the patient is entitled to nothing less". He said, however, that he thought he had given "an explanation". 1139 Dr Diamond was also asked about the correspondence he had with Dr Fisher. It will be recalled that Dr Fisher had been consulted by Mrs Simpson in late 1979 and he had apparently ascertained from his examination that the anterior lip of Mrs Simpson's cervix was missing. In November 1979, correspondence passed between Dr Fisher and Dr Diamond which has been set out in these reasons at page 407. 1140 At T 1823 Dr Diamond agreed that Dr Fisher had wanted him to provide information about Mrs Simpson's recent labour and confinement and his reply was "brief in the extreme". He also agreed that his response did not "assist" Dr Fisher at all in relation to the specific matter he had identified namely, the absence of the anterior lip of the cervix. He explained that he viewed the letter from Dr Fisher as "an aggressive missile" but insisted that he had written back "candidly" and given Dr Fisher "chapter and verse" as to what he said had happened at delivery. Dr Diamond, however, agreed he had been "very guarded" in his reply. 1141 It was also suggested to Dr Diamond that he had never, in the course of the two post natal visits, explained to Mrs Simpson that the baby had been in a position where the head was right down on the perineum and that he had anticipated the delivery would be very simple and straight forward. Dr Diamond stated that he believed that he had told this to Mrs Simpson in the hospital but agreed that he had no definite recollection of this event. He said at T 1828 that he did not recall specific visits with her in hospital but he assumes he would have seen her in hospital. He also assumed he would have had "this conversation" with her. He assumes he would have discussed the problems with her regarding the baby. He agreed however he had no recollection now of this conversation. (Such a conversation was never put to Mrs Simpson as having occurred). He maintained however that he did explain to her the circumstances of the delivery although his recollection was equivocal. At T 1829 the following is recorded: - "Q. You don't recall what you said to her? A. I recall what I am sure I would have said to her. Sir, if I wanted to doctor my own notes I could have done that, I could have written that up later, I could have done that over a period of years." Dr Diamond's observations of the foetal heart rates and Mrs Simpson's contractions 1142 Dr Diamond said he did not believe that he performed any examination of the foetal heart rate prior to attempting the forceps lift out with the Wrigleys forceps. He based this belief on the fact that, had the foetal heart rate been abnormal, there would have been a monitor in place by the time he arrived. In his evidence in chief, he said that he had assumed the nurses were listening to the foetal heart rates when he took the forceps off and checked the baby's position. There was no change in the foetal heart rate reported to him at that time. As I have already indicated, he recalls that the Doppler was put on during the application of the Neville Barnes forceps. After this, he could hear the baby's heart being monitored during the second attempt with the Neville Barnes forceps. He heard the deceleration of the heart rate to approximately 100 bpm and then its recovery back to normal. During his cross-examination he was reminded of the answer he had given to Q. 22 in the interrogatories administered by the plaintiff. He had, in reference to the Doppler, been asked "Why was this monitoring undertaken?". His response was "in order to hear the foetal heart beat and to determine if the foetus could be in distress". He said that he was "happy with that answer" (T 1840 line 15). He agreed that he was in charge of Mrs Simpson's case at the hospital from the time he arrived at 1.30pm on 5 July 1979. He maintained, however, that he does not think the Doppler machine was attached on immediate arrival but at some point later. It was his "judgment call" that it was desirable to have the Doppler as well as having the manual auscultation (T 1840 line 50). He agreed he could see the nurses using the "trumpet" and listening manually during the period he was there after 1.30pm and also he listened to the Doppler after it was put in place. He agreed that it was "his responsibility" to put in place whatever form of continuous monitoring that was available and which he thought necessary at the point in time when he made the decision to deliver by instrumentation (T 1842 line 30). He didn't require the placement of the Doppler before he started the Wrigleys attempt because he said it was "not necessary". There was no record of any foetal distress, he was not informed of any problems, the head was on view, the midwife was happy with the baby's condition; the only problem was that Mrs Simpson was in pain (T 1842 line 45). He agreed that the Sister would have spoken to him and that she had indicated that "they had been checking the heart beat" and so far as they were concerned "it was normal". He saw them checking the foetal heart rate. 1143 Dr Diamond was unable to recall when he arrived at the hospital whether the Syntocinon drip was still running or not. Nor was he able to recall whether during the attempts at forceps Syntocinon was maintained or discontinued. Similarly, after the decision was made to proceed to caesarean section, he was unable to recall whether Syntocinon was maintained or discontinued. At T 1598 he agreed that he would have discussed with the staff whether Mrs Simpson had been "going alright" from the time he had left that morning. He agreed that he would have been in a position to be able to see whether the Syntocinon drip was still running but he did not notice it. He agreed that from the time an obstetrician orders induction it is his responsibility to ensure that his instructions have been carried out. 1144 A number of matters were put to Dr Diamond in cross-examination in relation to the examinations which it was suggested he carried out when he first arrived at the hospital at about 1.30pm on 5 July 1979. Firstly, he insisted that he did not himself examine the foetal heart rate immediately on arrival but relied upon the information given to him by the nursing sister. Dr Diamond said, had Mrs Simpson not been "distressed", he would have had more time to do such things as listening to the foetal heart rate but it was unnecessary in the circumstances. This was because he was told by the Sister who had been monitoring "for the last few hours" that the foetal heart rate was normal (T 1604-1605). He said that he had worked with the midwifery nursing staff at St Margaret's many times and he trusted them - "very much so". Importantly, Dr Diamond said that, prior to the first application of forceps, there was "no evidence of foetal distress in this case" (T 1607). He was reminded of a number of the answers he had given to interrogatories administered to him and these answers accorded with this statement. Following the abandonment of the Wrigleys forceps, he agreed that the foetal heart rate was still "in the normal range" and there was no evidence at that point of time of "any foetal distress". The Doppler, Dr Diamond maintained, I have said, was put in place apparently during the application and use of the Neville Barnes forceps and remained in place until he made the decision to go to caesarean section. 1145 At first, Dr Diamond claimed that he had not conducted an abdominal palpation at the time when he first saw Mrs Simpson at about 1.30pm. At T 1616 he resiled from this and said that he had carried out a "modified" palpation, "a very brief examination, but not a thorough abdominal palpation". He did this palpation because it was "necessary to do so" (T 1619 lines 30-40). Dr Diamond agreed that before embarking on a forceps delivery an abdominal palpation is part of the checking and assessment process. At T 1622 Dr Diamond was asked whether, having carried out the various examinations he did, and utilising all the available information which bore upon both maternal and foetal condition, he considered it was "safe and appropriate" to proceed with the forceps delivery. He agreed with this proposition and also with the proposition that if there had been any signs such as abnormality of foetal heart rate, he would have immediately paused and considered the matter and asked what could be giving rise to such an abnormality. He was quite satisfied that there were no signs of anything indicating that foetal welfare might in any way be "compromised" before embarking on the forceps delivery in this case. There were no "abnormalities". Dr Diamond insisted that there was no real need for him to examine the foetal heart rate himself when he arrived because he said that the staff at St Margaret's were "excellent" and that he had "complete and utter faith and trust in them" (T 1625 line 35). He addressed this reliance fully at T 1625 lines 50-55. He said: - "As I have said, we trust the nursing staff, we rely on them, they monitor the patients day and night and if they tell us something is happening, they tell us the patient is fully dilated, contractions have gone off, they tell us they need an epidural, they tell us they need help, we rely on their knowledge and experience, and on this occasion this nursing sister had been with the patient all day, we rely on her information of what was happening and if I had arrived and Mrs Simpson was not in distress and in an ideal situation it's quite likely that I may have listened to the foetal heart sounds, but not necessarily obligatory that I would have." 1146 The information that he had received, he said, indicated that there was "nothing adverse" in the foetus' welfare. There was nothing suggesting that there was anything at all wrong with the foetus so as to require an indication for forceps delivery when he arrived. The mother, however, was "in pain" and this changed the position. 1147 Dr Diamond indicated that when the Doppler was used during the application of the Neville Barnes forceps it too "reflected complete normality" in the foetal heart rate and "validated all findings" that had been made and relied upon by him in terms of normality of foetal heart rate up to that point (T 1628). In re-examination he indicated that the reference to "normality" in these passages was a reference to there being "no sign of foetal distress". 1148 Dr Diamond also agreed that in attempting the forceps delivery it was important to check not just the foetal heart rate but as well the mother's condition and the manner in which that reflected upon the foetus. He agreed that this included watching the abdominal pattern of contractions (T 1628 line 55). This topic was taken up in the transcript later between (T 1808 and 1815). As was stated, he had initially said that he had carried out a brief abdominal palpation when he arrived and that he had relied at that time on the nursing staff to give him information regarding the earlier pattern of Mrs Simpson's contractions. He agreed, however, at T 1812, that especially in a mid cavity delivery, it is important for the obstetrician, to carry out an instrumental delivery, to "get the timing right". That is to say, it is important to apply traction to the forceps when the contractions "come on". The obstetrician normally pulls when he sees the contraction coming on because the combined force of the uterine pressure and the traction applied are more likely to bring the baby to delivery. In this situation, Dr Diamond agreed that the obstetrician "can't but help see for himself through his eyes and his hands" the nature of the contraction pattern. Dr Diamond said that an experienced obstetrician, observing contractions during the forceps application, would be able to determine whether the contractions were "extreme or continuous". In the present case, he said that the obstetrician would not necessarily have to time the contractions when using the Wrigleys forceps "in circumstances where the baby's head was on view low down extending the perineum". Where however, descent was not possible, as occurred in this case and there was a need to use different types of forceps, he agreed that it was necessary to time the application of the forceps to the uterine contractions. 1149 Dr Diamond said he believed that he would have focused upon "the pattern of Mrs Simpson's contractions" so that he could time his use of the Neville Barnes forceps. He agreed that he had an obligation, at various points in time and prior to applying the Kiellands forceps to carefully observe the contraction pattern. At T 1815 line 10-20 the following is recorded: - "Q. And at no stage at all did you observe any abnormality or difficulty so far as uterine contraction in this lady? A. No. Q. Not only on what you were told but observed so far as the contraction frequency, pattern and rate? A. Yes. Q. Completely normal? A. Yes." 1150 At T 1816, Dr Diamond agreed that "it could be right" that, in this case, he applied traction not only associated with the duration of the contraction but in between the contractions as well. Dr Diamond accepted that it would be contrary to all accepted obstetric principles to apply traction between contractions if the baby's head were not low down but in fact higher up, for example, in the mid cavity (T 1818). A Commentary on Dr Diamond's evidence 1151 This lengthy summary of Dr Diamond's evidence is by no means exhaustive of all the matters dealt with in his evidence especially matters arising in cross-examination and re-examination. It is intended to raise, however, in a general way many of the matters which underscore the resolution of the factual issues involved in understanding the probable events of 5 July 1979. For present purposes, the summary of Dr Diamond's evidence fulfils a secondary and additional function. It highlights, as did Mrs Simpson's evidence, some serious problems encountered by the original formulation of the Syntocinon argument. It does not, of course, entirely undermine the argument but it led, not unexpectedly, to a situation where both Dr Lyneham and Professor Fisk were required to re-evaluate the approach taken in their written reports, to emphasise matters not emphasised in those reports and to refer to material arguably not contained within those reports. 1152 Dr Diamond had made it clear that during the time he was in attendance from 1.30pm to the moment when he decided to abandon the attempts at forceps delivery, Mrs Simpson's contractions in terms of frequency, pattern and rate were "completely normal". The fact that the nursing staff were monitoring the foetal heart rate between contractions and that Dr Diamond was able to tell when the contraction was on and when it was off each time conclusively established that, during this period, there were no continuous contractions nor was there any tonic contraction. These matters were not conclusive of the situation which existed prior to Dr Diamond's arrival at the hospital but his insistence that the nursing staff had been monitoring the patient and had reported to him that there were no abnormalities was a powerful indicator that Mrs Simpson's evidence as to the duration of her contractions, at an earlier point of time, was likely to be correct. Certainly, there was no indication from the nursing staff that at any period of time during the morning, or after midday, there had been any series of continuous contractions or contractions of abnormal length. 1153 Moreover, the information conveyed to Dr Diamond when he arrived at 1.30pm was sufficient to satisfy him that the nursing staff had been monitoring the foetal heart rate for some hours and that the information he received indicated that the heart rate was normal and that nothing adverse had been detected so far as foetal welfare was concerned. Manual auscultation continued during the application of the Wrigleys forceps and the heart rate was reported to him as normal during this period. He, himself, had the opportunity of listening to the Doppler at the time of the Neville Barnes attempts or, at least, one of them. He heard the deceleration at the time of the second Neville Barnes attempt and noted the recovery of the foetal heart rate to normal immediately after the contraction had finished. This assured him that the foetal heart rate did not indicate foetal distress at that stage. Dr Diamond was quite clear that, prior to the application of Kiellands forceps, there was no foetal distress in this case (T1631 lines 40-45). The first indication of "true foetal distress", he said, occurred during the Kiellands rotation (T 1806). 1154 In short, the evidence of normalcy of foetal heart rate and normality of maternal contractions during the time Dr Diamond was there from 1.30pm onwards made it highly unlikely, if not impossible, that there was any validity in the suggestion that a greatly increased dose of Syntocinon solution was infused into Mrs Simpson between midday and 2.15pm on that day. Secondly, the normalcy of the contraction pattern really put paid to the suggestion of a possible tonic contraction and cast considerable doubt over the possibility that there had been continuous contractions at an earlier point of time. This was particularly so in the light of the information which Dr Diamond accepted as reliable from the nursing staff that the contraction pattern had been, prior to his arrival, normal. 1155 Before turning to the statement made by Dr Diamond in 1988 and the oral evidence of the experts in these proceedings, I should briefly mention the evidence of two further witnesses who were present, at different times, during the events of 5 July 1979. Dr Hakim's Evidence 1156 Dr Hakim, who has been in partnership with Dr Diamond since 1979, gave his recollection of his participation as assistant surgeon in the emergency operation at St. Margaret's Private Hospital when Calandre was delivered. In fact, he said, that he had very little, if any, recollection at all. He was likely to have been an important witness because it was he, who as assistant surgeon, had written in the operating record the findings or reasons for the operation. He was asked in chief what he saw when the uterus was opened. He said "Not very much. I can't remember, to be quite honest" (T 2130). He was asked about the note he had written in the operating record after Dr Diamond had left with the baby. He said that he knew that Dr Diamond had used Kiellands forceps and he "assumed" there had been a deep transverse arrest. It was the "most likely possibility". He maintained in cross-examination that he had no recollection whatsoever of any observations he made during the caesarean section even though he was standing right next to the patient (he said on the right hand side) and he was pressing down with his hand on the maternal abdomen at the moment of delivery. He agreed that he knew there was foetal distress and he knew there was failed forceps. It was for these reasons he entered those details in the written record. He insisted, however, he had made an assumption regarding the transverse position. Later he maintained it was a "mistake" based on this assumption. Dr Hakim denied he had fabricated the evidence and was attempting to distance himself from the entry in the records. He admitted having discussed the entry on a number of occasions with Dr Diamond and admitted that he knew the position of the foetus was an issue. 1157 For reasons which I will detail later, I have come to the conclusion that I am unable to accept Dr Hakim as a witness of truth in relation to the evidence he gave regarding his observations at the operation and his recording of the reasons for the operation. For the moment, however, I do no more than record the brief summary of his evidence appearing in this paragraph. Dr McGuinness' Evidence 1158 Dr John McGuinness was in 1979 a visiting Anaesthetist at St Margaret's Private Hospital. He spent about two and a half days a week at the hospital and was on call one weekend in four, often in the labour ward. His involvement on the day in question was that it was he who put in the intravenous line for Mrs Simpson early in the morning and returned later to establish the epidural. Unfortunately, he had no recollection of the case whatever and no recollection as to what he did (T 2086-2087). He had read the hospital notes however, and gave some evidence based on those notes and his general practice. He said that he would have put in the intravenous line and connected it to a giving set connected to a bag of fluid. He would have turned it on to make sure it was working and let the fluid run for a brief period of time, say ten to fifteen seconds (T 2088). He envisaged that perhaps 20 to 40mls of fluid would run out of the bag into the patient during this brief test (T 2090). 1159 It was not his practice to attach or start the Syntocinon for an induction. He simply set the drip up and left it to either the obstetrician or the nursing sister to attend to the establishment of the infusion. 1160 He had "no idea" looking at the notes, whether the Syntocinon was running or not when he put in the epidural (T 2093). He said it could take between five to twenty minutes, or perhaps as long as half an hour for an epidural to be established. He contemplated that Syntocinon may have been turned off while the epidural was being put in place. It was turned off on occasions, depending on the contractions and the condition of the patient. After the epidural had been established, Syntocinon might then be turned on again afterwards at the same rate, but this was up to the nursing staff. 1161 He was asked also about the fact that the records showed the Syntocinon solution being 10 units in 700mls. He said his assumption was that perhaps another 250mls had been run into the patient before the Syntocinon was added. In making this assumption, Dr McGuinness made an allowance for the small volume of fluid which may have run into the patient while he was putting in the intravenous line and testing the flow. 1162 Dr McGuinness gave some further evidence as to the events of the day. He examined the dose of Pethidine which was given at 11.15am and said "15mls was a fairly small dose of Pethidine" (T 2115 line 30). He looked at the dosages involved in the epidural, both at midday and the top-up at 12.55pm. He said these constituted a total dose of 15mls of Marcaine. He said this was "a pretty small dose spread over an hour or more". It was "quite normal - less than a lot of patients would have had" (T 2116 lines 50-55). 1163 As a rule he thought that there was no point in having the Syntocinon continue (T 2117) while forceps were being used. He thought that this would only contribute to the discomfort of the patient. He thinks it would have been turned off at that time. He also thought it may have been turned off "after midday". It must be said that these were assumptions on his part and not based on any recollection or specific knowledge of what happened on the day. 1164 Finally, Dr McGuinness spoke well, according to his experience in 1979 of the professional diligence of this hospital's nursing staff. His experience, based on the considerable time he spent in the labour ward, was that "the standard was very, very high". Dr Diamond's statement dated December 1988 1165 There was in evidence (Exhibit 137) a statement which had been prepared and signed by Dr Diamond in December 1988. It was presumably prepared for the litigation. At the time it was prepared, there was no cross-claim which asserted an overdose of Syntocinon. The only brief reference to the infusion is at page 3 where the following appears: - "The giving of a Syntocinon infusion was a routine which would have been discussed with the staff at the time. The drip was actually put up by the anaesthetist, Dr McGuinness at 9.25am. Mrs Simpson was commenced on 10 units of Syntocinon in 1,000mls at 20 drops per minute increasing half hourly to 60 drops per minute." 1166 Later in the statement, Dr Diamond briefly describes the events of the delivery in the following terms: - "There is no comment in the hospital notes as to the baby's lie, however, it was in the occipito anterior position. There was also no record in the hospital notes as to when I arrived. This would have been about 10 to 15 minutes prior to the episiotomy which the notes record I performed at 1.40pm. The foetal heart sounds are recorded consistently at 140 with the last recording at 12.15pm. I recall that the Doppler machine was attached when the forceps delivery was being attempted. By 1.40pm Mrs Simpson had been in the second stage of labour for over one hour. I thought it would be best to expedite delivery by forceps in order to shorten the second stage of labour. When I saw her, she was fully dilated and the head was on view. The notes record that I attempted delivery with Neville Barnes and then Kiellands forceps. I do not have a specific memory of which forceps I used but the forceps I would have used are Wrigleys. I am sure that I used the Wrigleys first. These forceps are smaller. I placed the forceps around the head, pulled and nothing happened. I then put the forceps back on and again when I pulled the baby did not come down. I then changed to Neville Barnes forceps and the baby also did not come down. By this time the heart beat of the baby was lowering. This could be heard on the Doppler. I could not understand why the baby would not deliver as the baby's head was lying low down on the perineum. I then thought that perhaps the baby was in the posterior position so I applied Kiellands forceps to see if I could rotate the baby. This also did not work and the baby's heart beat went down even lower with obvious foetal distress which was easily audible with the slowing of the baby's heart beat to under 100 beats per minute. An emergency caesarean section was then organised." 1167 Later in the statement Dr Diamond referred to the operation record which had been written up by Dr Hakim. Dr Diamond says he did not at any time "say or think" that there had been a deep transverse arrest. He did not discuss "at that stage" his thoughts as to the reason for the failed forceps with Dr Hakim. He assumes that Dr Hakim wrote down deep transverse arrest because it is a common reason for failed forceps "and he assumed that is what had happened". 1168 Dr Diamond said he could not explain the reason for the failed forceps apart from cord entanglement. He said that it was possible that the cord had been shortened because "it was so wrapped around the baby". In applying the forceps "this would have put force on the cord and therefore restricted the blood supply and oxygen to the baby". 1169 There are other matters contained in the statement to which I need not refer at this stage. This statement was of course, not a contemporary statement having been made nearly eight and a half years after the events. The Syntocinon argument in its final form 1170 It is now necessary to set out in summary form the main thrust of the oral evidence emanating from the first defendant's case related to the Syntocinon argument. The particular matters which need to be clearly set out are those which emerged following the evidence of Mrs Simpson and Dr Diamond. This is to be found especially in the oral evidence of Dr Lyneham, Professor Fisk and Dr Keogh. I shall deal with each in turn. 1171 Dr Lyneham restated his ultimate view at T 1970 in the following passage:- Brereton SC Q. What is your opinion, Doctor, as to how the hypoxia which caused Calandre's brain damage was occasioned? A. Your Honour, it is my opinion that Mrs Simpson did experience some degree of hypertonic uterine activity, uterine hyperstimulation, during the induction of labour and as a consequence of that Calandre suffered some degree of hypoxia which, nevertheless, was compensated for by the physiological responses to this sort of hypoxia to which she was exposed. But when on top of that situation there occurred a failed trial of forceps and a delay inevitably until the baby was delivered by caesarean section and the bradycardia that would be associated, or may be associated with the application of the forceps, as was documented in the records, it's my opinion that that episode superimposed on Calandre, who was at the limit of her compensatory capabilities, that combination of events, resulted in the damage to Calandre's brain which is reflected in her condition." 1172 There was, however, a marked change in emphasis in Dr Lyneham's assessment of the nature of the hyperstimulation in his oral evidence as contrasted with the possibilities he had considered in his written report. He said, for example, that there was "an awful lot of other evidence" to suggest hyperstimulation was occurring. However, he says that it was hyperstimulation of "a mild form, not enough to cause acidosis of the baby; not enough to cause bradycardia between contractions, nevertheless, of a mild form" - it was, at the least, "borderline" hyperstimulation. This was, it must be said, in contrast to the very marked hyperstimulation contemplated and commented upon in his first two reports. 1173 In relation to Mrs Simpson's description of her contraction frequency, he made two points. First, although the description of the contractions being "one minute on and one off" lessened the evidence of the existence of hyperstimulation nevertheless, had the contractions been coming, for example, every one minute and fifty seconds rather than two minutes, there would, he said, be hyperstimulation. Secondly, he thought that it would be very "difficult" for a patient in labour who was very distressed from long contractions to be "absolutely sure" whether the contractions were coming every two minutes. In a similar vein, in relation to Mrs Simpson's evidence about the degree of force she had experienced when the forceps were being applied and used, Dr Lyneham suggested there could be "an extraordinary discrepancy" between the interpreted force of the mother and the force being used by the Doctor. He also thought that the absence of marks on the baby in this case militated against the use of excessive force. 1174 Somewhat surprisingly, Dr Lyneham, when it was suggested to him that Mrs Simpson's account as to her contraction pattern might have been made available to him, said that he didn't ask for "it and it didn't seem relevant" to him. Dr Lyneham also was somewhat dismissive of Dr Diamond's evidence in relation to the information he had relating to the foetal heart rate. This information, it will be recalled, included the information he had been given by the nursing staff and his own observations of the heart beat after it was audible through the use of the Doppler attachment during the forceps applications. He insisted that these heart readings would have provided no information about foetal well-being apart from the fact that there was no severe hypoxia and acidosis producing bradycardia during contractions. He did concede (at T 1996) that the nursing staff and obstetrician might "take comfort" from those readings if they were coming up normal to the extent that they would know the baby was not seriously compromised. He insisted, however, there could be other changes of foetal compromise such as "loss of variability and loss of reactivity" which could not be detected by listening between contractions. 1175 It became apparent that there was another significant change of emphasis about a matter which had puzzled Dr Lyneham at the time of the first report. Dr Lyneham indicated between pages 1997 and 2000 that he no longer accepted as "a likely possibility" that the balance of 475mls of Syntocinon solution was infused into Mrs Simpson between 12 midday and 2.15pm on 5 July 1979. He also accepted, in the light of Mrs Simpson's evidence, that the possible interpretation of the partogram as indicating that there were "continuous contractions", without a break or interval between contractions, had not occurred (T 2001). He also accepted that if Mrs Simpson's evidence were accepted as accurate, this would indicate a pattern of five contractions every ten minutes. This would been within the limit of the acceptable range in 1979. He now advanced an argument however, that the contractions, if they were not too frequent, were "excessively strong". 1176 At T 2007, Dr Lyneham explained the modification he wished to make to his first report. He now took the view that the first entry in the fluid balance chart referring to 700mls of Syntocinon solution was explicable on the basis that 300mls of fluid had already run into the patient before the nursing sister added 10 units of Syntocinon to the balance namely, 700mls. Secondly, he was now of the view that the entry in the fluid balance chart at 2.15pm referring to "completed" meant that 300mls remained in that flask when it was taken down, that it was discarded and subsequently replaced with another bottle of saline. The effect of this re-interpretation of the hospital records was that Mrs Simpson would have received approximately 400mls of the Syntocinon solution between 9.30am when it was put up and 2.15pm when it was taken down. If this were the right interpretation, it would have meant that Mrs Simpson received an average dose of about 20 milliunits per minute which meant that the rate after midday would have continued at "30 drops per minute", the last infusion rate recorded on the partogram. Such an interpretation supported the theory that the Syntocinon infusion had been left running after midday until either the commencement of the forceps attempts or, at the latest, the decision to go to caesarean section. 1177 As a consequence of this new approach, Dr Lyneham's conclusion was that from 9.30am to midday Mrs Simpson had received 225mls of Syntocinon solution. In the period from midday to 2.15pm she received about a further 205mls of the same solution. Dr Lyneham's revised approach eliminated the absurdity of the possibilities considered in his first report and addressed, as well, the fact that they were not supported by the evidence of Mrs Simpson and Dr Diamond. 1178 Dr Lyneham agreed that, as a result of his revised approach, the rate of infusion he had been suggesting in his first and second reports between 12 midday and 2.15pm was very much higher than the rate he now thought had gone into Mrs Simpson. Secondly, the total amount of infusion of Syntocinon referred to in his first and second reports was very much greater than that which was now suggested as the total amount in fact infused. Although Dr Lyneham accepted these propositions he made the point that, because of the change he had made to the drop size, there was in fact a slightly higher infusion in the first two hours than he had first thought, but he otherwise agreed with the conclusions flowing from his revisions as I have stated them. 1179 Despite these significant changes to his original reports, Dr Lyneham maintained that he was still firmly of the view that there was "good scientific evidence" to back up his view that there had been significant hyperstimulation in relation to Mrs Simpson's uterine activity. He did, however, concede at T 2170 that there was no "definite evidence" of hyperstimulation after 12 midday but he thought there were several facts and other matters relating to Mrs Simpson which were relevant to the question. The matters which were outlined by Dr Lyneham in his evidence may be summarised as follows: - (i) The hospital records in relation to Mrs Simpson's first pregnancy, he argued, pointed to the presence of hyperstimulation in that pregnancy. At T 2175 Dr Lyneham analysed the first pregnancy by reference to those records. Mrs Simpson's membranes had ruptured naturally but she received an augmenting dose of Syntocinon. This was 10 units in a litre started off at 20 drops per minute. After two hours, the rate had been increased to 30 drops per minute and her contractions were described in the hospital record as "three minutely". The rate was dropped, however, to 20 drops per minute. At 150 minutes, despite the contractions being then two minutely, the drip was turned off because Mrs Simpson was "very distressed". Dr Lyneham made the point that at that stage Mrs Simpson had received about half the Syntocinon that she received in the second pregnancy. Consequently, he argued that "one could expect the response to Syntocinon in the second pregnancy to be even more forceful". Dr Lyneham agreed there was no mention of this matter in his reports and that its possible significance only occurred to him on Anzac Day, the day before he gave evidence. He had not mentioned it in his evidence in chief. (ii) The fact that the epidural was not working very well and had to be topped up. As Mrs Simpson was still experiencing pain despite the epidural, this would suggest "very strong contractions". Dr Lyneham however, had not been made aware of the evidence of Dr McGuinness in relation to his assessment of the level of pain as evidenced by the dosage involved in the pain relief and epidural medications (iii) The fact that Mrs Simpson went to full dilitation in a time span which was rapid (albeit, not unknown) indicated "the presence of very strong contractions". In her first pregnancy it had taken her six and a half hours to achieve full dilatation whereas in this pregnancy it took three hours. (iv) The fact that the nursing staff reduced the dosage from 40 to 30 drops per minute at 11 o'clock was suggestive of "the presence of very strong contractions". At 11.30am, according to the records, the contractions were the same but the dose remained at 30 drops per minute. It was not further turned down. Dr Lyneham accepted, however, that in his report of 13 September 1999, he had interpreted the contraction levels shown on the partogram after midday as having reached "an ideal pattern". (v) The dosage of Syntocinon: first, the fact that Mrs Simpson received ten times what would today be given in current dosage. Secondly, that she received Syntocinon at twice the rate she received in her first pregnancy. Thirdly, that the concentration of Syntocinon was substantially higher than Dr Diamond's protocol. Fourthly, the incremental rapidity with which the dose increased was the most important single factor linked to hyperstimulation. It was a dose associated with 61% incidence of hyperstimulation in the Satin study. (iv) Finally, the outcome for the baby could not be explained on the basis of forceps failure alone having regard to the scientific literature. From a clinical point of view, the outcome was inconsistent with what would normally be expected from a failed forceps delivery. 1180 These various arguments, some of them new or at least newly emphasised, were the matters which supported Dr Lyneham's views as to the presence of either strong contractions or hyperstimulation. They were put not only in the context, not of tachysystole, but of hypertonus. In fact, the new context was hypertonus of a mild kind, incapable of detection by the use of a Doppler or manual auscultation, but nevertheless, capable of depleting the foetus' metabolical reserves. Dr Lyneham appears to have accepted that, if the hypertonus had taken the more extreme form, as it frequently did, of couplets or triple contractions, this would have been detectable by the nursing staff "attending to their task diligently" and perhaps even by Dr Diamond, while he was engaged in the attempts at instrumental delivery. The type of mild hyperstimulation Dr Lyneham was suggesting however, would not have been detectable in this way but may have occurred even where the contraction pattern did not exceed five every ten minutes (T 2209 line 20; T 2210 line 20). Such a possibility had not been specifically mentioned in his written reports (T 2241 lines 15-35; T 2246 line 10; T2247 line 5) although he claimed it was there by implication. He maintained that even if Mrs Simpson's contraction pattern fell within normal limits, the contractions may have been "excessively strong" and, in that sense, capable of causing hyperstimulation manifesting itself in an undetectable form of mild hypertonus. Professor Fisk's further evidence 1181 Professor Fisk said he stood by the tenor of his report but there were matters "advised in evidence" which required him to modify certain aspects. The first additional matter he dealt with was that dealing with the mechanism of brain injury from failed forceps delivery, a topic he had covered in paragraph 88 of his main report (Exhibit 126). He referred to the one example in Lowe's series which had been referred to by Mr Clements. This was an example of cerebral palsy after a failed Kiellands delivery. He thought that this example was atypical as a model for the plaintiff's case in that the palsy was spastic not dyskinetic; that the Apgar scores at birth in that case were good as contrasted with Calandre's case, and that the bradycardia noted at forceps delivery had recovered by the time of the caesarean section. As a consequence of these differences, Professor Fisk thought there were no case of dyskinetic palsy in the literature attributable to failed instrumental delivery. Unlike Mr Clements, it was not apparent to Professor Fisk how a number of attempts at forceps delivery not resulting in trauma, could, per se, cause prolonged oxygen deprivation and thus brain injury to the baby. He accepted that Mr Clements' view - that the failed forceps was sufficient explanation so as to make it unnecessary to look for other causes - was a possibility but he thought such a situation would be "very unusual". For this reason he had thought it necessary to look for a second explanation for the existence of a contributing cause. 1182 The second matter addressed by Professor Fisk was the Satin study. This was a study of some 3,000 women which provided a comparison of both a low and high dose Oxytocin regime. It examined both the induction and augmentation of labour by way of Oxytocin dose. The study showed, in induction programs, that approximately 61% of women in the high dose group experienced hyperstimulation, that is, contractions predominantly more than five in ten minutes. In the high dose group the mean maximal rate of infusion was 28 milliunits per minute. Transposing this study to Mrs Simpson's case, based on the partogram entries, Professor Fisk thought that, on the balance of probabilities, the maximum infusion rate she had received would be associated with uterine hyperstimulation. Had the dosage continued from midday until approximately 1.50pm at 30 drops per minute, he thought that "there was a 50% chance that there would have been hyperstimulation" but thought it "difficult" to say. Professor Fisk made it clear that one important factor in the opinions he was expressing related to the unexpectedly severe outcome of a failed forceps delivery in the instant case. 1183 The third matter dealt with by Professor Fisk (T 1695, 1702-04) went to the distinction between the two forms of hyperstimulation namely, hypertonus and uterine tachysystole. It will be recalled that Professor Fisk had dealt with this at paragraph 109 of his main report where he referred to tachysystole as being the more common of the two forms. Professor Fisk was asked whether hypertonus would ordinarily be detectable by the mother whilst in labour. It is clear enough why this question was asked, given the evidence of Mrs Simpson and Dr Diamond. A woman in labour may well be aware of a continuous or virtually continuous contraction. So perhaps, would the obstetrician. But would the woman in labour be aware, necessarily, of a prolonged elevation in the resting uterine tone? Professor Fisk's answer was "possibly but not reliably, I don't think so." Professor Fisk confirmed that the hypertonus type of hyperstimulation was "much rarer". It can only really be studied with the presence of an interuterine pressure catheter. As a consequence there has been few studies identifying hypertonus as a separate phenomenon causing hyperstimulation. He said however that he would concur with the evidence of Mr Clements that it is "frequently" associated with an irregular contraction pattern. "They tend to come in couplets or triplets rather than an regular frequency". The mechanism, he said, was not well studied but hypertonus can precede a tonic uterine contraction (T 1704 lines 45-50). 1184 The fourth matter addressed by Professor Fisk was his continued belief that uterine hyperstimulation was present in Mrs Simpson's case. There were four reasons. First, there was the excessive dose of Syntocinon administered by way of a standard dose in only 700mls instead of a litre. Secondly, there were the entries in the partogram that suggested between 11am and 12 midday, there was apparent evidence of hyperstimulation. Thirdly, if one were to accept that the whole of the solution had flowed into Mrs Simpson by 2.15pm that would certainly suggest hyperstimulation, and, fourthly, hyperstimulation would provide an explanation for the unusual outcome in this case namely, dyskinetic cerebral palsy attributed solely to a failed forceps delivery (T 1706-1707). 1185 The fifth matter dealt with by Professor Fisk was Mrs Simpson's evidence as to the frequency and length of her contractions. Professor Fisk accepted that her evidence conflicted with that recorded in the partogram but he said that "one minute on and one minute off would be at the upper limit of normal", that is, the borderline for hyperstimulation. The relationship between these things, he said, was not "terribly precise". He said that if one were to assume an overdose of Syntocinon had been given and there was no obvious explanation for the unexpectedly severe outcome in this case, he would tend, on the balance of probabilities, to consider that there was an "incremental mainly minor impairment in uteroplacental perfusion so as to diminish reserves, even allowing for Mrs Simpson's evidence" (T 1707-1708). 1186 The next matter addressed by Professor Fisk was a view which he refused to resile from throughout the whole of his evidence: There were two parts to it. First, while he accepted that a diminution in foetal reserves might well be accompanied by a progressive rise in baseline heart rate during the course of labour, he did not accept that there must be a foetal tachycardia, that is, a heart rate over normal limits. Secondly, he said that such progressive rise in the baseline heart rate would not necessarily be detected by the type of intermittent auscultation as had been used in the present case. This was designed "predominantly" to pick up major abnormalities in baseline heart rate or decelerations occurring after a contraction. Additionally, Professor Fisk thought the recording of the foetal heart rate in the hospital records in this case at 140 bpm was "highly implausible". I took him to mean that if the heart rate had been more precisely recorded, there would have been some minor variations. 1187 The final matter dealt with by Professor Fisk in his evidence in chief was his restatement of his principal proposition. This was that it was more probable than not that there was hyperstimulation in this case; and that this had incrementally diminished the foetal reserves. As a consequence, when the foetus had been subjected to multiple forceps attempts, it was her diminished reserves that allowed her decompensation to be so uncharacteristically severe that it resulted in the present outcome. 1188 In cross-examination Professor Fisk was reminded of Mrs Simpson's description of her perception of the force used during the forceps delivery. He was somewhat sceptical of the accuracy of maternal recollection in such circumstances but eventually conceded that the description she gave was not "inconsistent" with undue force having been used. He accepted that a woman who had a child delivered previously by forceps might be able to make a better judgment than someone who had not previously had a forceps delivery. 1189 Between T 1765 and T 1770 Professor Fisk was pressed on a number of occasions as to whether he would accept that normal foetal heart readings during the forceps attempts were either consistent with the absence of hyperstimulation, or at least relevant to the question of its presence or otherwise. He was prepared to agree that the absence of late decelerations could point towards there not being major foetal acidaemia "at that stage". He would not accept however, that a normal foetal heart rate on auscultation could be taken to indicate that there was no reduction in the baby's metabolical reserves. He accepted that knowledge of the foetal heart rate "with all the crudities of intermittent auscultation", after the forceps had been applied, did provide information on how the foetal heart rate is reacting. It provided "not perfect but useful information" for reconstructing "what happened here". If there were a slight diminution in reserves, he maintained it could not necessarily show up. In the context of this extended cross-examination, he did, to my perception, eventually concede that, if the baby had been delivered at that time in the circumstances described to him where a normal foetal heart rate had been demonstrated after the first attempts at instrumental delivery, the baby would have been likely to have been delivered "in very good condition" without acidaemia, in that sense "fit and healthy" (T 1770). 1190 Mr Hall QC then took Professor Fisk to Dr Diamond's evidence. He pointed out to him that Dr Diamond has said that, as a consequence of the various examinations and inquiries he made at the time of and during the forceps attempts, he found the foetus to be "in a completely normal state". Professor Fisk was asked whether that would be relevant material in assessing whether or not there were at work any adverse uterine contractions. Professor Fisk was unwilling to go too far in relation to concessions on this point. He accepted that the examinations would be relevant to the question. Although relevant, he was not prepared to say that they would tell "one way or the other" whether there was or was not hyperstimulation. There might be, he said, major foetal distress "indicative of ischaemia with manifest decelerations". There might, on the other hand, not be any foetal adverse reaction at all. There could however, be a situation where there were "more subtle changes" not discernible by way of intermittent auscultation (T 1774). 1191 Somewhat surprisingly, in view of the revised approach Dr Lyneham had taken, Professor Fisk did not really resile from entertaining as a real possibility the proposition that the entire balance of the Syntocinon solution had been infused into Mrs Simpson between 12 midday and 2.15pm. He accepted that Sister Ranclaud would have been "most unlikely" to have intentionally infused that amount but suggested that it may have occurred if "she were not paying attention to the infusion rate or if she adjusted it in error". He did not suggest that she had but said that this was for the court to find. If it did happen, hyperstimulation was the conclusion. 1192 Professor Fisk was also asked to consider the passage from Dr Diamond's evidence where he had expressed the view that he had observed no abnormalities so far as uterine contraction in Mrs Simpson was concerned; and that the contraction frequency, pattern and rate was "completely normal". Professor Fisk said he had great difficulty seeing how Dr Diamond would be in a position to make these observations during the forceps attempts. He would have "some caution" about accepting Dr Diamond's ability to be able, independently, to form his own view of contractions (T 2429 line 10). When pressed, he said, he would "give very little credence" to that evidence in determining whether there was hyperstimulation or not. 1193 In summary, Mr Hall QC put to Professor Fisk that the combined effect of the evidence of Mrs Simpson and the evidence of Dr Diamond was highly significant because it tended to show clearly that there was not present at any time an abnormal contraction pattern. Professor Fisk said he had "great difficulty in accepting the evidence of a mother in this regard". Nor could he regard the evidence of Dr Diamond as "clear" (T 2436 lines 30-35). He did accept however, that Mrs Simpson's evidence about the duration and frequency of the contractions, if accepted, did not support the conclusion of hyperstimulation of the kind he had suggested in his report. He maintained, however, they may, nonetheless, have been an adverse affect on the foetus. 1194 At T 2443 the following passage appears in the cross-examination: - "Q. Professor, leaving the ultimate conclusion about the severity of the condition, I am coming back to evidence leading to a conclusion of hyperstimulation; if as we have been through, you accept Mrs Simpson's evidence and you don't accept the assumed infusion rates referred to in the third and fourth propositions in paragraph 110, then on that basis there is no other evidence of hyperstimulation in the case, is there? A. If we know that there was not this huge dose of Syntocinon administered and the contraction frequency was no more frequent ever than one in two minutes there is no evidence of hyperstimulation, based on a definition of contraction frequency. This does not mean that this did not have an adverse affect on the foetus, an area we could explore if you wish." 1195 In re-examination at T 2509, Professor Fisk elaborated. He said that there were two reasons. Although the definition of 60 seconds between contractions was the minimum necessary, there was scientific evidence that it took longer for various foetal physiological variables to return to normal after a contraction. It was possible for there to be "a progressive impairment" in foetal condition or reduction in metabolic reserves with a contraction frequency that does not "quite satisfy" uterine definitions for hyperstimulation. 1196 Professor Fisk was also tested by Mr Hall QC on the issue of the mechanism likely to have caused the catastrophic outcome in the present case. He argued that the scientific literature did not support the mechanism of an isolated failed forceps delivery as being responsible. He agreed, however, that this case was "extraordinary" and that there were not "hundreds" of published cases with "exactly the same scenario" (T 2444). Professor Fisk conceded that he was unaware of any information in this case about how Dr Diamond "had applied the forceps" or "made the pulls" or how "they were juxtaposed to uterine contractions" (T 2449 line 40). He also accepted, in general terms, that the more repetitions of attempts at forceps delivery occur, especially where there is no descent, that is "multiple attempts", there would be "every likelihood" that an unremitting bradycardia might arise. Professor Fisk qualified his agreement to the proposition that this was "a well understood mechanism" by saying that "if we said twenty applications, I would concur". He agreed that four to five applications and pulls, where there was no descent, was "outside the realm of any case reported in the scientific literature (T 2454 line 50 to T 2455 line 15; T 2456 lines 20-50; T 2457 lines 20-25). He agreed it was a situation that "the literature has simply never considered or dealt with". 1197 Professor Fisk also accepted the possibility that during the use of the Kiellands forceps the cord may have been occluded or placed in a position of spasm which could result in severe foetal embarrassment. Another possibility was that there may have been cord compression or tightening which could reduce blood supply to the baby. He thought these things were "unlikely' but "possible". Normally the bradycardia would be short lived but it was "possible" that it might continue. In relation to Dr Diamond's entry "cord around the neck + +" Professor Fisk was emphatic that this would not have been a reason for the failed delivery (T 2464-66). Dr Keogh's evidence 1198 Dr Keogh was the third expert called in the first defendant's case to address the Syntocinon argument. It is fair to say the main thrust of his report was a defence of Dr Diamond's actions from an obstetric standards point of view. In addition to the material in his report, Dr Keogh in his oral evidence, painted a rather frightening picture of observations from his training days and shortly afterwards in the 1980's. He said he had observed behaviour in the labour wards in those years which did not correspond with the practices suggested in the text books. It had been no more "enlightened" in the 1980's than it had been in 1979. He had seen obstetricians employing as many as six pulls with a forceps. He had seen an obstetrician "hanging off the end of the bed with his whole weight on the baby to deliver it". These sort of things, he claimed, were not "extraordinary" in those days. 1199 Dr Keogh went so far as to say he did not think the forceps, per se, were the cause of the plaintiff's injuries in this case. He thought in fact, that Dr Diamond was "wrong" to admit negligence. Dr Keogh was, the only doctor to give evidence who attempted to come completely to Dr Diamond's defence. Dr Keogh appeared troubled, however, when it became clear that he had not been provided with information to suggest that when Dr Diamond made the various attempts to deliver the baby, he had obtained no descent at all during any of the attempts. He agreed that if Dr Diamond had gone ahead without knowing where the baby's head was, especially after a drop in heart rate, it would have been "a wrong judgment for certain". He agreed that it would have been "wrong and unwise" (T 2667) even though he would not admit that this was "grossly wrong". 1200 In relation to the Syntocinon argument, Dr Keogh, as had been Dr Lyneham and Professor Fisk, was somewhat dismissive of Mrs Simpson's evidence. In relation to her evidence that the contractions were "one minute on and one minute off" in the period between 11am and 12 midday, he said that this was not supported by the entry in the partogram. Secondly, she was "extremely distressed" by pain and his impression was that "time warps for" women in labour. 1201 He agreed that, for the purposes of his report, he had not been given any statement from Mrs Simpson nor had he any statement from Dr Diamond. He had Dr Diamond's answers to interrogatories but nothing more. He had never seen the statement from Sister Ranclaud. 1202 Dr Keogh listed the evidence which suggested to him that hyperstimulation may have been happening in the present case. The relevant matters were: - · The Syntocinon infusion had been turned down with the drop rate being altered from 40 dpm to 30 dpm. · Progress to full dilatation was rapid, albeit not abnormally so. · There was a possibility that the full 700mls of Syntocinon solution had been infused into the mother over a period of four and a half hours. · There was evidence of maternal distress. 1203 In relation to the last matter, Dr Keogh admitted that he had not dealt with "pain" in his report. In fact, he had relatively little information about pain. He had not been given any information from Dr McGuinness, the anaesthetist. He agreed that the anaesthetist, the midwife or possibly both, were in the best position to assess this matter. 1204 In relation to the evidence he had given regarding hyperstimulation, he confirmed that he was dealing with the form of hyperstimulation known as tachysystole, not hypertonus or sustained contractions. The only evidence, he thought, was that which pointed to tachysystole. 1205 As had occurred with Dr Lyneham and Professor Fisk, he too was asked, in chief, to express a view as to the most likely explanation for the plaintiff's outcome in this case. At T 2325 he said: - "Here is a baby who has entered labour, its well-being has been compromised by rapid, frequent contractions with very little space in between them and that some event has occurred in the final hours of labour, we don't know exactly when, that certainly by the time we come to the Kiellands delivery there is a profound bradycardia. … It seems to me this baby experienced compromise through the pattern of contractions and that some where along the way either before or after the Kiellands attempted delivery, this became too much for the baby to maintain its heart rate and there was probably associated with that some drop of blood pressure, we don't know when that happened, we really just don't know when that happened." 1206 In cross-examination, Dr Keogh acknowledged that there was a known risk whether there had been an indication or not, that a failure of forceps, followed by delay, could give rise to hypoxia and in turn cause brain damage (T 2648). This was a known risk, according to well understood principles. The point of distinction between Dr Keogh and Mr Clements was that Dr Keogh did not think that the forceps of themselves provided a mechanism. He thought that it would be necessary to look for an additional factor, such as cord impingement or cord tightening causing hypoxia by compression. He thought that "cord tightening, was more likely than cord impingement". 1207 In relation to the heart rate being continually recorded at 140, he suggested that this either showed some degree of compromise or, on the other hand, it may have been the estimation of "a rough guess". He thought a gradual progressive increase in the baseline heart rate could be picked up by the Doppler "but it might be missed" (T 2303). 1208 Finally, he thought that the possibility of the baby having been in a transverse position was negated because of the absence of significant bruising on the baby's face. For the same reason, he discounted the use by the obstetrician of "undue force". The Case for the Hospital - Dr Hinde's evidence 1209 The case for the hospital re-commenced on 11 May 2001. The Syntocinon argument had now been fully developed. Both the new and re-emphasised material were plainly "on the table". Dr Hinde, originally a proposed witness for the plaintiff, was called by the hospital. He spoke to his reports and addressed a considerable number of the factual and other issues which had arisen in the proceedings during March and April 2001. A number of these, although not unimportant, related to the "minutiae" of the detail which had been addressed by others. They arose both in chief and cross-examination. There is no need for me to mention all these matters, a few will suffice. 1210 For example, Dr Hinde analysed the record of Mrs Simpson's first pregnancy where she had gone from 3cms to full dilitation in one hour and fifty five minutes. He looked at the rate of progress in her second pregnancy and said that "this did not cause him any surprise". He noted that, despite a higher than usual Syntocinon dose, Mrs Simpson in fact got off to "a slow start" in the second pregnancy. This did not suggest to him a uterus "highly sensitised to respond to oxytocin". He accepted however that Mrs Simpson was not "a candidate for a high dose of Syntocinon". He noted that the staff had titrated the dose apparently in response to the frequency of uterine contractions. He noted the dose had been increased progressively. It was increased at 10 o'clock to 30 dmp and then at 10.30am to 40 dpm. This may have resulted in a "dramatic change" in the frequency of contractions between 10.30am and 11am. The dose was dropped down again to 30 dpm at 11am. Dr Hinde's interpretation of the contraction rate at 11 o'clock was that there was an interval of one minute between contractions. On his interpretation of the partogram, this resulted in a change to the contraction pattern after 12 midday where the interval became two minutes between contractions. This, I took him to be saying, reflected the titration to the lower drop rate at or after 11am. 1211 Dr Hinde was quite critical of the nursing staff particularly in relation to the level of the dose of Syntocinon administered. He thought the only "logical explanation" was that the nursing sister had allowed 300mls of the dextrose solution to infuse into Mrs Simpson before Syntocinon was added to the bag. It may possibly have been for hydration purposes. Mrs Simpson had been fasting since midnight. Dr Hinde expressed the view that it would be a "gross transgression" of a midwife's duty if she were to act contrary to a doctor's standing orders and inject 10 units of Syntocinon into 700mls as opposed to 1,000. He said "it is not good midwifery". 1212 Generally in relation to the interpretation of the partogram, Dr Hinde explained that the partogram had been introduced into St Margaret's only a short time before 1979. Dr Hinde had seen examples of confusion and incorrect entries by midwives when he had examined records from that time. He thought the confusion in the entries relating to contractions came about because the nurse was not "experienced in using partograms". Dr Hinde thought the Syntocinon "probably had been left running after midday". It may be that it was turned off while the epidural was inserted but, in his view, it was highly probable that Mrs Simpson received the continuing drop rate of 30 dpm after midday, albeit unrecorded. He thought it unlikely that there had been some inadvertent movement of the adjusting wheel so that the flow may have been "radically affected". Such a movement of the plaintiff's arm, more commonly, was likely "to stop the drip altogether" rather than lead to a massive infusion. He thought that it was unlikely that this had happened. Dr Hinde was also of the view that the recordings of foetal heart rate consistently recorded at 140 were "open to question", "most unusual" and even "implausible". He thought they probably represented the recording of "a normal heart rate" (T 2851). In 1979, a reading somewhere between 120 and 160 was at that time considered normal. If there had been any significant compromise of the foetus, sometimes shown by a completely immobile heart rate, compromise of this kind would have been apparent to the staff when the contractions came on and then ceased. 1213 Dr Hinde was asked questions about the hospital partogram of another patient identified as Patient 134281. This became Exhibit 143. Dr Hinde was cross-examined to suggest that one entry in this document (apparently made by Sister Ranclaud) supported the interpretation that the entries at the top of the contraction frequency chart in Mrs Simpson's partogram supported the likelihood that she intended to convey a contraction occurring with an interval of less than one minute until the next contraction. Dr Hinde did not accept this at all and thought quite strongly that the entry in the other patient's file supported his interpretation. He explained why. It seemed inconceivable to him that the contractions would have been occurring at the suggested rate in the case of the patient in Exhibit 143. This was especially so because the nurse's entries suggested that Dr Coyne, the examining doctor, was present at the relevant time and he took no steps to alter the patient's management, despite the fact that the patient had required a caesarean section with a previous child. 1214 I should add my own brief comment: the methodology involved in attempting to interpret the partogram of an unknown patient in the absence of the patient, the nursing staff and the doctor involved, highlighted to me the difficulty of achieving an understanding of complex events in the labour ward in this way. I derived no assistance from the attempts to interpret this second patient's partogram, one way or the other. If anything, it made Sister Ranclaud's entries in the Simpson partogram less certain and more ambiguous. It gave no support to the first defendant's argument. 1215 There were however two matters of greater significance which were dealt with by Dr Hinde. First, there was the issue as to whether foetal compromise as a consequence of hyperstimulation in either of its forms tachysystole or hypertonus, might have, on the probabilities, gone undetected. The second issue related to the mechanism for the acute hypoxic insult which Dr Rennie described as occasioning the damage to the plaintiff's brain. I shall deal with each of these matters separately: - Detection of Foetal compromise 1216 As a matter of introduction, it is necessary to say that, by this stage in the proceedings, it had become clear that the first defendant's position now required him to rely on a number of general propositions. They were these: neither Dr Diamond nor the nursing staff would have been aware, nor were they aware, that a non-severe form of hypoxia was occurring, with the foetus gradually suffering from the depletion of its reserves during the period between 9.30am and 2.15pm. This had been brought about by overly frequent contractions or, at the least, by strong contractions resulting in possible tachysystole or, even more likely, a mild and gradual hypertonus. The nursing staff were using manual auscultation to check foetal heart rate. This would not necessarily have revealed baseline variability, gradual decelerations and the like in a foetus which was not yet acidotic. Dr Diamond's examinations, even his attention to the audible heart beats on the Doppler when it was attached, would not have enabled him to detect this subtle and gradual encroachment on foetal stability. Even his attention to the maternal abdomen, and his observation of the contraction pattern during instrumental delivery attempts, would not have alerted him to the problem. 1217 Dr Hinde had some valuable contributions to make in relation to the validity or otherwise of these propositions. He had said (T 2694) that he saw the series of instrumental attempts culminating in the use of the Kiellands as "causative of the unfortunate consequences" for the plaintiff. He was asked his opinion regarding the role of Syntocinon as leading to, or culminating in, permanent neurological damage. Between lines 37 and 51 he said: "If there had been embarrassment of the foetus over the preceding two to three hours, it would be my expectation that as soon as you started to use forceps, there would be a fall in the foetal heart rate because the foetus, if you like, is on the edge and as soon as you start to intervene, you will get an adverse response in the foetus. So that if you take the view that there was hyperstimulation of the uterus with oxytocin over the preceding two hours, three hours, I find it impossible to accept that the first adverse effect upon the foetus will be manifest after the fourth attempt, the third or fourth attempt at forceps delivery. I would expect that such a foetus would manifest its displeasure with what was happening after the first, during the course of and after the first attempt at forceps." 1218 Mr Brereton SC pursued Dr Hinde on this point. Dr Hinde would not yield, however, and his answer at T 2874 line 10 was: - "If there is tachysystole, frequent contractions, then that can occur in a normal labour and it can occur without there being any adverse effect on the foetal heart rate. I find it difficult … to accept that you can have tachysystole and yet side step what is clearly recognised in research as an important distinction and arrive at a foetus which is metabolically depleted without having exhibited any abnormality in its foetal heart rate on the way there." 1219 Mr Brereton SC persisted. He put to Dr Hinde that the diminishment of foetal reserves would not necessarily be reflected in decelerations or a bradycardia such as would alert an obstetrician to foetal distress. Dr Hinde responded at T 2874 line 55: - "So that I really can't accept that we have a baby here which is metabolically troubled that attempts, unsuccessful attempts at forceps produce no diminution in the foetal heart rate. … My strong opinion is that in such a situation you must see some fall in the foetal heart rate in response to the intervention you are imposing on the foetus". 1220 Senior Counsel returned to this point on 21 May when Dr Hinde returned to conclude his cross-examination. The topic was vigorously taken up between transcript pages 3032 and 3038. Dr Hinde fairly conceded that, given the state of the foetal rate monitoring as appearing on the partogram, he could not exclude the possibility that there may have been an undetected change in the foetal rate consistent with hyperstimulation. Similarly, from 12.45pm to 1.35pm when there was no recording of the heart rate in the partogram, he accepted that it was "quite conceivable" that there could have been changes in the foetal heart consistent with hypoxia or the beginning of hypoxia due to uterine hyperstimulation. He qualified this by pointing out that there was no meconium present. While meconium was often absent in the presence of foetal distress, he said it was "unusual" for it to be absent if there was a chronic hypoxic event going on. 1221 It was then put to Dr Hinde that it was "quite conceivable", having regarding to the analysis which had been conducted, that by 1.35pm, Calandre's metabolic reserves had been depleted although not yet to the extent that she was acidotic. Dr Hinde accepted that this was a possibility but pointed out that this was a pregnancy which had "no other complications" to it. He referred to scientific data which suggested the greater likelihood of this happening in pregnancies which were complicated by excessive lateness, interuterine growth retardation and the like. He accepted however, that he could not exclude the possibility which lay at the heart of the Syntocinon argument and he accepted that the existence of such a depletion of reserves would make the severe outcome in this case "more explicable". 1222 Despite this, Dr Hinde firmly maintained his original position. At T 3037 lines 5-15 he said: - "I really have great difficulty in accepting this concept of a foetus which has got depletion of reserves, as you call it, and yet you can attempt a forceps and nothing happens. I feel that if a foetus is compromised in any way, it is going to react poorly to attempts at forceps delivery, so I would have difficulty in accepting this concept of a normal foetal heart rate and along with depletion of reserves, yet you can try to do a forceps, not only that you try to do the forceps and fail, yet the foetus doesn't manifest any change in foetal heart rate." 1223 This I took to be an even more forceful reference to the "side-step" Dr Hinde had referred to in his evidence at T 2864 line 10. 1224 Senior Counsel suggested that the drop in heart rate during the second attempt with the Neville Barnes forceps may have been an indication of previous compromise. Dr Hinde accepted that this could be compatible with a diminution of foetal reserves but he had made the point that there had been no drop in the heart rate during the two applications with the Wrigleys forceps; nor had there been a drop with the first Neville Barnes application. It was then suggested that perhaps there had been a deceleration which had simply not been noticed. Dr Hinde made two points. First, it was of course possible that it may or not have been noticed, but he thought that unlikely because manual auscultation requires the nursing staff to listen immediately after the contraction which is the time when an alteration in the foetal heart rate is likely to manifest itself. The second related point he made concerned his view, see (T 2872), that the obstetrician and nursing staff in fact get "a significant amount of information" during the second stage of labour by the Pinnard's Trumpet and the use of a Doppler. 1225 On a related subject, Mr Brereton SC suggested that the obstetrician, timing the forceps to the contractions, would not be doing so for the purpose of counting whether there were more than five contractions in ten minutes. Dr Hinde responded by suggesting that an experienced obstetrician would note if there were "a remarkably small space" between contractions. He said "it is a qualitative observation rather than an accurate measurement" (T 3036 line 25). He had also said at T 2872 that the obstetrician would note "a remarkably short time between contractions". 1226 At T 3066 Dr Hinde was re-examined in relation to his answers relating to the period of time when there was no recording of the foetal heart rate between 12.45pm and 1.35pm. Dr Hinde said that, if there had been hypoxia present when Dr Diamond arrived, it would have been evident on auscultation of the foetal heart. If there were no abnormality in the foetal heart rate in the first of these forceps attempts, "that is a point against the baby having been in a situation of compromise preceding the starting of the forceps". The Mechanism - Dr Hinde's view 1227 The principal discussion on this topic appears between T 3011 and 3021. Dr Hinde explained the processes leading to bradycardia. He was not, of course, a Foetal Physiologist but he had a wealth of experience and presented a very clear picture of the processes involved. 1228 Much of his evidence reflected explanations given by other experts. It was however very clearly expressed by Dr Hinde and bears repetition. 1229 The first type of bradycardia occurs as a result of incidents such as placental abruption, cord prolapse and constriction of the placental cord. It may also occur as a consequence of a reduction in oxygenation due to frequency of contractions (tachysystole). Incidents of this kind may produce an interrupted or reduced flow of oxygen to the foetus. Whether these will have an effect on the foetus depends on the maturity of the foetus and the intensity of the interruption, ie whether it is a partial or total interruption to the oxygen supply. An interruption to oxygen supply leads to hypoxia which in turn, leads to acidosis, that is, a decrease in the foetal PH. 1230 Along the way, there would normally be seen an intermittent bradycardia, a falling of the foetal heart rate, which precedes the acidosis. Once the hypoxia and the acidosis is severe enough there will then be seen an unremitting bradycardia - it will tend to become unremitting. Where after a contraction, there are "late decelerations", ie a lowering of the heart rate during the relaxation phase following the end of the contraction, this may be more suggestive of hypoxia. It is perfectly normal for the heart rate to lower during a contraction but this usually comes back to normal immediately after the contraction has come to an end. 1231 There is another form of bradycardia which is associated with pressure on the foetal head. The pressure stimulates the vagal nerve which causes a neuronal transmittal chemical to be released. This in turn suppresses the foetal heart rate. This is commonly called vagal bradycardia. Normally when the pressure on the head stimulating the vagal nerve is relieved, the bradycardia remits. 1232 In an instrumental delivery, the application of pressure to the foetal head by the forceps and the manipulation involved often leads to a bradycardia. In the second stage of labour, pressure on the foetal head through the contraction itself often leads to a bradycardia which promptly remits. 1233 Mr Brereton SC put at the forefront of his examination of both Mr Clements and Dr Hinde the proposition that a vagal bradycardia of itself does not provide a mechanism which explains a sudden profound unremitting and terminal bradycardia. It is fair to say that Professor Fisk and Professor Ellwood, both Foetal Physiologists and men of science seeking scientific certitude, were not satisfied that such a mechanism, without an additional hypoxic element, could explain an unremitting bradycardia. 1234 Dr Hinde was not a Foetal Physiologist. On the other hand, he possessed a lifelong experience in obstetrics. By my calculations, he had over 40 years clinical experience. He agreed that normally when a bradycardia has developed, following the use of forceps, it will remit once the forceps have been removed. It was Dr Hinde's experience, however, in some cases that the intervention process itself appeared to have set in train an unremitting bradycardia that is deleterious to the foetus (T 3014 lines 15-20). Dr Hinde did not dispute that there might be no case reported in the literature where there had been a delivery in which a manipulation with forceps, leaving no signs of physical trauma, had, of itself alone, produced terminal bradycardia. He made no search of the literature himself but he accepted that others may have done so. He made the forceful point however, that there were "fortunately" very few cases like the present one (T 3040 line 40). His experience was that, although in most cases where there has been a drop in foetal heart rate this recovered when the forceps application ceased, there were rare instances, following repeated attempts at forceps delivery, where there was set up a mechanism which caused the vagatonia to persist and hence brought about an unremitting bradycardia. This had occurred in his experience in cases where there had been no trauma such as extensive bruising or intracranial damage. 1235 Dr Hinde conceded in a number of these cases there may have been some hypoxic element at work as well as the vagal bradycardia (eg cord impingement). He did not accept that it was so in every case. In the present case, Dr Hinde believed that the application of three different sets of instruments, the manipulations involved (including the Kiellands rotation) and the number of pulls with each instrument - some five in all - did provide "an adequate and sufficient explanation" for a bradycardia which he believes lasted eighteen minutes or more (T 3020). It was his belief that the mechanism set in train by the forceps applications and manipulations brought about a vagal bradycardia that did not remit. The foetus became incapable of distributing satisfactorily the oxygen it had received through the cord so as to protect its central system (T 3039 lines 25-30). Dr Hinde accepted that there was no scientific study or analysis which explained a continued sustained vagal bradycardia. He said it would be "extremely difficult" to do such a study. His view, however, was based on his own observations. He thought that a series of multiple manipulations with forceps were recognised as causing a prolonged and severe change in foetal heart rate pattern in an otherwise previously healthy foetus (T 3040 lines 10-45). Professor Ellwood's evidence 1236 By the time Professor Ellwood gave his evidence, it is not, I think, unfair to say that a well worn path had been established through the maze of possibilities arising from the various interruptions of the hospital records especially the partogram, the nurse's notes and the fluid balance chart. Professor Ellwood was taken down this familiar path and contributed useful insights, indeed, as most of the experts had done. 1237 He interpreted the partogram entries at 12 midday, in the light of Mrs Simpson's evidence as to her contraction frequency between 11am and 12 midday, as suggesting that by that time there had emerged a two minute interval between contractions. This showed the midwife had "correctly" titrated the Syntocinon from 40 to 30 dpm "to achieve a reduction in contraction frequency". He also considered the possibility that the Syntocinon infusion may have been turned off while the epidural was given and simply not recommenced. 1238 Professor Ellwood accepted the possibility that 300 millilitres of the drip may have run into Mrs Simpson before the Syntocinon was added to the solution. He said that a doctor whose standing orders were disobeyed would have "cause for concern". In those circumstances, he agreed, a midwife would have "plainly transgressed her bounded (sic) duty to follow the Doctor's instructions" (T 2914). 1239 Professor Ellwood accepted in cross-examination that there was conflicting evidence about the frequency of Mrs Simpson's contractions particularly between 11am and 12 midday; he also accepted the drip may not have been turned off at all. He simply didn't know one way or the other. He did not agree that the anaesthetist administering the epidural would have necessarily left the drip running for hydration. The volume, he said, involved would have been inadequate for hydration. It was "marginally better than nothing". 1240 In relation to the important question as to whether the nurse should have further turned down the dose at 11.30am, a matter about which Dr Lyneham had made forceful criticism, Professor Ellwood was less sure. He noted, for example, that the partogram recorded an examination of the foetal heart rate at 11 o'clock; the notes showed a vaginal examination at 11 o'clock, and a recording of the duration of the contractions at 11 o'clock. The record indicated that the midwife reduced the Syntocinon dose from 40 to 30 dmp at 11 o'clock. Professor Ellwood made the point that these examinations and procedures would have taken some time to be completed. He said "I don't think we can be precise about the order or whether they were all done at exactly 11 o'clock". He did not accept the precision involved in the argument that, if the contractions at 11am were more than adequate, warranting the reduction in the drop rate, then at 11.30am they were the same warranting the further turning down of the Syntocinon at that time. He said there may well have been "other changes" occurring that were not recorded in the partogram. It all depended whether the contraction frequency was reducing or not. If it were reducing there would have been no need to turn it down further. Professor Ellwood said at T 2923 line 45: - "It depends whether there has actually been a response or not. What you are balancing is the desire to get the contraction frequency down to that sort of optimal four or five in 10 level against not wanting to completely stop the Syntocinon infusion, or reduce it to the point where the contractions will then disappear. It is a question of getting the balance between the two." 1241 Professor Ellwood agreed that the Sister had not turned down the dose at 11.30am. He assumed, however, that this was because she did not believe it was necessary. The partogram did not record the reasons for this but it may have turned not only on the contraction frequency and whether it was reducing but also the "strength of the contractions as assessed by the midwife palpating the abdomen". That would be "her judgment" based on all those factors as to whether it was necessary to turn it down or not. Professor Ellwood also stated, based on his experience, that where a woman was well established in labour, the contraction rate will often continue at exactly the same rate even where the Syntocinon is turned down. He said that there was "a cascade of hormonal changes that occur once you are in an established labour, which means that labour is rapidly progressing, particularly in a multiparous patient". 1242 In relation to Dr Lyneham's argument about the presence of "strong contractions", Professor Ellwood agreed that where the contractions were within the acceptable limit of not more than five in ten minutes, the continuation of Syntocinon could increase the strength of contractions. He said, however, that what was probably most important for oxygenation is the gap between contractions. At T 2929 he said: - "The actual strength of the contraction, if by strength you mean the intra-uterine pressure that is recorded during the contraction, is probably less important than the gap between contractions, which is what allows the circulation of blood to resume and oxygen transfer to occur, which is why tachysystole is of concern because, by definition, in tachysystole there is a reduction in the gap between contractions." 1243 Professor Ellwood also accepted the range of possibilities which had been discussed with earlier witnesses in relation to the entries in the fluid balance chart. One possibility was that the Syntocinon bag was empty at or about 2.15pm. Another possibility was that there was a volume of concentration still in the bag when it was taken down and discarded. When it was suggested to him that this would have been possibly a volume of about 300mls, he made the point that it was "quite difficult to tell" how much is left in a 1,000ml bag. It could be "anywhere from 200 to 400" (T 2939). 1244 Professor Ellwood said that a period of one hour would have been regarded as the upper limit of normal in relation to the standard period for the second stage of a mother having a second or later baby. He said that an average perhaps would have been half an hour. Mr Brereton SC suggested to Professor Ellwood that, given the mother was at station minus 1 at 12.40pm and fully dilated, it would be expected by the time Dr Diamond arrived that the baby's head would be "on view extending the perineum". Professor Ellwood said that he expected under normal circumstances that the baby would have been born by that time; but if the mother had been pushing, he would have expected the head to be on view in the suggested position by that time (T 2942). In relation to the various recordings of the foetal heart rate at 140 bpm, Professor Ellwood said that there were about "eleven recordings" throughout the whole period on 5 July; and that it was "certainly possible" that on each occasion the foetal heart rate was "approximately" 140 bpm. He made the point that these were not "continuous" recordings. They were intermittent readings of the heart rate. He also agreed that the practice of intermittent auscultation to check the foetal heart made it "more difficult" to pick up the subtle changes than are picked up by continuous monitoring on a cardiotocograph. 1245 At T 2945 Professor Ellwood began his discussion of the physiological nature of hyperstimulation. Hypertonus, he said, involved both increased resting tone and increased pressure during a contraction. Of the three types of hyperstimulation, sustained contractions could be very significant and tachysystole was significant "if you reach a point where there is little gap between contractions". Hypertonus, where there is simply an increase in interuterine resting tone, is, he said, "the least significant of those three". Even with tachysystole, Professor Ellwood said that in his clinical practice he had seen many, many labours where there was tachysystole without any impact on the foetus at all. His further clinical experience was that where there was tachysystole existing and the contraction patterns returned to normal, so also the foetal heart returned to normal. Certainly, this was his experience in relation to tachysystole occurring "for up to an hour". It was not "uncommon" to see this followed by "complete recovery and the subsequent birth of a healthy baby". 1246 Professor Ellwood accepted the possibility put to him (T 2950 lines 25-40) that "the type of subtle changes" seen connected with hyperstimulation and the type of wandering baseline and late decelerations might not have been detected" by the monitoring that was undertaken in this case. It was, Professor Ellwood said, "certainly possible", although he said the other feature he would be looking for would be the presence of meconium in the amniotic fluid. He agreed however that meconium is "often absent" in the presence of foetal distress. 1247 On the topic of the risks associated with excessive Syntocinon administration, Professor Ellwood said that it was his clinical experience that there was "a very wide range of individual responses" to Syntocinon. It was, he said, "a drug that is used in a manner to reduce that risk (tachysystole) by titrating against the uterine response" (T 2984). He agreed that there were certain factors that put Mrs Simpson "at a very high risk" of uterine hyperstimulation. These were especially the starting dose and the aggressive incremental factor involved in the higher starting dose in conjunction with the particular drop rate. (These were factors which had seemed significant to Dr Lyneham, it will be recalled). It was clear enough, however, that Professor Ellwood, unlike Dr Lyneham, gained little assistance from examining the hospital records in relation to Mrs Simpson's first pregnancy to see whether that threw any light on the question of hyperstimulation in the second pregnancy. In particular, Professor Ellwood said that there was no way of knowing why the Syntocinon was turned off during the first pregnancy. He noted that Mrs Simpson's membranes had ruptured naturally in the first pregnancy and it was impossible to say that her contraction frequency was related to Syntocinon or whether it was simply part of spontaneous labour. He agreed, however, that there was no particular reason to think that Mrs Simpson would require a higher dose of Syntocinon in the second pregnancy. 1248 There was one important distinction he made. While he agreed that, having regard to the starting dose and its implementation, Mrs Simpson was "at risk" of hyperstimulation, he did not accept, even if hyperstimulation had occurred, that there would have "necessarily" been any foetal compromise. At T 2992 when he was asked whether there was "every possibility" that by 1.45pm the foetus' reserves had been compromised without, at that stage there being any acidosis, he replied: - "A. If the contraction rate is, if you are asking me to assume a contraction rate of 5 or 6 in 10 for one or two hours, then that is something that is seen very commonly with induced labours and without causing foetal compromise. I am happy to assume, I am happy to accept that we have some evidence of uterine tachysystole, to then go from there to foetal compromise is quite a jump." 1249 Professor Ellwood accepted that it was "certainly possible" that the foetus was, when Dr Diamond arrived, in a situation where it was less able to resist the effect of the forceps attempts. While accepting the possibility, he made the point, based on his own clinical experience, that it was not "likely". The furthest he was prepared to go is perhaps best exemplified by the following exchange at T 2995 lines 15-20: - "Q. Isn't that the point, Professor; in the absence of an electronic foetal monitoring, we are unable to say one way or the other, with the scientific degree of certainty we would like, whether a period of tachysystole did result in foetal compromise in this case? A. Yes, I agree with that statement." 1250 Professor Ellwood accepted that if Calandre's reserves had been depleted before the Kiellands rotation was attempted, it was "more likely" that that insult would have caused the prolonged bradycardia but he insisted it was "certainly possible that the Kiellands rotation in itself could have caused the prolonged bradycardia". The Mechanism Professor Ellwood's view 1251 The final part of Professor Ellwood's evidence gave considerable insight into the nature of the possible mechanisms involved in the forceps attempts and the significance of those mechanisms for the outcome in Calandre's case. 1252 As I have noted when examining Dr Hinde's evidence, he had thought that it was unnecessary to look for an additional hypoxic event to explain the mechanism. He had said that during his years of clinical practice, he had experienced situations where the intervention process itself set in train "an unremitting bradycardia". I pause to make the obvious remark that an experienced and responsible clinician, in an emergency situation, would scarcely be concerned with an academic assessment of the scientific mechanisms possibly involved. Such an emergency might require decisions and actions which would mean the difference between life and death for the unborn infant. All professional skill and effort in such an emergency would be focused on delivering the child safely and achieving resuscitation where necessary rather than on making and recording an academic assessment of the mechanism involved, even if it were discoverable. 1253 Professor Ellwood was both an academic and a busy clinician. He took a different view to that taken by Dr Hinde. As I have said, he, as Professor Fisk had done, looked for a greater degree of scientific certitude. Even Professor Ellwood, however, acknowledged the shortcomings of scientific knowledge in this area. For example, he admitted candidly that he simply didn't know, nor was he sure any scientist did, what it was that caused the damage to the basal ganglia in cases where, as here, hypoxic ischaemic encephalopathy had been diagnosed after birth. In the same way, he accepted that there was no case in the obstetric literature of a profound bradycardia following failed forceps but he thought it "unlikely" somebody would write up such a case "as a case report". 1254 In his clinical experience, failed forceps delivery were "rarely" followed by a prolonged period of bradycardia but he had seen it happen with rotations where Kiellands forceps had been used (T 2957 lines 50-55). Professor Ellwood accepted that a "possible mechanism" in this situation may have been cord impingement or cord occlusion. In relations to Calandre's injury, Professor Ellwood said he did not know what type of bradycardia, either vagal or hypoxic, Calandre suffered before her delivery. On the assumption that the bradycardia continued until delivery, he thought it quite plausible there was a vagal component but he thought there must have been a hypoxic element, perhaps an acute hypoxic element, as well (T 2961 lines 50-55). He thought cord impingement or compression were possibilities as hypoxic elements. In fact he went further and said that he did not have any difficulty with the concept that the hypoxic element of the bradycardia occurred as a result of cord compression from the forceps rotation (T 2982 lines 40-45). He accepted that depletion of foetal reserves after a period of hyperstimulation was also a possibility. But is was "a less likely possibility" because having regard to the "apparent" period of tachysystole, he would have expected the foetus with normal reserves to "have tolerated that period of hyperstimulation and to have recovered" (T 2962 lines 5-10). 1255 Professor Ellwood elaborated on these further possibilities and their relation to the possible mechanisms throughout pages 2962 to 2982. First, he thought it was "possible" there had been a "recurrent" vagal stimulation following the "recurrent" attempted forceps delivery and that this had contributed to the terminal bradycardia (T 2963 lines 5-10). His views in this regard, in some respects, were consistent with the opinions of Mr Clements and Dr Hinde. He found it hard to accept, however, that bradycardia which persisted for 18 to 25 minutes was vagal alone (T 2963 line 15). Secondly, he discussed the likelihood of cord impingement and cord compression, either partial or total. It was difficult, he said, in the present case to know where the baby's head was. If it had been "very low down on view", there could have been impingement of a loop of the cord. If the head were higher up and in the deep transverse position, he thought "a more likely mechanism" would be the tightening of loops of cord around the body or neck. These could remain tight even after the rotational manoeuvre had ceased or been reversed. He expected the compression would be partial rather than total, although he allowed for the possibility there could have been "a true knot in the cord". 1256 Mr Brereton SC endeavoured to secure the agreement of Professor Ellwood to this proposition: putting aside altogether the vagal component to the bradycardia, it would be expected that a partial compression of the cord would be unlikely to cause "a hypoxic profound bradycardia of 60 to 80 beat per minute in less than about five to ten minutes of the event". Professor Ellwood thought the time frame would be much shorter (T 2972) although he said it was difficult to give an accurate answer. It would depend on the degree of impairment due to compression. He noted that where there is a complete cord compression in the second trimester foetus an hypoxic bradycardia can occur very quickly, within about a minute (T 2970 line 25). An important point, he insisted, was that it was not possible to put the vagal component to one side. The mechanism he was discussing contemplated a combination of vagal stimulation plus hypoxic effect, "both working on the heart in different ways … a synergistic effect" (T 2970). 1257 Professor Ellwood maintained his insistence on this point. He said there was no way of drawing a distinction between the two mechanisms. Where a baby with a prolonged foetal bradycardia is born following a Kiellands rotation "it is impossible to draw a line and say this component is vagal, this is hypoxia, there are two at the same time" (T 2983 lines 5-10). It is the combination of hypoxia and vagal stimulation that leads to ongoing bradycardia. 1258 Professor Ellwood also drew on his own clinical experience, especially his observations of extended vagal response. He thought it was not unlikely "that the vagal mechanism could go on for sufficient time for the hypoxic mechanism to then continue to cause the bradycardia" (T 2981 line 40). The following passage at T 2981 and 2982 is instructive: - Q. Are you suggesting that the vagal mechanism could continue for five to ten minutes? A. I am not applying the five to ten minutes time frame, what I said is I believe that the vagal mechanism could well operate for sufficient time for the hypoxic mechanism to cut in. If we are talking of a vagal mechanism that goes on for a few minutes, two, three, four minutes, there could be sufficient cord occlusion to then have caused sufficient hypoxia for that mechanism to then take over. Q. Professor, it is unlikely in the extreme, isn't it, that the vagal mechanism would continue for four or five minutes after the forceps had been removed, isn't it? A. No, its not unlikely in the extreme. I have certainly seen bradycardias continue for that period of time. With respect, I said two, three or four, I didn't say five. Q. That's why I was asking about five, I can accept your two, three or four. A. I can't make a distinction between two, three, four or five in such a mechanism. I have seen vagal responses continue for quite a long period of time, up to ten minutes I have seen. Q. With no hypoxic component? A. Yes, with no hypoxic component." 1259 Finally, it was suggested to Professor Ellwood that his analysis involved "an untypically extended vagal bradycardia and an untypically prompt hypoxic bradycardia from the same cause". With this, Professor Ellwood would not agree. He said it was quite common to see a foetal bradycardia in the second stage of labour which was "quite prolonged". This was particularly the case where a Kiellands forceps rotation had been involved. Professor Ellwood said that it depended on the degree of head compression and the length of time during which forceps had been applied. 1260 It will be seen as a consequence of this extended analysis that there was a considerable level of agreement and clinical consistency between the views expressed, by the four experts called in the hospital's case, notwithstanding that there were scientific differences between them. In particular, the clinical experience of all four had recognised the existence of a mechanism consistent with the conclusions they had reached in relation to the cause of Calandre's injury. Statement of Geraldine Ranclaud 1261 Sister Ranclaud died in October 1993. It will be recalled that Sister Ranclaud had made a statement on 1 February 1988 for the purposes of the litigation and that this was admitted as Exhibit 25. It is clear that Sister Ranclaud's actions were central to the Syntocinon argument both as to the basis upon which it was made, namely the overdose of Syntocinon; and especially also to the interpretation to be given to the partogram entries in relation to her observations and examinations made in relation to Mrs Simpson. 1262 The Syntocinon argument was not formulated until September 1999. It is not surprising that Sister Ranclaud's statement does not address the issue. To the extent it raises any matters relevant to it, it does so in rather an oblique fashion. 1263 It appears from the statement that Sister Ranclaud worked in the labour ward of a number of hospitals between 1966 and 1970. She had qualified as a midwife nurse in 1966. She then worked at St Margaret's Private Hospital for a brief period of six months. She then worked at the Mercy Hospital at Young, the Mater Hospital in Brisbane, and the Albany Hospital in Western Australia before spending about fourteen months at the Mater Hospital, North Shore. She was at St Margaret's Private Hospital from 1970 to 1985. She worked in the labour ward at that hospital from 1974 to 1979. She worked in the post-natal area at St Margaret's until 1985. It appears that she left nursing in the early part of 1985. 1264 Sister Ranclaud's statement describes the labour ward/delivery suite at St Margaret's Private Hospital, as it was in 1979. It had three delivery rooms and two preparation rooms and could cater up to five patients in labour. It was quite a small unit. It appears that when Sister Ranclaud was rostered as the midwife to the labour ward she was assisted by another registered midwife, when possible, and an assistant nurse with no training. She was also able to call on the Deputy Director of Nursing. On average, she was in attendance for about one delivery each day when working in the ward. 1265 Sister Ranclaud stated that the nurses acted on instructions from the visiting medical practitioners, relative to the care of their patients. She said "when the patients arrived at the hospital we normally notified the Doctor unless the patient had already done so. The Doctors were then kept informed of the patient's progress and attended the hospital when action on their part was required. When the Doctors attended I followed their instructions." The statement continues by describing the method of foetal heart rate monitoring: - "As a midwife I monitored the foetal heart rate with a foetal stethoscope (trumpet). I located the area of the foetal heart by abdominal palpation of the patient. The normal foetal heart rate is in the range of 120 to 160 beats per minute. Foetal heart rate monitoring was normally carried out in the initial stages of labour at half-hourly intervals and as labour progressed into second stage, monitoring was performed quarter-hourly. Then, when the patient was pushing, the foetal heart rate was monitored between contractions. The heart rate and sound decrease and diminish during contractions and then increase following contractions. A decrease between contractions is usually indicative of foetal distress. If the heart beat varied outside normal limits, I would notify the attending doctor immediately. The doctor must then determine the further action required - whether he should attempt to proceed with a normal birth or perform a caesarean. In the event of forceps being used, my practice was to continue to listen to the foetal heart rate between contractions. It was not common practice to record all these observations if they were within normal limits." 1266 Sister Ranclaud indicated that CTG monitoring of the foetal heart was at that time performed on instructions from the attending doctor. The cardiotocograph monitoring machine was normally kept in the middle labour room and was readily available for use. She said that if she were concerned about the possibility of a abnormal birth and considered that machine monitoring might be necessary, she would ask the Doctor if this were required. She said she "would only act on his instructions". 1267 In relation to the events of 5 July 1979, it is apparent from the statement that Sister Ranclaud had little recollection of the events regarding the birth of Calandre. She said that she had been contacted by a woman (presumably Mrs Simpson and presumably in 1992) concerning the birth of her child at St Margaret's Private Hospital in about 1979. This woman had stated that Dr Diamond was the obstetrician and her child had sustained brain damage. The woman asked Sister Ranclaud whether she recalled the case and Sister Ranclaud informed her that she did not. She declined to see the woman, advising her that as she did not remember the case there was no point in her calling. 1268 Sister Ranclaud says however, that she does recall there was a delivery with "similar circumstances" but she was unable to state that this was the delivery involving Mrs Simpson. Her description reveals the slender nature of her recall. It is as follows: - "In the case which I do recall, Dr Diamond performed the induction and then left. His partner, Dr Hakim, later attended to carry out the delivery. There were problems in attempting a vaginal delivery and two sets of forceps were used, unsuccessfully. Drs Hakim & Diamond then performed a caesarean section. I do not recall any further details of this patient and the birth of the child. The same situation had arisen with other patients of Drs Diamond and Hakim, ie, one had performed the induction and the other had carried out the delivery of the child." 1269 Sister Ranclaud had read the notes relating to Mrs Simpson's admission and the birth of Calandre on 5 July 1979. From the notes, she says that she had carried out a vaginal examination at 12.30pm and the cervix was then fully dilated. She recorded that the foetal presenting part (the vertex or crown of the head) was 1cm above the ischial spines. Her statement continues: - "With the presenting part in this position and the fact that this was Mrs Simpson's second child, one would have expected it to be born normally but possibly with the use of forceps. It was noted these were used for the birth of the first child. Arising from the details in my notes, to about 12.30pm, I would not have expected the complications which subsequently arose." 1270 Sister Ranclaud said that her notes indicated that the foetal heart rate up until 12.50pm was 140 bpm. She continued: - "There are no further details of the heart rate on the partogram but in the progress notes I noted after 1.40pm that the foetal heart rate was between sixty and eighty beats per minute. Although there is no notation of the foetal heart rate between 12.50 and after 1.40pm I would have been constantly monitoring the heart rate between contractions. I have noted that during this time the contractions were occurring every two minutes and lasting for 60 seconds." 1271 This last sentence tends to support the interpretation which suggested that there may have been uterine tachysystole occurring between 11am and 12 midday. If Sister Ranclaud's interpretation of the entry "during this time" means the period after 12.30pm (as it appears to mean) it may tend to suggest that during the earlier period, the contractions, according to one interpretation of entry on the partogram, were more frequent than contractions occurring every two minutes and lasting for 60 seconds. Sister Ranclaud's early and tragic death, however, prevented this possible inference from being investigated further. In fairness to her, it must be said the sentence appears in a context essentially well removed from the Syntocinon argument. More importantly, she makes no comment about the entries between 11am and 12 midday. Nor does she explain the unusual feature concerning the Syntocinon dosage itself. 1272 The statement notes that an episiotomy had been performed at 1.40pm. The statement continues: - "Two types of forceps were then used in the attempted rotation and delivery that followed. It is then noted that foetal heart sounds were 60 to 80 beats per minute - indicative of foetal distress." 1273 Sister Ranclaud next detailed the procedures that would normally have been followed where a decision had been made to perform a caesarean. She noted the hospital records which record the events resulting in Calandre's birth at 2.17pm. 1274 Finally, Sister Ranclaud commented on a number of the allegations made in the statement of claim. There is no need for me to set these out other than to set out the following extract appearing towards the end of the statement:- " I believe that reasonable skill and care was exercised by the hospital staff. The nurses only acted on the doctor's instructions. The doctors expected us to follow their orders. I never disagreed with a doctor's instructions but if I had reservations about same, I would record his precise instructions on the hospital records. I have been present on many occasions when Drs Hakim and Diamond had performed deliveries using forceps, without any problems. In my experience, Drs Diamond and Hakim performed more caesarean sections than most of the other visiting medical practitioners." " Reply" Evidence 1275 Dr Pennington was the last expert witness called in relation to the cross-claim. He was called on behalf of Dr Diamond. The need to call Dr Pennington arose in a somewhat unusual fashion. Rather late in the hearing, the hospital had sought to amend its defence to the amended cross-claim. 1276 This amended defence raised essentially the allegation that Dr Diamond's conduct amounted to gross negligence and was outside the conduct of a reasonable medical practitioner. The purpose of the allegation was, for the purposes of the apportionment legislation, to raise a specific defence that the conduct of Dr Diamond was so out of the ordinary that it amounted to a "novus actus interveniens". Leave was granted to the hospital to amend its defence. Provision was made, however, for Dr Diamond's legal representatives to call expert evidence to address this specific issue, if it were thought necessary. 1277 It was in these circumstances that Dr Pennington gave evidence. His evidence was within a short compass. He reviewed the conduct of Dr Diamond in the light of the expert reports and Professor Ellwood's evidence. He was asked to express an opinion, in relation to those reports, the evidence and certain stated assumptions put to him. The principal assumptions were put to him compendiously by Mr Brereton SC at T 3081 lines 5-15 in the following terms: - "That following Dr Diamond's arrival at 1335 he embarked on an attempted forceps delivery. That he first used Wrigley's forceps, applied them, pulled and achieved no descent; that he pulled again and achieved no descent and then selected Neville Barnes forceps, applied them, pulled and achieved no descent and pulled again and achieved no descent; and that he then thought that he must have been mistaken about the presentation of the foetus, or that perhaps he was mistaken about the presentation of the foetus and perhaps the foetus was OP and not OA, and selected Kielland's forceps and applied them and rotated the foetus through 180 degrees, pulled and achieved no descent and rotated back through 180 degrees to the original position." 1278 In the light of the assumptions he had been asked to make, the reports and evidence he had read, Dr Pennington was asked to express an opinion as to whether Dr Diamond departed from what was "acceptable clinical practice in 1979". (I should add that Dr Pennington was a medical practitioner with a long and extensive obstetric practice going back for about thirty five years). 1279 Dr Pennington's view was this: he believed that, up until the time of the applications of the Kiellands forceps, Dr Diamond's actions were within acceptable practice. He thought, however, that Dr Diamond departed from acceptable clinical practice in relation to his actions with the Kiellands forceps. The criticism he had of Dr Diamond was that Dr Diamond went ahead with the Kiellands without apparent knowledge of the position of the foetal skull sufficient so as to enable him to use the Kiellands forceps "in a safe manner". He did not think the departure from professional standards was "gross" but it was "a departure" (T 3082). 1280 In cross-examination, Mr Hall QC secured the agreement of Dr Pennington to the following propositions: - · In 1979 it was appreciated by practitioners that foetal distress and potential foetal damage could arise in circumstances where an obstetrician did not adhere to certain accepted principles, the first of these being the need to make appropriate examinations to ensure full dilatation; and secondly, the need to make appropriate examinations to determine that the head of the foetus was in the correct position for the particular forceps application. · To ignore those principles would be to act "beyond the bounds of the practice of a reputable medical practitioner" in 1979. · It was a well known fact in 1979 that foetal distress from head compression could result from applying forceps to the foetal head in circumstances where full dilatation had not occurred, and that this in turn could give rise to foetal distress and subsequent bradycardia, requiring an emergency caesarean section. · It would be contrary to standard practice for an obstetrician who has attempted delivery with forceps and who has obtained "no descent at all" to proceed without identifying the nature of the problem which has prevented descent. To proceed contrary to standard practice in those circumstances would be to proceed in a way which "no reasonable obstetrician would do in 1979". · The appropriate course an obstetrician must follow when he is unable to get any descent at all particularly after the use of two types of forceps, is to proceed "immediately" to caesarean section. The expectation would be that the safe option of caesarean section would ensure a safe outcome. · In a labour ward situation in 1979, it was not acceptable to attempt and fail to effect delivery with as many as five pulls, including the use of three different implements. · It was recognised in the literature in 1979 that if the position of the head of the foetus was not known with certainty, one of the risks of applying Kiellands was that, inadvertently, damage could be done. For example, entrapment or entanglement of the loop of the cord or compression of the cord could result. It was recognised that these possibilities might lead to a depletion in foetal reserves and hypoxia. · The departure from clinical standards in relation to the Kiellands was "a serious one" and the type of departure that Dr Pennington would not have expected a reputable obstetrician to undertake. · The two most common explanations for a failure to deliver by instruments were an absence of full dilatation or the baby being in the position of deep transverse arrest, or some other occipito posterior position. 1281 The Syntocinon argument was not, in terms, addressed, either in chief or in cross-examination. There had been some discussion, however, as to the mechanism involved where damage had occurred as a result of a failed forceps delivery. At T 3085 lines 15-25 Dr Pennington had been asked whether it was a well known fact that foetal distress from head compression can result when the forceps are applied in circumstances where the cervix is not fully dilated. Dr Pennington said: - "A. The foetal distress that you talk about is thought to be due to compression of the foetal skull, which in a very brief way gives rise to vagal nerve stimulation and that causes slowing of the foetal heart rate and that is in a clinical sense one of the accepted signs of potential or real foetal distress. If that is then combined with traction, that may give rise again to slowing of the foetal heart rate and principally through this vagal nerve mechanism." 1282 and again at T 3091 the following appeared: - "Q. Knowing the risk associated and attached with the use of Kielland's, for an obstetrician to proceed, not having satisfied himself that the prerequisites were in existence, would be to proceed in a manner, would it not, that no reputable obstetrician would proceed? A. Yes. Q. Because, in effect, he is flying blind and in that circumstance some of the risks we have mentioned, such as cord entanglement, compression of the cord, things such as that, or even compression of the head, can give rise to a bradycardia? A. Yes." 1283 At T 3095, during re-examination, Dr Pennington said that in a healthy foetus the heart rate will revert to normal. Dr Pennington had also agreed that if the cord had been entrapped that could give rise to oxygen depletion. He was asked, in re-examination, at T 3096 line 10 what happens when the forceps are removed, so far as the oxygen supply to the foetus is concerned in that situation of hypoxia. He replied: - "A. One or two things can happen. It could get better or it could worse. If the cord has been entrapped by the forceps blade, that may imply permanent damage to the cord from which you may be in a irrecoverable situation." 1284 Finally, Dr Pennington was asked by Mr Brereton SC to comment on the answer he had given relating to the persistence of attempts with forceps possibly giving rise "to an unremitting bradycardia". He was asked whether, when answering that question, he had been addressing his mind "exclusively" to a bradycardia caused by a vagal mechanism or some other situation. He answered: - "A. It doesn't matter in the sense that in the practical sense you have the bradycardia which may be due to vagal nerve stimulation but at that time there is no way that you know and nor, I submit, that you really care in the sense that in a practical sense you need to expedite the circumstances." Resolution of Factual Issues 1285 I propose now to make the necessary findings of facts so that the Syntocinon argument may be finally evaluated. By way of introduction and explanation, there are a number of comments I consider should be made in relation to the resolution of the factual issues. 1286 First, the methodology I propose to adopt is to examine the factual issues against the time frame previously adopted. That is, to consider first, the facts surrounding the pregnancy to ascertain whether Dr Diamond was, more probably than not, correct in his assessment that, as at 5 July 1979, Mrs Simpson was "past term". Secondly, I shall examine the events of 5 July 1979 so as to determine the probable events of that day. This will require the final resolution of the various possibilities suggested in relation to the interpretation of the partogram and hospital records; an assessment of the actions of the midwife, Sister Ranclaud, and a determination of the activities of the principal participants, namely Dr Diamond, the anaesthetist, Mrs Simpson and Dr Hakim. Thirdly, I shall consider the relevant events which occurred after the plaintiff's birth. 1287 The next comment I wish to make relates to the large volume of expert reports which I have endeavoured to summarise to this point of the judgment. This summary has not sought to embrace every part of those expert reports nor every possible interpretation of factual matters arising from the hospital records and other documentary material. Indeed, there are substantial parts of those reports which I have not, to this stage, mentioned at all. My principal concern has been to emphasise those matters which directly bear on the Syntocinon argument or those which might be thought to have a necessary relationship. I trust that in resolving the factual issues, it may be assumed that I have, however, had full regard to each and every aspect of those expert reports. I shall endeavour, so far as possible, to ensure that any critical matter bearing on the proper resolution of the factual issues is at least briefly referred to, or identified in the ensuing process. Similarly, it is necessary to mention that the oral submissions in relation to the cross-claim proceeded over two days in court in the early part of June. Those submissions were supplemented by written material, that aggregated more than 200 pages. I have re-read the transcript of the oral submissions and I have read all of the written submissions filed on behalf of the parties to the cross-claim. It has been my experience that, generally in litigation, it is often necessary and indeed helpful in resolving factual matters of difference between the parties to set out either in full or substantially the submissions that have been made. It is obviously not practical to do so in the present case, but, as with the expert evidence, I shall endeavour to identify critical submissions where necessary, both in resolving the factual issues and addressing the force of each side's argument in relation to the thrust of the Syntocinon debate. If, in striving to meet this endeavour, I omit to mention all of the arguments advanced, I trust it will not be seen as discourteous to the considerable efforts and diligence of counsel as reflected in the length of the submissions. 1288 Finally, I should make it clear that I propose to resolve the factual issues by applying, as I must do, the civil standard of proof. The ordinary standard of proof required of a party who bears the onus in civil litigation is "proof on the balance of probabilities" (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449). I bear in mind the often repeated passage from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362: - "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved." 1289 It is especially important that I bear these principles in mind in the present case since the massive amount of expert evidence has extensively concentrated on a wide range of possibilities in relation to the factual issues underlying the Syntocinon argument. In such a case, it is important that the tribunal of fact keeps steadily in mind that it is required in reaching factual conclusions, to reach a level of "actual persuasion" (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 284 para 136). Pregnancy - Dr Diamond's calculation of gestational age 1290 On 31 October 1978 Mrs Simpson attended Dr Diamond. She was pregnant at this point of time and gave Dr Diamond a history of her last menstrual period commencing 21 September 1978. This led Dr Diamond to estimate an expected date of confinement of 1 July 1979 (Dr Diamond's notes Exhibit 128). Dr Diamond made an entry on this day "6/52 DS". This meant that on both her dates and size Mrs Simpson was six weeks pregnant. I accept that examination showed the uterus was enlarged to a size consistent with a six week pregnancy. 1291 Mrs Simpson attended for her next visit on 28 November 1978. She was examined again and Dr Diamond made the entry "10/52 DS". I accept that he found dates and size were consistent with each other on this occasion. On 3 January 1979 Mrs Simpson attended for her third ante-natal visit. I accept that Dr Diamond on this occasion found that, according to her date and size she was fifteen weeks pregnant. Because there had been some bleeding, Dr Diamond arranged for an ultrasound to be performed. This was carried out on that day in his rooms. The result of the ultrasound was written directly on to Mrs Simpson's ante-natal card by the technician who carried out the ultrasound. Amongst other things the entry records "single mobile foetus equivalent to 13 weeks". Thus there arose a discrepancy between Mrs Simpson's dates and Dr Diamond's examination on the one hand and the ultrasound on the other. The discrepancy was two weeks. 1292 Mrs Simpson's next attendance was on 17 January 1979, a fortnight later. I accept that Dr Diamond made an inadvertent error in writing up his notes on this occasion. He wrote "15/52 DS". The ultrasound was carried out on that day. The technician's note states in part "single foetus mobile equivalent to 15 weeks". I say that the entry by Dr Diamond was a mistake because it is quite clear that 15 weeks would have been inconsistent with Mrs Simpson's dates assuming they were correct. He should have made an entry to reflect the mentioned date, of 17 weeks. That it was a mistake can be ascertained by looking at the previous entries and those which followed. All subsequent entries proceeded on the basis that Mrs Simpson's dates, as originally given, were correct. Consequently, the "2 week" mistake made and recorded on the January visit were in effect, rectified in the records following subsequent visits. 1293 The only other ultrasound performed was on 9 May 1979. This was performed at thirty two and a half weeks and the discrepancy of two weeks was again apparent. At subsequent visits at 35 weeks, 37 weeks, 38 weeks and 39 weeks, Dr Diamond noted the gestational age as being consistent with the dates, but on each occasion noted an ultrasound size to be three weeks smaller. 1294 Although I have been, in general terms, very much assisted by the careful and thoughtful evidence of Dr Hinde or this topic, I accept and prefer the opinion expressed by Dr Lyneham. First, I note that Dr Hinde has inadvertently misinterpreted Dr Diamond's notes in believing that they showed more frequent ultrasounds than the three which were performed. Secondly, I accept that the ultrasound in May 1979 was likely to have been reasonably unreliable in determining the estimated date of confinement. The earlier two ultrasounds may have been, in theory, more reliable but ultrasound technology was in its early days in Sydney in 1979, so far as gestational age assessment was concerned. Moreover, the suggestion arising from the evidence is that these ultrasounds were performed by a technician in Dr Diamond's rooms rather than by a competent and specially trained ultrasound expert. Moreover, there is the evidence of Dr Diamond himself in which he stated his assurance that his examinations of Mrs Simpson during the pregnancy satisfied him that the consistency between dates and size was to be preferred to the discrepancy shown in the three ultrasounds. Mrs Simpson gave evidence that she was quite certain about her dates. Finally, it should be said that Dr Diamond himself was no expert in the field of ultrasound. 1295 I should add for completeness that Mr Clements had also examined Dr Diamond's notes in relation to the ante-natal visits. He was critical of them in some respects and thought it was possible that Dr Diamond may have been wrong in his estimate of the due date. Mr Clements was reminded of Mrs Simpson's evidence that she was quite certain about her dates and agreed, in all the circumstances outlined to him, that there was nothing wrong in proceeding to an induction when Dr Diamond did on the 5 July 1979 (T 290). In these circumstances, it is not necessary to examine further Mr Clements' analysis in his report and the course of his cross-examination on the topic between transcript pages 285 and 290. Were it the case that Dr Diamond had been wrong in his estimate, this error would have no real part to play in the Syntocinon question. Mr Hall QC accepted that this was so with one qualification that, namely if Mrs Simpson had not been at term on 5 July 2001, this may have provided a context in which the higher dose of Syntocinon may have been less effective. It may, as well, have provided a reason why the higher dose was prescribed by Dr Diamond, if that is what he did. For the reasons stated, however, I am satisfied his estimate was correct. The Events of 5 July 1979 1296 Resolution of the factual issues surrounding the events of 5 July 1979 requires careful analysis of the hospital records in Exhibit "A". There are also copies of these documents in Exhibit 3. The partogram, the nurse's record, the fluid balance chart and the operation record are particularly critical. Exhibit "A" contains many other documents as well including those related to the continued treatment of Mrs Simpson in hospital until her discharge on 15 July 1979; and the condition and treatment of Calandre during the same period of time and subsequently. The critical records are those I have identified, although I have had regard to the whole of the hospital file. 1297 The first relevant document is the hospital's partogram. It records on page 1 details of the admission and the history of the operation and birth. It gives Mrs Simpson's personal details and her previous obstetric history. In relation to her second pregnancy, there is a note in the following terms: - "Bleeding: 15/52 stayed in bed for five weeks." 1298 It seems common ground that this entry is incorrect. 1299 Pages 2 and 3 of the partogram are in fact a spread sheet. These contain provision for the midwife to record many relevant details regarding the progress of labour. There is, for example, provision for recording the foetal heart rate, maternal pulse rate and blood pressure, the progress of cervical dilatation and the station of the presenting part. There is also provision in the bottom half of pages 2 and 3 for recording the progression of "contraction frequency and duration" and the "Oxytocic dose". At the foot of page 2, there is provision for recording the drugs and epidural, if any, used. The spread sheet runs across two pages to allow the inclusion of details for a labour lasting up to a potential of twenty hours. In Calandre's case most of the relevant entries were recorded on page 2 since the baby was delivered by caesarean section within a little over six hours from the time when Mrs Simpson was taken to the labour ward. Page 3 provides at the top provision for a recording of the oxytocin dose and for a recording of the "instructions" in relation to the dose. 1300 For the purposes of discussion in relation to the details contained in page 2 of the partogram, I propose to set out in these reasons a copy of the page in its entirety. It is in the following form - 1301 I shall return to discuss the events recorded on page 2 of the partogram after I have described and set out relevant portions of the other important documents in the hospital records. 1302 Page 3 of the partogram has an important entry at the top of the page on the left hand side. It is in the following form: - "Induction: YES/NO Augmentation: YES/NO Indication Oxytocin 10 U/L 700mls Instructions Comm 20DPM inc ½ hrly Max 60 DPM 1303 It is significant to note that the letters "U/L" are part of the printed material on the form. The form assumes that the Oxytocin dose will be placed in a litre. The number "10" and the volume "700mls" have been written in red ink presumably by the midwife. So also are the "instructions" written in red ink, again presumably by Sister Ranclaud. 1304 On the right hand side at the top of page 3 there is provision for recording the patient's blood group. Mrs Simpson's blood group had been recorded as "Blood Group O pos". 1305 Underneath this entry there is a printed "cautionary" note in the following terms: - "When a patient is on a "Syntocinon Drip", the Labour Ward Sister may turn off a "Syntocinon Drip" at her discretion. The "drip" may be recommenced by the Dr. in charge of the case and it will be his responsibility to supervise same." 1306 Page 4 of the partogram contains an ex post facto record of the labour, the operation and the condition of the baby at birth. It is not in narrative form but enables various headings or conclusions to be selected by "circling". It also contains some detail of the timing of the various phases of labour. As well, it contains the names of the doctors and nurses who attended at different stages of the procedures. 1307 Labour is recorded as having begun at 10.30am with membranes ruptured at 8.10am. The second stage of labour is said to have commenced at 12.30pm and the child is shown as having been born at 2.17pm. The first stage of labour was stated to be 2 hours; the second stage 1 hour 45 minutes, and the third stage (expulsion of the placenta) 5 minutes. The total time, in all stages of labour, was stated to be 3 hours 50 minutes. Nurses' Record 1308 The nurse's record commences with entries on the evening of 4 July 1979. It records that Mrs Simpson was admitted at 8.20pm for induction on the following day. There are two recordings of the foetal heart rate for that evening, each at 140 bpm. There is a note that Mrs Simpson was "to fast from 12mn" and it appears that she was given a sleeping tablet for the evening. The notes record that she slept well. 1309 The entry for 5 July 1979 is as follows: - "Transferred to L.W. 8.10am. ARM by Dr Diamond. 9.25am S/B Dr McGuinnes IV Therapy Comm 10 u/s Syntocinon in 700mls Comm 20Dpm inc ½ hrly to 60Dpm Pt to have 50mgs Pethidine + Sparine 50mgs IMI PRN then Epidural Anaesthetic Dr McGuinness notified. ED - 12md 0.5% MARCAIN 10mls not comp. successful on L side 5 more mls 0.5% Marcaine 12.55pm. 12.30pm Fully Dilated PP spines - 1cm. Dr Hakim rang notified of pts progress. 1.30pm Pts L side still painful top up c. 5 more mls Marcaine 0.5% Catheter withdrawn 1 inch from pts back. Episiotomy 1.40pm Attempts c. Neville Barnes then Kiellands Forceps to Rotate & Del Babe. This was unsuccessful FHS 60-80 Trans to Theatre for Emergency Caesarean Section. Consent form signed by husband. Babe: Depressed at Del. Trans to ICU." 1310 The entry on the third line "comm 10 u/s Syntocinon in 700mls" is in red ink and appears possibly to have been added in separately from the words which precede it. At least, that is the impression given by the different ink and the spacing. 1311 The entries in the Nurses' Record for this day appear to be signed by Sister Ranclaud. The Fluid Balance Chart 1312 The hospital records contain a two page document headed "Daily Fluid Balance". This is a Nurse's Record which is intended to record fluid intake and output. The first relevant entry on page 1 shows that at 9.25pm there was commenced the infusion of a solution of dextrose 4% - 1/5. Written underneath these words in red (apparently in Sister Ranclaud's writing) is the following: - "c 10 u/s to 700mls" 1313 (This, it is agreed, is a reference to the Syntocinon infusion). 1314 There then follows an arrow sign in the solution column, although it is not clear who had added this. 1315 The next entry is at 2.15. In the solution column appears the word "completed". In the adjoining third column, where the amount of fluid is shown there appears the number "700". There are two points to be noted about this last entry. First it does not appear to be written in the same handwriting as that of Sister Ranclaud's. Secondly, the number "700" appears to have been written in blue ink over an entry which originally read "1000". It seems clear that the person who originally wrote the 2.15 entry had written "completed 1000" but that the number was subsequently changed, perhaps by the same or another person, to read "700". Operation Record 1316 I have at an earlier point in these reasons set out the relevant details contained in the operation record. For ease of reference, I will repeat that the record is dated 5 July 1979 and was written and signed by Dr Hakim. The entry records the proposed operation as a caesarean section, and then gives the "indication" for operation in the following terms": - "Foetal Distress/Deep Transverse Arrest and Failed Forceps Deliv." Sequence of events in the Labour Ward 1317 Mrs Simpson was admitted to the labour ward at 8.10am. Sister Ranclaud was working in the labour ward at that time. Dr Diamond attended almost immediately and artificially ruptured Mrs Simpson's membranes. There is no record in the hospital notes, or anywhere else, to suggest that any abnormality was detected at this point of time. 1318 The foetal heart rate appears to have been monitored at 8am and then shortly before 9am. On each of these occasions it appears to have been recorded at "140" bpm. 1319 Dr McGuinness attended at about 9.25am and set up the intravenous drip. It is likely, in accordance with his usual practice, that Dr McGuinness ran a small amount of the dextrose and saline solution into the patient before leaving. It was then a matter for Sister Ranclaud and/or the nursing staff to add the Syntocinon to the dextrose saline solution. 1320 I accept, as all the entries record, that 10 units of Syntocinon was added to 700mls of solution. It appears from the partogram that the Syntocinon infusion commenced at about 9.30am at a drop rate of 20 dpm for approximately the next half hour. Did Dr Diamond prescribe the dose of 10 units in 700mls? 1321 I have come to the conclusion Dr Diamond did not prescribe the dosage which was, in fact, administered. This means that I accept Dr Diamond's evidence on this point. I must say, at first blush, I thought it highly likely he had prescribed the dosage. The entry and instructions on page 3 certainly have the flavour of a doctor's orders. Moreover, I thought it highly unlikely that a nursing sister would take it on herself to alter a doctor's prescription without permission. A reading of Sister Ranclaud's statement (Exhibit 25) re-enforces this opinion. 1322 On the other hand, Dr Diamond was very clear in his evidence on this point. He said he would have asked the Sister to ring the anaesthetist to put up the drip and he would have asked her to put 10 units of Syntocinon into the litre of fluid. He denied that it was he who had ordered the 10 units in 700mls. He said he "never has done and never did so" (T 1544). He insisted that it first came to his notice that Mrs Simpson received 10 units in 700mls only about 12 months before he gave his evidence. 1323 In oral and written submissions, Mr Hall QC argues that Dr Diamond's evidence should be rejected and that it should be found that he in fact gave instructions to Sister Ranclaud to infuse the regime of 10 units in 700mls. The principal matters in support of this argument were: · Dr Diamond admitted that he reviewed the original hospital notes at a time which he variously estimated between six and twelve months and between eighteen months and five years after the event. (He had originally suggested the former period but shortly after, without prompting, changed his position and opted for the later and longer period). He did so, without establishing anything "amiss" in the notes on this topic, despite the presence of the three separate entries in red by Sister Ranclaud. (I took these to be a reference to page 3 of the partogram; the first page of the nurses' record, and the 9.25am entry in the fluid balance chart). He would have plainly seen the three references to "10 u/s in 700mls" although he maintained in his evidence he had not noticed them. · Dr Diamond agreed at T 1589 line 10, that the file he examined at the hospital was "the full file" and contained the Syntocinon references. He agreed that he would have seen the entries there written in red as distinct from the entries written in blue, when he examined the hospital file. Dr Diamond said that he had detected what he believed to be errors in the notes on the occasion of his first inspection of this file. He was mainly concerned however, with the writing up of the delivery (I took him to mean the operation record) and "the writing up of the labour ward sister's comments" on the delivery, the forceps and on the caesarean section notes (T 1589 line 50). It was in this context that he maintained he had not noticed the Syntocinon entries. · Dr Diamond had been sent copies of the hospital records including the partogram and nurses' records, by the solicitors. So far as the partogram was concerned, he had had this copy for years but "probably had not studied it" for twelve months or longer. He said his copy had a page missing, (as it transpired a copy of page 3 of the partogram) where the Syntocinon instructions were set out. Later he produced his "dog eared" copy and this became Exhibit 136. In fact, page 3 was missing from the photocopy. Dr Diamond agreed, however, that he would have been sent a copy of the nurses' records which admittedly contained a reference to "10 units of Syntocinon in 700mls" on page 1. He agreed he was "well familiar" with the nurses' records of 5 July 1979 but pointed out that, on his copy, there was no red ink and the particular entry did not stand out as it did on the copy he was shown in the witness box. His copy was a photocopy which did not reproduce colour. An examination of Exhibit 136 shows this to be so. He said he was not as familiar with the first page of the nurses' records dealing with 5 July 1979 but was more concerned with the second page where the actual delivery was dealt with. Dr Diamond rejected as "complete rubbish" the proposition that he was endeavouring to convey an impression that he had attempted to advantage his position in the case. He insisted that he did not know that the particular entry was there at the time. · The third point related to the answers given by Dr Diamond to the plaintiff's supplementary notice to answer interrogatories. The questions were specifically directed to the dosage and administration of Syntocinon. Annexure 1 to the notice (part of Exhibit 29) was a one page extract from the hospital notes which include the entry "comm 10 u/s Syntocinon in 700mls comm 20Dpm inc ½ hrly to 60Dpm". The answers were as follows: - (i) In answer 95.2.4 (Exhibit 29) Dr Diamond said that he did not recollect the dose of Syntocinon used in this case but was prepared to rely on the information contained in the hospital notes. (ii) In answer 95.2.5, he admitted giving instructions to commence Syntocinon at the dose stated in the notes. (iii) In answer 95.2.6, he admitted selecting the dose in accordance with the hospital's routine for the administration of Syntocinon. · As a consequence of these answers, the hospital submits that Dr Diamond, with an extract of the clinical notes before him, "admitted" he had chosen the dose. 1324 (I should add that these answers were provided in November 1994, a considerable time before the Syntocinon argument was first formulated). 1325 Dr Diamond's general response to this, when he was cross-examined, was that although he admitted that he had read the "full context" of the extracted page at the time answers were given to the plaintiff's interrogatories, if he did read it, "it did not register" (at T 1587). 1326 Despite my earlier stated misgivings and the force of the submissions made on behalf of the hospital, particularly in relation to the answers to interrogatories, I accept that Dr Diamond was telling the truth in relation to this particular aspect of his evidence. It seems that no one, for 20 years or so, noticed the volume of the solution in which the Syntocinon had been placed, or attributed emphasis to it. It was probably first noticed either by the solicitors or by Dr Lyneham when he was asked to examine the case. There was no reason to suppose that Dr Diamond would have noted the discrepancy and it is reasonable to accept that his concerns would have been focused elsewhere on other matters in the hospital records. Significantly, Dr Diamond provided a statement to his solicitors dated December 1988 (Exhibit 137). In that statement Dr Diamond had said: - "Mrs Simpson was commenced on 10 units of Syntocin (sic) in 1000mils at 20 drops per minute increasing half hourly to 60 drops per minute." 1327 This statement made, admittedly, nine years after the event but some eleven years before the Syntocinon argument was first formulated convinces me that the entries in the hospital records were not noted by Dr Diamond at the time he gave his answers to interrogatories; and, convinces me as well that it was his belief at the time he made the statement that he had prescribed a dose of 10 units of Syntocinon in 1,000mls. It is likely that this was also his belief when the interrogatories were answered, and that it remained his belief until the matter was raised with him by his solicitors early last year. 1328 I do not consider that the discrepancy which arose in his evidence as to the incremental drop rate ("increasing every 15 minutes") in his own general Syntocinon regime, and that regime appearing in his statement and the hospital records, ("increasing ½ hourly") has any bearing on this issue. How did it happen? 1329 The finding that I have made regarding the acceptance of Dr Diamond's evidence on this point raises a puzzling question: how did it come about that 10 units was added to the 700ml solution? It is clear that the answer to this question will never be known with certainty. A particularly puzzling feature of the problem is that the fluid came only in bags of 500mls or 1,000mls. It must inevitably be the fact that when Sister Ranclaud came to add the Syntocinon to the fluid bag, a quantity had "disappeared". Three things may be said: first, the most likely scenario is that a quantity of the solution had been allowed to run into Mrs Simpson, although I doubt that Dr McGuinness was at fault in this regard. His evidence was that, although it was his practice to run a small amount through into the patient, he would then turn the infusion off, leaving it for the nursing staff to take the next step. There is no reason to disbelieve him or challenge his professional competence in this regard. Secondly, although a suggestion has been made that the solution may have been deliberately allowed to run into Mrs Simpson for hydration purposes, I do not find this at all convincing. An amount of approximately 300mls would have provided very little hydration, if she were in fact dehydrated from fasting the night before. This possibility was not raised with Mrs Simpson. I do not say it is impossible, merely that it appears to me to be quite unlikely. Thirdly, if the most likely scenario was (as it seems to have been) an inadvertent dispersal of approximately 300mls of dextrose solution into the patient, before the Syntocinon was added, this would have occurred within a very short time, only in circumstances where the knob mechanism had remained open so as to allow the fluid to flow freely. Yet it must have occurred quite quickly if other entries on the partogram are taken to be reasonably accurate. 1330 My belief is that this is what happened, although whether it was caused by something Sister Ranclaud did or something done by the untrained nurse assisting at the time, I do not know. This much is certainly clear, that the circumstances plainly did not raise a concern in Sister Ranclaud's mind as she, openly and clearly, made the red ink entries in the partogram, the fluid balance chart and the nurses' record. The entries were there for all the world to see. They were not concealed in any way, quite the contrary. The fact that they were all written in red ink indicates to me that they were, more likely than not, all written about the same time. Moreover, the red ink entry in the nurses' record on page 1 indicates to me, especially by its spacing, that a short time had elapsed between the setting up of the intravenous drip and the addition of the Syntocinon bag. I suspect, that, in fact, only a matter of minutes was involved. This is consistent with the entry in the partogram which records the commencement of the infusion at 9.30am. The infusion may have commenced, of course, a few minutes after 9.30am, since the entry appears in a "block" of time. 1331 Before leaving the topic, there is one other general observation I should make. It has a relevance to all further discussion regarding the hospital notes. Dr Hinde had pointed out in his evidence that the partogram system had only been introduced in St Margaret's a relatively short time before 1979, probably sometime after the middle of 1978. My strong conviction concerned the entries made on it by Sister Ranclaud is that many were not necessarily made with precision. They were recordings which, in some cases, were intended to be approximations. As I have said, it may be, for example, that the Syntocinon solution began to be infused a little after 9.30am. The blocks of time on the documents are all recorded in either 15 minute or half hourly intervals. An entry in the block 9.30 - 1000 may not mean the event recorded occurred precisely at 9.30, but approximately at that time. In the same way, the 700mls entry is, in my view, an "approximation" or estimate of the amount contained in the bag rather than a precise statement of the contents. It is quite likely that there was a little more or a little less than 700mls in the bag. My view is that Sister Ranclaud would have estimated this conservatively and it is quite possible there was more than 700mls in the bag although exactly how much more cannot now be concluded with precision. Continuation of the Labour - the Partogram entries 1332 According to page 4, labour began at 10.30am, about an hour after the Syntocinon dose commenced. Page 2 shows that at 10 o'clock, the drop rate had been increased from 20 to 30 dpm. At about 10.30am the drop rate was increased again to 40 dpm. At about this time, there is an entry relating to contraction frequency. This is shown on the partogram at page 2. The entry suggests that the contractions were occurring every five minutes lasting twenty seconds. This is recorded as continuing from 10.30 to 11am. 1333 There is one matter which is important. I accept that, despite the unusual dose, Sister Ranclaud was titrating the drop rate against uterine contraction. Although Mrs Simpson's membranes had been ruptured shortly after 8 o'clock she did not move into labour until 10.30am. Again, despite the unusual dosage, the two increases in drop rate had brought her to only a moderate range of contraction frequency between 10.30am and 11 o'clock. Although the rate was turned up to 40 dpm at or about 10.30am, this was still well below the maximum drop rate prescribed (60 dpm). True it is that the lower amount of solution meant that there was a higher starting dose of Syntocinon and, incrementally, a more rapid infusion than Dr Diamond had intended. However, a more rapid frequency of contraction was not reached until 11 o'clock or thereabouts. 1334 The adjacent entries relating to the contraction frequency in box 1 of "60 - 60" are those which have caused the most difficulty of interpretation in this case. They are shown in the two ½ hourly time intervals between 11am and 12 midday, although nothing more is shown. These more rapid contractions may have occurred a little after 11am and there may well have been accompanied by subtle changes, for example, as to the strength of the contractions (Professor Ellwood T 2923 - 2925) but if so, these are not shown. The Events between 11am and 12 midday 1335 In my opinion, the most likely interpretation of the entries in the partogram is, in fact, consistent with the probability of the events which I find most likely to have occurred. That is, I am satisfied that Mrs Simpson moved into a much more frequent pattern of contractions at, about, or shortly after 11am. Those contractions, generally between 11am and 12 midday, did not exceed 60 seconds. I am satisfied there was, in general terms, an interval lasting for at least 60 seconds between the end of one contraction and the beginning of the next. My reasons for this finding are, first, that this accords precisely with the evidence of Mrs Simpson. She gave clear evidence concerning this matter. Her contractions were "a minute on and a minute off" for quite a long while and certainly between 11am and 12 midday. She provided, as I remarked earlier in these reasons, a compelling picture of a woman watching the clock and waiting for the minute to pass, taking her breath and preparing for the onset of the next contraction. I think that her recollection in this regard is likely to be accurate, especially in the period when the contractions first came on frequently at a time when the pain would have been at its most noticeable. 1336 Secondly, it accords with the expert opinion. Mr Clements said that continuous contractions with no interval between would have been contrary to foetal life. While it is possible that there may have been, in this period, tachysystole in the defined sense of slightly more than five contractions in ten minutes, this is contra-indicated by the presence of the nursing sister attending to Mrs Simpson's needs in this time and titrating the dose to bring the contractions to an "ideal pattern" as Dr Lyneham described the consequent position. 1337 Initially, the dose was lowered at or after 11am. While it is true that the partogram entries do not show a reduction in frequency until the 12 o'clock "interval" is reached, I am satisfied that there were, as Professor Ellwood said, likely to have been "changes" occurring which were apparent to the midwife so as to make it unnecessary to turn the dose down further. These are not recorded on the partogram but they may have included, and probably did include, a slight reduction in contraction strength discernible upon abdominal palpation by the midwife, and a gradual reduction or decline in frequency. It was the task of an experienced midwife, attending to her patient, to make those very assessments. It was most likely, having regard to all examinations and assessments shown on the partogram, that Sister Ranclaud was satisfied with the situation. Her continued titration of the dose brought about a reduction in the frequency of contraction by about 12 o'clock and achieved an "ideal" pattern. 1338 In my view, it is academic in the extreme to argue, as did Dr Lyneham, that Sister Ranclaud properly responded by turning down the dose at 11 o'clock but failed in her duty by not turning it down further at 11.30am. It was her "judgment call" and I am satisfied that, as an experienced midwife, she was, more likely than not, satisfied with the continuing uterine response to careful titration. 1339 There is other valuable information contained on the partogram relating to the events during this one hour period. This information corroborates the view that the nursing staff were attentive to Mrs Simpson's needs and were alert to her contraction frequency. Dr Diamond had prescribed a mixture of Pethidine and Sparine (nurses' notes page 1). This combined pain relief medication was administered intramuscularly at 11.15am. It seems a vaginal examination was undertaken at about this time when the cervix was recorded as being 2cms dilated. The position of the baby's head was recorded at approximately 1.5cms above the ischial spines, meaning that the head had yet to engage fully in the pelvis. Although the rate of cervical dilatation is shown by way of a straight line between two crosses on the partogram, it is common ground between all experts that the pattern and rate of dilatation would not have proceeded in a linear fashion. Significantly, however, it does not appear that during this period, the baby's head descended below the position it had been in at 11 o'clock. The foetal heart rate had been earlier taken on a number of occasions between 10 and 11am; and then later it was taken on three occasions in the one hour period between 11am and 12 midday. It may have been taken on four occasions in the period although this is not clear. On each occasion, the heart rate is recorded at 140 bpm. Importantly, Sister Ranclaud further titrated the dose at 11 o'clock or thereabouts. Although the contractions are recorded as remaining the same in the second half hour period between 11.30am and 12 midday, the dose is recorded as exactly the same, namely 30 dpm. In other words, Sister Ranclaud did not further reduce the dose in the second half hour period before midday but there can be no doubt she paid attention to all these matters. The overall picture presented is of nursing staff attentive to a range of tasks focusing on maternal well-being and foetal safety. The Position between 12 midday and 1.30pm 1340 The nurses' record indicates that the epidural anaesthetic was set up at 12 midday. 10mls of 0.5% Marcaine was used. The epidural was noted as not "being completely successful" on the left side and a further 5mls of 0.5% Marcaine was given at 12.55pm. It seems to me, having regard to Dr McGuinness' evidence, that it was quite likely that the Syntocinon drip was stopped while the epidural was administered. This may have taken between ten and twenty minutes. None of the participants have any particular memory of the time taken to set up the epidural. Although Mrs Simpson did not have a recollection that the frequency of her contractions altered, I am satisfied that either at or some time after 12 midday there was likely to have been some reduction in the contraction frequency. This is consistent with the entries in the partogram and the fact that Sister Ranclaud had been titrating the dose to reduce uterine contractions. It is also likely that Mrs Simpson may have been distracted from noting the precise contraction frequency during the period of time after the epidural was administered. Indeed, after it had been administered, it is reasonable to suppose that her major concern would have been with the fact that the epidural was not working successfully on one side She would have expected pain to cease but it did not. I am satisfied that when Mrs Simpson said she was "distressed" at the time Dr Diamond arrived at, or shortly after 1.30pm, this was a reference to the fact that she was still feeling, as she described it, a pulling on one side, that is pain during contractions on that side. She was upset because, despite her requests, the anaesthetist had not been back to see her. Dr Diamond's satisfaction, at a later point of time during the instrumental attempts, that Mrs Simpson's contraction frequency was "completely normal", is also consistent with the reduction in contraction frequency at or after midday. This reduction in frequency is especially important if, as Mr Brereton SC argued, it was likely that the Syntocinon drip was left running after midday. 1341 Mr Brereton SC urged me to take a different view of the entries in the partogram in the intervals between 11am and 12 midday. He suggested that Mrs Simpson's evidence, if accepted, suggested the contraction frequency after 12 midday may have been "a minute on and a minute off". It followed, he logically argued, that the partogram entries required an interpretation that the contraction frequencies were more rapid in the period between 11am and 12 midday and therefore showed contractions of more than 5 in 10. Consequently, the argument concluded, there must have been tachysystole during that period. 1342 The problem with this logic is that it can be met with equal but opposing logic on the other side. If Mrs Simpson's evidence is correct in that she was "a minute on and a minute off" in the period between 11am and 12 midday, it must follow that the more likely interpretation of the entries after 12 midday is that the contractions eased to a lesser frequency in that time. It is clear there is a measure of tension between Mrs Simpson's evidence and the entries on the partogram. I have attempted to resolve that tension by a finding as to the probabilities which recognises the logic of each side's argument but resolves the tension by an appreciation of the practical realities of the likely events in the labour ward as revealed by the whole of the evidence relating to the relevant period. There is a degree of corroboration of this reality arising from all the events which preceded the relevant hour, those which occurred during it and those which occurred later when Dr Diamond arrived. 1343 I consider that the probabilities are that Mrs Simpson was undoubedtly correct in her recollection that the contractions were "a minute on and a minute off" before 12 noon. I do not consider that it is probable that they were ever more frequent than this. The entries in the partogram may have been a simple error later corrected. They may have represented contractions approaching close to the borderline of hyperstimulation. They were likely to have been approximations but there is no reason to suppose that they were intended to represent hyperstimulation. There is nothing in the nurse's notes or the remainder of the hospital record that suggest hypestimulation occurred. There is no reason to suppose that Sister Ranclaud would not have drawn Dr Diamond's attention to a period of hyperstimulation if it had in fact occurred. Overall, the probabilities are that the frequency diminished after noon. This is made more likely by the reduction in drop rate at or around 11am and by the continued close attention given by the nursing staff to Mrs Simpson. Dr Diamond's own satisfaction with the contraction pattern when he arrived and during the instrumental attempts at delivery reinforce this likelihood. Was Syntocinon discontinued at midday? 1344 Mr Clements had explored the possibility that the Syntocinon infusion may have ended at midday. Professor Ellwood and Dr Hinde both thought it was likely that the Syntocinon infusion was ceased at 12 midday. Professor Fisk and Dr Lyneham, at least in the original reports, not only thought the dose continued but entertained the real possibility that the whole of the remainder of the contents of the bag may have been infused into Mrs Simpson between midday and 2.15pm. Dr Lyneham later abandoned the latter part of the possibility as "absurd" but adhered to the former. The partogram admittedly does not make it easy to determine the probabilities. This is so because the document is silent on the point. There is no entry of the drop rate after midday, nor is there mention of it in the nurses' record. 1345 It is true that the dose and drop rate had been recorded during the period between 9.30am and midday. This had been done in half hourly intervals. One inference from the fact that there were no further entries is that the dose ceased. This is not necessarily a satisfactory approach since page 2 of the partogram shows that the contraction frequency pattern is not written up after 12.30pm. No one, however, would suggest that Mrs Simpson ceased having contractions after that time. Similarly, the foetal heart rates appear to have been checked at or about midday, 12.15pm, 12.30pm and 12.45pm. The rate on each occasion is recorded at "140" bpm. There are no further FHR's after 12.45pm. No one would suggest the heart stopped beating after this time. Other entries throw some light on the problem. At or about 12.45pm the midwife must have conducted a vaginal examination because she records "full dilatation" on page 2. The baby's head, however, appears to have been in much the same position namely, 1cm above ischial spines. This is confirmed in the "nurses' record" where the entry is recorded "fully dilated" at 12.30pm, and the presenting part was noted as being "1cm above the spines". There was clearly a continuation in the progress of labour to the extent, at least in the midwife's mind, that full dilatation had been reached. 1346 In my opinion, it was more probable than not that the Syntocinon drip was left running after midday except during the brief period when the epidural was administered. There was no indication requiring it to be turned off and, since an "ideal pattern" of contractions had been achieved, it was probably reasonable for the drop rate to continue at 30 dpm. In my opinion, it continued at the existing drop rate probably until the decision to go to caesarean or a little earlier. It may not have been running during the attempts at instrumental delivery. One would expect an entry if the dosage had been decreased or had ceased altogether, although this is not a powerful point since there are many shortcomings in the recordings in the partogram. I agree with Mr Clements that one thing is clear: there is no real possibility that the drop rate was increased after midday. The second stage of labour 1347 It was the midwife's assessment that Mrs Simpson had reached full dilatation at 12.30pm, according to the notes. The diagram on the partogram, rather, suggests the time to be more like 12.40 or 12.45pm. Whatever the precise time, Sister Ranclaud would have carried out a vaginal examination to form the opinion she did. As I have already noted, the foetal heart rate was examined at about the same time and was recorded at 140 bpm. There was a "top up" of the epidural given to Mrs Simpson at 12.55pm. It appears that her left side was "still painful" at 1.30pm when a further "top up" of the Marcaine was given and the catheter was withdrawn one inch from the back. (See nurses' record). I understand the purpose of the withdrawal of the catheter in this way was to redistribute the anaesthetic slightly. 1348 It appears to be accepted that Sister Ranclaud or one of the nursing staff rang through to Famenoth Hospital and spoke to Dr Hakim (probably about 12.30pm) to inform Dr Diamond of the patient's progress and to let him know that she was in the second stage of labour. It is also accepted that Dr Diamond arrived at St Margaret's Private Hospital at either 1.25 or 1.30pm. There had been no further recordings in the partogram of foetal heart rate after 12.45pm; and no recordings of contraction frequency after 12 midday. I accept, however, that Sister Ranclaud and other staff were attending to Mrs Simpson at this time and that the absence of specific entries may be taken as an indication that further foetal heart readings (which I am satisfied would have been carried out although not recorded) were within normal limits. I am also satisfied that the contraction frequency would have been observed and assessed but did not alter substantially from that observed and recorded in the period between midday and 12.30pm. 1349 A suggestion was made in the cross-examination of Dr Hinde that Sister Ranclaud may have had her attention diverted from Mrs Simpson and that she may have been involved in providing a substantial degree of attention to another patient. This patient was identified as Patient 314275. The suggestion was made that this patient required "substantial attention" from about 12.45pm to 1.30pm. The relevant records became Exhibit 141. It appears that this patient was attended by Sister Ranclaud, at least so far as one can judge from the fact that the nurses' record is signed by her, and perhaps written by her. The particular patient required vaginal examinations at 12.45pm and 1.15pm. At 1.36pm she was normally delivered of a living baby girl. At 1.40pm the third stage was completed and an episiotomy repaired. Dr Hinde thought that the episiotomy repair would not have been done by Sister Ranclaud. It may also have been the case that she was not the nurse in attendance to assist the repair. It should also be said that Mr Hall QC did not accept that the writing was necessarily that of Sister Ranclaud. This aspect of the matter was left "up in the air" so far as that uncertainty was concerned. 1350 My finding is that, whatever nursing attention Sister Ranclaud may have given Patient 314275, this did not in any significant way distract her from providing all necessary attention and care to Mrs Simpson. There was no other aspect of the evidence, including the evidence of Mrs Simpson, which suggests this to be the case. Indeed, Mrs Simpson's evidence suggests the contrary. Moreover, Sister Ranclaud was an experienced midwife and the labour ward was a relatively small one. She was able to call for assistance if she had needed it. 1351 There is one other matter calling for comment before I turn to the events which followed Dr Diamond's arrival at the hospital. This is the topic of the recordings in the partogram relating to foetal heart readings. There was considerable discussion devoted to these readings in all the expert reports. It was said to be "implausible" that the heart readings were "continuously" 140 bpm. Indeed, if they had been literally continuous, without any variation, they would have been an indicator of a serious problem. 1352 In my opinion, there are three points to be made regarding the interpretation of the particular entries. First, they are clearly intermittent readings not continuous ones. Although the entries are linked by a line, the readings are identified by intermittent "X's". Secondly, they are not precise readings but on each occasion, an approximation. Thirdly, they are an approximation which is intended to convey the nurse's satisfaction that the FHR was, on each instance, normal. Most of the experts took this view and I agree entirely. Clearly, it would have been better practice had the precise readings been recorded, since that is what the partogram envisages, but it is easy to understand that the midwife may have found old habits hard to discard. As Dr Hinde said, nursing staff at that time were struggling to adjust to the new system. Dr Diamond's arrival in the labour ward 1353 It will be recalled that Dr Diamond's version of events was that when he first saw Mrs Simpson in the labour ward at 1.30pm or thereabouts she told him that she was in pain and said "Bobby, do something". He performed a "minimal" vaginal examination and found that the head was "on view, low down, distending the perineum". He said he attempted to deliver the baby first by using Wrigleys forceps. When nothing happened after the first attempt, he did a further vaginal examination and satisfied himself as to the position of the baby's head and then re-applied the forceps a second time. He then says the bed was prepared so that the Neville Barnes forceps could be used. He re-checked the position of the foetal head a third time and applied the Neville Barnes forceps. During his third vaginal examination, which he said was more detailed, he dislodged the head "upwards" during his examination. He performed an episiotomy and made a second attempt with the Neville Barnes. As no descent had been achieved, Dr Diamond decided to use the Kiellands because he felt he may have made an error in that the baby's head may have been in an occipito-posterior position. He applied the Kiellands, rotated the baby's head, applied traction and re-rotated the head. During the use of the Kiellands forceps, severe bradycardia was heard on the Doppler and the instrumental attempts were abandoned in favour of a caesarean section. 1354 I regret to say that I have come to the conclusion that I am unable to accept certain aspects of Dr Diamond's evidence as either truthful or reliable. Central to my conclusion in this regard is the finding I now make that the baby's head was not in the position stated by Dr Diamond. It was not low down distending the perineum. In my opinion, the baby's head was more likely to have been in the mid cavity and either, most likely, in a transverse position or, possibly but less likely, a posterior but malrotated position. 1355 I am satisfied that the baby did not deliver either naturally or by instrumentation because first, the baby's head was in this position; and secondly, because the maternal cervix was not fully dilated at the time. There is an overwhelming inference that, had the baby been in the position that Dr Diamond claimed it was, this baby would have been easily deliverable and in fact, swiftly delivered. It is not unfair to say that all the experts, perhaps without exception, agreed with this proposition. 1356 Up to a point, I can accept that Dr Diamond may have made an initial misdiagnosis. After all, it had taken about an hour after the call had been made to Famenoth Hospital for Dr Diamond to arrive at the labour ward. Certainly, Mrs Simpson was experiencing pain when he arrived and she was unhappy about it. Those two matters, especially in combination, were factors which may have led Dr Diamond to take less care than he would have normally done in relation to his examinations. He himself described the initial vaginal examination as "minimal" and the first abdominal palpation as "modified". I say "up to a point", because I am not at all satisfied that the situation he encountered was as urgent as he endeavoured to make it sound in the witness box. Accepting, however, for the moment that there may have been, perhaps, an understandable misdiagnosis at the outset, there could have been no justification at all for his failure to diagnose the correct position of the baby's head once the first forceps attempt had been unsuccessful. I have no doubt that, had he carried out the various examinations and checks which he insisted he did after the failure of the first attempt, he would have been well aware that the baby's head was not low down distending the perineum but in fact further up in the mid cavity. It was either the position that he did not carry out these extensive examinations as he said he did, or that he utterly misdiagnosed the position upon the examination. Either way, these were very serious errors on his part. 1357 It is my view that once the present proceedings were commenced, Dr Diamond, faced with the reality of likely findings of error in this regard, embarked on a course from which he has not substantially departed since that time. That course was to maintain that, at all times during his examinations and attempts at instrumental delivery, the baby's head remained low down distending the perineum. Adherence to this position, I believe, provided Dr Diamond with an "anchor" in the litigation which he hoped would justify his actions in the repeated use of forceps in what had turned out to be a tragic failed forceps delivery. To my mind, what Dr Diamond did was to turn a blind eye to the realities of the situation he had encountered on 5 July 1979. That is to say, he has refused to admit that he either failed to carry out the necessary examinations adequately or if he did make those examinations, that he made his conclusions based on them erroneously. It is in this context that I believe Dr Diamond has continued to embellish this quite improbable version of the baby's position by some parts of the evidence he gave in Court. I reject certain aspects of this evidence as untruthful or unreliably exaggerated. I shall now endeavour to identify those aspects. Aspects of Dr Diamond's evidence are not accepted 1358 The particular matters are these: - (i) Forceps At the outset, I should say that initially I had grave reservations about accepting Dr Diamond's claim that he first used Wrigleys forceps during the instrumental attempts. The nurses' records, which is likely to be accurate as a contemporary note, records him as having used only Neville Barnes and Kiellands. There is no doubt he appreciated the force of the inference that might flow from the fact, if it be accepted, that he had used Wrigleys. These were, after all, the type of forceps that were commonly used when a baby's head was low down distending the perineum (T 1799 lines 50-55). He was, of course, insistent and quite certain during his oral evidence that he had used Wrigleys forceps. His 1988 statement (Exhibit 137) was tendered to bolster his credit in relation to other matters. At page 5 the following statement is made: - "The notes record that I attempted delivery with Neville Barnes and then Kiellands forceps. I do not have a specific memory of which forceps I used but the forceps I would have used are Wrigleys. I am sure that I used Wrigleys first." It is quite apparent from Exhibit 137 that Dr Diamond did not at that time have a specific memory of which forceps he had used during the instrumental attempts. This was the position of his recollection in December 1988. By the time he gave his evidence, however, he was convinced that his recollection was that Wrigleys had been used. He said that he was "100% positive" that he used Wrigleys (T 1655 line 5). He also said it was "not possible" that he did not use Wrigleys (T 1819 line 36). These statements contrasted with the less certain position in Exhibit 137 as to his recollection. During cross-examination on the 23 April 2001, Mr Hall QC put to Dr Diamond that in circumstances where a baby's head was low down distending the perineum, an obstetrician would not use the "longer" Neville Barnes forceps. Dr Diamond agreed with this proposition. It was then put to him (T 1801) that his use of the Neville Barnes was inconsistent with the baby's head being in the position he said it was. It was at this point that Dr Diamond repeated a matter that had been raised by him, so far as I can tell for the first time during his evidence on the 18 April 2001 (T 1560 line 5). This was the statement that he had, during the vaginal examination, displaced the baby's head upwards so that it was no longer in the very low position it had been. I have no doubt that Dr Diamond, faced with the consequences of the possible fact that he may have used only the Neville Barnes and Kiellands forceps, made up this piece of information in an endeavour to make his actions appear more reasonable. In the end, however despite my serious reservations, I have decided I cannot say with any certainty that Dr Diamond did not first use Wrigleys. This conclusion, however, does not carry with it any suggestion that Dr Diamond is to be accepted as to his claim relating to the position of baby's head. There is also the fact that it was Mrs Simpson's recollection that three types of forceps had been used. I should mention that there is an apparent inconsistency arising out of part of Exhibit 137. This relates to Dr Diamond's use of the Kiellands forceps. At page 6 of Exhibit 137 he had said: - "I do not now recall how many times I actually applied forceps and pulled them down but I think the Wrigleys and Neville Barnes together were applied two or three times and the Kiellands one or two times ." (my emphasis) The latter part of this statement suggests that Dr Diamond may have used the Kiellands forceps twice and not the one time he described in his evidence during the court proceedings. This, however, was not raised specially with him in cross-examination and I make no adverse finding about it. (ii) Position of the Baby's Head during Forceps As I have already stated, I reject Dr Diamond's evidence regarding his finding that the baby's head was low down on the perineum and his further evidence that it remained in that position, subject to the moderate dislodgment mentioned in his evidence (T 1804 line 15). Mr Hall QC bluntly put to Dr Diamond that his evidence in this regard was completely wrong and that it was deliberately wrong so as to provide a form of justification for his actions in relation to the forceps delivery. He rejected this as "rubbish" and as "completely false" (T 1799 lines 35-55). Regrettably, as I have said, I have been unable to accept Dr Diamond's evidence in this regard. I did not consider that he was being truthful in relation to this evidence. My view was reinforced by a number of considerations. First, Dr Diamond had made no notes in his contemporary records or elsewhere as to the position of the baby's head. The only brief note he had made referred to the position of the cord around the neck. To that extent, it provided his only stated reason for the failure of the delivery, albeit one that was not now supported by any medical or scientific opinion. It would have been a simple matter for Dr Diamond to make a note of the position of the baby's head particularly as it would have been quite apparent to him, if it were the true position, that such a matter would have been an important one. My impression of Dr Diamond was that he was an astute, intelligent and resolute man. He gave the impression of being a well organised and competent businessman as well as a thoroughly experienced professional. I accept, of course, that he was likely to have been quite upset by the events of 5 July 1979, but it appears he was well able to carry on with his practice without interruption. This was a busy practice and one requiring his attendance at a number of hospitals. I am afraid that I am unable to accept that there was some type of distress reaction to the circumstances of the plaintiff's birth that may have, in some way, prevented Dr Diamond from making a reasonably accurate note of the circumstances of the delivery either that day or the next. It plainly seemed an important matter to him in 1988, when he made his statement Exhibit 138, that he should devote attention to the position of the baby's head. It was likely to have been, in his mind, as equally an important matter in July 1979. There is no reason to think that he would not have made, at least, a brief note to this effect at the time shortly after the birth, if the facts had truly been as he now states them to be. Secondly, there were related factors which arise in relation to his evidence as to the position of the baby at caesarean. I shall deal with those matters separately. Thirdly, I find that he gave no such explanation to Mrs Simpson after the birth. It is clear as well, that he did not mention this matter in his letter to Dr Fisher in November 1979. Both Mrs Simpson and Dr Fisher had, in effect, sought an explanation from Dr Diamond. Neither one was told anything about the position of the baby's head being low down and on view. This suggests to me that, at the time, no such explanation had occurred to Dr Diamond and it had not occurred to him because it was not consistent with his observations during the forceps attempts or at delivery. (iii) Mrs Simpson's pain I consider that Dr Diamond's evidence in relation to his description of Mrs Simpson's pain and distress, when he arrived at the labour ward at 1.30pm, was seriously exaggerated. There is no doubt that the version he gave of a mother in considerable pain painted a picture of an urgent situation giving rise or justifying a need for urgent action. Such a situation might, for example, obviate or at least reduce the need for a full vaginal examination and for a thorough abdominal palpation. The likelihood that the need for these types of examination had been eliminated or reduced by the demands of maternal pain, were capable of re-enforcing in Dr Diamond's statement regarding the position of the baby's head. This was so, at least to the extent it might be said that such considerations tended to make more believable the proposition that the baby's head was low down distending the perineum. Dr Diamond maintained repeatedly that the mother's pain and the position of the baby's head "on view" were the factors which justified his opinion that there was no need for him to consider a caesarean or a trial of forceps in the operating theatre. I accept that Mrs Simpson was in pain when Dr Diamond arrived. There is no doubt about that. The level of pain relief medication and the strength of the epidural dose, as Dr McGuinness had said, were however normal. They demonstrated that at least in the professional view of the nursing staff, Mrs Simpson's level of pain was not out of the ordinary or abnormal. I do not mean to disregard the subjective level of Mrs Simpson's pain by this remark. The important thing about it, however, was that it was unanticipated pain. No doubt Mrs Simpson had expected a pain free second stage. That was the reason she had the epidural. I do not accept that Mrs Simpson's pain and distress were at the level described by Dr Diamond. First, she did not describe it in that way in her evidence. Secondly, there is no entry in the nurses' record which suggested an abnormality in the level of pain: rather the suggestion is, having regard to the medication, the opposite. Thirdly, when Mr Hall QC queried Dr Diamond about his evidence in this regard (T 1581 lines 15-20), Dr Diamond maintained that in "the written submission" he gave years ago he had stated that Mrs Simpson was distressed when he arrived. He added "I still contend that she was very distressed when I arrived". Dr Diamond identified the "submission" as a statement. He thought it was a statement he had provided at a time earlier than his answers to interrogatories in 1993. If the relevant statement be the one that was tendered by Mr Brereton SC (Exhibit 137), it must be said that in the narrative portion of that document, Dr Diamond makes no statement at all that Mrs Simpson was distressed when he arrived. I note, however, that this particular matter was not put directly to Dr Diamond and it is possible there may have been another statement which was not tendered in evidence. Fourthly, at T 1793, Mr Hall QC suggested directly to Dr Diamond that he had been exaggerating the level of maternal distress in this case. Dr Diamond robustly rejected this suggestion as "rubbish" (T 1794 line 5). Dr Diamond's further answers on that page, however, reinforced my view that he was exaggerating. He went on, for example, to describe Mrs Simpson as "writhing in agony". Such a description was very much at odds with Mrs Simpson's own evidence. She had denied that she had said "Do something Bobby" when Dr Diamond had arrived in the early afternoon. I accept her evidence in this regard and reject that of Dr Diamond. (iv) Position of baby at caesarean - deep transverse arrest (iv) Dr Diamond had said that it was he who had reached into the uterus to deliver the baby (T 1568-69). He said he had made no finding of deep transverse arrest. Later, at T 1797, he said he had discussed the position of the foetus with Dr Hakim and in particular he had discussed Dr Hakim's note in the operation record. Dr Diamond repeated the statements which had been made by Dr Hakim in his evidence, namely that Dr Hakim had known there was a failed forceps and "assumed" it was a deep transverse arrest and, for that reason, Dr Hakim made the note he did. I do not accept that Dr Diamond was telling the truth when he said that he did not find a position of deep transverse arrest. Nor do I accept the truth of the statement that he made at the foot of page 4 of Exhibit 137: - "There is no comment in the hospital notes as to the baby's lie, however, it was in the occipito-anterior position". 1359 My rejection of Dr Diamond's evidence in this regard is very much related to the reasons for my rejection of Dr Hakim's evidence. I shall deal jointly with the evidence of both men on the issue 1360 It is apparent from my earlier findings that I believe Dr Diamond has embarked on a course of attempting to justify the circumstances of the forceps delivery. In particular, as I have already said, he selected as the "anchor" for the position he wished to maintain his continued assertion that the baby's head was in a position low down distending the perineum. In this regard, Dr Hakim's record after the operation posed a significant problem for Dr Diamond. If the baby had been in the transverse position with the head malrotated, this would have provided a very cogent reason why delivery had not been able to be effected. It would also have, to a considerable degree, destroyed the proposition that the head was "on view low down distending the perineum" when Dr Diamond arrived at the labour ward. Dr Diamond was certainly not unaware of this in 1988 when he signed his statement Exhibit 137. I have, when summarising this document at an earlier point in these reasons, briefly summarised those parts of the statement which referred to Dr Hakim's operation record. It is as well if I set out the relevant passage in full: - "Dr Hakim wrote up the operation record afterwards. He said in the notes that the operation was indicated due to foetal distress, deep transverse arrest and failed forceps delivery. At this stage I did not discuss with him my thoughts as to the reasons for the failed forceps and I did not at any time say or think that there had been a deep transverse arrest. I assume that Dr Hakim wrote down deep transverse arrest because it is a common reason for failed forceps and he assumed that that is what had happened." 1361 It was, I suppose, fairly natural that Dr Diamond and Dr Hakim would discuss the issue at some stage. They were partners and friends. Dr Hakim had assisted at the very operation. The hospital record shows that Drs Diamond and Hakim jointly attended on Mrs Simpson at least on two occasions post-natally in the hospital. Dr Hakim had on one occasion attended her post-natally without Dr Diamond being present. Moreover, Dr Diamond had said that he had first discovered that a finding of deep transverse arrest had been recorded by Dr Hakim in the operation report "about six or twelve months" after the event. He had in fact said this in chief (T 1570 line 1). When he first discovered this, he said he took no steps to have any change or alteration made to it because it might have been construed "as trying to doctor the evidence". He said that he knew what had happened, he knew it was incorrect, and he knew "the day would come when he would be stating this in the evidence box" (T 1570 line 10). During his cross-examination, a very short time later, he told Mr Hall QC that the occasion he discovered the entry would have been "within eighteen months to five years" after the birth (T1574 line 15). He said that he was starting to hear rumours that some action might take place so he thought that he should "just see what was written". Later again he said it was "probably closer to five years". 1362 This was rather puzzling evidence particularly as he had told Mr Hall QC at T 1571 that he had come to the realisation that Calandre was going to be significantly impaired and disabled by reason of the events associated with her delivery within probably a week or so of her birth (T 1572 line 15). He had also said at T 1571 line 45 that he had appreciated that, in all likelihood, there was "going to be litigation" within six to twelve months after the event. The litigation of course was not commenced until 1987, some eight years later. 1363 Be that as it may, he said that the inaccuracies he noted, when he examined the hospital file on the occasion he went to inspect it for the first time, related to the fact that the Wrigleys forceps were not mentioned in the nurses' record; and that the reasons for caesarean section had been written up incorrectly by Dr Hakim. He said that Dr Hakim had written down the cause of the problem as deep transverse arrest but Dr Diamond said "it was just a guess on his part" (T 1590 line 38). 1364 There are a number of matters which require comment. First, why did Dr Diamond suddenly change his estimate of the time when he first saw the "errors" in the hospital records? This was hardly a new topic on which he was likely to have made an unintentional mistake or needed to alter his recollection because he had not considered the matter carefully enough. I thought that Dr Diamond's "switch" in this regard was very unconvincing and contrived. While I do not understand exactly why he thought it was to his advantage to change the time frame, he clearly thought it was and did so without apparent justification. The probability is that he would have looked at the hospital records relatively soon after July 1979. The incidents with Mrs Simpson and Dr Fisher, after all, had occurred in November 1979. Secondly, there is the larger issue as to why he did nothing about the record which he says was plainly wrong. Moreover, the man who had made the record was, as I have said, his friend and his partner. Dr Diamond agreed that there was "nothing at all" which would have prevented him from writing on the notes his comments or observations about deep transverse arrest. He agreed and said that he could have done so. It was also put to him that he could have gone to the hospital administration and said that he had found something wrong in the records. He agreed that he could have done this and that he was still working at the time at the hospital as a visiting specialist. He was likely to have been very well regarded by the hospital administration and staff. He worked there in fact until the hospital closed. He agreed there was nothing at all stopping him from doing this. He maintained that he was "extremely naive because he didn't do it" (T 1592). Mr Hall QC suggested to Dr Diamond that he was not then, nor now, "naive" to which Dr Diamond replied "Men can be very naive" (T 1593 line 30). 1365 I must say that I did not find Dr Diamond "naive" in any respect whatsoever. As I have said, he impressed me as an astute, intelligent, resolute professional businessman, very much a man of the world. The likelihood, the reality in fact, is that once the present proceedings had been commenced, there would have been discussions between the two men regarding the problems arising from Dr Hakim's entry in the operation records. It must be recalled that, as at 1987, both Dr Diamond and Dr Hakim were defendants in the proceedings instituted by the plaintiff. As a consequence of these discussions, and probably earlier ones, Dr Hakim had, in my view, then taken the position reflected in the evidence which he gave the Court in April and May 2001. 1366 In fact, Dr Diamond during cross-examination, conceded that he had discussed with Dr Hakim the very topic, together with an number of other important topics, only a few weeks before he gave evidence in the case. He thought they had discussed the position of the foetus and that Dr Hakim had said that he did not know why he wrote "that"; Dr Hakim had told Dr Diamond that he had "assumed there had been a failed forceps, therefore, it was a transverse lie (sic) which is what he assumed" (T 1797 lines 20-25). In fact, Dr Diamond said the topic had been discussed with Dr Hakim "maybe half a dozen times or something like that" presumably on earlier occasions. This was in stark contrast to the evidence given initially by Dr Hakim. He said that, in a discussion before the hearing, Dr Diamond was very adamant "that the two of them should not discuss the case" (T 2149 line 52; and in another reference, he said "Dr Diamond was very particular not to discuss the case with me" T 2155 line 13). Dr Hakim initially gave evidence that he had last discussed the facts and circumstances of the case with Dr Diamond about ten years ago (T 2149). Later, Dr Hakim admitted that he did have recent discussions with Dr Diamond about the cord and Syntocinon. It transpired that discussions had occurred shortly prior to the commencement of the hearing of the case (T 2152). Mr Hall QC threw Dr Hakim "a life raft" by suggesting that perhaps he had "forgotten" about the discussion (T 2154 line 8), a proposition which was gladly accepted. When it was then suggested to him that this was unlikely, he explained that he did not regard the conversation with Dr Diamond as being "a discussion" (T 2154 lines 19-33). He went on to say that it was a "one sided conversation" where Dr Diamond was, in effect, doing the talking and Dr Hakim was simply listening. Accordingly, it was not a "discussion". These inconsistencies and prevarication were most unconvincing. 1367 Subsequently, Dr Hakim said that he had not discussed any other matters, apart from the cord and the Syntocinon, in relation to the events of 5 July 1979 (T 2156 line 1). He agreed that he had discussed the operation record and his entry in it, but that this discussion had happened "about ten years ago". He denied that he had recently discussed the hospital notes with Dr Diamond (T 2158 line 45). 1368 When Dr Hakim returned to conclude his evidence in May 2001 he agreed that he had "probably" said something to Dr Diamond like "I shouldn't have written deep transverse arrest" in the discussion he had with him shortly before the start of the hearing (T 2218 line 53 and T 2220 lines 10-24). He ultimately conceded that he did have such a discussion with Dr Diamond (T 2220 line 50). This was, of course, quite the reverse of his evidence on 30 April 2001. Rejection of Dr Hakim's evidence 1369 In summary, I did not accept Dr Hakim for the following reasons. First, he was in a perfect position to see the baby's head at the moment of delivery. Indeed, he was engaged in helping to push the baby out of the mother's abdomen at the very moment the head came on view. Secondly, it is highly improbable that he would have no recollection of this matter since it was clearly a matter, as he well understood, of great importance to Dr Diamond. Dr Diamond was his partner and friend and the question of the true location of the baby in relation to Dr Diamond's assertion that the head was well down on the perineum and in an occipito-anterior position would have been well known to him as a matter of considerable importance. Thirdly, he said that he did not discuss the "details of the forceps" delivery with Dr Diamond until after he had made his operation record. He also said that Dr Diamond had told him that Kiellands forceps had been used. This is why he assumed a transverse lie. Yet Dr Diamond's versions of the conversations he had with Dr Hakim immediately before and at the operation make no mention of Kiellands forceps at all. Fourthly, I find it most unlikely that an experienced obstetrician, undertaking the important task of completing the operation record, would not correctly record critical factual matters. I do not accept that an experienced obstetrician would record, as the reason for the operation, a matter which he had simply assumed. There is further support for this view in the fact that the entries Dr Hakim made regarding failed forceps and foetal distress were clearly matters that he knew about as facts and regarded as correct. They were not assumptions. Why would he simply make an assumption about the most critical matter of all, particularly when he was in a perfect position to see the position of the baby at the very moment it was taken out of the mother's uterus? Fifthly, there were the significant inconsistencies between the earlier and latter part of his cross-examination which I have set out in detail. They went directly to his credit. Dr Hakim was at great pains to suggest that both he and Dr Diamond were well aware of the impropriety of having discussions on important topics of this kind. It plainly emerged from the later cross-examination that there had been such discussions only a matter of weeks before the hearing commenced. These discussions included the position of the cord and the position of the foetus in the uterus. Dr Hakim's attempt to seize hold of the "life raft" thrown to him by Mr Hall QC and to suggest that there may have simply been a failure of recollection on his part was not at all convincing and did him little credit. Finally, the fact that there were discussions on the very topic between these two friends and partners, not only in the period before the hearing but ten years ago after the proceedings had been commenced, casts a significant doubt on the veracity of Dr Hakim's statement that he wrote "Deep Transverse Arrest" because of an assumption he made or because of a mistake based on that assumption. In my opinion, he wrote "Deep Transverse Arrest" because that is what he observed. 1370 It is my further opinion that Dr Diamond did not seek to set the hospital records right when he read the report written by Dr Hakim because the record corresponded with his own observations at the time of birth. It is also my view that it was not until after the proceedings were commenced that the two men settled on an understanding of the position which Dr Diamond proposed to take in relation to the events of 5 July 1979. This had as its "anchor" the proposition that the baby's head was "low down distending the perineum". The corollary to that understanding was the need to explain away Dr Hakim's entry in the operation record. This could be best done by Dr Hakim maintaining that he simply didn't know where the baby was at the moment of delivery and that he had simply made an assumption about the cause of the failure. Dr Hakim's evidence that he had no recollection of his observations, in the circumstances I have outlined, was improbable, far fetched, and untruthful. Dr Diamond's Credit 1371 In relation to Dr Diamond's credit, I have found him a reliable witness on some matters. The fact is, however, he had, in my opinion, a real "blind spot" for the true cause of his failure in the forceps attempts and the subsequent damage to Calandre. A frank appraisal of his own performance would have led him to have considerable doubts about his own professional competence in relation to his actions on 5 July 1979. While I have some understanding of the reasons which might have led Dr Diamond to a situation where he did not wish to confront this reality, namely that it may have been his lack of professional competence which led to the injury, it is quite clear to me that the story of the baby's head being "in a very low position and on view" was a fiction invented for the purposes of the litigation. Dr Hakim's evidence that the hospital entry was based on an assumption rather than a fact was a clumsy attempt to justify and make more likely the fiction, as both men well knew. 1372 In his written submissions, Mr Brereton SC came to Dr Diamond's defence on the credit issue. One principal basis for his defence was that Dr Diamond had admitted liability. In these circumstances, it was asked why would Dr Diamond have invented a story "to reduce or minimise conflicting evidence"? Why would he be concerned to fabricate evidence to assist a case against the hospital when he had conceded the plaintiff's case against him? 1373 The answer to this is simple: a reading of Dr Diamond's evidence plainly demonstrates, despite his admission of liability, that he has never accepted that his actions on 5 July 1979 were professionally incompetent. The closest he came to it was in the passages I have quoted in full (T 1805, 1806) where he grudgingly conceded that, in retrospect, it seemed that he may have lacked necessary data at the time to be able to base a sound clinical judgment regarding the decision to use the Kiellands forceps. Even in this context, Dr Diamond had insisted that he was not "flying blind" but using "obstetric judgment". Somewhat curiously, in the light of the submission to which I have referred, Mr Brereton SC's final written submissions (which were received after 25 July 2001) have a tendency to "echo" Dr Diamond's insistence, at least in his evidence, that he had not been negligent. Although those submissions state that Dr Diamond's negligence is "an assumed pre-condition" of the cross-claim for contribution, their content in relation to the factual matters, rather suggests (in paras 19-24) that he was not negligent at all. 1374 It needs to be recalled as well that Dr Diamond's admission of liability was not made until the first day of the hearing. The "version" of events which depended upon the position of the baby being very "low down and on view" had been the position taken by Dr Diamond in 1988. It remained the version he gave in evidence. It is not perhaps surprising that his admission of liability did not bring with it any substantial alteration to the version of events he had adhered to for some twelve or thirteen years. It was not, however, a version which the experts, including his own, were able to accept. Finding of facts in relation to the attempts at delivery. 1375 The first finding I have made is that there was an absence of full dilatation during the forceps attempts. There are a number of reasons that lead me to believe that this was, more probably than not, the situation. First, the baby had not delivered by 1.30pm. Secondly, despite the various attempts at forceps delivery, no descent was achieved. Thirdly, it is clear that, if delivery is attempted prior to full dilatation, there can be damage to the cervix and difficulty in delivery (Mr Clements T 160 line 35-55; T 175 lines 45-50; Exhibit 1, Appendix 1 page 2). Fourthly, the anterior lip of Mrs Simpson's cervix was subsequently discovered to have been lost. This was discovered when she went to Dr Fisher. It is most probable that this injury occurred during the forceps delivery. Dr Diamond accepted in his answers to the plaintiff's interrogatories (Exhibit 27 Answer 92.3) and in his evidence (T 1633 lines 23-26) that the maternal cervix may have been damaged during the forceps delivery. Fifthly, it was likely that the damage to the cervix occurred during the application of the Kiellands forceps (Mr Clements T 176 line 40 - T 177 line 15). Sixthly, Dr Diamond's obvious lack of candour in responding to Dr Fisher's letter is an indication that he was conscious that the injury may well have been occasioned during the forceps attempts. Finally, although Dr Diamond maintained that he had "no idea" how the injury had happened to Mrs Simpson's cervix on this occasion (T 1638 line 35), he agreed that an examination of the hospital records would have been likely to have lead him to the same conclusion as that reached by the experts in the case, namely that in all probability Mrs Simpson's cervix was not fully dilated at the time of the first forceps attempts. 1376 Mr Brereton's argument in this regard is that the cervix was fully dilated. The nursing sister's opinion that this was so is a relatively contemporaneous observation made by an experienced midwife following a vaginal examination at 12.40pm or thereabouts. He said that this finding - that Mrs Simpson was fully dilated - is to be given considerable weight since it is the observation of an experienced midwife. He says it would be "incredibly unlikely" that both Dr Diamond and the midwife made a mistake. 1377 It must be said that Mr Brereton SC is having a "bet each way" on Sister Ranclaud's competency in this regard. The whole thrust of the amended cross-claim is that Sister Ranclaud had been monumentally incompetent. While I do not accept that proposition by any means, it is ironic that senior counsel calls in aid the competence of the midwife in support of Dr Diamond. To my mind, it is quite clear that the ultimate responsibility in relation to the assessment of cervical dilatation is that of the obstetrician who attends to perform the delivery. It is the doctor's call. It would not be uncommon that a midwife's assessment might need to be reviewed. Dr Pennington had said (T 3094 line 36) "that, it is the obstetrician's duty to ascertain the dilatation of the cervix for himself". In my view, Dr Diamond failed to assess properly and ascertain whether full dilatation existed both before and during the various attempts at forceps delivery. 1378 The second finding I have made is that the baby was most probably in a position of deep transverse arrest or, if that were not so, possibly in some type of posterior position. It must be said that early in the case there seemed little doubt, once Dr Diamond's description was not accepted, that the baby was likely to have been in a transverse position. Mr Clements had clearly considered that this was most likely because it was a common reason why a baby would not deliver and, secondly, Dr Hakim had recorded the position as such in the hospital record. Dr Diamond's own principal witness, Professor Fisk thought so as well. He had said at paragraph 83 of his report Exhibit 126, that Dr Diamond's description of the head being in the low cavity was implausible and that it was "extremely unlikely" that a competent obstetrician skilled in forceps delivery would fail to deliver a baby with a head in that position. He concurred in that regard with the expert views of Dr Hinde and Mr Clements. At paragraph 87 he said: - "In my opinion it is more probable than not that the forceps delivery failed because of a deep transverse arrest." 1379 At T 1728 lines 20-35 Professor Fisk said that it was possible that, instead of being in a deep transverse arrest, the baby was in an occipito-posterior position. He said that he opted for the deep transverse arrest because that is what appeared in the contemporary records. It is also not insignificant to note that when Professor Fisk gave his evidence in chief on the 19 April 2001, although he gave extensive additional evidence, he did not at that time revise his opinion in relation to the position of the baby's head. In fact, the first suggestion in oral evidence that there might have been a factor which threw doubt on the transverse position came from Dr Diamond himself in his evidence on 23 April 2001 (T 1780; se also T 1800, and 1802). Dr Lyneham raised doubts about the matter during his evidence on 26 April 2001. His evidence was given in circumstances where it had not been possible for Professor Fisk to complete his evidence. Professor Fisk in fact returned to Australia and concluded his evidence on 7 and 8 May 2001. 1380 At T 1945 during his evidence in chief on 26 April 2001, Dr Lyneham was asked about a matter which had not appeared in his reports. He was asked to express an opinion as to the absence of forceps marks on the baby's head when delivered. In particular, he was asked whether or not this would have any bearing on whether the baby had been in a deep transverse arrest position. He thought if the baby's head had been in a transverse position, with that position having been undiagnosed, it would be "extremely likely" that there would be forceps marks on the baby's head. The absence of such marks would be "strong evidence" that this was not the transverse position when the forceps were applied. In cross-examination, Dr Lyneham agreed that he would have given consideration to the question of transverse arrest back in August 1999 but said he hadn't given the matter any particular consideration since his initial assessment of the case. At T 2036 it was put to him that his view was in conflict with that of Professor Fisk, having regard to Professor Fisk's report. He said: - "I think both of us are as one as far as the fact that there was some, likely to be some, on the basis of the information available, some problem with the presentation of the baby. The position of the baby or the presentation position of the baby." (T 2036 lines 10-15). 1381 He went on to say that it was his opinion that an explanation for the difficulty would be more likely to have been the baby having been in a posterior position rather than deep transverse arrest. He said that he and Professor Fisk were "more or less as one" but the absence of forceps marks "persuaded" him it might be more likely to have been a posterior position rather than transverse arrest. 1382 Dr Hinde was also of the opinion that the baby's position was probably that of deep transverse arrest. When the same matter was out to him, namely the absence of scarring or forceps marks, he did concede that, in his view, it was "very unlikely" to have been a deep transverse arrest position. 1383 On the other hand, Mr Clements had given very forceful evidence to support his view that the baby had been in a deep transverse arrest position. He was not cross-examined at all to suggest that the absence of forceps marks might have reduced the strength of his views on the subject. 1384 It seems a clear inference that the absence of forceps marks in relation to the likelihood or otherwise of deep transverse arrest is a matter which was introduced for the first time during the hearing, possibly following upon Dr Diamond's reference to the topic. Although Professor Fisk had not been asked about it in chief or in cross-examination, the topic of the position of the forceps blades was raised in re-examination. During this answer, Professor Fisk said he thought one would normally expect, if reasonable force had been applied, that there would be a mark on the baby's face. 1385 Notwithstanding the doubts which emerged during the hearing regarding the position of the baby's head, I think that it was more probable than not that the baby was in the deep transverse position. First, there is no plausible explanation for the failure to deliver the foetus if it was in a position stated by Dr Diamond, as both Mr Clements and Professor Fisk agreed. As a consequence, the baby's head was neither low down nor in an occipito-anterior position. Secondly, if the head were in the mid cavity and the transverse position when Dr Diamond first encountered it, this would explain the difficulty he encountered. Both Professor Fisk and Mr Clements were in agreement on this point. Fourthly, deep transverse arrest was consistent with the following matters: - (i) Mrs Simpson's failing to deliver spontaneously in a second stage lasting more than one hour after progressing rapidly in the first stage, and, (ii) The midwife's vaginal assessment that the head was positioned at station minus 1cm (and thus was not engaged) at 12.30pm (Professor Fisk paragraph 80 of Exhibit 126). (iii) Dr Hakim's note in the contemporaneous operation record of "deep transverse arrest". Quite correctly, Mr Clements, Dr Hinde and Professor Fisk had placed reliance on the this contemporary record. (iv) My rejection of Dr Hakim's evidence that the entry reflected only an assumption on his part. This means that credence is to be given to his contemporary note. For the same reason, my rejection of Dr Diamond's evidence that he did not observe deep transverse arrest is based, in part, on the likely accuracy of the contemporary note. 1386 Mr Brereton SC has argued that it was unlikely that there had been a deep transverse arrest, undiagnosed before caesarean section. His argument is essentially that it is "inconceivable" that there would not have been forceps marks over the baby's face. 1387 I agree that, although the issue of the absence of marks on the baby's face was introduced into evidence at a late stage, it does raise a genuine question as to the likelihood of the position having been deep transverse arrest. On reflection, I do not consider that sufficient doubt has been raised to dispel the overall body of evidence suggesting that the position was as recorded in the hospital records by Dr Hakim. Clearly, it must be accepted that Dr Hinde's certitude on the point was shaken: he said as much. On the other hand, Professor Fisk and Mr Clements had no doubts about the matter in their respective reports. They are both experienced clinicians and experts at the highest level. In the passage I have mentioned in re-examination, Professor Fisk entertained the possibility that there may have been marks on the baby's face but did not, as I read his evidence, abandon the position he had taken in his report. Mr Clements was not asked about it at all by the cross-examiner. The suggestion that this was a matter introduced haphazardly, as it were, by Dr Diamond and then made more significant by Dr Lyneham's approach in the witness box is one which cannot be discounted. However, it is important to note that Dr Lyneham was not suggesting that Dr Diamond's version was plausible or likely. His alternative view was that the baby may have been in some type of posterior position rather than in the true transverse position. He did not accept it was low down or in the anterior position. 1388 In this latter regard, Mr Brereton's written submissions were ingenious in the extreme. He argued that the "most plausible remaining available explanations" for the failure to deliver included "a persistent occipito posterior presentation, cord entanglement and unrecognised caput and moulding". First, all of the experts agreed that cord entanglement would not have prevented delivery. Secondly, Dr Diamond was clear in his statement (Exhibit 137) his answers to interrogatories and his oral evidence that there was no "caput and moulding". There is no reason to imagine he was wrong about that. Thirdly, if the failure to deliver did include the baby in a posterior presentation, this was totally at variance with Dr Diamond's principal assertions that the baby was in an occipito-anterior position with its head on view distending the perineum. Moreover, the evidence of Dr Van Vliet demonstrated that there had been cephal haematoma on the right side of the baby's head. These markings were observed on 7 July 1979. Dr Van Vliet said (T 888 lines 30-55) that these occur in about four or five out of one hundred deliveries. He said that they are probably more common when forceps are used. He described them as "minor trauma". 1389 These then are my reasons for finding that, more probably than not, the baby was in a position of deep transverse arrest. I have allowed for the possibility, although I place it no higher, that the position may have been posterior if it were not truly one of transverse arrest. In either event, the baby's head was definitely not in the position described by Dr Diamond. The point is made in the defendant's submissions that, if a persistent occipito-posterior presentation were the explanation, then retrospectively the judgment which led Dr Diamond to make the attempts with Kiellands would have been correct. Two points may be made: first, Dr Diamond achieved no descent whatsoever when he applied traction after the Kiellands rotation. This is a significant reason why a posterior presentation remains only a possibility and is not the most probable or likely position. Secondly, I do not consider that Dr Diamond's decision was based on a "judgment". Rather, he was, "flying blind" because he really did not know where the baby's head was when he made the decision to go to Kiellands. It was truly "trial and error" on his part. In my view, the persistent attempts to continue with instrumental delivery in the labour ward where he had no real appreciation of the true position of the baby; where he had no realisation that the cervix was not fully dilated, and where he had no understanding of the reason for the failure to achieve descent were at the core of Dr Diamond's negligence. Did the nursing staff monitor Mrs Simpson between 1240 and 1335? 1390 I had earlier recorded my satisfaction that, despite the fact that there had been no further recordings in the partogram of foetal heart rate after 12.45pm, the nursing staff were attending to Mrs Simpson at the time. It was my view that the absence of specific entries might be regarded as an indication that further foetal heart readings (which I was satisfied would have been carried out although not recorded) were within normal limits. It is necessary to add these brief further comments. First, I am satisfied from Mrs Simpson's evidence that the presence of the nursing staff at the relevant time would have been likely to have been accompanied by foetal heart monitoring. Secondly, both Drs Diamond and McGuinness spoke highly of the standards of the nursing staff at the time. Thirdly, Sister Ranclaud's statement (Exhibit 25) makes it clear that her general practice was to monitor the foetal heart rate at quarter-hourly intervals during the second stage of labour. There is no reason to suppose that this practice was not followed in the present case. Fourthly, I have rejected the suggestion that Sister Ranclaud was diverted from monitoring duties in relation to Mrs Simpson by reason of her attendance upon Patient 314275. Finally, Dr Diamond's statement as to the situation relating to the time period when the first instrumental attempts were made confirmed the normality of the foetal heart rate at that point of time. He agreed that there was no sign of foetal distress at that time. This information confirms the likelihood that foetal heart monitoring carried out by the nursing staff prior to his arrival would have revealed a similar situation. The Fluid Balance Chart 1391 I am quite positively satisfied that the whole of the contents of the Syntocinon bag did not run into Mrs Simpson by 2.15pm on 5 July 1979. I have earlier mentioned my surprise that Professor Fisk did not abandon this theory during his oral evidence, although Dr Lyneham had done so. In my opinion, the evidence of Mrs Simpson completely refuted the possibility that 700mls of Syntocinon infusion had run in by 2.15pm. 1392 Mr Brereton SC did not abandon the proposition. In his written submissions he maintained that a finding could be made that, on its proper interpretation, the fluid balance chart entry demonstrated that the entire infusion had run in. He said that the crucial point suggested by the entries was that "an empty bag was seen". 1393 I find that the most probable interpretation to be given to the fluid balance chart is that the Syntocinon infusion was simply taken down and replaced by the anaesthetist's infusion before the commencement of the caesarean section. The entry means, however, no more than that the bag was discarded, containing whatever amount was left in it at that time. It might be thought that one of the purposes of the fluid balance chart is to observe whether there is a balance between the intake and expulsion of fluids. Where an infusion is given of an oxytocin dose, however, it is quite likely that the bag will be discarded before completion. Delivery of a baby may occur very quickly or it may take a considerable time. In my opinion the entry "completed" meant no more than that the bag was discarded at or about 2.15. The initial reference had been to 1,000mls but this was written over by the number "700". Again, this is no more than a reflection that the first entry had been written by a member of nursing staff who had assumed that the bag contained 1,000mls. The correction was later made to make it accord with the earlier entry made at approximately 9.25am. This entry may have been made even later in the day than 2.15. I do not consider, on the probabilities, that the entry has any great significance for the Syntocinon theory beyond the matter I shall now discuss. 1394 On the assumption that the infusion continued at the rate of 30 dpm from 1200 until approximately 1400 when Mrs Simpson was taken to theatre, Mr Brereton is quite correct in suggesting that this shows an infusion rate of 21mU/m over the four and a half hour period, with the maximal rate of 28.6mU/m between 1030 and 1100. If the infusion rate continued at this level, it has favourable possibilities for the Syntocinon theory. 1395 It is, of course, impossible to say with any real certainty whether the infusion in fact continued up until 2 o'clock. It is equally difficult to say that it continued precisely at 30 dpm. As I have earlier said, I think that it was quite probable that the infusion did continue after midday but it may have been turned off at the time the instrumental delivery was first attempted. Further, I think it highly likely that it was temporarily discontinued during the setting up of the epidural. These two less certain time frames may, quite probably, mean that the overall amount infused was a little less than that which has been suggested by Mr Brereton in his alternative submission. For the purposes of an examination of the Syntocinon argument however, I am prepared to accept that, more probably than not, the infusion rate was somewhere in the order of 21mU/m or perhaps a little less over the entire relevant period. The events following the plaintiff's birth 1396 I accept that Dr Diamond saw Mrs Simpson on a number of occasions while she was in hospital. I do not accept however that he had ever told Mrs Simpson that the baby had been in a position where the head was down low on the perineum during his attempts at instrumental delivery. 1397 I accept that Mrs Simpson saw Dr Diamond on two occasions in his consulting rooms on 17 August and 20 September 1979. During his examinations on these two occasions, it does not appear that he detected that the anterior lip of Mrs Simpson's cervix was missing. At least his notes do not indicate that the injury was detected. I accept that on the second of these occasions, Mrs Simpson had a heated conversation with Dr Diamond in which she demanded to know what had gone wrong at the birth. I accept her evidence (p 123) that the conversation followed the courses he had described. In particular, I accept that she accused Dr Diamond of not knowing what had gone wrong. I accept that Mrs Simpson said to Dr Diamond: "How can you say that? You told me the cord was around her neck". 1398 To which Dr Diamond replied: "That's right". 1399 Finally, I accept that Mrs Simpson went to see Dr Col Fisher and that, following the consultation, the correspondence passed between Dr Fisher and Dr Diamond that I have earlier described. In the course of his letter of reply, Dr Diamond made no mention of the factor upon which he placed considerable reliance during his evidence at this hearing. The only explanation he offered to Dr Fisher was the following: - "The failed forceps appears to be related to a short cord which was tightly wrapped around the baby's body leading to severe foetal distress." 1400 Dr Diamond made no mention in his letter of reply of the principal matter he had been asked about in Dr Fisher's letter, namely the damage to Mrs Simpson's cervix. 1401 In the light of the factual findings made, I turn now to make a final evaluation of the Syntocinon argument. Syntocinon - final evaluation of the argument 1402 I am neither persuaded nor satisfied that hyperstimulation occurred. To the extent that any degree of hyperstimulation may have occurred, I am not satisfied that any damage was occasioned to Calandre or that her foetal reserves were diminished or affected in any way whatsoever. Indeed, I am positively persuaded that there was no abnormality in the .FHR associated with hyperstimulation and that Calandre, as a foetus, did not suffer any depletion of foetal metabolic reserves prior to Dr Diamond's arrival at the hospital. 1403 Further, I find that the plaintiff's injury was caused solely by Dr Diamond's negligent use of forceps. This, coupled with the fact that the instrumental attempts were made in the labour ward, induced an unremitting bradycardia which continued until birth. 1404 I make these findings in relation to the cause of Calandre's catastrophic injury having regard to the admission of liability, the course of the entire evidence, and as a consequence of the application of a commonsense approach to the facts I have found (March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506 at 522, 524; Medlin v State Government Insurance Commission (1995) 182 CLR 1006; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428. I find positively that Syntocinon played no part in Calandre's injury. 1405 I shall now provide my reasons for these conclusions. The impact of a high oxytocin dose 1406 At the outset, I am satisfied that the hospital was in breach of its duty of care in relation to the dosage of Syntocinon that was administered to Mrs Simpson. This was, contrary to the doctor's instructions, at a rate 43% higher than the prescribed rate. The nursing staff were solely responsible for this breach of duty. Dr Diamond had no role in the administration of the excessive concentration. 1407 The immediate consequence of the administration of the excessive dose was that the starting rate was 43% higher than the 10mU/m which was intended. A further consequence of the continuation of the higher dose was that it was received more rapidly than it should have been. It was accepted that both the starting dose and increments are important in the association between aggressive Syntocinon regimes and possible hyperstimulation. The studies referred to in the evidence showed that, for example, a high dose regime with a mean maximal dose of 28.1mU/m was associated, in induction, with a hyperstimulation rate of 61% (Satin Study Exhibit 145). Other studies were to like effect. Although I do not share Dr Lyneham's enthusiasm for his analysis of Mrs Simpson's first labour - the details of which were not addressed to Mrs Simpson in cross-examination - I agree that, in general terms, she was not a candidate for a high dose of Syntocinon. 1408 That said, there are countervailing considerations that need to be kept in mind. First, although the term "overdosage" has been conveniently used from time to time, Syntocinon is not a toxic drug. Secondly, the important focus of a high dose is on its effect on uterine contractions and hence on the baby. Thirdly, there is a considerable variation in the requirement for Syntocinon not only between different women but, in the same woman, between one labour and the next. Fourthly, the technique of Syntocinon administration, in the hands of a skilled midwife, centres on appropriate titration of the dose to achieve and maintain an ideal frequency. Fifthly, whether there be hyperstimulation or not, the task confronting the skilled midwife is to ensure that there is no irregularity in the foetal heart rate. If any abnormality is detected, the oxytocin infusion must be stopped immediately (Exhibit 2 pp 18-19). Sixthly, while the Satin Study demonstrated that in high dose regimes there had been observed a 61% incidence of hyperstimulation, it also showed that a considerable number of patients experienced no hyperstimulation at all. Moreover, none of the babies born of mothers involved in the study suffered any ill-effects. The fact that nearly 39% of the women involved did not experience hyperstimulation is important because the mean maximal dose involved in the relevant part of the study - 28.1mU/m - is, on the more probable situation I have found to exist, likely to have been the upper limit of the increased dosage received by Mrs Simpson. It is also important, however, to bear in mind that arguments based on possibilities, derived from scientific studies yielding percentages, should be approached with caution. There is a need to approach the particular factual situation very carefully to see whether the individual falls within the affected percentage group or outside it. The evidence of hyperstimulation 1409 What then is the basis for the existence of hyperstimulation in this case? In my view the arguments, as originally framed, centred on four essential matters. Three of them were identified in the hospital records. The fourth was a scientific theory called in aid to support the matters in the records. 1410 The first matter, central to the issue, was the Syntocinon dose itself. It appears to have been first "spotted" by Dr Lyneham. Certainly, on the findings I have made it was not noticed, either at the time of the labour or afterwards by Dr Diamond or his partner. The second matter involved the much debated entries on the partogram relating to contraction frequency. These entries were shrouded in ambiguity. They required "interpretation" but the author was now unable to help. 1411 Sister Ranclaud had died many years earlier in 1993. On one possible interpretation, however, the entries pointed to the existence of hyperstimulation, that is, as defined more than five (or perhaps six) contractions in 10 minutes (Mr Clements T 220 lines 15-18 Exhibit 145; Professor Ellwood T 2924 line 35). Indeed, on one favoured interpretation, they were capable of meaning virtually continuous contractions. That is the interpretation given to the entries in Professor Fisk's main report (paras 17 and 112). The third essential matter was the entry in the fluid balance chart. It too was capable of a number of interpretations. One interpretation was that the entire contents of the bag had been infused into Mrs Simpson by 2.15pm. Since the drop rate was known to midday, this meant that a calculation could be made based on this interpretation to show that a positively dangerous quantity had been infused into her between midday and the time of the caesarean section. Again, this was the interpretation favoured by Professor Fisk. 1412 These three matters - all based on expert interpretation - were, especially in combination, the foundation of the Syntocinon argument. When the amended cross-claim was allowed over substantial protest at the commencement of the hearing, these matters were, as the transcript showed, the structural underpinning of the Syntocinon argument. There were many other matters of interpretation as well, but these three were at the core of the argument. As I have explained earlier, the original interpretations required serious revision to take account of the factual evidence given by the living participants especially Mrs Simpson, Dr Diamond and, to a lesser degree, the anaesthetist. 1413 The fourth matter, postulated by Dr Lyneham and taken up with vigour by Professor Fisk, was the proposition that the Syntocinon theory provided a plausible explanation for an outcome that was, according to the medical and scientific literature, unexpected. This proposition, as I have endeavoured to show, became a fiercely contested issue between the experts leading, as it did, to considerable argument about the likely mechanism involved if the injury was found to have been solely caused by the forceps' applications. 1414 Let me deal with each of these in turn. There is little more to be said in relation to the first matter. There was, on my findings, an administration of Syntocinon which was 43% in excess of prescription. It was clearly capable of producing hyperstimulation as defined. The question is: did it? The dose was administered at 20 drops per minute until 10am. It was then increased to 30 dpm until 10.30am. The contraction rate is shown between 10.30 and 11am to have been at the frequency of one contraction every five minutes lasting 20 seconds. At 10.30am the drop rate was increased to 40 dpm and at 11am the entries are made which reflect a marked increase in contraction frequency. They were now occurring either continuously (as Dr Lyneham and professor Fisk argued they were) or they may have been, according to another interpretation, at the rate of one contraction every two minutes lasting for the duration of one minute. If the latter were the situation, this meant there was a full one minute interval before the next contraction came on. Although representing a rapid frequency, this would not have been hyperstimulation. 1415 The nurse lowered the drop rate to 30 dpm at or about 11am and this rate was maintained until 12pm. Again, according to one interpretation of the partogram, the contraction frequency is recorded as dropping to two minutely intervals between contractions at or after midday. There are no entries after 12.30pm either for the drop rate or contraction frequency and duration. 1416 The puzzling and ambiguous features of the partogram entries relating to contraction frequency disappear in the face of Mrs Simpson's evidence and the findings I have made in relation to that evidence. Once it is appreciated that the contractions were a "minute on and a minute off" in the period between 11am and 12pm, the presence of hyperstimulation in that period is negated. Further, the evidence of the plaintiff's experts has persuaded me that it was never a real possibility that Mrs Simpson had experienced continuous contractions during the hour prior to midday. 1417 In his revised written submissions, Mr Brereton advanced a number of reasons why, notwithstanding the evidence to which I have referred, there remained a respectable basis for inferring the presence of hyperstimulation. Part of these submissions reflected the revised approach of Dr Lyneham as expressed in his oral evidence given on 26 April 2001. They reflected as well the matters Professor Fisk mentioned during his evidence. Essentially, Mr Brereton argued that, even if Mrs Simpson's evidence were accepted, the contraction frequency between 11am and 12 midday may well have been right on the borderline of hyperstimulation. A further alternative may have been that the contraction frequency resulted in an interval between contractions of just under 60 seconds - a time interval that a lay person in Mrs Simpson's position would not necessarily have noticed. As to the first, this may have been the position, although the nurse's titration of the dose clearly produced a reduction in frequency after 12 midday. This is not denied, as I have explained, by Mrs Simpson's evidence. As to the second alternative, I reject it as a possibility. There is no evidence to support it and it is contrary to Mrs Simpson's evidence and the force of it. Moreover, I do not think it is unfair to either Dr Lyneham or Professor Fisk to state that the need for their revisions and re-appraisals essentially arose out of the fact that the original building block of the Syntocinon argument had, in the face of Mrs Simpson's evidence, largely crumbled. The real possibility of continuous contractions had been negated by her positive recollection. 1418 The third major structural element related to the entry in the Fluid Balance Chart. It is obvious why this entry appealed to the first defendant's experts. Taken in combination with the other two matters, it proved conclusively and finally that there was likely to have been hyperstimulation. The problem with this third element was that the interpretation suggested was entirely improbable. It meant, on one view, that the nursing staff must have acted in an almost demented fashion, ensuring that the whole contents of the bag went into Mrs Simpson. Not only would she have received 37mU/m over the entire four and a half hours, she would have received a massive dose between noon and 1415. So unlikely was this that Mr Brereton's final suggestion was that this large amount might have been infused by accident. Perhaps it occurred, he argued, from a combination of "drift", knocking of the equipment and patient movement. A further improbable factor was the quite extraordinary coincidence that the bag emptied at the precise moment the baby was born (Mr Clements T 192 lines 15-20). 1419 None of these possibilities, in my view, were at all likely. That anything of this nature could have occurred without the nursing staff, Mrs Simpson, the anaesthetist or Dr Diamond noticing made it even more unlikely. Moreover, Mrs Simpson's level of hyperstimulation, if such a dose had been infused, would have been immediately apparent to the nursing staff and herself. 1420 This high degree of unlikelihood was obviously apparent to Dr Lyneham. Upon reflection, he said during his cross-examination that he no longer stood by this interpretation (T 2022 lines 18-20; T2025 line 20; T 2007 lines 10-45). In effect, he abandoned it, opting for the safer course of arguing that it was more likely that the infusion continued after midday at the same drop rate recorded in the last entry on the partogram. This resulted in the argument becoming a more moderate one, namely that Mrs Simpson had in fact received a total Syntocinon infusion of 400mls over four and a half hours. Such an interpretation enabled Dr Lyneham to maintain an argument that a moderate form of hyperstimulation may have occurred - either tachysystole or hypertonus - since the resultant calculation demonstrated that 21mU/m had been infused over the four and a half hours. It also demonstrated that there had been a maximal rate of 28.6mU/m between 10.30 and 11am, thus invoking the possibility of reaction percentages akin to those shown in the Satin Study. 1421 Surprisingly, the original approach was not abandoned by Professor Fisk. Nor was it abandoned entirely by Mr Brereton, as I have indicated. Senior Counsel's preferred position, however, was that the probabilities favoured a Syntocinon infusion of 400mls. My view is that even this figure may well be too high. I have accepted that the infusion probably continued after midday notwithstanding the cessation of further relevant entries. I have also accepted that the drop rate probably remained the same at 30 dpm. I also thought it quite likely that the infusion was stopped for up to 20 minutes while the epidural was administered. Further, I am quite certain that the infusion did not continued until 1415. I think it also quite likely that the Syntocinon may not have been running during the instrumental delivery attempts. In all, my findings contemplated and allowed for the possibility that 400mls had been infused overall but my strong conviction was that, in all probability, the amount was a little less. This did not obliterate the possibility of hyperstimulation but it rendered it, to a degree, less likely. 1422 It is necessary to add two further observations in the present context, one particular and one general. First, I reject the suggestion that there was any probability that Mrs Simpson experienced hyperstimulation in the form of hypertonus, mild or otherwise. Apart from Dr Lyneham's conjectures on the subject, there is no evidence to support its existence or likelihood. Hypertonus is not generally associated with Syntocinon dosage (Toaff - Exhibit 12). It is, as Professor Fisk said, rare and is not well studied. Its presence is often associated with pain arising from a hard, woody uterus. It is often manifested by an elided pattern of contractions in the form of couplets or triplets. In that form it would have been easily detectable by the nursing staff or obstetrician (T 184 lines 35-55). Professor Fisk, in his report, had rejected the real likelihood of hypertonus. There was oblique mention in the written submissions to Mrs Simpson's reference to "a pulling on one side" (see however, her evidence at T 128 line 55 which suggests this discomfort was part of the contraction, not separate from it). This was a flimsy basis on which to found a submission. It was insufficient in my view to displace the overall satisfaction I have that hyperstimulation in this form did not occur. 1423 The general matter is this: There is an obvious danger in attempting to reconstruct events by way of expert interpretation of hospital records. Although Mr Brereton argued that the hospital records in this case provide a firm skeleton for reconstruction, it is obvious from my findings that, in many respects, they do not. The attempts to interpret the records, by way of a series of extensive expert reports, has been ingenious in the extreme. But the effort has been often wide of the mark. Two of the central elements, as I have explained, were not supported by the evidence of the principal participants. The excessive length of hearing was due, in no small part, to the defendant's need to adapt the core elements of its case to meet the circumstances revealed by the evidence, especially that of Mrs Simpson and Dr Diamond himself. I do not intend these remarks to be critical of the defendant's team: rather they reflect my admiration for the continued ingenuity involved, although I remain unsatisfied and unpersuaded, despite the variations of approach, that there is any real probability that hyperstimulation occurred. Further reasons for rejecting the Syntocinon argument 1424 There are further reasons which support and confirm my belief that there was no hyperstimulation in this case and no depletion of the foetal reserves consequent upon the excessive dose of Syntocinon. These are, first, the conviction that Dr Diamond's negligent acts were plainly sufficient of themselves to have occasioned Calandre's injuries without the need to resort to an additional or contributory cause. This conviction, in turn, is based upon the acceptance of the hospital's argument that there is, notwithstanding the rarity of the situation, an acceptable and well understood mechanism involved in the plaintiff's injury; and the rejection of the first defendant's argument that the injury is inexplicable or unlikely without the existence of a contributory cause. 1425 Secondly, there is my satisfaction with the proposition advanced on the hospital's behalf that, despite the poor record keeping involved, there was adequate monitoring by the nursing staff of the baby's foetal heart and that there was, throughout the entire period, no abnormality detected. This, in turn, persuades me that the nursing staff's acceptance of normality was entirely justified. I am also satisfied that Dr Diamond was entitled to be satisfied, based on his own observations, that the FHR and contraction patterns were normal. These matters provide additional reasons negating the presence of any depletion of the foetal metabolic reserves. There is further support in the expert opinions of Dr Rennie, Dr Hinde and Mr Clements. Although the first defendant's case adverted to a possibility that there may have been present a depletion of foetal reserves but that this may not have been detectable or in fact detected especially between 1240 and 1350, I am not persuaded that this is so. Dr Diamond's negligence 1426 The starting point is Dr Diamond's admission of liability. It must not be overlooked that, although the issues in the cross-claim have made it necessary to identify precisely the negligence involved, the plain fact is that the negligent "manner, timing and circumstances of use of forceps" have been admitted. The next step is to recall the findings made in relation to the manner and use of the forceps in this case and to relate them to the circumstances of the injury. 1427 The essential features were these: first, Dr Diamond misdiagnosed the position of the baby's head. This occurred either as a result of inadequate examinations or inaccurate examinations. Secondly, he made a decision to commence the instrumental delivery in circumstances where he had made a mistaken diagnosis as to the position of the baby's head. Thirdly, he had mistakenly assumed or decided that the maternal cervix was fully dilated when it was not. Fourthly, the decision to go forward with an instrumental delivery was a negligent decision: the circumstances were not appropriate for an instrumental delivery. Fifthly, after the failure with the first Wrigley's application, Dr Diamond should not have persisted with attempts at instrumental delivery. He did not know the true position of the baby's head, a position which, on the probabilities, was that of deep transverse arrest. One thing is clear: the head was not low down distending the perineum as Dr Diamond had claimed in his evidence. Sixthly, Dr Diamond was again negligent when he persisted with his decision to attempt instrumental delivery after the second failure had occurred. He had achieved no descent and he did not know why this was so. Seventhly, his further examination did not reveal his continued misdiagnosis in relation to either the question of the extent of cervical dilitation or the correct position of the baby's head. Eighthly, in the circumstances, Dr Diamond should have then made a decision to go to caesarean before embarking on the Neville Barnes forceps. He applied the traction handle and, on the balance of probabilities, made two pulls with this instrument. The purpose of the traction handle was to enable more force to be applied. Whether it was excessive force or not is not to the point. There is no doubt that significant force would have been applied. Dr Diamond gave the appearance during his evidence that he was a well-built powerful and athletic man. There is no reason to suppose that he would not have been of similar stature and strength in 1979. His description of the force he applied - "sparingly and gently" (T 1817) - was a clear exaggeration. (See Mrs Simpson's evidence (T 136 lines 5-20). 1428 Ninthly, Dr Diamond was negligent in deciding to use and apply the Kiellands forceps after all previous attempts at forceps had failed to produce any descent. This was especially so in circumstances where he did not know why this was so. He was, in effect, "flying blind". Tenthly, Dr Diamond was at fault in not conducting the instrumental attempts in the operating theatre as a trial of forceps. 1429 What then are likely to have been the consequences of the numerous attempts at instrumental delivery with three different sets of instruments culminating in the rotational use of the Kiellands forceps and the application of further traction followed by a re-rotation? The plaintiff has argued that failed forceps is a very serious situation. It bespeaks error and misjudgment. Moreover, the hospital has argued that forceps, when misused, are inherently dangerous. Dr Diamond has taken issue with this concept. The submissions on his behalf address that forceps delivery have been a routine part of obstetrical practice for most of this century. Although it is true that with the advent of safe caesarean section, difficult forceps deliveries have become progressively less popular, it remains the situation that forceps are still often used in modern obstetric practice. Whatever be the position currently, the first defendant points out that the use of Kiellands in 1970 was quite widespread. This is shown, for example, on the St Margaret's Obstetrics Register (Exhibit 142). 1430 The issue however is not whether forceps are dangerous but whether, having regard to the way in which they were negligently used by Dr Diamond in the present situation, they were likely to have caused the type of injury sustained by the plaintiff. The evidence is overwhelmingly against Dr Diamond in this regard. Professor Fisk described the instrumental attempts as an instance of "repeated and prolonged instrumentation" (Exhibit 126, par 118). Mr Clements described it as "an unprecedented catalogue of attempts" (T 214 line 35-40) and Dr Rennie described as "an exceptional sequence" (T 473 line 47). In a further reference, Mr Clements had said that it was "a very unusual experience with five attempts with forceps, with the early forceps apparently being applied to a head which was not rotated". He said that this would explain why the outcome was uncommon and serious (T 1375 L 48 and following). Dr Hinde said that five different attempts at forceps delivery made this "an unusual circumstance" (T 2689 line 10). 1431 As a matter of commonsense, it seems perfectly explicable to me that the use of multiple forceps with a significant number of applications and pulls including rotation, traction and re-rotation was highly likely, in the circumstances, to cause serious injury. True it is that the baby's head was not crushed in the instrumental attempts, yet, as I have explained, significant force was likely to have been used and this occurred over a significant length of time. Moreover, there was force involved in the application, the manipulation and the use of traction after application (T 3012 lines 30-50). The rotation, traction and re-rotation involved significant pressure on the baby. As well, Dr Diamond was pulling between as well as during contractions (T 1818). The critical feature was that the head was in the wrong position and that no descent at all was ever achieved. This was so despite the various applications and the use of traction. The foetal head was relatively small and was, in the nature of things, relatively unformed. 1432 Moreover, the expert evidence shows quite clearly that damage of the kind that occurred was likely to have occurred. The evidence of Dr Rennie was especially important in this regard. She was the only neonatalogist called to give evidence on the cross-claim. Her speciality was in diseases of the newborn with particular expertise on brain injury in new born infants (T 465 line 10). I have, much earlier in these reasons, set out the full detail of her evidence. In short, she said that the application of forceps can cause head compression and/or cord compression resulting in bradycardia from which a foetus may not recover. She said that the plaintiff's cerebral palsy was characteristic of an acute profound hypoxic ischaemic event lasting between 10 and 25 minutes to the mature foetal brain. It was Dr Rennie's opinion that the plaintiff's brain injury was caused by an acute, profound collapse of foetal circulation. Dr Rennie conceded that, in general, removal of the blades of the forceps allowed the bradycardia caused by head compression to recover. She conceded also that babies born after failed forceps are generally not brain damaged. In this case, however, it was her opinion that because of the repeated head compression, the final attempt resulted in a bradycardia which did not recover (T 481 lines 5-15). Finally, Dr Rennie stated that the number of attempts with forceps was unusual in this case. She considered it probable that it was the continued number of attempts that ultimately produced a bradycardia when the Kiellands were used (T 501 line 15). 1433 The course of events in the labour ward and operating theatre on 5 July 1979 supports this interpretation. There emerges the clearest picture that regular foetal heart rate monitoring took place during the attempts at instrumental delivery. There is a considerable body of evidence regarding this in the transcript. In short, it shows that from the very commencement of the instrumental attempts, the nursing staff had been using the Pinnards stethoscope to monitor the heart rate. Dr Diamond himself stated that prior to the first application of forceps there was no evidence of foetal distress (T 1607 lines 14-21). He also confirmed that, following the abandonment of Wrigley's forceps, the foetal heart rate was in the normal range and there was no evidence of foetal distress (T 1607 lines 23-29). Further, Dr Diamond said he was satisfied on the data from all the various types of examination that it was safe to proceed to Neville Barnes forceps after Wrigley's (T 1629 lines 1-5). He was wrong in his diagnosis of the head position but there is no valid suggestion that he was wrong regarding the condition of the foetus. 1434 A circumstance then occurred that was important. The Doppler was applied probably about the time of the second pull with the Neville Barnes although it may have happened a little earlier. It appears that, following the second Neville Barnes application, there was a drop in the foetal heart. But this recovered immediately. This fact is important for two reasons: first, it shows, for the first time, an adverse reaction to the instrumental attempts. Secondly, the recovery of the heart rate almost immediately points very strongly against any suggestion of depletion of foetal reserves. This was the point made with considerable effect by Dr Hinde whose evidence in this regard I found compelling. He had said that if there had been embarrassment of the foetus over the preceding two or three hours as a consequence of hyperstimulation, there would have been a fall in the foetal heart rate as soon as the forceps were used, rather than only after the third or fourth attempt at forceps delivery (T 2694 lines 38-55; see also T 2874 lines 10-15 and 45; T 2875 line 5; T 3037 lines 5-15). This was the "side step" to which Dr Hinde had made reference in his evidence. To my mind it was a compelling observation. If there were this substantial depletion of metabolic reserves within the foetus, why was its displeasure not shown as soon as the instrumental attempts commenced? In my opinion, this was a telling point against the Syntocinon argument. 1435 Mr Brereton responded to these suggestions by arguing that it was "utterly implausible" that the drop in the foetal heart rate observed on the Doppler was in fact the first foetal heart rate abnormality. He said that the probabilities were that there had been "undetected abnormalities" before that time. 1436 The simple answer to this is that there is absolutely no evidence that this was so. In fact, the probabilities are all the other way. Regular monitoring was taking place and the heart beat was being checked in accordance with the usual practice between contractions. Dr Diamond said he saw the nursing staff checking the heart rate. They told him they had been checking and the heart rate was normal (T 1843 lines 5-15). The first abnormality detected was the drop which recovered immediately. The second and more serious abnormality was then heard either during or after the Kiellands attempt when the foetal heart rate fell from 60 to 80 bpm and remained there. This was a true indication that the unremitting bradycardia had at that moment set in. Dr Diamond said this was the first indication of "true foetal distress" (T 1806). It was a bradycardia which, on all the evidence, persisted until after caesarean delivery. This continuing and unremitting bradycardia caused the acute profound hypoxic ischaemic event referred to by Dr Rennie in her evidence. This in turn caused the plaintiff's brain injury which led to her cerebral palsy. In my opinion, the bradycardia was brought about by the negligent use of forceps in the manner I have described. The Mechanism 1437 The first defendant has submitted that the failed forceps are insufficient explanation for the prolonged profound bradycardia which preceded Calandre's birth. It is argued that the failed forceps attempts on their own are insufficient to explain the outcome. This of course was the argument advanced by Professor Fisk, Dr Lyneham and Dr Keogh. 1438 All the experts called in the hospital case - Mr Clements, Dr Rennie, Dr Hinde and Professor Ellwood took the opposite view , although in the case of Professor Ellwood, it was his view as a foetal physiologist that an additional hypoxic element was necessary. He thought, however, that the combination of the forceps attempts and the possibility of cord impingement or occlusion by way of the forceps, provided a satisfactory explanation for the likely mechanism. 1439 Dr Pennington, who had been called to address Dr Diamond's standards of care, conceded that persistence with attempts at forceps could give rise to an unremitting bradycardia (T 3092 line 50 to T 3093; T 3096 lines 25-35). 1440 In relation to the circumstances of this case, I am quite satisfied that the views expressed by the experts called on behalf of the hospital are correct. The views expressed by Mr Clements and Dr Rennie were very compelling. They were views derived from their own experience applied to the very unusual circumstances of the forceps applications and attempts in this case. Mr Clements was branded as an advocate in the first defendant's submissions. I did not find him to be so. I thought his evidence was carefully considered and well-balanced. Moreover, he brought to bear considerable experience and a high degree of intellectual rigour. Although Mr Brereton was critical in a number of respects in relation to the views of Mr Clements and Dr Hinde, a careful consideration of their evidence leads me to the conclusion that their evidence supports entirely the hospital's case. 1441 Dr Hinde, in particular, brought to bear on the issue a lifelong breadth of clinical experience. He conceded that bradycardia of the vagal type was commonly noticed in forceps applications but that generally speaking the bradycardia terminated when the forceps were removed. Usually, he said where the bradycardia continues it will remit after a couple of minutes. It was his clear experience, however, that in some cases the intervention process appeared to have set in train an unremitting bradycardia that was deleterious for the foetus (T 3014 lines 15-20). Again, quite fairly, Dr Hinde conceded that this was a rare situation. In most cases it was his observation that the bradycardia would remit. But in some it did not. He also stated, that there were occasions where, although no signs of external trauma were noticeable on the foetus, the manipulation had induced a quite marked bradycardia and hypoxia in the foetus (T 3014 lines 35-40). 1442 Mr Brereton SC endeavoured to confound Dr Hinde with the literature. Quite fairly, Dr Hinde conceded that other experts had examined the literature and he had no quarrel with their statements in that regard. Notwithstanding this, he repeated that, based on his clinical experience, on rare occasions in circumstances where there had been a failed forceps, he had observed that despite the fact there was no trauma to the foetus the intervention appeared to have set up a persisting bradycardia. Dr Hinde made a further concession that there may have been an unidentified hypoxic element involved but it was his view that "this would not be so in every case" (T 3020 lines 40-50). 1443 I was very much persuaded by the evidence of Dr Hinde. He came to the witness box with impeccable credentials and a long history of clinical experience. Mr Brereton did not seek to brand Dr Hinde as an advocate. Rather, he suggested that his views were outweighed by the evidence of the foetal physiologists. 1444 Professors Fisk and Ellwood were the two foetal physiologists called to address the issue. I prefer Professor Ellwood's views to those expressed by Professor Fisk. Although I gained considerable assistance from Professor Fisk's excellent report, I cannot say the same for his evidence. It was he, of all the expert witnesses, that I would brand as obdurate. A reading of his extensive cross-examination would, I think, convince the reader that he was not prepared to make the most reasonable of concessions even when it was plainly the case that such a concession was called for. 1445 On the other hand, I found Professor Ellwood's approach to be both reasonable and convincing. It is true that he believed it was necessary to find a hypoxic element as well as the presence of vagal bradycardia. To that extent, he differed from Mr Clements and Dr Hinde. As a foetal physiologist, he was no doubt searching for scientific certitude. To the extent that a hypoxic element was necessary, he had no difficulty in accepting that it may well have arisen from the forceps impinging on or occluding the cord. After all,, Dr Diamond's notes had suggested the cord was wrapped around the baby's neck. Dr Diamond's evidence confirmed that the cord was not only around the body but around the neck. It was perfectly possible, indeed quite likely, that, during the instrumental attempts, a hypoxic element was set in force in addition to the bradycardia caused by the forceps applications. 1446 Importantly, Professor Ellwood said he had no difficulty with the proposition that there were two concepts operating at the same time but both related to the forceps use. In fact, he said that there was no way of drawing a distinction between the two mechanisms. I have earlier set out and quoted the relevant transcript extracts. One bears repetition At transcript 2983 he said: - "There is no way of drawing a distinction between the two mechanisms. If you deliver a baby that has a degree of hypoxia and there has been a Kielland's rotation and there has been a prolonged foetal bradycardia it is impossible to draw a line and say this component is vagul, this is hypoxia, there are two at the same time". 1447 Professor Ellwood was attacked on the time frame involved in each of these elements. As he said, it was impossible to treat each mechanism as if it were a separate function. It was the combined operation that brought about the result, in his view. He said that he had seen vagal responses continue for ten minutes after removal of the forceps. This allowed time for the hypoxic mechanism to operate and continue to cause the bradycardia (T 2981, 35-55). 1448 In my opinion, Professor Ellwood and Dr Hinde were really describing the same thing. From the perspective of the foetal physiologist however, there was a need to be satisfied, as I have said, with a degree of scientific certitude. The experienced clinician is not necessarily as concerned with such niceties of precision. He knows what he has seen. Dr Hinde as an experienced obstetrician simply based his observations on his lifelong professional experience. He did not seek scientific certitude he simply knew as a matter of experience that failed forceps were sufficient to explain the mechanism. Dr Rennie had observed the same thing in clinical situations. She said, quite sensibly that the precise mechanism might never be known. 1449 It remains only to mention two further matters on this topic: first, Dr Diamond's use of the forceps in the present circumstances was accurately described as unique and exceptional. It was not necessary, as Mr Clements said, to have a second pathology, when there was "softening up" with four prior forceps attempts (T 278 lines 20-30). Secondly, it is clearly the position that Calandre's situation is not well-represented in the medical and scientific literature. As I have said earlier, this is hardly surprising. "Rare events occur rarely" (T 282 line 21). The important point is that a range of highly qualified medical practitioners recognised that Calandre's plight in the labour ward had been consistent with their own clinical and professional experiences. Conclusion 1450 Calandre was not harmed by Syntocinon. Until the end stage of the instrumental attempts, her heart rate remained within normal limits. There was no tachycardia preceding an onset of bradycardia. At the time the Keillands forceps were employed, there occurred "the first real sign of foetal distress". The recovery of the heart rate following the drop during the Neville Barnes applications reinforced that this was so. 1451 I am satisfied that, had there been any real indication of foetal distress at an earlier point of time, it would have been picked up by Dr Diamond or the nursing staff. To the contrary, the reports were that there was no foetal distress. There is no reason to suppose that the nursing staff were not diligently monitoring the mother and baby. They would have been alert for any sign of distress. There simply was none. 1452 The secondary argument that there may have been a level of foetal distress simply not detectable nor capable of being revealed by manual auscultation has no substance to it. It was of course a possibility but there is simply no evidence that this was so. In fact, all the evidence points the other way - there was no meconium staining, there were high glucose levels and there was no requirement for additional glucose post-natally. These latter matters, admittedly inconclusive in themselves, very clearly indicate, when taken together with the absence of any signs of foetal distress, that it was unlikely that the baby's reserves were depleted in any way prior to the commencement of instrumental delivery. This is further reinforced by the recovery after the brief drop in heart rate during the Neville Barnes attempts. 1453 When there is factored in the negligent use of the forceps, the absence of full dilitation and the misdiagnosed position of the baby's head, the fate of the Syntocinon argument is inevitable. When it is recognised there was in operation a clear and known mechanism for the relevant damage without the need to find an adjutant or contributing cause, the position becomes overwhelming. Miscellaneous matters 1454 There a number of arguments on each side which it has been unnecessary for me to determine. The first defendant had argued that the Syntocinon overdosage greatly increased the risk of hyperstimulation and consequent depletion of the foetal metabolic reserves followed by foetal compromise. It was argued that foetal compromise in fact occurred. Consequently the result was within the scope of the risk which the hospital's negligence created as a result of which the hospital should therefore be taken to be responsible (Chappel v Hart (1998) 195 CLR 232 at 239, 257 and 273-4.) In view of my finding that hyperstimulation did not occur and that there was no foetal compromise as a consequence of the Syntocinon administration, it is unnecessary to consider this argument further. 1455 The hospital argued that Dr Diamond's negligence included a failure to warn and a failure in relation to Dr Diamond's assessment of gestational age. I have fully dealt with the latter at an earlier point in these reasons. As to the former I am quite satisfied that the hospital has failed to make out a case that Dr Diamond failed to warn Mrs Simpson appropriately in relation to the risks of induction. The evidence simply fell short of enabling this aspect of the case to succeed. I should add that it was not part of the case advanced by the plaintiff against Dr Diamond. 1456 Another matter which occupied a considerable portion of the hospital's submissions arose out of a brief reference in Dr Diamond's evidence to his Synotocinon regime. There was a disparity between the regime he described in his evidence and the rate of administration referred to in the partogram. I agree with the first defendant's submissions that this was in the nature of "a red herring". Whether Dr Diamond's usual regime was as he described in his evidence or not - the first defendant argued it was simply a slip on his part - the only relevant matter is the dosage and administration rate set out in the instructions in the partogram. A comparison between these instructions and the regime to which Dr Diamond referred to in his evidence does not, in my opinion, advance the hospital's case one way or the other. 1457 The findings I have made also make it unnecessary to consider the further issues of novus actus intervieniens and apportionment. In view of the fact that I have found against the first defendant in relation to all the allegations made against the hospital, it is undesirable that these matters be considered against an assumed hypothetical background. Orders 1458 I propose, when the matter is finally disposed of, to direct that verdict and judgment be entered for the cross-defendant on the cross-claim. 1459 I will hear the parties on the question of costs and the final form of the orders to be made. I stand the matter over for mention on a date to be agreed between the parties. ********** Last Modified: 11/09/2001 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. 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