Mills v Lee & Ors [2007] NSWCA 332

New South Wales Court of Appeal

CITATION: Mills v Lee & Ors [2007] NSWCA 332

HEARING DATE(S): 23 October 2007

JUDGMENT DATE: 26 November 2007

JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; Basten JA at 82

DECISION: Appeal dismissed with costs

CATCHWORDS: NEGLIGENCE – Medical Practitioner – Whether breach of duty and causation - APPEAL AND NEW TRIAL – Interference with judge's finding of fact – Findings based on expert evidence – Whether findings made by judge were open on the evidence at trial

LEGISLATION CITED: N/A

CASES CITED: N/A

Joshua Adam Mills by his tutor Leslie Mills PARTIES: Effie Marjorie Lee and Philip George Lee Executors of the estate of the late Eric Bruce Lee Dr P T Frost Hospital Corporation Australia Pty Ltd t/as The Hills Private Hospital

FILE NUMBER(S): CA 40701/06

COUNSEL: A: R S McIlwaine SC / M Eagle R: A J Sullivan QC / J Downing

SOLICITORS: A: Velleley & Associates, Sydney R: Paul Tsaousidis, Sydney

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20176/02

LOWER COURT JUDICIAL OFFICER: Hislop J

LOWER COURT DATE OF DECISION: 6 October 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Mills v Lee & Ors [2006] NSWSC 1031

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40701/06 SC 20176/02

IPP JA TOBIAS JA BASTEN JA

Monday 26 November 2007 JOSHUA ADAM MILLS BY HIS TUTOR LESLIE MILLS v EFFIE MARJORIE LEE & PHILIP GEORGE LEE, EXECUTORS OF THE ESTATE OF THE LATE ERIC BRUCE LEE & ORS Judgment 1 IPP JA: I agree with Tobias JA. 2 TOBIAS JA: On the evening of 21 July 1983 the appellant was delivered by lower segment caesarean section at Westmead Hospital (Westmead) by Professor Trudinger. He was intubated and transferred to the Neonatal Intensive Care Unit where he developed respiratory distress syndrome which progressed to bronchopulmonary dysplasia (BPD) and periventricular leukoencephalopathy (PVLE). The latter involved damage to the periventricular white matter resulting in cerebral palsy with spastic quadriplegia and severe intellectual impairment. 3 The appellant's mother, KM, was admitted to Westmead at approximately 11am on the day of his birth having been transferred from Baulkham Hills Private Hospital (the Hospital) where she had been last admitted on 24 June 1983 suffering episodes of intermittent vaginal bleeding. She remained in the hospital initially under the care of the second respondent, Dr Frost and, after 8 July 1983, under the late Dr Lee. Both doctors were general practitioners but for many years had conducted practices confined to obstetrics and gynaecology. Each was a recognised specialist in those areas of medicine. It was common ground that each of them owed a duty of care to KM and the appellant, which was that of a specialist obstetrician and gynaecologist. 4 In 2002 the appellant instituted proceedings in the Supreme Court against the Estate of Dr Lee (he having died prior to the commencement of proceedings), Dr Frost and the Hospital alleging negligence in the failure of each of them to properly treat KM prior to her transfer to Westmead and Dr Lee's failure to transfer her prior to 21 July 1983. 5 The statement of claim (the Sixth Further Amended Statement of Claim dated 30 November 2005) alleged numerous particulars of negligence against all three respondents, not all of which have been pursued on the appeal. 6 The proceedings were heard by Hislop J over a period of some 20 days in November and December 2005. On 6 October 2006 his Honour delivered judgment in which he found in favour of the respondents and entered a verdict and judgment in their favour. The appellant appealed to this Court from his Honour's decision but conceded during the course of the hearing that he could not succeed against Dr Frost or the Hospital and that the appeal should be dismissed with respect to those respondents. Furthermore, a number of the appeal grounds directed to Dr Lee were ultimately abandoned. 7 At the end of the day the appellant's case was confined to the allegation that Dr Lee breached his duty of care to the appellant by failing at approximately 11pm on 20 July 1983 and/or at approximately 8am on 21 July 1983 to administer the broad spectrum antibiotic, Ampicillin, prophylactically to KM at which time she was allegedly exhibiting signs of intrauterine infection with the potential to develop into chorioamnionitis. At the very least, so it was alleged, had such antibiotics been administered in a timely fashion KM would not have developed, as she did, chorioamnionitis which was accepted as the primary trigger which led to the development by the appellant of respiratory distress syndrome.