Case summary | Hospital appeal in negligent birth claim dismissed

by | Sep 30, 2020 | Health Blog

In this case, the East Metropolitan Health Service had its causation appeal dismissed after it was found that plaintiffs are not required to prove the specific mechanism by which the negligence was the probable cause of harm.

The key issue

This appeal concerned the issue of causation, specifically whether the developmental and cognitive impairments suffered by the Respondent were caused by the negligence of the Appellant.

The background

East Metropolitan Health Service (EMHS) was the legal entity responsible for the medical care provided by the treating doctor at Bentley Hospital where Cooper Ellis (Respondent) was born.

The Respondent was born after a prolonged and difficult birth, where the treating doctor made several unsuccessful attempts to deliver the child via a Kiwi cup extraction. He was born ‘flat’, meaning he was not breathing or moving, having suffered from periods of perinatal asphyxia.

As a result, the Respondent claimed that he suffered significant injuries caused by the negligence of the treating doctor, for which EMHS was vicariously liable. Specifically, it was alleged that he suffered hypoxic ischaemic encephalopathy and a traumatic brain injury resulting in cognitive and developmental impairments (Impairments) because of the birth process.

At first instance, the trial judge found in favour of the Respondent, finding that the treating doctor was negligent in:

  • attempting an instrumental delivery when the foetus was mid-cavity in circumstances where there had been no descent of the foetal head over a period of four hours;
  • not undertaking the instrumental delivery in an operating theatre that was set up for an emergency caesarean; and
  • not abandoning the instrumental vaginal delivery following the third pull on the Kiwi cup.

On appeal, EMHS did not challenge the findings of negligence nor the assessment of damages. However, it challenged the trial judge’s finding that the Respondent’s Impairments were more likely than not a sequela of his birth injuries, for which the practitioner was at fault. EMHS also challenged the costs order made against it on the basis that it was justified in rejecting an offer made to it prior to trial because of the available evidence at the time.

The outcome

Ultimately, both the causation appeal and the costs appeal were dismissed.

Causation appeal

The question on appeal was whether, on the balance of probabilities, the identified negligence was the cause of the Respondent’s Impairments. EMHS took issue with various factual findings of the trial judge and the expression of some findings in terms of probability.

a. Factual findings

On the issue of the Impairments the trial judge held that:

  • The pattern and nature of the Impairments were consistent with having suffered serious damage to the brain of a traumatic nature, as opposed to being of a congenital nature; and
  • There was no evidential basis for other alternatives advanced at trial and EMHS had not satisfied the evidential onus on it to disentangle the alternative causes.

EMHS submitted that the plaintiff was required to prove by expert evidence the mechanism by which a breach or its consequence, caused the damage claimed. It argued that the trial judge should have identified the injury to a particular part of the brain as well as a scientific explanation as to how that injury resulted in the Impairments.

The Court rejected that such a requirement existed:

  • A plaintiff is not required to prove, or a trial judge to find, by reference to expert evidence, the specific mechanism by which one event caused another event;
  • Here, the ultimate finding was one made on the balance of probabilities after recognition of the fact that the Respondent needed to do more than show the Impairments were the caused by the appellant’s fault;
  • The combined force of the factual findings made by the trial judge, sustained the proposition that but for the negligence during the birth, the Respondent would not have suffered the Impairments that eventuated.

b. Probability issues

The Court was of the opinion that the trial judge did not find that the possibility that the breach caused the Impairments was sufficient to establish factual causation:

  • It is not necessary for the judge to find precisely how the negligence was the probable cause of the Impairments, so long as the primary facts supported a reasonable inference that there was such a causal link.

c. Additional points

The Court made the following comments which are of note:

  • Although, there was no express finding that the injury extended beyond the right cerebellar tonsil (and it would have been preferable to do so), it could be legitimately inferred from the trial judge’s reasons that the injuries were more extensive;
  • Although the trial judge should have stated which expert was to be preferred on the interpretation of the MRI scans, a failure to do so was not an appealable error;
  • The trial judge’s reasons revealed an available and permissible path of reasoning and adequately discharged the obligation to disclose the intellectual process that led to the conclusion on causation.

Section 5C(2) Civil Liability Act 2002

EMHS did succeed in arguing that the trial judge erred in interpreting section 5C(2) of the Civil Liability Act 2002, in determining that it is an established principle, that as a matter of common sense, negligence ‘materially contributed’ to and thereby caused harm. The Court said the following:

  • Where fault can and is established as a necessary condition of the occurrence of the harm, s 5C(2) is irrelevant;
  • s 5C(2) is concerned with an ‘appropriate case’ in which by reason of the particular circumstances fault cannot be established as a necessary condition;
  • s 5C(2) is not concerned with a case where the evidence does not establish a factual causation but rather is concerned with a case where there cannot be such evidence because of the nature of the case;
  • s 5C(2) does not apply merely because a plaintiff is only able to prove that fault may have been the cause – a case is not appropriate merely because the plaintiff has failed to discharge the onus under s5C(1)(a).

However, success on this ground did not mean the appeal was allowed.

Costs appeal

Before trial, the Respondent had made an offer of settlement which was rejected by the Appellant. The Respondent subsequently obtained a damages award in excess of this offer at trial. As such, the trial judge ordered that EMHS pay the plaintiff’s costs on a party-party basis until the date of the offer of settlement, after which it was required to pay costs on an indemnity basis.

The Court of Appeal held that the trial judge’s reasons as to costs did not disclose an error, nor was it unreasonable or plainly unjust. Although a party is entitled to run their case on the basis that their paths of reasoning are the only rational ones available, this does not bind the other party nor the judge to those paths of reasoning. In this case the reasoning followed by the trial judge was consistent with how the Respondent ran their case at trial and so the appeal was dismissed.

Implications

The case has determined that plaintiffs are not required to prove the specific mechanism by which the negligence was the probable cause of harm, provided there is sufficient primary facts and evidence, expert or otherwise, to support a causal link between the negligence and the harm.

It also reinforces that where a plaintiff has failed to discharge the onus that the negligence was a necessary condition of the harm, then s 5C(2) of the Civil Liability Act will not come to their assistance. Section 5C(2) is irrelevant where fault is established as a necessary condition of the occurrence of harm.

To read the full decision, click here.

This case note was prepared by Morgan Barnsby and Gemma McGrath.

Gemma McGrath

Gemma McGrath