Supreme Court

New South Wales

Case Name: Coffey v Murrumbidgee Local Health District formerly

known as Greater Murray Area Health Service

Medium Neutral Citation: [2019] NSWSC 1265

Hearing Date(s): 5-9, 12-15, 20-22, 26, 28 and 29 November 2018.

Written submissions in 2019.

Date of Orders: 27 September 2019

Decision Date: 27 September 2019

Jurisdiction: Common Law

Before: Harrison J

Decision: Judgment for the defendant.

Catchwords: TORTS – negligence – where plaintiff alleges hospital

was negligent by failing to transfer her to appropriate
hospital for birth of son – where plaintiff alleges hospital
failed appropriately to care for son after his birth –
where plaintiff sues for nervous shock – whether
hospital acted in a manner that was widely accepted by
peer professional opinion as competent professional
practice – standard of care met by hospital

LIMITATION OF ACTIONS – torts – where statement of

claim filed 7 years and 2 months after events giving rise
to cause of action – whether cause of action was
undiscoverable until later date – whether plaintiff under
a disability such that limitation period suspended –
cause of action not maintainable

Legislation Cited: Civil Liability Act 2005 (NSW), ss 43A, 5B, 5O

Limitation Act 1969 (NSW), ss 50C, 50D, 50F

Cases Cited: Baker-Morrison v State of New South Wales (2009) 74

NSWLR 454; [2009] NSWCA 35
 Dobler v Halverson (2007) 70 NSWLR 151; [2007]
NSWCA 335
Frizelle v Bauer [2009] NSWCA 239
Guthrie v Spence (2009) 78 NSWLR 225; [2009]
NSWCA 369
Kotulski v Attard [1981] 1 NSWLR 115
New South Wales v Harlum [2007] NSWCA 120
South West Sydney Local Health District v Gould
(2018) 97 NSWLR 513; [2018] NSWCA 69
Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA
29
Sydney South West Area Health Service v MD (2009)
260 ALR 702; [2009] NSWCA 343

Category: Principal judgment

Parties: James Phillip Coffey by his tutor Kathleen Amanda

Coffey (Plaintiff)
Kathleen Amanda Coffey (Plaintiff)
Murrumbidgee Local Health District formerly known as
Greater Murray Area Health Service (Defendant)

Representation: Counsel:
A Bartley SC with R Ingram and JA Hillier (Plaintiffs)
R Cheney SC with J Downing and N Bentley
(Defendant)

Solicitors:
Commins Hendriks Pty Ltd (Plaintiffs)
Curwoods Legal Services Pty Ltd (Defendant)

File Number(s): 2011/108788; 2011/110448

Publication Restriction: Nil

JUDGMENT
1 HIS HONOUR: James Coffey was born at the Wagga Wagga Base Hospital
on 19 January 2004. At that time his mother, Kathleen Coffey, had been
pregnant for only 27 weeks and 2 days. His extreme prematurity would have
compromised his prospects of a satisfactory perinatal outcome in any
circumstances. It is contended in these proceedings, however, that those
prospects were significantly diminished even further by the hospital’s failings in
a number of different respects. In short, but by no means comprehensively, the
 plaintiff says that from approximately 6am on 5 January 2004, when Ms Coffey
was admitted to the hospital, it should have been apparent that his mother was
likely to deliver before 32 weeks and that she should have been referred to a
tertiary facility for management well in advance of her confinement and his
delivery. Principal among the allegations of negligence is that the Wagga
Wagga Base Hospital was at that time not accredited to deliver a baby of less
than 32 weeks gestation or to manage a neonate of less than 34 weeks
gestation. The plaintiff maintains that such limitations emphatically informed
what should have been done in the circumstances and that the hospital’s
disregard for these imperatives caused him loss and damage. These and other
allegations are examined in detail in what follows.

2 Kathleen Coffey also sues the hospital for damages for nervous shock arising
out of her reaction to the circumstances surrounding James’ birth and
subsequent events.

Background
3 James Coffey was born severely prematurely. He was unwell when delivered
and remains so. Determination of the cause or causes of his condition at birth
and what continues to afflict him is central to the disposition of these
proceedings. One of the significant questions that arise is whether or not
James Coffey’s outcome would have been different or his chronically
depreciated condition lessened or avoided if the defendant had transferred his
mother to the Canberra Hospital at a time before his delivery when it was safe
to do so. It is in that context, therefore, timely to record at some length the
details of his condition at birth.

4 The following matters, largely taken from the Joint Statement of Assumptions
provided to the various conclaves of experts, are not controversial.

5 Kathleen Coffey was born in March 1974.

6 Ms Coffey's first child was delivered in February 1997 by elective caesarean

section at approximately 26 weeks gestation because of severe pre-eclampsia.
Her second child was born by spontaneous vaginal delivery in August 1998 at
approximately 36 weeks gestation. Her third child was born by emergency
 caesarean section in July 2001 at approximately 32 weeks and 3 days
gestation after a spontaneous rupture of membranes.

7 The plaintiff James Coffey was born at the Wagga Wagga Base Hospital on 19
January 2004. Ms Coffey's pregnancy with James was classified by the
hospital as “high-risk”.

8 As at January 2004, the hospital had a Level 5 maternity service but did not
have a Neonatal Intensive Care Unit. However, at the same time, the Canberra
Hospital was a tertiary hospital and had such a unit.

9 In June 2003, Ms Coffey informed her general practitioner Dr Harvey-Smith

that she was considering another pregnancy. Dr Harvey-Smith referred her to
Dr Ian Stewart, an obstetrician and gynaecologist at the hospital. At this time,
Ms Coffey also remained under the care of Dr Ian Smee, a consultant
physician and cardiologist. Dr Smee advised Ms Coffey of his concern that in
light of her previous pulmonary embolism, she may need to take anti-
thrombotic therapy during any pregnancy, with possible side effects (some
serious) for her and her baby.

10 Ms Coffey discovered that she was pregnant in about late July 2003 after she
did a home pregnancy test. She attended the antenatal clinic at the hospital for
her first booking visit on 18 August 2003. She indicated that she was not sure
how pregnant she was as she had not had a period since February 2003.
Arrangements were made for her to undergo a dating ultrasound in two weeks.
Her blood pressure was taken at 150/80 and a full blood count was performed.
Dr Mohamed Abdeen contacted Dr Smee, who advised that anti-coagulants
would not be required unless Ms Coffey developed pulmonary embolism,
provided there were no abnormalities on her thrombophilia screening.

11 Ms Coffey then attended the antenatal clinic at the hospital on 21 August 2003,
at which time she reported some spotting three days earlier. On 4 September
2003, Ms Coffey attended the antenatal clinic again and underwent a dating
ultrasound, which demonstrated a single pregnancy with measurements
consistent with a gestation period of 7 weeks and 5 days. The estimated date
of confinement was calculated to be 17 April 2004.
12 On 10 September 2003, Ms Coffey returned to the antenatal clinic, which was
at 8 weeks and 6 days gestation. Her weight was 108.6kg and her blood
pressure was 140/80. She was considered to be obese. Dr Smee reviewed Ms
Coffey on 4 November 2003 for treatment and advice for pregnancy related
hypertension. He referred her to the hospital on 4 November 2003 where she
was admitted for observation and review of her medications. Dr Abdeen
reviewed Ms Coffey on 4 November 2003.

13 Ms Coffey was discharged on 6 November 2003. She was then taking

Labetalol 200mg and Aldomet 500mg each three times daily. The plan on
discharge was for her blood pressure to be monitored whilst she was at home.

14 Ms Coffey re-attended the antenatal clinic on 12 November 2003 for a routine

antenatal visit at 17 weeks and 4 days gestation. Her weight was 112.2kg, her
blood pressure was 110/60 and urinalysis showed no abnormalities. Ms
Coffey’s blood pressure medication was the same but she was prescribed
Cartia 100mg daily as well.

15 The attending doctor in the antenatal clinic discussed Ms Coffey's management

with Dr Smee who agreed to reduce her Aldomet to 250mg three times daily. A
renal ultrasound was performed the same day and reported to show no
evidence of renal artery stenosis.

16 Ms Coffey attended the antenatal clinic on 19 November 2003 for a routine visit
at 18 weeks and 4 days gestation. Her weight was 113.3kg, her blood pressure
was 120/60 and urinalysis showed no abnormality. Fundal height was 19cm
and foetal heart sounds were heard.

17 Ms Coffey underwent a routine morphology ultrasound scan on 25 November

2003 that demonstrated a single pregnancy and measurements consistent with
19 weeks gestation (estimated date of confinement 20 April 2004 plus or minus
12 days). Because of Ms Coffey's maternal body habitus, morphology
assessment was generally difficult but no gross foetal abnormality was
demonstrated. The placenta was fundal in position, there was a three vessel
cord and the cervix was noted to have a normal appearance.
18 On 3 December 2003, Ms Coffey attended the antenatal clinic for her next
routine visit at 20 weeks gestation. Her weight was 114kg, her blood pressure
was 130/70 and urinalysis showed a trace of glucose. The fundal height was
consistent with the dates and foetal heart sounds were heard.

19 Two weeks later Ms Coffey attended the antenatal clinic for a routine visit at 22
weeks and 4 days gestation. Her weight was 112.9kg, blood pressure was
125/65 and urinalysis demonstrated traces of protein, glucose and urate. The
fundal height was 24cm and foetal heart sounds were heard.

20 In the 24 hours prior to 4 January 2004, Ms Coffey had been experiencing

contractions (recorded in the notes as "contraction-like pains"), initially 20
minutes apart and then every 10 minutes, lasting 30 seconds. At approximately
1825 hours on that day, Ms Coffey telephoned the hospital and reported
contraction-like pains since the previous day. She was advised to proceed to
the hospital as soon as possible.

21 Ms Coffey arrived at the hospital at 1930 hours and was admitted under the
care of Dr John Currie with a provisional diagnosis of threatened premature
labour. The initial midwifery entry at 2000 hours notes that she was estimated
to be at 25 weeks and 2 days gestation and reported experiencing contraction-
like pains for the past 24 hours, initially 20 minutes apart, but then
approximately 10 minutes apart, lasting 30 seconds. The midwives began an
unestablished labour progress chart recording her observations and the
contraction pattern. That chart was maintained during the 4–10 January 2004
admission. CTG monitoring was also commenced. The contractions were
recorded in both the Unestablished Labour Progress Chart and in the notes.

22 Ms Coffey stated when admitted that she was taking Aldomet (250mg twice
daily) and Labetalol (200mg twice daily). At 1930 hours, Dr Currie was
contacted by telephone by the attending midwife. He requested a vaginal
examination, which the midwife carried out. Ms Coffey's cervix was found to be
thick, posterior and multi os, with the presenting part not felt. Dr Currie gave a
phone order for Celestone 11.4mg IMI stat, with a repeat in 12 hours and
Adalat 20mg oral stat, to be repeated in 30 minutes and again in a further 30
minutes if she was still contracting.
23 The Progress Chart entry as at 2000 hours is in the following terms:

"29 y.o GP3 presents to Wd 4 @ 25+2/40 gestation c/o contraction-like pains

past 24 hrs, initially 20 minutely, now approx. 10/60 lasting 30 seconds.
O/A t. 37.3 P.88 BP 155/85 FHN 140
U/A: SG 1025 PH5 Trace leuk's Protein +(30)
History of essential HT, Severe PE.
1997: LUSCS @ 26/40, Severe PE.
1998: NVD @ 35+/40
2001: LUSCS @ 32+/40–SROM
Currently on Aldomet 250 mg labetol 200g BD
Dr Currie contacted @ 1930 hr re admission requested VE CX thick, posterior,
multi os. PP not felt. Phone order for celestone 11.4 mg im stat (rpt 12 hrs) +
Adalat 20 mg ? stat. (rpt in 30 mins + again in further 30 mins if still
contracting) CTG in program FHN 140 -150. Pt reports 1 x contraction felt in
the last 25 minutes since arrival - not showing up on the CTG.
First dose celestone given @ 1940hrs
First dose Adalat given @ 1940 hrs."
24 The two Celestone injections were given by Dr Bunting at 1940 hours on 4
January 2004 and 0840 hours on 5 January 2004 in accordance with the
phone order by Dr Currie. The Adalat was first administered, again by Dr
Bunting on the phone order of Dr Currie, at 1940 hours and then again at 2010
and 2040 hours. It was then continued 4 times daily during the 4–10 January
2004 admission. The CTG was discontinued at 2115 hours. The Progress
Chart entry at 2120 hours is in the following terms:

"Pt given 3 x doses Adalat 20 mg ? crushed @1940 hrs, 2010hrs, 2040 hrs.
Contractions irregular; only 1 x in past 45 minutes. Vital signs stable: T: 36 P:
90 BP: 140/78@2100hrs FHN 140-150. CTG discontinued c 2115 hrs. T.F 5
WD 4 ATON to settle for night. Pt aware to notify staff if contractions recur
o'night."
25 The Progress Chart entry at 0200 hours on 5 January 2004 is in the following
terms:

"0200 N/R. Has had one contraction/tightening at 0130 since 2130 last
evening. Nifedipine 20 mg (crushed x SL) attended as per Dr Curry (sic) phone
order of QID 20 mg Nifedipine as per contraction observation. Kathleen resting
on bed."
26 During the morning of 5 January 2004, Ms Coffey was reviewed by Dr Bunting
and Dr Follett, and later by Drs Bunting, Follett and Currie. Ms Coffey told them
 that she had had no abdominal pains since 0130 hours. Arrangements were
made for TEDS stockings and for Ms Coffey to mobilise gently.

27 At 1430 hours, Ms Coffey reported that she had not experienced any
tightenings that day and had had no PV loss. At 2000 hours, she reported no
contractions or tightenings.

28 On 6 January 2004 at 0635 hours, Ms Coffey reported no contractions or

tightenings. She was reviewed by Dr Bunting and Dr Follett during the morning
and reported having recently experienced her first contraction since the
previous day. The Progress Chart entry is as follows:

"Thanks to the lovely Emma!

Feels Well
First Contraction this am since yesterday
Nil PV loss
BP 120/70
P, Continue to observe".
29 At 1100 hours, Ms Coffey reported that she had experienced no further
contractions since the earlier review by Drs Bunting and Follett. At 2130 hours,
she reported having had one tightening which was non-painful and nil PV loss.

30 On 7 January 2004 at 0700 hours, Ms Coffey reported that she had had no
tightenings overnight. Later that morning she was reviewed by Drs Bunting and
Follett and reported having experienced two to three contraction-like pains in
the previous 24 hours but no PV loss. The doctors noted that observations
were to continue and that she was to undergo a glucose challenge test the
following week. The Progress Chart is as follows:

"S/B Bunting/Follet
Thanks to social work + OT
Feels well
2-3 contraction like pains in past 24 hours
Nil PV loss.
BP 115/85
P, Continue to observe.
For GCT next week - Wed 08.30 am (fast for 2 hr prior)".
31 At 1330 hours, Ms Coffey reported one contraction during the day shift.
Urinalysis showed the presence of leucocytes and accordingly a mid-stream
urine sample was collected and sent to pathology. At 2230 hours, Ms Coffey
reported occasional tightenings. Adalat was continued.

32 At 0515 hours on 8 January 2004, Ms Coffey reported no tightenings. She was

reviewed later in the morning by Dr Follett, who took a history that the last
contraction-like pain in the lower abdomen occurred the previous evening at
approximately 2030 hours, lasting 10 to 15 seconds. Ms Coffey described no
pains since. At 1400 hours, she reported two tightenings lasting 20 seconds
that were five minutes apart.

33 Later on the afternoon of 8 January 2004, Dr Bunting received and reviewed

the urine culture report from the mid-stream urine taken the previous day. This
showed a large number of leucocytes greater than 100 white cells. He also
noted that proteus mirabilis had been cultured. Dr Bunting formed the view that
Ms Coffey likely had a urinary tract infection, which may have been causing
uterine irritability such as uterine tightenings. He recorded that his plan was to
commence antibiotics and to repeat the mid-stream urine in a few days. The
first dose of antibiotics was given to Ms Coffey at 2000 hours. She was
continued on it, twice daily, through to her discharge on 10 January 2004.

34 At 2255 hours, the attending midwife noted that Ms Coffey had a low grade
temperature of 37.7°C. She also noted that she had experienced an unsettled
afternoon and with uterine tightenings 2–8 minutes apart, lasting 20 to 30
seconds and occurring irregularly. The contractions were stated to have been
reported to the Obstetric and Gynaecologist team at 1630 hours.

35 During the morning of 9 January 2004, Dr Follett reviewed Ms Coffey, who

reported having experienced one mild contraction that morning, but no PV loss.
He noted that a speculum examination and foetal fibronectin test were to be
done later that day. At 2150 hours, Ms Coffey reported no uterine tightenings
or contractions.

36 At 0510 hours on 10 January 2004, Ms Coffey reported no uterine tightenings.

Later that morning, she was reviewed by Dr Bunting, who noted that there had
been no contractions and that she was afebrile. Dr Bunting performed a
 speculum examination of the cervix, which he recorded as showing that the
cervix was multi os/closed, long and very posterior. Dr Bunting further recorded
that the foetal fibronectin test result was negative.

37 Dr Bunting recorded the management plan for Ms Coffey, which included

ceasing Labetalol, continuing Aldomet and Adalat, and discharging her that
day, but returning her to the antenatal clinic on 14 January 2004, or earlier if
she was concerned. She was to continue to rest. Further, Dr Bunting provided
Ms Coffey with scripts for Adalat, Amoxycillin and Clavulanic Acid.

38 Dr Bunting told Ms Coffey that she was okay to be discharged on 10 January

2004, but that she needed to come back to the antenatal clinic on 14 January
2004. He also told her that she should return to the hospital at any time if she
was concerned, if she had abdominal pain or what felt like contractions, if she
experienced any vaginal loss or bleeding or even if she had more general fever
or flu-like symptoms. Dr Bunting told her that she would need to continue
taking the Aldomet and Adalat as well as the antibiotics and to complete the
course.

39 Ms Coffey was discharged from the hospital at approximately 1235 hours by Dr

Bunting.

40 As at January 2004, the defendant was required to adhere to the terms of

Policy Directives, Circulars and Protocols issued by the Department of Health
NSW. In particular, these included Circular 2002/49 dated 23 April 2002 -
Protocol for Administration of Tocolytic Agents (Intravenous Salbutamol or Oral
Nifedipine) for Treatment of Premature Labour and Circular 99/71 dated 1
September 1999 - Policy for Emergency Obstetric and Neonatal Referrals.

41 Circular 2002/49 is a protocol providing for the administration of Adalat and

Celestone. The purpose for the administration of Adalat in a high risk
pregnancy was to supress contractions. The administration of Celestone was
to promote lung development in the unborn foetus.

42 Ms Coffey attended the antenatal clinic at the hospital on 14 January 2004, and
was seen by Dr Bunting. A dip stick urine test was done, which indicated no
abnormality. Her blood pressure was 125/60 and mild hand oedema was
 noted. Her gestational age was noted to be 26 weeks and 4 days and her
fundal height was recorded at 30cm. There was a cephalic presentation and
the foetal heart rate was noted at 140 beats per minute.

43 Dr Bunting recorded that Ms Coffey was well. On questioning, she described

having experienced very occasional tightenings since her discharge. Dr
Bunting organised for blood to be taken for a glucose challenge test and full
blood count.

44 Dr Bunting asked Ms Coffey to return to the clinic for further review in two
weeks. He also told her that if she had any concerns, she could come into the
hospital at any time.

45 At 0630 hours on 19 January 2004, Ms Coffey presented to the hospital with a

history of mild tightenings every ten minutes since 0530 hours, increasing to
contractions four minutes apart and increasing in duration and strength. On
arrival, the attending midwife had difficulty palpating the contractions, but they
were assessed as being 3 to 5 minutes apart and lasting approximately 40
seconds. Ms Coffey had no PV loss, no increase in vaginal mucus and had no
urinary frequency or stinging. She stated that she was taking the Adalat,
Aldomet and Cartia as usual.

46 A CTG trace was begun and it was interpreted to demonstrate a satisfactory

foetal heart rate, though the tocograph was unable to pick up contractions. Dr
Stewart was informed of Ms Coffey’s admission and organised to come in to
review her.

47 Abdominal examination by the midwife demonstrated a longitudinal lie and

cephalic presentation, with the presenting part not engaged. Ms Coffey's
temperature was 37.4°C, her pulse rate was 140 beats per minute and her
blood pressure was 140/80. Urinalysis showed a trace of protein.

48 On speculum examination, she was found to be fully dilated with the head on
view at 0800 hours. Ms Coffey gave birth to James at 0810 hours. The
placenta was expelled at 0814 hours. James was delivered by Dr Stewart at 28
weeks and 3 days gestation, assisted by two registered midwives as
attendants. His APGAR scores were 5 at 1 minute, 5 at 5 minutes and 7 at 10
 minutes. His birth weight was 1110gm, his length was 36.5cm and his head
circumference was 24.8cm.

49 Dr Preddy, a paediatrician, was called. Both the time when this occurred and
the time when he arrived are in dispute. Dr Preddy intubated James at 0837
hours, 27 minutes after delivery.

50 At delivery, James was ventilated via bag and mask and transferred to the
special care nursery. He required cardiac massage for one minute (from 0815
hours to 0816 hours) with bag and mask ventilation then continuing with
satisfactory respiratory status in terms of his heart rate and oxygen saturation
level. The attending midwives recorded the oxygen saturation levels at 0815
hours, 0816 hours, 0817 hours and 0818 hours. At 0825 hours, the oxygen
saturation level was noted to be 96%. At 0837 hours, when James was
intubated, the oxygen saturation level was noted at 96-97%.

51 By 0845 hours, James was being mechanically ventilated, with a respiratory

rate of 50 breaths per minute, and oxygen requirement (FiO2) of 70% and I:E
of 1:1.6, an oxygen saturation level of 98% and a heart rate of 154 beats per
minute.

52 The Newborn and paediatric Emergency Transport Service (NETS) was called
to attend at 0922 hours. The precise arrival time is unclear, but the NETS team
was on site and administered surfactant at 1140 hours, by which time the
oxygen requirement had fallen to 35%. James was sedated with morphine and
midazolam for transport and an umbilical arterial line was inserted.

53 A blood gas taken 30 minutes after ventilation began, showed a pH of 7.43, a

pO2 of 63.8, a pCO2 of 34.4 and a BE of -1.2.

54 James’ chest x-ray showed a ground-glass appearance, consistent with

respiratory distress syndrome of prematurity. He was discharged from the
hospital at 1610 hours and arrived at the Canberra Hospital at 1625 hours
pursuant to a transfer via the NETS team.

55 On arrival at the Canberra Hospital, at age 8 hours, James was being

ventilated with pressures of 23/5 and rate of 50 in 40% oxygen. He was given a
 second dose of surfactant at 1900 hours. He was also given prophylactic
indomethacin to reduce the risk of intraventricular haemorrhage.

56 James was cared for in the Neonatal Intensive Care Unit. Over the first 48
hours there, James' ventilation was slowly weaned. His maximal peak airway
pressure was 28 cm H2O. His arterial blood gases and blood pressures were
regarded as acceptable during the period. His maximal inspired oxygen
concentration was 70%. James was extubated at 1100 hours on 21 January
2004 and subsequently remained on CPAP.

57 On 24 January 2004, James developed an increasing oxygen requirement. His

chest x-ray showed a collapse of the left lung, with blood tests being
suggestive of sepsis. Proteus mirabilis was grown on a nasopharyngeal
aspirate. James was treated with gentamicin, vancomycin and cefotaxime.

58 At 0045 hours on 25 January 2004, James was noted to be having increasing

apnoeas and bradycardias. A pCO2 of 120 was noted on a blood gas. He was
then re-intubated and again ventilated and underwent insertion of a right radial
arterial line. Because of hypotension with mean blood pressures of 22–23
mmHg, he was commenced on dopamine. His hypotension was attributed to
poor myocardial function associated with extreme prematurity, hyaline
membrane disease and cardiorespiratory depression at birth. James was again
extubated on 28 January 2004.

59 During this admission to the Canberra Hospital, James was diagnosed with
patent ductus arteriosus. He was treated with therapeutic Indomethacin via a
single course. He also suffered jaundice and was treated with phototherapy.
His maximum plasma bilirubin level was 135mmol/L.

60 James also suffered anaemia of prematurity during the Canberra Hospital

admission and was transfused twice.

61 James underwent a cranial ultrasound on 22 January 2004. Repeat

ultrasounds were done on 27 January 2004, 29 January 2004, 5 February
2004, 12 February 2004, 19 February 2004 and 4 March 2004.

62 During the Canberra Hospital admission, retinal examination revealed that

James had incomplete retinal vascularisation in both eyes. He was also
 diagnosed with a staph aureus MRSA infection of the skin and was treated with
gentamicin and vancomycin.

63 By the time of James’ discharge from the Canberra Hospital on 8 March 2004,
his weight was 2,090gm, his length was 42.5cm and his head circumference
was 29.5cm. His post-conception age at that point was 34 weeks. He was
being treated with theophylline PO 7.2mg 12 hourly, Pentavite 0.45mg PO
daily, folic acid PO 50 micrograms daily, phosphorus PO 27mg 6 hourly,
Fergon PO 0.5ml daily and 20% NaCl 1 mmol 6 hourly. He was also receiving
Karicare with feeds. James' haemoglobin on 6 March 2004 was 93g/L and his
haematocrit at the same time was 28%.

64 James Coffey was transferred back to the Wagga Wagga Base Hospital on 8
March 2004, at 7 weeks of age. He was then on intranasal oxygen (0.09L/min)
and was fed with high calorie milk, daily via gavage tube. He was slow to
establish suck feeding, but was eventually discharged from the hospital on 4
April 2004, at about 11–12 weeks of age. He was then still on intranasal
oxygen therapy due to mild bronchopulmonary dysplasia.

65 A cranial ultrasound was performed on 26 March 2004.

The pleaded case

66 It was in these circumstances that Ms Coffey and her son commenced the
present proceedings. Although the pleadings have undergone substantial
revision over time, the alleged breaches ultimately pleaded against the hospital
were as follows.

67 It is alleged that Ms Coffey should have been transferred to the Canberra

Hospital on 5 January 2004 in anticipation of her confinement. Alternatively, it
is alleged that this should have occurred by no later than some time during the
period between 5 January 2004 and 19 January 2004. In the event that neither
of these things occurred, it is alleged that Celestone should have been
administered to Ms Coffey at 7 day intervals after its initial administration on 5
January 2004. In the further alternative, in circumstances where no transfer to
Canberra Hospital occurred at any time before James’ delivery, it is alleged
that steps should have been taken to ensure that a neonatologist or
paediatrician was present at the point of delivery.
68 In a slightly different context it is alleged that someone at the hospital should
have discussed the terms of Circulars 2002/49 and 99/71 with Ms Coffey and
also discussed with her the comparative services available to her and her then
unborn child between Wagga Wagga Base Hospital and the Canberra Hospital.
It is also alleged that Ms Coffey should have been given the benefit of a
discussion about the reasons for the administration of Celestone on 5 January
2004 and its further administration thereafter. It is alleged that Ms Coffey
should have been informed that the hospital could have requested advice
concerning her transfer to the Canberra Hospital and should have informed her
that if she became a patient at the Canberra Hospital on or about 5 January
2004 then her pregnancy would be managed by that hospital’s “High Risk
Pregnancy” team.

69 It is further alleged that the defendant should not have assessed Ms Coffey’s
pregnancy as no longer being a high risk pregnancy upon the basis of a
negative foetal fibronectin test carried out on 10 January 2004.

70 So far as concerns the events that in fact occurred at the delivery, it is alleged
that a paediatrician should immediately have been notified of Ms Coffey’s
admission to the hospital on the morning of 19 January 2004 and should have
been present at the birth. It is also alleged that James Coffey should have been
intubated without delay following his birth that day and that the resuscitation
process should have begun immediately thereafter. There is a related
allegation that the defendant should have ensured that the resuscitation
process was adequate immediately following James’ birth and that a
resuscitation plan was then in place and that his respiratory distress was
properly managed. Finally there is an allegation that immediate action should
have been taken to stabilise James’ cardiorespiratory instability as soon as he
was delivered and on a continuing basis.

71 The defendant’s response to these allegations is as follows. The defendant

concedes that Ms Coffey’s pregnancy was a high risk pregnancy by reason of
her obstetric history. It also admits that if James Coffey were to have been born
prematurely, there was a not insignificant risk that he would suffer from hyaline
membrane disease and that the defendant was aware of this.
72 With respect to the circulars, the defendant says that as at January 2004, it
was required to adhere to them, subject to the exercise of clinical judgment and
consideration of the particular individual circumstances of patients. The
defendant admits that Circular 2002/49 applied to it and that it provided for the
administration of Nifedipine (that is, Adelat) as a tocolytic agent and that it was
customarily used by the defendant to suppress uterine contractions.

73 The defendant also admitted that the circular provided for the administration of
Celestone, a corticosteroid, and that it administered it to Ms Coffey to try to
reduce the risk of lung disease in the event that James were born prematurely.
The defendant admitted that as at January 2004 it was aware that one of the
aims of using tocolysis was to delay preterm delivery in order to allow time for
the administration of corticosteroids and the in-utero transfer of the mother to a
tertiary perinatal centre with a view to reducing neonatal morbidity and
mortality. This was subject to the exercise of clinical judgment and the
particular needs of individual patients.

74 The defendant also admitted that as at January 2004, the Canberra Hospital
was one of the perinatal referral centres from which Wagga Wagga Base
Hospital staff were able to seek advice and that they did not do so.

75 The defendant admitted that Adelat was first administered to Ms Coffey at 1940
hours on 4 January 2004 and then at 2010 hours and 2040 hours. It was
continued thereafter four times daily until Ms Coffey’s discharge on 10 January
2010. The defendant admitted that Celestone was administered on 4 January
2004 at 1940 hours and on 5 January 2004 at 0840 hours.

Precautions that should have been taken

76 It is convenient at this point to record the way in which Ms Coffey and her son
characterise the precautions that they contend should have been taken by the
defendant in the circumstances.

77 It is contended that Ms Coffey’s pregnancy should have been managed

between 5 January 2004 and 19 January 2004 by a specialist obstetrician
rather than by a resident medical officer. They submit that a plan of
management should have been put in place prior to 26 weeks gestation to
arrange for Ms Coffey to reside in Canberra from 26 weeks to 32 weeks into
 her pregnancy and to attend the Canberra Hospital for the birth. That plan
should have included a recommendation for this approach being given to Ms
Coffey together with advice about the benefits of delivering James at the
Canberra Hospital rather than in Wagga. It is asserted that a discussion ought
to have taken place with Ms Coffey shortly after her admission on 4 January
2004 in relation to these matters and the implications of Circular 2002/49, the
use of tocolytic agents and corticosteroids and the need to be transferred to
Canberra when not in preterm labour. It is contended that the Obstetric Team
at Wagga Wagga Base Hospital should have contacted the High Risk Team at
Canberra Hospital and discussed Ms Coffey’s presentation with them. Ms
Coffey should have been transferred to Canberra Hospital. Circular 2002/49
“ought to have been adhered to”.

78 In a similar vein, it is alleged that Ms Coffey ought not to have been discharged
from Wagga Wagga Base Hospital on 10 January 2004 but that instead the
prospect of transfer to Canberra Hospital should then have been discussed
with her and she should in fact have been transferred. Alternatively, these
things should have all occurred by 14 January 2004.

79 It is submitted that a second course of corticosteroids should have been

administered on 14 January 2004. The defendant should have realised that Ms
Coffey was in labour on 19 January 2004 when she was admitted. She should
have been transferred immediately to the labour ward and a resuscitation
trolley should have been present at the birth. It is contended that a
paediatrician skilled in the resuscitation and intubation of babies of less than 34
weeks gestation ought to have been notified when Ms Coffey arrived at the
hospital and ought to have been present at the birth.

80 James Coffey’s case is therefore that the harm from which he suffered
substantially arose from the fact that he was born in a clinical setting where the
standard of his immediate and subsequent post-natal care was inadequate to
manage his gestational age. The risk was that he would be born prematurely.
The defendant knew of that risk and it was not insignificant.

81 It should be observed that, framed in this way, the case against the defendant
does not include a pleaded allegation that some precaution or combination of
 precautions was available to it that could or should have been taken to avoid or
reduce the risk that James might be born prematurely, whether at 27 weeks
and 2 days gestation as occurred or at some other time. In other words, even
though the defendant had the means, through the administration of appropriate
drugs, possibly to forestall the onset of labour for as much as 48 hours, the
apparent high likelihood of James’ premature birth is not in issue, once Ms
Coffey’s presentation at the hospital on 4 January 2004 is accepted on both
sides. There is correspondingly no suggestion of any want of care on the
defendant’s part before that date. Indeed, the high likelihood of a premature
delivery is central to the way in which the plaintiffs propound their case. It was
the spectre under the shadow of which the plaintiffs contend the defendant
should have acted differently.

Summary of the plaintiffs’ case

82 James Coffey was at risk of premature birth. Prior to 4 January 2004, his
mother should have been advised to reside in Canberra for the period of 24 to
32 weeks gestation because it was clinically appropriate to do so. Ms Coffey
would have acted upon such advice and gone to Canberra for care at Canberra
Hospital.

83 When Ms Coffey was admitted to Wagga Wagga Base Hospital on 4 January

2004, she was in threatened premature labour. She ought to have been given
advice then or on the following day about the transfer of her care and the care
of the baby, should he be born prematurely, to Canberra Hospital. This was
also clinically appropriate.

84 Moreover, Circular 2002/49 warranted the transfer of Ms Coffey once she had
been placed on Nifedipine, a tocolytic agent, and once cover with
corticosteroids had commenced. James Coffey should have been transferred
to Canberra Hospital in utero.

85 Dr Currie was of the view that it would be unlikely that she would reach 30
weeks gestation before delivery. Dr Stewart was of the view that once she went
into labour she would deliver quickly. In those circumstances, transfer ought to
have taken place because Wagga Wagga Base Hospital was not accredited
either to deliver babies of less than 32 weeks gestation or to look after them.
86 It was too late to transfer once labour had commenced.

87 Dr Bunting’s plan was to deliver James in Wagga Wagga. This was

inappropriate because the hospital was not accredited to do so and there were
well-established benefits to being born in a tertiary care centre.

88 As at both 10 January 2004 and 14 January 2004, despite the foetal fibronectin
test being negative, advice about transfer should have been given and the
transfer arranged. This is because on both dates there was still a significant
risk of preterm birth. The negative foetal fibronectin test did not negate that
risk. It pointed to a safe time to transfer in-utero.

89 A second course of corticosteroids ought to have been commenced on 14

January 2004, which was when Ms Coffey next returned to the antenatal clinic
after her discharge from hospital on 10 January 2004.

90 Transfer to Canberra Hospital was a precaution against the risks of harm to

James that should have been taken. Corticosteroids were an additional
precaution against the risks of harm to him.

91 When Ms Coffey came into hospital on 19 January 2004, she was in labour.
Her symptoms were consistent with labour and an earlier vaginal examination
would have confirmed this. That is what would have happened at Canberra
Hospital. The Court should assume that Canberra Hospital would have acted
competently.

92 At Wagga Wagga Base Hospital Ms Coffey ought then have been transferred
to the delivery suite, a partogram should have been commenced, a
resuscitation trolley should have been made available for the delivery and a
paediatrician experienced in preterm delivery, resuscitation and intubation
ought to have been present when that occurred. The Wagga Wagga Base
Hospital’s own guidelines mandated the presence of a paediatrician with
appropriate experience as well as a resuscitation trolley.

93 The events that occurred in James Coffey’s resuscitation at Wagga Wagga

Base Hospital would not have occurred and the factors identified as
contributing to an intraventricular haemorrhage would not have happened.
94 Resuscitation included a period of six minutes of cardiac massage. This was
inappropriate. There was also cardiorespiratory instability and James was
fighting against the ventilator. These things each caused or were material
contributing factors to his intraventricular haemorrhage.

95 Had Ms Coffey given birth at the Canberra Hospital, it would have been in the
delivery suite with a resuscitation trolley available and a neonatologist or
neonatal registrar in attendance. Those doctors would have had experience in
resuscitating babies of 27 weeks gestation. Neonatal intensive care nurses
would have been present to assist in that resuscitation.

96 James Coffey would have been resuscitated properly. The cardiorespiratory

instability would not have occurred. The cardiac massage would not have
occurred. Fighting against the ventilator would not have occurred because
James would probably not have needed intubation.

97 Following immediate resuscitation, James would have been moved to the

Neonatal Intensive Care Unit where there were greater skills and facilities for
the continuation of resuscitation and proper care immediately thereafter. This
would have prevented cardiorespiratory instability. Surfactant would have been
given earlier.

98 The failure to take precautions against the identified risks of harm was a
material contributing factor to the causation of the intraventricular
haemorrhage.

99 James Coffey sustained either a grade 3 or a grade 2 intraventricular

haemorrhage which in either case contributed to or caused his neuro-
developmental impairment. It is unlikely that the intraventricular haemorrhage
was due to prematurity per se. It is also unlikely that the 17q12 micro
duplication caused all of James Coffey’s neuro-developmental impairment, if
any.

100 James Coffey alleges a contract between his mother and the Wagga Wagga
Base Hospital for the provision of medical advice and services in accordance
with a standard of care reasonably to be expected of a person in the position of
the hospital. He alleges that it was a condition of that contract that the hospital
 would comply with policy directives and circulars issued to it by the NSW
Department of Health, in particular Circular 2009/49 and Circular 99/71, and to
provide medical advice and services in accordance with a standard of care
reasonably to be expected of a person in the position of the hospital.

101 Further, James Coffey pleads exceptional circumstances in relation to the

failure to transfer his mother to Canberra Hospital prior to his delivery and
repeat the administration of Celestone.

Section 5O
102 Section 5O of the Civil Liability Act 2005 provides as follows:

“5O Standard of care for professionals

(1) A person practising a profession (‘a professional’) does not incur a liability
in negligence arising from the provision of a professional service if it is
established that the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia by peer professional
opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of
this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted
in Australia concerning a matter does not prevent any one or more (or all) of
those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.”
103 It is now established that in cases in which a defendant raises this provision in
response to a plaintiff’s claim, evidence of peer professional opinion as to
competent professional practice, if accepted, establishes the standard of care
to be applied in the instant case. That is to be distinguished from cases in
which, where negligence is alleged, the standard of care is established by
application of the elements set forth in s 5B of the Act.

104 In Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335, Giles JA
pointed out the manner in which s 5O works an important change to the
situation under the common law as it was pronounced in Rogers v Whitaker:

“[59] … Section 5O … was intended to introduce a modified Bolam principle.

Its importance does not lie so much in questions of onus of proof as in who
determines the standard of care. …Section 5O has the effect that, if the
defendant’s conduct accorded with professional practice regarded as
acceptable by some (more fully, if he ‘acted in a manner that…was widely
 accepted…by peer professional opinion as competent professional practice’),
then subject to rationality that professional practice sets the standard of care.”
105 The proposition that s 5O dictates a departure from the common law principle
that judges determine the standard of care was later re-emphasised in Dobler
as follows:

“[61]…the standard of care will be that determined by the Court with guidance
from evidence of acceptable professional practice unless it is established (in
practice, by the defendant) that the defendant acted according to professional
practice widely accepted by (rational) peer professional opinion…”.
106 Allsop P, in Sydney South West Area Health Service v MD (2009) 260 ALR
702; [2009] NSWCA 343 at [51], cited Dobler with approval saying:

“It [s 5O] transforms what would otherwise be relevant evidence as to

negligence to be weighed by a judge in the familiar calculus into evidence that
may be determinative of the appeal.”
107 The defendant contended that this “must be correct”. That is because the
assessment of the conduct of a defendant professional cannot occur in the
context of s 5B of the Act without reference to s 5O. Section 5B, subject to
causation, determines liability in negligence. Section 5O qualifies the operation
of s 5B, in cases to which s 5O applies, by determining the standard of care.

108 Some provisions in the Civil Liability Act operate as a defence to “civil liability”
and are thus invoked after a finding of negligence. Section 43A is said to be an
example. The application of that section involves a “two-stepped approach”,
requiring a plaintiff to make out negligence and then satisfy a further, not
inconsistent, statutory test. However, that construction cannot be
accommodated where s 5O applies because that would require separate, but
potentially inconsistent, findings of negligence: first, an assessment under s 5B
(applying Rogers v Whitaker) and secondly, an assessment under s 5O
(applying its terms).

109 It follows that, where a professional adduces evidence that establishes that he
or she acted in a manner that (at the time the service was provided) was widely
accepted in Australia by peer professional opinion as competent professional
practice, then, subject to the court not finding that the opinion is irrational, that
practice establishes the standard of care, conformity with which by the
defendant will mean he or she “does not incur a liability in negligence”. That
 should be so even in cases where the judge is of the opinion that a different or
higher standard, of which the defendant fell short, should obtain.

110 This approach was recently endorsed in Sparks v Hobson (2018) 361 ALR
115; [2018] NSWCA 29 and South West Sydney Local Health District v Gould
(2018) 97 NSWLR 513; [2018] NSWCA 69. In Sparks, Basten JA said this:

“[16] The section envisages a conflict in the evidence as to whether the

defendant’s conduct was accepted by his or her peers as ‘competent
professional practice.’ In order to establish negligence, there will usually need
to be expert evidence called by the plaintiff to the effect that the defendant
failed to exercise reasonable care and skill in providing a relevant service.
Under the general law, the defendant would seek to challenge that evidence
by calling expert opinion to a contrary effect. For the plaintiff to succeed, the
court would need to be satisfied on the probabilities that the appropriate
standard was that for which the plaintiff’s experts contended. That position has
been varied by s 5O(1); although expressed in the passive voice (‘if it is
established that …’), it has been broadly accepted that the section provides a
defence.
[17] Despite the common acceptance of the provision as a ‘defence’, that
characterisation gives rise to difficulty. To be a defence carries the implication
that the plaintiff must establish breach according to the general requirements
of s 5B of the Civil Liability Act, following which the practitioner bears the
burden of establishing that his or her conduct amounted to ‘competent
professional practice’ in the terms of s 5O(1). The heading of the section
(‘Standard of care for professionals’) indicates its purpose. Although the
heading is not part of the Act, it may be taken into account as extrinsic material
in construing the provision, in accordance with s 34(1) of the Interpretation Act.
In any event, it is tolerably clear that the provision sets a standard. However, if
the standard is met, it follows that the conduct was not negligent.
[18] Accordingly, once s 5O is invoked, arguably the general exercise required
by s 5B becomes otiose. There can only be one standard against which to
judge the conduct of a professional defendant, although that standard may
depend upon the resolution of conflicting evidence called by the plaintiff and
the defendant. It is only if one takes the plaintiff’s evidence in isolation that a
two-stage process, involving the assessment of the plaintiff’s claim followed by
assessment of an affirmative defence, will arise. However, in a practical sense,
that is not how the dispute should be determined. Rather, a judgment will be
given based on all of the evidence. Nor is the exercise helpfully clarified by
speaking of shifting burdens of proof. The question for the trial judge is
ultimately whether the plaintiff has established that the conduct of the
defendant failed to comply with the relevant standard of care. This approach is
consistent with Dobler and is not to say that a plaintiff must seek out and
negative opinions inconsistent with those of the experts on whom he or she
relies. Beyond that proposition, Dobler did not turn upon the onus of proof…
…
[24] In Dobler, Giles JA stated:
‘Section 5O may end up operating so as to determine the defendant’s
standard of care, but the standard of care will be that determined by
 the court with guidance from evidence of acceptable professional
practice unless it is established (in practice, by the defendant) that the
defendant acted according to professional practice widely accepted by
(rational) peer professional opinion.’
Ipp JA and I agreed. On reflection, this passage may be open to
misunderstanding. It is true that s 5O will not be engaged unless there is
evidence of a widely accepted professional practice supporting the defendant’s
conduct, but where there is such evidence, unless it can be rejected by the
trial judge, it will fix the relevant standard; there cannot be two legally
supportable standards operating in the one case.”
111 His Honour then concluded:

“[69] For reasons set out above, the proper course in a case where s 5O has
been pleaded and has been the subject of evidence is to determine first the
standard of care to be applied, before assessing the alleged negligence
against that standard…”
112 Wagga Wagga Base Hospital submitted that this clarification supports its
reasoning to the effect that s 5O evidence, if accepted, establishes the
standard of care, and leaves no room for the different test, under s 5B,
applying Rogers v Whitaker.

113 The approach was reiterated and endorsed in Gould, where Leeming JA, cited
Giles JA’s decision in Dobler:

“[121] Giles JA, with whom Ipp and Basten JJA agreed, rejected the bald
submission that the plaintiff bore the onus of proof. His Honour traced the
history of the ‘Bolam principle’, its rejection by the High Court in Rogers v
Whitaker (1992) 175 CLR 479; [1992] HCA 58 and its partial reinstatement in s
5O. His Honour said that apart from s 5O, the Court would have regard to
evidence as to acceptable professional practice, but would not be obliged to
accept that evidence. In particular, his Honour said that a court ‘would not be
obliged to hold against the plaintiff if the defendant’s conduct accorded with
professional practice regarded as acceptable by some although not by others’:
at [59]. Giles JA then stated that, in contrast:
‘Section 5O has the effect that, if the defendant’s conduct accorded
with professional practice regarded as acceptable by some (more fully,
if he “acted in a manner that … was widely accepted … by peer
professional opinion as competent professional practice”), then subject
to rationality that professional practice sets the standard of care.’
[122] Returning to the imprecise way in which the issue of whether s 5O
‘operated as a defence’ had been framed, Giles JA said at [60]-[61]:
‘In this sense, s 5O provides a defence. The plaintiff will usually call his
expert evidence to the effect that the defendant’s conduct fell short of
acceptable professional practice, and will invite the court to determine
the standard of care in accordance with that evidence. He will not be
concerned to identify and negate a different professional practice
favourable to the defendant, and s 5O does not require that he do so.
The defendant has the interest in calling expert evidence to establish
 that he acted according to professional practice widely accepted by
peer professional opinion, which if accepted will (subject to rationality)
mean that he escapes liability.’
It follows that I do not accept the appellant’s submission that s 5O did
not provide a defence but defined the content of the duty of care owed
by the appellant to Kurt, with the onus on the respondents to prove that
the manner in which he acted was not widely accepted by peer
professional opinion as competent professional practice. Section 5O
may end up operating so as to determine the defendant’s
standard of care, but the standard of care will be that determined
by the court with guidance from evidence of acceptable
professional practice unless it is established (in practice, by the
defendant) that the defendant acted according to professional
practice widely accepted by (rational) peer professional opinion.’
[Emphasis added.]
[123] Read in proper context, it may be seen that Dobler was a very precise
statement of the operation of s 5O. Only if the preconditions of the section –
namely, that the defendant was ‘practising a profession’ and was doing so ‘in a
manner that ... was widely accepted in Australia by peer professional opinion
as competent professional practice’ – are established does the section apply.
The defendant bears the onus of establishing those preconditions, and if they
are not established, then ss 5B and 5C are to be applied. However, if the
preconditions are established, then the standard of care against which the
defendant’s conduct is assessed is that which was widely accepted by peer
professional opinion as competent professional practice, unless the court
considers that opinion is irrational.
[124] In a case (such as the present) where the defendant establishes the
preconditions to s 5O, then there is a single standard against which the
defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what
Giles JA said at [59]: ‘then subject to rationality that professional practice sets
the standard of care’. That is also what his Honour said at [61]: ‘Section 5O
may end up operating so as to determine the defendant’s standard of care’.
[125] That is what Basten JA and Simpson JA separately suggested in Sparks
v Hobson; Gray v Hobson [2018] NSWCA 29…”.
114 Paragraphs 85 and 85A of the defence to the second further amended
statement of claim plead a reliance on s 5O of the Act. It is instructive to note
these paragraphs here:

“85. Further, in answer to the whole of the second further amended statement
of claim, the defendant states that it, by its servants or agents, acted in a
manner that (at the time the service was provided) was widely accepted in
Australia by peer professional opinion as competent professional practice in all
material aspects of its management and care of the plaintiff, including in:
(i) admitting Kathleen Coffey to Wagga Wagga Base Hospital between
4 and 10 January 2004 and managing her there, rather than
transferring her to Canberra Hospital for antenatal care;
(ii) treating her during the 4-10 January 2004 admission with tocolytics,
corticosteroids and antibiotics;
 (iii) monitoring her uterine contractions and recording them during the
4-10 January 2004 admission;
(iv) performing vaginal examinations on 4 and 10 January 2004;
(v) performing a foetal fibronectin test on 10 January 2004;
(vi) discharging her on 10 January 2004 (while continuing Aldomet and
Adalat and antibiotics) with advice to return to the antenatal clinic on
14 January 2004; and
(vii) reviewing her in the antenatal clinic on 14 January 2004, at which
time standard observations were done and urinalysis was performed
and she was advised to return to the antenatal clinic for follow up in
two weeks’ time or earlier if she was concerned,
and, pursuant to section 5O of the Act, it does not incur a liability in negligence
to the plaintiff.
85A. Further, if, which is denied, section 5O of the Act requires that the
defendant establish that it acted pursuant to a practice that was in existence at
the relevant time, then the defendant says that the manner in which it acted,
including in doing the things referred to in paragraph 85 above, accorded with,
or was pursuant to, a practice in existence at that time.”
115 The significant and over-arching allegation pleaded against the defendant is
the failure to transfer Ms Coffey to the Canberra Hospital prior to James’
delivery. The defendant maintains that in the circumstances of this case, the
decision not to transfer, as well as the treatment provided while still at Wagga
Wagga Base Hospital and following delivery, conformed to competent
professional practice. Several opinions were expressed by experts in different
fields of specialty concerning the question of whether or not the treatment
provided to Ms Coffey and her foetus and later to her newborn son was in
accordance with competent professional practice at the relevant time. These
opinions were expressed both with respect to the overriding decision
concerning the transfer of Ms Coffey to a tertiary hospital such as Canberra
Hospital as well as with respect to the discrete individual questions such as the
administration of steroids or the quality of neonatal intubation and resuscitation.
Plainly the views expressed on the general issue of transfer will not necessarily
accommodate the views expressed about the particular issue of care or
treatment. To the extent, therefore, that the defendant has raised the existence
of an accepted professional practice in existence at the time with which the
Wagga Wagga Base Hospital complied, attention always needs to be given to
the precise practice that is being considered.
116 That somewhat uncontroversial proposition was given recognition in Sparks, as
the following paragraphs from the judgment of Basten JA make clear:

“[26] More importantly, the provision raises the possibility of a negative

inference, namely that the court may not reject an opinion even though
satisfied that it is unreasonable (though not irrational), or otherwise not one the
court would itself adopt. Such a general negative inference should not be
inferred; there will be other questions which will arise.
[27] First, there will be a question as to whether the evidence of one or two
experts can satisfactorily establish opinions which are ‘widely accepted’ in
circumstances where such a view is contradicted by other evidence. No doubt
evidence of ‘general professional opinion’, in addition to the personal opinion
of the expert, is admissible in such circumstances.
[28] Secondly, it will be a matter for the court to assess the significance of
particular evidence. Evidence may be at a greater or lesser level of generality.
At a high level of generality it may readily be accepted that an opinion is widely
held amongst peers of the practitioner. However, the standard so identified
may not assist greatly in resolving the particular case. On the other hand, the
more particular the opinion, based on the specific circumstances of the case,
the more difficult it may be to establish an opinion which can be described as
‘widely accepted’ among fellow practitioners. Accordingly, whether or not
evidence of medical opinion is properly described as conclusive in a particular
case will depend upon a range of factors and not merely the fact that it can
properly be described as not irrational.”
117 As indicated earlier, the predominant setting or context for all of the allegations
raised against the Wagga Wagga Base Hospital is the decision not to transfer
Ms Coffey to a tertiary facility. As will shortly be explained, the other alleged
deficiencies appear in my opinion ultimately to assume only subsidiary
significance or merge in the wisdom or otherwise of the decision to continue to
treat Ms Coffey in Wagga Wagga.

118 The defendant relied on the following evidence to support the existence of
compliance with accepted competent professional practice at the time.

119 Dr Robert Lyneham prepared a report dated 14 November 2011. Dealing

specifically with the failure to transfer Ms Coffey to a tertiary hospital once
contractions commenced on 4 January 2004, he said this:

“Transfer to a tertiary hospital would have been indicated if there was evidence
that delivery was imminent, or even likely. Following the mother’s admission to
the hospital and the commencement of treatment her contractions all but
disappeared, there was no change in the cervix over a period of six days, and
it was quite clear that delivery was neither imminent nor likely. Had the mother
been transferred to a tertiary hospital on 4 January 2004, I could say with
some confidence that treatment there would have been very similar and the
mother would have been discharged home probably before 10 January 2004.
 There was [sic] no specific treatments that were available to the mother in a
tertiary hospital, other than the care of a very preterm infant.
Although it is true that the hospital did fail to transfer the mother to a tertiary
hospital once the contractions commenced on 4 January 2004, on my analysis
of the records there was no indication for such a transfer.”
120 Dr Lyneham’s conclusion was stated thus:

“On the basis of my analysis of the records that you have provided, and in
contemplation of both the scientific literature at the time and accepted medical
practice, in my opinion Wagga Wagga Base Hospital acted in a manner that
(at the time the service was provided) was widely accepted in Australia by
peer professional opinion as competent professional practice. Indeed, I would
go as far as saying that the mother’s management was of the highest
standard.”
121 With particular reference to the question of transfer to a tertiary hospital, Dr
Lyneham’s evidence was that “at no time during the admission on 4–10
January was Ms Coffey’s clinical condition consistent with a diagnosis of
preterm labour”. Nor in his view was there any “indication to transfer, and no
indication to contact Canberra Hospital staff”. Dr Lyneham said that he was
“unaware of any policies or guidelines from 2004, or now, which recommend or
advise transfer to a tertiary centre of a woman who is not in threatened or
actual preterm labour but rather experiencing a few contractions a day, and
with no history of spontaneous labour before 32 weeks”. Dr Lyneham also said
this:

“My recollection of practice in 2004 is that transfer was arranged when preterm
delivery was at least likely to occur, if not inevitable. This was not the situation
on the relevant dates. I therefore do not agree with A/Prof Bryce, either with
respect to 4-10 or 14 January 2004. Viewed prospectively, management of her
pregnancy in Wagga Wagga was entirely appropriate.”
122 With respect to the NSW Health Circular 99/71 entitled “Policy for Emergency
Obstetric and Neonatal Referrals”, Dr Lyneham said this:

“I have read the NSW Health Circular 99/71 ‘Policy for Emergency Obstetric
and Neonatal Referrals’. I do not read it as suggesting that all high risk
obstetric patients who presented to hospital must, without more, be the subject
of telephone contact with or transfer to a tertiary referral centre. Rather, the
document contemplates, consistently with my experience of the practice
followed in New South Wales in 1999 and continuing in 2004, that such
contact would occur where there was evidence of fetal compromise or the
patient was less than 33 weeks and in preterm labour. Neither of these
conditions was present during the 4-10 January admission or the antenatal
visit on 14 January, and so there was no indication to have contacted
Canberra Hospital staff or to have requested transfer, and I do not read the
Circular 99/71 as requiring that there be telephone contact with or transfer to a
 tertiary referral centre. Ms Coffey was under the care of very experienced,
senior specialist obstetricians who had most capably cared for her in the past
and arranged transfer without delay when indicated.”
123 Dr Lyneham was not challenged on these opinions.

124 Dr Andrew Child provided his report on 28 November 2011. He said that “the
antenatal care provided at the clinic at Wagga Wagga Base Hospital was in
accordance with acceptable practice at that time for a complicated pregnancy
such as this one”. In answer to the question concerning transfer, he said this:

“Dr Currie was involved in the assessment of this patient at the time of her
admission and during her stay in hospital and it would have been his call as to
whether transfer was required. It would be my impression that the contractions
were not very well advanced at the time of admission as the cervix was still
long and closed and posterior. The cervix remained unchanged over the
following 6 days and the fetal fibronectin test was negative. Also, there was an
underlying potential cause for the episode of contractions and the urinary tract
infection was treated with antibiotics and the contractions did appear to settle
with this combination of medication and bed rest over the 6 days. It would
therefore be my impression that it was reasonable to keep the mother in
Wagga pending further developments as of 4 January 2004.”
125 Dr Child expressed his conclusions in the following relevant terms:

“The question is how to manage such a problem and whether it is helpful to

transfer all such patients to a major centre until they get to 34 to 36 weeks at
which time they could be safely delivered in Wagga…Even by doing such a
transfer there would be no guarantee that the preterm birth would be
prevented and also there would be no guarantee that the baby would not be
born without any complication. Invariably some babies born at around 26 to 30
weeks, even in a major obstetric centre, will suffer from significant ongoing
major complications and merely the fact that they are born in a major teaching
hospital does not prevent all complications. This would therefore be a very
difficult decision from the point of view of Dr Currie in view of all the
complexities surrounding the pregnancy in this mother. It would be my
impression that there were no clear indications to transfer this mother at the
time of her admission to hospital from 4 to 10 January or at the time of the
consultation on 14 January particularly as the labour did not in fact start until
19 January.”
126 Dr Child was asked to provide a written opinion on the following question:

“In your opinion, did those attending on Kathleen Coffey at Wagga Wagga
Base Hospital act in a manner that was (at the time) widely accepted in
Australia by peer professional opinion as competent professional practice in:
(i) admitting her to Wagga Wagga Base Hospital between 4 and 10 January
2004 and managing her there, rather than transferring her to Canberra
Hospital for antenatal care or admission;
(ii) treating her during the 4–10 January 2004 admission with tocolytics,
corticosteroids and antibiotics;
 (iii) monitoring uterine contractions and recording them during the 4–10
January 2004 admission;
(iv) performing vaginal examinations on 4 and 10 January 2004 and
performing a foetal fibronectin test on 10 January 2004;
(v) discharging Kathleen Coffey on 10 January 2004 (while continuing Aldomet
and Adalat and antibiotics) with advice to return to the Antenatal Clinic on 14
January 2004 or earlier if she was concerned;
(vi) reviewing Kathleen Coffey in the antenatal clinic on 14 January 2004, at
which time standard observations were done and urinalysis was performed
and advising Kathleen Coffey to return to the Antenatal Clinic for follow up in
two weeks’ time or earlier if she was concerned?”
127 Dr Child answered this as follows:

“My overall impression is that the care provided by those attending on Ms

Coffey at Wagga Hospital was in a manner that (at that time) was widely
accepted in Australia by peer professional opinion as competent professional
practice. In my opinion the 6 items listed were appropriate and in accordance
with the capabilities of the staff at Wagga Hospital at that time. Wagga
serviced a high population of pregnant mothers and provided level 5 care as
well as training for junior obstetrics medical staff and midwives.”
128 Specifically with reference to the issue of transfer, Dr Child said that “there
were no clear indications to transfer this mother at the time of her
admission…from 4 to 10 January or at the time of consultation on 14 January
particularly as the labour did not in fact start until 19 January”. He agreed with
Dr Lyneham that Ms Coffey’s treatment on discharge on 10 January 2004 “was
entirely appropriate” and that “there was no necessity for transfer to a tertiary
hospital” between 4 and 10 January or on 14 January 2004. Dr Child said that
he could “not see any clinical evidence to suggest that she should have been
transferred to Canberra Hospital” on 14 January 2004 and that “it was
reasonable to advise her to return to the clinic in two weeks time with the
proviso that she return urgently to the hospital if any symptoms were causing
her concern”.

129 Dr Child was not cross-examined on these opinions.

130 A/Prof Nick Evans provided a report dated 9 October 2013. With respect to the
issue of antenatal transfer to a tertiary centre, he said this:

“It is preferable for preterm babies to be born in hospitals with an NCIU.

Sometimes, mainly due to precipitant delivery, such antenatal transfer is not
possible and ex-utero transfer has to occur after birth. The indications for
antenatal transfer are dictated by the risk of imminent preterm delivery. This is
more an area for obstetric opinion but I would concur with Dr Lyneham that
 there were no indications for antenatal transfer either during admission from 4
January or at the routine follow up appointment on 14 January. There are a
limited number of antenatal beds in most of the tertiary perinatal centres and it
is unlikely that transfer would have been accepted even if it had been
requested on 4 or 14 January.
Overall I would rate the standard of care that James received while at Wagga
Hospital as high.”
131 Dr Evans’ conclusion was expressed in these terms:

“I would concur with Dr Lyneham that Kathleen Coffey’s antenatal

management was within a standard of care. She was given the treatments
which we know reduce the risks of premature birth and the risk of prematurity,
that is antenatal steroids and tocolytics in the form of Nifedipine. These
treatments reduce the risks but do not eliminate the risks. There is no
evidence of benefit from bed rest and, viewed prospectively, there were no
indications for transfer to a tertiary perinatal unit until her presentation on 19
January, when the delivery was too imminent.”
132 Dr Ian Barraclough was qualified as an expert by Ms Coffey. He provided a
report dated 4 July 2006 to her solicitors Messrs Commins Hendriks. Dr
Barraclough proceeded in some considerable detail to outline Ms Coffey’s
obstetric history and her presentation and treatment at the Wagga Wagga
Base Hospital in January 2004. He described it in these terms:

“When Mr [sic] Coffey was admitted on January 4 at 25 weeks gestation, she

was given Adalat (Nifedipine) to suppress the contractions and a course of
Celestone (Betamethasone), a steroid to help mature the foetal lungs and so
prevent respiratory distress. This was good and competent management,
which would have been followed by any reasonable obstetrician. The antenatal
care of Mrs Coffey cannot be faulted.”
133 Professor Paul Colditz provided a report to Ms Coffey’s solicitors dated 10
October 2005. Dr Colditz was then the Director of the University of Queensland
Perinatal Research Centre. He records that he was asked to report in relation
to the care afforded to Ms Coffey by the Wagga Wagga Base Hospital and to
comment upon whether an earlier examination would have benefited her and
James and whether attendance by a paediatrician would also have been
warranted. Dr Colditz was also asked to comment upon the incidence of cranial
bleeds and to offer an opinion upon whether in James’ case they were due to
prematurity because of the rapid birth or because of any problem with James’
resuscitation. Dr Colditz’ report included the following:

“Translating this information to your client’s situation does not assist a great
deal with respect to determining whether the IVH may have been caused by or
contributed to by either the rapid delivery or the resuscitation. However, I have
 already indicated above that there is no evidence of any departures from
standard practice in the management of your client, the delivery or the
resuscitation. In relation to the resuscitation, it is not described in great detail,
but it is described in sufficient and adequate detail to establish that standard
practice appears to have been followed. Even if a contrary view were taken,
namely that an inadequate detailed description was provided, the facts are that
the baby was in reasonable condition at the time of delivery. This is
established by the Apgar score recorded at 1 minute. At 5 minutes the Apgar
score was the same rather than higher, but this would be common in babies of
27 weeks gestation and does not imply any deficiency in the provision of
resuscitation. Despite the baby being quite sick with immature lungs and
hyaline membrane disease, he was provided with adequate treatment and at
the time of the first arterial blood gas at about 1030, all of the values were
within the appropriate range. In particular, the base excess was -1.4 which
confirms that the baby had been provided with appropriate amounts of oxygen
and general care after birth and also was more likely than not in a good
metabolic state at the time of birth.
My opinion is that the general risk of intraventricular haemorrhage is ever
present after birth at 27 weeks gestation and that there were no particular
issues in the management of your client or her foetus or baby that are likely to
have been the cause of, or a material contributor to, the intraventricular
haemorrhage that did occur.”
134 Dr Colditz earlier commented that “the care provided was within standard
practice.”

135 Dr John Currie worked as a specialist obstetrician and gynaecologist at Wagga

Wagga Base Hospital in January 2004 and was involved in Ms Coffey’s care.
He provided a statement in which he said that it was his assessment that she
did not require a transfer to a tertiary hospital on 4 January 2004. He gave
evidence and was not challenged on that opinion. He said that he would have
done so if he had been concerned. So far as concerns Ms Coffey’s condition at
the antenatal clinic on 14 January 2004, Dr Currie gave the following
unchallenged evidence:

“Based on the information contained in the entry Dr Bunting made in the

Antenatal Record for Kathleen Coffey for 14 January 2004, my experience in
managing obstetric patients at Wagga Wagga Base Hospital over many years
and in organising the transfer of obstetric patients to tertiary hospitals such as
Canberra Hospital, I don’t believe Kathleen Coffey would have been regarded
as requiring transfer had one been sought on 14 January 2004. On my
assessment, the clinical evidence and test results were against Kathleen
Coffey being in labour or labour being impending at the time.”
136 Dr Ian Stewart was a part-time staff specialist obstetrician and gynaecologist at
the Wagga Wagga Base Hospital in 2004. He provided statements and gave
 evidence in the proceedings. He was not cross-examined upon the following
evidence:

“CHENEY: In paragraph 16 you refer to certain aspects of Ms Coffey's history

and observations made of her during the 4 to 10 January 2004 admission and
the 14 January 2004 presentation to the clinic?
A. Yep.
HIS HONOUR: If it had been up to you, what would you have done in the
same circumstances?
A. The summary of the clinical findings at the time of her discharge after the
five or six days in hospital that I think is in the paragraph 16 of my statement,
represents to me that this is a situation of contractions that have settled, that
an additional condition had been treated, that is the urinary tract infection
which are, and the observations and the indeed, the foetal fibronectin test,
which was negative, and the observation that with the speculum and I believe
it says that the cervix was closed, all leads me to believe that I would have
sent had I been asked what I would do at that time, I would have said, ‘This
lady is suitable for discharge with review in the clinic at the next available high
risk clinic,’ which was the 14th.”
137 Dr Michael Bunting is currently a specialist gynaecological oncologist. He
commenced as a Registrar at the Wagga Wagga Base Hospital in February
2004 and had previously been a resident medical officer at the hospital in
January 2004 when Ms Coffey came under his care. He provided a statement
dated 11 August 2015. Paragraph 49 and 64 were as follows:

“49. My view as at 10 January 2004 was that there was no basis upon which to
seek a transfer of Ms Coffey to a tertiary centre, such as Canberra Hospital. At
that point, she had a long closed cervix and the FFN test was negative. I did
not believe her uterine contractions/tightenings were actually evidence of
labour. Rather, I believed that they were explained by her urinary tract
infection. Further, she had only very sporadic tightenings over the six days she
had been in hospital.
…
64. On 14 January 2004, I did not believe that there was any basis on which to
seek Kathleen Coffey’s transfer to a tertiary hospital such as Canberra
Hospital. There was no evidence that she was in premature labour, nor were
there any signs of impending labour...”.
138 Dr Bunting was cross-examined in the following terms:

“Q. So, was it your plan to wait until she went into labour to look at the
question of whether she and the baby in utero should be transferred to a
tertiary system tertiary centre; was that your plan?
A. No, that wasn't my plan.
Q. What was your plan, in the event that she did go into labour, as she did
indeed on the 19th?
 A. My plan, after I saw her on the 14th and discussed her with my consultant,
was that we'd review her in the next fortnight, and we didn't anticipate her
going into labour within that time.
Q. So does that mean, if I may put it bluntly, that there was no plan in place to
deal with the events of the 19th?
A. There was no specific plan for Ms Coffey herself, but dealing with preterm
labour is something that obstetricians deal with every day, including in places
like Wagga Wagga Base Hospital, regardless of the patient history.
Q. Sorry, what was the first part of that answer, Doctor, dealing with?
HIS HONOUR: There was no plan specifically for Ms Coffey, but there was a
general plan in order to cope with…
BARTLEY: And what was the general plan?
A. So, going back 14 years, you, well, the consultant obstetrician would be
there, the consultant paediatrician would be, the registrar, obstetric registrar
would be there, the paediatric registrar would be there, there would be a
number of midwives that would be there, they would be prepared, there would
be an anaesthetist who was available to intubate a premature baby if
intubation was necessary, all of those factors were in place, including being
able to give surfactant to help a neonate breathe, and I think in fact that
actually happened, if I remember reading the notes. So the baby received the
same care that it would have received at a tertiary hospital, and it was
transferred and in a tertiary hospital within eight hours, having received the
same care, having already received steroids.”
139 Dr Bunting was of the view that Ms Coffey was not at any time in preterm or
premature labour. He specifically said in his cross-examination that “we had no
evidence and none during the entire admission that she was in premature
labour”. However, he acknowledged that she was a high risk obstetric patient,
as his following answers make plain:

“HIS HONOUR: Just out of interest, what does high risk pregnancy mean, or
what in your understanding did it mean at the time?
A. You have to ask an obstetrician for a definition because there are
innumerable … reasons for a pregnancy to be deemed a high risk.
Q. Did you have an understanding in January 2004 of why Ms Coffey was
assessed as a high risk pregnancy?
A. Yes.
Q. What was your understanding?
A. There'd be a number of factors. One, that she'd had previous caesarean
sections, one that she'd had previous pre-eclampsia, one that she'd had
previous pulmonary embolus, one that she had previous preterm labour, one
that she had impaired glucose tolerance looking at the glucose tolerance tests
going back through the notes, one that she had a body mass index of 40 at
booking in, which puts it in the morbidly obese category, a number of different
factors. All of those converge to by definition make it a high risk, a higher risk
pregnancy. And those were recorded on the antenatal charts at the Wagga
 Wagga Base Hospital, and those were actually kept in a high risk pregnancy
area of charts at the Wagga Wagga Base Hospital. Everyone at the Wagga
Wagga Base Hospital who had anything to do with the antenatal clinic, the
delivery suite, or the antenatal ward was aware of that.”
140 Although Dr Bunting was cross-examined at some length, it was not suggested
to him that the opinions he expressed in paragraphs 49 or 64 of his statement
were incorrect or not in accordance with widely accepted practice at the time or
that they were irrational.

141 Dr Andrea Follett currently works as a general practitioner in Hobart. In

January 2004 she was working under a number of visiting medical officer
obstetricians and gynaecologists at Wagga Wagga Base Hospital. She
provided a statement dated 10 June 2015. Paragraph 33 of that statement is in
the following terms:

“I don’t recall at any time during the 4-10 January 2004 admission of Ms
Coffey forming the view that she was appropriate to be transferred to a tertiary
hospital (with the Canberra Hospital being the nearest tertiary hospital to
Wagga Wagga). Based on the information Kathleen Coffey gave me each time
I saw her and the information contained in her clinical records, I did not believe
that she was in premature labour or that her labour was impending. If I had
thought it appropriate to transfer Kathleen Coffey to a tertiary hospital, as a
RMO1, I would have discussed the issue with Dr Currie. I can’t now recall
having any such discussion with Dr Currie.”
142 Dr Follett was cross-examined about paragraph 33 of her statement. However,
it was not put to her that her views that Ms Coffey was not in premature labour
or that her labour was not impending were not honestly held, or that they were
incorrect or irrational.

143 A/Prof Bryce gave evidence concurrently with Drs Child, Lyneham and Lynch.
Part of his evidence was as follows:

“BARTLEY: In terms of threatened pre term labour, what's your view about the
period between the 5th and when she actually went into labour on the morning
of the 19th? The 4th and 5th?
WITNESS BRYCE: Okay. If I can start by saying I think what we're looking at
is the decision making process and what was the basis for the decision making
process to keep her in Wagga rather than to send her to Canberra, and those
decisions were made based on her past history which made her a high risk
pregnancy, in particular her three previous pre term births and the gestation of
these births wasn't disputed at the time. It's only being disputed now about the
gestation of these births, so the doctors looking after her were working on
those diagnoses as being three previous pre term births, and as well as that
she had a history of severe hypertension in her first pregnancy, she had
obesity, she had a previous pulmonary embolus, she had depression, she had
 asthma, so I don't think anyone would dispute that this was a high risk
pregnancy and I can't imagine anyone would dispute that she is at significantly
increased risk of pre term birth, having had three previous pre term births,
even irrespective of what happened in the first pregnancy. Since then she's
had two pre term births. So with respect to threatened pre term labour, that
was the diagnosis that was made at the time so the decision making was
based on that diagnosis, made to the best of the ability of the people who were
looking after her, so I don't think really it's our job to subsequently question
that decision making at this stage, because that's the decision that had been
made on which the basis for the treatment occurred. However, she did fulfil the
criteria that are generally accepted for threatened pre term labour and that is
regular painful contractions probably less than ten minutes apart. For a
definition of if you like this word established labour or of labour, you might also
expect to have cervical dilatation occurring, but for threatened pre term labour
you don't need to have that criterion, it would be sufficient to have regular
painful contractions, and furthermore, in such a high risk patient with such a
high risk of pre term birth occurring, one would always err on the side of over
diagnosis and over treatment rather than under diagnosis and under treatment
otherwise you're taking unacceptable risks on behalf of the patient.”
144 A/Prof Bryce had earlier given evidence of his opinion of the quantification of
the risk that Ms Coffey might deliver prematurely:

“WITNESS BRYCE: I would this would be just my estimate, but if a woman

had had three previous babies and none of them had been pre term they
would confer on her a lower risk of pre term birth than there is in the general
population. So, I would imagine if the risk in the general population is 8 to 9%
this maybe something in the area of maybe 5%. So, if you talk about a relative
risk of ten, we're talking about 50%, so further evidence to support those
actual risk figures that I have been able to come across. With respect to your
other question about indicator pre term birth, because I didn't give you an
answer to that question, when there has been a previous indicated pre term
birth that also confers a risk of subsequent spontaneous or indicated pre term
birth slightly lower risk than there is with a previous spontaneous pre term birth
but only slightly. There seems to be something about pre term birth of any
nature that confers a risk of pre term birth subsequently.”
145 As the Wagga Wagga Base Hospital’s submissions emphasise, not only did
Drs Child and Lyneham disagree with that assessment, putting the risk at
closer to 10 percent, and “nowhere near 50 percent”, so too did the
neonatologists, between whom the only disagreement was whether the risk of
delivery before 32 weeks was five percent, as A/Prof Evans would have it, or
10 percent, as Dr McPhee believed. It was in this context that the defendant’s
submission described A/Prof Bryce’s opinions about the state of Ms Coffey’s
pregnancy and the need to transfer her to Canberra Hospital as “outlier”
opinions. So far as concerned that issue, A/Prof Bryce was alone among the
six obstetricians who expressed a view upon it in suggesting that an antenatal
transfer to Canberra Hospital was indicated.
146 In describing A/Prof Bryce’s position in that way, the Wagga Wagga Base
Hospital made the following written submissions:

“60. In weighing the merits of A/P Bryce’s outlier opinion, and in considering
whether it exposes a want of reasonable care on the part of the defendant, the
court should have regard to the unchallenged evidence of each of Drs
Bunting, Follett, Currie, and Stewart, to the effect that Mrs Coffey’s
management accorded with the practice regarding transfer decisions that was
followed at the hospital in 2004. In other words, given the evidence that the
management decisions made here were, as all deposed (again,
unchallenged), the product of adherence to such a practice, a finding that
there was a breach of duty in failing to seek Mrs Coffey’s transfer here would
carry with it the conclusion that a long-established, widely supported practice
followed by every experienced consultant obstetricians at a level 5 maternity
hospital in New South Wales betrayed negligent failings on the part of those
who devised and those who followed it. Such a conclusion…ought not to be
made on the basis of a single outlier opinion from a South Australian clinician
that is, seemingly, based solely on his own approach at the Flinders medical
centre, within a State system populated by lower level maternity hospitals that
Dr McPhee described as ‘Adelaide centric’. A/P Bryce was unable to cite a
single policy directive or peer reviewed article in support of his position.
61. As to this last point, it is telling that the plaintiff does not contend, in answer
to the defendant’s defence [sic] under section 5O… that the practice, or
opinion supportive of it, is irrational. That circumstance…bears out how unsafe
it would be to impugn the conduct of a cohort of independent experts, including
Dr Barraclough and Prof Colditz, commissioned by the plaintiff’s solicitor, on
the basis of a single dissenting voice of A/P Bryce.
62. The joint report of the three obstetric experts and Dr Lynch, including the
agreed assumptions, the list of materials briefed and the questions asked, are
at [Court Book] vol 7 pp1163-1219. It is notable that A/P Bryce’s contributions
in the joint report simply do not engage with the fact that on a proper
understanding of [Ms Coffey’s] obstetric history and January 2004 presenting
signs and symptoms, including the 10 January observation of a long, posterior
and closed cervix and a negative foetal fibronectin test that confirmed that
there was a less than one percent chance of delivery within the next 14
days…there was no indication for transfer at any time prior to 19 January 2004
when she delivered James.
63. Although A/P Bryce asserted that Mrs Coffey was a greater than 50
percent chance of delivering before 32 weeks, that was apparently predicated
on his mistaken perception that her obstetric history involved three preterm
births, features that, he contended, contributed to her ‘background risk’. The
folly in that analysis…is borne out by the fact, as A/P Bryce eventually
conceded, Mrs Coffey had no history of spontaneous preterm births prior to 32
weeks, and [her son] Robert’s birth at 26 weeks was an emergency
intervention necessitated by concerns for Mrs Coffey’s welfare, so could not be
a strong predictor of subsequent spontaneous preterm birth…The upshot is
that the relevant risk figure for the purpose of the clinicians at the hospital
considering transfer was somewhere in the range 5-10 percent delivery before
32 weeks. It was not ‘greater than 50 percent’ as A/P Bryce wrongly asserts.
64. In any event, the data on which A/P Bryce based his ‘greater than 50
percent risk’ conclusion was a study published in 2014. There is no evidence
 that, even if sound, the findings of that study were known in 2004, and to the
contrary, Dr Child’s evidence, again unchallenged, was it was not the
received wisdom in 2004…”. [Emphasis in original.]
147 In summary, the case for the Wagga Wagga Base Hospital on the transfer
issue was that Ms Coffey’s high risk pregnancy did not as a matter of practice,
policy or medical necessity, warrant her being removed to Canberra Hospital
prior to 19 January 2004. As at 10 January 2004, the clinical finding, including
the absence of contractions, the condition of her cervix, the fact that a possible
urinary tract infection was being treated with antibiotics and the negative foetal
fibronectin test, which A/Prof Bryce considered to be “a significant finding”, all
indicated discharge home as a reasonable response. Ms Coffey was not in
preterm labour prior to 19 January 2004. At no time between 4 and 10 January
2004 was Ms Coffey in threatened preterm labour. There were no material
changes to her condition by 14 January 2004 and she was not then in
threatened preterm labour. The only relevant difference between Wagga
Wagga Base Hospital and Canberra Hospital was that the latter had a
Neonatal Intensive Care Unit. The facilities were otherwise effectively identical.

148 In Gould, Leeming JA said this:

"[30] I shall return below to the construction of s 5O and how that section
interacts with s 5B. For present, it suffices to note the following propositions,
which I regard as uncontroversial:
(1) it is settled that the defendant bears the onus of establishing the
elements of s 5O(1) (namely, he or she was a ‘professional’ and acted
in a manner which, at the time, was widely accepted in Australia by
peer professional opinion as competent professional practice): Dobler
v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335 at [60]-[61]
and Sydney South West Area Health Services v MD [2009] NSWCA
343 at [20]-[21], [51] and [58];
(2) it is clear from s 5O(3) that there may be inconsistent bodies of
peer professional opinion each of which is widely accepted;
(3) it is clear from s 5O(4) that peer professional opinion may be widely
accepted without being universally accepted;
(4) subject to s 5O(2), when the elements of s 5O(1) are made out, the
defendant does not incur a liability in negligence;
(5) if the court considers that the opinion is irrational, then the section
does not to that extent apply;
(6) the test of 'irrational' in s 5O(2) is not otherwise defined, but in light
of s 5O(3) and (4) it cannot be sufficient for peer professional opinion
to be irrational merely because one peer, or a body of peers, does not
share that opinion."
149 In the particular circumstances of this case, Ms Coffey did not plead that the
Wagga Wagga Base Hospital did not act “in a manner that (at the time the
service was provided) was widely accepted in Australia by peer professional
opinion as competent professional practice”. Ms Coffey’s submissions were to
the following effect.

150 Ms Coffey contended that it was “unsustainable” in the present case to argue
that the failure to transfer her to Canberra was widely accepted in Australia by
peer professional opinion as competent professional practice. She contended
that the opinions of Drs Child and Lyneham were “clearly irrational” in relation
to this particular pregnancy. That is said to be so because the opinions
proceed on the basis that transfer need only have been considered once Ms
Coffey went into labour, for which proposition Ms Coffey contended there was
no evidence.

151 Ms Coffey submitted further that s 5O seems “faintly” to have been called in aid
of the management of the labour and subsequent delivery. She submitted that
there could be no rational explanation for the failures relating to no vaginal
examination, the birth taking place in the maternity ward, the absence of a
paediatrician at the birth and an excessive period of cardiac massage. Finally,
Ms Coffey submitted that there was a need to transfer her to Canberra
because she was at the relevant time in threatened preterm labour.

152 The Wagga Wagga Base Hospital responded as follows.

153 Insofar as irrationality is raised in Ms Coffey’s submissions, the defendant

contended that she should not be permitted to rely on s 5O(2) when raised for
the first time in those submissions. The proposition appears to be that delaying
delivery until 32 weeks gestation was irrational. The defendant contended that I
should reject a submission that it was irrational for it to approach Ms Coffey’s
antenatal management on the basis that delivery might be delayed until then
because Dr Currie’s evidence does not suggest that such a belief would be
irrational and that proposition was never put to any of the experts. Moreover, to
the extent that Ms Coffey now wishes to contend that the defendant’s expert
evidence as to peer professional practice is irrational, it would be procedurally
unfair to receive or to consider such a submission having regard to the fact that
 it has never been pleaded or supported by opposing expert evidence: see
Gould at [68]–[75].

154 The defendant maintained that it conducted its defence on the basis that the
rationality of the expert opinions it relied on was not in issue. Ms Coffey was
given leave during the trial to file a reply, yet even then raised no issue as to s
5O(2).

155 Further, the defendant submitted in any event that it is a mischaracterisation of

the evidence of Drs Child and Lyneham to suggest that they stated that
transfer need only have been considered once Kathleen Coffey went into
labour.

156 With respect to the scope of the widely accepted practice contended for, the
defendant submitted that, far from "faintly" suggesting that it extended to the
events of 19 January 2004, the defendant specifically relies on s 5O in defence
of its management of the labour and delivery on that date. In short, there was
no vaginal examination and the delivery occurred in the maternity ward
because in Ms Coffey's circumstances, it was difficult to palpate contractions
and determine whether she was actually in established labour.

157 The defendant submitted that Ms Coffey’s submission that she was in
threatened preterm labour and should have been transferred or advised as to
transfer after her 4 January 2004 presentation goes to the heart of her case.
The defendant contended that that proposition should be rejected.

158 It was A/Prof Bryce's opinion that, even absent contractions or any indication of
threatened preterm labour, Ms Coffey should have been transferred to
Canberra at 26 weeks' gestation and remained there until 32 weeks' gestation.
In effect, he relied solely on her obstetric history, which included no
spontaneous delivery before 32 weeks.

159 The defendant did not dispute that on Ms Coffey's admission to Wagga Wagga
Base Hospital on 4 January 2004, the working diagnosis was threatened
premature labour or that under Dr Currie's guidance she was initially managed
on the basis of such a diagnosis.
160 Dr Lyneham quoted a specific definition of threatened preterm labour contained
in a 2011 NSW Health Policy Directive, being "uterine contractions that are
painful, palpable, last more than 30 seconds and occur with a frequency of at
least 2 every 10 minutes …".

161 He explained that in 2004, clinicians generally regarded threatened preterm

labour as comprising the features contained in the Policy Directive definition
and indicated that accordingly, Ms Coffey was neither in preterm labour nor
threatened preterm labour. Dr Lyneham was not challenged on that evidence in
cross-examination.

162 A/Prof Bryce proposed a different definition for threatened preterm labour:

"However, she did fulfil the criteria that are generally accepted for threatened
preterm labour and that is regular painful contractions probably less than 10
minutes apart".
163 Beyond the lack of any source or reference for that definition and the fact
A/Prof Bryce seemed to be speaking of a 2018 definition, Ms Coffey did not in
fact meet A/Prof Bryce's own definition of preterm labour during the period in
which on his view the determination whether transfer was appropriate should
have occurred following the 4 January 2004 admission.

164 A/Prof Bryce also stated that after Ms Coffey's presentation at 1930 hours on 4
January 2004, she needed to be observed for a minimum of 4 hours, and up to
24 hours, before making any decision as to transfer. That was to avoid delivery
occurring while she was en route to Canberra. Importantly, in the initial nursing
entry after presentation, Ms Coffey’s contractions were recorded as previously
being 20 minutely and then being 10 minutely, lasting 30 seconds. The pattern
was then of contractions decreasing in frequency and regularity, with them
being described as "irregular" at 2120 hours, with one in the last 45 minutes
and then one contraction having occurred at 0130 hours since 2130 hours.
After the 0130 hours contraction, none was recorded at all on 5 January 2004.

165 The defendant therefore emphasised that during the very period when Ms
Coffey should on her case have been considered for transfer, she did not even
meet A/Prof Bryce's undemanding definition of threatened preterm labour, let
alone the NSW Health definition, cited by Dr Lyneham. On any view, she was
not in threatened preterm labour, let alone actual preterm labour. Her
 contractions were infrequent and irregular. According to the defendant, the
expert evidence justified a watch and wait approach, rather than bringing about
transfer or providing Ms Coffey with advice to the effect that she should be
transferred. The position was the same upon her discharge on 14 January
2004.

166 In my opinion, the evidence led by the hospital with respect to the s 5O issue
ultimately spoke with one voice. There was no evidence from Ms Coffey to the
contrary.

167 The standard with which the Wagga Wagga Base Hospital was required to
comply was the standard described by the experts as one that was widely
accepted in Australia by peer professional opinion as competent professional
practice. Those experts established the standard of care for the purposes of
this litigation. That standard was met by the hospital. The hospital does not
incur a liability in negligence either to Ms Coffey or James Coffey. That is so in
my opinion having regard to the whole of the evidence, both with respect to the
allegation of a failure to transfer Ms Coffey to Canberra Hospital before James
was born as well as with respect to the individual allegations of want of proper
care at Wagga Wagga Base Hospital leading up to the time of his delivery and
immediately thereafter.

168 Importantly, it is not in my view open to Ms Coffey lately to contend that the
opinions on which the s 5O contentions are based do not extend to the events
of 19 January 2004. It was never put by counsel for Ms Coffey to a single
witness in the proceedings on either side of the debate that the opinions
expressed by them concerning widely accepted practice were wrong or that the
practice identified was irrational or that they had not, in expressing their
respective opinions, intended to include in their assessment the events that
occurred on 19 January 2004. Even if the scope of the practice relied on by the
defendant and particularised in paragraph 85 of the defence to the second
further amended statement of claim on one view did not in terms extend so far,
it seems apparent that the opinions concerning the relevant practice were
intended to incorporate the events of that day. For example, Dr Child’s answer
to the question directed at precisely that paragraph spoke of the fact that the
 hospital serviced a high population of pregnant mothers and provided level 5
care as well as training for junior obstetrics medical staff and midwives. At no
point in the course of the trial was it ever pleaded or suggested to the experts
or raised in any way at all before the evidence had concluded that the experts
were constraining or limiting their views about widely accepted practice to the
point when Ms Coffey was discharged on 14 January 2004 with advice to
return if necessary but not beyond. Moreover, there was no evidence to the
contrary called by Ms Coffey, her principal attack being the unsupported
contention that the opinions were irrational.

Further consideration
169 It becomes strictly unnecessary in these circumstances to consider the
separately pleaded individual allegations of breach of duty by the hospital.
However, despite my earlier conclusion about Ms Coffey’s contention that the
evidence of a widely accepted peer professional practice with which the
hospital complied did not extend to include the events of 19 January 2004 and
in particular the care and treatment of James from the moment of his birth
should be rejected, it is prudent that some further examination of that
contention should be undertaken. In particular, it is appropriate to consider at
least the evidence of the neonatologists concerning that treatment in the brief
period that James was at the Wagga Wagga Base Hospital on 19 January
2004.

170 In their joint report following the experts’ conclave, A/Prof Evans and Dr
McPhee expressed a number of opinions in answer to a series of questions on
notice. It is instructive to record some of those here, as follows:

"9. Based on your review of the clinical records for James Coffey and
Kathleen Coffey, please describe the nature and extent of any
cardiorespiratory instability James suffered at birth.
A/Prof Evans
The description of cardiorespiratory instability is not the correct term, it is really
a question of resuscitation.
A/Prof Evans observes that some clarification is required from the hospital as
to the meaning of the clinical notes. There is a very real question as to whether
there was one minute of cardio pulmonary resuscitation (CPR) or six minutes
of CPR. On the assumption there was one minute of CPR, it is my assessment
that the hospital did pretty well.
The first thing that you are trying to do with the newborn premature baby is to
ensure oxygenation and, whether or not in a tertiary setting the hospital, they
did pretty well achieving 86 percent oxygenation at five minutes and 100
percent oxygenation at seven minutes. This is in keeping with oxygen
saturation targets delineated by national resuscitation guidelines (80-85% at 5
mins, 95-98% at 10 mins). Once oxygenation is achieved, the next step is
maintaining respiration through ventilation.
The surfactant sufficiency syndrome present in James at birth might properly
be characterised as moderate.
Dr McPhee
If it is assumed that there were six minutes of CPR, I would consider this to be
highly unusual and likely to have imposed a degree of circulatory stress. Also,
the clinical record refers to ongoing instability once intubated and ventilated
with episodes of desaturation and the need for hand ventilation. In my view, it
was not until the morphine was administered at 10.30 (and surfactant was
given soon after) that James was stabilised.
James recorded an APGAR score for heart rate of 1 at five minutes, meaning
he had a heart rate of under 100 beats per minute. If he was receiving CPR at
this time, then this implies that the heart rate was in fact < 60 beats per minute.
If six minutes of CPR were actually employed, I would characterise the degree
of cardiorespiratory instability to be moderate.
If only one minute of CPR was employed, I would characterise the degree of
cardiorespiratory instability to be mild.
10. Based on your review of the clinical records for James Coffey and
Kathleen Coffey, please describe the manner in which James Coffey was
resuscitated and ventilated at or soon after his birth and how that
affected any cardiorespiratory instability he was suffering from.
A/Prof Evans
Please see answer to question 9 above. Because of the ambiguity in the
clinical record it is difficult to be definitive about the manner in which James
was resuscitated and ventilated. However, on the whole, I think the hospital
did quite well.
If one looks at the APGAR scores, they are really pretty good and consistent
with expected range for one and five minute Apgars for babies born at this
gestation in a tertiary setting. The hospital achieved independent breathing by
seven minutes of age, which is pretty good.
Dr McPhee
The ambiguity in the clinical record makes the question difficult to answer,
however I would not be critical of what the hospital did. However, if Dr Preddy
had been present, I expect that things would have gone more smoothly. Bag
and mask ventilation requires skill, and I think it would be more likely that Dr
Preddy would have been better at bag and mask ventilation and James would
have been stabilised earlier perhaps without the need for CPR.
11. Would:
(ii) having Dr Preddy present at the point of delivery at 08.10 hours rather
than at 08.25 hours have lessened James Coffey’s:
a. cardiorespiratory instability; and
b. intraventricular haemorrhage(s).
A/Prof Evans
Again, this is really a question about resuscitation and not cardiorespiratory
instability. However, prospectively it would be desirable to have had Dr Preddy
present, as it is always desirable to have the most skilled practitioners on
hand. However, retrospectively, it does not appear it would have made much
of a difference and that is certainly the conclusion Dr Preddy came to in his
own statement.
Dr McPhee
The answer is yes to (ii)a and (ii)b.
(iii) immediate intubation and treatment with surfactant after delivery
have lessened James Coffey’s:
a. cardiorespiratory instability; and
b. intraventricular haemorrhage(s).
A/Prof Evans
First addressing the question of immediate intubation, in my view, James’
presentation did not warrant immediate intubation. A review within my hospital
showed that the average time to perform an intubation in the 85% of babies
born at 27 weeks who were intubated within the first hour, was 23 minutes with
a range of 1 to 51 minutes. Over a third of those were intubated later than Dr
Preddy’s intubation of James at 25-27 minutes. On average, it takes an
experienced operator 45 seconds to achieve intubation and can take longer in
very premature babies. In my view, bag and mask to achieve ventilation is
desirable before making any determination as to whether intubation is
required.
In respect of surfactant, early surfactant is given because of respiratory
benefits, not because of evidence of improved neurological outcome. In 2004,
it was common practice not to immediately administer surfactant.
There is no evidence that immediate intubation and treatment with surfactant
reduce the risk of grade 1 or 2 IVH.
Dr McPhee
In my view, James’ presentation did not warrant immediate intubation. In my
view, if Dr Preddy had been available earlier, I believe intubation would have
been achieved earlier. In point of fact, neither A/Prof Evans nor I are critical of
the conduct of the Wagga Wagga Hospital, but rather are attempting to
compare what was done with what would occur at a tertiary centre. It is
essential to first stabilise with a bag and mask before moving to the question of
whether intubation is required. An available option would have been to
maintain ventilation initially until heart rate and saturation improved. The
question of intubation has to be balanced against the risks of intubation, such
as bradycardia and desaturation: it is known that some babies can deteriorate
significantly during episodes of attempted endotracheal intubation.
At the present time, the administration of surfactant typically occurs at the time
of intubation. I acknowledge however that in 2004, the practice was not to
 administer surfactant until imaging in the form of a chest x-ray had been
obtained and reviewed.
12. What, if any, difference would it have made to James Coffey’s
developmental outcome had:
(ii) Dr Preddy been present at the point of delivery at 08.10 hours rather
than at 08.25 hours;
A/Prof Evans
None.
Dr McPhee
Minor.
(iii) he been immediately intubated and treated with surfactant after
delivery.
A/Prof Evans
No evidence on which to base an opinion.
Dr McPhee
I agree there is limited evidence on which to base an opinion regarding this
issue.
13. What difference, if any, would it have made to James Coffey’s;
a. intraventricular haemorrhage(s);
b. neurodevelopmental outcome;
had Kathleen Coffey been treated with a repeat dose of corticosteroids
after the course given on 4-5 January 2004 (including on 14 January 2004
when she attended the Antenatal Clinic as set out in the Joint
Assumptions).
A/Prof Evans
Administration of a first single course of corticosteroids is important to reduce
the risk of IVH but there is no evidence that repeat administration has any
effect on incidence of IVH or disability.
There is [sic] very good data in the form of large randomised trials, which
provides evidence that repeat administration has no effect.
Dr McPhee
I agree with A/Prof Evans. The available evidence (Cochrane review) suggests
little benefit, though there is limited information regarding this issue in extreme
prematurity (< 29 weeks).”
171 At the point at which A/Prof Evans and Dr McPhee were about to give evidence
in joint session, the following interchange between me and Mr Bartley SC
occurred:

“HIS HONOUR: 1253. Close to the very bottom, Dr McPhee agrees with
Professor Evans that James' presentation did not warrant immediate
intubation, so there seems to be agreement about that. Then Dr McPhee goes
 on to say, ‘In point of fact, neither Professor Evans nor I are critical of the
conduct of the Wagga Hospital, but rather attempting to compare what was
done with what would occur at the tertiary centre.’ Is that a position that you
embrace in this case?
BARTLEY: Your Honour, that was going to be one of the more specific areas.
My instructions are that at the time that certainly Dr McPhee made that
statement, and your Honour will see that it is to some extent reflected on the
previous page where Dr McPhee said, ‘I would not be critical of [what] the
hospital did.’ Those opinions were based on his state of knowledge at that time
about the events starting at 6.00am on the morning of 19 January. He made
some assumptions, your Honour, which have in fact been, in respectful
submission, refuted by the evidence.
HIS HONOUR: What I need to know is, the case that the plaintiff presents, in
the events that have occurred, the significant alleged mistake made by the
hospital was the failure to anticipate the need to transfer [to Canberra], rather
than any mistakes it made in the management of the pregnancy and the
delivery once it occurred at Wagga. In other words, does the plaintiff embrace
the proposition expounded by Dr McPhee that if you just take Wagga Base
Hospital alone, and accept the fact that the child was born there, the conduct
of the hospital in managing the way in which that happened can't be criticised?
BARTLEY: No, your Honour, for two reasons. Dr McPhee, I think, would now
wish to express the view that the nurses did what they could, confronted with
the situation that arose, but that the situation that arose was indicative of some
degree of systemic failure, that is being born in the maternity suite, born
without the resuscitation trolley being present, perhaps a period when the
mother and the newly born were unattended. That is, to put it into that context,
in addition Dr McPhee would wish to qualify that opinion based on the
additional material that he has.
HIS HONOUR: That is a very critical area. If you want to explore that because
you say information has come to light since the joint report, then I would
personally be interested in it. Is there objection to that?”
172 The cross-examination of A/Prof Evans and Dr McPhee proceeded for a while
without to my perception any attempt being made to suggest that the hospital
made a mistake. So much is probably apparent from my comments at the time
in the course of the following exchange:

“HIS HONOUR: Mr Bartley, I don't want to stop you, but you would appreciate
that your case is, and I am interested to understand the ways in which either of
these doctors is able to discuss your contentions, that the hospital made a
mistake, to use the vernacular. Your claims are in negligence. These
theoretical discussions about progress from placental support to ventilating in
the real world - if either of these doctors is able to support your contentions
about what went wrong, what should have been done that wasn't done, I would
like hear a bit more about that, if that's all right.
BARTLEY: Your Honour, the intention of this evidence is to demonstrate the
more favourable outcomes in general, but also for this plaintiff, had he been
born in a tertiary centre rather than at Wagga?
 HIS HONOUR: Well hold on, we were talking about the evidence that Mr
Downing objected to about the ventilation trolley, and all the rest of it; can we
stick with Wagga at the moment, and I asked these questions at the start of
the day, what is said from a neonatal specialty that wasn't to a proper standard
in Wagga at the time? If we think of referring, or might have been a better
outcome in Canberra, what is the allegation that went wrong there, if there is
one? You can ask some questions if you think you want to explore that, but I
would like to know.
BARTLEY: I understand, that your Honour.”
173 The following passage of evidence then ensued:

“BARTLEY: Would you be critical of any delay in the immediate ventilation of

this baby, if it didn't commence at the point of birth?
WITNESS MCPHEE: Well, soon after birth. As I said already, I think that is the
crux thing in the resuscitation of newborn.
HIS HONOUR: Could I just ask a different question?
BARTLEY: Yes, your Honour.
HIS HONOUR: It may be the question you intended to ask. Having regard to
the information you have available to you from the notes at the time, are you
critical of the timing or extent of the delivery of any form of resuscitation at this
hospital on the 19th?
WITNESS MCPHEE: There is this dilemma about, there's two entries there,
one that says that there was a minute's worth of compressions between five to
six minutes, but elsewhere that is a comment that CPR was provided from
birth for the first six minutes. So compressions for six minutes is a lot different
than a brief period of over a minute or so. So I can only criticise on which of
those things I interpret. But am I critical of six minutes of compressions? That
would indicate to me that the heart rate must have been under 60 for that time.
I would like to think that the first two minutes people would have been
concentrating on ventilation and not doing compressions.
HIS HONOUR: Is that because compression increases venous pressure with
the risk of intraventricular haemorrhage?
WITNESS MCPHEE: It certainly increases venous pressures, and that, in my
mind, plausibly can contribute to haemorrhage or can contribute to injury to the
germinal matrix, yes.
HIS HONOUR: Is there a cascading level of intervention modalities, start with
ventilation, move to compression, or is it all dependent upon the presentation
where one might supersede the other?
WITNESS MCPHEE: Always start with ventilation, always start with ventilation,
and then if that's not achieving oxygenation and getting the heart rate up, then
you proceed to compressions once the heart rate is under 60.
HIS HONOUR: Again, forgive me if this is a silly question, is that then followed
as a third possibility with intubation?
WITNESS MCPHEE: Yes, you can intubate, and that is certainly a step along
the pathway, and then beyond that, we will start to give medications that would
help to kick start the heart.
 HIS HONOUR: Adrenaline?
WITNESS MCPHEE: Adrenaline.”
174 At this point, Mr Bartley proceeded to ask a series of questions based upon
assumptions that were never agreed between the parties. I allowed these
questions over objection as a matter of convenience, with a view to
determining their admissibility later.

175 In my assessment of the evidence that followed, despite this exchange, with
one exception, no attempt was made by Mr Bartley to suggest to either A/Prof
Evans or Dr McPhee that the Wagga Wagga Base Hospital in fact failed to
meet an appropriate standard of care on 19 January 2004. That material is as
follows:

“BARTLEY: Just one last area, just going back to the events immediately post
birth, I'd like you to assume two different scenarios. The first scenario is this,
born in the ward, no resuscitation trolley present, cardiac massage when
picked up by the midwife and then taken to the special care nursery where
ventilation started. Assuming that on that scenario ventilation did not start
immediately after the point of birth, would that degree of delay in your opinion
increase the risk of an intraventricular haemorrhage?
WITNESS MCPHEE: I think the inappropriateness of the compressions would
be my greatest concern.
BARTLEY: And then if the second scenario is that the baby had been born for
three or four minutes before the same scenario applied, would that three or
four minutes then allow you to express a view about the increased risk of
intraventricular haemorrhage flowing from that delay?
WITNESS MCPHEE: It may have slightly increased it; I wouldn't say it's a
dramatic increase, particularly given, and as has come up in our written
evidence, the initial blood gas was really pretty impressive impressively
comfortable arguing against a significant preceding hypoxic ischaemic
process.”
176 Three things can be said about these questions and answers. First, the
assumptions have not otherwise been proved and are not supported by the
evidence. Secondly, they do not accord with the Agreed Facts. Thirdly, they
elicit a response from Dr McPhee directed to the elevated risk of
intraventricular haemorrhage, and do not deal with or elucidate the issue of
breach of duty on 19 January 2004 or whether the hospital failed to conform to
accepted practice on that day.

177 As the joint report of A/Prof Evans and Dr McPhee makes clear, neither
practitioner was critical of the conduct of the Wagga Wagga Base Hospital with
 respect to James’ delivery. Cross-examination of these doctors with a view to
extracting answers or concessions that limited or restricted the force of their
joint report were either directed to different issues or were not successful. It
becomes in such circumstances difficult to make sense of a submission that
the hospital breached its duty concerning the events of 19 January 2004 in any
of the ways contended for by Ms Coffey. I remain in any event of the view that
the hospital’s performance on 19 January 2004 is properly to be assessed by
reference to the evidence of the experts in relation to s 5O of the Act.

The Limitation Act defence

The Wagga Wagga Base Hospital’s submissions
178 The proceedings were commenced by statement of claim filed 31 March 2011,
some 7 years and 2 months after the events giving rise to the cause of action.
The hospital has pleaded that the proceedings are not maintainable as they
were commenced more than three years after the date upon which the cause
of action was discoverable pursuant to section 50C and 50D of the Limitation
Act.

179 James Coffey’s reply filed 7 November 2018 contends that the action was not
discoverable pursuant to ss 50C and 50D until 21 March 2011. James Coffey
further pleads that his tutor Ms Coffey was at all material times up to and
before 31 March 2011 under a disability pursuant to s 50F of the Limitation Act.

180 That Act provides relevantly as follows:

Division 6 - Personal injury actions

50A Application of Division–kinds of causes of action
(1) This Division applies to a cause of action for damages that relate to the
death of or personal injury to a person, regardless of whether the claim for the
damages is brought in tort, in contract, under statute or otherwise.
(2) This Division applies only to causes of action where the act or omission
alleged to have resulted in the injury or death with which the claim is
concerned occurs on or after the commencement of this Division (as inserted
by the Civil Liability Amendment (Personal Responsibility) Act 2002).
(3) …
50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not
maintainable if brought after the expiration of a limitation period of whichever
of the following periods is the first to expire:
 (a) the ‘3 year post discoverability limitation period’, which is the period
of 3 years running from and including the date on which the cause of
action is discoverable by the plaintiff,
(b) the ‘12 year long-stop limitation period’, which is the period of 12
years running from the time of the act or omission alleged to have
resulted in the injury or death with which the claim is concerned.
(2) …
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is ‘discoverable’ by a
person on the first date that the person knows or ought to know of each of the
following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the
defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious
to justify the bringing of an action on the cause of action.
(2) A person ‘ought to know’ of a fact at a particular time if the fact would have
been ascertained by the person had the person taken all reasonable steps
before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may
have regard to the conduct and statements, oral or in writing, of the person.
50F Effect of disability on limitation period
(1) If a person has a cause of action for which a limitation period has
commenced to run and the person is under a disability, the running of the
limitation period is suspended for the duration of the disability.
(2) A person is ‘under a disability’ while the person:
(a) is a minor, but not while the minor has a capable parent or
guardian, or
(b) is an incapacitated person for a continuous period of 28 days or
more, but not while the person is a protected person.
(3) In determining when a cause of action is discoverable by a person who is a
minor, or an incapacitated person, who is not under a disability, facts that are
known or ought to be known by a capable parent or guardian of the minor or
the guardian of the incapacitated person are taken to be facts that are known
or ought to be known by the minor or incapacitated person.
(4) In this section:
‘capable parent or guardian’ of a minor means a person who is a parent or
guardian of the minor and who is not under a disability (as referred to in
subsection (2))
‘guardian’ of a minor includes a person who under a written law of the State is
exercising the parental responsibilities of the Minister under the Children and
Young Persons (Care and Protection) Act 1998 for the minor.
 ‘incapacitated person’ means a person who is incapable of, or substantially
impeded in, the management of his or her affairs in relation to the cause of
action in respect of the limitation period for which the question arises, by
reason of:
(a) any disease or any impairment of his or her physical or mental
condition, or
(b) restraint of his or her person, lawful or unlawful, including detention
or custody under the Mental Health Act 1990, or
(c) war or warlike operations or circumstances arising out of war or
operations.
‘protected person’ means:
(a) a person in respect of whose person another person is guardian,
whether under the Guardianship Act 1987 or any other Act or law, or
(b) a person in respect of whom an order is in force under the NSW
Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the
estate (or any part of the estate) of the person be subject to
management under the NSW Trustee and Guardian Act 2009.
(5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause
of action to which this Division applies.”
181 In the present case, Ms Coffey saw her solicitor Mr Potter within a couple of
months of James' birth, on 3 March 2004. She wished to investigate the cause
of the damage that her son had sustained. She provided a statement to Mr
Potter and continued to talk to her solicitor regarding the merits of a claim
against the hospital. That contact continued in each of the years following
2004.

182 Ms Coffey was told by Mr Potter that there was a time limit for bringing the
claim, although she was not sure, at the trial, whether she was told of a three
year limitation period. Mr Potter was aware at the first conference that, subject
to any discoverability issues, time would expire in January 2007. He told Ms
Coffey that it would be necessary to obtain expert opinion as to breach and
causation.

183 Mr Ingram of counsel was briefed by 8 March 2005. An unfavourable report

was obtained from Professor Colditz on 10 October 2005. A similarly
unfavourable report was obtained from Dr Barraclough on 4 July 2006. Mr
Potter concluded in the circumstances that there was no point pursuing the
matter. He said that he believed he would have told Ms Coffey that in
conference with her in July 2006.
184 There is no evidence of any activity on the matter, by either Ms Coffey or her
solicitor, after July 2006 until the events of 18 May 2010. On that day,
according to Mr Potter, but denied by Ms Coffey, she instructed him to close
the file. Those instructions were given by telephone. The file was closed and
archived that day. Mr Potter said he would not have closed the file without
instructions, and he would have discussed the merits of the case with Ms
Coffey in May 2010 before obtaining those instructions.

185 Mr Potter recommenced the search for an expert on 15 February 2011 when
requested to do so by Ms Coffey, a request that was motivated, as he
perceived it, by the difficulty she was having looking after and managing
James, and the distress that that was causing her.

186 On 21 March 2011, Mr Potter conferred with Professor Fliegner, an obstetrician

in Melbourne, and formed the view that there was an arguable case. He filed a
statement of claim on 31 March 2011.

187 Resolution of the disagreement between Mr Potter and Ms Coffey concerning

whether she instructed him to close the file requires reference to their
evidence.

188 Ms Coffey gave the following evidence:

“Q. Who asked you to prepare the statement?

A. Who asked me to give a statement? I think it was John Potter.
Q. You mean John Potter?
A. Yeah.
Q. Your solicitor in these proceedings?
A. Yes.
Q. That was because I take it you went to see Mr Potter after James' birth?
A. Yes.
Q. And you went there for the purpose of exploring whether there was a case
to be made against the hospital?
A. Yes.
Q. And he gave you advice about whether you could bring a claim against the
hospital?
A. Not at first.
Q. You provided a statement for him at first, did you, a couple of months after
the birth?
A. Yes.
Q. And then subsequently did you speak to Mr Potter about the merits of
bringing a claim against the hospital?
BARTLEY: I object to that your Honour. Just the term the merits your Honour.
Feeds into s 50C and the witness wouldn't know what it means.
HIS HONOUR: Well that's a separate issue but if the question is directed to
asking her whether or not she might have had cause to have a claim against
the hospital was discussed that would the same thing wouldn't it?
BARTLEY: If that's
HIS HONOUR: All right if it's only a question that might be right, I don't think
it's an objection but it might be of prudent course to ask the question in lay
terms rather than what might otherwise be slightly technical terms.
CHENEY: Yes.
Q. Did you at some point after the time that you provided the statement to Mr
Potter discuss with him what his views were about whether you could bring a
claim against the hospital in connection with James' birth?
A. I really don't remember.
Q. Well it must follow mustn't it Ms Coffey that at some point after giving Mr
Potter the statement you and he discussed what he might do with that
statement?
BARTLEY: I object to that your Honour. That's the must follow is not
answerable.
HIS HONOUR: Well I don't think it's objectionable Mr Bartley. I think it's being
put as
BARTLEY: It did happen your Honour rather than it must follow.
HIS HONOUR: It's not necessarily an inevitability Mr Cheney, that's the
objection. We want to know whether it did or it didn't, not whether or not it was
inevitable or not.
CHENEY
Q. May we get some better precision on the timing of when it was you gave
the statement to Mr Potter; it was a couple of months after James' birth?
A. Yes.
Q. And you stayed in touch with Mr Potter after that time?
A. Yes.
Q. Because you wanted to see whether you had a case to be brought against
the hospital?
A. No.
Q. You stayed in touch with Mr Potter for other reasons did you?
A. They weren't sure if they had a case.
Q. Who's they?
A. Commins and Hendriks.
Q. And in order to determine whether to bring a claim they must have
continued to talk to you?
A. Yes.
Q. About what happened?
A. Yes.
Q. And can you remember when it was that you were discussing those matters
with Commins Hendriks Mr Potter?
A. I don't really remember dates and times.
Q. Well years perhaps? Can you remember the years?
A. No.
Q. Well we know don't we that you commenced the proceedings, these
proceedings, in March 2011?
A. Yes.
Q. So sometime between a couple of months after January 2004 and March
2011 you must have been speaking with Mr Potter about whether to bring the
claim against the hospital?
A. Yes.
Q. And may we take it that those discussions occurred in each of the years
following 2004 leading up to the date?
A. Yes.
Q. That you continued to be his client?
A. Yes.
Q. And did Mr Potter advise you that it would be necessary to obtain expert
medical opinion about the handling of James' birth?
A. Yes.
Q. And can you recall who it was that Mr Potter recommended you obtain a
report from?
A. No.
Q. Was it Professor Fliegner in Adelaide?
A. Sounds about right, yep.
Q. I'm sorry, in Melbourne?
A. Yep.
Q. At some point in your discussions with Mr Potter about the prospect of
bringing these proceedings did he tell you that there was a time limit within
which it would be necessary to bring the claim?
A. Yes I think so.
 Q. And he would have told you that it would be necessary to bring it within
three years of James' delivery?
A. Not 100% sure.
Q. Do you recall at any point being told by Mr Potter that it would be necessary
to commence proceedings by January 2007?
A. I don't remember.”
189 Mr Potter swore an affidavit on 7 November 2018 and was cross-examined
upon it at some length, as the following portion of the transcript reveals:

“Q. Mr Potter, you've attempted in your affidavit to include anything that you
regard as relevant to explaining why these proceedings were not commenced
prior to 31 March 2011?
A. Including other things, yes.
Q. Including other things?
A. The affidavit seeks to set out a brief history of the matter prior to the
commencement of proceedings.
Q. But part of your objective was to explain why it was that proceedings were
not commenced until 31 March 2011?
A. That's correct, yes.
Q. So we know you've been practising in personal injury and medical
negligence law for many years. How many years?
A. Thirty four.
Q. And in that time the majority of your work has been on behalf of plaintiffs,
would that be fair?
A. Yes.
Q. And you are, in your practice of personal injuries law and medical
negligence law, I take it throughout your career you've been conscious of
limitation periods?
A. Yes.
Q. And was it your practice in 2004 to mark a file somewhere prominently to
record the date of the injury or the accident and the date three years from that
date?
A. Yes, it was.
Q. Did you do so in respect of Mrs Coffey's matter?
A. Yes, I would have.
Q. You, I gather, are frequently, if not or at least from time to time consulted by
prospective plaintiffs who have left things quite late to come and see you?
A. Yes.
Q. With the result that you've got to kick proceedings off in a hurry?
A. Yes.
Q. And that reflects, I take it, a concern, or your understanding of the
implications of limitation periods?
A. Yes.
Q. And that was not the case here, though, was it, in that Mrs Coffey came to
see you quite early in the period?
A. That's correct.
Q. You first saw her on 3 March 2004, as you tell us?
A. Yes.
Q. At a time when James, her son, was still in the neonatal intensive care unit
at the Canberra Hospital?
A. That's correct.
Q. That first conference that you tell us about in paragraph 2 of your affidavit,
did that occur in the offices of Commins Hendriks?
A. Yes.
Q. In Wagga?
A. Yes.
Q. Do you recall the circumstances that saw Mrs Coffey come to see you, as
opposed to any other firm of solicitors?
A. I don't know the precise circumstances, however, I had acted for Mr
Coffey's parents for many years.
Q. Did Mrs Coffey tell you whether, prior to coming to see you on 3 March
2004, she had sought any legal advice from anywhere else?
A. No, she did not.
Q. Do you know now whether she did?
A. No, I do not.
Q. She would have told you, I gather, that James had been born on 19
January 2004, during this March 2004 conference?
A. Yes, I believe she told me that.
Q. And I take it you would have quite quickly worked out that the limitation
period, subject to any discoverability issues, could expire as early as January
2007?
A. Correct.
Q. And you were aware I take it that you needed to obtain a favourable report
about breach and causation?
A. Yes.
Q. You had no difficulty accepting that James was damaged in March 2004
based on what Ms Coffey had told you?
A. Based on what Ms Coffey had told me that would be correct but I had no
material to support that.
Q. But did you tell Ms Coffey as you recall it on 3 March 2004 that it would be
necessary to get expert opinion on whether the hospital was at fault and
whether that fault caused James to be injured?
A. Yes.
Q. And can you recall what advice you gave her during the first conference in
March 2004 about whether she could bring a case against the hospital alleging
that it negligently managed her pregnancy and the delivery and early care of
James?
A. I would have told her that whether she had any entitlement to bring a case
would depend on expert evidence to support what she had told me or what
she believed may have occurred.
Q. One outcome of the conference I gather is that you decided you should ask
the hospital for a copy of the medical records?
A. Correct.
Q. And that subsequently happened?
A. Correct.
Q. And then the next conference that you deposed to in your affidavit was one
occurring on 18 November 2004?
A. Correct.
Q. Conducted by an employed solicitor at the firm, Julianne Carrol?
A. Correct.
Q. Did you participate at all in that conference?
A. No I did not.
Q. May we take it that what you know about that conference is what's recorded
in Ms Carrol's file note?
A. That would be correct at this point. Ms Carrol may well have spoken to me
about matters after that conference but if she did I don't recall it.
Q. In that eight month period between your first conference with Ms Coffey and
the conference with Carrol, with Julianne Carrol were there phone calls
between Ms Coffey and you in which the prospects of a claim against the
hospital were discussed?
A. Not that I can recall, no.
Q. If a telephone call did take place between you and Ms Coffey in which
advice was given would you expect it to be recorded in a file note?
A. Generally yes, not always at that point. We have a different system these
days but generally yes.
Q. In paragraph 5 you tell us that you deliver a brief to counsel on 8 March
2005?
A. Yes.
Q. Was that counsel Mr Ingram?
A. Yes.
Q. And a week later you had a conference with Ms Coffey and Mr Ingram is
that right?
A. Correct.
Q. Was that conference conducted in Wagga or in Sydney do you recall?
A. I believe it was conducted in Wagga.
Q. Do you have any independent recollection of that conference?
A. No I do not.
Q. But you'd agree that your file note that you annex at page 14 annexure D of
your affidavit records that the conference was with Mr Ingram with the plaintiff
and mother, do you see that?
A. Correct.
Q. The reference to mother is a reference to Ms Coffey's mother?
A. That's correct.
Q. Lyn Reid?
A. Correct.
Q. Did they, that is Ms Reid and Ms Coffey, participate in the conference with
you and Mr Ingram together?
A. I believe not; generally we would not do that.
Q. Do you agree the note doesn't suggest that either left the room while the
other was conferring?
A. I agree that the note does not reflect that but routinely we would not do that.
Q. You or Mr Ingram I suggest asked questions of Ms Coffey about the time at
the Wagga Hospital in January 2004 in that conference?
A. I have no independent recollection of that but I believe he would have asked
her some questions in relation to the clinical records. That was the purpose of
the conference.
Q. Can you see on the file note on page 14 of the affidavit there's in three
places a circled asterisk in the left hand margin?
A. Correct.
Q. To the left of the top most asterisks is the word ‘records’ is it?
A. Correct.
Q. And that is you reminding yourself by way of the asterisk that you need to
chase the records is that right?
A. I believe so.
Q. Can you read what the first entry is beside the first asterisk?
A. That entry reads ‘Dr Knowles, (Kooringal Road Surgery) saw him week five
to 13.’
Q. Do you know whether Dr Knowles is an obstetrician or GP?
A. The Kooringal Road Surgery is a practice of general practitioners so I
believe he would be a general practitioner.
Q. That's Kooringal Road Wagga?
A. Correct.
Q. And there's a reference to having also seen Dr Smee?
A. Correct.
Q. Is that regarding clotting, is that what that word?
A. Correct.
Q. Then a reference to ‘then to clinic Wagga Wagga Base Hospital’?
A. Yes.
Q. And then a reference, ‘Admitted to Wagga Wagga Base Hospital one
week’?
A. Yes.
Q. Is that a shorthand collection of the events that occurred in late 2003 and in
the period 4 to 10 January 2004?
A. I believe it is yes.
Q. And you see you've asterisked Canberra notes and Westmead notes?
A. Correct.
Q. Can you recall why you would have had an interest in Westmead notes in
March 2005?
A. I have no independent recollection of that now, no.
Q. The note does not record any advice being given by you or Mr Ingram to
the plaintiff or her mother?
A. Correct.
Q. May we take it from your earlier answers that you are unable to recall
whether any advice was proffered during that?
A. Correct.
Q. The entries at the bottom of the page numbered 1 and 2, can you help us
with whether they reflect your musings about what might be in issue or
whether they reflect something said by Ms Coffey?
A. I believe that they reflect something said by Ms Coffey.
Q. You would accept would you not sir accepting that you can't recall what if
any advice was given in this conference you'd accept that those issues having
been raised by Ms Coffey you would have hatched a plan for investigating
those things?
A. I don't know whether that is the expression that I would use. That
information would have prompted me to take some further action.
Q. By way of exploring the topics with experts?
A. Correct.
Q. May we take it that you were looking for expert support for your client's
case at least from 14 March 2005?
A. I think as at 14 March 2005 I was still trying to identify whether there were
issues that warranted investigation.
Q. Can you recall when it was after March 2005 that you next saw Ms Coffey?
…
Q. Have you got an independent recollection Mr Potter?
A. No I don't have an independent recollecting of when I next saw her, no.
Q. Would you have had a system at the time of a regular catch up with clients
such as Ms Coffey?
A. No.
Q. Would you routinely at the conclusion of any conference such as the one
conducted on 14 March 2005 fix a date for the next one?
A. No.
Q. And you're not able to help us with what practical pursuits occurred after 14
March 2005 as a consequence of the discussion on 14 March 2005?
A. Not other than those that are set out in the affidavit.
Q. You commissioned the report of Professor Colditz in about September,
October 2005?
A. Correct.
Q. You asked for it in September and he delivered it in October?
A. Correct.
Q. And did you send a copy of it, that is the Colditz report that we see at page
15 of the bundle, did you send a copy of that to Ms Coffey?
A. I don't believe I did, no.
Q. But nevertheless you brought her in or had her come into your offices to
discuss it that's right?
A. Correct.
Q. Can you recall how it was that you determined that you should seek a
report from Professor Colditz?
A. Professor Colditz is an expert witness that I'd used in other matters not
dissimilar to what had occurred in relation to this child.
Q. Including in respect of alleged IVH's?
A. Not specifically I don't recall the previous cases in which I'd used Professor
Colditz related to generally cerebral palsy type cases.
Q. Because at one point I think there was a query either by Ms Coffey or
yourself as to whether James had indeed suffered cerebral palsy, is that right?
A. I don't recall that.
Q. Is the note made, the notes that commence on page 1 of the annexures Mr
Potter, the very first conference you had, you see on page 3 about the middle
of the page you've written the words ‘James may have cerebral palsy’?
A. Yes.
Q. Is that Ms Coffey's speculation that you've recorded do you know?
A. I believe so.
Q. You received the Colditz report as you've told us and asked to confer with
Ms Coffey?
A. Correct.
Q. And that conference is recorded, is it not, on page 23 of your affidavit, in
the file note?
A. That's correct.
Q. And, again, you see it records that you saw Mrs Kathleen or that you saw
Kathleen and Mrs Reid in conference?
A. Correct.
Q. And is it possible you saw both of them together on that occasion?
A. It's possible. I can't recall.
Q. You would accept it's an undesirable thing to be doing if it ultimately is to
turn out that the two of them are to be lay witnesses in the proceedings?
A. I take great care to ensure that if the circumstances of the factual
circumstances of what occurred are being discussed, we always see
witnesses separately. There are occasions when things like reports are
discussed that it may be appropriate to see people together. Mrs Coffey was
having great difficulty coping with life generally at that time and she required a
deal of support from her mother. I think her mother attended most conferences
with her. If there were issues discussed about factual events, I would have
always seen them separately.
Q. By the way, when you saw Mrs Coffey on the first occasion, in March of
2004, she attended on her own; is that right?
A. I can't recall whether she attended on her own or not, although it appears
that I did take a note in relation to her mother's details at that conference.
Q. From which you'd infer the mother was not there; is that right?
A. No, I can't infer that at all.
Q. Because in paragraph 2 of your affidavit you certainly suggest, don't you,
that the conference was with Kathleen?
A. Yes, I do.
Q. You make no reference to anyone else being present?
A. That's correct.
Q. And you had no difficulties understanding the instructions that were coming
from Mrs Coffey on that first attendance on her that you recorded in some ten
pages of conference notes, did you?
A. I don't understand that question.
Q. Well, she was able to articulate to you the facts as she understood them?
A. She gave me some information responsive to some questions I asked her,
yes.
Q. She was able to understand your question and respond to it?
A. I believe she was, yes.
Q. She was perfectly lucid, wasn't she, Mr Potter?
A. I can't say that.
Q. Well, she was able to give you sufficient information that it took some 11
pages of notes on your part to record?
A. Correct. She was able to give me a history.
Q. And this was a conference happening while her child is still in the Canberra
Neonatal Intensive Care Unit; correct?
A. Correct.
Q. So she is sufficiently concerned about what had happened to be able to
come to you in March of 2004 and articulate
A. At that very first conference she was very concerned about what had
occurred at the hospital, yes.
Q. If it was the case that Mrs Coffey's mother, Lynette Reid, was present at the
first conference, or indeed at any conferences, would that fact be recorded in
your invoicing system?
A. No.
Q. You convened the conference with Kathleen to discuss the Colditz report
on 15 November 2005, as recorded on page 23 of the bundle?
A. That's correct.
Q. And you recorded or at least you recorded in the notes that, ‘Colditz was
not supportive on liability or causation.’
A. Correct.
Q. And did you tell Mrs Coffey that?
A. Yes.
Q. Do you see a couple of lines above that you've got the word, ‘Reid in
conference,’ immediately below the date, on 15/11/05? You've got, ‘Reid in
conference: [1 hour]’?
A. Yes.
Q. Then underneath that there's something, ‘Re’ ‘Re James,’ is it?
A. ‘Re James.’
Q. You must have discussed, I gather, on 15 November 2005, what should be
done in light of the fact that Professor Colditz was unsupportive?
A. Yes.
Q. And one of the things you must have discussed, I gather, is the potential for
there to be other medico legal experts that might assist?
A. Yes.
Q. And you discussed particular medico legal experts who might assist?
A. Yes.
Q. One of those was a Dr John Pardey?
A. Correct.
Q. Is he an obstetrician that you've previously obtained in matters?
A. He is.
Q. And do you see the words, ‘Suggest Dr Pardey,’ about the middle of the
page?
A. Correct.
Q. Is that recording to your suggestion, that you see Dr Pardey?
A. I believe so, yes.
Q. Then you have an asterisk, question mark, something, ‘doctor in Canberra
(lady).’ Can you read that line, sir?
A. Yes, I can.
Q. To the right of the question mark, what's the entry?
…
Q. Query, something, ‘doctor in Canberra (lady).’
A. I can't be sure what that means, or what that says.
Q. Then the line below it reads, ‘? Dr Pardey in person.’
A. Yes.
Q. May we take it you were contemplating conferring with Dr Pardey in person
about it?
A. Correct.
Q. Or dispatching Mrs Coffey to speak to him?
A. I don't recall. It may have been either or both of those.
Q. And was contact made with Dr Pardey about this case?
A. I believe the answer is yes, but I have no record of it.
Q. How can it be, sir, that you would not have a record of making contact with
a medico legal expert in connection with a client's matter?
A. Because when I made the inquiry, Dr Pardey had been suffering ill health
about that time and had withdrawn from - he had actually withdrawn from
practice at about that time. He was no longer doing medico legal work, so it
couldn't be pursued.
Q. And the lady doctor in Canberra that the note refers to, can you recall
making contact with any female doctor?
A. I can't, no. I don't I'm not sure what the meaning of that note is.
Q. Did you have a female expert in Canberra that you had used in other
matters for the firm?
A. No.
Q. Do you see the reference in the second last bullet point, the second last
asterisk, ‘Suggest phone review tomorrow.’
A. Yes.
Q. Can you help us with what that phone review is contemplating?
A. My best recollection would be that I would make some inquiries with Dr
Pardey and get back to Mrs Coffey the following day to see whether he would
assist.
Q. So in what respect is a review involved in that plan?
A. I would review that position with her tomorrow.
Q. And part of your plan, I gather, was to send a copy of the clinical notes to
Kathleen?
A. That's what my note records, yes.
Q. May we take it that prior to 15 November 2005 she did not have a copy of
the clinical notes?
A. I had not sent her a copy of the clinical notes prior to that date, that's what
that note suggests to me.
Q. Did you discuss with Mr Ingram the implications of the Colditz report?
A. I don't recall.
Q. Because by this time that is, by November 2005 he had been briefed for
some eight months, hadn't he?
A. Correct.
Q. It would be, you would expect, your usual practice to deliver the melancholy
news that an expert report was unfavourable and what do we do next?
A. Not always, no.
Q. May it be that the ‘doctor in Canberra (lady)’ was somebody that Mr Ingram
had mentioned to you as a possible assist?
A. I don't recall, but I don't believe so.
Q. Do you have any record of having sent the Colditz report to Mr Ingram?
A. No.
Q. Is that an answer you give having looked at the file for that purpose
A. Yes.
Q. …or from recollection?
A. No, I reviewed the file for the purpose of preparing the affidavit.
Q. Can you recall, after the conferences on 15 November 2005, when the next
occasion was that you conferred with Mrs Coffey about her case?
A. I can't recall without referring to the notes.
Q. Would you please do so, sir. Does it follow from your answer that unless it's
in the notes you can't help?
A. Yes.
Q. Given that you told us that the reference to suggesting a phone review
tomorrow on page 23 records your intention to speak to Mrs Coffey after you
have made inquiries of Dr Pardey, may we take it that you would have phoned
her after you'd contacted Pardey, whenever that was?
A. I believe I would have, yes.
Q. You must have, I gather, whenever it was, discussed with Mrs Coffey what
the next move is?
A. I may have. I have no record of it, but I may have informed her that I would
look for somebody else to review the matter.
Q. Because all of the time that this is happening, you're conscious of the fact
that the injury was suffered in January of 2004; correct?
A. That's correct, yes.
Q. And you're conscious of the fact that, on one view of the world, January
2007 might be the deadline?
A. Correct.
Q. You next refer in your affidavit to the report of Dr Barraclough.
A. Yes.
Q. I think you tell us in paragraph 10 that you retained him in mid-June 2006.
A. Correct.
Q. That was some seven months after you had the conference with Mrs Coffey
in November of 2005?
A. Correct.
Q. Can you help us with what took place over that seven month period?
A. Not from my records, I can't, no.
Q. May we take it that, having reviewed the file last night for the purpose of
swearing this affidavit, you're unable to find any record of any activity on the
file in that seven month period relating to the procurement of expert evidence?
A. That's correct.
Q. And no record of any advice proffered to Mrs Coffey?
A. Correct.
Q. Did you find any record of any activity on the file in that seven month
period, sir?
HIS HONOUR: Just out of interest, Mr Cheney, does inactivity within the
limitation period assume any relevance, given that the significant date is the
expiration of the limitation period? I mean it's clear enough on the material that
no favourable expert opinion was obtained within the period, I just wanted
CHENEY: I have to confess your Honour
HIS HONOUR: Certainly by the time Dr Fliegner's report arrives with a
favourable content it was some years after the expiration of the limitation
period in 2007. I just you maybe have more understanding of it than me but
anterior delay but within the limitation period seems to be of little relevance, for
example we often see proceedings commenced on the very last day but no
criticism arises from that fact. Anyway, if I've interrupted a forensic line that
has significance I apologise. Wouldn't the most significant issue be what
happened between January 2007 and the arrival of Dr Fliegner on
CHENEY: You would think so but no on the authorities your Honour. The
relevant date is then when the action was discoverable and that is not
answered solely by looking at when the report was first received, so the fact
that Fliegner was received in
HIS HONOUR: All right, well if it's discoverable sure. Well that raises the
question why Dr Fliegner didn't turn up earlier I suppose.
CHENEY: Which is where we're sort of headed your Honour.
Q. You Mr Potter are unable to recall any activity, any relevant activity
between November 2005 and the commissioning of the Barraclough Report?
A. I'm unable to recall that activity yes.
Q. If there were such activity you would expect it to be recorded in a file note
or in some form in your file?
A. Generally yes.
Q. By July 2006 when you received the Barraclough report to which you refer
in paragraph 11 and which you annexe at page 24 you would have been
becoming increasingly anxious I gather about the need to find supportive
expert evidence pronto?
A. Yes.
Q. What did you recommend to Ms Coffey should be done after you had read
the Barraclough report, do you recall?
A. I don't recall specifically other than I formed the view that Dr Barraclough's
report was not sufficient to recommend the commencement of proceedings.
Q. And you say as much in paragraph 11?
A. Yes.
Q. But then what's not said in your affidavit with respect sir is what if anything
transpired in the nearly four year period between receipt of the Barraclough
report and Ms Coffey instructing you to close your file sir?
A. Yes.
Q. When preparing your affidavit I think you told us you attempting to bring
forward everything that you could advance on the issue of what activities there
were
A. I had
Q. Can I just finish the question sir?
A. Sure.
Q. On the activities that you undertook to pursue Ms Coffey's claim?
A. I had access to some material. This file has many volumes and in between
2004 and 2007 I did not have the electronic system that I have now. The
physical files are still in going back to that time are still in Wagga and I've
relied on staff to provide me with relevant information yesterday for the
purpose of doing the affidavit. I do not have the physical file here. I have not
physically reviewed it myself.
Q. May we take it from that last answer that if you had that opportunity you
may well turn up material bearing upon or occurring in the period July 2006 to
May 2010?
A. There may be, there may have been other things done but not in relation to
obtaining expert reports.
Q. Well how could there possibly be a higher priority in that circumstance than
obtaining expert reports sir? What other things would be done?
A. Without looking at the file I can't answer that question.
Q. It was a completely redundant case unless you had the expert evidence to
warrant commencing it?
A. Correct.
Q. So you wouldn't be incurring costs pursuing other activities until you'd
nutted out whether you had a case wouldn't you?
A. No I don't agree with that.
Q. Well may we take it that you're unable to assist with what if anything
occurred in the four year period between what you describe in paragraph 11
and what you describe in paragraph 12?
A. Sorry could you repeat that question?
Q. May we take it that you are unable to assist with what transpired on the
client's file in the four year period between July 2006 and May 2010 that you
refer to in paragraphs 11 and 12?
BARTLEY: Your Honour I object to that whatever my friend may take it to be
for example paragraph 10 of the paragraph 12 of the affidavit refers to one
area of activity.
CHENEY: That was the end date of the period I put.
HIS HONOUR: I don't think the question's objectionable Mr Bartley. I'll allow
the question.
BARTLEY: Your Honour pleases.
WITNESS: To answer that question with certainty I'd need access to my
original file which is in Wagga.
CHENEY
Q. So do you think it would have been beholden on you to when swearing this
affidavit to say that it was the product of an incomplete search on your part of
your own file?
A. No I don't believe there is any other relevant material but I am conscious of
the fact that I do not physically have the file in Sydney with me.
Q. See the period from 4 July 2006 and throughout 2007 is the period where it
was very likely that it might later be said the limitation period had expired
correct?
A. Correct.
Q. And you would have had some anxiety or some clean interest in exhausting
the expert evidence search in that period of all times I suggest?
A. Correct.
Q. And you're unable to help us with what was done after Barraclough's report
was received by way of pursuing other experts who might lend a hand?
A. My position was that I had two reports from experts who I had used
previously who were not supportive of this case.
Q. Had you used Professor Fliegner as an obstetrics expert in other matters
prior to commissioning him in 2011 in connection with this matter?
A. I have used Professor Fliegner in other matters; whether I had used him
prior to 2011 I can't say.
…
Q. You would have a list would you not Mr Potter of expert obstetricians and
neonatologists that you've used over the list?
A. I have a group of experts who I use regularly. That list of course is not
exhaustive. It depends on the case.
Q. Well may we take it that in the period after the receipt of the Barraclough
report logically the next step for you would be to trawl through that list to
identify any other obstetrics expert who might lend a hand?
A. No I don't believe that's correct.
Q. Should we infer from the fact that you're unable to point to any other expert
consulted that you had formed the view after receipt of the Barraclough report
that there was no point pursuing the matter?
A. Correct.
Q. Did you tell Ms Coffey that in July 2006 when you conferred with her about
the Barraclough report?
A. I have no record of that but I believe I would have.
Q. I'm sorry I think I put to you that you conferred with her about that report in
July 2006 which isn't fair. Did you confer with Ms Coffey about the Barraclough
report?
A. I believe I did yes.
Q. Sorry sir?
A. I believe the answer is yes.
Q. And did she tell you in July 2006 or whenever it was that you spoke to her
about the Barraclough report that you should not pursue the matter?
A. I can't recall that. I believe the conference would have been by telephone
otherwise there would be a file note in relation to it.
Q. And the instructions to which you refer in paragraph 12 were they given in
conference or over the telephone?
A. Over the telephone I believe.
Q. And were you able in your research through the file last night to find some
reference to those instructions were you to in order to be able to nominate the
date of 18 May?
A. I was able to identify that that's the date on which the file was closed.
Q. Because of some notation on the file to that effect?
A. No, because that was the date on which the file was archived.
Q. So have you assumed from the fact it was archived that Ms Coffey
must have instructed you to close the file?
A. Yes. I wouldn't have done it without those instructions.
Q. From which we can infer that there must have been a discussion with
her about the merits of the case is that right?
A. Yes.
Q. In or about May 2010?
A. Yes.
Q. And then the next you heard from Ms Coffey was in February 2011?
A. Yes.
Q. Can you see in paragraph 13 you say you again conferred with her?
A. Yes.
Q. You don't annexe any notes of the 15 February 2011 conference do you?
A. No I don't.
Q. Were any taken as you recall?
A. No they weren't otherwise they would have been annexed.
Q. Sir can I ask you to have a look at these two pages?
A. Yes.
Q. Do you recognise those as notes of the conference you're referring to?
A. I do. I do.
Q. Do you have any explanation why you would have not included those in the
affidavit?
A. I think these notes may have been produced pursuant to a notice to
produce and if that's the case I've overlooked them.
Q. You see the notes record that the conference was with Kathleen and Mr
Ingram?
A. Correct.
Q. And you don't mention Mr Ingram in your affidavit at paragraph 13 as being
present at this conference do you?
A. No I don't.
Q. So what was it if you didn't have these notes that reminded you when you
swore your affidavit that the conference occurred on that date?
BARTLEY: Your Honour that with respect these notes were produced in
answer to a notice, the first of the notices to produce. They were clearly in Mr
Potter's mind at the time when he was swearing the affidavit; they've been
omitted as an oversight.
CHENEY: Perhaps the witness can answer the question.
HIS HONOUR: Well that seems likely to me Mr Bartley. I don't think Mr Potter's
being criticised; he's just being asked what the physical relationship is between
those notes which were produced they're unavailable to him at the time that
the swore the affidavit and his failure to mention it.
BARTLEY: But they were produced before the affidavit, your Honour.
HIS HONOUR: Yes, yes.
BARTLEY: And with my friend before the affidavit.
CHENEY: I'm not suggesting we've had some forensic triumph, your Honour.
HIS HONOUR: No.
CHENEY: Mr Potter, you were able to depose in paragraph 13 to the fact of a
conference.
A. Mm.
Q. You didn't have the notes when you deposed it?
A. Correct.
Q. How did you bring it to mind?
A. I think I had made a note when these notes were sent to me from Wagga of
the dates of conferences.
Q. But you go further, don't you, than the mere date. You volunteer in
paragraph 13 that Mrs Coffey was having difficulty in dealing with her son.
A. Yes. That's what prompted her to contact me again, I believe.
Q. And so, as a consequence of that conference, you returned to prosecuting
the matter; is that right?
A. She requested me to review it.
Q. But when she came to you on 15 February 2011, she had no new material
to impart, did she, than she had previously had in the previous conferences?
BARTLEY: Your Honour, that question should be limited to no new opinion
material. There's clearly other material, that is, the state of James.
HIS HONOUR: Sure. I read the paragraph to say things were so bad at home
with the boy that she was, if you like - my words - desperately trying to find out
whether or not anything more could be done.
Q. Is that the sense of it, Mr Potter?
A. Yes, your Honour.
 CHENEY: But as to the burning question of whether there was a breach of
duty and whether there was causation and whether you can prove it, no matter
how pitiable was the condition of James and no matter how miserable things
were from Mrs Coffey, the case was no better than it had been when you
closed the file back when Barraclough's report had been received?
A. As of that date, that is correct.
Q. So what was it about that approach from her that caused you to
reinvigorate the search for an expert?
A. The cause was my response to her distress about the difficulty she was
having in looking after and managing this boy.
Q. So, in response to what you perceived was her distress, you were able to
find Professor Fliegner, is that the upshot?
A. Her condition and her request prompted me to make a further attempt to
establish whether expert evidence was available that would support her case.
Q. And I think you told us earlier that Professor Fliegner who is Melbourne
based; is that right?
A. Correct.
Q. Was an expert that you had used in other matters prior to Mrs Coffey's
A. No, I didn't say that. I have used Professor Fliegner in a number of cases. I
can't say, without a review of other files, whether I had used him prior to that
date.
Q. Well, if it was the case that you had not used him prior to this date, can you
help us with how it was that you became aware that he might be someone who
would assist?
A. He was an associate of my brother in law's.
Q. And was an associate of your brother in law's in 2004 when Mrs Coffey first
came to see you?
A. Possibly. They had been to medical school together.
Q. And can you help us with when it was that you first learned of that
relationship?
A. I can't, no.” [Emphasis added.]
190 The hospital contended that any conflict in this evidence between Ms Coffey
and Mr Potter concerning the question of whether he was instructed to close
the file should be resolved by preferring Mr Potter's evidence. According to this
submission, it accorded with logic and professional practice that a solicitor
would not have closed or archived the file without instructions to do so.
Although Ms Coffey ultimately denied that she instructed Mr Potter to do so,
her initial response was to say that she did not remember.
191 The hospital maintained that it was significant that, on Mr Potter's evidence,
within less than three weeks of being asked by Ms Coffey to re-activate the
search for expert evidence, and with no material bearing on the facts additional
to that which he had held since soon after his first conference with her, Mr
Potter located and conferred with Professor Fliegner, on the basis of whose
opinion Mr Potter concluded there was an arguable case. It follows, as a matter
of logic, that the same enquiries made at any time prior to January 2007,
including during the “dormant period” following July 2006, would likely have
produced a similar result, yet there is no explanation proffered as to what
transpired during that dormant period. The inadequacy of the explanation might
reflect the incomplete nature of Mr Potter's search of his files, a task he
delegated to others.

192 The hospital drew attention to two authorities said to establish that for the
purposes of the discoverability provisions in s 50D, a plaintiff may fall into the
category of persons who had the necessary constructive knowledge
notwithstanding having been advised by lawyers on the basis of expert
evidence that she did not have a cause of action.

193 In Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009]
NSWCA 35; Basten JA (with the agreement of Ipp and Macfarlan JJA) said:

“The objective test – ‘ought to know’

[57] The next question was whether the plaintiff's mother ought to have known
each of the facts identified in subs 50D(1). The answer to that question must
depend upon the effect of subs (2). It purports to provide a definition of what is
covered by the phrase ‘ought to know’. That description is premised on an
assumption that the person had not taken all reasonable steps to ascertain the
facts, or a particular fact, requiring an assessment to be made of what would
have been ascertained had such steps been taken.
[58] In most circumstances, the step of instructing a solicitor will be sufficient
for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of
taking ‘all reasonable steps’. (In some circumstances there may no doubt be a
question as to whether the plaintiff's instructions were adequate or whether
other limitations prevented the solicitor from taking proper steps in a timely
fashion: no such question arose in the present case.)
[59] The phrase ‘ought to have known’ can mean either that the person should
have inquired as to a fact (the active sense) or that he or she should have
been told of the fact (the passive sense). In this context, ‘should’ connotes a
culpable omission, either by the person who should have known, or by the
other person who should have supplied advice or information. If the limitation
period had been intended to commence, not because of a failure on the part of
 the putative plaintiff to take reasonable steps, but because of the failure of
another person, that could and should have been made clear. Rather, the
expression ‘ought to know’ was identified by reference only to what the
putative plaintiff ‘would’ have found out, if he or she had taken all reasonable
steps. That language is apt to engage the active sense of the expression only.
Further, the word ‘would’ (rather than ‘should’) is inconsistent with any
expectation of an inquiry into the conduct of the potential source of information
or advice.
[60] It was not suggested that, in the 26-day period after the accident, the
plaintiff's mother should reasonably have taken any step which she did not
take. Accordingly, unless the plaintiff's mother in fact had the relevant
knowledge, the defence must fail.”
194 In Frizelle v Bauer [2009] NSWCA 239, Basten JA (McColl JA agreeing) held:

“[27] There are circumstances in which s 50D may only be satisfied where the
applicant has taken all reasonable steps to ascertain a fact which may involve
medical or legal evaluation. It was not in doubt in Baker-Morrison (and indeed
was conceded) that the mother whose child had been injured did not know
either that the injury was caused by the ‘fault’ of the State or that it was
sufficiently serious to justify bringing an action, if such knowledge required the
application of any degree of professional expertise or assessment: at [24]. Nor
was it established that there were any steps that she ought to have taken, but
did not, within the period of 26 days following the accident, which was the
period in issue in that case.
[28] The present case falls into a different category. The period during which
the necessary assessment had to be made was a period of some nine months
after the date of the accident. The fact that further evidential material might
need to be gathered was beside the point, so long as the seriousness of the
injury could reasonably have been assessed within that period. Further, the
issue was not the threshold in the Civil Liability Act with respect to non-
economic loss, but the quantum of the applicant's economic loss. No doubt her
prognosis remained somewhat uncertain in April 2004, but the primary judge
was satisfied that the impairment of her earning capacity, and the likelihood
that it would continue, was known to her at least by early 2004. On the
evidence, that finding has not been shown to be open to significant doubt.
[29] At the heart of the applicant's claim was the suggestion in the affidavit, not
fully supported when taken into account with the cross-examination, that she
did not believe that she had a cause of action in relation to an injury which was
sufficiently serious to justify the bringing of the action because of advice
received from her solicitors. His Honour found that the injury ‘obviously was a
serious one and the plaintiff conceded that in her evidence’: Judgment, p 8. He
then noted that there was a further question as to whether it was sufficiently
serious to justify the bringing of an action, and continued (pp 8-14) to consider
whether that was so. In the passages set out above, he concluded that it was
sufficiently serious and that the applicant appreciated that fact.
[30] There may be a case in which the applicant has taken all reasonable
steps to ascertain facts depending upon the advice of professional persons,
but, having been given wrong advice, does not have the necessary state of
mind. According to Baker-Morrison, the terms of s 50D(1) may not be
engaged: see, Baker-Morrison at [59]. That, however, is not the present case
and the correctness of that view does not arise.
 [31] In substance, his Honour's analysis of the evidence suggests that the
delay in commencing proceedings was in part due to the dilatoriness of the
applicant in maintaining contact with and providing information to her solicitors,
and partly the dilatoriness of the solicitors. It is neither necessary nor
appropriate to assess those elements further.”
195 The hospital maintained that these extracts can be contrasted with the situation
here, where the mere step of asking Mr Potter to resume the search was
sufficient to have allowed Professor Fliegner to be retained within less than
three weeks. The steps that Ms Coffey should reasonably have taken then,
which she did not take until 2011, was to have continued to press, during the
dormant years, for expert evidence to be sourced, rather than doing nothing for
four years until instructing Mr Potter to close the file.

196 The hospital therefore submitted that for the purposes of s 50D, Ms Coffey is
one who "ought to know" of the facts that informed the decision to commence
the proceedings (i.e. the availability of expert evidence sufficiently
corroborative to provide an arguable case), because the Fliegner opinion
would, within the meaning of s 50D(2), "have been ascertained by the person
had the person taken all reasonable steps before that time to ascertain the
fact." On any view, Ms Coffey ought to have known of that fact at a time prior to
31 March 2008 (i.e. that date 3 years before she commenced) and, for the
purpose of s 50D, the cause of action was discoverable before 31 March 2008.

197 Ms Coffey in any event contends that she was relevantly under a disability. The
onus lies on her to demonstrate that she was under a disability for the
purposes of s 50F: New South Wales v Harlum [2007] NSWCA 120 at [73];
Kotulski v Attard [1981] 1 NSWLR 115 at 118D; Mulcahy v Curramore Pty Ltd
[1974] 2 NSWLR 464 at 478.

198 The applicable case law has focused on when a person is under disability as
contained within s 11(3)(b) of the Act, which predominantly mirrors s 50F(2). In
Kotulski v Attard, Slattery J said at 117F-118B:

“As there were no competing contentions by the parties to this motion as to the
intent of Parliament in respect of the extension of the limitation period where a
disability under the Limitation Act is established, little assistance is gained from
the Act being, in my view, a remedial one: see Bull v Attorney General for New
South Wales (1913) 17 CLR 370 at p 384; Pearce, Statutory Interpretation in
Australia, para [162], pp 105, 106.
Section 11(3)(b) is concerned with two classes of person:
 One who is incapable (which conveys the concept of total inability) and the
other substantially impeded in the management of his affairs in relation to the
cause of action by reason … of disease or impairment or physical or mental
condition.
According to the Shorter Oxford Dictionary to 'impede' means to obstruct in
progress or action; to hinder or to stand in the way of. 'Substantially', in my
view, does not mean trivial or minimal, neither does it mean total: See R v
Lloyd [1967] 1 QB 175. ‘Mental condition’ which is not defined in the Act is, in
my view, a condition of or pertaining to the mind which is the seat of
consciousness, thoughts, volition and feelings.
It seems to me that the expression ‘mental condition’ is meant to cover the
mind's activities in all its aspects, including the ability to form a rational
judgment, or to exercise willpower to control physical acts in accordance with
rational judgment.
…
I am of opinion that it is a relevant matter, in the consideration of the question
raised by the notice of motion, to have regard to how a reasonable person
without any impairment would conduct himself in the management of his
affairs. A reasonable person without impairment would be able to reason
normally about the matters relevant to a potential cause of action, to
understand and consider advice and to give instructions about any action…”
199 The Court of Appeal in New South Wales v Harlum applied Kotulski, with
Beazley JA (Tobias JA in agreement) specifying at [92] that the enquiry is
directed to determining whether the person claiming to be under the relevant
disability is able to reason normally about the matters relevant to a potential
cause of action, to understand and consider advice, and to give instructions
about any action.

200 In Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, the Court of
Appeal from [125] to [168] assessed s 11(3)(b) in detail. Campbell JA
emphasised at [141] that the sole concern of the Act is with the time within
which an action must be commenced, as opposed to a party becoming
substantially impeded after the action had been commenced. At [140]
Campbell JA explains what “management of affairs” means in the context of
the Act:

“…the relevant ‘affairs’ are ones in relation to a particular cause of action. In a

general sense, managing one's affairs in relation to a particular cause of action
includes doing the various things that would need to be done if that cause of
action were to be dealt with. Thus, it includes seeking advice about whether a
civil remedy exists for some perceived wrong, seeking advice about the
difficulties, risks, cost and effort involved in pursuing any such remedy and the
likely returns, comprehending and evaluating that advice, and, if the decision
to commence proceedings is taken, thereafter engaging in the continuing
 process of co-operation, interaction and decision-making that exists between
lawyer and client in running any civil action.”
201 His Honour then restated the applicable test in Kotulski and Harlum:

“[162] The question that must be answered, for the purpose of s 11(3)(b), is
whether ‘the person’, i.e. the plaintiff, had been substantially impeded in the
management of the relevant affairs by reason of one of the matters in
subparas (i)-(iv) [(a)-(c) for s 50F]. The notion that a particular person, A, has
been impeded in doing X by Y has within it the notion that that Y has got in the
way of A doing X and made it more difficult for A to do X. In deciding that
question, it might be of assistance to consider how a reasonable person, who
did not have to deal with Y, would have acted in seeking to do X.”
202 The hospital submits that Ms Coffey was not substantially impeded in the
management of her affairs in relation to the cause of action by reason of any
disease or impairment of her physical or mental condition. It submitted that Ms
Coffey had not discharged her onus of establishing that she was under a
disability for the purposes of s 50F of the Act. Her evidentiary statements
barely touch upon her mental state, still less do they satisfy the requirements of
the section as construed. The majority of Ms Coffey's statements concern
events surrounding the birth of James, rather than any disability or mental
illness she may have suffered.

203 Similarly, Mr Potter's affidavit does not refer to any disability or inability of Ms
Coffey to give instructions or otherwise manage her affairs in relation to the
cause of action. On the contrary, the affidavit bears out that she was able to
give sufficient instructions for him to record some 10 pages of conference
notes.

204 The evidence demonstrates that in many areas of Ms Coffey's life, she was
able to manage her affairs without any substantial impairment. Ms Coffey
makes clear in her statement at [50] and [58] that she has and continues to
provide 1-2 hours per day of additional educational assistance to James after
school and provides constant supervision for him when he is at home. Ms
Coffey's oral evidence confirms that she has always been his primary carer.
When James was transferred back to the hospital from Canberra, Ms Coffey
continued to travel between the hospital, her children's school and home on a
daily basis, with minimal or no assistance from her husband.
205 Ms Coffey was primarily responsible for managing the domestic affairs of not
only her own life, but that of her four children and household. As Campbell JA
noted at [178] in Guthrie v Spence, if a person is able to manage his or her
affairs in relation to numerous and diverse areas of their life, a good
explanation would be called for before one accepted that that person was not
able to manage their affairs in relation to some different area of their life. No
such explanation has been provided by Ms Coffey in this case.

206 Further, the evidence also appears to indicate that Ms Coffey was under no
substantial impairment in managing the prosecution of the cause of action
itself. For example, Mr Potter refers in his affidavit to her several attendances
upon him and with counsel.

207 Additionally, Ms Coffey was sufficiently in control of her affairs to be able,

according to Mr Potter, to instruct him to close the file on 18 May 2010, after
they discussed the merits of the case that month.

208 Nor do Dr Gertler's reports of 22 November 2011, 18 March 2014 and 21 July
2017 provide a basis for a finding that Ms Coffey was substantially impeded in
managing any of her affairs in relation to the cause of action. Dr Gertler noted
that Ms Coffey has been taking antidepressants since her third child (Caitlyn)
was born in 2001. That history is consistent with her oral evidence, although Mr
Coffey recalled that his wife had been taking antidepressants since August
1998, following the birth of Brianna. Ms Coffey gave evidence that the
antidepressants alleviated the symptoms of her depression.

209 Despite Ms Coffey giving oral evidence that her mental state "now" is an "eight
to a nine", Dr Gertler determined that there was no evidence that she suffered
from significant depression or anxiety, and that her capacity for "insight" and
"judgment" was appropriate. Overall, Dr Gertler concluded in his report that Ms
Coffey was "mildly depressed" and suffering from an adjustment disorder that
was chronic in duration. Dr Gertler noted in his report that this had had an
impact on her "capacity to tolerate her day to day responsibilities, particularly
as they relate to the care of her children and husband" but he did not provide
any further details. The use of the word “tolerate”, appears to indicate that Dr
 Gertler was of the view that Ms Coffey was unhappy with her day-to-day
responsibilities, as opposed to being unable to manage or carry them out.

210 In Dr Gertler's 18 March 2014 report, he expressed the opinion that Ms Coffey
was "mildly irritable but not significantly depressed". He concluded that she
continued to suffer from an "adjustment disorder with mixed emotional
features". In his 21 July 2017 report, Dr Gertler indicated that Ms Coffey
described "normal concentration and memory" and "a fluctuating level of
depression". He concluded that "there was no evidence of significant
depression at the time of assessment".

211 In their joint report of 27 October 2017, Drs Gertler and Wilcox reached broad
agreement about the nature and severity of Ms Coffey's mental illness. Dr
Gertler stated that she suffered from an adjustment disorder with anxious and
depressed mood which fluctuated in intensity but was generally mild. He found
(and Dr Wilcox agreed) that it had never been severe enough to warrant
domestic assistance, nor had it affected her capacity for work at any time after
19 January 2004.

212 No evidence has been adduced to indicate that Ms Coffey suffered from any
disease or impairment so as substantially to impede or make her incapable of
managing her affairs in relation to the cause of action. The evidence does not
support a finding that Ms Coffey has been under a disability at any time since
19 January 2004 for the purposes of s 50F of the Act.

Ms Coffey’s submissions
213 Ms Coffey drew attention to the same provisions of the Limitation Act to which
the hospital referred.

214 The definition of “under a disability” is also found in s 11(3)(b). The definition
was definitively discussed in State of New South Wales v Harlum. The
headnote in relation to this issue contains the following:

“(iv) The enquiry under s 11(3)(b) is directed to determining whether the

person claiming to be under the relevant disability is able to reason normally
about the matters relevant to a potential cause of action, to understand and
consider advice, and to give instructions about any action: [92]
Kotulski v Attard [1981] 1 NSWLR 115 (applied)
 (v) A fundamental aspect of bringing a claim is that it requires the exercise of
willpower to initiate the claim. However, having the willpower is not the only
question, in making a decision to commence an action, the person is also
making a decision to continue with the claim: [94]
Kotulski v Attard [1981] 1 NSWLR 115 (applied)”
215 The facts in Kotulski were similar to those in the present case. The
uncontested evidence given by Mr Coffey as to his wife’s ability to cope with
James’ substantial disabilities was uncontested and comfortably forms the
foundation for a finding that Ms Coffey was “under a disability” at least up to the
time when she gave instructions to commence the proceedings.

216 Further, s 50D provides strong support for the cause of action not being
“discoverable” at any time up to when the action was commenced.

217 The decision of the Court of Appeal in Baker-Morrison v State of New South
Wales is definitive in relation to the issue of discoverability and in particular,
“the meaning of caused by default of the defendant”.

218 To the extent that Mr Potter was cross-examined in relation to the steps he
took to pursue the question of liability, this is irrelevant. The “reasonable steps”
relate not to the solicitor but to Ms Coffey. It could not be said that she failed to
take reasonable steps. The headnote to that report confirms that:

“The ‘fact’ contemplated by s 50D(1)(b) is a relationship between the injury or

death and the fault of the defendant. The relevant connection is one of
causation. Since the primary particular of negligence on the statement of claim
was a failure to provide ‘a protective guard or covering along the area of
operation of the … sliding glass doors’, until the plaintiff’s mother was aware or
ought to have been aware of the availability and reasonable practicability of
installation of a device to make the sliding door safer, she could not be said to
be aware that her daughter’s injury was caused by a failure on the part of the
State to take reasonable care for her safety.”
219 Not only had Ms Coffey taken “reasonable steps”, she had received advice to
the effect that as at the date of the expiration of the limitation period there was
insufficient expert evidence available to support the commencement of
proceedings. This advice was based upon the report of Professor Colditz dated
10 October 2005 and the report of Dr Barraclough dated 4 July 2006.

220 It is clear that no further steps were taken in relation to obtaining an expert
liability report until following the conference between Mr Potter and Ms Coffey
on 15 February 2011: see paragraph 13 of Mr Potter’s affidavit. It is also clear
 that Ms Coffey was unaware of the relationship between the injury and the fault
of the hospital until she was informed of the views expressed by Professor
Fliegner in the conference with Mr Potter on 21 March 2011 at which time
instructions were provided to file a statement of claim: see paragraph 20 of Mr
Potter’s affidavit.

221 The statement of claim which was dated 29 March 2011 was filed on 31 March
2011. Thus, the Limitation Act has no application to the present case both
because of discoverability and the fact that Ms Coffey was under a relevant
disability.

Reply submissions
222 Kotulski directs attention to the ability to reason normally about the matters
relevant to a potential cause of action. The hospital emphasised that that is
very different to Ms Coffey's ability to cope with the day to day manifestations
of her son’s disabilities. Brian Coffey's evidence is of little or no relevance to
the enquiry whether his wife was under a disability.

Limitation Act defence - consideration

223 Mr Potter told Ms Coffey on 3 March 2004 that it would be necessary to get
expert opinion on whether the hospital was at fault and whether that fault
caused James to be injured. A report from Professor Colditz was obtained and
Mr Potter discussed it with Ms Coffey in conference on 15 November 2005.
The report did not assist Ms Coffey’s case and Mr Potter told her so.

224 Similarly, Dr Barraclough provided a report to Mr Potter in July 2006. Mr Potter

formed the view that it was not sufficient to recommend the commencement of
proceedings. I infer that Mr Potter shared his view to that effect with Ms Coffey:
Mr Potter said in cross-examination that he had no record of telling Ms Coffey
about that report when he conferred with her in July 2006 but said that he
believed that he would have.

225 The suggestion that Ms Coffey was unaware of the relationship between the
injury sustained by her son and the fault of the hospital until she was informed
of the views expressed by Professor Fliegner in the conference with Mr Potter
on 21 March 2011 in my view either misunderstands the applicable test or is
not supported by the evidence. The issue is one of discoverability, not
 discovery in fact. The terms of s 50D of the Act make this clear. The fact that
Ms Coffey did not “discover” Professor Fliegner’s opinion until within a three
year period before she commenced these proceedings ignores the significance
of what she should have discovered and when she should have discovered it.
All the steps that were taken and everything that occurred that led to the
provision of Professor Fliegner’s opinion could correspondingly have been
taken or could have occurred well before the period of three years prior to the
commencement of the proceedings. It is not open to Ms Coffey in this context
to argue that the fact that a supportive opinion was only provided when it was,
means that the same or an equivalent opinion was not always relevantly
discoverable. It would be different, for example, if some novel medical test or
diagnostic process had only been developed or come to her attention within
three years of the date of commencement of the proceedings. The
circumstances in which Professor Fliegner’s opinion was obtained are not
analogous to that example.

226 It is plain and I am satisfied that Ms Coffey sought Mr Potter’s advice, opinion
and assistance because she was aware of the possible connection between
what afflicted her son and some act or neglect on the part of the hospital. In the
events that occurred, Ms Coffey could in one sense never have discovered a
connection between the injuries sustained by James and the fault of the
hospital, having regard to my finding that the hospital was not ever at fault. The
fault of the hospital must therefore be relevantly understood to be the existence
and availability of an opinion that the relevant connection existed and that the
hospital was at fault. There was nothing to prevent Ms Coffey having earlier
discovered what she did discover in 2011. It is clear that she retained Mr Potter
for precisely that purpose and that he undertook to search for the connection in
accordance with his instructions. In the terms of the section, Ms Coffey ought
to have discovered before 31 March 2008 what she did discover when
Professor Fliegner’s report arrived. Having regard to the fact that Ms Coffey
consulted Mr Potter almost immediately after James’ birth, and in the events
that occurred, it is my opinion that she should have discovered all of the
matters to which s 50D(1) refers by no later than three years thereafter. The
fact that Ms Coffey discovered the connection when she did, in circumstances
 that were in all relevant respects identical to those existing long before that
date, indicates that she ought to have discovered the relevant facts more than
three years before the filing of her statement of claim and probably in fact no
later than three years after the events that gave rise to these proceedings.

227 Nor am I satisfied that the limitation period was suspended for the reason that
James Coffey was under a disability in the sense that Ms Coffey was an
incapable parent for the purposes of s 50F(2)(a) of the Act. Ms Coffey was
undoubtedly confronted with the awful difficulties associated with James’
disabilities. Those difficulties were no doubt made even worse to deal with by
reason of her family situation as it existed at the time of his birth. However,
despite these things, Ms Coffey was commendably able to see Mr Potter with
her story, to instruct him about what had happened and to arm him with the
material information that he needed to make the necessary inquiries on her
behalf. That is what occurred. Ms Coffey demonstrably was able to reason
normally about the matters relevant to a potential cause of action, to
understand Mr Potter’s advice and to give appropriate instructions. In this
respect I am also satisfied that Ms Coffey specifically instructed Mr Potter to
close her file and that he did so in accordance with those instructions. I accept
that dealing with the fact that her son had possibly been injured by the hospital
would have been a terrible and frightening thing with which to come to terms. I
am not satisfied that the effect of that realisation or appreciation substantially
impeded Ms Coffey’s management of the relevant affairs.

Conclusions and orders

228 It follows that there should in each case be judgment for the defendant. I will
hear the parties if so required with respect to the question of costs.

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