Prosser v Eagle & Anor S103/1999 [1999] HCATrans 601 (30 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S103 of 1999

B e t w e e n -

SARAH KIMBALL PROSSER

Applicant

and

SANDRA EAGLE

First Respondent

NORTH COAST AREA HEALTH SERVICE

Second Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 2.49 PM

Copyright in the High Court of Australia

MR B.J. SALMON, QC: May it please the Court, I appear with my learned friend, MR D.J.C. MOSSOP, for the applicant. (instructed by Colquhoun Murphy)

MR P.L.G. BRERETON, SC: May it please the Court, I appear for the respondents. (instructed by Blake Dawson Waldron)

GLEESON CJ: Yes, Mr Salmon.

MR SALMON: Your Honours, the applicant in this case eventually gave birth to a baby about 13 or 14 days overdue and we are here before this Court because the Court of Appeal dealt with the appeal from the primary judge on the very narrow ground that there was negligent treatment by the GP at a date when the baby was about 10 days overdue.

The court did not refer at all, that is the Court of Appeal, to all the other occasions when the plaintiff had mentioned her interest in and wanted information and advice about having a Caesarean birth and the first of those incidents occurred some six weeks or two months after she learned she was pregnant and extended right throughout the period up to a period in August, still before the expected and agreed date of birth, that is 27 August, 1988.

KIRBY J: Is your fundamental proposition that when she asked for this advice it was her entitlement as a patient under our law to be given proper information as to what circumstances would warrant caesarean section and that the doctor involved was not able to assist her in that regard and if she really wanted to persist she would have to go to see a doctor who was.

MR SALMON: Putting it briefly, the evidence, which was all accepted by the trial judge and referred to by Mr Justice Priestley in the Court of Appeal, fobbed her off whenever she raised caesarean section.

KIRBY J: Sounds like "Nanny knows best". It sounds like the old rule before Rogers v Whitaker.

MR SALMON: That is exactly right but the special leave point, we say, is that it is slightly different from both Rogers v Whitaker and Chappell v Hart because they were cases where the procedure was carried out without the advice. This is the reverse. Admittedly, the principles may well be rather similar but this is a situation where the patient was interested in a special procedure and the doctor would not give her any advice, information or assistance.

KIRBY J: The doctor said, "It's not an option" and she appears to have accepted that.

MR SALMON: Yes, but that was said and this was always somewhat the difficulty with the way the primary judge expressed his reasons. On the evidence, that actual statement was made right at the end when it may well be that, for very practical reasons, it sort of reached a stage where it was not an option. That was probably the Wednesday but may have been the Friday, but probably the Wednesday before she commenced natural labour on the Sunday morning at 3 am and what Mr Justice Priestley did in the Court of Appeal was to regard the trial judge's decision as indicating that any claim for negligence was for the statement made on the 7th or the 9th September.

Then, looking at that he then said, "Dr Chiragakis did not know about this conversation about the difference between a caesarean section and inducing the birth and, in fact, induction was not necessary and therefore we can ignore Dr Chiragakis' evidence because it was not given in the right framework" but, of course, Dr Chiragakis' evidence was that in the circumstances of this plaintiff, he would have conducted a caesarean section at about 37 or 38 weeks in the light of all the complications that had arisen since February 1988 and accordingly, the reason we are here is that instead of treating the primary judge's judgment as being negligent advice failing to let her get to a person who could carry out a Caesarean or giving a full information about a Caesarean, the whole thing was allowed to get to the stage where it was probably too late on Mr Justice - - -

McHUGH J: I appreciate what you have put on that but the difficulty I have at the moment is that we do not have the pleadings and the trial judge's judgment does not seem to reflect the way that you now want to put the case. I do not know whether that was the way it was put at the trial but if you go to page 32 of the book he seems to have looked at it, really, in terms of whether or not Dr Eagle informed Mrs Prosser that a Caesarean was not an option.

MR SALMON: He does. That is the way it seems to be but then when you read it he is really talking about that error. If you put a new paragraph starting:

The evidence of Dr Chiragakis establishes that in the circumstances of the present case a caesarean delivery was an option and in the event was an option which should have been pursued.

McHUGH J: Yes, but that is not the point you are making. The Court of Appeal set out to answer what appears at 32 - I should not say set out to answer, but this judgment answers what is at 32 but you seem to be pointing a different point and, for my part, arguably persuasive point that your client, having been concerned about having a caesarean section should have been fully informed and given full advice concerning aspects of it. Is that the way you are seeking to put it?

MR SALMON: Yes, and that is certainly opening on the findings of the fact but what your Honour is saying, was it raised properly in the trial below. All I can say there - and the pleadings probably should have been before the court - failing to take any or any sufficient heed of the plaintiff's express wishes to have her child, informing the plaintiff when she expressed the wish to have a caesarean section if there was any possibility that a caesarean section would not be necessary - in other words, the conversation and the request by the plaintiff was raised in the first four particulars of negligence but, more particularly, the written submissions of Mr Walmsley who appeared for the plaintiff made it very plain that the way he expressed it was misleading the plaintiff as to caesarean section and, of course, by doing that it may well be that everything was focused on the last conversation. The last conversation was only the culmination of a series of incidents and where the plaintiff was seeking - - -

KIRBY J: Remind me, did the trial judge say that he found as a matter of fact and believed your client that when she first went to the respondent when she asked about caesarean section and that she was not given a proper response to her inquiry?

MR SALMON: Yes, certainly that is the way the court - it is probably easier to use the Court of Appeal's summary of the evidence which is set out in the application book at page 54, paragraph 5 about line 17 where it says "Factual findings":

Many of the facts were common ground, some were disputed. The following is a summary of relevant events -

and it starts probably at line 20:

On 19 February 1988 when the plaintiff consulted Dr Eagle concerning a pain in her abdomen, Dr Eagle diagnosed a hernia.....The plaintiff was concerned at this stage that she was putting on weight.....She was worried also that delivery of her second child might be painful because of the hernia. Although her preference was to have a vaginal delivery, if the hernia were likely to cause strong pain she said she would prefer to give birth by caesarean section. Bruce J accepted the plaintiff's recollection that Dr Eagle had said a caesarean would not be necessary - - -

McHUGH J: I know, but that is the point. From the judge at first instance's judgment one gets the impression that it was run as a case, in effect, of misrepresentation whereas the case you are now seeking to put is a case of failure to inform and there is a vital distinction between the two. At the moment I have not seen anything which would indicate that it was ever run as a case of failure to inform as opposed to straight-out, negligent misrepresentation of fact.

MR SALMON: Your Honour, it occurs to me that they are not mutually exclusive, the two.

McHUGH J: They may not be, but the Court of Appeal has dealt with the case about option and it says, in the circumstances, when you read the evidence there is no negligence there but I thought you opened this appeal on a different basis. You were saying having regard to the plaintiff's complaints, she should have been fully informed as to all the circumstances in which she may or may not have a Caesarean or that it would be proper or not proper to have a Caesarean. That does not seem to be the way the case was conducted.

MR SALMON: In one sense everyone accepts that the plaintiff was interested in a Caesarean and kept raising it with the doctor. Her doctor kept saying, "You don't need one".

McHUGH J: I know, but that is why, it seems to me it is plain as a pikestaff that there was an arguable case that she should have been informed of her rights having regard to Rogers v Whitaker, but was that the case that was made?

MR SALMON: It was certainly pleaded and the findings of the judge would suggest it was there. It was never foregone and the particulars of negligence expressed it in a way which, one would submit, fairly raised it, failing to inform the plaintiff about all the issues about caesarean section. It is clear that Mr Justice Bruce was conscious of all the previous warnings and he talks about "in all the circumstances" but he did focus on what was perhaps the most telling remark, that is it is "not an option" which, of course, was right at the end when, arguably, it was not an option because of the factors that had then developed.

The reason why we are here is because the Court of Appeal instead of, as it were, analysing the whole case and looking at it, latched on to the reasoning or their view of the reasoning of Mr Justice Bruce in the court below and, as it were, analysed it down to the very case that only dealt with negligent treatment and advice, information, conversation and conference, that part was all just ignored as if the only case that his Honour was dealing with was the case arising from the conduct on the 7th or 9th.

Now, although his Honour focuses on that, because obviously it was the culmination and the most telling incident, it was not certainly something that the plaintiff ever gave up and it is certainly something which is clearly open, not only on the evidence - we do not have to go to the evidence or the pleadings - but in all the findings of his Honour which were accepted.

GLEESON CJ: I gather from the way you are putting the argument that you do not resist the conclusion that there needs to be a new trial in this matter. It is the scope of the new trial that you are now interested in. You do not seem to be - - -

MR SALMON: I could try and submit that there are enough facts here for this Court to actually find, if the Court saw fit to grant leave and dealt with the appeal, there are a lot of findings of fact here which would, conceivably at least, enable the Court to finally dispose of the matter but certainly, on any view of it, the Court of Appeal should have granted a new trial on all issues.

GLEESON CJ: The way you are putting your argument seems to be proceeding upon the basis that the Court of Appeal dealt a fairly effective blow to the reasoning and decision of Justice Bruce.

MR SALMON: Interpreted the way they did, if special leave were granted, we would be arguing that a proper analysis of his judgment was not - the reasoning was not as defective as was held in the Court of Appeal but we do face the prospect, I concede, that when every single aspect was looked at on a full appeal, the Court may take the view that there are still some outstanding issues that would not allow the matter to be dealt with finally.

KIRBY J: So, picking up the Chief Justice's point, if you could hang on to the verdict then you are not concerned about, as it were, going back to a retrial on the post-birth negligence order?

MR SALMON: No.

KIRBY J: But if there is to be a retrial as the Court of Appeal has ordered but limited to the post-birth point, is it your contention that if there has to be a retrial it ought to be a retrial generally?

MR SALMON: Yes. If there had to be a retrial, exactly.

KIRBY J: And I notice here on page 8 of Justice Bruce's judgment that the trial judge records that as early as 28 April:

Mrs Prosser once again consulted Dr Eagle regarding the possibility of giving birth by caesarean section.

So - here it is, it is up the top of that page:

she would prefer to give birth by caesarean section.

That was in February 1988 so that in, as it were, chronicling the facts, his Honour, for some purpose, has indicated that quite early in the consultations Mrs Prosser was asking about caesarean section so that rather supports the suggestion that you were trying to run a case that she was asking about it and Dr Eagle was fobbing her off.

MR SALMON: Yes. The first occasion is on the previous page where his Honour says that:

In early 1988 Mrs Prosser noticed that her abdomen was growing quite rapidly and that she had begun to wear maternity clothes as early as 6 weeks into her pregnancy.

GLEESON CJ: Was there evidence of a professional nature, for example, that anything he said or failed to say in response to her questions about caesarean section was negligent? He seems to have wanted to talk her out of having a caesarean section but I presume it is legitimate behaviour for medical practitioners to want to talk their patients out of certain things.

MR SALMON: Yes.

GLEESON CJ: It would be a strange world we lived in if doctors could not try and talk people out of pursuing a certain course.

MR SALMON: No. It really was not discussed. The evidence of Dr Chiragakis goes to all the background and says that the doctor should have - he goes so far as to say the doctor should have arranged a Caesarean but the implication is certainly the matter should have been discussed.

GLEESON CJ: But does not the Court of Appeal answer that by saying he expressed that view on the basis of a factual misunderstanding?

MR SALMON: No, with respect, that is wrong. The only factual misunderstanding he had was that the date of the statement that it "was not an option" was before the very late stage. His evidence was that as soon as the GP really considered the matter, the material was all there for a caesarean section to be actually performed but certainly considered and the error was only in the fact that he thought those words had been said in a somewhat earlier stage than they were.

KIRBY J: But did your side call a witness, an expert witness who said that given a patient of this background, given her experience, given the things she was complaining about, given the questions she was asking, I would have referred her to a surgeon who could perform caesarean section to give her advice on whether or not it was indicated in her case?

MR SALMON: The evidence of Dr Chiragakis, of course, was that he being an orthopaedic expert would have actually performed the operation if she had wanted it because there were so many indications for it and he would have performed it at 37, 38 weeks. The implication is quite clear that the matter should have been pursued with the plaintiff, otherwise he could not have given the evidence that on the material he had before him the operation actually should have been carried out and, of course, that is absolutely vital for the plaintiff holding on to the verdict because he also gave the evidence that all the terrible complications that have subsequently followed arose from the fact that the large baby, larger than had been expected, was delivered with hand assistance, not forceps but with some manipulation when it eventually arrived.

Had there been a caesarean section none of the complications would have occurred but there is no evidence of quite the kind that your Honour Justice Kirby suggests although I am just reminded, in fact a Caesarean - this is in the opinion - a Caesarean was an option. It was misleading to say it was not. He is assuming in the - - -

KIRBY J: You say, a fortiori, if it was an option at the time that that was said, it was certainly an option at an earlier stage and whether it was indicated in her case, she having raised it as a patient, she was entitled to be properly advised on it and if it was not within the competency of this doctor, the first respondent, then she should have been referred to somebody else.

MR SALMON: At least that. At least a full discussion about it and probably, if you take Dr Chiragakis at his absolute best, she should certainly have been referred to someone else.

KIRBY J: It still raises questions of causation which do not appear to have been explored because that doctor might equally have tried to discourage her and said, "You'll have your baby naturally and it's better that you do so." She might not have accepted that. We just do not know what would have happened then.

MR SALMON: In one sense, she would not but there is a finding by the trial judge that had she been given the option she would have had a Caesarean in the circumstance and all the complications would not have followed and he certainly was entitled to make that finding based on Dr Chiragakis' evidence.

GLEESON CJ: Thank you, Mr Salmon. Yes, Mr Brereton.

MR BRERETON: May it please the Court, the first reason why special leave should be refused is that the special leave question does not arise given the way the case has been conducted or, if it does, this is just not an appropriate vehicle at all to consider it.

May I enlarge on that in this way. The essential evidence about what the present applicant wanted so far as her birth was concerned is summarised by the Court of Appeal at page 61 and following. The Court of Appeal uses the direct evidence of the plaintiff rather than Justice Bruce's inaccurate summary of it. At page 61 at paragraph 29 the first approach in February 1988 is in this context, third last line:

I said because my birth with -

the first child -

had been so wonderful I didn't want anything to go wrong with this one and if she felt the pain would flare up I would prefer to have a caesarean.

Reaction:

It won't be necessary.

The next evidence, paragraph 30 in the first large paragraph there about halfway through:

I asked then, because it was so quick, would it be manageable, would it be something I could cope with or could we give it a miss and have a caesarean and she said no, it would be fine, like Jarryd's was.

Simple reassurance, no particular indication for a Caesarean at all. The second last question in that passage, just before 31:

I asked her again if there were going to be any complications that I just didn't want to have a horrible birth experience and I would rather have an epidural caesarean -

ie, rather than a horrible birth experience, answer:

No, it would be fine, everything would be fine."

Then we come to the critical consultation on the 7 or 9 September at the foot of the page:

At that stage I was having frequent check ups to see how things were progressing and she said.....she was going to put me into hospital for an induction.

.....I began to cry and I told her that I didn't like the idea of an induction at all, that I had grown up with horror stories of induction because of experiences my mother had, and.....I would rather have an epidural caesarean.

Next paragraph:

it was the scariest thing -

that is, an induction was the scariest thing -

I would rather not face that at all, I would rather have an epidural caesarean.

In cross-examination which is summarised in paragraph 33 at the end of the first question quoted at about point 7 on that page:

I recall trying to explain to her my fears, how they were so deep-seated about induction, when I asked for an epidural Caesarean it was not discussed, it was dismissed."

.....

"Q. Would you have undergone a Caesarean section even though there was a greater chance of you having a longer recovery period?

Question is allowed. The first response at line 4 is:

Would the natural delivery have included an induction?

Q. Yes? A. I would still have gone with the Caesarean had the natural delivery included the possibility of an induction."

And so on. Now, the point which all of that leads to is that to the extent that there was any preference expressed for a caesarean section it was, vis-a-vis, an induction, an eventuality which never happened so this is not a case of failing to warn of a risk which eventually happens as it did in Chappell v Hart and causes damage.

The failure to advise of the possibility of a caesarean section to avert an induction was irrelevant in this case because the induction never happened and all of these expressions of preference for caesarean section have to be seen in that context because if one goes down page 64 a little further at point 5, she said:

you informed Dr Eagle that your preference was.....epidural caesarean..... A. In preference to a difficult and complicated natural vaginal delivery, yes.

Q. Are you telling me that your preference was to have a vaginal delivery? A. Yes."

So that is the starting point as far as this plaintiff's preferences were concerned.

Now, as to how the trial judge dealt with the matter, your Honour Justice McHugh has noted what the trial judge said at page 32 and that followed on page 33 at line 7:

the duty which she owed to Mrs Prosser of referring her for the performance of a caesarean birth when requested to do so and in the circumstances of Mrs Prosser.

So what the trial judge found was a duty to refer for performance of a Caesarean birth, not a duty to advise, not a duty to inform, a duty to refer for performance of a Caesarean when requested to do so and the condition of the request, the induction, never arose and in the circumstances of Mrs Prosser, which meant that the fact turned very much on the special factual circumstances of her case including, for example, the suggestion of an anal assault many years earlier about which there was a large factual contest.

When that came to the Court of Appeal, the respondent, as the present applicant was in the appeal, conceded before the Court of Appeal that it was not negligent of the doctor not to arrange for a Caesar because it was her genuine and reasonably held view that a section was not indicated. It was not negligent not to recommend that Mrs Prosser have a Caesarean. It was not even negligent to advise her against it. The negligence lay in telling her it was not an option when it was and when she had repeatedly expressed the desire to exercise that option so in the Court of Appeal the respondent's, the present applicant's own submissions there, focused the Court of Appeal's attention directly on the statement "not an option", a position from which the applicant now seeks to shift in a very major way.

It is for that reason that the Court of Appeal decided the case just as it was asked to at pages 68 and 69, first by noting that the effect of Dr Chiragakis' evidence, page 68, line 21:

was that there were medically legitimate differences of opinion about whether Dr Eagle should either have agreed to arrange for a caesarean section to be performed or have referred Mrs Prosser to a gynaecological surgeon for further advice.

At page 69 that the words "not an option" were not nearly so absolute in the context in which they were spoken as the trial judge had thought them to be. So, what all of that shows is that no judge, none of the four judges who have been asked to consider this case, have ever considered the special leave question and none of them have ever been asked to consider the special leave question.

If the matter now came to this Court there is no evidence as to what advice or information it is alleged that Dr Eagle ought to have given. There was the argument below that she should have referred but no doctor has given evidence as to what advice she ought to have given in the circumstances and there is no evidence from the present applicant as to what she would have done had such advice been given, understandably because we do not know what the advice was.

McHUGH J: She did say, and she was accepted, was she not, that she would have had the Caesarean if it had been recommended?

MR BRERETON: Not quite, your Honour. I have not got the transcript with me but my recollection, and this is what was extracted in the summary of argument, was that if Dr Eagle had arranged for her to have a Caesarean she would have had one and that was in the Court of Appeal black book, volume 1, page 14, lines 18 to 20. So, in other words, if Dr Eagle had arranged for a Caesarean she would have had one but she did not.

KIRBY J: But that was in a context where her preference was to have a vaginal birth, where she was concerned about induction which did not occur, and where her concerns that she had raised, which were settled by reassurance by the doctor, was not, in the Court of Appeal, alleged to have been negligent as I understand it.

MR BRERETON: Quite so, your Honour. Now, given the concessions that were made in the Court of Appeal, the highest that the advice that could have been given might be put would be this. As it was conceded that it was not negligent for Dr Eagle to advise against the Caesarean, what the applicant would have to do would be to adduce evidence as to what she would have done given this advice, "Well, Mrs Prosser, I am strongly of the view that you do not need to have a caesarean section. I do not believe in interventionist obstetrics and I would counsel you strongly against having a caesarean section because you don't need one. That said, I have to tell you it's an option and if you wish I'll refer you to another doctor but it's not my advice."

KIRBY J: That was what was missing, those last words. That is what your client did not say to her.

MR BRERETON: Yes, your Honour.

KIRBY J: Now, is not that a serious thing. Patients have rights nowadays.

MR BRERETON: Yes, your Honour, but that it goes a little bit further than that. What I am saying is that assume that against me. Assume that that is the advice that should have been given, then for this Court to do anything with it, the Court has to find that there was evidence as to what the plaintiff would have done given that advice and there is no evidence from the plaintiff as to what she would have done given that advice. The only evidence is that to which I have just referred and which Justice McHugh drew attention to which is a further illustration that the case has simply never been put on the basis which is now sought to be raised to turn it into a special leave case.

KIRBY J: But is it an incorrect approach to say this case has to go back to trial. It has to be tried on the post-birth or during birth negligence that is alleged and, therefore, this being, at least given the way Justice Bruce appears to have misunderstood the case in the way you have indicated, that it would be desirable that the retrial be reopened and that that itself is a matter which warrants examination by this Court. In other words, to be a general retrial.

MR BRERETON: With respect, no, your Honour. Justice Bruce did not misunderstand the case in the way it was put.

KIRBY J: I thought the passage that you quoted at the beginning of your submissions indicated that his Honour did.

MR BRERETON: The passage I took the Court to from Justice Bruce's judgment indicated that his Honour was understanding the case as it was then being put. It is not the same case as is now put but that is the case that was put there and that is the case that was put in the Court of Appeal. The negligence was in saying "not an option" as your Honour Justice McHugh put, a negligent misstatement case not a failure to inform case. Failure to inform has not featured in this case until the special leave application was filed.

KIRBY J: Can you tell us that no expert witness was called to say, "If I had been this patient with the complaints and the concerns and that she was coming and repeatedly talking about Caesarean because I did not perform Caesars myself, I would have sent her off to see an expert" and that that is what she ought to have done.

MR BRERETON: I was not at trial but from my reading of the transcript and all the appeal books in the Court of Appeal there was no such evidence and that is confirmed. There was no such evidence. The expert evidence which the applicant relied on at trial is that of Dr Chiragakis which was that "I am an interventionist, I would have caesared her."

Now that means that if the matter came before this Court, this Court would be left with resolving the question of whether the Court of Appeal - resolving the special leave question, in the absence of evidence as to what advice or information should have been given, in the absence of any judicial finding at first instance or in an intermediate court as to what advice or information ought to have been given, in the absence of any evidence as to what the plaintiff would have done had that advice been given, in the absence of any consideration by a trial judge or Court of Appeal of that evidence and pending still outstanding unresolved challenges to various findings of fact of the trial judge which the Court of Appeal did not have to deal with because it dealt with its ultimate conclusions without troubling about the challenges to the findings of fact, then even if the plaintiff overcomes all of that there is an outstanding challenge to his Honour's conclusion on causation.

His Honour, the trial Judge, dealt with that at page 33 where his Honour said that in arriving at the conclusion that, on balance, had she been referred for "a caesarean birth then such a birth would have been arranged". His Honour considered the evidence of Dr Garland and said Dr Garland "had not seen Mrs Prosser before giving evidence and was not aware of her full medical condition". The evidence at trial was that if she were referred, or if she had been referred by Dr Eagle, then it almost certainly would have been to Dr Garland. Dr Garland was called he said that on the relevant assumptions he would not have seen her before 11 September but even if he had seen her he would not have proceeded to caesarean section before 11 September.

His Honour's rejection of Dr Garland's evidence, on the footing that he had not seen Mrs Prosser, did not satisfactorily explain that because the relevant assumptions were put to Dr Garland, so, there remains outstanding a substantial change to his Honour's conclusion on the question of causation. So, if the appeal or if special leave were to be granted, if the appeal were to be allowed on the breach of duty point then before the matter could go back for retrial at first instance there are remaining further outstanding challenges in the Court of Appeal, so that the matter would have to go back there for further hearing on the way.

McHUGH J: It might be that it is really a loss of chance case, is it not, rather than - - -

KIRBY J: At last we might - - -

MR BRERETON: Yes, it might be, your Honour. It has never been put on that basis.

McHUGH J: No, I know. That seems to me probably the correct basis for putting that sort of case.

MR BRERETON: But, essentially, what we are now faced with is something completely different from what was at trial and what was in the Court of Appeal.

KIRBY J: One day we will get a good loss of chance case.

MR BRERETON: I will see if I can find one, your Honour.

GLEESON CJ: Yes, Mr Salmon.

MR SALMON: The main issue to which my learned friend has directed himself is the lack of evidence. Can I just read you two bits of evidence. In Dr Chiragakis' report, he says:

I would have expected a reasonably competent doctor of Dr Eagle's experience, when asked for a caesarean at that stage of her pregnancy, to put her in touch with a doctor who would do none rather than mislead her -

Dr Quach gave this evidence:

Given the weight gain, the size of her abdomen and the fact she was 10 days overdue, if I was confronted with these problems and a request for caesarean section I would certainly call in a specialist much earlier than her due date.

KIRBY J: Yes, but these are addressed to the end of the - - -

MR SALMON: Towards the end.

KIRBY J: Towards the end, you see, and what we understood your case to be, and it had the ring of a case, if there was a foundation for it in the pleadings, in the evidence, and the way the case was presented at trial, was at the beginning your client should have been given advice on the medical procedures that were open to her and was not. That does not seem to have been the way, or at least it has not been demonstrated that that is the way in which the matter was pleaded and run at trial.

MR SALMON: That bit of evidence, although it referred to the subsequent events, the evidence was that on the material an obstetrician would have been called in much earlier than her due date, so - - -

GLEESON CJ: The argument that has been put against you is that she raised the issue of a caesarean section in the context of a desire not to have an induction.

MR SALMON: Not initially, with respect and those are the points that although my learned friend read some of the passages in the evidence about the earlier incidents and a bit of cross-examination about that, that was only two out of about five - - -

KIRBY J: Yes, but when she raised it at the beginning she was then reassured. Her primary wish was to have a vaginal delivery.

MR SALMON: If it could be done safely.

KIRBY J: That was her primary wish and then she raised early in the piece and she was reassured and apparently you conceded before the Court of Appeal that that was not negligent at that stage.

McHUGH J: It was not you, it was other counsel.

KIRBY J: Well, counsel for your client.

MR SALMON: It was not me, no. That is the other bit, with respect, where we did not. Mr Donohoe handled the matter in the Court of Appeal, I think, in the written submissions, having made concessions about Dr Eagle's treatment said, "Dr Eagle's clinical performance was acceptable. What was unacceptable was her" - Dr Eagle being a female - "impermissible statement of what Mrs Prosser's true options were." The point is that - - -

KIRBY J: Yes, but that is the "no option" statement which comes right at the end.

MR SALMON: Yes, but in the context of all the other requests about a caesarean where nothing was said, always reassured, that is only an example of the behaviour in relation to caesareans that started back in February, all of which where chronicled in the Court of Appeal decision.

GLEESON CJ: Thank you, Mr Salmon.

It has not been shown that the trial was conducted in a manner that would give rise to the principal point argued in the application for special leave, namely failure to advise the applicant about options available to her. No other point raised in the case warrants the grant of special leave. The application is refused with costs.

We will adjourn to reconstitute.

AT 3.20 PM THE MATTER WAS CONCLUDED