Tamara King by her next friend Kevin King v Sydney West Local Health District [2014] HCATrans 78 (11 April 2014)

Last Updated: 15 April 2014

[2014] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S199 of 2013

B e t w e e n -

TAMARA KING BY HER NEXT FRIEND KEVIN KING

Applicant

and

SYDNEY WEST LOCAL HEALTH DISTRICT

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 10.41 AM

Copyright in the High Court of Australia

MR E.G. ROMANIUK, SC: If it please the Court, I appear with MR R.N. O’NEILL for the applicant. (instructed by McDonnell Schroder)

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR S. WOODS, for the respondent. (instructed by Curwoods Lawyers)

KIEFEL J: Yes, Mr Romaniuk.

MR ROMANIUK: Thank you, your Honour. The infant who was born on 1 November was discovered to suffer from a syndrome called congenital varicella syndrome. That syndrome was caused by her mother having suffered adult chickenpox while her mother was pregnant with the applicant. The source of the mother’s infection was exposure to the applicant’s sister or the mother’s other daughter who had contracted the chickenpox virus through contact in the community.

KIEFEL J: I think you can take it we are familiar with the facts. It is just a question of causation that arose.

MR ROMANIUK: It is a question of causation. What I wanted to do was identify that the trial judge found that the duty of care that was owed was an obligation to advise the applicant’s mother of the availability of VZIG, which was an antibody agent, and its potential beneficial effects in preventing or ameliorating chickenpox and an obligation offered to administer that agent to the plaintiff’s mother.

KIEFEL J: And that the mother would have likely taken it if offered.

MR ROMANIUK: Correct. Now, in terms of how the relevant causal components fell for the applicant, she established that at the time she saw the hospital was within a relevant window when the agent was effective. She established that her mother, if offered, would have accepted the agent, and so the sole causation inquiry which was not resolved in favour of the plaintiff and the sole, and in effect, the last causal inquiry was a question which concerned whether on the probabilities, had the mother been administered the agent, it would have had the effect of avoiding or preventing the infant applicant suffering foetal congenital varicella syndrome.

Now, importantly, the way the trial court and the Court of Appeal resolved this question is that there was focus by the trial judge and Justice Hoeben on a different causal question to that which was focused on by Justice Basten and Justice Ward. Now, the different causal questions which Justice Basten and Justice Ward, on the one hand, identified was, if I could use the phraseology of Justice Ward, was whether or not the failure to offer or recommend and administer VZIG to the mother materially contributed to or caused the occurrence of foetal varicella syndrome in the foetus and, as Justice Basten described it, the ultimate question was whether VZIG would have probably prevented the plaintiff, being the applicant, developing foetal varicella syndrome. Justice Ward expressly - - -

KIEFEL J: What is the difference his Honour is referring to there? I do not quite follow.

MR ROMANIUK: The difference is that there was a dataset which was contained in this study called the Enders study, a 1994 study, which spoke to three material associations or positive statistical correlations, if I can use that phraseology. One of them spoke to the correlation between a mother being given VZIG after having been exposed to the varicella virus, and then going on to develop adult chickenpox in the mother. So that was an association about the agent and mum developing the condition.

There were two other associations which were related which spoke to the association between the mother being administered the agent and whether or not the child – the child who mum was pregnant with – would go on to develop foetal varicella syndrome. That, in substance, we say, explains the different focus on the statistical dataset and the outcome.

KIEFEL J: Sorry to interrupt you, but just to clarify, is Justice Basten’s reference to this by way of support for the view that his Honour seems to take at paragraph 31 and 32 where the breach of duty itself establishes – solves the causation question? That appears to be his Honour’s approach.

MR ROMANIUK: Yes, in part, because his Honour makes the point that the trial judge and, in effect, Justice Hoeben, had missed the point about the second and third statistical correlation. If I could just take your Honours to page 82 of the application book, if I could just explain the three correlations and how the statistics measured out. In relation to what I have labelled the first association which is what happens when the mother is given the agent and whether or not the mother goes on to develop adult varicella, there was what was called the Enders table and it was adjusted for a few – the trial judge adjusted the dataset for a number of matters, and if we can just put that to the side for the moment, but what - - -

GAGELER J: Could I just rewind a moment? Do you say there is any difference in the legal test as formulated by Justice Ward and the legal test as formulated by Justice Basten?

MR ROMANIUK: No. Justice Basten and Justice Ward agreed on the test but they differed on the outcome because Justice Ward, having looked at the information and looked at the dataset, then brought into play the fact that, as the incident of foetal varicella syndrome in the population was 1 to 2 per cent, and her Honour calculated that even if the effect of not giving the agent to the mother was to reduce that risk by 50 per cent because effectively the adjusted datasets showed that it was a 50/50 type scenario of mum developing adult varicella, Justice Ward calculated that that meant that the risk of injury was decreased to the applicant as the infant by 1 per cent, and therefore all you could say, that it might give rise to an outcome.

Now, we say that it is very hard to reconcile that last approach of looking to the incident in the population and then applying, in effect, a statistical empirical dataset because if you take, for example, the Rogers v Whitaker 1 in 14,000 risk and apply any type of dataset analysis to that, you are never going to get to anything approaching tens of per cent or 50 per cent because the logic of the approach that Justice Ward has adopted must speak to the fact that if you are only moving the risk of injury by 1 per cent, you are nowhere near on the balance of probabilities, but that then begs the question do you have to get to 50 per cent or do you have to get to 10 per cent or 20 per cent on that calculation analysis? That effectively requires mathematically either a very high population incident of a condition, something well over 50 per cent, or a very high statistical correlation that something will happen.

So that is where we say Justice Basten and Justice Ward differed in the outcome, but the second and third datasets, which Justice Hoeben and the trial judge did not effectively have regard to, demonstrated some important things about foetal varicella syndrome, and if I can just explain those. In the dataset there was an association or positive statistical correlation that there was no case of the foetal syndrome amongst the 97 pregnancies in which adult chickenpox had followed administration of the agent to the pregnant mother. So that means there was no foetal varicella syndrome in the 97 pregnant mothers who, after they were exposed to the varicella virus and they were administered the agent, there was no incident of foetal varicella syndrome.

Similarly, the third association or positive statistical correlation in the data was that, of the nine children who had the foetal varicella syndrome once they were born, none of their mothers had received the agent after they had been exposed to chickenpox during pregnancy. So that second and third bit of information from the dataset spoke in conventional terms and, if you put to the side the incident population of 1 to 2 per cent, would speak in conventional terms to a very strong – being very probative of a normal causal finding.

KIEFEL J: But are you saying that if one extrapolates from the study in the way that Justice Basten did, that the study is no longer or is in this respect not the subject of the limitations that the trial judge identified? They still continue to apply, do they not?

MR ROMANIUK: They still continue to apply because the main limitation was done on 212 participants. The nature of foetal varicella syndrome means there cannot be ethically randomly controlled trial.

KIEFEL J: The differential dosage and then the strike rate.

MR ROMANIUK: There was differential dosage and then there is a phenomenon that mothers who are exposed to chickenpox virus will not go on to develop it as an adult chickenpox condition, and that was about 10 per cent of the study. What Justice Basten identified was he said, look – sorry, his Honour reasoned that you could adjust to that 10 per cent which was loosely described as the “no virus strike situation”.

KIEFEL J: Did any expert give evidence to this effect?

MR ROMANIUK: The expert evidence as to the adjustments to the table – sorry, there was no – there was some evidence but the adjustments done by the trial judge did not follow the evidence. Justice Hoeben said effectively it was open to the trial judge to adjust the dataset, but as the position was put before the intermediate appellate court, on the dataset about mum getting the injection after exposure and then going on to develop chickenpox, even if you adjust it the way the trial judge did, it still essentially falls down to about 50/50. So there is about a 50/50 non-infection versus infection outcome. On that particular aspect of the dataset, this is where the matter of, we say, substantial importance comes in on what is the role that Justice McHugh’s analysis has in Chappel v Hart and should it be subject to the kind of limitation which was discussed by Chief Justice Spigelman in the New South Wales Court of Appeal in Seltsam.

We would say on any view, if one goes to the analysis of Justice McHugh in Chappel v Hart and picks up, starting at paragraph 27, what his Honour is discussing, that if his Honour’s analysis is within 5D and 5E of the Civil Liability Act, then the failure to administer the agent to the pregnant mother meant that, as in fact she went on to develop adult chickenpox, based on that dataset, the breach of duty resulted in the infant applicant being exposed to, to use Justice McHugh’s words, “an increased risk of injury” because here that risk of injury was the foetal congenital varicella syndrome and, according to the association in the dataset or the positive statistical correlation, it had been increased by of the order 50 per cent on any view of the adjusted dataset. So we say that if that is the first primary step of the Justice McHugh analysis - - -

KIEFEL J: The question here is not so much about an increase in risk. The mother is already exposed. The question essentially is whether or not the administration of the vaccine would have been effective, and that involves the question then whether the omission created a material contribution to the risk. That is really how it is to be looked at, is it not?

MR ROMANIUK: Yes, but we say that the Justice McHugh analysis, if it has a role to play, can be put into that – can be used as such. Now, if I could just - - -

KIEFEL J: In Chappel v Hart you could say there was an increase in risk because the surgery would have been untaken if there had been a warning.

MR ROMANIUK: Correct, and I think - - -

KIEFEL J: We are in a different area here.

MR ROMANIUK: The issue, as we would identify what your Honour the presiding judge has raised, compares, in effect, a past known fact, i.e. the fact that the surgery went, occurred, and the highly rare or the very rare or the random event occurred to a factual inquiry where the Court is hypothesising about a past factual event - - -

KIEFEL J: Here the hypothesis is, accepting that the vaccine would have been administered, would it have been effective to prevent or ameliorate the onset of chickenpox.

MR ROMANIUK: Correct. Now, if the dataset comes down at 50/50 because if Justice Basten’s analysis was correct as how you adjust for the 10 per cent non-strike rate because we know the mother did develop the chickenpox, so she is not in the 10 per cent of the population where it would not occur, the figures came down 46 participants would have had in that notional 100 pool an infection outcome and 46 would have had a non-infection outcome.

Now, that effectively means the dataset speaks to 50 per cent one way or the other. So that is where we say that the second and third correlations in the data about the 97 pregnant mothers and the nine affected babies was other material that meant that, as against the pure dataset, the other material established the foundation for a causal finding, together with the other material about the agent itself. So, for example, the agent was a purpose designed product who only had for one purpose only. There was a sufficiently strong temporal connection in the events. We know that the mother suffered chickenpox and we know the child had the outcome. So because there was focus on the question of the mother suffering the varicella outcome by the trial judge and the correct question was not referred to, in effect his Honour the trial judge did not look to those other matters.

KIEFEL J: Sorry, I still have difficulty in seeing what difference that really makes on the evidence, whether one looks at the mother or one looks to the effect on the child. Does it not come down – the data speaks in the same way, does it not, and it is also subject to the same limitations that the primary judge identified?

MR ROMANIUK: Well, the data in respect of the child speaks to a much stronger connection because the data was in relation to the 97 pregnant mothers who had had the injection after they had been exposed to varicella no children with foetal varicella syndrome. In the nine children in the study who had that condition, none of their mothers had had the injection after they were exposed.

KIEFEL J: The approach that you are taking and Justice Basten took is really to apply the data as such. Did not the primary judge go on to say that an application really just of the scientific figures is not sufficient to satisfy the legal test of causation because it does not really identify the question affecting an individual within a group? You have got to allow for that as well.

MR ROMANIUK: In effect, we point to the dataset as coming, as it were, to a 50/50 position and in that sense the dataset I suppose is – it does not deny connection but I suppose it does not, at the same time, establish connection.

KIEFEL J: Well, that is some percentage points higher than Justice Garling before he then reads it down because it does not address the position of the individual.

MR ROMANIUK: Correct, but then there is the other material which we say, in effect, the trial judge did not have regard to. Although he referred to it, what the trial judge did not do is give it any appropriate probative effect in the ultimate causation question.

KIEFEL J: We are into weight of evidence.

MR ROMANIUK: The difficulty with causation is that although it is a retrospective factual finding, the principles which control causation impact on those ultimate factual findings. Now, there is no credit, or demeanour type findings, so it is just an analysis of the evidence. So we would say that that would not diminish the utility of this as a vehicle, but we do say that the approach of Justice McHugh can apply to this category of case but the confinement which seems to be spoken to by Chief Justice Spigelman in the

Seltsam decision and applied by Justice Hoeben in this case, if that is correct, then that is a matter of public importance as well.

On a particular visitation basis, we say that the dramatic circumstances of the claim would justify a special visitation because the plaintiff succeeded on all but the one issue, and the way that issue has been resolved has been dealt with differently by the judges who have looked at the matter. If it please the Court.

KIEFEL J: We will not need to trouble you, Mr Kirk.

In this matter the issue is one of factual causation: whether the failure by the respondent to administer Varicella-Zoster Immunoglobulin to the appellant’s mother created or increased the risk that the appellant would suffer Congenital Varicella Syndrome. The primary judge, Justice Garling, found that it was not established, on probabilities, that the appellant would not have so suffered if VZIG had been administered, it was merely possible. A majority of the Court of Appeal dismissed the appellant’s appeal and we see no reason to doubt the correctness of that decision. Special leave is refused with costs.

The Court will adjourn to reconstitute.

AT 11.03 AM THE MATTER WAS CONCLUDED