Ellis v East Metro Health Service  WADC 91
I read with interest the latest instalment in Judge Gething’s decisions in relation to this contentious birth injury case. The substantive decision in the plaintiff’s favour is working its way at present to the Court of Appeal. It will be interesting to see what our CoA makes of the matter and whether some of the more uncertain issues concerning the CLA are clarified.
In this latest decision, Judge Gething dismissed an application by the defendant to amend its defence following judgement. In essence, the amendment sought to withdraw from an apparent ‘agreement’ in relation to various heads of damage. Uniquely in my experience, agreement in relation to such heads of damage was given effect by amendments to the statement of claim pleading specific sums for non-pecuniary loss, etc, with admissions of such sums in the defence.
As may have only been appreciated late in the course of the trial, this would cause ‘difficulty’ in the event the trial judge found in the plaintiff’s favour but did not accept the plaintiff’s injuries and disability were all caused by the criticised aspects of management of the infant’s birth. In other words, an intermediate outcome, between the plaintiff and defendant’s best cases.
It has to be said it is surprising if this was not appreciated earlier, given ‘causation’ was a primary ground for the defence of the claim. The defendant hospital’s primary case was that the neonatal observations and especially the neuroradiology were inconsistent with a late-labour hypoxic injury as the cause for the plaintiff’s evident disability.
The plaintiff relied upon the ‘face’ of the admissions on the pleadings to assert that if the injuries, in whole or part, were found to have been caused by negligent care, the entirety of the agreed sums should be awarded. Despite the fact appearances suggest this, it seems very unlikely this was the intended effect of the agreement by the defendant.
As things stand, the point is moot, because Judge Gething in his primary decision found the injuries alleged were indeed ‘all’ caused by negligent care. This is however squarely the subject matter of the appeal and no doubt the defendant hopes such conclusions will be overturned.
This will potentially create an awkward result if the pleadings cannot be amended, with, from one side’s perspective at least, a potential “windfall” for the plaintiff.
The decision raises the important practical question of how parties should seek to narrow quantum issues in medical negligence claims. As here, there is often difficulty in agreeing quantum per se, given the common scope for causation issues and variable conclusions as to the nature and extent of negligently caused loss (as well as issues concerning contingency discounts, etc).
With careful thought, planning and unambiguous execution, narrowing the issues with potentially significant time and costs savings, should still be possible. Unfortunately, this decision will not encourage defendants and their insurers in this respect.