DANIELLA LALEZARI (by her Next Friend DIANA LALEZARI) -v- NORTH METROPOLITAN HEALTH SERVICE [2026] WADC 68

[2026] WADC 68 [2026] WADC 68 (PC) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : DANIELLA LALEZARI (by her Next Friend DIANA LALEZARI) -v- NORTH METROPOLITAN HEALTH SERVICE [2026] WADC 68 CORAM : ASTILL DCJ HEARD : 9-23 JUNE & 20-21 AUGUST 2025 DELIVERED : 31 JULY 2026 FILE NO/S : CIV 3019 of 2021 BETWEEN : DANIELLA LALEZARI (by her Next Friend DIANA LALEZARI) Plaintiff AND NORTH METROPOLITAN HEALTH SERVICE Defendant Catchwords: Tort - Medical negligence - Breach and scope of duty - Finding that defendant breached duty owed - Causation - Whether breach caused plaintiff's injury - Whether factual causation proven on the balance of probabilities - Use of inferential reasoning - Relevance of counterfactual reasoning where breach by omission is alleged - Relevance of evidence of possibilities - Circumstantial case - Inference of factual causation -- 1 of 134 -- [2026] WADC 68 [2026] WADC 68 (PC) Page 2 Legislation: Civil Liability Act 2002 (WA) Health Services Act 2016 (WA) Result: Claim dismissed Representation: Counsel: Plaintiff : Mr G Droppert SC & Ms B Rogers Defendant : Ms R Young SC Solicitors: Plaintiff : Vertannes Georgiou Defendant : Panetta McGrath Case(s) referred to in decision(s): Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 Blacket v Barnett [2017] NSWSC 1032 Burke v Corruption and Crime Commission [2012] WASCA 49 Carusi v St Mary's Anglican Girls School Inc [2024] WASCA 137 Chester v WA Country Health Service [2022] WASCA 57 Child and Adolescent Health Service v Sunday John Mabior by next friend Mary Kelei [2019] WASCA 151 Davie v Manuel [2024] WASCA 21 East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Gunn v Meiners [2022] WASCA 95 Kocis v S E Dickens Pty Ltd [1998] 3 VR 408 -- 2 of 134 -- [2026] WADC 68 [2026] WADC 68 (PC) Page 3 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 Strong v Woolworths Limited t/as Big W [2012] HCA 5; (2012) 246 CLR 182 The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Watson v Foxman (1995) 49 NSWLR 315 -- 3 of 134 -- [2026] WADC 68 [2026] WADC 68 (PC) Page 4 Table of Contents Introduction .............................................................................................................................. 6 Issues arising for determination .............................................................................................. 6 Matters not in issue ................................................................................................................. 6 Issues for resolution .................................................................................................................. 7 Background evidentiary issues ................................................................................................ 9 Approach to the evidence ....................................................................................................... 9 Specific credibility findings ................................................................................................. 12 Diana and Eliran Lalezari ................................................................................................. 12 Midwife Lina Palandri ...................................................................................................... 13 Dr Marie Marcano ............................................................................................................ 14 Dr Danielle Paterson ......................................................................................................... 15 Dr Jennifer Beale .................................................................................................................... 15 Expert witnesses ................................................................................................................... 16 Relevant medical terminology ............................................................................................... 18 Stages of pregnancy .............................................................................................................. 18 Induction of labour ............................................................................................................... 19 Growth restriction and foetal development .......................................................................... 20 Hypoxic-ischaemic encephalopathy ..................................................................................... 21 Appearance, Pulse, Grimace, Activity, Respiration score .................................................... 22 Foetal cardiotocography monitoring .................................................................................... 23 Factual findings ...................................................................................................................... 27 25 August 2020..................................................................................................................... 28 26 August 2020..................................................................................................................... 32 27 August 2020..................................................................................................................... 36 28 August 2020..................................................................................................................... 39 Critical window .................................................................................................................... 43 Events immediately leading up to delivery ...................................................................... 50 Obtaining consent ............................................................................................................. 54 Caesarean procedure and delivery .................................................................................... 66 What was the scope of the defendant's duty of care to the plaintiff? ................................ 73 Identification of risk of harm ................................................................................................ 75 Failure to initiate and implement a 'structured plan'............................................................. 77 Surveillance monitoring ................................................................................................... 79 Failure to recognise the development of acidosis features ................................................... 84 Failure to interpret ............................................................................................................ 87 Professor Hyett ................................................................................................................. 87 -- 4 of 134 -- [2026] WADC 68 [2026] WADC 68 (PC) Page 5 Professor Morris ............................................................................................................... 88 Did the defendant fail to take reasonable precaution? .......................................................... 89 Causation ................................................................................................................................. 92 Causation and the counterfactual analysis ............................................................................ 93 What is the question of factual causation to be determined? ............................................... 94 Evidence relating to cardiotocograph interpretation and risk assessment ............................ 97 Would an earlier decision to expedite delivery have been made? ...................................... 103 Conclusion ...................................................................................................................... 107 Would earlier delivery have prevented the injury? ............................................................ 108 Was the injury inevitable? .................................................................................................. 110 Expert evidence as to cause and timing of injury ........................................................... 111 Could the insult have occurred prior to the induction of labour? ................................... 116 Could the injury be avoided? .......................................................................................... 117 What caused the insult? .................................................................................................. 118 Resolution ....................................................................................................................... 124 Conclusion ...................................................................................................................... 130 Would a decision to expedite delivery have resulted in earlier delivery? .......................... 130 Did the defendant's failure to take reasonable precaution cause the plaintiff's injury? ...... 132 Conclusion ............................................................................................................................. 132 -- 5 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 6 ASTILL DCJ: Introduction 1 On 28 August 2020 at 8.08 pm Daniella Lalezari was delivered by emergency caesarean section at King Edward Memorial Hospital (KEMH). At birth, she was in a critically compromised condition, described as pale, floppy and shallow breathing. By five minutes post-delivery she was not breathing at all, and her heart rate had fallen to less than 100 beats per minute (bpm). After a prolonged period of resuscitation, her vital signs improved and she survived. Nevertheless, it subsequently became apparent that she had sustained a hypoxic-ischaemic brain injury. That injury has resulted in significant and ongoing functional impairment likely to persist into Daniella's adulthood. 2 Daniella's mother, Diana Lalezari, had attended KEMH for an induction of labour (IOL) after concerns arose about Daniella remaining in utero for the balance of what was then considered a high-risk pregnancy. Daniella, through her mother and next friend,1 alleges that the clinicians at KEMH failed to properly monitor the induction and to recognise the growing risk of harm to her as the labour progressed. 3 The claim is brought against the defendant in its capacity as the health service provider responsible for the operation of KEMH and the conduct of its staff.2 While the defendant accepts that Daniella sustained her injuries during the IOL and birth, it contends that those injuries were unavoidable and were not caused by any negligence or breach of the duty of care owed to her. Issues arising for determination Matters not in issue 4 The defendant accepts that it owed a duty of care to Daniella,3 although the parties differ in how the formulation of that duty is expressed. Both parties, however, acknowledge that this difference is 1 When referring to Daniella in that capacity, I will describe her as 'the plaintiff', acknowledging that she remains a minor and lacks the capacity to make decisions concerning the conduct of proceedings brought on her behalf. When referring to her in her personal capacity, I will use her given name, 'Daniella'. 2 Section 7A of the Health Services Act 2016 (WA). 3 Amended Defence dated 4 April 2024, par 16 (defence). -- 6 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 7 immaterial to the issues in dispute, which concern the scope of the duty rather than its precise wording.4 I agree. Nothing turns on the respective variations in expression. 5 Although the plaintiff pleads,5 and the defendant admits,6 that it was vicariously liable for the acts of its employees, the plaintiff's case was not advanced on the basis that any individual employee owed and breached a duty of care so as to found the defendant's liability. Rather, her claim rests solely on an alleged breach of the defendant's own non-delegable duty of care which it owed to Daniella. While the defendant did not formally admit the existence of such a duty, it is clear that one arose, and the case has proceeded on the footing that the defendant accepted responsibility for acts carried out by its employees on its behalf. I have determined the matter on that basis. Issues for resolution 6 The sole issue for determination in this trial is whether the defendant is liable for Daniella's injury. 7 The plaintiff's claim is framed both in negligence and by reference to the operation of the Civil Liability Act 2002 (WA) (the Act). She submits that, when assessed against the criteria in s 5B(2), the defendant's failure to proceed to a caesarean section in a timely manner fell short of the precautions a reasonable person would have taken against a foreseeable risk of harm.7 Put this way, the claim alleges that the defendant acted unreasonably in delaying a decision to expedite delivery in the face of clinical indicators of developing injury. 8 That characterisation is further reflected in the way the plaintiff framed the issues for determination, namely:8 1. In the course of the IOL/labour were there foetal heart rate abnormalities which were identifiable on the cardiotocograph (CTG)? 2. If so, what was the appropriate response by those providing obstetric care to Ms Lalezari? 3. What was the response, including not responding? 4 ts 71. 5 Amended Statement of Claim dated 27 March 2024, par 6.2 (statement of claim). 6 Defence, par 5. 7 Plaintiff's Closing Submissions dated 12 August 2025, par 19 (plaintiff's closing submissions). 8 Plaintiff's closing submissions, par 50. -- 7 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 8 4. Did that response/non-response meet the requirement of a timely reaction? 9 However, that characterisation differs from the case described by the plaintiff's counsel during the application to amend the pleadings. On that occasion, counsel properly accepted that on the pleadings as they stood, any issue of delay in delivery was confined to causation, namely, whether any delay contributed to the onset of Daniella's injury, rather than whether the delay itself constituted a breach of duty.9 10 The significance of that distinction was addressed in the reasons I gave for refusing the application to amend. Although the application was ultimately refused on other grounds,10 I observed that the proposed amendments would have altered the nature of the pleaded case by elevating delay from a matter relevant only to causation to an element of the alleged breach.11 11 In confirming my understanding of the existing pleaded case during argument I noted that as currently pleaded, delay was confined to causation alone. That was also the defendant's understanding of the pleaded case. If that understanding was incorrect, a further amendment should have been sought. No such application was made, and the trial proceeded on that basis. 12 As I observed at that time, pleadings serve to define the issues for determination and to give the opposing party fair notice of the case to be met.12 Although parties may agree to depart from the pleaded case, the defendant made clear at the outset that this was not such a case.13 In those circumstances, the court must determine the parties' rights and liabilities by reference to the case as pleaded.14 13 Accordingly, the primary issues arising for determination must be assessed by reference to the particulars of negligence as set out in the plaintiff's statement of claim whereby she contends the defendant is liable by failing:15 75.1 … to initiate and or implement a structured plan (including a defined timeline for the induction) to monitor the induction of labour (including scheduled CTG monitoring, surveillance and 9 ts 372. 10 ts 445 - ts 446. 11 ts 442 - ts 443. 12 Gunn v Meiners [2022] WASCA 95. 13 ts 72 - ts 73. 14 Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279. 15 Statement of claim, par 75. -- 8 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 9 reporting) particularly because the growth of the Plaintiff was restricted and that the Plaintiff may have had limited reserve for labour. 75.2 … during the induction of labour and labour to recognize the development of CTG features of fetal distress and acidosis by at the latest of 18:43 hours on 28 August 2020. 14 On that basis, I accept that the defendant's articulation of the issues for determination align more closely with the case that has been pleaded against it. The question of the defendant's liability therefore falls to be resolved by determining the following matters:16 1. What was the scope of the duty of care that the defendant owed to Daniella? 2. Was that duty of care breached by a failure to initiate or implement a structured plan to monitor the IOL of Ms Lalezari? 3. Was that duty of care breached by a failure during the IOL and the labour itself to recognise the development of CTG features of foetal distress by acidosis by, at the latest, 6.43 pm on 28 August 2020? 4. If the defendant failed to discharge its duty of care, whether that failure caused Daniella's injury. 15 The determination of those four issues is distinct from, but dependent upon, the resolution of questions of credibility and the reconciliation of inconsistencies in the evidence, which together will provide the foundation for the necessary findings of fact. Background evidentiary issues Approach to the evidence 16 In general, the lay witnesses demonstrated limited independent recollection of events. Although each, at times, gave evidence suggestive of an apparent memory of what had occurred, the majority sought or required recourse to contemporaneous records to refresh that recollection. When presented with documentation inconsistent with their evidence, they either accepted that their recollection was mistaken or revised their account accordingly. None of this is surprising given that the events in question occurred more than five years prior to the trial. 16 Defendant's Outline of Closing Submissions dated 5 August 2025, pars 2 - 5 (defendant's closing submissions). -- 9 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 10 17 The difficulty such delay has on the reliability of a witness's memory is well known to the courts. In Blacket v Barnett,17 Hallen J, referencing McClellan P,18 noted: Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval. 18 The fallibility of human memory has been recognised to increase over time and this will be particularly so where disputes or litigation occurs. This is not necessarily due to untruthfulness or dishonesty. The processes of memory can be subconsciously affected by perceptions or self-interest. Often what is actually remembered is little more than an impression from which plausible details are then subconsciously constructed.19 19 For this reason, documents will ordinarily often provide more valuable information than the attempted recollection of the facts by witnesses, particularly where those witnesses have an interest in the outcome of the litigation. This is even more so when the documents are contemporaneous with the events the subject of the litigation, are accepted as being accurate and were prepared by a person who, at the time, had no reason to misstate the contents of the document. Contemporaneous statements as recorded in documents are likely to be a more accurate reflection of events than statements made at a later point in time or where recollections may have been affected by false memory. 20 However, as will be explained in greater detail below, many of the relevant clinical notes in this matter were not made contemporaneously but were entered retrospectively. While retrospective entries were often identified as such, there were numerous instances, many of them concerning critical events, in which inaccuracies were acknowledged by the relevant witness as likely having arisen from retrospective recording. In those circumstances, the weight that can be placed on those notes is necessarily reduced. 17 Blacket v Barnett [2017] NSWSC 1032 [257]. 18 McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665 quoting a passage from Australian Psychological Society, Guidelines Relating to Recovered Memories (2000). 19 Watson v Foxman (1995) 49 NSWLR 315, 318. -- 10 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 11 21 Unless otherwise specified, I have adopted the following approach to the assessment of the evidence: 1. Where no issue has been raised as to the reliability of an entry contained within the documentary material, primary emphasis has been placed on the objective facts as revealed, or inferred, and the inferences that can be reasonably drawn from those facts. 2. An inconsistency between what appears in the face of the document and a witness's recollection of the events does not cause me to consider the witness to be dishonest or untruthful in their recollection but does cause me to doubt the reliability of the witness's evidence. Where there is an inconsistency between the two, I have preferred what is objectively capable of being logically inferred from the face of the document, but it does not cause me to doubt the entirety of the witness's evidence. 3. Where a witness has given evidence that is non-controversial or is not challenged by other evidence, I am prepared to act on that evidence. 4. Where a witness's evidence is corroborated by what is contained in documentary evidence or by the evidence of another witness, I am more likely to accept that witness's evidence as being accurate. 5. Where inconsistencies were evident within the documentary material, I have resolved them by making findings of fact through an evaluative process, assessing that material in the context of other evidentiary sources found to be reliable. 6. Whilst not irrelevant, I have afforded limited weight to the appearance and demeanour of witnesses in giving evidence. In assessing credibility, I have placed greater regard to each witness's evidence considered in the context of the totality of the evidence before the court. 22 Ultimately, I do not consider any of the witnesses to have been untruthful. I am satisfied that each gave their evidence honestly in attempting to recount their recollection of the relevant events. However, each demonstrated limitations in the reliability of those -- 11 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 12 recollections. Where those limitations have led me to form an adverse view and to reject particular evidence, I have explained my reasons for doing so. 23 In relation to the key factual findings, and the witnesses that I am invited to make credibility findings on, the material witnesses are: • Diana Lalezari • Eliran Lalezari • Dr Marie Marcano • Midwife Lina Palandri • Dr Jennifer Beale 24 A number of additional lay witnesses were also called by the defendant. All gave their evidence with the assistance of contemporaneous notes made at the relevant time. Their evidence was largely peripheral to the issues in dispute, and relevant only to the extent that it may assist in evaluating the credibility or reliability of the principal witnesses identified above. No substantive challenge was made to their credibility. I am satisfied that each gave evidence honestly and to the best of their ability. Specific credibility findings Diana and Eliran Lalezari 25 Mr and Ms Lalezari are Daniella's father and mother respectively. They were married at the relevant time but were no longer in a relationship at the time of trial.20 26 I generally regarded Mr and Ms Lalezari as honest in their attempts to recall the events about which they gave evidence. However, their recollections were contradicted in material respects, leading me to have reservations about the reliability of their evidence. 27 This was most apparent in their accounts of the clinical examinations conducted prior to Ms Lalezari's admission for the IOL on 27 August 2020. While the details of those preliminary 20 ts 128. -- 12 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 13 consultations were not of themselves of material significance, subject to what is noted below, the discrepancies between Mr and Ms Lalezari's recollections and the contemporaneous medical records caused me to question the reliability of their respective accounts. 28 Those discrepancies arose in the evidence of Dr Elizabeth Armari and Dr Andrew Brewin, whom Ms Lalezari consulted on 25 and 26 August 2020 respectively. To the extent that the plaintiff relies upon inconsistencies between Dr Armari's recollection and the contemporaneous medical records, I prefer the contemporaneous records. In any event, those discrepancies are consistent with my broader observations as to the limited reliability of recollections formed long after the events in question. 29 In contrast, the evidence of Mr and Ms Lalezari differed significantly from that of Dr Armari and Dr Brewin in relation to the request for a second opinion and the warnings given about the risks associated with the pregnancy. To the extent that those matters are material to the resolution of this matter, I address them in greater detail below. 30 More generally, the extent to which their accounts were inconsistent with the contemporaneous medical records raised concerns as to the reliability of their evidence overall. The fact that both witnesses advanced substantially similar, yet incorrect, accounts suggests a degree of non-deliberate mutual reinforcement of memory. Given the passage of time and the undoubtedly distressing nature of these events, it is unsurprising that they may have discussed their recollections together. I do not make any adverse finding on that basis. However, it does reduce the weight that might otherwise be accorded to their consistent evidence and raises the possibility that the unreliability of one account has influenced the other. Midwife Lina Palandri 31 In 2020, Midwife Palandri held a permanent position at KEMH as a clinical midwife. She retired from that position in June 2024 after having worked at KEMH as a midwife for 45 years.21 At the time of giving evidence she remained on the casual roster. 21 ts 1106. -- 13 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 14 32 Midwife Palandri had very little independent recollection of the relevant events. Further, for reasons that will be elaborated upon in detail below, there were a number of instances in which entries she made in the medical records were shown to be inaccurate. There is no suggestion that those errors were deliberate, and I make no adverse finding as to her honesty. However, they do raise concerns as to the overall reliability of her evidence. 33 In those circumstances, and in the absence of reliable corroborative material, I have approached Midwife Palandri's evidence with caution. Dr Marie Marcano 34 At the time she gave evidence, Dr Marcano was a senior registrar in obstetrics and gynaecology at KEMH, five years into her specialist training with the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG). However, when she was involved in Ms Lalezari's care, she was working as a training registrar.22 35 As will be seen from the reasons that follow, Dr Marcano's involvement in the events in question was significant. Nevertheless, I found her evidence to have been given honestly and in a forthright manner, with no apparent attempt to evade or minimise responsibility. 36 It was apparent from the way she gave evidence that the events had had a personal impact upon her, which allowed her to retain a degree of independent recollection despite the passage of time. Notwithstanding, it was also apparent that Dr Marcano's recollection was, at times, unreliable and, despite the independent memory she retained, she relied heavily upon the contemporaneous notes to refresh that recollection. 37 During her evidence, she made appropriate concessions as to the limits of her memory, including where it had been supplemented by reference to the clinical records. However, as will be seen, events at the relevant time were not recorded contemporaneously but were instead documented retrospectively, which has made it significantly more difficult to reconstruct the precise timing of material events. 22 ts 875. -- 14 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 15 Dr Danielle Paterson 38 Dr Paterson is the head of the Department of Urogynaecology at KEMH. She qualified as a Fellow of RANZCOG in 2018. In August 2020 she held the position of senior registrar and urogynaecology fellow. Urogynaecologists are specialists in pelvic floor disorders, including urinary incontinence and other urinary conditions affecting women.23 39 In 2020, Dr Paterson would work her usual shift as a urogynaecology fellow, finishing at 5.00 pm, before then commencing the evening shift in the labour ward, which concluded at 8.30 am the following morning. In that capacity, she assisted the consultant in the management of the labour ward at KEMH.24 40 It was readily apparent that Dr Paterson had little independent recollection of the events in question. A recurring feature of her evidence was a reliance on her usual practice as the basis for her answers. That is not a matter of criticism given the passage of time to which I have already referred. However, it did give rise, at times, to difficulty in determining whether she was confirming that particular events had in fact occurred, or merely assuming that they had because they would ordinarily have formed part of her usual practice. This necessarily affected the reliability of aspects of her evidence. 41 A further difficulty arose from the limited nature of the entries she made in the clinical notes. Those entries were comparatively sparse, particularly when contrasted with those of Dr Marcano and Dr Beale, and were made retrospectively. This suggests either that her involvement in Ms Lalezari's care was more limited, or that it was not recorded in any meaningful detail. In either case, the practical consequence is that Dr Paterson had little contemporaneous material available to refresh her memory, which diminished the extent to which her evidence could assist in resolving the critical events in issue. Dr Jennifer Beale 42 At the time of giving evidence, Dr Beale was a consultant obstetrician and gynaecologist at KEMH, having been appointed to that role in 2017. She is a Fellow of RANZCOG and holds an international fellowship in paediatric and adolescent gynaecology, as well as a master's degree in reproductive medicine. In August 2020, she was the 23 ts 550. 24 ts 550. -- 15 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 16 consultant rostered on duty at KEMH from 8.00 am until 8.00 am the following day, with responsibility for overseeing the care of patients in the labour ward.25 43 Dr Beale was not cross-examined and so her evidence was received unchallenged. Ordinarily, where a witness is not cross-examined on a particular matter, it may be assumed that their evidence on that point is not in dispute26 and can be accepted. I have proceeded on this basis. Save for where Dr Beale's evidence is demonstrated to be unreliable by reference to a contemporaneous record or other evidence that I have found to be reliable, I have acted on Dr Beale's recollection of events. 44 Regardless, I found Dr Beale to be an impressive witness. She was forthright about what she could recall independently of the notes and candid in identifying where her memory had been refreshed by the materials she reviewed. She did not prevaricate, embellish her answers, or stray beyond the scope of the questions asked. Her evidence was measured and responsive, and nothing in her manner suggested any self‑interest in the outcome of the proceedings. 45 I accept Dr Beale's evidence. Where her account conflicts with that of any other witness, I prefer Dr Beale's evidence unless otherwise indicated. Expert witnesses 46 The plaintiff adduced expert evidence from three witnesses, Dr Michael Harbord, Professor Jonathan Hyett and Dr Robert Goetti. 47 Dr Harbord is a private consultant paediatric neurologist practising in Adelaide, who previously held an appointment as a visiting paediatric neurologist at the Women's and Children's Hospital in South Australia. He has published a number of articles on cerebral palsy in children, birth asphyxia, and developmental delay. 48 At the time of preparing his report, Professor Hyett was a senior staff specialist in obstetrics and maternal foetal medicine and Head of High-Risk Obstetrics at Royal Prince Alfred Hospital in New South Wales. By the time he gave evidence, he was a Professor of Obstetrics and Gynaecology at Western Sydney University and Acting Head of 25 ts 969 - ts 970. 26 Burke v Corruption and Crime Commission [2012] WASCA 49 [184] (Buss JA). -- 16 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 17 the Maternal Foetal Medicine Unit at Liverpool Hospital, a tertiary referral centre. He is also a Member of the Royal College of Obstetricians and Gynaecologists and a Fellow of RANZCOG. 49 Dr Goetti holds a medical degree from the University of Zurich and specialist qualifications in radiology from the Swiss Medical Association and the Royal Australian and New Zealand College of Radiologists. He has also obtained subspecialty qualifications in neuroradiology from the European Society of Neuroradiology. At the time he gave evidence, he was a staff specialist in paediatric radiology at the Children's Hospital at Westmead in New South Wales. 50 The defendant also adduced expert evidence from three witnesses, Professor Jonathan Morris, Dr Michael Hayman and Professor Stacey Goergen. 51 Professor Morris is a Professor of Obstetrics and Gynaecology at the University of Sydney. He also holds the position of Associate Director of Medical Patient Safety at the Clinical Excellence Commission of New South Wales, where he serves as the maternity lead for maternity surveillance. His qualifications include a Master of Medicine and a PhD from the University of Sydney. He is a Fellow of RANZCOG, a Fellow of the Australian Academy of Health and Medical Sciences, and a certified maternal foetal medicine specialist. In addition, he holds a Diploma in Diagnostic Ultrasound from the Australian Society of Ultrasound in Medicine. 52 Dr Hayman is a consultant paediatric neurologist practising at Victoria's two tertiary paediatric centres, the Royal Children's Hospital and Monash Children's Hospital. He is a Fellow of the Royal Australian and New Zealand College of Physicians and holds appointments as a Senior Lecturer in the Department of Paediatrics at the University of Melbourne and as an Adjunct Lecturer in the Department of Paediatrics at Monash University. He is also an Honorary Research Fellow with the Murdoch Children's Research Institute. 53 Professor Goergen is a Professor of Radiology at Monash University and a staff radiologist at Monash Health in Melbourne, where she specialises in paediatric and foetal neuroradiology. She holds a Master of Clinical Epidemiology and has been a Fellow of the Royal Australian and New Zealand College of Radiologists since 1990. -- 17 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 18 54 No issue was taken with the expertise of any of the witnesses, and I am satisfied that each was suitably qualified to express the opinions they did. It was also apparent that each witness was mindful of the limits of their expertise, declining to offer opinions where they considered it inappropriate to do so. 55 Unsurprisingly, the expert witnesses advanced differing, and at times conflicting, opinions. The resolution of those differences has largely depended upon the factual assumptions underpinning those opinions, considered in the context of the findings of fact I have made, rather than upon any material difference in the experts' respective qualifications. Relevant medical terminology 56 Before setting out my findings of fact concerning the circumstances surrounding Daniella's birth and the occurrence of her injury, it is convenient to outline certain definitional and explanatory matters arising from the medical evidence central to this trial. Unless otherwise indicated, I adopt the following matters for the purpose of providing context to my reasons. Stages of pregnancy 57 Foetal gestation is divided into three distinct stages, each of which may inform the factors relevant to a clinical assessment of the health and development of the foetus:27 1. The 'antepartum' or 'antenatal' period refers to the time before birth, spanning from conception until the onset of labour. 2. The 'intrapartum' period covers the interval from the commencement of active phase of the first stage of labour through to the delivery of the newborn. The active phase of the first stage of labour is variously defined but usually ranges from 4 - 6 cm of cervical dilation. 3. The 'postpartum' or 'postnatal' period extends from the birth of the newborn through the following weeks, during which the mother recovers from childbirth. 27 ts 462. -- 18 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 19 58 When the mother is having about four contractions every 10 minutes, this usually means she has entered 'active labour'.28 At that stage, the increased stress placed upon the foetus's reserves will heighten the need for clinical surveillance. The mother is also likely to experience increased pain, which may require more significant analgesia, including the administration of an epidural or morphine.29 59 Although there is some variability as to the degree of dilation required to indicate the onset of active labour, there is broad agreement that it typically occurs when the cervix is dilated to between 4 and 6 cm.30 The commencement of active labour marks the beginning of the intrapartum phase. Once cervical dilation reaches 10 cm, the cervix is fully dilated, allowing for delivery of the baby.31 60 During labour, the foetus moves to assist with delivery. This progress is assessed by how far the foetal head has descended into the mother's pelvis, measured against the level of the ischial spines. This is described in terms of 'stations'. Negative numbers (-3, -2, -1) indicate that the foetal head remains above the ischial spines, while positive numbers (+1, +2, +3) indicate that it has moved below and further down the pelvis. When the head reaches about +3, delivery is imminent.32 Induction of labour 61 An IOL will occur when the obstetrician has decided that labour needs to be induced artificially.33 62 The IOL typically begins with 'cervical priming', being the process by which the cervix is encouraged to soften, thin, and dilate. This may be achieved pharmacologically, for example through the administration of prostaglandins, or mechanically, most commonly using a balloon catheter. One side effect of using a balloon catheter is it can cause uterine contractions.34 63 During labour, uterine contractions affect the placental transfer of oxygen to the foetus, resulting in intermittent reductions in oxygen supply. In the ordinary course, a foetus possesses sufficient metabolic 28 ts 650. 29 ts 613. 30 ts 462. 31 ts 269. 32 ts 269 - ts 270. 33 ts 269. 34 ts 461 - ts 462. -- 19 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 20 reserves, including glucose and glycogen, to tolerate these temporary reductions.35 64 However, growth-restricted foetuses tend to have reduced reserves of glucose and glycogen, making them less able to tolerate and adapt to the intermittent reductions in oxygen supply caused by contractions. As a result, the process of IOL in such circumstances carries an increased risk of foetal distress. Given that elevated risk, an appropriate level of monitoring is required during this process.36 Growth restriction and foetal development 65 A growth-restricted foetus is one whose growth during gestation is impaired, often as a result of inadequate nutritional supply, including reduced oxygenation. 66 In circumstances of reduced oxygen availability, the foetus may redistribute blood flow preferentially to vital organs, particularly the brain, in order to preserve ongoing development.37 This compensatory response can result in reduced overall foetal growth. The presence of foetal growth restriction may therefore indicate an adaptive response to an adverse intrauterine environment and is associated with a high-risk pregnancy.38 67 One effect of redirecting blood flow is that it may reduce the supply of blood to other organs, including the kidneys, which can hinder their development. If kidney function becomes compromised, the foetus produces less urine, a key component of amniotic fluid. A decrease in amniotic fluid can therefore signal that the foetus is experiencing growth restriction.39 68 Foetuses that are growth restricted will have higher risk of foetal distress during labour due to lower metabolic reserves of glucose and glycogen. Such a pregnancy will be considered a 'high risk' and will require greater levels of monitoring regardless.40 35 ts 462. 36 ts 462. 37 ts 275. 38 ts 458. 39 ts 273, ts 459. 40 ts 462. -- 20 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 21 69 Further, because amniotic fluid helps protect the foetus, a reduction in its volume can increase the risk of additional complications, such as cord occlusion.41 Hypoxic-ischaemic encephalopathy 70 Hypoxia is a cellular process arising from an inadequate supply of oxygen in the blood, resulting in biochemical changes that may cause damage to tissues and organs. In cases of birth asphyxia involving prolonged periods of intermittent hypoxia during labour, it is common for this process to affect multiple organ systems, most notably the kidneys and the liver.42 71 In cases of chronic or gradually developing hypoxia, the body initially responds by increasing cardiac output and preferentially redistributing blood flow to vital organs, particularly the brain.43 This increase in cardiac output is achieved through an elevation in heart rate and may be accompanied by a subsequent reduction in heart rate variability.44 As hypoxia persists and worsens, foetal heart rate decelerations may occur. 72 From a metabolic perspective, progressive foetal hypoxia first gives rise to respiratory acidaemia and, if sustained, progresses to metabolic acidaemia associated with tissue injury.45 Acidaemia refers to an abnormally low blood pH, reflecting increased acidity of the blood. In foetuses, this is often referred to as foetal acidosis. 73 Encephalopathy signifies there has been some injury, often referred to as an 'insult', to the brain that impairs its function. Hypoxic-ischaemic, comprising hypoxic, meaning too little oxygen, and ischaemic, meaning too little blood flow, indicates the insult has been caused by a lack of blood and oxygen to the brain.46 The condition presents with a range of clinical signs which may include seizures, abnormalities of muscle tone, and a general reduction in reflexes. Particular attention will often be given to the sucking reflex, which is often absent or diminished in newborns with encephalopathy. A poor grasp reflex may also be observed. Taken together, 41 ts 303. 42 ts 273. 43 ts 292. 44 ts 524. 45 ts 319. 46 ts 271. -- 21 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 22 these findings are consistent with a clinical diagnosis of hypoxic-ischaemic encephalopathy.47 74 Hypoxic-ischaemic encephalopathy is classified into three grades, ranging from mild or moderate (grade one) to severe (grade three). In cases where a newborn is diagnosed with severe, grade-three hypoxic-ischaemic encephalopathy, there is a significant likelihood of associated brain injury, such as cerebral palsy, which will adversely affect the child's long-term development.48 75 Daniella's hypoxic-ischaemic encephalopathy has been assessed as grade three and she exhibits signs of severe developmental delay together with diagnoses of cerebral palsy, cerebral vision impairment amounting to functional blindness, and impaired hearing.49 Appearance, Pulse, Grimace, Activity, Respiration score 76 One method of assessing a newborn's clinical condition is through the use of an Appearance, Pulse, Grimace, Activity, and Respiration (APGAR) score. This score is based on evaluating five components, each of which is assigned a value from 0 - 2. The scores are then combined to give an overall result ranging from 0 (indicating no signs of life) to a maximum of 10 (indicating a very healthy newborn). These scores are typically assigned one to five minutes after birth but can be extended out over 10 - 20 minutes.50 77 In determining the APGAR score, the following criteria are applied:51 1. Pulse - This is the most significant component. A newborn with no detectable heartbeat receives a score of 0. A heart rate below 100 bpm scores 1, and a rate above 100 bpm scores 2. 2. Respiration - This is the second most important component. A newborn who is not breathing spontaneously receives a score of 0. Occasional or irregular breathing scores 1, while regular, spontaneous respirations score 2. 47 ts 271 - ts 272. 48 ts 272. 49 Exhibit P1-6 [19], [26]. 50 ts 272 - ts 273. 51 ts 273. -- 22 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 23 3. Appearance - This is assessed by observing the newborn's skin colour. A pale infant receives a score of 0. A mottled or blue appearance scores 1. A pink complexion scores 2. 4. Grimace - This measures reflex irritability, usually in response to physical stimulation such as handling. No response scores 0; a limited response scores 1, and a vigorous response scores 2. 5. Activity - This evaluates the newborn's muscle tone. A 'floppy' infant with no tone receives a score of 0. Some movement, but not vigorous, scores 1. Vigorous activity scores 2. Foetal cardiotocography monitoring 78 As will be addressed in greater detail below, a central feature of both the evidence in this trial and the plaintiff's case concerns the mechanisms of intrapartum monitoring. The primary purpose of intrapartum monitoring is the early identification of foetal hypoxia.52 79 A CTG is an electronic method of monitoring the foetal heart rate and assessing its significance by reference to the intensity of the uterine contractions during labour.53 It involves securing a belt around the mother's abdomen to which recording transducers are attached. The CTG produces two outputs: an audible signal corresponding to the foetal heart rate, and a CTG trace, which provides a graphical representation of the monitoring data. 80 The CTG trace comprises two components: the upper tracing records the foetal heart rate (this is known as the cardiograph), while the lower tracing depicts uterine contractions (this is known as the tocograph). In interpreting a CTG trace there are four features which are significant:54 1. The baseline heartrate. This provides a benchmark, over time, that allows the significance of changes to be assessed against. A 'normal' baseline heartrate should fall within the range of 110 - 160 bpm. 2. The amount of variability that occurs around that baseline. Normal baseline variability should be within 6 - 25 bpm. 52 Exhibit D3-129, page 724. 53 ts 269, ts 461. 54 Exhibit D3-126, page 681. -- 23 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 24 3. Signs of foetal activity, known as accelerations. Accelerations of 15 bpm for 15 seconds are considered to be 'normal'. 4. Where the foetal heart rate decreases, this is referred to as a deceleration. The absence of decelerations is considered a reassuring feature of the CTG. 81 The process of assessment and interpretation is, by its nature, retrospective. It requires gathering data over a defined period and then examining the CTG trace for that timeframe. Usually the timeframe is one hour, split into half-hour periods.55 82 In assessing a CTG trace, clinicians may use the mnemonic 'DR C BRaVADO' as a structured framework for review. A DR C BRaVADO assessment involves consideration of the CTG in the following sequence:56 1. DR - Define Risk: Identification of any known risks associated with the pregnancy. 2. C - Contractions: Assessment of the frequency of uterine contractions, which may assist in determining whether the patient is in the antepartum or intrapartum phase. 3. BRa - Baseline Rate: Evaluation of the overall foetal heart rate pattern. 4. V - Variability: Assessment of baseline variability. 5. A - Accelerations: Identification of accelerations. 6. D - Decelerations: Identification and assessment of decelerations. 7. O - Overall impression: Formation of an overall clinical interpretation of the CTG features. 83 The appropriate use of CTG monitoring during the antenatal, and particularly the intrapartum, periods allow for the detection of potential foetal compromise and early intervention with the aim of reducing the risk of hypoxic injury during labour.57 55 ts 467. 56 ts 487. 57 Exhibit D3-129, page 730. -- 24 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 25 84 While a CTG may assist in confidently excluding the presence of acidosis, it cannot, of itself, establish that acidosis has occurred. Rather, it reflects secondary changes in the foetal heart rate from which an inference of possible acidosis may be drawn. The presence of acidosis can only be reliably confirmed through blood gas analysis measuring blood pH.58 85 Nevertheless, CTG monitoring and interpretation may provide a useful basis from which the presence, or risk, of acidosis can be inferred. Accordingly, RANZCOG have agreed upon a set of guidelines (RANZCOG guidelines)59 in relation to the interpretation and what action should be adopted depending on changes observed in CTG readings during the intrapartum period. 86 A CTG is regarded as normal only when all four features fall within the normal parameters described at [80]. Any trace that does not meet all of those criteria is, by definition, abnormal. However, certain isolated features are not usually linked with foetal compromise. These include:60 1. A baseline heart rate of between 100 - 109 bpm. 2. Reduced or reducing baseline variability of 3 - 5 bpm. 3. The absence of accelerations. 4. Early decelerations. 5. Variable decelerations without complicating features. 87 Certain features may be present on a CTG trace which are suggestive of an increased likelihood of foetal acidosis. Those features include:61 1. An elevation in the baseline foetal heart rate. 2. The absence of accelerations from the baseline foetal heart rate. 3. Reduced, or absent, baseline variability. 58 ts 671. 59 Exhibit D3-129. 60 Exhibit D3-129, page 736. 61 ts 671. -- 25 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 26 4. The presence of decelerations in the foetal heart rate, particularly those occurring after the cessation of a contraction. 88 Ordinarily the level of monitoring will vary dependent upon whether the mother is in the antenatal or intrapartum period of labour.62 In particular, the clinical significance of accelerations and decelerations will often depend on their relationship to the contraction cycle and requires careful interpretation. This is reflected in the standards that define what is an 'abnormal' CTG, with those standards being 'laxer' during the intrapartum period than they are during the antenatal period.63 89 For example, the assessment of the CTG may be 'slightly tighter'64 when interpreting the significance of accelerations in the antenatal period where you would see accelerations with a certain frequency. The absence of frequent accelerations may be more indicative of distress.65 Conversely, during active labour (the intrapartum period) it is quite common for a CTG not to show accelerations which is not considered abnormal.66 90 Importantly, the interpretation of decelerations differs between the antenatal and intrapartum periods. During the intrapartum period, decelerations are graded as 'occasional', 'regular', or 'regular and complicated'. Decelerations that are 'regular and complicated' are more likely to be regarded as abnormal in the intrapartum setting. By contrast, in the antenatal period, 'regular' decelerations, whether complicated or not, are generally considered abnormal.67 91 Features of an abnormal CTG that may indicate significant foetal compromise, and which require further assessment, include: 1. A baseline heartrate above 160 bpm that is sustained for at least 10 minutes (foetal tachycardia). 2. A rising baseline foetal heart rate. 3. Complicated variable decelerations. 4. Late decelerations. 62 ts 462. 63 Exhibit D3-129; ts 466. 64 ts 463. 65 ts 463. 66 ts 463. 67 ts 465. -- 26 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 27 5. Prolonged decelerations lasting more than 90 seconds and up to five minutes. 92 Certain abnormalities are more strongly associated with significant foetal compromise and may justify immediate, expedited delivery. These include: 1. A fall in the baseline foetal heart rate for more than five minutes (foetal bradycardia). 2. A baseline variability of less than 3 bpm. 3. A sinusoidal pattern characterised by a smooth, regular, wave-like undulating pattern of the foetal heart rate.68 4. Complicated variable decelerations with reduced or absent baseline variability. 5. Late decelerations with reduced or absent baseline variability. Factual findings 93 On 20 December 2019, Ms Lalezari became aware that she was pregnant with Daniella. At that time, she was residing in Victoria and receiving antenatal care through Monash Health Medical Centre. No complications were identified during that period. 94 Approximately five months later, on 19 April 2020, Mr and Ms Lalezari relocated to Perth. Following the move, Ms Lalezari came under the care of her general practitioner, Dr Reid, who referred her to KEMH for the ongoing management of the pregnancy and delivery. On 19 May 2020, Ms Lalezari attended her initial appointment with a midwife at KEMH. From that time until August 2020, she underwent a series of tests and clinical reviews to monitor the progress of the pregnancy and Daniella's development. Neither party has identified anything of material significance arising from that period. 95 Ms Lalezari's pregnancy plan required her to undertake fortnightly reviews by a doctor and on 11 August 2020 Ms Lalezari attended KEMH for that purpose. The obstetrician she saw 'did the standard checks'.69 As part of that examination Ms Lalezari also underwent an obstetric ultrasound which confirmed that the foetal abdominal 68 ts 478. 69 ts 105. -- 27 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 28 circumference was at the 75th percentile.70 A previous ultrasound carried out on 14 July 2020 had shown that, at 31 weeks, Ms Lalezari's abdominal circumference was in the 97th percentile.71 All other features, including Daniella's middle cerebral artery pulsatility index (MCA PI), which reflects blood flow to the foetal brain,72 was recorded as being within the normal range. 96 Despite the reduction in Ms Lalezari's abdominal circumference, there was nothing to suggest the presence of any complication, and she was advised to return for a further ultrasound in two weeks' time. Although there was some dispute in the evidence as to the circumstances in which the subsequent appointment came to be arranged, nothing turns on the resolution of that issue. Ms Lalezari ultimately attended for review on 25 August. 25 August 2020 97 As part of the clinical review on 25 August 2020, Ms Lalezari underwent a CTG that was recorded as 'normal'73 and a further ultrasound examination. The ultrasound indicated Daniella's growth had not progressed (static growth) and the amniotic fluid volume was reduced, consistent with oligohydramnios.74 98 Oligohydramnios refers to a condition in which the volume of amniotic fluid surrounding the foetus in utero is reduced.75 When amniotic fluid levels are low during labour, the risk increases that the foetus may compress the umbilical cord, leading to cord occlusion.76 Consequently, a growth-restricted foetus with oligohydramnios faces an elevated risk of developing acidosis during labour.77 99 There was also evidence of a reduced MCA PI, which measured 0.97.78 A reduced MCA PI may indicate that the foetus is diverting blood preferentially to the brain in order to preserve cerebral development. Such redistribution can occur when the foetus is 70 Exhibit D1-7, page 20. 71 Exhibit D1-19, page 151. 72 ts 268. 73 Exhibit D1-20, page 170. 74 Exhibit P1-6, page 38 [5]. 75 ts 268. 76 ts 307. 77 ts 700. 78 Exhibit P1-6, page 38 [5]. -- 28 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 29 receiving insufficient oxygen, which may be indicative of placental insufficiency.79 100 Following the ultrasound, Ms Lalezari was referred to the Maternal Foetal Assessment Unit (MFAU), a specialised unit within KEMH that manages emergency presentations for women beyond 20 weeks' gestation who are not postpartum.80 Ms Lalezari arrived at the MFAU at 11.33 am, where she was triaged by midwifery staff, underwent a further CTG,81 and was subsequently reviewed by Dr Armari.82 101 Both Dr Armari and Ms Lalezari gave evidence reflecting differing recollections of the examination. It was accepted that resolving those differences was of limited relevance and went primarily to issues of credibility. However, for reasons developed more fully below, resolution of this matter was more than merely collateral. 102 Dr Armari stated that she independently recalled the consultation with Ms Lalezari, attributing that recollection to a residual concern for Ms Lalezari and Daniella arising from her perception that Ms Lalezari did not fully appreciate the seriousness of the advice given. I accept that evidence, as it is consistent with the impression formed from Ms Lalezari's evidence and her actions following the consultation. However, this does little to enhance the reliability of Dr Armari's recollection of events that occurred approximately five years ago. In the absence of corroboration or consistency with contemporaneous medical records, I approach Dr Armari's purported recollections with caution. 103 By contrast, Ms Lalezari did not have the benefit of contemporaneous records to refresh her memory, and her evidence was at times materially inconsistent with the contents of Dr Armari's notes. Further, I am satisfied that the conversation with Dr Armari was no doubt a confronting one for Ms Lalezari and she may not have fully absorbed the entirety of what she was told. Regardless, I am satisfied it has affected the reliability of her recollection of what took place. It is highly likely these errors in recollection have been compounded with the passage of time. Where there is such a conflict, I prefer Dr Armari's evidence. 79 ts 268, ts 458. 80 ts 1024. 81 ts 1029. 82 ts 109, ts 1025. -- 29 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 30 104 I am satisfied that during the consultation Dr Armari, at minimum, advised Ms Lalezari of the following matters, which bear upon subsequent findings I make later in these reasons:83 1. Ms Lalezari was sufficiently advanced in the gestation that delivery carried no risks due to prematurity. 2. The amniotic fluid index was reduced, meaning there was a decreased volume of fluid surrounding the foetus, which was an indicator of foetal distress. 3. An abnormality in the flow through the middle cerebral artery had been detected, which meant there was abnormal blood flow to the foetus's brain. 4. The ultrasound had demonstrated static growth in Daniella's development suggesting there was something 'not quite right' in the intrauterine environment which was preventing the foetus from being able to adequately grow. 5. That an IOL 'that night, or as soon as possible' was recommended. Further, Dr Armari made the necessary arrangements so that an IOL could occur that evening at 6.00 pm should Ms Lalezari agree.84 6. As part of the consent process, Dr Armari explained what an IOL, including both mechanical methods,85 such as a C80 balloon catheter,86 and pharmacological options. 7. Dr Armari also explained, as part of the consent process, the potential consequences of a failed IOL, including the possibility of a caesarean section, as well as the stresses placed on the foetus during the induction process. This is consistent with Dr Armari's note recording an explanation of the heightened risk of intrauterine foetal death.87 8. Dr Armari emphasised the urgency of proceeding with the IOL and advised that delay reduced the certainty of Daniella's wellbeing.88 That evidence is consistent with her 83 ts 1035. 84 Exhibit D1-17, page 114; ts 1037. 85 ts 1038. 86 As per the note recorded on Exhibit D1-17, page 114. 87 Exhibit D1-17, page 114. 88 ts 1041. -- 30 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 31 contemporaneous notes referring to the risk of foetal death, the emphasis on induction occurring 'tonight', and the absence of any ability to predict the outcome if delivery were delayed by two days.89 105 Ultimately, Ms Lalezari declined to proceed with the IOL that evening. In her evidence Ms Lalezari explained that decision on the basis that she had requested a second opinion during her consultation with Dr Armari,90 and had been told that such an opinion could be obtained the following day, 26 August.91 I do not accept that explanation. 106 Mr Lalezari gave evidence that later that day, after speaking with Ms Lalezari, he contacted the hospital to arrange a second opinion.92 That evidence is corroborated by telephone records93 showing that he telephoned the hospital at approximately 5.45 pm,94 and again the following morning at 10.17 am.95 This conduct demonstrates that Mr Lalezari assumed responsibility for arranging a second opinion on 26 August and supports the inference that no second opinion had been arranged at the time Ms Lalezari left the consultation with Dr Armari, as there would otherwise have been no need for him to take those steps. 107 In her evidence, Dr Armari recalled Ms Lalezari expressing concern about the IOL occurring during the evening of 25 August because Mr Lalezari had recently commenced a new job.96 Mr Lalezari had in fact commenced a new position as a mechanical engineer on 10 August.97 I am satisfied the reason why Dr Armari knew about Mr Lalezari's new job was because Ms Lalezari mentioned it when expressing her concern about Mr Lalezari having to take time off from his new job if the induction were to proceed that evening.98 108 Ms Lalezari also said that, upon leaving the consultation with Dr Armari, she had arranged an IOL for 27 August,99 notwithstanding that she had said she did not wish to proceed with an induction until a 89 Exhibit D1-17, page 114. 90 ts 144 - ts 146. 91 ts 110. 92 ts 198. 93 Exhibit D1-13; Exhibit D1-18. 94 ts 214. 95 ts 216. 96 ts 1036. 97 ts 197. 98 Exhibit D1-17, page 114. 99 ts 110, ts 140. -- 31 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 32 second opinion had been obtained. Notably, Mr Lalezari was not working on 27 August and was available on that day. 109 Having regard to the evidence of Mr and Ms Lalezari in the context of Dr Armari's evidence, I am satisfied that Ms Lalezari attended the consultation on 25 August and was informed of the need for an IOL, which understandably left her distressed and in shock. During that consultation, she agreed to an induction on 27 August, a date when her husband would be available. After returning home and discussing the advice she had received, Mr Lalezari was unhappy with the nature of that advice and arranged for a second opinion to be obtained on 26 August, when he could participate by telephone. Ultimately, notwithstanding the advice given by Dr Armari and the urgency she conveyed regarding the IOL, I am satisfied that Ms Lalezari was reluctant to proceed until 27 August, when it was more convenient for her husband. 26 August 2020 110 On 26 August, Ms Lalezari attended a consultation with Dr Brewin for the purpose of obtaining the second opinion that her husband had organised, with Mr Lalezari attending by phone. Dr Brewin had no specific recollection of the duration of the consultation but recorded in his notes that it was a 'long discussion', a term he would typically use when a consultation extended beyond the usual length and when the patient 'would tend to have multiple questions and want things further explained'.100 I am satisfied that this accurately reflects what occurred on this occasion. This finding will be relevant to subsequent conclusions I make, as outlined later in these reasons. 111 Once again there were material inconsistencies between Mr and Ms Lalezari's recollection of the contents of this conversation and the account given by Dr Brewin. 112 In my view, Dr Brewin was a reliable witness. At the time he gave evidence, he was no longer employed by the hospital. He gave his evidence in a forthright manner and candidly acknowledged the limits of his recollection. It was apparent that he had little independent memory of the consultation with Mr and Ms Lalezari beyond what was recorded in his contemporaneous notes, and he made no attempt to suggest otherwise. His evidence was given by reference to those notes 100 ts 746. -- 32 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 33 and to his usual practice when providing advice of the kind recorded. In doing so, he used language and expressions consistent with aspects of Mr and Ms Lalezari's recollection of the consultation. 113 I accept Dr Brewin's evidence as to what he would have told Mr and Ms Lalezari during the consultation on 26 August as an accurate account of the opinion he provided. Where there is any inconsistency between Mr and Ms Lalezari's recollection of that consultation and Dr Brewin's account, I prefer the evidence of Dr Brewin. 114 By contrast, while Mr and Ms Lalezari were consistent with each other in their accounts, they were also consistent in the respects in which their evidence diverged from that of Dr Brewin. The degree of that consistency gives rise to concerns about the reliability of their recollections, not because I consider they sought to fabricate or coordinate untruthful evidence, but because their memories are likely to have been shaped over time through repeated discussion of a significant and emotionally charged event. 115 I am satisfied that by the conclusion of the consultation with Dr Brewin, Mr and Ms Lalezari were advised: 1. Daniella was not achieving her expected growth potential in utero, with features suggestive of placental insufficiency.101 2. There were indicators that Daniella was compensating for impaired growth by preferentially diverting blood flow to the brain and other vital organs to ensure adequate oxygenation, which was a likely explanation for the observed growth restriction.102 3. At 38 weeks' gestation, there was minimal neurological benefit in remaining in utero and, having regard to the ultrasound findings and concerns about placental function, Daniella would likely be better delivered than to remain in the uterus. Dr Brewin therefore advised early delivery.103 101 ts 748. 102 ts 748. 103 ts 750. -- 33 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 34 4. One option for early delivery was IOL, which could take between 24 and 48 hours and carried a risk of failure, in which case a caesarean section would need to be considered.104 5. Dr Brewin explained that caesarean delivery could be either elective or emergency, outlined the risks associated with each, and advised that those risks were increased in the event of an emergency caesarean. If a caesarean became necessary, the clinician forming that view would explain the reasons for it and provide further advice at that time, as part of the process of obtaining Ms Lalezari's informed consent before proceeding. 6. Arrangements could be made for Daniella's delivery that day, either by IOL or by caesarean section. 116 A material divergence in the evidence of Mr and Ms Lalezari and that of Dr Brewin concerned the availability of caesarean delivery. Ms Lalezari's evidence was that when she sought further information from Dr Brewin regarding caesarean section, she was advised that, at that stage, IOL was the appropriate course and that if a caesarean later became necessary, the matter would be raised and explained at that time.105 Both Mr and Ms Lalezari further maintained that Dr Brewin told them an elective caesarean was 'not an option in a public hospital',106 and would only be considered if the IOL proved unsuccessful. 117 Dr Brewin's evidence was to the contrary. He confirmed that an elective caesarean was available to a public patient. His evidence was consistent with his contemporaneous clinical notes and accorded with the evidence of Dr Armari, who stated that a caesarean was an option 'from the outset',107 should the patient elect to proceed in that manner. 118 Having regard to the consistency of the independent evidence given by Dr Brewin and Dr Armari, and noting that Dr Brewin's evidence was supported by his contemporaneous notes, I do not accept the evidence of Mr and Ms Lalezari that they were advised an elective caesarean section was not available to a public patient. 104 ts 752. 105 ts 112. 106 ts 156, ts 199. 107 ts 1041. -- 34 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 35 119 Further, in light of Dr Armari's evidence that Ms Lalezari expressed a strong preference for vaginal delivery and a desire to avoid caesarean section, I am satisfied that Mr and Ms Lalezari declined an elective caesarean as a matter of choice, rather than because they were told it was unavailable. It was Ms Lalezari's preference for vaginal delivery that led Dr Armari to recommend IOL in the first instance.108 This is a matter that will have material significance further in my reasons. 120 Further, during the course of her evidence, Ms Lalezari explained her understanding of the reason why Dr Brewin was 'recommending' an IOL was because Daniella was 'fully developed' and 'there is no benefits to keeping the baby inside'.109 I do not accept that evidence. 121 That evidence is inconsistent with the evidence of both Dr Brewin and Dr Armari, who independently stated that the IOL was recommended because of Daniella's growth restriction. The reference to Daniella being 'fully developed' was intended to convey that there was no further physiological benefit in continuing the pregnancy when weighed against the significant risks associated with allowing it to progress to term. 122 Moreover, Ms Lalezari's recollection that a medical practitioner would recommend induction solely on the basis that there was 'no benefit to keeping the baby inside' appears, on its face, inherently unlikely. This further undermines the reliability of her evidence concerning her recollection of what she was told during these consultations more generally. 123 Following Dr Brewin's advice, it is apparent that both Mr and Ms Lalezari were aware of the increased risks associated with allowing the pregnancy to proceed to full gestation and that they agreed to an earlier delivery. I am satisfied that Dr Brewin took appropriate steps to ensure they understood the advice he provided, including obtaining verbal confirmation of their understanding and testing that understanding through the exchange of questions during the consultation. I am further satisfied that, having done so, Dr Brewin confirmed that they agreed with his advice that it was in Daniella's best interests to expedite delivery, a conclusion he recorded in his contemporaneous notes.110 108 ts 1040. 109 ts 153 - ts 154. 110 ts 750. -- 35 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 36 124 Notwithstanding the advice provided regarding the associated risks and the need for early delivery, I also accept Dr Brewin's evidence that Ms Lalezari maintained a preference for IOL and vaginal delivery. I am also satisfied that, despite Dr Brewin advising that arrangements could be made for delivery that day, Ms Lalezari preferred to proceed with the existing appointment scheduled for 27 August. 27 August 2020 125 The following day, on 27 August at approximately 6.30 pm,111 Mr and Ms Lalezari arrived at KEMH to commence the IOL. They were directed to Suite 12. 126 The prospective admission notes contained within the integrated progress notes recorded that Ms Lalezari was presenting for the IOL with decreased 'AFI' (amniotic fluid index), decreased 'MCAPI' and 'static growth'.112 The notes clearly reflected the 'issues' that complicated her pregnancy and increased the risks of this IOL. Accordingly, it was, or ought reasonably to have been, apparent to the defendant that Ms Lalezari's pregnancy was a 'high-risk' pregnancy. 127 Upon arrival in Suite 12, a midwife connected Ms Lalezari to a CTG monitor, with the tracing commencing at 6.41 pm,113 and intravenous (IV) fluids initiated at 7.10 pm.114 The CTG records indicate that from that time Ms Lalezari was monitored largely on a continuous basis, with the trace being discontinued only intermittently to allow for sleep, toileting, or movement.115 128 Within the suite, there were two locations where the trace could be monitored. The first was a monitor adjacent to the patient's head. The second was on a desk opposite the foot of the bed.116 Clinicians were also able to monitor CTG traces from a station separate to the patient's room that monitored all the feeds within the ward. 129 The integrated medical records record that a registrar was paged to review the CTG tracing at 7.10 pm,117 and that this review was conducted at approximately 7.45 pm. There is no record in the integrated notes as to what the CTG readings were or of the senior 111 ts 113, ts 200. 112 D1-17, page 117. 113 ts 113, ts 200. 114 Exhibit D1-17, page 118. 115 Exhibit D1-34. 116 Exhibit 1, photograph 5. 117 Exhibit D1-17, page 118. -- 36 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 37 registrar's review other than to note 'Melinda SR happy with [patient] to have C80'. The reference to 'C80' denotes the insertion of a C80 balloon catheter, being a mechanical method commonly used to start the IOL.118 130 The insertion of the catheter in Ms Lalezari's case was attended by considerable difficulty.119 Midwife Hannah Elliott was one of the two registered midwives involved in the procedure.120 The clinical notes retrospectively record at 8.40 pm121 the attempts to insert the C80 balloon catheter, which correspond with an interruption in the CTG trace between 8.27 pm and 8.29 pm.122 131 Of some significance is the entry made at 8.55 pm, in which Midwife Elliott recorded that the 'CTG remains on as non-reassuring', a term she explained to mean 'abnormal'.123 In this context, Midwife Elliott described the abnormality as being a reduction in the 'squiggliness'124 of the foetal heart rate trace, being a reference to reduced variability. The CTG trace demonstrates a decrease in variability at 8.43 pm.125 132 Midwife Elliott explained that when a trace becomes 'flat', repositioning the mother and increasing IV fluids may improve blood flow to the foetus.126 At 8.46 pm a manual entry made on the trace records that Ms Lalezari was 'repositioned, IVH increased'.127 Approximately four minutes later, improving variability was recorded.128 133 Midwife Elliott further explained that the usual practice upon identifying a 'non-reassuring' or 'abnormal' trace would be to notify medical staff.129 There is nothing in the integrated medical records to suggest that a doctor was notified or that the trace was reviewed by a medical practitioner at that time.130 118 ts 612. 119 ts 161, ts 200. 120 ts 611. 121 ts 614. 122 Exhibit D1-34, page 208. 123 ts 618. 124 ts 618. 125 Exhibit D1-34, page 208. 126 ts 619. 127 Exhibit D1-34, page 208. 128 Exhibit D1-34, page 208. 129 ts 619. 130 Exhibit D1-17. -- 37 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 38 134 Ms Lalezari gave evidence that no doctor attended her at any time during the evening of 27 August.131 Other than the entry made by the senior registrar at 7.45 pm, there were very few entries in the integrated medical notes suggesting that a doctor undertook any review of the CTG trace. I accept that the extent of Ms Lalezari's contact with medical practitioners throughout the IOL was limited and that the majority of her care and monitoring was undertaken by midwives. 135 The midwife rosters were divided into morning, afternoon and evening shifts: the morning shift running from 7.00 am until 3.30 pm,132 and the afternoon shift starting at 1.00 pm and finishing at 9.30 pm.133 The first half an hour of each shift involved a handover during which the midwives finishing their roster would brief the incoming midwives as to the status of each patient. 136 Each midwife was responsible for managing an allocated number of patients which would vary from one-on-one care if the patient was in active labour,134 to 'four or five' when dealing with women who were undergoing an IOL.135 Generally, when a woman was undergoing an IOL, the 'usual practice' would be for a midwife to carry out 'observations' on a patient every four hours. However, when a CTG trace is running, this would be frequently monitored 'as much as we can' and would not be left unattended for more than 10 minutes.136 137 Notwithstanding the apparent frequency with which the CTG trace was monitored, there were few contemporaneous records of the CTG readings in the integrated medical notes or any other centralised record. This appears to have been because the CTG trace was displayed 'live' and its historical data could be reviewed directly on the device. Even so, there does not appear to have been any consistent system for the periodic review, interpretation, and recording of the trace. 138 The defendant accepts that CTG readings were not systematically recorded on each occasion the trace was reviewed, but contends that the plaintiff has not established how this constitutes a breach.137 This is a matter to which I will return in greater detail below. What is clear, however, is that although the CTG trace may have been monitored 131 ts 113. 132 ts 623. 133 ts 609. 134 ts 610. 135 ts 624. 136 ts 629. 137 Defendant's closing submissions, pars 43 - 44. -- 38 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 39 frequently, there was no systematic process implemented by the defendant, or if such a process existed it was not followed, for periodic review, 'fresh eyes' assessment, and recording of the CTG readings. 139 The evening handover occurred at approximately 9.30 pm,138 during which a review of the CTG trace would ordinarily be undertaken. At that time, Ms Lalezari's CTG demonstrated a marked improvement in variability compared to the trace at 8.43 pm,139 and this improvement persisted until approximately 10.47 pm.140 Thereafter, the trace showed periods of reduced variability until around 11.37 pm. If any review or analysis of the CTG was undertaken during this period, there is no record of it in the integrated medical notes. The CTG monitoring was discontinued at 11.51 pm for the evening. 28 August 2020 140 At 1.10 am on the morning of 28 August the notes record 'CTG periods of decreased variability. Given iced water [with] good effect. CTG removed after normal variability and good accelerations'.141 A copy of the CTG recording has not been produced,142 but is consistent with Ms Lalezari's evidence that she recalled the CTG being placed back on her during the night.143 Continuous monitoring does not appear to have recommenced until 4.49 am.144 An entry in the integrated notes at 4.50 am records the CTG was reapplied 'as per coord instructions due to neonatal risk factors'.145 141 Midwife Keri Dunbar was the registered midwife who assumed responsibility for Ms Lalezari's care as part of the morning team. That handover occurred bedside,146 during which Midwife Dunbar conducted a review of the CTG trace. The integrated notes record the trace as being 'afebrile' with 'decreased variability'. This is consistent with what can be seen in the CTG readings observed between 7.37 am and 7.44 am.147 138 Exhibit D1-17, page 119. 139 Exhibit D1-34, pages 210 - 211. 140 Exhibit D1-34, pages 213 - 215. 141 Exhibit D1-17, page 119. 142 Exhibit D1-34. 143 ts 163 - ts 164. 144 Exhibit D1-34, pages 216 - 218. 145 Exhibit D1-17, page 119. 146 ts 624. 147 Exhibit D1-34, page 224. -- 39 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 40 142 These observations were made following a period where the CTG had been off from 7.17 am - 7.36 am.148 No explanation was provided, nor is apparent, as to why the CTG was off during that period. Accordingly, it is unclear as to whether there had been decreased variability prior to 7.37 am and, if so, for how long. In response, Midwife Dunbar administered a further bag of fluids149 at 7.50 am.150 Shortly thereafter, the trace began to show improvements in variability.151 143 The medical handover took place at 8.00 am in the handover room.152 The registrar who appears to have assumed primary responsibility for Ms Lalezari was Dr Marcano.153 The handover room was equipped with a facility that enabled the CTG traces of all patients on the ward to be reviewed remotely. It was routine practice to review the CTG during handover.154 144 The integrated notes include an entry by Dr Marcano documenting a 'formal' review, in the sense that her qualitative assessment of the CTG trace was recorded. She did not, however, note the exact time of this assessment. Following the review, Dr Marcano advised Ms Lalezari that she could take a break from CTG monitoring to go for a walk. The trace recordings indicate a pause in monitoring at 8.39 am,155 suggesting that the review likely occurred around this time. 145 The integrated notes indicate that the CTG readings were within normal parameters. Nevertheless, Dr Marcano requested a review by the on-duty consultant, Dr Beale.156 This review took place at 9.20 am, after which Dr Beale ordered the resumption of CTG monitoring, which recommenced at 9.31 am.157 146 Whilst Dr Beale had no independent recollection of reviewing the trace, she explained that the reason she would have recommenced monitoring was consistent with standard practice: where a patient was exhibiting a CTG trace similar to Ms Lalezari's, monitoring would typically continue until there was a sufficient period of reassuring features before it could be safely discontinued. 148 Exhibit D1-34, pages 223 - 224. 149 ts 627. 150 Exhibit D1-23, page 178. 151 Exhibit D1-34, page 225. 152 Exhibit D1-17, page 120. 153 ts 880. 154 ts 878. 155 Exhibit D1-34, page 226. 156 ts 880. 157 Exhibit D1-34, page 228. -- 40 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 41 147 Throughout the day, the CTG trace was at various points removed and reapplied with it being reviewed intermittently. Ms Lalezari began to complain of increasing pain throughout the morning.158 At 10.50 am she was given Panadeine Forte.159 Observations were conducted at 11.45 am,160 during which the CTG trace was briefly administered for approximately 90 seconds.161 After that, the CTG trace does not appear to have been reapplied until 1.52 pm.162 148 At 1.00 pm,163 Midwife Palandri commenced the afternoon shift and assumed responsibility for Ms Lalezari's care. She described the shift as being 'busy', with her being responsible for multiple patients. During the handover process, Midwife Palandri introduced herself to Ms Lalezari and undertook clinical observations. 149 Although the relevant entry in the integrated medical notes was made retrospectively at 5.00 pm, it records that the observations were conducted at 2.00 pm and were within normal limits.164 The CTG trace documented the presence of accelerations, a foetal heart rate of 147 bpm and was considered normal. Ms Lalezari was experiencing contractions but was able to talk through them, indicating they were not intense.165 Notwithstanding this, Ms Lalezari reported pain, and Midwife Palandri accordingly provided advice regarding available pain relief options. 150 The clinical notes record that Ms Lalezari's '1st stage labour' commenced at 1.00 pm.166 It is unclear whether this entry was intended to refer to the onset of active labour or to some other phase. There is no indication that, at that time, Ms Lalezari was experiencing contractions of sufficient regularity to constitute active labour, nor that she had reached the requisite level of cervical dilation. 151 In any event, Midwife Palandri accepted that she made this entry retrospectively.167 For the reasons developed below, I do not regard Midwife Palandri's notes, particularly those made retrospectively, as reliable. This entry illustrates the difficulty as it is not readily 158 ts 116. 159 Exhibit D1-17, page 121. 160 Exhibit D1-25, page 182. 161 Exhibit D1-34, page 231. 162 Exhibit D1-34, page 232. 163 ts 1108. 164 Exhibit D1-17, page 121; ts 1115. 165 ts 1116. 166 Exhibit D1-24, page 180. 167 ts 1132. -- 41 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 42 reconcilable with the note she also made retrospectively, referred to at [149], which recorded her first observations of Ms Lalezari, supposedly being at 2.00 pm. 152 Accordingly, regardless of what was intended by the reference to '1st stage labour', I do not accept this entry as an accurate reflection of whatever it is purporting to record. What is a more reliable source, however, is what can be seen on the CTG trace when it was readministered which suggests that, from approximately 1.55 pm, Ms Lalezari was experiencing regular contractions.168 153 At 2.55 pm Midwife Dunbar administered tramadol to Ms Lalezari due to her complaint of increasing pain.169 The medical notes state that at this time the CTG was 'in situ'.170 In light of Midwife Dunbar's evidence that 'if a CTG is on we want to be looking at it as much as we can',171 it is reasonable to infer that if the CTG was in place at the time she administered the tramadol, she would have reviewed the trace in the course of doing so. 154 When subsequently asked in evidence to interpret the trace at 2.50 pm, Midwife Dunbar observed that, while it was 'technically … normal', she expressed hesitation regarding the degree of reduced variability, noting that it appeared to be less than 5 bpm. When asked whether she would have been content to remove the CTG or would have preferred continued monitoring, she responded:172 Look, I - I don't think I took the CTG off. I would maybe have left it on for another 10 minutes, just to get a little bit more normal, but technically it meets criteria in every - yeah, the midwives made the decision. 155 The CTG remained in place for a further 22 minutes and was removed at 3.12 pm. The trace records indicate that, at the time of removal, it was assessed as 'slightly better'.173 156 At 4.50 pm, Ms Lalezari consented to a vaginal examination, which confirmed that her cervix was dilated to only 3 cm. Accordingly, despite having experienced regular contractions for nearly 168 Exhibit D1-34, page 232. 169 ts 642. 170 Exhibit D1-22, page 175; Exhibit D1-17, page 121; ts 642. 171 ts 629. 172 ts 657. 173 Exhibit D1-34, pages 234 - 235; ts 656. -- 42 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 43 three hours, her cervical dilatation remained insufficient to meet the criteria for the active phase of labour.174 157 At some point after 5.30 pm, Midwife Palandri took her tea break, having arranged for another midwife to monitor Ms Lalezari's CTG trace in her absence.175 At 5.35 pm, the CTG trace was discontinued for approximately eight minutes to allow Ms Lalezari to complete her evening prayers,176 before recommencing at 5.43 pm.177 Critical window 158 Upon returning from her tea break, Midwife Palandri attended Ms Lalezari. A retrospective entry written by Midwife Palandri in the integrated medical notes suggests this occurred at approximately 6.20 pm,178 although it is not necessary to determine the precise time of her return. What is material is that, upon reviewing the CTG trace, it appeared abnormal. The medical notes record the features that suggested possible abnormality were reduced variability and possible late decelerations.179 159 Midwife Palandri was uncertain whether the decelerations were in fact 'late', as the CTG was not adequately capturing Ms Lalezari's contractions, and the classification of a late deceleration depends on its proximity to the contraction.180 Consistent with hospital policy, Midwife Palandri paged the registrar to review. Ultimately, as is outlined in further detail below, that review did not occur. 160 At the same time, due to the amount of pain Ms Lalezari was complaining of, Midwife Palandri arranged for an anaesthetist to attend to administer an epidural to Ms Lalezari.181 At approximately 6.45 pm the anaesthetist attended and commenced the process of administering the epidural,182 with observations then commencing from 6.55 pm.183 161 For the purposes of administering the epidural, the transducer monitoring uterine contractions was required to be removed, as it is ordinarily secured to the patient's abdomen by a strap and the 174 Exhibit D1-17, page 121. 175 ts 1117. 176 ts 118. 177 Exhibit D1-34, page 238. 178 Exhibit D1-17, page 122. 179 Exhibit D1-17, page 122. 180 ts 1118. 181 Exhibit D1-17, page 122; ts 1120. 182 Exhibit D1-30, page 191; ts 1125. 183 Exhibit D1-30, page 192; ts 1122. -- 43 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 44 anaesthetist requires a sterile field on the patient's back to insert the needle. The transducer monitoring the foetal heart rate, however, could remain in place by being positioned beneath the patient.184 Accordingly, between 6.43 pm and 6.57 pm, the CTG trace shows a 'flatline' in the tocograph, consistent with the period during which the epidural was being administered.185 162 Dr Marcano was the registrar who received Midwife Palandri's page. Her evidence was that she could not recall what time she answered the page, but when she arrived at Suite 12 she saw Midwife Palandri, Ms Lalezari and the anaesthetist who was about to shortly administer the epidural.186 Dr Marcano estimated that the anaesthetist was likely to do so in approximately the next 10 minutes.187 163 If that is correct, then Dr Marcano must have attended the room at some point proximate to 6.45 pm given the tocograph resumed at 6.57 pm. 164 On observing that the anaesthetist was in the process of administering the epidural, Dr Marcano stated words to the effect of 'I'll be back' and then left the room.188 Notably, she did not speak with Midwife Palandri or make any inquiry as to the reason for the page or the nature of the concern. Midwife Palandri had no recollection of Dr Marcano coming to the room at all.189 165 Further, notwithstanding Dr Marcano acknowledging that it was possible to review the CTG trace history even whilst a patient was being prepared for, or receiving, an epidural, Dr Marcano took no steps to do so.190 166 Shortly after the epidural, Midwife Palandri observed further decelerations on the CTG. She responded by hitting the emergency assist bell,191 though could not recall what time that was. Dr Marcano had not returned to the room prior to then.192 184 ts 1126 - ts 1127. 185 ts 1126. 186 ts 892. 187 ts 959. 188 ts 893. 189 ts 1121. 190 ts 894. 191 ts 1129. 192 ts 894, ts 925. -- 44 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 45 167 An entry in the integrated medical notes made by Midwife Palandri and marked '19:00' reads:193 Epidural in. Prolonged bradycardia x 2. IV fluids ↑ repositioned. Assist button called . Drs all came into rm with coordinator. ARM [artificial rupture of membranes] performed by reg. CTG - tachycardia to 180 bpm with decelerations, being consented for probable c/s [caesarean section]. Consultant back in room. Orders going for cat 1 c/s [caesarean section]. Taken to theatre. Straight in theatre rm 2 & prep for c/s [caesarean section]. 3 paeds [paediatricians] present in OT prior delivery. 168 Although the note is time‑stamped at 7.00 pm, Ms Palandri accepted that it was not written at that time and that it was a retrospective entry. That conclusion is apparent from the content of the entry itself, which records events that occurred well after 7.00 pm. Accordingly, notwithstanding Midwife Palandri's evidence that the note was written 'a few minutes after' 7.00 pm,194 its contents demonstrate that it could only have been made after Ms Lalezari had been taken to theatre, which, for reasons I will later outline, did not occur until after 7.42 pm. In those circumstances, the 7.00 pm time‑stamp cannot be regarded as a reliable indicator of the actual timing of the events described. 169 Ms Lalezari recalled that 'probably around 7 [pm]' as the anaesthetist was leaving the room, two 'staff member[s]' examined her at around '7:05' or '7:10',195 during which her membranes were ruptured.196 Mr Lalezari recalled the epidural being administered 'around 6:50 pm', following which Ms Lalezari's waters were broken197 at around 7 pm.198 Both consistently maintained the two people who attended were 'staff members'199 and had difficulty in accepting they were Dr Marcano and Dr Beale. Despite that difficulty, for reasons outlined below, I am satisfied that the two people referred to were indeed Dr Marcano and Dr Beale. 170 Dr Marcano was unable to recall the precise time at which the assist bell was activated but recalled that when it was, she was attending another patient on the labour ward and had begun making an 193 Exhibit D1-17, page 122; ts 1135. 194 ts 1136, ts 1151. 195 ts 172. 196 ts 119. 197 ts 202. 198 ts 226. 199 ts 174, ts 226. -- 45 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 46 entry in that patient's integrated medical notes. That entry was left incomplete when she was interrupted to respond to the assist bell.200 The note is timed 7.00 pm, suggesting that the assist bell was activated shortly thereafter.201 171 That evidence is, at first glance, difficult to reconcile with a separate entry in Ms Lalezari's medical notes recording that an artificial rupture of membranes (ARM) occurred at 6.55 pm.202 As already noted, I am satisfied that the ARM was performed by Dr Marcano, and that it occurred shortly after she returned to Ms Lalezari's room.203 172 In offering a potential explanation for that apparent inconsistency, Dr Marcano's evidence was that discrepancies sometimes existed between wall clocks and monitor times in different rooms.204 If that is so, then that necessarily undermines the reliability that can be placed on the timing recorded in Dr Marcano's incomplete entry in the other patient's medical notes. 173 Nevertheless, I accept Midwife Palandri's evidence that the reason for the apparent inconsistency was that her entry recording the timing of the ARM was a retrospective entry and likely to be wrong.205 That concession, however, reinforces the broader concerns I have already expressed regarding the reliability of Midwife Palandri's entries in the integrated medical notes. 174 Dr Beale did not independently recall when she attended Suite 12, but said she arrived within 'less than a minute' upon hearing the emergency assist bell.206 A retrospective entry made by her at 8.50 pm in the integrated medical notes initially recorded 6.50 pm but was subsequently crossed out and amended to '~ 1910 hours'.207 175 Dr Beale recalled that Midwife Palandri was already present in the room when she arrived, and that Dr Marcano and the senior registrar, Dr Paterson, were either already there or arrived around the same 200 ts 896. 201 Exhibit 2. 202 Exhibit D1-24, page 180. 203 ts 897. 204 ts 945. 205 ts 1131 - ts 1132, ts 1153. 206 ts 975. 207 Exhibit D1-17, page 124. -- 46 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 47 time.208 Shortly after arriving, Dr Beale directed Dr Paterson to attend other duties elsewhere as her additional assistance was not required.209 176 Taken together, these errors illustrate the significant difficulties in extracting from the integrated medical notes, or the evidence generally, any reliable or precise account of when Midwife Palandri activated the call-assist bell and when it was that any of the defendant's treating clinicians may have attended upon Ms Lalezari in response. 177 Ultimately, resolution of this issue turns largely on what can be ascertained from the objective record contained in the CTG at the relevant time, considered alongside the recollections of the clinicians involved in Ms Lalezari's care.210 178 The evidence of Dr Marcano, Dr Paterson and Dr Beale, as well as that of Mr and Ms Lalezari, was consistent in one important respect: those who responded to the call-assist bell arrived only after the anaesthetist had left the room. The CTG printouts show that tocograph activity resumed at 6.57 pm, indicating that the epidural procedure had concluded by that time and that the anaesthetist departed shortly thereafter. It follows that the call-assist bell must have been activated, and the doctors must have attended, at some point after 6.57 pm. 179 As outlined at [167], Midwife Palandri in her retrospective note recorded 'Prolonged bradycardia x 2' and that it was the occurrence of the prolonged bradycardia that caused her to press the assist button. Her evidence was:211 I would have been looking at it closely with the first deceleration. And then with the second, I would have pressed [the call assist]. 180 In re-examination Midwife Palandri was asked to identify, by reference to the CTG printout, what features caused her to press the call assist. Her answer was:212 1901was the start of the first complicated variable. And then at - then 1906, it looks like, it's the start of the prolonged deceleration. … … Relative to those, it would have been after - around the first one … [i]t would have been a little bit after it because I would have seen it go down and just waited to see what was happening. 208 ts 976. 209 ts 977. 210 Exhibit D1-34, pages 240 - 241. 211 ts 1152. 212 ts 1158. -- 47 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 48 181 As can be seen, Midwife Palandri's account in re-examination differs materially from her evidence in cross-examination. In cross-examination, she stated that the assist bell was activated after the second deceleration; in re-examination, she placed it between the first and second decelerations. 182 The CTG printout indicates that the first deceleration occurred at 7.01 pm and the second at 7.06 pm. The divergence between her two versions therefore amounts to a difference of approximately five minutes which, for reasons discussed further below, is of material significance. 183 Ultimately, I accept what Midwife Palandri said in cross-examination. Her account of pressing the assist bell after observing the start of the second deceleration, rather than before, accords with her, albeit retrospective, note recording two periods of bradycardia followed by the call assist being pressed. It is also consistent with what she said in evidence-in-chief that she had observed 'decelerations', so plural, before pressing the assist button. Moreover, as will be discussed further below, that timing is also far more consistent with the balance of the remaining evidence. 184 Dr Marcano also recalled that, upon entering the room, she observed from the CTG monitor that the foetal heart rate was low. By reference to the CTG traces,213 she also gave evidence that this observation coincided with the heart rate decreases visible at approximately 7.06 pm, and that she entered the room within the two minutes following that drop, and prior to its recovery at 7.08 pm.214 185 This timing is also broadly consistent with Dr Beale's account, discussed at [174], as well as the note she made, albeit retrospectively, that the call bell was activated and she attended at 7.10 pm. 186 Dr Paterson could not recall what time she attended the room, other than to say she attended immediately after hearing it and that she thought it was 'relatively early on in the shift'.215 She had commenced her shift at 5.00 pm216 with the handover finishing at approximately 5.30 pm.217 When she arrived in the room she arrived approximately at 213 Exhibit D1-34, page 241. 214 ts 933. 215 ts 554. 216 ts 550. 217 ts 553. -- 48 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 49 the same time as Dr Marcano.218 She could not recall if Dr Beale was already present or arrived just after Dr Paterson.219 187 In light of Dr Beale's evidence, I am satisfied that Dr Beale was the last to arrive after Dr Paterson and Dr Marcano. By reference to Dr Marcano's evidence, that would suggest that Dr Paterson would also have arrived sometime proximate to the resolution of the prolonged deceleration at 7.08 pm, consistent with Dr Beale's approximation of 7.10 pm. 188 Dr Paterson confirmed that while she was present in Ms Lalezari's room, she was asked to prescribe an additional bag of IV fluids.220 This accords with Midwife Palandri's retrospective note indicating 'IV fluids ↑', which she explained was a reference to the administration of further fluids221 and that IV fluids cannot be administered without an order from a doctor.222 It is therefore apparent that this notation refers to the IV fluids prescribed by Dr Paterson and subsequently administered by Midwife Palandri. 189 Dr Paterson identified her handwriting and signature on the prescription for a new IV fluid bag commencing at 7.15 pm.223 Although, as already noted, there are issues concerning the reliability of certain time entries in the records, this timing is broadly consistent with the evidence outlined above and suggests that Dr Paterson was present in Ms Lalezari's suite at or around 7.15 pm. Coupled with Dr Beale's evidence that, shortly after entering the room she told Dr Paterson that her assistance was not required, this provides further assistance in establishing the sequence and timing of events and supports the conclusion that Dr Beale's correction of the time entry from 6.50 pm to 7.10 pm in her retrospective entry is likely to be accurate. Summary of relevant findings 190 Based on the evidence outlined above, I am satisfied of the following: 218 ts 554. 219 ts 557. 220 ts 602. 221 ts 1135. 222 ts 1133. 223 ts 602. -- 49 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 50 1. At or about 6.20 pm, upon detecting concerning features on the CTG trace, namely reduced variability and possible late decelerations,224 Midwife Palandri requested a registrar review. No review in response to that request occurred. 2. Between 6.43 pm and 6.56 pm, the tocograph was removed from Ms Lalezari to enable administration of the epidural. If Dr Marcano attended in response to the review request, her attendance must have occurred during this period which was approximately between 25 - 30 minutes after the request had been made. 3. While the absence of the tocograph meant that an accurate CTG assessment could not be made during the period it was absent, it did not prevent Dr Marcano from reviewing the CTG up to 6.42 pm or from asking Midwife Palandri why the review had been requested. Neither occurred. 4. At 7.01 pm and again at 7.06 pm, Midwife Palandri observed further concerning CTG features, specifically, abnormal decelerations consistent with bradycardia. After observing the start of the second deceleration at 7.06 pm, she activated the call‑assist bell. 5. In response, Dr Marcano, Dr Paterson and Dr Beale attended Suite 12 immediately arriving in close succession to each other with Dr Beale arriving last at approximately 7.10 pm. 6. Upon their arrival, all three doctors reviewed the CTG trace. This marked the first occasion on which the CTG had been reviewed by any of the defendant's treating doctors since Midwife Palandri had requested medical review approximately 50 minutes earlier after having identified features she, at that time, considered to be concerning. 7. When the trace was finally reviewed, it already showed two episodes of potentially significant decelerations in the baseline foetal heart rate which were potentially problematic. Events immediately leading up to delivery 191 There was a significant divergence in the evidence as to what happened after Dr Marcano and Dr Beale attended Suite 12. 224 Exhibit D1-17, page 122, recorded as a retrospective note. -- 50 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 51 192 As noted above, Mr and Ms Lalezari maintained that the ARM was performed by 'two staff members' who then left, after which Midwife Palandri spent some time looking for a doctor225 due to concerns that Mr and Ms Lalezari held about the performance of the procedure. After approximately half an hour, Dr Marcano and Dr Beale then came into the room.226 Mr Lalezari estimated this to be approximately 7.40 pm.227 193 I do not accept that account. Midwife Palandri gave clear evidence that after the 'doctors came into the room' in response to the call-assist bell, the registrar,228 Dr Marcano, performed the ARM. Both Dr Marcano229 and Dr Beale gave evidence to similar effect,230 which was unchallenged. Their evidence was also consistent with the entries made in the integrated medical notes, albeit retrospectively.231 194 While it may be accepted that Dr Marcano and Dr Beale were not well known to Mr and Ms Lalezari at the precise time the ARM was performed,232 by the time they gave evidence, that position had changed. Throughout their evidence, Mr and Ms Lalezari referred to Dr Marcano and Dr Beale as 'Dr Marie' and 'Dr Jenny' respectively. In those circumstances, their continued difficulty in accepting that either Dr Marcano or Dr Beale performed the ARM, and their firm adherence to the position that it was carried out by someone other than a doctor,233 gives rise to concern as to the reliability of their recollections surrounding this issue. 195 It appears that it is possible Mr and Ms Lalezari may have conflated the earlier period, during which Midwife Palandri was attempting to locate a doctor to conduct the review requested at 6.20 pm, with the events that followed the ARM performed by Dr Marcano shortly after her arrival at just after 7.10 pm. In any event, the inconsistency in their account, together with other discrepancies discussed below, leads me to further doubt the reliability of Mr and Ms Lalezari's recollection of subsequent events. 225 ts 173, ts 202. 226 ts 123. 227 ts 203. 228 ts 1130. 229 ts 898. 230 ts 978. 231 Exhibit D1-17, pages 122, 124. 232 ts 225. 233 ts 173 - ts 175, ts 225 - ts 226. -- 51 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 52 196 Dr Marcano recalled that at the time of entering Suite 12 and examining the CTG, the period of deceleration she was observing recovered. The significance of this to the timing is discussed at [184]. That recovery had occurred following repositioning of Ms Lalezari by Midwife Palandri and would have also roughly coincided with the commencement of the IV fluids prescribed by Dr Paterson. This is consistent with the retrospective entry made by Midwife Palandri discussed at [167]. 197 Where a CTG trace is demonstrating abnormalities, one method of assessing the significance of those abnormalities is through repositioning the mother and increasing IV hydration to see if that results in the abnormalities resolving.234 This is a matter that I will return to in further detail later in these reasons. 198 Upon Dr Beale entering the room, Midwife Palandri informed her that the foetal heart rate had dropped and that there had been a prolonged deceleration.235 After being apprised of the situation, Dr Beale and Dr Marcano reviewed the CTG to assess whether the deceleration had resolved and whether any additional concerning features were present, including abnormalities in the baseline heart rate, variability, or other features on the trace.236 It is clear that what Dr Beale described constituted a clinical assessment of the CTG, which necessarily involved a subjective evaluation of the features displayed on the trace. 199 As part of the assessment, Dr Marcano conducted a vaginal examination, confirming that Ms Lalezari's cervix was now 4 cm dilated. This indicated that active labour had commenced, and some additional dilation had occurred.237 However, at 4 cm, the cervix was still insufficiently dilated to permit a vaginal delivery. 200 Dr Beale directed Dr Marcano to perform the ARM, both to stimulate contractions in an effort to increase cervical dilation,238 as well as to enable an examination of the colour of the liquor239 to be undertaken. Liquor colour can be an indicator of foetal wellbeing.240 234 Exhibit D3-129, page 736. 235 ts 976. 236 ts 977. 237 ts 977. 238 ts 480. 239 In this context, 'liquor' is a reference to the medical term for the amniotic waters. 240 ts 496, ts 978. -- 52 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 53 201 Dr Marcano recalled the liquor as clear,241 and made a retrospective note to that effect.242 Dr Beale, by contrast, recalled that the liquor was bloodstained,243 and likewise recorded this retrospectively.244 202 Dr Marcano explained how these apparently inconsistent observations could be reconciled,245 and in light of that explanation, the difference does not cause me any concern regarding the reliability of either doctor's account. I accept Dr Beale's evidence that the liquor showed signs of bloodstaining and, more importantly, that the presence of bloodstaining was not, in itself, a cause for concern.246 203 At the conclusion of the examination, because the CTG had shown concerning features, namely reduced variability together with a prolonged deceleration, and because Ms Lalezari remained in early rather than advanced labour, Dr Beale formed the view that it was 'very likely'247 Daniella would need to be delivered by caesarean section. Dr Beale informed Mr and Ms Lalezari of this possibility. I also accept Dr Marcano's evidence that Dr Beale advised Mr and Ms Lalezari that they would 'wait and watch'248 to see whether the CTG improved and that, if it did not, a caesarean would then be necessary. 204 In preparation for a possible caesarean delivery, Dr Beale instructed Dr Marcano to obtain Ms Lalezari's consent for the procedure. Dr Beale then left the room to attend to other duties.249 She estimated this to be approximately 7.15 pm.250 205 As is apparent from the evidence summarised above, when Dr Beale left Suite 12 a final decision regarding the need for a caesarean section had not yet been made. However, given the substantial likelihood that a caesarean would be necessary, preparations were being made for that probable outcome. The approach adopted was to observe whether the CTG demonstrated further improvement and, if it did, to continue with the IOL in the hope of achieving a vaginal delivery. If the CTG did not improve, a caesarean was 241 ts 913. 242 Exhibit D1-17, page 122. 243 ts 978. 244 Exhibit D1-17, page 124. 245 ts 944. 246 ts 978. 247 ts 979. 248 ts 898. 249 ts 898, ts 979. 250 ts 980. -- 53 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 54 probable. It was also clear that the planned period of further monitoring was not expected to be lengthy before a final decision would be made.251 Obtaining consent 206 Upon Dr Beale leaving the room, Dr Marcano was left with the task of securing Ms Lalezari's consent for the possible caesarean procedure. At this point, the only occupants within Suite 12 were Mr and Ms Lalezari, Dr Marcano and Midwife Palandri. Mr and Ms Lalezari 207 Once again Mr and Ms Lalezari gave broadly similar accounts of what took place. However, the consistency between their recollections does not lead me to place additional weight on their evidence for the same reasons I have outlined at [30]. Likewise, the inconsistencies between their account and the evidence of other witnesses which I have discussed at [192] and [193] continue to cause reservations about the reliability of their account of subsequent events. 208 According to Mr and Ms Lalezari, at approximately 7.30 pm,252 having been away from the room for approximately 30 minutes following the ARM, Dr Beale and Dr Marcano returned to the room and began discussing the caesarean section procedure and its associated risks with Ms Lalezari. This conversation continued for 'a while', during which Mr and Ms Lalezari asked a 'couple of questions', which were addressed by the doctors.253 209 Whilst this was occurring, staff were gathering outside the doorway to the room. Dr Beale went to the doorway where she had a brief conversation with the staff before returning to Ms Lalezari's bedside and informing her that an emergency caesarean was necessary. Dr Beale provided Ms Lalezari with a consent form, which Ms Lalezari immediately signed, before passing it to Mr Lalezari. Ms Lalezari was then taken to the operating theatre.254 210 The common themes that emerged from Mr and Ms Lalezari's evidence about what took place were as follows: 251 ts 980. 252 ts 177. 253 ts 124. 254 ts 124. -- 54 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 55 1. The conversation about a caesarean occurred sometime after the ARM and from 7.30 pm onwards.255 2. The conversation was very short,256 being only a small number of minutes in length.257 3. During the conversation, Mr and Ms Lalezari asked a small number of questions.258 4. Dr Beale remained in the room throughout the entirety of the conversation and did not leave the room.259 5. At least one of the doctors had a conversation with other staff at the door to the room, following which Mr and Ms Lalezari were then advised of the need for an emergency caesarean.260 6. When asked to do so, Ms Lalezari immediately consented to the emergency caesarean,261 after which she was then taken to theatre.262 Midwife Palandri 211 Although Midwife Palandri's recollection of the events is limited,263 it nonetheless remains relevant. She recalled that 'the registrar', identified as Dr Marcano, spoke first,264 and she also remembered 'the consultant', being Dr Beale, returning to the room.265 212 This aspect of Midwife Palandri's evidence suggests that at some point Dr Beale had left, which aligns with Dr Beale's account that she instructed Dr Marcano to explain the caesarean procedure to Mr and Ms Lalezari and to obtain consent, before leaving Suite 12 to attend to other responsibilities. It is materially different to the account that Mr and Ms Lalezari maintained in their evidence, as discussed at [210.4]. 255 Ms Lalezari said 7.30 pm (ts 177); Mr Lalezari said 7.40 pm (ts 203, ts 227). 256 ts 178. 257 Ms Lalezari said 5 - 10 minutes (ts 181); Mr Lalezari said 'a few minutes' (ts 203). 258 ts 181, ts 203. 259 ts 179. 260 Ms Lalezari said it was Dr Beale who went to the door (ts 178); Mr Lalezari said it was both Dr Beale and Dr Marcano (ts 203), and that this occurred at approximately 7.47 pm (ts 227). 261 ts 179, ts 203, ts 227. 262 ts 180, ts 203. 263 ts 1134, ts 1138. 264 ts 1135. 265 ts 1138. -- 55 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 56 Dr Marcano 213 Dr Marcano confirmed that she retained a memory of the conversation that occurred with Mr and Ms Lalezari, independent from what was refreshed from her review of the clinical notes. From her evidence, I understood that her independent recollection did not extend to the specific words spoken but rather to the tone of the exchange and a distinct memory of how emotionally charged the situation was. When describing her memory of the events she recalled:266 I felt very uncomfortable and I felt trapped and very stressed by the situation, as I'd been tasked with something that is normally quite simple, but was quite difficult. And also, with the knowledge that the CTG had been abnormal and was abnormal and that I was struggling to gain consent. 214 On the version of events given by Mr and Ms Lalezari, it is difficult to see why the circumstances they described would have left Dr Marcano with such a vivid and lasting impression. However, as will be discussed in further detail below, the account provided by Dr Marcano offers a clearer explanation for why the conversation would have remained so memorable to her. 215 Dr Marcano commenced the conversation by explaining to Mr and Ms Lalezari the risk of injury to surrounding structures and organs that a caesarean presents. Her recollection was that upon mentioning the risk of what might happen in a worst-case scenario, namely the need for a hysterectomy, 'there became a lot of questions around that'.267 Similarly there were questions around the term 'foetal distress' and why a caesarean would be required,268 and what clinical features were present that were suggestive of foetal distress. It was also evident from Dr Marcano's account that the person asking the majority of the questions was Mr Lalezari.269 216 A recurring theme in the evidence of several witnesses who had interacted with Mr Lalezari was their description of his inclination to question matters more extensively than required. This characteristic was evidently distinctive enough to leave a lasting impression, as these witnesses were able to recall this tendency years after their interactions with him. Examples included: 266 ts 899. 267 ts 901. 268 ts 901. 269 ts 901. -- 56 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 57 1. As noted at [110], the consultation with Dr Brewin on 26 August, which included Mr Lalezari, was sufficiently long for Dr Brewin to make a note of that fact in his record of the meeting, which is something he would normally do when there were 'multiple questions'. 2. Midwife Dunbar recalled that Suite 12 was 'at times quite a difficult room' and that Mr Lalezari was 'quite obstructive' by frequently being not 'overly accepting of what we were recommending as care'.270 3. Midwife Palandri recalled that Mr Lalezari 'spoke a lot' for Ms Lalezari.271 217 As will be discussed in further detail below, Dr Beale reported experiencing similar behaviour from Mr Lalezari shortly after his interactions with Dr Marcano, and the episode was of sufficient significance that she also recalled it independently in her evidence. 218 I do not raise the above matters to criticise Mr Lalezari. It is evident that he was a concerned husband supporting his wife through her first pregnancy. However, this evidence is, in my view, consistent with Dr Marcano's description of his behaviour during her conversation with him and Ms Lalezari, and lends further weight to the reliability of her account. 219 Likewise, it is not in itself unusual for a husband in Mr Lalezari's position to ask questions, perhaps even several, about a proposed procedure, particularly when concerned for his wife's wellbeing. The plaintiff submits that Mr Lalezari should not be criticised for wanting to ensure that he and Ms Lalezari were properly informed about the medical risks associated with the procedure.272 I do not disagree. 220 Given the plaintiff does not allege that the defendant breached its duty by taking an unreasonably long time to obtain Ms Lalezari's consent, it is ultimately not necessary for me to assess the reasonableness of Mr Lalezari's conduct. In circumstances where the court has not itself had to experience what Mr and Ms Lalezari faced, it should be hesitant to do so. However, to the extent the plaintiff's case may contain an implicit criticism of the time 270 ts 625. 271 ts 1108. 272 ts 1352. -- 57 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 58 the defendant took in securing consent, I am satisfied that the delay was not something the defendant reasonably anticipated, nor could have anticipated. 221 Nonetheless, Mr Lalezari's conduct during this conversation remains relevant to determining the length of time the process took, particularly because of the divergence between the accounts given by Mr and Ms Lalezari and that of Dr Marcano. For the reasons set out in more detail below, the duration of this process bears materially on the issue of causation. Accordingly, although I make no finding as to the reasonableness of his conduct, it remains necessary for me to resolve the differences between these accounts. 222 Dr Marcano's estimate at the time of giving evidence was that she had obtained 'probably hundreds' of consents from patients for caesarean section procedures,273 and at the time of dealing with Mr and Ms Lalezari, probably '30 or 40'.274 Ordinarily, in her experience, the time taken in order to obtain consent for a caesarean procedure during labour would, subject to the clinical situation, take approximately 5 - 10 minutes.275 This estimate based on her experience was largely consistent with other estimates given.276 223 What emerges from Dr Marcano's evidence is that her enduring memory was that this was not merely 'a couple of questions', nor even the 'two to three' that Mr Lalezari recalled in his evidence.277 Rather, the number and nature of his questions were, in her view, sufficiently out of the ordinary that the exchange left a distinct and lasting impression on her many years later. I accept Dr Marcano's evidence in that regard as well as her estimate that the number of questions asked during this process was '20, 30, [or] more'.278 224 It should also be remembered that the issues about which Dr Marcano, and subsequently Dr Beale were being questioned had already been the subject of extensive discussions between Mr and Ms Lalezari and Dr Armari and Dr Brewin during their previous consultations, as set out at [104] and [115]. Accordingly, many, if not 273 ts 904, ts 923. 274 ts 924. 275 ts 904 - ts 905. 276 Dr Beale estimated 'sometimes, maximum five minutes if patients have questions' (ts 981); Dr Paterson estimated three to four minutes (ts 559); Professor Hyett estimated that the process of clinically assessing the situation, formulating a decision about proceeding to a caesarean procedure and obtaining the patient's consent ought to take, as an outer margin, 15 minutes (ts 512). 277 ts 203. 278 ts 901. -- 58 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 59 all, of the matters that were now being raised predominantly by Mr Lalezari during the discussion with Dr Marcano, and again with Dr Beale, were matters that had already been explained. 225 The consequence of this is that I am satisfied this process took more than the few minutes that Mr and Ms Lalezari described it as taking in their evidence. Rather, I accept Dr Marcano's evidence where she estimated that the process of endeavouring to obtain Ms Lalezari's consent for a possible caesarean procedure took approximately 20 minutes,279 after which consent still had not been obtained. Dr Beale 226 That 20-minute estimate was also consistent with Dr Beale's unchallenged evidence. Dr Beale recalled that after receiving no update from Dr Marcano about the progress in Suite 12, she checked the CTG board and observed that Ms Lalezari's trace was 'very concerning'. The CTG trace showed recurrent late decelerations, foetal tachycardia, and reduced variability, all features which were indicative to Dr Beale of hypoxia.280 Dr Beale immediately returned to Suite 12. 227 Upon returning, she was informed by Dr Marcano that consent still had not been obtained, a fact that Dr Beale found shocking:281 [b]ecause I realised that she had been in there for 20 minutes and still did not have consent. And that's a long time. 228 Dr Beale responded with words to the effect that '[t]he baby needs to be born, because I am concerned'.282 Notwithstanding that advice, Mr Lalezari continued to ask 'many questions' about why a caesarean section was required.283 Dr Beale estimated that answering these questions took a further 5 - 10 minutes.284 Dr Marcano gave a similar estimate.285 229 The questions concerned why she considered a caesarean necessary and which clinical features on the CTG had led her to that conclusion. I accept Dr Beale's evidence that, given the circumstances 279 ts 905. 280 ts 980. 281 ts 981. 282 ts 981. 283 ts 982. 284 ts 982. 285 ts 906. -- 59 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 60 then unfolding and the information she was providing, the number and nature of the questions posed by Mr Lalezari were not typical of what she would ordinarily expect from patients in such situations, and that this was why the events remained clear in her memory.286 230 While responding to Mr Lalezari's questions, Dr Beale undertook a further vaginal examination to confirm whether there had been any additional cervical dilation that might permit a vaginal delivery and thereby avoid the need for a caesarean section. 231 The examination took approximately 30 seconds,287 and confirmed that vaginal delivery was not possible as Ms Lalezari was not sufficiently dilated. After advising Ms Lalezari that she would not reach the necessary level of dilation within the time available,288 Ms Lalezari gave her oral consent to proceed with the caesarean.289 232 The fact that Ms Lalezari only gave her oral consent after realising that a vaginal delivery was no longer possible, and that a caesarean was the only remaining safe option for Daniella's birth is entirely consistent with my earlier finding at [119] regarding Ms Lalezari's strong reluctance to undergo a caesarean section and her clear preference to deliver vaginally. 233 Dr Beale estimated that the time between her re-entering the room to advise Mr and Ms Lalezari that an emergency caesarean was required, and Ms Lalezari providing that oral consent, was around 10 minutes.290 Based upon the retrospective note she subsequently made,291 she approximated this to be 7.40 pm. Following the giving of oral consent, preparations were then made for Ms Lalezari to proceed to surgery. 234 During cross-examination both Mr and Ms Lalezari substantively denied this version of events. As noted at [210], the accounts given by Mr and Ms Lalezari differed materially to Dr Beale's on key aspects, including the sequence of events, performance of the ARM, the clinical assessment of foetal risk and advice, the securing of consent and time taken, and the level of urgency about what was taking place that was conveyed. Notwithstanding, none of Dr Beale's evidence on these issues was challenged. 286 ts 982. 287 ts 982. 288 ts 982. 289 ts 988. 290 ts 983. 291 Exhibit D1-17, page 124; ts 983. -- 60 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 61 235 In my view, the inconsistency between Dr Beale's unchallenged account and the evidence given by Mr and Ms Lalezari is both material and significant and substantially undermines the reliability of their evidence on these matters. Dr Beale's account was, in any event, materially corroborated by the evidence of Dr Marcano and Midwife Palandri, and to some extent by Dr Paterson, for the reasons discussed below. For the reasons set out at [42] - [45], where the evidence is in conflict on these material Issues, I unhesitatingly prefer and accept the evidence of Dr Beale over that of Mr and Ms Lalezari. 236 It follows that: 1. I do not accept the evidence of Mr and Ms Lalezari that they did not appreciate the urgency of the need for a caesarean section because they were never informed of it. Rather, I accept Dr Marcano's evidence that, by the time Dr Beale returned to Suite 12, Dr Marcano had already advised both Mr and Ms Lalezari that a caesarean section was likely to be required due to signs of foetal distress. I further accept that, upon her return, Dr Beale was unequivocal in explaining both the urgency of the situation and the basis upon which she was then recommending an emergency caesarean section. 2. I do not accept the evidence of Mr and Ms Lalezari that Ms Lalezari immediately signed the consent form upon being so advised. Instead, I accept Dr Marcano's evidence that the process of obtaining consent was protracted and took a considerable period of time, being approximately 20 minutes. I also accept Dr Beale's unchallenged evidence that, even after the urgency of the circumstances and the significant risk to the foetus were explained, it took a further period of approximately 10 minutes to obtain Ms Lalezari's oral consent. Dr Paterson 237 Dr Paterson gave evidence that she attended the room when the call‑assist bell was activated, arriving at approximately the same time as Dr Marcano and, shortly thereafter, Dr Beale. She also said that while she was in the room, she participated in a conversation between Dr Beale and Mr and Ms Lalezari concerning the need for a category 1 caesarean section. The way in which Dr Paterson recounted her recollection suggested that she viewed the events as a continuous episode and that she had been present from the time the call‑assist bell -- 61 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 62 was rung until consent was obtained. She had no recollection of any conversation between Dr Marcano and Mr and Ms Lalezari.292 238 As noted at [189], I accept Dr Beale's evidence that upon entering the room in response to Midwife Palandri activating the call‑assist bell, she shortly thereafter directed Dr Paterson to attend to other duties. In my view, this explains Dr Paterson's difficulty in recalling events after her initial attendance, beyond what she described as her usual practice of introducing herself, and why she could not recall any conversation between Dr Marcano and Mr and Ms Lalezari. 239 It was apparent from Dr Paterson's evidence that her recollection became clearer when she was asked about events in which she was directly involved, that is, when she was describing her participation in a conversation involving Dr Beale. In describing that conversation, she prefaced her evidence by noting that Dr Beale had attended another part of the labour ward before the discussion occurred.293 Dr Paterson's recollection in this regard is consistent with Dr Beale's account that she attended to other duties while Dr Marcano explained the caesarean procedure to Mr and Ms Lalezari and sought to obtain Ms Lalezari's consent. 240 Dr Paterson recalled that at the time of having the discussion, both her and Dr Beale had formed the view that a category 1 caesarean was necessary as the 'CTG was deteriorating'.294 Due to the limited progress of the labour, expedited delivery was warranted. 241 Although Dr Paterson's recollection was that a category 1 caesarean required delivery within one hour, she accepted that this recollection was likely unreliable.295 I accept Dr Beale's evidence that a category 1 caesarean required delivery to occur within 30 minutes.296 As can be seen, a category 1 caesarean is a materially different clinical position from the earlier possibility of a caesarean section that existed when Dr Beale first left the room, and which Dr Marcano was responsible for explaining to Mr and Ms Lalezari. 242 In my view, the fact that Dr Paterson described a conversation about a category 1 caesarean, consistent with what would be regarded as an emergency caesarean, and that this discussion occurred after a 292 ts 555. 293 ts 557. 294 ts 557. 295 ts 558. 296 ts 984. -- 62 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 63 view had been formed that the CTG was deteriorating, aligns with the substantive conversation that Dr Beale described as taking place upon her return to Suite 12, approximately 20 minutes after leaving Dr Marcano to obtain Ms Lalezari's consent. 243 Dr Paterson had no recollection of the specific details of that conversation other than that Dr Beale was present, and that she herself would have followed her 'usual practice', which involved explaining concerns regarding the baby's heart rate and the need to proceed to theatre 'sooner rather than later'.297 244 Notably, she recalled that the conversation lasted approximately 10 - 15 minutes because Mr Lalezari asked 'many questions', which she estimated to be about 10, concerning the interpretation of the CTG.298 That aspect of her recollection, particularly as to the time taken to obtain consent notwithstanding the increasing urgency of the situation, is again consistent with Dr Beale's account and accords with the evidence I have discussed at [216] concerning Mr Lalezari's conduct more generally. 245 After those questions were addressed, consent was obtained from Ms Lalezari, although Dr Paterson had no specific memory of that occurring,299 and Ms Lalezari was then taken to theatre. 246 It is correct that Dr Beale, in her evidence, did not mention Dr Paterson being present during the substantive conversation she had with Mr and Ms Lalezari regarding the need for an emergency caesarean. However, she did not suggest that Dr Paterson was absent either. Her evidence was simply focused on her own role in the discussion, although it did seem to suggest that she was the principal person speaking. 247 Notwithstanding, as is discussed in further detail below, Dr Paterson was the surgeon who ultimately performed the caesarean section on Ms Lalezari,300 having been requested to do so by Dr Beale.301 In that context, I accept that it is likely that Dr Paterson participated in the conversation with Dr Beale in the manner she described, culminating in Dr Beale's decision that Dr Paterson would perform the procedure. 297 ts 558. 298 ts 559. 299 ts 559. 300 ts 561. 301 ts 984. -- 63 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 64 248 Dr Beale confirmed that a caesarean section cannot proceed without the mother's consent,302 though Dr Paterson confirmed verbal consent was sufficient.303 Once consent is obtained, the procedure is immediately booked with the theatre coordinator because a category 1 caesarean section requires delivery to occur within 30 minutes from consent.304 249 The theatre booking form305 records that at 7.40 pm a booking request was made, and the theatre was booked for 7.52 pm. Dr Beale explained the theatre booking is made immediately once the mother has consented,306 suggesting Ms Lalezari gave her consent at approximately 7.40 pm, consistent with the estimate that Dr Beale gave during her evidence. Notably, it appears that Dr Beale made the booking. 250 The form also notes that Ms Lalezari was 'sent for' at 7.42 pm. In seeking to interpret the form, Dr Paterson 'presume[d]' this indicated that someone had activated the process for the patient to be called to theatre.307 Dr Marcano explained that it means theatre are indicating they are ready to receive the patient.308 251 Dr Marcano explained during the process of explaining the caesarean procedure to Ms Lalezari and endeavouring to obtain her consent, she had been pre-filling out the written consent form.309 It is evident from the written consent that Ms Lalezari signed it, but other than Ms Lalezari's evidence that she signed it 'straightaway, as soon as they hand it to me',310 it is unclear how long after the oral consent was given that she signed it. 252 After Ms Lalezari had signed the written consent, and while she was being wheeled to theatre, Mr Lalezari began reading and altering the document she had just signed. For reasons that were not made clear, Mr Lalezari considered it necessary to delete the following statements, notwithstanding that Ms Lalezari had already willingly given her consent:311 302 ts 984. 303 ts 584. 304 ts 984. 305 Exhibit D1-47. 306 ts 985. This was also consistent with Dr Paterson's evidence at ts 579. 307 ts 580. 308 ts 966. 309 ts 902. 310 ts 179. 311 Exhibit PS-2. -- 64 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 65 • I consent to clinical photographs taken during the procedure, and filed in my medical record. • I consent to a vaginal examination by the Medical Student assigned to me, supervised by a Doctor, while I am anaesthetised, if it is considered that a vaginal examination is a necessary part of the procedure. 253 Having made those purported amendments and initialling them with his own initials, despite the form being Ms Lalezari's written consent, Mr Lalezari then photographed the altered form using his mobile phone. Those two photographs, received without objection,312 were timestamped 7.49 pm.313 Given the theatre booking form records Ms Lalezari being collected from Suite 12 at 7.48 pm and arriving in theatre at 7.51 pm,314 this timing is broadly consistent with the established chronology. Summary of relevant findings 254 In summary, based on the evidence as outlined above, I am satisfied of the following chronology of events: 1. Upon their arrival in Suite 12, Dr Beale, Dr Marcano and Dr Paterson undertook a clinical assessment of the situation, which included reviewing the CTG trace, interpreting the observable features, recognising that those features were abnormal and suggestive of a risk of acidosis, and taking steps directed to the immediate management of that risk. 2. Those immediate management steps included a vaginal examination, the performance of an ARM to exclude alternative contributing factors suggested by the CTG, maternal repositioning, and the administration of IV fluids. 3. During that assessment, the decelerations that had prompted Midwife Palandri to activate the call‑assist bell self-resolved and the foetal heart rate had returned to a level in excess of 150 bpm. 312 ts 205. 313 Exhibit PS-2. 314 Exhibit D1-47, page 267. -- 65 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 66 4. Notwithstanding that temporary improvement, when Dr Beale left Suite 12 at approximately 7.15 pm she advised Mr and Ms Lalezari that Daniella was exhibiting signs of foetal distress and that caesarean delivery was now likely. 5. It was made clear to Ms Lalezari that her consent would be required before the procedure could proceed. 6. Over the ensuing period of approximately 20 minutes, efforts were directed to obtaining Ms Lalezari's consent. Consent had not been provided by the time Dr Beale returned to Suite 12. 7. During that interval, the CTG trace continued to deteriorate, to the point where urgent delivery became necessary. Dr Beale advised Mr and Ms Lalezari that a category 1 caesarean section was now required, given that the CTG was now demonstrating features that were potentially pathological. 8. Despite that advice, further discussions continued with Ms Lalezari ultimately providing oral consent at or about 7.40 pm. 9. Once oral consent was obtained, a theatre booking was made at 7.40 pm. Ms Lalezari was sent for at 7.42 pm, collected from Suite 12 at 7.48 pm, and arrived in theatre at 7.51 pm. 255 As is apparent from the above outline, a period of close to 30 minutes elapsed between the CTG first being reviewed by a consultant medical practitioner, the recognition of possible foetal compromise, and the identification of the likely need for caesarean delivery, and the point at which Ms Lalezari's consent was finally obtained. A significant proportion of that time was spent obtaining Ms Lalezari's consent to the procedure. That interval cannot be said to be attributable to any lack of clinical recognition or delay on the part of the treating clinicians. Caesarean procedure and delivery Pre-surgery procedure 256 Dr Paterson explained that once a decision is made to proceed, one of the doctors will call the theatre to book the procedure in, whilst another doctor will head directly to the theatre to make the necessary -- 66 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 67 arrangements.315 In this case, Dr Paterson was the doctor who headed to the theatre whilst Dr Beale made the theatre booking. 257 Once the consent had been given, Dr Paterson immediately made her way to the theatre, which was situated on the level directly above Ms Lalezari's suite. She advised the theatre that Ms Lalezari was on her way and started preparing for the surgery.316 258 Once staff are allocated to the theatre and it is ready to proceed, arrangements will be made for a patient care assistant to come and collect the mother to take her to theatre.317 As noted above, those arrangements were made at 7.42 pm with Ms Lalezari being collected from Suite 12 at 7.48 pm,318 and arriving in the theatre room at 7.51 pm.319 259 Ms Lalezari recalled being taken to the theatre room and, shortly after arrival, the anaesthetist began talking to her about the epidural that was being administered.320 Her next recollection was her daughter's delivery.321 260 As previously noted, while his wife was being taken to surgery, Mr Lalezari remained in Suite 12 so that he could amend and photograph the consent form his wife had already signed.322 On his account, shortly afterwards he was instructed by a staff member to follow him. Mr Lalezari was then given a hospital gown and protective equipment and escorted to a corridor outside the theatre, where he was left waiting. He attempted to hand the consent form that was still in his possession to the attendant, but was told that it would be requested when needed. After waiting for approximately 5 - 10 minutes, the same attendant asked him to follow him into the theatre. At that point, Dr Marcano requested the consent form, which Mr Lalezari immediately provided.323 315 ts 579. 316 ts 561. 317 ts 579. 318 Exhibit D1-34; Exhibit D2-115. 319 Exhibit D1-47. 320 ts 124 - ts 125. 321 ts 125, ts 185. 322 Exhibit PS-2; ts 204. 323 ts 205. -- 67 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 68 261 Dr Marcano assisted Dr Paterson and was the first obstetric doctor to arrive in the theatre.324 She was responsible for conducting the 'team timeout', a procedure in which the patient is asked to confirm their identity and the operation they are about to undergo, ensuring that the correct patient has been identified for the correct procedure.325 262 Given the critical importance of the timeout process in ensuring correct patient identification and confirmation of the intended procedure, it is a step carried out very shortly after the patient enters the theatre. The process begins when a doctor, in this instance Dr Marcano, calls out 'team timeout', signalling to all present that they must quieten so that the doctor conducting the timeout can communicate clearly with the patient and verify their identity. As part of this verification, the patient's consent form is checked against their identification wristband, making the consent form an essential component of the process.326 263 On this occasion, Dr Marcano recalled that because the surgery was an emergency category 1 caesarean, the timeout procedure was 'rushed' and that staff had difficulty in locating the consent form.327 Several people in the room were asking, 'Where's the consent?', and according to Dr Marcano, multiple staff members began searching for it. Whilst this was occurring around him, she recalled that Mr Lalezari was seated at the head of his wife's bed with Dr Marcano positioned alongside Ms Lalezari. 264 Efforts to locate the consent continued until Dr Paterson entered the theatre and stated,328 'We don't need the consent form, as we know consent has been given and it can be confirmed. This is an emergency. We need to get going'. At that moment, Mr Lalezari produced the consent form and asked, 'This piece of paper?'.329 The implication from Dr Marcano's evidence was that because of Mr Lalezari's failure to produce the consent form whilst a number of staff members were looking for it, this contributed to the delay in carrying out the surgery. 265 There is a degree of disparity between Mr Lalezari's account, namely that he was delayed at the theatre doorway and handed over the consent form immediately when asked, and Dr Marcano's evidence 324 ts 908. 325 ts 908. 326 ts 940. 327 ts 908. 328 ts 909. 329 ts 909. -- 68 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 69 suggesting he failed to produce the form while staff were actively looking for it. 266 If Dr Marcano's version is correct, and Mr Lalezari was seated nearby during the timeout in a quietened room, it is difficult to accept that he would have remained unaware of staff searching for the consent form. In those circumstances, it is also hard to see how he could have unintentionally failed to recognise what was happening, and even harder to accept that he would have intentionally ignored it. These considerations cause me to question the accuracy of Dr Marcano's evidence on this point. It seems far more likely that any confusion about the location of the consent form, or Mr Lalezari's awareness that staff were seeking it, was momentary and that he produced it as soon as he realised the situation. 267 Ultimately, this is not an issue that I am required to determine. The defendant does not contend that Mr Lalezari intentionally caused any delay to the surgical procedure. Moreover, based on the evidence as I understand it, any delay in Mr Lalezari producing the consent form did not affect the timing of the surgery. While the timeout was being conducted, Dr Paterson was undertaking her own preparatory steps for the operation.330 She was not involved in the timeout process, and the surgery could not commence until she had completed her preparations. Once she had done so, she entered the theatre, indicated that the procedure could proceed without the consent form, and commenced surgery.331 Accordingly, any delay by Mr Lalezari in producing the form had no impact on when the surgery ultimately began. Caesarean delivery 268 Apart from what was recorded in her medical notes, it was clear that Dr Paterson had little independent recollection of performing the procedure. This is unsurprising given the time that has passed and the number of similar procedures she would have carried out in the interim. She did, however, explain that ordinarily this type of procedure takes only a matter of minutes from the point at which the epidural becomes effective to the surgical delivery of the baby.332 330 ts 561. 331 ts 909. 332 ts 600. -- 69 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 70 269 Likewise, Dr Marcano had little independent recollection of the procedure other than she recalled 'thinking it was uncomplicated at the beginning of the surgery'.333 This appears to be a reference to the events that subsequently unfolded. Similarly, Mr and Ms Lalezari's evidence understandably centred more on the delivery of their daughter than on the details of the surgical procedure itself.334 270 The procedure commenced at 8.02 pm, with surgery beginning at 8.04 pm.335 Daniella was delivered at 8.08 pm,336 28 minutes after Ms Lalezari had provided her oral consent. From the time Dr Beale first noted what she regarded as concerning features on the CTG at approximately 7.10 pm to Daniella's delivery at 8.08 pm, nearly one hour had passed. Postpartum 271 Ms Lalezari recalled seeing her daughter and immediately noticing she appeared blue. She was neither crying nor making any sound, despite her mouth being open. Her hand was tightly clenched into a claw-like position.337 Mr Lalezari gave a description that was almost identical.338 272 Dr Paterson's notes, which she estimated were made 30 - 45 minutes after delivery, was that the baby demonstrated 'some tone at delivery', referring to Daniella's attempts to move her arms, trunk and head.339 Paediatric consultants were called to assist and commenced resuscitation upon Daniella whilst Dr Paterson continued to attend to Ms Lalezari.340 Dr Marcano had no independent recollection of these events.341 273 Following delivery, Dr Paterson and Dr Marcano clamped the umbilical cord in two places, cut the cord and handed it, along with the placenta, to theatre staff. Neither doctor had an independent memory of this occurring, however Dr Paterson explained this was her usual practice and she had no reason to think she would have deviated from it on this occasion.342 She also had no recollection of observing any 333 ts 911. 334 ts 125, ts 206. 335 Exhibit D1-47, page 268. 336 Exhibit D1-26, page 184. 337 ts 125. 338 ts 206. 339 Exhibit D1-33, page 198; ts 563. 340 ts 600. 341 ts 911. 342 ts 563 - ts 564. -- 70 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 71 abnormalities in the cord and explained that, had she noticed anything unusual, it was her practice to record such features in her notes.343 No such abnormalities were recorded.344 The significance of this is discussed in further detail below. 274 Daniella's APGAR score during her first minute of life was 3. This comprised a score of 1 for Respiration, reflecting occasional or irregular breathing, and a score of 2 for Pulse, indicating a heart rate above 100 bpm. All remaining categories were scored 0.345 A 'Code Blue' was called.346 Resuscitation commenced almost immediately and lasted for almost 30 minutes.347 275 Ordinarily, following resuscitation, there would be an expectation that the heart rate would increase above 100 bpm and there might be the start of irregular respiration.348 By three and a half minutes Daniella's heart rate had fallen to below 60 bpm, prompting external cardiac massage.349 At five minutes, her APGAR score had fallen to 1, derived solely from her Pulse score. Her score remained unchanged at 10 minutes.350 276 At 8.45 pm, approximately 37 minutes after Daniella's delivery, a neonatal blood gas sample351 was taken and analysed, yielding abnormal results.352 The pH was 6.81, indicating a state of acidosis, and the lactate concentration was 17 mmol/L, significantly exceeding the expected level of less than two. This 'extremely high'353 lactate level was indicative of severe metabolic acidosis. 277 None of the clinicians involved in Daniella's resuscitation were called to give evidence. Dr Paterson and Dr Marcano were not involved in those efforts, as they were attending to Ms Lalezari's post‑surgical care. 278 In the absence of direct evidence concerning the resuscitation, it is difficult to make detailed findings beyond observing that it was prolonged and appears to have been attended by some difficulty. 343 ts 564. 344 Exhibit D1-33. 345 Exhibit D2-71, page 421. 346 Exhibit D2-60, page 311; Exhibit D2-65, page 321. 347 Exhibit D2-65, page 323. 348 ts 280. 349 Exhibit D2-65, page 323; ts 519. 350 Exhibit D2-71, page 421. 351 Exhibit D2-75, page 429. 352 ts 307, ts 516. 353 ts 316. -- 71 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 72 Much of the resuscitation was seemingly ineffective, for reasons that are unclear, until approximately 8.35 pm when breath sounds were detected. At 8.38 pm, 29 minutes after birth, Daniella's heart rate increased to above 100 bpm. At 8.44 pm, she was transferred from the operating theatre to Special Care Nursery 3. Post-natal pathology 279 As part of the post-natal pathological investigations, the placenta and umbilical cord were examined. Such examinations are undertaken to identify any abnormalities that may have predisposed the foetus to distress during labour, or to determine whether there is evidence of a prolonged period of foetal compromise.354 280 To facilitate these investigations, blood samples are taken after delivery from both the umbilical artery and the umbilical vein. These are referred to respectively as the arterial and venous cord gas samples. The cord gas results may be compared with arterial and venous blood gas samples obtained from the newborn. 281 Ordinarily, in a newborn the arterial blood will hold a higher proportion of oxygen whereas the venous blood will carry a greater component of carbon dioxide. When in utero the reverse will occur and the umbilical vein will carry oxygenated blood from the placenta to the foetus, thereby having a higher oxygen content, whereas the umbilical artery carries deoxygenated blood from the foetus back to the placenta and therefore has a higher level of carbon dioxide.355 282 Daniella's cord arterial blood gas was considered to be normal, with a pH recorded as 7.305. However, as noted at [276] her blood sample taken at 8.45 pm had a pH of 6.81, indicating severe acidosis.356 283 Subsequent histopathology357 showed evidence of acute chorioamnionitis in the placenta, but not the umbilical cord.358 Chorioamnionitis is an infection that causes inflammation to the membranes surrounding the foetus in utero359 and can be considered a risk factor for the development of hypoxic-ischaemic injury.360 In Daniella's case, because there was no evidence of foetal 354 ts 270. 355 ts 271. 356 Exhibit P1-6, page 41 [14]. 357 The microscopic examination of tissue for disease or abnormality. 358 Exhibit D1-7; ts 277. 359 ts 270. 360 ts 797. -- 72 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 73 inflammatory response to the chorioamnionitis, it was unlikely to be a contributing factor.361 Radiological examinations 284 On 31 August 2020 Daniella underwent a cranial ultrasound which was abnormal, due to increased echogenicity362 of the basal ganglia region of her brain.363 This was highly suggestive of a hypoxic-ischaemic injury.364 285 Diffusion weighted imaging is a technique used to measure the degree of diffusion of water molecules within the brain. Where there has been hypoxic-ischaemic injury, the diffusion will be restricted. A magnetic resonance imaging (MRI) scan conducted on 1 September 2020 suggested restricted diffusion in the basal ganglia and thalami (BGT) regions of Daniella's brain.365 286 The BGT are among the most metabolically active regions of the brain and are therefore particularly vulnerable to hypoxia and ischaemia. Consequently, where hypoxia is of short duration, injury is most likely to involve the BGT regions. By contrast, in cases of more prolonged hypoxia, compensatory mechanisms known as 'cerebrovascular autoregulation' may prioritise blood flow to these regions at the expense of the intervascular boundary zones, resulting in injury to those areas, commonly described as a 'watershed injury'.366 The significance of this is discussed in further detail below. What was the scope of the defendant's duty of care to the plaintiff? 287 At common law, a medical practitioner owes a duty to exercise reasonable care and skill in providing medical advice and treatment to their patient. The applicable standard of care is that of an ordinary skilled person exercising and professing to have that special skill.367 288 The Act gives statutory expression to an equivalent obligation. Notwithstanding that the proceedings concern the conduct of health professionals, neither party submits that s 5PB(1) of the Act has any 361 ts 474. 362 Increased echogenicity refers to elevated signal on the ultrasound. 363 ts 377. 364 ts 378. 365 ts 378. 366 ts 379. 367 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. -- 73 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 74 application. Accordingly, the plaintiff's claim falls to be determined under s 5B.368 289 Section 5B provides: 5B. General principles (1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 290 There was no dispute that a foreseeable and not insignificant risk of harm to the plaintiff existed if appropriate precautions were not taken. The contested issue was the precautions which the plaintiff alleges the defendant was obliged to take. 291 The question posed by s 5B(1) reflects the orthodox common law inquiry into negligence of whether a reasonable person in the defendant's position would have foreseen a risk of injury and, if so, what precautions would reasonably have been taken. The factors in 368 Child and Adolescent Health Service v Sunday John Mabior by next friend Mary Kelei [2019] WASCA 151 [329] - [337]. -- 74 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 75 s 5B(2)(a) - s 5B(2)(d) encapsulate the considerations identified in The Council of the Shire of Wyong v Shirt369 as being relevant to that inquiry. 292 Identification of the risk of harm is the starting point of any analysis under s 5B,370 and has been described as being of 'central importance'.371 Only by correctly identifying the risk can one assess what constitutes a reasonable response to it. Identification of risk of harm 293 In seeking to identify the relevant risk of harm, the plaintiff submits:372 There was, in this case, a foreseeable and not insignificant risk of increased health complications in failing to assess accurately the likelihood that the foetus was in distress and could face complications if delivery was not expedited by 6.43 pm given that the clinical condition deteriorated during labour: s 5B(1) [the Act]. 294 In that formulation, the plaintiff identifies the risk of harm as the foreseeable and not insignificant risk of increased health complications, and the relevant precaution as the proper assessment of the likelihood of foetal distress. However, ambiguity arises from the plaintiff's additional assertion that complications could occur if delivery was not expedited by 6.43 pm. 295 Phrased in that way, it is unclear whether the plaintiff contends that the relevant risk is the onset of complications resulting from delayed delivery, which is a matter going to causation, or whether the timely expedition of delivery is the precaution said to have addressed that risk. This lack of clarity reflects the difficulty identified at [7] - [14] above and is further illustrated by the plaintiff's submission that:373 It is the Plaintiff's case that in respect of the delayed decision not to move to a caesarean delivery the Defendant's exercise of care to the Plaintiff fell short of what was reasonably required: s5B(2) of the [Act]. 369 The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40. 370 Carusi v St Mary's Anglican Girls School Inc [2024] WASCA 137 [70] - [71]. 371 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [59]. 372 Plaintiff's Outline of Opening Submissions dated 29 April 2025 (plaintiff's opening submissions), par 32; Plaintiff's closing submissions, par 11. 373 Plaintiff's closing submissions, par 19. -- 75 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 76 296 It is correct that a central feature of the plaintiff's case is the contention that the injury was sustained in utero, or that an in utero injury materially contributed to subsequent deterioration following birth. Put simply, the plaintiff's case is that the injury would have been avoided had delivery occurred at an earlier time, prior to the hypoxic insult. 297 However, the plaintiff does not plead that the reasonable precaution required of the defendant was to proceed to an earlier delivery in response to emerging clinical indicators. Rather, the pleaded case is directed to deficiencies in monitoring, including the implementation of a structured plan and the timely recognition of CTG features at a point sufficient to prevent the onset of injury. 298 The allegation that the defendant failed to 'recognise' the development of CTG features of foetal distress is framed broadly and lacks a level of precision. Depending on its meaning, it may refer either to a failure to observe or notice relevant features on the CTG, or to a failure to interpret their clinical significance. The plaintiff's pleaded breaches are directed more to deficiencies in observation, recognition, or attention to developing clinical indicators rather than to errors of interpretation in a strict sense. However, even if the allegation is taken at its highest and treated as a failure of interpretation, that remains distinct from the separate question of what the defendant ought to have done in response to any such interpretation. 299 The plaintiff's alternate formulation of the risk of harm as '[a]llowing the labour to continue in the presence of a deteriorating clinical position', 374 said to carry a foreseeable and not insignificant risk of increased health complications, more clearly identifies the relevant risk by removing evaluative judgment as to the reasonableness of permitting labour to continue. The reasonableness of permitting labour to continue is an assessment that more properly relates to the precaution said to have been required, rather than to the identification of the risk of harm itself. 300 Adopting similar, though more precise, language, the risk of harm for the purposes of s 5B of the Act is properly characterised as the risk of hypoxic injury arising during labour in circumstances of a deteriorating clinical condition. 374 Plaintiff's opening submissions, par 33; Plaintiff's closing submissions, par 12. -- 76 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 77 301 Accordingly, on the plaintiff's pleaded case, the harm is the hypoxic-ischaemic injury sustained by Daniella. The relevant risk of harm is the risk of hypoxic injury to the foetus arising during labour in circumstances of a deteriorating clinical condition. The precaution said to have been required is the implementation of appropriate monitoring, by way of a structured plan and proper recognition of CTG readings, to identify the deteriorating clinical condition, thereby enabling timely intervention to prevent the injury. 302 Although the plaintiff does not articulate the causal pathway in these terms, the case as advanced necessarily depends upon the proposition that proper monitoring would have led to earlier intervention, including expedited delivery, and that such intervention would have prevented the hypoxic injury. For that reason, the distinctions drawn above are not merely semantic, but reflect discrete clinical and legal steps which must be established in order for the plaintiff to succeed. These are matters I will return to in further detail when addressing the question of causation below. Failure to initiate and implement a 'structured plan' 303 Little clarification was provided by the plaintiff as to what she meant by a 'structured plan'. Some idea of what might have been meant could be drawn from the plaintiff's opening submissions where, when referring to evidence she anticipated would be provided by Professor Hyett, she submitted: 58. … a lack of structured assessment of [the] CTG likely contributed to a failure to recognise that the CTG recordings had become pathological by about 18:43 hours. … 59. … the failure to perform regular structured review of the CTG during the labour and the failure to recognise the development of CTG features of fetal distress in a timely manner fell below an acceptable level of professional practise [sic]. 304 The plaintiff's closing submissions contended: 189. On the evidence of Professor Hyett, the features of a structured plan should have included what to do if there is a failure to actually achieve labour or there is a risk of foetal distress during the process of labour: t479-480. The plan would include a statement about the point at which progress would be reassessed since last intervention, the review of the catheter at 12 hours and then six hours later at 18 hours should be part of the timeline for when planning to reassess. The plan includes a pathway for managing the whole labour ward: t479-[481]. -- 77 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 78 190. A structured plan includes a clear plan and pathway of management for everybody that is involved in management not just the patient, but the patient themselves needs to know what the plan or pathway is and from a staffing perspective there needs to be a clear understanding of why this induction process is occurring, what the potential risks are and what the proposed next steps are: Hyett t482. 305 In addition to the matters identified by Professor Hyett that the plaintiff refers to above, Professor Hyett also described a structured plan in broader terms, including decisions as to whether and how cervical priming would occur; the transition from antenatal to intrapartum care; the timing of removal of the balloon catheter; the timing of the ARM; the use of syntocinon for augmentation; and the monitoring of both labour progress and foetal wellbeing.375 306 The absence of any clear articulation of what the plaintiff contends constitutes a 'structured plan', together with the lack of specificity as to how such a plan would have been applied in Ms Lalezari's case, underscores the difficulty in the formulation of the alleged breach. That difficulty is reflected in Professor Hyett's acknowledgment that any such plan must remain sufficiently flexible to accommodate changes in clinical progress, and that the content of any reassessment would necessarily depend upon the findings at the time.376 In those circumstances, it is difficult to reconcile the notion of a 'structured plan' with the need for a framework that is inherently adaptable to the individual patient and responsive to evolving clinical conditions. 307 Properly understood, the reference to a 'structured plan' appears to refer to the establishment of defined timeframes for formal review of progress during the IOL, coupled with the capacity to depart from that timetable where clinical circumstances require earlier reassessment.377 It also encompasses the need for those involved in the patient's care to have a shared understanding of the reasons for induction, the potential risks, and the anticipated course of management.378 308 There is no basis to conclude that the clinicians providing care to Ms Lalezari did not understand the rationale for the induction, being Daniella's growth restriction, the attendant risks, including the potential development of acidosis, and the steps to be taken during the induction 375 ts 479 - ts 480. 376 ts 481. 377 ts 482. 378 ts 482. -- 78 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 79 process. An IOL is recognised as a process that may be unpredictable and prolonged, with subsequent management necessarily responsive to the clinical circumstances presenting at the time.379 309 In any event, notwithstanding the criticisms advanced concerning the absence of a structured plan, Professor Hyett ultimately appeared to accept that the defendant had an adequate plan in place in respect of the cervical ripening stage of the induction, and that his criticisms were directed more to events occurring on the following day, being 28 August.380 Even then, his concerns in relation to that day were directed primarily to issues of foetal surveillance and monitoring,381 rather than to an absence of planning, for example, in relation to the timing of the ARM.382 310 Regardless, apart from any asserted requirement for regular foetal surveillance within such a framework, the plaintiff has neither clearly articulated nor established that any deficiency in the form of a structured plan of the kind identified by Professor Hyett caused or contributed to the injury sustained. Surveillance monitoring 311 In contrast, Professor Hyett's evidence as to the frequency of surveillance monitoring was more settled. Despite noting the existence of 'significant variants' in appropriate practice, he considered that once regular contractions383 were established, CTG monitoring of no less than 20 minutes should occur every four hours, and that continuous monitoring was required intrapartum in high‑risk cases.384 312 However, Professor Hyett also accepted that the issue was not governed by any fixed or arbitrary rule, but instead depended on the exercise of judgment by reference to the individual circumstances of the patient.385 Notwithstanding that acknowledgment, his evidence did not descend to a level of specificity that explained, by reference to Ms Lalezari's particular circumstances, what such a plan would have involved in practice. 379 ts 480. 380 ts 484. 381 ts 485 - ts 487, ts 492. 382 ts 507 - ts 508. 383 At least two contractions every 10 minutes (ts 484). 384 ts 484. 385 ts 485. -- 79 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 80 313 Professor Hyett accepted that monitoring could be undertaken by the primary midwife, but that a 'formal review' was still required to ensure that significant abnormalities were identified. In this context, a 'formal review' involved identifying and describing the components of the CTG, documenting that assessment by way of a DR C BRaVADO entry, and obtaining a further 'fresh eyes' review from a second midwife or a doctor.386 Where abnormalities were identified, the expectation was that the midwife would escalate the matter for discussion and management.387 314 Applying those standards, Professor Hyett agreed that Dr Marcano's medical note from the morning of 28 August 2020, the subsequent entry made at 10.50 am by Midwife Dunbar,388 and four entries389 recorded by midwives in the Philips IntelliSpace Perinatal system all satisfied that criterion.390 Accordingly, on the evidence, the last review meeting Professor Hyett's description of what would constitute a 'structured review' was Midwife Dunbar's review at 10.50 am on 28 August 2020.391 315 As can be seen, even if the defendant's duty required the adoption of a structured review in the way suggested by Professor Hyett, his evidence establishes that the duty was being discharged until at least 10.50 am on 28 August 2020. There is no evidence of any breach before that time and, even if there were, the plaintiff has not demonstrated any causal connection between such a breach and the injury she later sustained. 316 Critically though, Professor Hyett rejected the proposition that the retrospective entries made by Midwife Palandri at 5.00 pm and 6.20 pm relating to observations she had made about the CTG trace during the critical window constituted a structured review. Those entries recorded observations of the foetal heart rate and accelerations (at 5.00 pm), and reduced variability with possible late decelerations (at 6.20 pm), but did not involve an assessment of all the relevant DR C BRaVADO criteria. For that reason, they did not constitute what Professor Hyett regarded as a formal review.392 386 ts 486. 387 ts 497. 388 Exhibit D1-17, pages 120 - 121. 389 Entries made on 25 August 2020 at 12.40 pm, 26 August 2020 at 3.50 pm, 28 August 2020 at 12.29 am and 28 August at 10.43 am. 390 ts 489. 391 ts 532. 392 ts 492. -- 80 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 81 317 Quite apart from that, and although not directly the subject of Professor Hyett's evidence, it appears to me that a more fundamental difficulty with those entries when assessed against Professor Hyett's description of a structured review is that they were made retrospectively. As such, they would not have been available at the relevant time to inform decision‑making had a further review been required. Further, the retrospective nature of those entries necessarily raises questions about the reliability of the recollection of the observations recorded, which in turn undermines the structured and contemporaneous process Professor Hyett was describing as being required. 318 However, with the exception of the CTG trace that ran from 5.43 pm to 6.43 pm, which I will return to, Professor Hyett's evidence did not identify what consequences, if any, flowed from the absence of a structured or formal review, nor how the implementation of such a review during the period prior to 5.43 pm would have prevented, caused, or materially contributed to the plaintiff's injury. 319 The absence of any impairment was demonstrated by Professor Hyett's ability to undertake a comprehensive review and analysis of the CTG traces from 27 and 28 August 2020, which were the subject of his report dated 29 June 2021.393 I will return to the significance of that analysis, but for present purposes it is sufficient to note that his conclusions appear to have been reached by reference to the CTG traces themselves. 320 Although Professor Hyett had access to Ms Lalezari's medical notes,394 he did not appear to place any reliance on, and made no reference to, the DR C BRaVADO entry made by Dr Marcano on the morning of 28 August 2020, nor did he suggest that it assisted his interpretation of the CTG traces. Nor does his evidence indicate that the absence of periodic DR C BRaVADO assessments impaired his ability to interpret the traces. If it did, he did not explain how their absence affected his assessment, or how their presence would have assisted or improved it. 321 What is clear, and consistent with the approach Professor Hyett himself adopted when interpreting the CTG traces, is that the trace itself is the primary focus of assessment. That was expressly 393 Exhibit P1-12. 394 Exhibit P1-12, page 69; Exhibit P1-13, page 96. -- 81 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 82 acknowledged by Professor Hyett in his evidence when he said that '[t]he CTG review involves looking at the CTG strip primarily'.395 322 While, from a best‑practice perspective, a system of regular recorded assessments may be desirable, in light of Professor Hyett's evidence that interpretation derives principally from the strip itself, it is difficult to see in this matter how the absence of a history of DR C BRaVADO recordings materially affected the ability to monitor and assess the CTG traces in a way that would amount to a breach of the defendant's duty to the plaintiff. 323 This approach is consistent with that taken by Dr Paterson. She was the only doctor involved in Ms Lalezari's care at KEMH who was questioned in any detail about the process of CTG assessment. 324 Dr Paterson agreed that CTG assessment requires consideration and recording of a number of criteria, consistent with the DR C BRaVADO framework, from which a conclusion can be reached as to whether a trace is normal or abnormal. She also accepted that recording those matters allows subsequent clinicians to see prior assessments and contributes to the overall clinical picture. However, she indicated that she would not ordinarily review previous assessments unless a concern had been raised and that, when making an assessment, her primary focus would be on the CTG itself. Where the patient was unfamiliar to her, she would review the notes to understand the clinical context, but otherwise she would speak with the midwife present and ask for the midwife's assessment. Nothing in the evidence suggests that the team responsible for Ms Lalezari's care lacked familiarity with her clinical picture. 325 Having reviewed all of the CTG traces recorded from their commencement, Professor Hyett's evidence was that no potentially concerning features appeared until 5.43 pm on 28 August 2020.396 He further accepted that, because CTG assessment is necessarily retrospective, those features could not be immediately identified as concerning, even if there had been a documented history of previous assessments that had been made. 326 His evidence was that during the 30‑minute period following the emergence of those concerning features, the appropriate response was continued observation, recognising that the trace was not normal but 395 ts 507. 396 ts 500. -- 82 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 83 not yet abnormal, with a further review after half an hour to assess whether abnormal features had developed.397 327 On that analysis, the earliest point at which those features could properly be identified as concerning was 6.13 pm, with further review indicated by 6.43 pm. Even if regular formal reviews had been undertaken prior to that, they would not have identified any features warranting a different course of action before that time or if they could, that possibility was not explored in Professor Hyett's evidence. 328 Accordingly, if the plaintiff's case is that the defendant breached its duty by failing to conduct and document regular formal reviews in the manner proposed by Professor Hyett, then, on Professor Hyett's own evidence, no potentially concerning features were present on the CTG trace prior to 5.43 pm on 28 August 2020, nor capable of being recognised as such before 6.13 pm. 329 It follows that, insofar as there may have been an obligation to conduct and record regular formal reviews, or to maintain a system of structured surveillance, any failure to meet that standard prior to 5.43 pm on 28 August 2020 has not been shown to be relevant to the resolution of the plaintiff's claim. 330 As noted at [190.1], I am satisfied that at 6.20 pm Midwife Palandri returned from her break, reviewed the CTG, identified the concerning features, and paged Dr Marcano. The only potential difference that an earlier system of regular formal reviews could have made is that the trace may have been identified as not normal at 6.13 pm, rather than at 6.20 pm. Nothing material is said to have occurred during that seven‑minute interval, and there is no suggestion that detection at 6.13 pm would have led to a different course being adopted. To the contrary, on Professor Hyett's evidence, the appropriate course, consistent with what occurred, was continued monitoring. 331 As that analysis demonstrates, the only material point of divergence between the process of structured review and monitoring proposed by Professor Hyett and the defendant's actions was the absence of a further reassessment of the CTG at the conclusion of the next 30‑minute period, namely at 6.43 pm. 397 ts 501. -- 83 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 84 332 To the extent that the plaintiff's complaint that the defendant failed to 'initiate and/or implement a structured plan … to monitor the induction of labour [through] … scheduled CTG monitoring, surveillance and reporting' is, in substance, a complaint that the defendant failed to conduct a further review 30 minutes after Midwife Palandri identified concerns at 6.20 pm and paged Dr Marcano, that issue is addressed in further detail below as it substantially overlaps with the plaintiff's second pleaded basis of breach. Otherwise, any alleged failure to implement a 'structured plan … to monitor the induction of labour' in respect of events occurring before 6.43 pm has not been shown to have caused or contributed to the plaintiff's injury. Failure to recognise the development of acidosis features 333 I have already referred at [298] to the ambiguity inherent in the use of the word 'recognise'. In this context, the phrase 'recognise the development of CTG features' must be understood both in its immediate setting and by reference to the plaintiff's case as a whole. Recognition necessarily entails that the relevant features are first observed and then interpreted, which in turn presupposes that some form of CTG monitoring is being undertaken. 334 Although pleaded as separate particulars of breach, when these allegations are read together, and in light of the analysis set out at [294] - [302], they reveal the substance of the plaintiff's case. That case is that the defendant failed to provide adequate CTG surveillance, and that proper surveillance would have identified features indicative of developing foetal acidosis prior to the occurrence of any hypoxic insult. That understanding, however, must be read subject to, and does not displace, the specific observations made at [301] - [302]. 335 As explained at [190.3], when Dr Marcano attended Suite 12 in response to the page from Midwife Palandri, the CTG trace was not reviewed. In those circumstances, the defendant could be said to have failed to recognise the development of CTG features by 6.43 pm, the failure arising from the absence of any review of the CTG trace at that time. 336 The defendant submits that, in determining whether there has been a breach, all relevant circumstances must be considered.398 In that context, the defendant relies on the fact that Dr Marcano was paged by 398 ts 1199. -- 84 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 85 the midwife, rather than responding to a call-assist bell, and that upon her arrival at the suite the anaesthetist was in the process of preparing to administer the epidural. It is submitted that, on the circumstances as they were known to Dr Marcano, no different course of action, such as interrupting the epidural procedure to assess the CTG, was warranted.399 I do not accept that submission. 337 Professor Hyett gave evidence that where a midwife identifies a CTG as abnormal and appropriately escalates that concern, the likely consequence if there is agreement that the CTG is indeed abnormal, is to expedite delivery. In that circumstance, the form of anaesthesia or analgesia required may be materially different from that used for routine labour analgesia by way of epidural. Accordingly, Professor Hyett's evidence was that a clinical review of foetal wellbeing ought to be prioritised over the involvement of an anaesthetist, because if the clinical decision were ultimately to proceed to caesarean section, the nature and timing of the anaesthetist's involvement, and the instructions given to them, would necessarily be different.400 That opinion was not challenged and I accept his evidence. 338 Dr Marcano accepted that, during the administration of an epidural, a clinician may review the patient's CTG trace 'If the CTG is on and we're getting a good reading'.401 However, where the tocograph is removed in order to facilitate placement of the epidural, this necessarily prevents a complete assessment of the CTG, as uterine activity can no longer be monitored. Although the foetal heart rate transducer may remain in place and continue to record the foetal heart rate, that data cannot be diagnostically interpreted in relation to the contractions the patient is experiencing. 339 The absence of the tocograph would plainly impair the clinician's ability to undertake a proper assessment of decelerations and their timing, as well as to evaluate the significance of reduced variability in the context of uterine activity. But that did not prevent assessment of the foetal baseline heart rate. Baseline variability could still, at a minimum, be undertaken during the period in which the tocograph was not in use. 399 ts 1195. 400 ts 507. 401 ts 894. -- 85 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 86 340 Regardless, the CTG also has the capability to allow the user to review earlier tracing and to assess what has preceded a particular event. Dr Paterson, for example, described her usual practice when being asked to review a CTG, as being to assess what was occurring at that moment and then to review the trace retrospectively to understand the preceding pattern.402 She also explained that she would speak with the midwife to ascertain whether there was any additional relevant clinical information available at the time. 341 Similarly, in describing her recollection of what occurred when she attended Ms Lalezari's suite, Dr Beale did so by reference to what was clearly her established practice. That practice involved reviewing the CTG to assess the foetal heart rate, including any decelerations or other relevant features, and also obtaining information from the midwife regarding the progress of the induction.403 342 By contrast, when Dr Marcano entered the room in response to Midwife Palandri's page, she took none of those steps. Despite being aware that Ms Lalezari was a high‑risk patient, Dr Marcano did no more than 'glance' at the CTG screen.404 She did not review the retrospective data that the CTG had collected, nor did she seek to ascertain from Midwife Palandri the reason for the page or the concerns that had prompted it. Had she done so, Midwife Palandri may have conveyed the concerning CTG features she had identified, thereby placing Dr Marcano in a better position to assess whether priority should be given to a CTG review or to the administration of the epidural, in the manner described by Professor Hyett. Dr Marcano did none of these things and simply left the room. 343 In truth, this appears to reflect what Professor Hyett was identifying in his criticism of the defendant's failure to implement a structured plan, as illustrated by his blunt observation in evidence:405 But the bottom line is that if you page someone and they don't attend, then there has to be a process whereby you either page them again, or you have an alternative pathway for escalation. 344 I agree. 402 ts 557. 403 ts 977. 404 ts 952. 405 ts 506. -- 86 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 87 345 When I have regard to all the circumstances, I am satisfied that Dr Marcano was required to do more than merely glance at the CTG and depart with an intention to return later. Her failure to take any steps to assess the clinical situation or to ascertain the significance of the CTG findings, including, at a minimum considering whether the epidural ought to be paused to permit an adequate CTG assessment, fell short of the level of precaution the reasonable person in the defendant's position would have taken to appropriately monitor the induction and thereby mitigate the risk of foetal acidosis. 346 However, as noted at [334] the plaintiff's case proceeds on the premise that, had the CTG been properly monitored at 6.43 pm, there would have been features capable of being interpreted as suggestive of foetal distress or developing acidosis. The accuracy of that premise must therefore be examined. Failure to interpret 347 Despite the relevant CTG traces being available at trial, none of the medical practitioners involved in Ms Lalezari's care who gave evidence were asked how they would have interpreted the trace, what assessment they would have made, or what action they would have taken in response. This is a matter to which I will, again, return. The consequence, however, is that there is no direct evidence from the relevant practitioners as to the interpretation they would have placed on the trace. The issue must therefore be resolved by inference. Professor Hyett 348 In that context, the plaintiff relies upon the opinions expressed by Professor Hyett to contend that, had any of the defendant's medical practitioners reviewed the CTG trace at 6.43 pm, they would have, or ought to have, concluded that the foetus was experiencing acidosis and would have taken further steps in response. 349 As outlined at [325] - [327], Professor Hyett's evidence was that no indication of foetal acidosis would have been apparent prior to 6.43 pm, that time being one hour after the concerning features first emerged at 5.43 pm. Accordingly, although the plaintiff particularises the alleged breach as a failure to recognise features of foetal distress on the CTG by 6.43 pm 'at the latest', Professor Hyett's evidence makes clear that such features would not have been capable of recognition or -- 87 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 88 interpretation as indicative of foetal acidosis until 6.43 pm at the earliest.406 350 At the conclusion of the one‑hour period, Professor Hyett interpreted the CTG trace as demonstrating three abnormal features: an elevated baseline foetal heart rate, reduced variability, and an absence of accelerations. There were also 'shallow' reductions which may, or may not, have constituted decelerations depending upon the guideline applied.407 Regardless, Professor Hyett considered that the combination of a raised baseline, reduced variability and absent accelerations rendered the CTG abnormal and was, in his opinion, 'consistent with an increased likelihood of fetal acidosis'.408 In his report, Professor Hyett expressed the view that at that point the CTG ought to have been interpreted as 'abnormal and potentially pathological'.409 Professor Morris 351 Professor Morris reviewed the relevant CTG on behalf of the defendant and produced a report dated 18 June 2022.410 His review of the trace, as set out in that report, was limited to the 36‑minute period immediately preceding 6.43 pm.411 As this period was shorter than 45 minutes, he considered himself unable to express an opinion as to whether the baseline heart rate was rising. He nevertheless accepted that a rising foetal baseline may be regarded as abnormal, even where the rate remains below 160 bpm.412 352 Nevertheless, Professor Morris accepted that the CTG displayed features which, in his opinion, rendered it 'not normal', although he considered those features unlikely to be associated with foetal compromise when considered against the RANZCOG guidelines.413 The features identified were an absence of accelerations and reduced variability of approximately 3 bpm. During his evidence, he further accepted that from approximately 6.15 pm onwards the foetal heart rate was generally above the upper limit of what was regarded as normal, 406 ts 467. 407 ts 467. 408 ts 467. 409 Exhibit P1-12, page 80. 410 Exhibit D3-126. 411 ts 720. 412 ts 721. 413 Exhibit D3-126, page 681. -- 88 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 89 namely 160 bpm, with only limited occasions on which it fell below that level.414 353 At 6.23 pm, he noted the variability was greater than 3 bpm, there were no decelerations, the baseline heart rate was approximately 160 bpm, and there were no accelerations. Further, by approximately 7.03 pm, recurrent late decelerations were observed for the first time. This was just shortly after the epidural had been administered.415 354 Based on the emergence of the decelerations on the trace at approximately 7.03 pm and 7.06 pm, Professor Morris identified the period of between 7.13 pm and 7.21 pm as being when, in his opinion, it would have been appropriate to warrant a category 1 caesarean due to the features on the CTG at that point being associated with potential foetal compromise.416 Did the defendant fail to take reasonable precaution? 355 The plaintiff's complaint that the defendant 'failed to recognise the development of CTG features of foetal distress … and acidosis' proceeds on the premise that a CTG trace is, of itself, capable of demonstrating the presence of acidosis. Definitive determination of whether a foetus is acidotic can only be made by means of foetal scalp blood sampling,417 which was not done in this matter. 356 A CTG is no more than an investigative tool that requires clinical interpretation.418 Its function is confined to identifying patterns or features that may be regarded as suggestive of possible foetal distress or acidosis. The assessment of the degree of risk, or the likelihood that such features reflect actual foetal acidosis, is a matter that depends upon subjective clinical judgment. 357 While CTG monitoring operates as a useful screening tool for identifying acidotic foetuses, by reason of its relatively high sensitivity and detection rate, its specificity is poor and it is therefore prone to false‑positive results. Accordingly, not all abnormal CTG traces are necessarily indicative of foetal compromise.419 414 ts 725. 415 ts 727. 415 ts 727. 416 ts 728. 417 ts 496. 418 ts 466. 419 ts 495. -- 89 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 90 358 The RANZCOG guidelines provide that any CTG tracing which does not satisfy the criteria for a 'normal' recording (as set out at [80]) is, by definition, abnormal and requires further evaluation. The guidelines then identify three further categories, each indicating a different level of potential risk of acidosis:420 1. Features that, when considered in isolation, are unlikely to be associated with foetal compromise. 2. Features that may be associated with significant foetal compromise and require further action. 3. Features that are likely to be associated with significant foetal compromise and require immediate management, which may include urgent delivery. (emphasis added) 359 For ease of reference, I will describe these categories as 'category 1', 'category 2' and 'category 3' CTG readings respectively. 360 Accordingly, the RANZCOG guidelines are structured on the basis that once a CTG is classified as abnormal, there is an attendant risk of acidosis. That risk is then characterised as unlikely (category 1), possible (category 2), or likely (category 3), depending upon the specific feature identified and the clinical assessment of its significance. 361 This assessment is further complicated by the fact that the clinical significance of particular CTG features depends upon whether the patient is in labour and how those features are evaluated in the context of the patient's uterine contractions, which is a matter that I will return to. 362 Professor Morris accepted that the CTG trace at 6.43 pm was capable of being characterised as not normal. Once the CTG is properly classified as abnormal, it at the very least falls into category 1 and is therefore capable of giving rise to an inference that the foetus may have been acidotic, albeit unlikely. Even where the possibility may be unlikely, the CTG nonetheless provided a basis upon which the potential for acidosis could be clinically contemplated. 420 Exhibit D3-129, page 736. -- 90 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 91 363 However, what emerges from Professor Morris's evidence is that, notwithstanding his view that the identified features were unlikely to be associated with foetal compromise, there were in fact a constellation of features present. (a) an absence of accelerations; (b) reduced variability of approximately 3 bpm; (c) from approximately 6.15 pm onwards, a foetal heart rate that was generally above the upper limit of what was regarded as normal, namely 160 bpm, bordering on tachycardia; and (d) at 6.23 pm, an absence of decelerations. 364 Further, whilst Professor Morris was unable to offer an opinion as to whether there was a rising baseline foetal heart rate because his review was confined to a period of less than 45 minutes, by contrast Professor Hyett could, given he had reviewed the trace for the hour preceding 6.43 pm. There is no reason to suppose that, had Professor Morris undertaken a review over the same duration as Professor Hyett, he would necessarily have disagreed with Professor Hyett's opinion that the baseline foetal heart rate was rising. Had a rising baseline been identified, it would have constituted an additional relevant feature. 365 Any one of the features identified by Professor Morris, when considered in isolation, would be unlikely to be associated with foetal compromise, but it was still possible. However, the evidence demonstrates that these features were not present in isolation but occurred collectively. 366 Properly understood, to the extent that there is any divergence between the opinions of Professor Hyett and Professor Morris, in my view it is not a disagreement about whether the CTG trace could suggest possible acidosis. Rather, the divergence concerns the assessment of the degree of risk and the clinical response that was required, both at 6.43 pm and thereafter. This is a matter I will return to. 367 I am satisfied that had Dr Marcano, or any other clinician acting on the defendant's behalf, reviewed the CTG trace at 6.43 pm in accordance with the defendant's obligation to appropriately monitor and assess CTG surveillance, it would have been open to that clinician to -- 91 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 92 regard the trace as raising a potential risk of acidosis and, at the least, as necessitating further evaluation. The failure at that point was therefore not a failure to correctly interpret the CTG, but a failure to undertake any interpretation at all. In that respect, and when regard is had to the factors provided for in s 5B(2) of the Act, the defendant failed to take a level of precaution that I am satisfied the reasonable person in the defendant's position would have taken. 368 The consequences of that failure are a separate matter. The level of risk that would have been attributed to the CTG had it been reviewed, and the clinical response that would then have followed, whether at 6.43 pm or thereafter, remain contested. Those issues bear upon questions of causation and are not resolved by the finding of breach alone. Causation 369 Relevantly, s 5C of the Act provides: 5C. General principles (1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements - (a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and (b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability). … 370 The plaintiff bears the onus of proving that any negligent act or omission by the defendant's staff caused the harm.421 The term 'necessary condition' in s 5C(1)(a) denotes a condition without which the harm would not have occurred, requiring that the defendant's negligent act or failure to act be present for the harm to eventuate. 371 The negligent act or omission need not be the sole cause of the harm. Where more than one condition is necessary for the occurrence of a particular harm, an act or omission that forms part of a set of conditions which, in their totality, were jointly necessary for the harm 421 Section 5D of the Act. -- 92 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 93 will constitute a 'necessary condition'.422 Section 5C(1) is therefore understood as a statutory statement of the 'but for' test of causation, namely that the harm would not have occurred but for the defendant's negligent act or omission.423 372 The issue to be determined is not one of science or philosophy, but whether there is an established causal connection between a particular negligent act or omission and the occurrence complained of. The inquiry does not involve assessing whether the kind of negligence was more or less likely to result in the kind of harm that in fact occurred.424 It is not necessary that the defendant foresaw the precise risk or the precise mechanism of injury; it is sufficient if the risk was of a kind that ought reasonably to have been foreseen.425 Causation and the counterfactual analysis 373 The plaintiff submits that:426 This is not a case where causation is answered by an inference of what the defendant would or would not have done, had it not been negligent - that type of question arises in cases where the issue is whether a plaintiff would have acted in a particular/different manner had the defendant not been negligent, the so-called 'counter factual' analysis. And instead suggests the causation question is to be resolved by determining:427 … whether the failure of the Defendant to act as it ought to have acted (the liability issue), caused (including materially contributed to) injury to the Plaintiff. That is to be determined on the balance of probabilities applying the reasoning process of considering the evidence as a whole including matters that as specific intermediate facts can themselves be considered to be possible rather than probable. 374 With respect, these matters are not mutually exclusive. Consideration of the so‑called 'counterfactual analysis' may form part of the court's reasoning process in determining, on an assessment of the whole of the evidence, whether the plaintiff has established on the balance of probabilities that the defendant's failure to act as it ought to have acted materially contributed to the plaintiff's injury, or whether 422 Strong v Woolworths Limited t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (Strong). 423 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420. 424 East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 [254] - [256]. 425 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J). 426 Plaintiff's closing submissions, par 198. 427 Plaintiff's closing submissions, par 199. -- 93 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 94 the injury would have occurred in any event. Where the injury would have been unavoidable regardless of any steps the defendant might have taken, the plaintiff will not have demonstrated that the defendant's omission materially contributed to the harm suffered. That is the counterfactual case advanced by the defendant in this matter. 375 Further, to the extent that the plaintiff submits that the question of causation in this case cannot be resolved by reference to a counterfactual analysis of what the defendant would or would not have done, on the basis that such analysis is confined to cases where the issue is whether a plaintiff would have acted differently absent the defendant's negligence, it is not apparent why that is the case. 376 Nothing in the way that the court articulated the 'hypothetical question' in Chester v WA Country Health Service,428 suggests that a process of counterfactual analysis is confined to only cases involving consideration of whether a plaintiff might have acted differently. On the contrary, a failure to engage properly in such reasoning risks the very error against which the court cautioned in Davie v Manuel.429 377 In any event, where causation is said to arise from an omission, notwithstanding the plaintiff's submission, the inquiry will necessarily involve an assessment of what would probably have occurred had the defendant acted in accordance with that duty. Because that inquiry concerns events that did not happen, the resulting findings are necessarily matters of inference. Such an approach is entirely consistent with Gaudron J's analysis of inferential reasoning on causation in cases involving an omission or failure to act as set out in Bennett v Minister of Community Welfare.430 What is the question of factual causation to be determined? 378 The difficulty arising from the plaintiff's submission that the defendant's delayed decision not to proceed to a caesarean section fell short of the precautions a reasonable person would have taken against a foreseeable risk of harm431 has been addressed at [293] - [302]. As identified at [13], the pleaded basis upon which the plaintiff alleges the defendant 'fell short' is a failure to implement a structured management plan and/or a failure to recognise signs of foetal acidosis 428 Chester v WA Country Health Service [2022] WASCA 57 [134] (Chester). 429 Davie v Manuel [2024] WASCA 21 [139] (Davie). 430 Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 [11] - [14] (Gaudron J). 431 Plaintiff's closing submissions, par 19. -- 94 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 95 by no later than 6.43 pm, not a failure to make a decision to expedite delivery earlier. 379 For that reason, insofar as the defendant's delayed decision not to proceed to caesarean section bears upon the plaintiff's case, its relevance arises in the context of causation under s 5C, rather than breach under s 5B. That much is made clear from the plaintiff's own pleadings whereby she alleges:432 If the Defendant and its employees, servants or agents had not breached their duty of care to the Plaintiff as specified in paragraphs 75.1 to 75.2 above and if the CTG had been recognized to be abnormal at an earlier stage then a decision to expedite delivery would have been made and this would have been likely to have led to an earlier delivery and the Plaintiff would not have sustained such a catastrophic injury. 380 The divergence between the way the plaintiff now seeks to characterise her case regarding this issue and the way in which it has been pleaded is significant for the reasons explained in Wallace v Kam.433 In that case it was emphasised that the elements of duty and causation in negligence serve distinct functions: the former involves a forward-looking rule of conduct, while the latter requires a backward-looking attribution of responsibility for the consequences of breach. 381 As the present case demonstrates, the distinction in function remains important. Whilst the forward‑looking rule is concerned with liability for risks that were reasonably foreseeable and precautions that ought reasonably to have been taken, the backward‑looking inquiry into causation concerns attribution of responsibility for the consequences said to flow from the breach. That inquiry does not involve an evaluative assessment of whether the defendant's conduct fell short of a precaution that ought reasonably to have been taken, but rather an assessment of what would have occurred but for the omission. 382 For that reason, it is not sufficient for the purpose of establishing factual causation merely to show that the defendant failed to implement a structured surveillance plan or failed to recognise signs of foetal acidosis on the CTG. The plaintiff must establish, on the balance of probabilities, that but for that breach the hypoxic‑ischaemic injury 432 Statement of claim, par 76. 433 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [26]. -- 95 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 96 would not have occurred. Proof of no more than a possibility that the defendant's breach may have caused the injury is insufficient.434 383 It was common ground in the evidence that, prior to 6.43 pm, there were no clinical indicators suggestive of foetal compromise that would have warranted urgent delivery.435 As the defendant submits,436 the plaintiff can only succeed on the question of factual causation if she establishes that proper monitoring, including the implementation of a structured plan and assessment of the CTG, would on the balance of probabilities have led to a decision to expedite delivery. 384 Based on the analysis I have outlined above, I accept the defendant's submission that, for the purposes of the counterfactual inquiry necessary to establish causation, the plaintiff must prove a sequence of connected steps, namely:437 1. that there was either, or both, a failure to implement a structured management plan and/or a failure to properly assess the CTG (being the pleaded breach); 2. that, absent that breach, the defendant would have recognised the CTG as abnormal at an earlier stage; 3. that, upon such recognition, a decision would have been made to expedite delivery; 4. that the decision would have resulted in an earlier delivery; and 5. that, as a consequence of that earlier delivery, the plaintiff would not have sustained the injury she in fact suffered. 385 For the reasons already given, I am satisfied that the first and second of those steps have been established. Those steps concern the existence and effect of the pleaded breaches, which must be made out before any question of causation arises. The substantive focus of the counterfactual inquiry therefore lies in steps three to five. 434 Davie [77]. 435 ts 504, ts 684. 436 Defendant's closing submissions, par 66. 437 Defendant's closing submissions, par 75. -- 96 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 97 Evidence relating to cardiotocograph interpretation and risk assessment 386 The RANZCOG guidelines provide that where an abnormal CTG trace contains features that might cause it to fall within category 2 immediate management is warranted and should include:438 1. Identification of any reversible cause of the abnormality and initiation of appropriate action, such as maternal repositioning, correction of maternal hypotension, rehydration with intravenous fluid, cessation of OxyContin and/or tocolysis for excessive uterine activity, and initiation or maintenance of continuous CTG. 2. Consideration of future foetal evaluation of delivery if significant abnormality persists. 3. Escalation of care if necessary to a more experienced practitioner. 387 Where features fall into category 3 and are therefore likely to be associated with significant foetal compromise, immediate management will be required which may include urgent delivery. 388 As is apparent, the identification of a risk of acidosis does not, of itself, compel a conclusion that urgent delivery is required. Indeed, by reference to the guidelines, even the prospect of urgent delivery does not ordinarily arise beyond the level of 'consideration' unless and until the risk features are assessed as falling within category 3. 389 A clear reason why CTG risk features are not, and cannot be, determinative either of the presence of acidosis or of the need to proceed to delivery lies in the matters outlined at [356] - [357]. 390 Necessarily, decision making in response to CTG assessment requires careful evaluation of the features apparent on the CTG trace, an assessment of the degree of risk those features indicate in relation to foetal compromise, and the application of professional discretion as to the course of action warranted in the circumstances. Further, given that an urgent caesarean section constitutes a significant surgical intervention, it may, irrespective of the level of clinical concern, only be undertaken with the informed consent of the mother.439 438 Exhibit D3-129, page 736. 439 ts 511. -- 97 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 98 391 In this case, as noted at [366], although some differences in interpretation did exist the difference between the opinions expressed by Professor Morris and Professor Hyett concerning the CTG is more accurately characterised as a divergence in their respective assessments of risk and the appropriate clinical response to what could be observed on the trace, rather than a substantive disagreement about the interpretation of the CTG features themselves. 392 Professor Morris's opinion was that an assessment of the CTG at or around 6.43 pm did not satisfy the criteria for immediate caesarean delivery. In his view, the tracing demonstrated periods of variability exceeding 3 bpm, there were no features of bradycardia, and there were no decelerations he regarded as complex. He considered that the clinical indicators apparent on the CTG called for vigilance and continued monitoring by the treating clinicians, but did not, of themselves, warrant immediate delivery.440 393 By contrast, Professor Hyett was of the opinion that the CTG features evident between 6.13 pm and 6.43 pm required a determination that urgent delivery was required. The features he identified as supporting that conclusion were that, by the end of the 60‑minute trace at 6.43 pm, there had been a rise in the foetal heart rate, ongoing reduced variability, a continued absence of accelerations, and the presence of shallow decreases from the foetal baseline which may or may not have met the formal criteria for decelerations.441 394 The increase in the foetal heart rate is a feature that falls within risk category 2 and is therefore one which may be associated with significant foetal compromise requiring further action in the way described at [386]. By contrast, the ongoing reduced variability and the continued absence of accelerations would each fall within risk category 1 which, if in isolation, would be unlikely to be associated with foetal compromise. 395 The significance in this case, however, is that neither the reduced variability nor the absence of accelerations occurred in isolation. Rather, it was the accumulation of each of these abnormal features that informed Professor Hyett's opinion as to why he considered the trace at this point to be 'pathological'. 440 ts 684. 441 ts 467. -- 98 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 99 396 Professor Hyett also accepted in cross‑examination that, during the relevant period, the CTG trace did not demonstrate any of the following features:442 1. Bradycardia. 2. An absence of baseline variability. In that regard, Professor Hyett acknowledged that the level of variability was difficult to assess but considered it likely to have been less than 5 bpm while remaining greater than 3 bpm. 3. A sinusoidal pattern. 4. Reduced or absent baseline variability with complicated variable decelerations. In making that concession, Professor Hyett was of the view that decelerations were evident which he regarded as 'complex' by reason of the reduced variability, but he did accept however, that this assessment was open to contention and that there was 'room for debate' on that issue. 5. Late decelerations in association with reduced or absent baseline variability. 397 By making those concessions, Professor Hyett appeared to acknowledge that none of the features present were such as to place the CTG trace within the highest risk category, namely category 3 (as discussed at [387]), so as to warrant the possibility of urgent delivery. 398 Notwithstanding the absence of any of those features, Professor Hyett maintained his opinion that caesarean delivery at 6.43 pm was required because, in his view:443 I think there are, even in the intrapartum method of interpretation and starting with the baseline risk that you have, that this is a high-risk pregnancy with evidence of fetal growth restriction where you now have some regular contractions. There is a raised baseline heart rate. In my opinion, there is reduced variability, and in my opinion there are also some deceleration, shallow decelerations. So from my perspective, the CTG is abnormal and needed to be escalated and there needed to be a plan for expedition of delivery. 442 ts 504. 443 ts 478. -- 99 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 100 399 However, an examination of Professor Hyett's opinion, and the reasons he gave for holding it, reveals the following: 1. His opinion was based upon an assessment of the significance of a constellation of features he observed on the CTG trace which, when considered individually or even collectively, would not ordinarily place the trace within a category 3 level of risk. 2. Some of the features he identified as significant were expressly acknowledged by him to be 'open to debate', in the sense that their interpretation was capable of differing subjective clinical views. 3. The weight Professor Hyett attributed to the combination of those CTG features he considered to be relevant was informed by his subjective broader clinical assessment, including aspects of Ms Lalezari's medical history, the fact that the foetus was growth‑restricted, and his observations regarding the progress, or lack of progress, during the IOL. 4. His own clinical experience and expertise also necessarily informed the significance he attached both to the CTG features he observed and to those elements of the clinical history he regarded as relevant. 5. His subjective assessment of the risk of foetal acidosis, in turn, materially influenced the view he reached as to the appropriate course of management. 400 Professor Hyett's opinion was entirely sensible and appropriately cautious, particularly when assessed with the benefit of hindsight. However, as the foregoing analysis demonstrates, his conclusions, both as to the level of risk suggested by the CTG features at 6.43 pm and as to the appropriate clinical response were inherently evaluative, dependent upon the exercise of subjective clinical judgment, and open to reasonable differences of opinion. There is nothing controversial in that conclusion. What it highlights, however, is the significant evidentiary difficulty confronting the plaintiff's case on causation. 401 First, taken at its highest, Professor Hyett's evidence establishes no more than that, on his review of the CTG, he identified a combination of features which he considered suggestive of foetal distress and possible acidosis. However, the CTG trace did not contain features that -- 100 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 101 objectively or conclusively demonstrated either condition. As a screening tool rather than a diagnostic instrument, a CTG cannot establish foetal distress, let alone foetal acidosis. At most, the trace contained features capable of suggesting risk, the assessment of which necessarily involves the exercise of subjective clinical judgment. 402 Critically, the CTG trace during the relevant period did not disclose any category 3 features likely to be associated with foetal distress or acidosis. Instead, it demonstrated features that were capable of being interpreted as suggestive of an elevated level of risk greater than they would ordinarily warrant. Such an assessment, however, depended entirely upon the clinician's subjective evaluation of both the CTG features and the surrounding clinical context. 403 Nothing in Professor Hyett's evidence suggests that the conclusion he reached was one that would necessarily hold universal acceptance, nor that an alternative conclusion based on the same information would be unreasonable. Critically, it was his subjective and qualitative assessment of the level of possible risk that informed and underpinned his view as to the appropriate course of action. 404 In those circumstances, there is no proper basis to conclude that had any of the defendant's treating clinicians reviewed the CTG by 6.43 pm, even with full knowledge of Ms Lalezari's clinical history, they would have interpreted the trace in the same way or reached the same conclusion as Professor Hyett. At its highest, the evidence establishes no more than a possibility that a clinician may have identified similar features and drawn a similar inference, but it falls well short of establishing that such an interpretation was probable. 405 Secondly, and more fundamentally, even if one of the defendant's clinicians had reviewed the CTG and recognised features suggestive of evolving foetal distress, that recognition would not, of itself, have established that the foetus was experiencing acidosis and that delivery must occur. 406 I accept that in the clinical context, it would have been open to such a clinician to conclude that there was a risk that the observed features were attributable to possible acidosis. However, given that CTG monitoring is susceptible to false‑positive results, and that not all abnormal traces are indicative of foetal compromise,444 such a conclusion would not, in itself, mandate a decision to expedite delivery. 444 ts 495. -- 101 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 102 407 Where a CTG trace is identified as abnormal but does not fall within risk category 1, an appropriate initial response is to consider whether there are any immediately reversible factors capable of correction so as to restore the trace to a normal pattern. Such measures may include verifying and, if necessary, repositioning the monitoring probe; altering the mother's position to optimise uteroplacental blood flow; and administering intravenous fluids where maternal dehydration may be contributing to the CTG findings. These measures fall within the range of 'immediate management' responses ordinarily regarded as appropriate when features fall within risk category 2. 408 This was the course articulated by Professor Morris as being, in his opinion, the appropriate response to the CTG features evident up to 6.43 pm in preference to proceeding to urgent delivery.445 409 Professor Hyett also accepted that, in certain circumstances, maternal repositioning and the administration of intravenous fluids may result in an improvement in CTG features and may constitute an appropriate clinical response. In relation to maternal repositioning, he acknowledged it to be a straightforward intervention, capable of being undertaken while awaiting medical review following escalation by a midwife, in order to assess whether the trace improved. He accepted that the administration of intravenous fluids was more complex, given the potential risks associated with large‑volume fluid administration and the institutional requirement at KEMH for such treatment to be prescribed by a medical practitioner, but acknowledged that it was a course that was still available.446 410 In substance, however, Professor Hyett accepted that the identification and correction of potentially reversible causes of CTG abnormality constituted a legitimate clinical course, provided those steps were taken within a framework of appropriate medical assessment and supervision. 411 Accordingly, while it was open to a clinician to conclude at 6.43 pm, as Professor Hyett conservatively did, that caesarean delivery was merited, it was equally open to adopt an alternative course, such as that articulated by Professor Morris, involving continued monitoring or other immediate management strategies directed to identifying reversible causes or explanations unrelated to foetal acidosis. 445 ts 722. 446 ts 497. -- 102 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 103 Would an earlier decision to expedite delivery have been made? 412 Although the foregoing analysis has examined the expert opinions offered by Professor Hyett and Professor Morris, those opinions have been considered only to the extent that they assist in informing the counterfactual inquiry in the manner outlined above. It must be emphasised that the task for the purposes of causation is not to assess, with the benefit of hindsight, what the defendant ought reasonably to have done, nor to engage in any normative evaluation of ideal clinical conduct. 413 As is apparent from the court's reasoning in Rosenberg v Percival,447 the inquiry into factual causation is directed to determining, on the balance of probabilities, what the individual in question would in fact have done at the relevant time, having regard to the information then available. Although Rosenberg concerned whether a patient would have proceeded with surgery if adequately informed of the associated risks, there is no reason why the same reasoning does not apply equally to the present counterfactual inquiry to determine what, if anything, would have occurred differently. 414 Resolution of that inquiry therefore requires a determination of what the defendant specifically would have done, rather than what a reasonable clinician ought to have done. While evidence of reasonable or usual practice may assist the court in drawing the necessary inference, what a reasonable person might have done is not determinative. Ultimately, the inquiry is inherently subjective and fact‑specific. 415 Nevertheless, such an analysis has been necessary because none of the defendant's treating clinicians involved in the care of Ms Lalezari and Daniella were asked what conclusions they would have reached, or what course they would have recommended, had the CTG trace been reviewed at 6.43 pm. The prohibition in s 5C(3)(b) of the Act applies only to the plaintiff, not the defendant. 416 While any such evidence would not have been determinative of the question of factual causation, it may have been relevant to assessing whether, and if so how, the defendant's response might have differed had the CTG been reviewed at that time. In the absence of such evidence, the particular matters within the clinicians' knowledge that 447 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [24] - [25], [44] - [45] (McHugh J), [86] - [88] (Gummow J) (Rosenberg). -- 103 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 104 may have influenced their interpretation, risk assessment, and any consequent course of action remain unknown. Notwithstanding that absence, there is evidence from which the necessary inferences may properly be drawn. 417 Consistent with the finding outlined at [190.6], at some point between approximately 7.10 pm and 7.15 pm, Dr Beale first attended Suite 12 and examined the CTG trace. If, in accordance with usual practice, she reviewed the preceding hour of the trace to assess its features adequately, it follows that her assessment would necessarily have included consideration of the trace as it appeared at 6.43 pm, together with the period leading up to that time. If that is so, there is no reason to conclude that Dr Beale did not have access to the same information available to Professor Hyett at the time he undertook his assessment and formed his opinion. 418 Nevertheless, it is apparent that when Dr Beale first reviewed the CTG, the features she regarded as 'concerning' were reduced variability and a prolonged deceleration.448 The prolonged deceleration to which Dr Beale refers is visible at 7.06 pm and occurred shortly after an earlier deceleration that was not of sufficient duration to be classified as prolonged, but was instead characterised as a complicated variable deceleration.449 419 As can be seen, both features that caused Dr Beale particular concern arose after 6.43 pm and therefore did not form part of Professor Hyett's assessment. Nevertheless, it is apparent that Dr Beale recognised that the CTG features she observed were associated with a risk of foetal distress. Viewed in that context, the CTG features present when Dr Beale reviewed the trace at or about 7.10 pm were at least as concerning, if not more so, than those under consideration by Professor Hyett at 6.43 pm. 420 Notwithstanding that assessment, Dr Beale did not form the view that an immediate emergency caesarean section was required. Rather, she considered that a caesarean delivery was 'very likely' given the overall clinical picture. Accordingly, she directed Dr Marcano to commence the process of obtaining Ms Lalezari's consent in anticipation of that likelihood. 448 ts 979. 449 Exhibit D1-34, page 241; ts 1158. -- 104 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 105 421 Instead of recommending urgent delivery at that stage, Dr Beale appears to have elected to first undertake immediate management aimed at identifying and addressing any potentially reversible cause for the CTG abnormalities. This is reflected in her directions that IV fluids be administered,450 which Dr Paterson did at 7.15 pm, as well as her decision to perform an ARM to assess for the presence of meconium in the amniotic fluid.451 She also escalated CTG monitoring from Midwife Palandri to Dr Marcano while consent was being obtained, and observed whether repositioning Ms Lalezari resulted in any change to the CTG. 422 This approach of excluding alternative or reversible causes accords with the opinion expressed by Professor Morris as an appropriate alternative to proceeding directly to caesarean delivery,452 as well as being consistent with what the RANZCOG guidelines suggest are appropriate measures to adopt when responding to a category 2 risk. 423 The appropriateness of Dr Beale's decision not to recommend urgent delivery at that time, based on the information available to her, was not challenged in her evidence. Indeed, the plaintiff did not, at any stage, challenge the appropriateness of any of Dr Beale's decisions. 424 However, Dr Beale's position appears to have altered materially when she reviewed the CTG trace approximately 20 minutes later and observed recurrent late decelerations, foetal tachycardia, and reduced variability, all features which she regarded as indicative of hypoxia.453 At that point Dr Beale's opinion changed from a caesarean being 'very likely' to 'required'.454 425 The change in Dr Beale's opinion based upon the further emerging features is, again, consistent with Professor Morris's interpretation of the CTG trace but, more relevantly, what in his view was required by way of immediate management. 426 Professor Morris's evidence was that, between 7.27 pm and 7.46 pm, the trace demonstrated a baseline of approximately 180 bpm, with decelerations that were clearly late and a tachycardic pattern. In his view, these features were sufficiently non‑reassuring to justify 450 ts 979. 451 ts 730. 452 ts 730. 453 ts 980. 454 ts 980. -- 105 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 106 expedited delivery.455 This accords with the timeframe when Dr Beale would have reviewed the CTG trace for the second time and formed the view regarding hypoxia. 427 In cross‑examination, Professor Morris accepted that it may have been appropriate to recommend a caesarean section as early as 'somewhere between 7.13 and 7.21',456 having regard to the elevated foetal heart rate and the emergence of decelerations that were becoming potentially recurrent from about 7.13 pm onwards. Importantly, what appears to have been central to his assessment warranting a recommendation for caesarean delivery was the development of recurring decelerations,457 which also appear to have been material to Dr Beale's assessment. 428 While Professor Morris acknowledged that a decision to proceed to caesarean delivery could appropriately have been made within that timeframe, that opinion must again be considered in light of the fact that his assessment is inherently retrospective and informed by features that are now known. It reflects the advantage of hindsight that is available only after the clinical course has played out. Also, significantly, consistent with what I have identified at [412] - [416], it is simply evidence of what Professor Morris may have considered in those circumstances to be appropriate rather than evidence as to what decisions Dr Beale would have made at that relevant point. 429 This limitation was properly acknowledged by Professor Morris when it was put to him in cross‑examination that a treating clinician would not ordinarily wait until CTG features had deteriorated to the point of being likely to cause significant foetal compromise before deciding to expedite delivery:458 I mean that would be the ideal. The nature of the CTG trace is that they do change. 430 His response underscores the difficulty confronting the plaintiff's causation case, namely the attempt to retrospectively infer what the defendant ought to have done by reference to outcomes that were not known at the time, when the relevant data was still evolving and the clinical picture remained uncertain. 455 Exhibit D3-126, page 684; ts 689. 456 ts 728. 457 ts 728. 458 ts 728. -- 106 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 107 Conclusion 431 Based upon the above analysis of the evidence I am satisfied that: 1. Had one of the defendant's treating clinicians reviewed the CTG trace at or about 6.43 pm as required, it would not merely have been possible, but likely, that the clinician would have identified the emergence of abnormal CTG features suggestive of a potential risk of foetal distress, including the possibility of acidosis. 2. Had such a review occurred, it is possible that those features may have been interpreted as falling within what I have described as a category 2 risk, namely features that may be associated with significant foetal compromise and which would require further action by way of immediate management. 3. Although such immediate management may have involved consideration of urgent delivery if significant abnormality persisted, I am not satisfied that a recommendation for urgent delivery was likely to have been made at that point. Rather, far more consistently with the approach that Dr Beale adopted at or about 7.10 pm when confronted with potentially more concerning CTG features, in my view the more probable course would have been the initiation of immediate management directed at identifying potentially reversible causes, escalation to continuous CTG monitoring by a medical practitioner such as Dr Marcano rather than a midwife, and consideration of further foetal assessment or delivery if the abnormalities were found to persist. 4. Consideration of caesarean delivery was unlikely to arise until the later emergence of more concerning CTG features, namely the complicated variable deceleration at 7.02 pm and the prolonged deceleration at 7.06 pm, with any definitive decision to proceed to caesarean delivery unlikely to have been made before at least 7.13 pm. 432 Accordingly, I am not satisfied, on the balance of probabilities, that even if the defendant had implemented an appropriate structured surveillance plan and/or had recognised by no later than 6.43 pm the emergence of CTG features suggestive of a possible risk of acidosis, that would have led any treating clinician to act differently in the management of Ms Lalezari or in the discharge of the duty of care owed to the plaintiff. -- 107 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 108 433 Specifically, I am not persuaded that such recognition would have resulted in a conclusion that urgent delivery was required at 6.43 pm, or that it would have led to the plaintiff being delivered at a materially earlier time. On that basis, the plaintiff has failed to establish that any fault on the part of the defendant contributed to the harm sustained. Would earlier delivery have prevented the injury? 434 However, even if I am wrong in the conclusions expressed at [432] - [433], it remains necessary, as noted at [384.4], for the plaintiff to establish on the balance of probabilities that any decision by one or more of the defendant's treating clinicians to proceed to caesarean delivery, had such a decision been made at 6.43 pm, would have resulted in an earlier delivery of the plaintiff so as to have avoided the onset of her injury. 435 A theme running through much of the evidence, particularly the evidence of Professor Hyett and Professor Morris when addressing questions of risk and appropriate clinical management, and indeed central to the plaintiff's articulation of her causation case, was the implicit assumption that the decision whether to proceed to caesarean delivery was one within the defendant's control. Because that assumption was so frequently expressed in those terms, I have, for convenience, adopted similar language throughout these reasons. However, an obvious and fundamental matter which appears to have been obscured by the way the issue was repeatedly framed is that the decision whether to proceed to caesarean delivery was not, in fact, the defendant's decision at all. 436 The significance of that observation is not merely semantic. Rather, it has direct consequences for the plaintiff's causation case. The counterfactual inquiry cannot proceed on the false premise that the defendant was the ultimate decision‑maker as to delivery. Any recommendation by a treating clinician to proceed to caesarean delivery was necessarily contingent upon receiving the informed consent of Ms Lalezari before it could be acted upon. The defendant or its staff could not unilaterally effect delivery, however strongly such a course might have been recommended. 437 Accordingly, even if it is accepted that a treating clinician would have formed the view at 6.43 pm that caesarean delivery was warranted, the causation inquiry does not end there. The plaintiff must establish, on the balance of probabilities, not only that such a -- 108 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 109 recommendation would have been made, but that it would have been communicated, accepted, and acted upon in a timeframe sufficient to result in delivery being effected before the onset of the injury. 438 That necessarily introduces additional contingencies into the counterfactual analysis, including the time required to explain the clinical position, obtain informed consent, mobilise theatre resources, and proceed to delivery in circumstances where the clinical picture was evolving and where, on the evidence, reasonable clinicians may have formed different views as to the level of urgency if the decision was being made at that time. 439 Assuming, without deciding, that s 5C(3)(b) of the Act does not preclude a next friend, rather than the 'injured person', from giving such evidence, there was no direct evidence from Ms Lalezari as to how she would have responded to a recommendation for caesarean delivery at 6.43 pm. Even if such evidence had been given, for the reasons articulated in Rosenberg,459 it may have attracted little weight to the extent that it was self‑serving. In any event, notwithstanding the absence of direct evidence and whatever weight might properly have been attributed to it, there are matters 'rich in detail'460 within the broader evidence from which the necessary inferences may be drawn. 440 One such area is the sequence of events that unfolded from approximately 7.10 pm onwards, as I have found at [254] and [255]. Had one of the defendant's treating clinicians reviewed the CTG at 6.43 pm, identified the same features later identified by Professor Hyett, and expressed the view that caesarean delivery was 'likely', there is no basis to conclude that Mr and Ms Lalezari would have responded differently from the manner in which they in fact did when materially similar circumstances arose and unfolded at about 7.10 pm. The findings I have made as to events at that later time therefore inform the counterfactual assessment of what would probably have occurred had comparable discussions taken place at 6.43 pm. 441 Further, as noted previously, despite pleading her case on the basis that the defendant failed to recognise the development of features indicative of foetal distress and acidosis by 'no later than 6.43 pm', there is no evidence capable of establishing that such a conclusion could properly have been reached at any earlier time. Professor Hyett's evidence makes clear that any such conclusion could not have been 459 Rosenberg [16] (Gleeson CJ), [26] - [27] (McHugh J), [155] - [159] (Kirby J). 460 Chester [135]. -- 109 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 110 drawn prior to 6.43 pm.461 Accordingly, the counterfactual analysis must proceed on the footing that any relevant assessment or response could only have occurred from 6.43 pm onwards. 442 In allowing for the time reasonably required for a treating midwife to identify concerning CTG features and escalate care to an attending obstetrician, and for that obstetrician to attend, review and assess the trace, and form the view that expedited delivery was indicated, Professor Hyett considered that a period of approximately five minutes was reasonable.462 He further estimated that the total time required, including that initial assessment period and the additional time necessary to communicate the assessment to the patient and obtain her consent, would be approximately 10 - 15 minutes.463 443 As outlined at [255], the time taken for that process to occur in the present case clearly exceeded the allowance contemplated by Professor Hyett. Consistent with his estimate, the evidence outlined at [254] shows that the defendant's treating clinicians were able to form the view that caesarean delivery was likely within approximately five minutes of reviewing the CTG and completing their initial assessment. There is no reason to think that, had such a review occurred at 6.43 pm, the time required to reach that conclusion would have been materially different. On that basis, the process of advising Ms Lalezari and seeking her consent would have commenced at approximately 6.48 pm. 444 Subject to one qualification, to which I will return below, and in the absence of any evidentiary basis to suggest that Ms Lalezari would have provided her consent more promptly than the evidence demonstrates she in fact did, it follows that the defendant would not have been in a position to proceed with a caesarean section before 7.18 pm. Further, once consent was obtained, and assuming the subsequent steps progressed in a manner broadly consistent with those discussed at [270], it follows that Daniella's delivery would not have occurred any earlier than approximately 7.46 pm, even if the defendant's treating clinicians had reviewed the CTG at 6.43 pm. Was the injury inevitable? 445 As the above counterfactual analysis demonstrates, if Daniella's injury occurred prior to 7.46 pm, it would have occurred irrespective of 461 Exhibit P1-12, page 84; ts 467, ts 499 - ts 500. 462 Exhibit P1-12, page 84. 463 ts 511. -- 110 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 111 whether the defendant had taken the precautions contended for by the plaintiff, and was therefore inevitable. In that event, the defendant's negligence could not have been a necessary condition of the harm, and the plaintiff's claim must fail. Accordingly, to establish causation, the plaintiff must prove on the balance of probabilities that the hypoxic insult occurred after 7.46 pm. 446 The resolution of this issue turns upon the interrelated questions of the cause of the injury and the time at which it occurred. Due to the divergence of opinion on those matters, it is necessary first to set out the competing expert opinions and the foundations upon which they were based. Expert evidence as to cause and timing of injury Professor Hyett 447 Professor Hyett considered that the normal features demonstrated on the antenatal CTG recordings of 25 and 26 August 2020 made it unlikely that Daniella had sustained a significant neurological insult during that period.464 He explained that a late third‑trimester antenatal neurological injury would commonly be associated with persistent CTG abnormalities, including sustained reductions in baseline variability and an absence of accelerative activity, which may indicate an established injury. No such features were present in this case. Regardless, given Professor Hyett's conclusion was the injury was caused by events during labour, implicitly it could only have occurred once the IOL commenced.465 448 Although Professor Hyett initially expressed the view in his report that delivery by 7.28 pm would likely have avoided the hypoxic insult and resulting injury, he qualified that opinion during cross-examination. He explained that his evidence was directed to the proposition that earlier delivery would have reduced the likelihood of Daniella developing hypoxia during labour and requiring resuscitation at birth, rather than establishing that the insult had not already commenced by that time. He accepted that the evidence did not exclude the possibility that the hypoxic process had begun before 7.28 pm.466 464 Exhibit P1-12, page 83; ts 522. 465 ts 526. 466 ts 523. -- 111 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 112 449 Ultimately, Professor Hyett's opinion was that the injury developed progressively as Daniella became increasingly compromised during labour. Given Daniella's reduced foetal reserves, her capacity to recover following successive contractions was diminished, resulting in a prolonged period of intermittent hypoxia and progressively worsening acidosis.467 450 In that context, he considered it likely that she experienced a pre-terminal bradycardia after the CTG had been removed and approximately 30 minutes before delivery which accounted for the foetal heart rate of about 100 bpm at birth and its subsequent decline.468 The substance of his opinion was that the timing of delivery bore directly upon the severity of Daniella's injury, such that an earlier delivery would probably have resulted in a less severe outcome. Dr Harbord 451 Dr Harbord expressed the opinion that the hypoxic insult arose from a single event, namely a complete cord occlusion,469 of between 15- and 30-minutes' duration prior to delivery.470 An occlusion involves pressure upon the umbilical cord sufficient to impair blood flow, and in the case of a complete occlusion, to obstruct that flow entirely. Dr Harbord identified a number of mechanisms by which such an occlusion might occur, the more common being:471 (a) a knot in the cord; (b) compression of the cord between the foetus and the uterine wall, particularly in the presence of reduced amniotic fluid; (c) cord prolapse, whereby the cord descends ahead of the foetus during delivery; and (d) the cord being wrapped around the foetus's neck. 452 As noted at [273], no abnormality of the umbilical cord was recorded. On that basis, Dr Harbord excluded the majority of potential causes of occlusion. In his opinion, the most likely mechanism was compression of the cord between Daniella and the uterine wall, consistent with the presence of reduced amniotic fluid. He considered 467 ts 524. 468 ts 524. 469 ts 285. 470 ts 294. 471 ts 303 - ts 304. -- 112 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 113 that, following the ARM, the reduction in fluid would have increased the pressure on the cord, thereby precipitating the occlusion.472 Dr Harbord accepted that an occlusion in the circumstances he hypothesised was 'rare' and rarer still in circumstances where the foetus remained at a -1 station, as was the case for Daniella.473 453 He further considered it likely that the event lasted longer than 10 - 15 minutes, given that an injury of the kind sustained by Daniella would ordinarily require at least 10 - 15 minutes of complete cardiac arrest and if that had occurred, it would have been unlikely that she would have been successfully resuscitated.474 This led him to conclude that something less than complete cardiac arrest was more probable, and that the hypoxia was instead attributable to a persistent, albeit slow, heart rate, indicating that some oxygenated blood continued to reach the brain, thereby prolonging the time before the onset of injury.475 454 Conversely, Dr Harbord also expressed the opinion that, if Daniella had sustained a period of total hypoxia of 30 minutes or longer, it would likely have resulted in foetal cardiac arrest and intrauterine death.476 Having regard to the radiological evidence, considered together with other clinical features, most notably the arterial and venous cord blood results, Dr Harbord was of the opinion the duration of the insult was confined to a period of no less than 15 minutes and no more than 30 minutes prior to delivery, meaning the insult must have commenced no earlier than 7.38 pm and no later than 7.53 pm.477 455 In offering his opinion, Dr Harbord acknowledged that if the occlusion resulted from uterine foetal compression, there remained the potential, once the occlusion resolved upon delivery, for acidotic foetal blood to contaminate the cord sample. His explanation for why that may not have occurred in this case, and therefore why it was the cord results remained normal, was that the cord is typically clamped very promptly following delivery, thereby limiting the opportunity for such contamination.478 472 ts 307, ts 309. 473 ts 309 - ts 310. 474 ts 294. 475 ts 299. 476 ts 294. 477 ts 301. 478 ts 311. -- 113 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 114 456 Dr Harbord accepted in his evidence that he did not possess specialist expertise in the interpretation of MRI studies or CTG tracings and that, in relation to those matters, he relied upon the opinions expressed by Dr Goetti and Professor Hyett respectively.479 457 Consequently, Dr Harbord's opinion was not based upon any independent analysis of the CTG tracings, nor upon his own assessment of whether the features demonstrated on those tracings were consistent with cord occlusion. Indeed, it is not apparent that he was provided with the CTG records for the purpose of considering whether they supported his hypothesis. Rather, his opinion was derived principally from Daniella's clinical condition at birth and the apparent discrepancy between the normal cord blood gas results and the neonatal blood gas sample obtained approximately 37 minutes after delivery. Dr Hayman 458 Dr Hayman agreed that Daniella sustained a hypoxic-ischaemic brain injury. However, in his opinion, it was not possible, on either clinical or radiological grounds, to determine the timing of its onset. He considered the radiological findings to be consistent with a moderate to severe, prolonged period of compromise giving rise to the injury.480 459 Dr Hayman further noted that, as at 25 August 2020, the available material suggested Daniella was already compromised by foetal growth restriction. In his view, this was indicative of intrauterine compromise and, at a minimum, placed her in a position of increased vulnerability to hypoxic injury, thereby heightening the risk during the peripartum period.481 The term 'peripartum' refers to the period surrounding childbirth and can include the antepartum, intrapartum, or the immediate postpartum period. 460 Properly understood, his opinion did no more than identify the possibility that such compromise existed at that time rather than giving any opinion as to when that condition began.482 461 He accepted that the hypoxic insult was likely to have occurred in utero, which would account for Daniella's poor condition at birth. He also considered that the events following delivery, including the 479 ts 322. 480 Exhibit D3-131, page 775; ts 781. 481 ts 782 - ts 783. 482 ts 791. -- 114 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 115 extensive resuscitation required, likely compounded the injury already sustained.483 462 Dr Hayman was unable to identify any 'sentinel event'.484 A sentinel event is an event that stands out and is identifiable as being the cause of the hypoxic-ischaemic injury.485 He maintained that the most likely explanation for her condition was that an already compromised foetus was subjected to additional compromise during labour and delivery, with further exacerbation occurring in the postnatal resuscitation period. 463 As to timing and its relevance to causation, Dr Hayman was prepared to say no more than that earlier delivery on 25 August 2020, whether in response to Dr Armari's recommendation or prior to the manifestation of foetal distress on CTG, may have avoided or reduced the extent of injury.486 However, that opinion must be understood in light of his acceptance that he had no expertise in CTG interpretation and was relying upon the views of others as to the presence of abnormal features in those traces.487 464 One aspect of Dr Harbord's criticism of Dr Hayman's assessment concerned what he characterised as Dr Hayman's apparent failure to take into account the cord blood gas results when compared against the neonatal blood gas results, which formed a significant foundation for Dr Harbord's hypothesis as to the cause of the injury. 465 It appears that Dr Hayman may not have been provided with the arterial cord blood gas results, as his report makes reference only to an 'umbilical artery catheter at 37 minutes of age'.488 In any event, Dr Hayman confirmed that he had reviewed Dr Harbord's reports, such that the significance attributed by Dr Harbord to the arterial cord blood gas results would have been apparent to him. Notwithstanding that, Dr Hayman maintained his opinion, indicating that those results, to the extent they were considered, did not alter his conclusions. 483 ts 830. 484 ts 781. 485 ts 775. 486 Exhibit D3-131, page 775. 487 ts 776, ts 792. 488 Exhibit D3-131, page 772. -- 115 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 116 Could the insult have occurred prior to the induction of labour? 466 The defendant submits489 that the evidence leaves open a 'material possibility' that the injury occurred as early as 21 or 22 August 2020. In support of that submission it refers to: 1. Dr Goetti's opinion that the injury was caused by a profound hypoxic-ischaemic event of between 10 - 20 minutes that most likely occurred between 25 August 2020 to 31 August 2020 and almost certainly no earlier than 21 August 2020.490 2. Professor Goergen's opinion that it could have been caused at any point from 18 August 2020 onwards.491 3. Dr Hayman's opinion, based on an MRI scan of Daniella carried out on 1 September 2020 that the imaging was consistent with the injury occurring between 25 August and 31 August 2020 and possibly as early as 22 August 2020.492 467 Dr Goetti and Professor Goergen are radiologists and expressed opinions confined to their interpretation of the radiological evidence. Properly characterised, that evidence established no more than the radiological findings could not exclude the possibility that the hypoxic insult occurred during the periods identified. 468 Similarly, Dr Hayman's opinion as to the timing of the insult was confined to the proposition that, on the available evidence, he was unable to determine with precision when it occurred, due to the absence of material permitting a positive finding. That absence of evidence did no more than leave open the possibility that the injury may have occurred at various times. However, the mere inability to exclude such possibilities does not elevate any one of them to the level of a material probability that the insult in fact occurred within a particular timeframe. 469 In forming their respective opinions, Professor Hyett and Dr Harbord had regard not only to the MRI and radiological interpretations provided by Dr Goetti and Dr Goergen, but also to a range of additional clinical factors which they each considered relevant to assessing both the mechanism and timing of the hypoxic insult. 489 Defendant's closing submissions, par 208. 490 Exhibit P1-1, page 9; Exhibit P1-3, page 29; ts 422 - ts 423. 491 ts 863. 492 Exhibit D3-131, page 776. -- 116 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 117 Accordingly, although neither was able to determine the precise timing of the insult with certainty, their opinions went beyond merely being unable to exclude a possibility. 470 Instead, each provided a reasoned clinical explanation for concluding that the insult most likely occurred during the period commencing after the IOL. In my view, their evidence not only excludes the 'material possibility' referred to by the defendant that the insult occurred at an earlier time, but positively supports the conclusion that it is likely the insult occurred at some point after induction had begun. 471 However, consistently with the evidence of Professor Hyett and Dr Hayman as to the significance of foetal growth restriction on foetal reserves, I accept Dr Hayman's opinion that, at the time of induction, Daniella exhibited the vulnerability to hypoxic injury to which he referred. Could the injury be avoided? 472 The defendant submits493 that the plaintiff cannot succeed on causation unless it is established that, absent the breach, delivery would have occurred by 7.28 pm on Professor Hyett's counterfactual or by 7.38 pm on Dr Harbord's. As noted at [444] and [445], I am satisfied that the earliest time at which delivery could realistically have occurred was 7.46 pm. If that submission accurately reflected the applicable counterfactual, the plaintiff's case would fail without the need to resolve the competing expert opinions. 473 However, as appears from the summary of Dr Harbord's evidence at [451] - [456], that submission does not accurately reflect his position. Although unable to identify the precise timing of the injury, Dr Harbord's evidence (as set out at [454]) placed its onset between 7.38 pm and 7.53 pm. On that analysis, an insult commencing after 7.46 pm and continuing for at least 15 minutes could still account for the injury. Conversely, if the insult began at 7.38 pm and delivery occurred at 7.46 pm, its duration would have been approximately eight minutes, which on Dr Harbord's evidence would have been insufficient to cause the injury. 493 Defendant's closing submissions, pars 70, 76(2)(e), 80, 205 - 214. -- 117 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 118 474 Accordingly, on Dr Harbord's counterfactual, it remains open that the injury might have been avoided even if its onset had commenced at 7.38 pm, provided the relevant CTG features were identified at 6.43 pm, immediate delivery was recommended and consented to, and delivery occurred by 7.46 pm. On that limited basis, Dr Harbord's counterfactual can support the plaintiff's case on causation and requires resolution of the competing hypotheses advanced by Professor Hyett and Dr Harbord. What caused the insult? 475 What was evident from the evidence of Dr Goetti and Dr Goergen is that the radiological findings are capable of interpretation in a manner consistent with either hypothesis: a single acute and profound hypoxic event, as opined by Dr Goetti and supportive of Dr Harbord's hypothesis; or a protracted series of moderate hypoxic insults, or multiple insults of lesser intensity, as opined by Dr Goergen and supportive of Professor Hyett's opinion. Both radiologists provided careful and well‑reasoned explanations for their respective interpretations, grounded in the scientific literature. Ultimately, the radiological evidence, on its own, provides little assistance in resolving this issue. 476 In forming their respective opinions, both Professor Hyett and Dr Harbord were required to address the extent to which those opinions could be reconciled with the arterial cord blood gas results. Each identified a potential issue as to the reliability of those results, arising from the apparent inconsistency between the recorded values and Daniella's poor clinical condition at birth.494 The way each expert approached that issue, and the weight ultimately attributed to the results in their reasoning, constituted a material point of distinction between their opinions. 477 The arterial cord blood gas results were recorded with a '?' alongside each value, together with the notations 'sample error' and 'insufficient sample' in an associated text field.495 Notwithstanding those annotations, Dr Harbord reasoned that the existence of recorded results indicated that a sufficient blood sample must have been obtained to permit analysis, on the basis that no result would be generated if the 494 ts 290, ts 509. 495 Exhibit DS-1, page 1045. -- 118 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 119 specimen were truly inadequate.496 On that assumption, he regarded the results as reliable. 478 He further speculated that the '?' notation had been added because, although the results appeared normal, the person recording them recognised that they were inconsistent with Daniella's clinical presentation.497 Dr Harbord accepted, however, that he had no expertise or familiarity with the analyser used to produce the results.498 479 Unchallenged evidence given by Midwife Dunbar, who was familiar with the analyser, established that the question marks are generated by the machine itself rather than being manually entered, and that their presence generally denotes an invalid result.499 That evidence demonstrates that Dr Harbord's assumption as to what the markings signified in that respect was mistaken. Beyond Midwife Dunbar's evidence, no further material was adduced to clarify the issue or to resolve the question of the reliability of the results. 480 Professor Hyett, for his part, considered the results were likely to be spurious and queried whether they in fact related to Daniella at all. His scepticism arose not only from the apparent normality of the results, but also from the pH levels, which he regarded as likely being higher than would ordinarily be expected for a foetus of that gestational age.500 481 In advancing these views, both experts effectively recognised the possibility that the arterial cord blood gas results were unreliable, but each offered explanations for how that potential unreliability could be reconciled with the opinions they gave. Those explanations were, to varying degrees, speculative. No evidentiary foundation was established to support those explanations and, in the case of Dr Harbord, an aspect of his reasoning was shown to be incorrect. In those circumstances, little weight can be placed upon the speculative explanations advanced for the apparent anomalies in the arterial cord blood gas results. 482 However, Dr Harbord placed substantial reliance upon those results in advancing his opinion that the injury was caused by a single hypoxic event due to cord occlusion. The discrepancy between the 496 ts 305. 497 ts 290. 498 ts 305. 499 ts 645. 500 ts 510 - ts 511. -- 119 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 120 cord results, including the arterial cord, and the neonatal blood gas results was central to his reasoning. His hypothesis was therefore dependent upon the arterial cord blood gas results being reliable, notwithstanding the express qualification as to their validity appearing on the face of the report. In circumstances where that issue remains unresolved, his reliance upon those results diminishes the weight to be accorded to his opinion and gives rise to significant reservations as to its reliability. 483 By contrast, Professor Hyett did not rely upon those results in forming his conclusions and regarded them as immaterial. If the cord results were subsequently shown to be accurate, the results would sit uneasily with his opinion. However, his hypothesis as to the cause of Daniella's injury was derived from other clinical evidence, in particular the CTG trace, the accuracy of which has not been challenged. The apparent inconsistency between the results and Professor Hyett's hypothesis may therefore be reconciled on the basis that the arterial cord blood gas results are unreliable, a conclusion for which there is some evidentiary support. 484 Support for Professor Hyett's hypothesis can also be seen in the CTG traces that have been adduced.501 The subsequent pattern that can be seen, namely a prolonged deceleration at 7.06 pm, an earlier variable deceleration at 7.02 pm, and the development of recurrent late decelerations from approximately 7.23 pm, is consistent with progressive foetal compromise in the setting of ongoing hypoxic stress and accords with Professor Hyett's opinion that repeated intermittent uterine contractions led to progressive depletion of foetal reserves, resulting in recurrent hypoxic insults and, ultimately, injury. 485 In that regard, Dr Hayman's opinion that there was no evidence of a discrete sentinel event but rather that Daniella's injury was consistent with an already compromised foetus becoming further compromised during labour and delivery, with additional exacerbation arising from complications during post‑delivery resuscitation, is materially consistent with Professor Hyett's evidence and lends further support to his conclusions. 486 When asked whether Daniella's injury was consistent with being caused by a single hypoxic event, Professor Hyett regarded Dr Harbord's hypothesis as unlikely, having regard to the foetal position within the uterus at the relevant time and the likelihood that 501 Exhibit D1-34. -- 120 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 121 any such occlusion would have resolved with maternal repositioning.502 He further observed that an event of that kind would ordinarily be expected to give rise to detectable features on the CTG trace. Upon review, Professor Hyett was unable to identify any such feature. Notably, as already mentioned, it does not appear that Dr Harbord was provided with copies of the CTG trace to see if he could identify any such features but, in any event, as he repeatedly acknowledged, he would defer to the expertise of an obstetrician when interpreting a CTG. 487 A review of the CTG trace up until its discontinuation at 7.48 pm does not suggest any reduction in Daniella's heart rate to the bradycardic levels which Dr Harbord considered necessary to produce the injury.503 The absence of such features is consistent with, and supports, Dr Hayman's opinion that there was no evidence of a sentinel event. 488 In those circumstances, acceptance of Dr Harbord's hypothesis would require the cord occlusion to have occurred only after the CTG trace was discontinued, that is, at some point between 7.48 pm and the time of delivery at 8.08 pm. That period of approximately 20 minutes only marginally exceeds the minimum duration of 15 minutes which Dr Harbord considered necessary to produce the injury. 489 Further, in describing the factual scenario he regarded as most likely, Dr Harbord suggested that the ARM would have been a significant contributing factor, with the occlusion occurring shortly thereafter. The ARM, however, took place at approximately 7.10 pm (see [195] and [254.2]). If, as his hypothesis requires, the relevant bradycardic event occurred only after the CTG was discontinued, it must have arisen at least 38 minutes following the ARM. That temporal sequence sits uneasily with Dr Harbord's suggestion that the occlusion would have occurred shortly after the procedure. 490 What can be seen from Dr Harbord's evidence is that it is possible that Daniella's injury was caused by a single hypoxic insult, namely a cord occlusion, but only if the following contingent propositions are accepted: 502 ts 515. 503 Exhibit D1-14. -- 121 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 122 (a) that the arterial cord blood gas results are reliable, notwithstanding the qualifications on their face suggesting they may not be; (b) the arterial cord sample was, by chance, taken from a segment between the placenta and the site of occlusion, rather than between the occlusion and the point of connection to Daniella; (c) that the occlusion occurred within the approximate 20-minute interval between discontinuation of the CTG trace and delivery, thereby explaining the absence of any features on the trace consistent with such an event, but also resulting in an absence of objective evidence capable of excluding that hypothesis; (d) that, within that 20-minute interval, the occlusion persisted for at least 15 minutes so as to produce the injury, requiring that it commenced shortly after 7.48 pm and resolved only shortly before delivery, so as again being able to occur without leaving observable clinical signs; (e) that the absence of any physical evidence of cord abnormality at delivery, such as knot, prolapse or entanglement, is capable of being explained by the occlusion having arisen from intrauterine cord compression which is a form of occlusion that Dr Harbord himself accepted was 'low but not impossible';504 (f) that such compression occurred notwithstanding that Daniella was in a cephalic position at -1 station which Dr Harbord accepted made such a compression even less likely;505 (g) that the occlusion occurred more than 38 minutes after the ARM, despite Dr Harbord's view that such events would be expected to follow shortly after that procedure; and506 (h) that the compression persisted for at least of 15 of the 20 minutes, despite maternal repositioning associated with transfer to theatre and preparation for delivery. 491 While this evidence may support the possibility that Daniella's injury was caused by a single hypoxic event of between 15 - 30 minutes' duration, that is not sufficient. As explained in 504 ts 310. 505 ts 310. 506 ts 309. -- 122 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 123 Strong,507 the inquiry is not resolved by identifying what is merely possible, it requires an assessment of probabilities and a determination of what is more likely to have occurred. 492 However, unlike in Strong,508 where the court was concerned with the application of probabilistic reasoning of the kind discussed in Shoeys Pty Ltd v Allan509 and Kocis v S E Dickens Pty Ltd,510 this is not a case in which the competing hypotheses are evenly balanced. On the evidence available in this matter, the hypothesis advanced by Professor Hyett is more strongly supported than that put forward by Dr Harbord. Even if the two were regarded as evenly matched, the reasoning in Strong would still favour Professor Hyett's hypothesis, having regard to the longer duration of the insult he suggests as compared with the shorter period relied upon by Dr Harbord. In any event, as said, it is not necessary to resort to such probabilistic reasoning in the present case. 493 In this case, although it remains possible that Daniella's injury was caused by a single hypoxic event, I am satisfied that it is more likely the injury resulted from a progressive sequence of events during labour, involving repeated uterine contractions that produced intermittent periods of reduced oxygenation. Put differently, I prefer the opinion of Professor Hyett as to the cause of the hypoxic insult over that of Dr Harbord, for the following reasons: 1. Dr Hayman's opinion, that an already compromised foetus was subjected to further compromise during labour and delivery, with additional exacerbation during postnatal resuscitation, is broadly consistent with Professor Hyett's explanation of the mechanism of injury. 2. Professor Hyett's opinion was informed by, and consistent with, the CTG trace, being a body of evidence to which Dr Harbord does not appear to have had the same access to or expertise to interpret. 3. Professor Hyett's opinion accorded with the broader clinical evidence, the only apparent inconsistency being with the cord blood gas results. While his explanation for that inconsistency may have involved an element of speculation, there was at least 507 Strong [34]. 508 Strong [30] - [35]. 509 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104. 510 Kocis v S E Dickens Pty Ltd [1998] 3 VR 408, 432 (Hayne JA, as his Honour then was). -- 123 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 124 one possible plausible explanation arising from the evidence with respect to the arterial cord blood gas result. In any event, the inability to fully explain such an inconsistency does not, of itself, render his opinion unreliable. 4. It aligns with the clinical context in which the IOL was recommended, namely the risk of developing foetal acidosis associated with growth restriction, rather than any increased risk of cord occlusion. 5. The conduct of the treating clinicians from approximately 7.10 pm onwards, in response to the evolving CTG features, is consistent with a recognition of a developing risk of foetal acidosis associated with delay in delivery. That progression accords with Professor Hyett's opinion that acidosis was developing at that time (and in his opinion earlier), and supports the sequence of events he described. 494 For those reasons, I am not satisfied that Daniella's injury occurred in the manner described by Dr Harbord, or that it arose at or after 7.38 pm because of a cord occlusion. That conclusion makes it unnecessary to further consider the extent to which Dr Harbord's counterfactual aligns with the plaintiff's case on causation. 495 Instead, having found that the hypoxic insult resulted from a progressive sequence of events during labour, it is now necessary to consider the implications of that finding for the plaintiff's causation case. Resolution 496 Professor Hyett identified the principal contributing factor for the onset of Daniella's injury was the presence of regular uterine contractions, with the associated risk arising from that point and increasing as labour progressed.511 However, he was unable to specify the duration of hypoxic compromise required to produce the severity of injury ultimately sustained. 497 As outlined at [152], regular uterine contractions were occurring from approximately 1.55 pm onwards. Having regard to my findings at [470], that point represents the earliest time at which the event could 511 ts 526 - ts 528. -- 124 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 125 have commenced, and when set against my finding at [444] that the earliest time by which delivery could have occurred was 7.46 pm, this identifies a period of nearly six hours during which the hypoxic insult could have, or did, develop. 498 As discussed at [448], even though Professor Hyett initially expressed the view that recognition of hypoxia at 6.43 pm would have permitted delivery by 7.28 pm and that injury would then have been unlikely, that opinion must be understood in light of the clarification he later provided. 499 Properly understood, Professor Hyett's evidence was that, once foetal compromise begins, the likelihood of hypoxic injury increases the longer that compromise persists, rather than that the hypoxic insult did not commence until after 7.28 pm. Further, his qualification that delivery by 7.28 pm would have made injury, or at least injury of the severity ultimately observed, much less likely, accommodates the possibility that some injury, albeit of lesser severity, had already occurred or was in the process of developing by that time. 500 Notwithstanding Professor Hyett's evidence that the process technically commenced with the onset of regular contractions and progressed thereafter, it is implicit in the significance he attributed to the CTG features identified at 6.43 pm that, in his view, this point marked an important development during the labour. At that stage, the cumulative effect of repeated uterine contractions on Daniella's foetal reserves may have begun to assume greater clinical significance, potentially contributing to the development of foetal distress. 501 However, even if that point is treated as indicative of emerging hypoxia and associated acidosis, it nonetheless points to a period of just over one hour during which Daniella may have continued to experience an ongoing hypoxic insult before the earliest time at which delivery could realistically have occurred, namely 7.46 pm. 502 Even if Professor Hyett's evidence were construed in the manner most favourable to the plaintiff, namely, that it was unlikely the injury commenced between 6.43 pm and 7.28 pm and instead began sometime after 7.28 pm, which is not how I have understood his evidence, it would nonetheless follow that the foetal compromise he identified was highly likely to have been operative from 7.28 pm until delivery at 7.46 pm. That represents a period of at least 18 minutes during which Daniella was exposed to ongoing and repetitive hypoxic insult. -- 125 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 126 503 If Daniella's injury resulted from a single hypoxic insult, Dr Goetti estimated that such an event would need to have persisted for between 10 and 20 minutes.512 As noted at [453], Dr Harbord expressed a similar view, considering that a singular hypoxic event would need to last 10 - 15 minutes if it involved complete cardiac arrest, or between 15 and 30 minutes if the hypoxia instead arose from a persistently slow heart rate allowing some oxygenated blood to reach the brain. Each of those scenarios, however, proceeded on the shared premise that the injury was caused by a discrete, single hypoxic event. Professor Goergen did not disagree that Daniella's injury was capable of being consistent with a single hypoxic insult of that duration. Her disagreement lay in the proposition that such an injury could only be explained in that way.513 504 In Professor Goergen's opinion, the literature and studies to which she referred indicated that the type of injury sustained by Daniella could also result from multiple, less severe hypoxic insults occurring repeatedly over a period of time.514 In that respect, her evidence is consistent with Professor Hyett's hypothesis as to the cause of Daniella's injury, and with Dr Hayman's opinion based on his review of the materials. She was unable, however, to express an opinion as to the duration each insult required or the overall period across which they might occur.515 The consequence is that the radiological evidence provides limited assistance in determining the likely duration of a hypoxic insult where the injury is not the result of a single acute event. 505 However, the consistency between Professor Goergen's evidence that a combination of factors during labour may increase the susceptibility of the foetal brain to injury in utero, and Dr Hayman's opinion that Daniella's growth restriction heightened her vulnerability and contributed to the occurrence of her injury, supports the conclusion that hypoxic stresses ordinarily tolerated during labour may have had a more pronounced effect on Daniella over a shorter period of time. In that context, the longer she remained in utero, the greater the risk that those stresses would culminate in more significant injury. 506 On Dr Harbord's evidence, a minimum duration of 15 minutes was identified as being capable of producing hypoxic injury in circumstances involving a persistently slow heart rate that nevertheless 512 ts 381, ts 383. 513 ts 863. 514 ts 865. 515 ts 860. -- 126 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 127 permitted some oxygenated blood to reach the brain. While that evidence was directed to a singular hypoxic event and is therefore not directly comparable to repeated, less severe insults, it nevertheless provides a limited indication of the potential significance an 18-minute period of ongoing hypoxic compromise may have had. That is particularly so when considered alongside the evidence already referred to concerning the progressively increasing risk over time and Daniella's pre‑existing vulnerabilities. 507 Both Professor Morris and Professor Hyett agreed, albeit with the benefit of retrospective review, that from approximately 7.13 pm until the CTG trace was discontinued at 7.48 pm, recurrent decelerations were present. Those recurrent post‑contraction decelerations are consistent with the pattern of repetitive hypoxic insults described by Professor Hyett. 508 When asked about whether he could exclude the likelihood that Daniella's injury occurred prior to 7.28 pm, as part of that answer, Professor Hyett replied:516 And then you see a series of fetal heart rate changes, which are reflective of the fact that that is gradually becoming worse and worse. And then we get to the point where the CTG changes are very significant and then we have a period where we have no CTG recording. And what likely happened at some point in that half an hour between the end of the CTG and delivery is that the baby had a preterminal bradycardia. And that's why the baby went from a point where the heart rate's fluctuating around 160 to 180 to suddenly, at the point of delivery, having a heart rate of around 100 beats per minute that rapidly reduces. So I - I think from my perspective and in my opinion there is no single time point that you could identify as an injury. It is a progressive process. And the fact that delivery was delayed has made a significant contribution first to the state of the infant at delivery and potentially, based on the neonatal advice that you hear, that that then made the process of resuscitation harder as well. 509 It is apparent that, in giving that evidence, the 'series of fetal heart rate changes' and the point at which the CTG changes became 'very significant' correspond to the abnormalities observable on the CTG trace between approximately 7.00 pm and 7.08 pm, and more clearly from about 7.13 pm onwards. Those features are consistent with, and provide objective evidence of, the progressive deterioration Professor Hyett described and support his characterisation of the injury as arising from a developing process rather than a discrete event. 516 ts 524 - ts 525. -- 127 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 128 That evidence satisfies me that the onset of the process giving rise to the hypoxic insult likely occurred from approximately 7.13 pm onwards. 510 When one factors that into the counterfactual most favourable to the plaintiff, this would mean that even if the CTG trace had been reviewed at 6.43 pm, Daniella would still have been exposed to a period of at least 33 minutes (from 7.13 pm to earliest delivery at 7.46 pm) of repetitive hypoxic insult before delivery could realistically have occurred, having regard to the time required to obtain consent and effect delivery. Relevance of post-delivery resuscitation 511 However, as reflected in the passage of Professor Hyett's evidence set out at [508], he also considered that the post‑delivery resuscitation was likely precipitated by Daniella's reduced heart rate following a pre‑terminal bradycardia occurring in the interval between discontinuation of the CTG trace at 7.48 pm and delivery at 8.08 pm. If that is correct, earlier delivery at 7.46 pm may have had the potential to affect whether that bradycardia occurred and, in turn, any consequences flowing from it. That possibility introduces a further layer of complexity into the assessment of the causation counterfactual, as it potentially bears not only on the timing and duration of the hypoxic insult, but also on the extent to which post‑delivery events may have contributed to Daniella's injury. 512 If Daniella was affected by a period of pre‑terminal bradycardia, Professor Hyett was not asked, nor did he explain, what may have precipitated it or why it occurred. Although it appears implicit in his evidence that the bradycardia was a consequence of Daniella's deteriorating condition, he did not identify the specific factors said to have brought it about. In particular, it remains unclear whether the processes leading to the bradycardia were already in train following the deterioration observed from approximately 7.13 pm, such that its occurrence was inevitable even had delivery occurred earlier, or whether earlier delivery might have prevented the bradycardia and any consequences flowing from it, and if so, at what point. 513 At its highest, the evidence permits no more than the conclusion that earlier delivery may have prevented the bradycardia, or may not have; that, if the bradycardia occurred post‑uterine, it may have allowed more effective resuscitation, or may not have; and, critically, that it may -- 128 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 129 have reduced the severity of Daniella's injury, or may not have done so. Those possibilities cannot be resolved on the evidence and underscore the limits of what can properly be determined in the causation analysis. 514 Professor Goergen explained that the radiological evidence does not allow for any precise determination as to when the injury occurred and what caused it.517 Similarly, Professor Hyett was also unable to say whether, or to what extent, that period of resuscitation may have contributed to Daniella's hypoxic injury, but suggested her presentation on delivery was already suggestive of some level of hypoxic insult having occurred.518 Dr Harbord largely excluded resuscitation as a contributing factor, but that opinion was contingent upon acceptance of the reliability of the cord blood gas results. By contrast, both Dr Hayman and Professor Goergen identified the period of resuscitation as a potential contributor, although neither was able to determine whether it did contribute, or if so, to what extent. 515 The consequence is that a number of interrelated questions cannot be resolved on the evidence, including whether, and to what extent, post‑delivery resuscitation caused or contributed to Daniella's injury; the role played by Daniella's compromised foetal state in precipitating the bradycardia and the prolonged resuscitation that followed; whether the injury was wholly attributable to hypoxia sustained in utero; and the duration of hypoxic compromise required to cause the injury. That uncertainty is further compounded by the absence of clear evidence as to whether earlier delivery would have prevented the bradycardia or the need for resuscitation, and, if so, at what point. 516 To the extent that the analysis at [496] - [510] might be understood as suggesting that a longer period of hypoxic compromise would be likely to result in more severe injury, the uncertainty introduced by the post‑delivery resuscitation limits the extent to which that inference can safely be drawn. In particular, it prevents any reliable conclusion being reached as to the relationship between the injury sustained and a hypoxic period of nearly one hour (from 7.13 pm to 8.08 pm), as opposed to a shorter period ending at 7.46 pm, or as to the degree to which any reduction in the duration of hypoxia would have altered the severity of the injury. It also precludes acceptance of the superficially attractive, but ultimately unreliable, proposition that earlier delivery would necessarily have resulted in a less severe injury, or that any delay in delivery must have caused additional harm. 517 ts 863. 518 ts 517, ts 520 - ts 521. -- 129 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 130 517 These uncertainties return the inquiry to the central question of what material difference, if any, delivery by 7.46 pm rather than 8.08 pm would have made to the injury ultimately sustained. Conclusion 518 Put at its highest, and adopting the formulation most favourable to the plaintiff, the evidence supports no more than a possibility that earlier delivery might have avoided the pre‑terminal bradycardia which Professor Hyett considered likely to have occurred in the period prior to delivery. It likewise permits the possibility that Daniella may have been born in a less compromised condition, may have required less extensive resuscitation, and may have sustained a less severe injury. However, the evidence does not rise beyond possibility. Those matters cannot be established as matters of probability, nor can it be concluded that earlier delivery from 7.46 pm onwards would have been a necessary condition of the avoidance of the injury or of any reduction in its severity. To reason otherwise would move beyond permissible inference and into speculation. 519 At its highest, the evidence establishes that Daniella's injury was capable of resulting from a series of persistent hypoxic insults associated with recurrent uterine contractions over a period of approximately 33 minutes, just as it was capable of resulting from a similar process operating over a longer period of approximately 53 minutes. Given the additional uncertainty introduced by the role of post‑delivery resuscitation, it is not possible on the evidence to determine whether that difference would have had any material effect on the development or severity of Daniella's injury. 520 Accordingly, on the evidence available, it is not possible to determine that the injury sustained would have been materially different depending upon the duration of that period. In those circumstances, the plaintiff has not established that earlier delivery would, on the balance of probabilities, have avoided the injury or reduced its severity, with the consequence that the injury must be regarded as inevitable for the purposes of the causation analysis. Would a decision to expedite delivery have resulted in earlier delivery? 521 Returning to the qualification identified at [444], the preceding counterfactual analysis necessarily proceeds on assumptions as to how events might have unfolded had the CTG been reviewed at 6.43 pm. -- 130 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 131 While it was reasonable, for analytical purposes, to assume that Mr and Ms Lalezari would have taken a similar period of time to respond as they did when materially comparable circumstances arose at about 7.10 pm, that assumption does not extend to the critical question of consent itself. 522 Consent is an exercise of personal autonomy, informed by the patient's preferences and the clinical information conveyed at the time, and it cannot be assumed that merely because an opportunity to consent might have arisen earlier, it would have been given earlier. 523 The evidence establishes that, notwithstanding repeated discussions of foetal risk and the availability of caesarean delivery, Ms Lalezari consistently declined surgical intervention while any realistic prospect of vaginal delivery remained and while the CTG features had not been conveyed as pathological or emergent. It was only once the clinical situation deteriorated to the point of being characterised as potentially pathological, and the urgency escalated to a category 1 caesarean, that consent was ultimately given. 524 The timing of Ms Lalezari's consent must be understood in the context of her consistently expressed preference for vaginal delivery and her entitlement to make decisions about her own medical treatment. She remained committed to pursuing a vaginal delivery while that remained a clinically available option. The evidence satisfies me that Ms Lalezari did not consent to caesarean delivery merely because risk was present. Rather, consent was given only when the clinical situation had deteriorated to the point that urgent operative delivery was recommended. 525 For Ms Lalezari to have provided her consent earlier, it would have been necessary for the defendant's treating clinicians not merely to identify evolving risk and to recommend caesarean delivery, but to advise that immediate delivery was required and that no alternative course was available. For the reasons I have given at [431] and [432], I am not satisfied that even if the CTG had been recognised at 6.43 pm, such advice would have been given at that time. In those circumstances, I am not persuaded that an opportunity to seek consent at an earlier stage would have resulted in earlier consent, in fact, being given. In the absence of that consent being provided, earlier delivery could not have occurred. -- 131 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 132 526 The plaintiff has not established, on the balance of probabilities, that earlier recognition of the CTG features would have resulted in earlier delivery or avoided the injury sustained. In those circumstances, the defendant's pleaded breaches cannot be shown to have been a necessary condition of the harm within the meaning of s 5C(1)(a) of the Act. The plaintiff has therefore failed to establish causation and the claim must be dismissed. Did the defendant's failure to take reasonable precaution cause the plaintiff's injury? 527 For the reasons set out above, the plaintiff has failed to establish that it is more probable than not that: (a) had the CTG been reviewed by one of the defendant's treating clinicians at 6.43 pm, the features then present would have been interpreted in a manner that would have resulted in a decision at that time to expedite Daniella's delivery; (b) had such a recommendation for expedited delivery been made, Ms Lalezari would have provided consent to caesarean delivery at a time that was materially earlier than she in fact did; or (c) had consent been obtained at a materially earlier time, delivery would have occurred sufficiently earlier to avoid the injury sustained by Daniella. 528 As the above counterfactual inquiry demonstrates, the plaintiff has failed to establish that the defendant's faults, namely the failure to implement a structured plan and the failure to recognise the relevant CTG features, were a necessary condition of the occurrence of her harm. Accordingly, the plaintiff has not established that the defendant's negligence caused Daniella's injury. Conclusion 529 Having concluded that neither the failure to implement a structured plan nor the failure to review and interpret the CTG by 6.43 pm caused Daniella's injury, it is natural to ask 'what did?'. There are clear areas where, at first glance, the care provided to Ms Lalezari and to Daniella by the defendant fell short of what was reasonably required. -- 132 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 133 530 It is entirely understandable that Mr and Ms Lalezari, having placed themselves in the defendant's care on 27 August 2020, seek an explanation for how their daughter came to suffer such a profound injury despite the defendant's duty to take reasonable steps to avoid such an outcome. Regrettably, however, it is neither the role, nor the capacity, of this court to provide definitive answers to that broader question. 531 The court's role is not inquisitorial. The court is confined to determining the dispute brought before it by the parties. The parameters of that dispute are defined by the pleadings, which identifies the case the defendant is required to meet and the issues for determination. It is that case, and only that case, that falls for decision. 532 The evidence before me was directed to the plaintiff's allegations concerning the absence of a structured plan and the adequacy of CTG surveillance and interpretation. To attempt to answer questions beyond those raised by the pleaded case would require speculation rather than adjudication. I recognise this is likely to be of little consolation to Mr and Ms Lalezari, and most importantly Daniella, who are left wondering what the answers to those questions might be. 533 However, the issue before the court is not one of consolation but one of compensation. That question, as I have said, must be determined by reference to the pleaded case and the evidence adduced in support of it. For the reasons I have given, I am not satisfied that the plaintiff has established, on the balance of probabilities, that the defendant's pleaded breaches caused Daniella's injury. 534 It follows that the plaintiff has not established a basis upon which the defendant is liable to compensate her and her claim must be dismissed. -- 133 of 134 -- [2026] WADC 68 ASTILL DCJ [2026] WADC 68 (PC) Page 134 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. EO Associate to Judge Astill 30 JULY 2026 -- 134 of 134 --