Fletcher v Besser

[2004] NSWCA 132

CITATION:	FLETCHER v BESSER & ANOR [2004] NSWCA 132
HEARING DATE(S):	02/04/2004
JUDGMENT DATE:	4 May 2004
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Bryson JA at 3
DECISION:	[2002] NSWSC 899 affirmed. Appeal dismissed with costs.
CATCHWORDS:	LIMITATION OF ACTIONS - Postponement of the Bar-extension of period - cause of action in respect of personal injuries - Limitation Act 1969 s 60G - medical negligence - appellant (plaintiff) severely disabled after neurosurgery in October 1982 - brought proceedings in 1995 against general practitioners - appellant claimed she had been under disability until 1990 and was able to sue until 1996 - in 2000 obtained expert opinions raising basis for alleging negligence in neurosurgery and hospital treatment, obtained leave to join respondents (neurosurgeon and hospital) as additional dependants and applied for extension of time - Studdert J refused extension as fair trial could not be had because of respondents' difficulties in establishing events in detail - decision affirmed - observations at [12] & [13] on lack of significance of difficulties respondents would have faced if proceedings had been brought late in the period available - "just and reasonable" test requires an address to what is now just and reasonable, not to what might have been the respondents' situation in events which did not happen - observation in Smith vNorton [2004] NSWCA 84 at [39] not applicable to s 60G. (D)
LEGISLATION CITED:	Limitation Act 1969 s 14(1)(b), s 18A, s 52(1)(d), s 58, s 60E, s 60F, s 60G, s 60I, Sch 5 Motor Accidents Act 1988 s 52(4) Supreme Court Act 1970 s75
CASES CITED:	Smith v. Morton [2004] NSWCA 84 Browne v. Dunn (1893) 6 R 67 Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 McLean v. Sydney Water Corporation [2001] NSWCA 122 Holt v. Wynter (2000) 49 NSWLR 128
PARTIES :	Joanna Wilhelmina Fletcher - Appellant Michael Besser - First Respondent Central Sydney Area Health Service - Second Respondent
FILE NUMBER(S):	CA 40957/2002
COUNSEL:	J. Agius SC & M. Condon - Appellant D.Davies SC - First Respondent S. Kalfas - Second Respondent
SOLICITORS:	Graham Billing & Co - Appellant Tress Cocks & Maddox - First Respondent Ebsworth & Ebsworth - Second Respondent

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	CLD 12351/95
LOWER COURT JUDICIAL OFFICER :	Studdert J

CA 40957/2002

MASON P
GILES JA
BRYSON JA

4 May 2004

JOANNA WILHELMINA FLETCHER v. MICHAEL BESSER AND

CENTRAL SYDNEY AREA HEALTH SERVICE

Judgment

1 MASON P: I agree with Bryson JA.

2 GILES JA: I have had the advantage of reading the reasons of Bryson JA in draft, with which I agree. Lest my agreement with his Honour’s observations on Smith v Morton [2004] NSWCA 84 be thought inconsistent with my agreement with the reasons of Hodgson JA in that case, I should say that in my additional remarks in Smith v Morton particularly para [4] I intended respectfully to depart from the observation in the last sentence of his Honour’s para [39]. I failed to make that clear. I agree that the appeal should be dismissed with costs.

3 BRYSON JA: This is an appeal (by leave granted on 30 June 2003) from orders made by Studdert J in the Common Law Division on 1 October 2002. The proceedings were commenced in 1995 by Statement of Claim in which the first and second defendants were the only defendants. The third and fourth defendants, now the respondents, were first joined as defendants by order of Assistant Registrar Howe made on 4 June 2001 upon the plaintiff’s, now the appellant’s, Notice of Motion filed on 21 February 2000. The first respondent Dr Besser and the second respondent Central Sydney Area Health Service applied by Notices of Motion dated 27 July 2001 and 3 August 2001 respectively for summary disposal or permanent stay of the proceedings and for review of the order made by Assistant Registrar Howe on 4 June 2001. The appellant applied by Notice of Motion, now her Amended Notice of Motion dated 1 February 2002 for an order extending the limitation period against the respondents, and for a declaration establishing that she had been under a disability and that the running of the limitation period was suspended while she was under disability.

4 The appellant’s claims against the respondents are alleged to have arisen from a series of acts, omissions and events in her medical and hospital treatment in September and October 1982. For causes of action founded on tort which accrued in 1982 the limitation period prescribed by the Limitation Act 1969 s 14(1)(b) is six years; s 18A provides for a period of three years for causes of action which accrued after 1 September 1990 and does not apply to these proceedings. The appellant claims that she was under disability until December 1990 and that the running of the limitation period was suspended until then by the operation of s 52(1)(d). If this were correct the limitation period fixed by s14 would be suspended until December 1990 and would commence to run then, and would expire in December 1996 or (to pick an arbitrary date) on or before 31 December 1996. It appears that there was no argument before Studdert J on the appellant’s claim that the limitation period was extended on the ground of her disability. Studdert J did not determine whether or not the limitation period was extended; that question may remain important for the appellant’s claim against the first and second defendants, but the Court of Appeal is not at present concerned in it.

5 Unless the appellant obtains leave under Pt 3 Div 3 of the Limitation Act 1969, her claim against the respondents is undoubtedly time-barred. Part 3 Div.1 and Div.2 deal with postponement of the bar and Div. 3 contains some further provisions for postponement relating to personal injury cases. Division 3 Subdivision 1 provides for extension, based on the belated discovery of material facts, of the limitation period for causes of action which accrued before 1 September 1990, and s 58 provides tests which include that any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant. Subdivision 2 relates only to causes of action which accrued on or after 1 September 1990, and s 60E prescribes a number of circumstances to which the Court is to have regard. One of these is:

(b) The extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.

6 Subdivision 3 is headed “Discretionary extension for latent injury etc” and provides a further discretionary provision to postpone the bar even where a postponement is not available under Subdivision 1 or Subdivision 2. Its provision for extension can operate even if the tests in s.58 cannot be met. Subdivision 3 does not contain any test corresponding to the provision of s.58 relating to means of knowledge of material facts of a decisive character. Nor does Subdivision 3 contain a provision corresponding to s60 E (b). The purpose of Subdivision 3 is stated in s60F.

7 In Subdivision 3 s 60F provides:

60F Purpose of this Subdivision

The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.

8 Subsection 60G(2) provides:

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

9 Subsection 60I(1) provides:

60I Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii).

10 Subcll.4(1) and (4) of Schedule 5 are:

(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, if an application for such an order is made within:
(a) the period of 3 years referred to in section 60I, or
(b) the period of 3 years commencing on 1 September 1990.

11 Subsection 60I(1) does not call for further consideration in this appeal, as Studdert J found that the appellant was unaware of the connection between her injury and an act or omission of the respondents at the times referred to in subs 60I(1)(a), and that she applied within the time prescribed by para (b). The respondents did not challenge these conclusions. Studdert J rejected the appellant’s application because his Honour held that there was prejudice to the first and second respondents; so the “just and reasonable” test in subs.60G(2) was not met. The proceedings before Studdert J and the Court of Appeal were conducted on the basis that the appellant satisfied para.60I(1)(a)(iii) by showing that the appellant was unaware of the connection between the personal injury and the respondents’ act or omission in that and because she was unaware of the negligence alleged. I feel that the implied assumption about the meaning of para (iii) may be susceptible of further consideration: the appellant was, of course, aware at all times that her hemiplegia and the surgery and treatment were connected, and the matter of which she was unaware was that negligence was a characteristic of the surgery and treatment, or that there were grounds for so alleging. As no issue of this kind has been raised or considered in the litigation at any stage I will not give it any further attention.

12 Legislation which authorises Courts to postpone time bars takes various forms and it may not be correct to apply to a decision under a s.60G reasoning which has been applied in a decision under some other provision of the Limitation Act1969, or some other legislation. Section 60G does not include a list of elements for consideration in any way like the list in s.60E, and in particular there is no provision like para s.60E (b) requiring a comparison between prejudice existing at the time of hearing the application and prejudice which existed during (and at the end of) the period when the applicant did not face any time bar. In the application of para 60E(b) it would not be correct to reverse its reading: it does not provide, by its express terms or by implication, that prejudice occasioned to the respondents by reason that evidence would not have been available if the proceedings had been commenced within the limitation period is not relevant, or that its importance is diminished, on an application to postpone the bar, and it does not provide that prejudice of that kind may be continued.

13 On the terms of s.60 G a comparison between the prejudice faced by the defendant at the time of the application and the prejudice which the defendant would have faced if sued at some time when the applicant faced no time bar is a consideration of no real weight, in my view. The question whether an extension is now just and reasonable does not involve any such comparison, and the consideration that, when evidence from some source is not available, the respondents would have been in much the same difficulty in defending proceedings which could have been brought at an earlier date is disposed of by the consideration that no proceedings were brought at the earlier date. That the respondent would have faced similar prejudice, without any remedy, from the unavailability of evidence in some other proceedings which were never brought is a poor reason, in substance no reason, in favour of imposing prejudice on the respondents now by an exercise of discretion. In the absence of a provision like s.60E(b), conformity with the statutory test requires an address to what is now just and reasonable, not to what might have been the respondent’s situation in events which did not happen. The whole circumstances relating to what is just and reasonable should be considered as they exist when the question is addressed. A similar view was taken in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548-9 (Toohey and Gummow JJ) and at 554-5 (McHugh J); but it must be said that the legislation there was unlike s.60G in form: it was much closer to s.60C without s.60E(b).

14 In Smith v. Morton [2004] NSWCA 84 the extension of time was sought under subs.52(4) of the Motor Accidents Act 1988. At [37] – [39] Hodgson JA said:

37 Turning to the substantive issues, I note that the legislature has, by its limitation legislation, drawn a line between cases that can be pursued to finality notwithstanding vicissitudes that may affect the availability of evidence, and those that can be pursued to finality only if a court is affirmatively satisfied that it is fair to the defendant to permit this. In the former class of cases, the death of a witness or loss of material evidence may raise difficulties for one or both parties; but this is generally entirely irrelevant to whether the case can be pursued to finality. In one sense, the loss of evidence through no fault of a party may make a trial unfair for that party; but in a broader sense, the trial is fair because the loss of evidence is simply the realisation of a vicissitude which could equally have affected either party, in the context of proceedings brought within the time prescribed by the legislature.

38 It is different where the loss of evidence has occurred by the time when a plaintiff seeks leave to commence proceedings after the expiry of a limitation period: in that circumstance, the loss of the evidence is not merely a realisation of a vicissitude that could equally have affected both parties to litigation proceeding in the normal way, but is a reality existing at a time when the plaintiff has a positive burden of showing that the trial would be fair to the defendant.

39 It is in my opinion consistent with that approach that, in considering applications for extensions of limitation periods, the Court does not look just at the prejudice caused by the passage of time from the expiry of the limitation period to the hearing of the application for extension, but at all prejudice caused by all delay from the time of the events under consideration: see Taylor at 548-9, 554-5. However, it is also consistent with this approach that the Court gives greatest weight to prejudice occurring after the expiry of the limitation period, and gives greater weight to prejudice arising towards the end of the limitation period than to prejudice arising earlier, which would have been suffered even if the proceedings had been commenced very promptly.

This was not said in the application of s.60G, and in my respectful view, the observation in the last sentence of [39] is not applicable to an application under s.60G. In my view there is no reason why, in the application of s.60G, the time at which prejudice arose should have any influence.

15 In her Notice of Appeal filed on 10 July 2003 the appellant stated the following grounds:

GROUNDS
1. The primary judge erred by not considering whether or not the prejudice asserted by the first and second respondents was such that it precluded a fair [trial].
2. The primary judge erred in holding that there was prejudice to the first and second respondents sufficient to reject the appellant’s application for leave, particularly in circumstances where
2.1 There was no, or no material prejudice affecting the question whether or not a craniotomy and third ventriculostomy should have been performed at all, rather than a shunt.
2.2 There was no, or no material prejudice affecting the question of whether or not it was appropriate to cease the craniotomy and third ventriculostomy operation once blood in the subarachnoid space had been detected.
2.3 There was evidence that the absence of the scans and films would not constitute sufficient prejudice to the first and second respondents which evidence the primary judge did not consider in his reasons for judgment or to which he did not afford any or any sufficient weight.
2.4 There was no or no material prejudice affecting the question whether or not the first or second respondents should have urgently evacuated the haematoma given the appellant’s then condition.
3. The primary judge failed to take into account the fact that the Second Respondent was responsible for the destruction of the scans and films.
4. The primary judge erred in failing to consider or considering sufficiently the evidence of Dr Fitzgerald on the question of prejudice.
5. The reasons for judgment of the primary judge fail to disclose what consideration if any the primary judge gave to the evidence referred to in paragraphs 2.3 and 4 above.
6. The primary judge should have granted an extension of the limitation period against the first and second respondents.

16 The appellant seeks orders that the appeal be allowed, an order extending the limitation period against the respondents, orders as to costs and ancillary orders.

17 The appellant was born in August 1946. The first defendant Dr Hamilton-Gibbs was her usual general practitioner from 1975 to 1982; it is her case that in that period she developed symptoms for which she consulted him and that he failed to afford adequate treatment. The second defendant Dr Durey is a general practitioner whom she consulted in 1982; she claims that he was negligent in his treatment of her and failed to refer her for appropriate specialist assessment. In September 1982 she was admitted to Orange Base Hospital; Dr Gordon, a consultant neurologist there, was of the view that there was evidence of raised intracranial pressure and that the appellant’s presenting condition was attributable to a tumour or hydrocephalus; he arranged for her to be transferred to Royal Prince Alfred Hospital (which is conducted by the second respondent) and there she came under the care of the first respondent Dr Besser. A CT scan of the head was performed on 23 September 1982 by Dr Lamond, a radiologist; Dr Besser saw the CT scan and also a report by Dr Lamond which was recorded in the clinical notes found at page 149 of vol. 1 of the blue appeal book. Dr Lamond’s notes include:

There is a very marked hydrocephalus present. I cannot identify the fourth ventricle and it seems to represent an obstructive form of hydrocephalus. The size and shape of the ventricles would suggest it has been present for a considerable time … I think that the signs indicate that the patient has aqueduct obstruction of long standing which is probably now more obstructed.

18 On operation on 28 September 1982 Dr Besser inserted a ventricular catheter by way of a frontal burr hole and a ventriculogram was performed. The catheter was left in situ allowing for drainage of cerebrospinal fluid. Dr Lamond reported on the ventriculogram in his clinical notes:

Metrizamide has been used. Aqueduct obstruction without deformity in the proximal 1cm of the aqueduct has been demonstrated. This indicates a developmental lesion. The 3rd ventricle is replacing pituitary tissue and expanding the fossa. The supra-pineal recess is huge.

19 On 30 September 1982 Dr Besser carried out a right frontal craniotomy and third ventriculostomy. At about the time of the surgery the appellant suffered a large, deep intracerebral haemorrhage away from the operation site. Studdert J found, for the purposes of the application, that the haemorrhage probably occurred because of the surgery. A further CT scan performed on 30 September 1982 was also reported on by Dr Lamond: “[t]here is now a very large right hemisphere intracerebral haematoma. It is extending through the parietal and posterior parietal areas causing mass effect and displacing and effacing most of the right ventricle.” On 12 October 1982 Dr Besser carried out a craniotomy to evacuate the haematoma.

20 Following these events the appellant was left with very severe and permanent disability, left-sided hemiplegia, which was expressed in her physical and neuropsychological functioning. In effect she suffered a stroke, and the many adverse impacts included collapse of facial muscles, adverse impact on hearing in the left ear, severe visual deficiency on the left side, restricted movement of left limbs and severely limited mobility. Associated with her physical disabilities were depression, confusion and disturbed concentration, with poor capacity for clear thought and decision-making. Her family life circumstances were disturbed and disrupted. She had further treatment and hospitalisation, including treatment for gall bladder and kidney stone problems, and in 1986 a ventricular shunt operation at Canberra Hospital.

21 The appellant did not think about or consider legal matters or the possibility of any legal action until, at a New Year’s Eve party on 31 December 1989, on a property near Young, a doctor and a law student who were at the party suggested to her that she should get legal advice to see whether she might have some kind of case against the doctors who had treated her prior to her admission to Royal Prince Alfred Hospital. She first saw a solicitor in Young in January 1990, and consulted her present solicitor Mr Billing, whose practice is not in Young, in June 1990. She has retained Mr Billing to conduct her litigation from that time onwards. She brought proceedings against the first and second defendants in 1992; those are not the present proceedings. Mr Billing sought the opinions of a number of doctors including Dr Gordon, Professor Dan and Professor Broe.

22 In 1995 the present proceedings were commenced, but again the first and second defendants were the only defendants. In September 1999, when an appointment for hearing on 14 February 2000 had been made, counsel briefed to appear for the appellant at the pending trial advised that an attempt be made to qualify Dr Grant, a neurosurgeon, for the purpose of the claim against the first and second defendants. Reports were obtained from Dr Grant dated 10 January and 8 February 2000. Dr Grant’s report of 8 February 2000 raised consideration of treatment which should have followed when the CT scan (on 30 September 1982) revealed the presence of an intracerebral haematoma. The hearing did not proceed in February 2000. Later Mr Billing obtained opinions from Dr Fitzgerald, a neurosurgeon who practices in California, dealing at considerable length, in question and answer form, with a number of matters put to him by Mr Billing. Dr Fitzgerald’s opinions first brought under consideration by the appellant, and in the year 2000, the views that the appellant should have been treated in September 1982 by a ventricular shunt and not by ventriculostomy, that the operation on 30 September 1982 should not have been continued with when blood was sighted and that an immediate procedure to evacuate the haematoma should have been carried out.

23 The particulars of negligence alleged in the Further Amended Statement of Claim against the first and second respondents are closely similar (see pp6-8 of vol.1 of blue appeal books). One difference is that particular (f) alleged against Dr Besser, which relates to failure to ensure that the servants or agents of the second respondent carried out a cerebral angiogram/arteriogram urgently on 30 September 1982, is not alleged against the second respondent, and a corresponding allegation against the second respondent speaks in terms of failing to carry out a cerebral angiogram/arteriogram immediately or urgently. There are other minor differences relating to alleged failure to evacuate the intracerebral haematoma at or shortly after 2 am on 1 October 1982; I will deal with them at a later point. The particulars of negligence which received close examination in the present appeal relate to three matters. One relates to the first respondent’s decision to treat the appellant’s hydrocephalus by carrying out a right frontal craniotomy and third ventriculostomy; the complaint is to the effect that the first respondent should not have followed this path, but should have treated the appellant’s hydrocephalus by way of a ventricular shunt (see particulars (a) – (c)). Another major matter relates to the conduct of the right frontal craniotomy and third ventriculostomy on 30 September 1982; it is alleged that the first respondent was negligent in failing to cease carrying out the craniotomy and third ventriculostomy on observing sub-arachnoid and/or subdural blood. Related to this is an allegation that it was negligent to have removed or failed to leave the ventricular drain in place (see particular (d)). There are also particulars of negligence relating to management of the intracerebral haematoma, the presence of which was established by the CT scan performed by Dr Lamond on 30 September 1982.

24 In the course of his judgment Studdert J said: (para.14 at p.13 of red appeal book)

14 This application was conducted by all parties upon the basis that the position of the third defendant and of the fourth defendant should be regarded as interwoven. All parties acknowledged that should the plaintiff succeed on this application for an extension of time against one of the two defendants, the plaintiff was entitled to succeed against the other. Conversely, failure against one defendant must mean failure against the other defendant.

25 In my view this fully explains there being no consideration by Studdert J of the particular of negligence alleged against the first respondent in particular (k): “[f]ailure to evacuate the intracerebral haematoma at or shortly after 2 am on 1 October 1982” which is alleged in the same terms against the second respondent under particular (j). This complaint was not pursued in evidence before Studdert J, although Dr Besser was cross-examined; it hardly could have been pursued as it was suggested that there was a brief window of opportunity of up to two hours at 2 am on 1 October 1982 to proceed to evacuate the haematoma and there was no basis on which to claim that Dr Besser was or should have been in attendance at 2 am on 1 October 1982, or that any arrangement could or should have been made under which that operation could have been performed in the circumstances. It is plain that the proceedings were conducted in such a way that Studdert J was not asked to consider a claim that the second respondent was negligent in this respect notwithstanding the first respondent’s not being involved in the events at and after 2 am on 1 October 1982.

26 Although Studdert J’s consideration of the evidence and the appellant’s claim for an extension of time was quite detailed, the grounds on which his Honour acted appeared shortly from the following passage: (para.84 of p.37 of red appeal book)

In my opinion, the third defendant has proved that there would be significant prejudice to him if this claim against him was now allowed to proceed.

27 In the judgment there was no conclusion adverse to the appellant’s application on any other significant test in Subdivision 3. It is clear that the appellant has a prima facie case of professional negligence suitable for adjudication and clearly supported by opinions of Dr Fitzgerald; Dr Fitzgerald’s reports were admitted in evidence by Studdert J over objection, and Dr Fitzgerald was not required for cross-examination and hence was not challenged on his opinions. It does not seem to me that the respondents were called upon to make out fully in evidence the respects in which they would challenge Dr Fitzgerald’s opinions; unless they were completely successful in showing that his opinions should not be relied on and should not be taken to trial, the position would remain that the appellant had shown, as she has, that she has a triable case of professional negligence. In any event the respondents did not make such a challenge. They took the course rather of showing the difficulties which they contend confronted them in going to trial on the issue of negligence. Under the terms of subs 60G(2) central issues are whether the Court should decide that it is just and reasonable to order that the limitation period be extended, and whether as a matter of discretion the Court should so order. Whether there can be a fair trial is a prominent consideration on these central issues, although that is not necessarily the only consideration, and it is for an applicant to obtain a decision that it is just and reasonable to order the extension.

28 When the nature of the issues and of the forensic contest is considered, there is no basis for the contention, made by the appellant’s senior counsel, to the effect that the principle in Browne v. Dunn (1893) 6 R 67 prevented the respondents from adducing evidence or making submissions inconsistent with Dr Fitzgerald’s opinions.

29 Studdert J found: (para.53 at p.26 of red appeal book)

A presumption of prejudice to the third and fourth defendant[s] would exist in this case by reason of the lapse of time since the expiration of the limitation period. This case concerns events that occurred in 1982.

30 It is correct that a presumption of prejudice exists in the circumstances, but that presumption of prejudice is not necessarily conclusive for decision on what it is just and reasonable to order. Of greater significance for Studdert J’s conclusions were matters put forward by the respondents with the object of showing actual prejudice in respect of the conduct of the trial. Although presumed prejudice arising from long delay is a very important consideration, to which Courts have recurred many times in considering applications for extensions of statutory time limits, something less than perfect procedural justice may be consistent with the conclusion that an extension of time is fair and reasonable. The availability of a fair trial is treated as an important consideration where legislation confers on a Court discretionary power to extend the limitation period. The concept of a fair trial is a relative one and the fair trial needs not be perfect or ideal; see McLean v SydneyWater Corporation [2001] NSWCA 122 at [27] citing Holt v Wynter (2000) 49 NSWLR 128 at 142 (Priestley JA).

31 The first respondent made an affidavit of 17 August 2000 in which he set out at length his state of knowledge and the difficulties before him. He was cross-examined on this affidavit. Studdert J accepted that his evidence was truthful and reliable. Passages in his affidavit which I regard as significant include the following: (p.1 of vol.4 of blue appeal book)

2. Limited recollection of plaintiff
2.1 I have a very limited recollection of the plaintiff and my treatment of her in 1982. I recall she was admitted to RPA and that prior to surgery I saw her. She told me that she was a Jehovah’s Witness and did not want to have any blood transfusions. I have a vague recollection that she was adamant about having no blood transfusions. I also recall seeing her husband from time to time at RPA and that ultimately she suffered left hemiplegia.
2.2 Otherwise my recollection of the plaintiff and her husband is vague.
2.3 I have not treated the plaintiff since her discharge from RPA on 18 November 1982.

32 The first respondent produced a copy of the hospital records which still exist relating to the appellant’s admission to Royal Prince Alfred Hospital. Some of the medical records, being those relating to 6 October 1982 were missing; I do not see any reason to suppose that the records of that day are of much importance. Dr Besser also said:

3.3 Various CT scans were performed upon the plaintiff during her admission and in particular CT scans were performed upon her on 23 September 1982, 30 [September] 1982 and 5 October 1982. Also an arteriogram/angiogram was performed upon her on 1 October 1982. Reports in relation to these procedures remain in the hospital records. However the film of all the CT scans (and in particular the abovementioned CT scans) together with the film of the arteriogram/angiogram performed upon the plaintiff on 1 October 1982 cannot be located, despite me undertaking enquiries to ascertain the whereabouts of this film.
3.4 From my experience in having worked at RPA since about 1980 I am aware that it is (and always has been) hospital policy for films of this type to be destroyed after 7-8 years. Accordingly, by reference to the hospital’s usual practice these films would not be in existence now.
4. The Significance of the Hospital Notes that Remain
4.1 I do not have any records relating to the plaintiff and my treatment of her whilst at RPA, or at all, apart from my dictated operation notes. In accordance with my usual practice at the time I would have kept no notes or other records with respect to the plaintiff and my treatment of her. There are no notes written by me in the remaining hospital records.

4.2 The hospital notes reveal that:

· on 28 September 1982 I performed a burr-hole and ventriculogram upon the plaintiff;

· on 30 September 1982 I performed a craniotomy; and

· on 12 October 1982 I evacuated an intra-cerebral haematoma.

I have no specific recollection of these operations. Each of these operations are referred to in the hospital notes and it is by reference to my usual practice, the hospital notes and my dictated operation notes that I can say these operations occurred.
4.3 The hospital notes also reveal CT scans were performed upon the plaintiff on 23 September 1982, 30 September 1982 and 5 October 1982. Reports of each of these CT scans are to be found in the hospital notes. By reference to my usual practice, at the time each of these CT scans were taken I would have seen the film thereof and interpreted these films myself. It is usual practice for neurosurgeons to view and interpret radiological film of this type themselves in order to determine the future management and treatment of a patient. I would also refer to any radiologist’s report as well although often I would need to interpret films of this type without the benefit of a report. My usual practice at the time was to always independently interpret such films in relation to my treatment and management of a patient. These films are no longer in existence.
4.4 Likewise the hospital notes reveal that on 1 October 1982 an arteriogram/angiogram was performed upon the plaintiff. In the hospital notes is a report of this procedure dated 6 October 1982. The film of this arteriogram/angiogram no longer exists. My usual practice at the time would have been to view the film immediately it was taken following these procedures and interpret them myself without the benefit of any formal report in order to determine the future management and treatment of the plaintiff. I would also have recourse to reports (if any) of the angiogram (if and when available). The records reveal that this angiogram conducted on 1 October 1982 was not reported on until 6 October 1982. The film of the angiogram however would have been available to me immediately after it was taken on 1 October 1982. I would not have waited until the report to make decisions about the future management and treatment of this patient. As outlined above with respect to CT scans, I would have independently interpreted these films immediately and had recourse to the report thereof when it became available (which appears to be on or about 6 October 1982). Also, it was not uncommon for me to speak with the performing radiologist (in this case Dr Lamond). In relation to these films (both the angiogram and CT scan films) I cannot recall whether I spoke to Dr Lamond.
4.5 From the hospital notes it appears the plaintiff suffered a large deep intracerebral haemorrhage in the right hemisphere but away from the operative site of 30 September 1982 (when a craniotomy and third ventriculostomy was performed) deep in the right parieto-occipital region. I had, and still have, no definitive explanation for the presence of the intracerebral haematoma.
There is one part of the hospital notes that indicates that perhaps the haematoma occurred prior to the operation of 30 September 1982. Also, at the time of my operation, according to the operation report, on opening the dura the brain had the appearance of a recent sub-arachnoid haemorrhage with some blood in the subdural space. I assumed this was due to the burr hole and the ventricular catheter placed two days earlier. There was also some oozing of blood in the sub-dural space which I could not really account for. Doing the best I can with the hospital notes, in my opinion, the haemorrhage probably occurred during the administration of anaesthetic for the operation of 30 September 1982 or during the operation itself or immediately afterwards. However, it may have occurred prior to the operation.
During the operation, the operation note records that I had some difficulty in perforating the floor of the third ventricle as it was so voluminous and the constant trickle of blood made visualisation difficult. I was concerned at the amount of blood about and worried it might block up the ventriculostomy opening. When the self-retaining retractor was removed, and the wound well-irrigated with saline as per the operation note, I could not really account for the ooze of blood into the operative field. Finally, in this operation note of 30 September 1982 I state:
I really had no explanation for this haematoma (referring to the abovementioned haematoma in the right parieto-occipital region) but can only think that there may be another co-existing lesion in the right thalamic region, perhaps accounting for both the hydrocephalus and the right haemorrhage … I propose doing a cerebral angiogram as soon as possible.
I have no memory of these matters. I am entirely reliant on the hospital notes in recounting this detail.
4.6 I cannot remember now whether there was any discrepancy between my examination and interpretation of the film of the angiogram/arteriogram conducted on 1 October 1982 and the written report thereon of 6 October 1982. Likewise I cannot now remember whether there was any discrepancy between the CT scan films interpreted by me and referred to in paragraph 4(c) of this Affidavit and the written reports with respect to these CT scans which remain in the hospital notes.
As outlined above, in cases such as this one, it was common for me to discuss my interpretation of CT films and angiogram/arteriogram films with the radiologist; and in particular in this case, it would have been quite common for me to discuss my interpretation of the angiogram film with Dr Lamond. I cannot now recall whether any such discussions occurred. If discussions did occur I cannot recall the content of these communications. Often discussions of this type can involve a difference of opinion between medical practitioners (such as myself and Dr Lamond) as to the interpretation of such films which could be important with respect to matters of management and treatment; and in this case, could impact upon decisions about when it was best to attempt to evacuate this intracerebral haematoma.

The report on the arteriogram/angiogram dated 6 October 1982 reveals no arterio-venous malformation although it did show that there were areas of segmental narrowing in the right vertebral and right middle cerebral arteries giving rise to the possibility of arteritis; although another explanation found in the report was a local phenomenon related to the intra-cerebral haemorrhage Dr Lamond’s report suggests the possibility of carotid and vertebral dissection leading to the segmental narrowing. This could have been a factor in the intra-cerebral haemorrhage with bleeding into an area of infarction secondary to distal embolisation. Even though the report on the angiogram reveals a number of abnormalities, it gives no definitive indication as to the cause of the haemorrhage.

33 Dr Besser’s affidavit also showed to the effect that the first time he would have had cause to recall the appellant following her discharge was when in May 1994 Mr Billing wrote to him, referred to the proceedings against Dr Hamilton-Gibbs and Dr Durey and asked for comments on some material which Mr Billing had obtained including a report from Dr Gordon, the neurologist who had seen the appellant at Orange Base Hospital, and a report by a psychologist. Dr Besser replied on 12 November 1996 answering a number of inquiries; he was then in a position, as he is now, to be precise about what was the nature of the procedures that he carried out, and his conduct of treatment was not under any challenge which called on him to state the reasons for and basis of each major decision he made. Among other things he said: (p.56 of vol.4 of blue appeal book) “[i]t would appear that the haemorrhage occurred either at the time of surgery or immediately afterward as an immediate post-operative CT scan demonstrated a haemorrhage.” He also dealt with Question 9:

9 Whether the shunt procedure may have lead been less likely to cause a haemorrhage than a ventriculostomy.
I have certainly seen intracranial haemorrhage occur as a result of a shunt procedure. As I have mentioned before subdural haematoma is the commonest intracranial haemorrhage but intracerebral haemorrhage along the tract of the ventricular catheter is a well recognised complication.

34 There was further correspondence soon after in which Dr Besser answered some further inquiries by Mr Billing. There was no hint at that point of time that any consideration had been given to criticising Dr Besser or making a claim against him; and indeed none had been. Mr Billing said “Mrs Fletcher has asked us to pass on her thanks to you for your treatment of her as she regards you as having saved her life and is most grateful to you for that.” It was not suggested to Dr Besser until about February 2000 that it was the appellant’s intention to commence proceedings against him.

35 In his affidavit Dr Besser went on to express the opinion, from the remaining hospital notes, that his management of the appellant was reasonable. In dealing with his not having all the hospital records, including the CT scans and film of the angiogram/arteriogram of 1 October 1982 he said: (p.9 at vol.4 of blue appeal book)

(c) I do not have all of the hospital records. The film of the CT scans are not available and especially those CT scans that would have been most relevant in the management of the patient from 30 September 1982 until 12 October 1982 being the scans of 23 September 1982, 30 September 1982 and 5 October 1982. Likewise the film of the angiogram/arteriogram performed on 1 October 1982 is not available. Reports are available in relation to each of these procedures. However reports of this type do not usually record in minute detail everything which appears on the film. The film could contain information not mentioned or referred to in the reports which was relevant to the value judgements made by me at the time in managing the plaintiff. Dr Lamond’s report on the angiogram suggests the possibility of carotid and vertebral dissection leading to segmental narrowing and this could have been a factor in the intra-cerebral haemorrhage with bleeding into an area of infarction secondary to distal-embolisation.
I cannot recall my process of reasoning at the time of seeing the angiogram/arteriogram films (and for that matter the CT scan films) in relation to the management and treatment of the plaintiff. I am unable to recall as to whether or not there were other features of these films not reported upon which influenced my management and treatment of the plaintiff. Also in relation to the matters reported upon I am unable to recall the weight I attached to each of the observations referred to in these reports. To a significant degree the weight I would attach to each observation contained in a report (eg the angiogram report of 6 October 1982 from Dr Lamond) would depend upon my own assessment of the film and of the patient.
Also in relation to the angiogram in particular I may or may not have had discussions with Dr Lamond. I certainly would have thought about the various implications/possible complications in the management and treatment of the Plaintiff arising from the CT scans and the angiogram – and in particular the angiogram. I don’t recall whether I discussed the film with Dr Lamond. I don’t recall what I said to him – nor what he said to me (if anything). I can’t recall if there was anything in the films that would have caused me to pause and reflect upon the best way of managing the patient.

36 Dr Besser also said: (p.10 of vol.4 of blue appeal book)

(d) Quite often in difficult cases such as this I would discuss the case with senior medical practitioners and/or my peers and in particular at that time I would have had such discussions with Drs John Segelov, Vanderfield, Ian Johnstone and Stan Lamond. Drs Segelov and Vanderfield are now deceased. The remaining doctors are retired.

37 Dr Besser also said:

(e) I cannot recall whether I considered the option of attempting to evacuate the haematoma within the first 7 days and in particular after reviewing the angiogram/arteriogram film.
This was a difficult case. I appear to have had no real explanation for the haematoma even after the angiogram film. As pointed out in the report by the neuro-radiologist Dr Lamond, it would appear that the cause of the right cerebral dissection shown in the angiogram film was not clear. It is suggested that this lady might well have had an underlying vascular disease and perhaps bled into an area of infarction secondary to distal embolisation.
It appears the haemorrhage occurred either at the time of surgery on 30 September 1982 or immediately afterwards. That is my present opinion from the records which were available as an immediate post-operative CT scan demonstrated the haemorrhage. Even so, the remaining hospital records indicate the plaintiff was drowsy prior to the craniotomy of 30 September 1982. I presently interpret that drowsiness prior to craniotomy as due perhaps to some over-drainage of CSF although it is not clear as to exactly how much CSF was drained. The colour of the CSF could have been influenced directly by the surgical effects of the burr hole. I cannot remember now the weight I attached to the possibility of the haemorrhage occurring prior to the craniotomy.
My present opinion (from the remaining notes) is that in all likelihood the intra-cerebral haemorrhage was most likely caused by sudden ventricular decompression. However, my present view is that this may have been only one of the factors involved as there was also some evidence of vascular dissection which may have influenced the haemorrhage.

38 After reviewing the difficulties of the case and stating a present opinion based on the information available Dr Besser said: “I am unaware as to my basis of reasoning at the time and the weight that I attached to each of these differential diagnoses with respect to my management and treatment of the plaintiff.”

39 Dr Besser went on to deal with the evolution of opinion and practice relating to surgical intervention. This part of his evidence was not reviewed by Studdert J.

40 In written and oral submissions senior counsel for the appellant showed the force of Dr Fitzgerald’s expressions of opinion, and the fact that there was no cross-examination of Dr Fitzgerald. In his first written report, dated 1 December 2000, which followed several telephone conversations with Mr Billing, Dr Fitzgerald said to the effect that in his opinion there was a lack of appropriate care in the neurosurgical management and treatment of the appellant’s condition during the period between 28 September and 12 October 1982 and said: (p.31 of vol.2 of blue appeal book)

29 (a) The treatment should have been a ventricular shunt, not a craniotomy and third ventriculostomy.
(b) An angiogram should have been done immediately following the CT scan as was suggested and required by Dr. Besser, then the intercerebral haematoma should have been evacuated shortly thereafter considering the patient’s clinical condition and considering the fact that the angiogram was normal.

41 In a further report dated 20 November 2001, Dr Fitzgerald reported to the effect that in his opinion the absence of x-ray and CT scan films was not of significance in the present consideration of Dr Besser’s decision in September 1982 to proceed by craniotomy and third ventriculostomy rather than by a shunt. He also reported: (p.78 of vol.2 of blue appeal book)

The fact that I have not seen the films of the CT scan and angiogram following the operation performed by Dr. Michael Besser on 30/9/82 does not change my overall view that was expressed in my reports dated 1/12/00 and subsequent. I formed those views from my detailed examination of the Royal Prince Alfred records in relation to Ms. Fletcher’s treatment by Dr. Michael Besser in the hospital, which included the reports of the CT scan and angiogram following the surgery for replacement of a third ventriculostomy on 30/9/82.

42 Appellant’s counsel contended to the effect that, in relation to the negligence alleged in not following the shunt procedure, but in embarking on treatment by craniotomy and third ventriculostomy, the absence of the films and CT scans, and the passage of time before the allegation was brought to Dr Besser’s attention, are irrelevant on the question of prejudice. The submission was “the third ventriculostomy was either an available surgical option or it was not”. It was submitted that none of the evidence given or called by Dr Besser showed that he was not able to respond to that contention and hence that there was no actual prejudice.

43 It was established by evidence of Dr Besser that Dr Lamond was eminent in the field of neuroradiology in 1982 and had special expertise in interpreting CT scans and radiological evidence; he was perhaps better skilled in interpreting them than Dr Besser (p44 of black appeal book). Counsel referred to evidence in cross-examination of Dr Besser on the circumstances in which he would have made some notation if he had disagreed with Dr Lamond’s interpretation as follows: (p57 of black appeal book)

Q. If it was major and would have affected the way in which you managed this patient, would you expect you would have made a note?
A. Yes.

44 Counsel also referred to evidence in cross-examination of Dr Besser on what might have been indicated by the CT scan dated 23 September 1982 which was available before Dr Besser embarked on surgery on 28 September 1982; evidence to the effect that the CT scan supported the decision to embark on the surgery, supported the view that the shape and size of the ventricles were suitable for performing a third ventriculostomy rather than a shunt and showed that other causes for hydrocephalus were excluded (pp71-72 of black appeal book).

45 Appellant’s counsel then submitted “it is not sufficient for the respondents to complain in a generalised manner that what might or might not have been shown on the films, to found a claim of prejudice, when the likelihood was that those scans did not contain information unavailable to the Court through the contemporaneous, and detailed, reports.”

46 It was also contended that the first respondent’s counsel had conceded, during the application for leave to appeal, that there was no actual prejudice that could effect the presentation of his case; I am satisfied, however, on reading the transcript of proceedings on the application for leave to appeal particularly in line 57 at pp.53-54 of red appeal book that there was no such concession.

47 Counsel also pointed out that Dr Besser’s evidence showed that in 1982 CT scans were quite poor in quality (p46 of black appeal book). It was further submitted that as relevant documents including hospital notes, Dr Lamond’s reports and Dr Besser’s dictated operation reports were available, Studdert J ought to have found that there was sufficient material available to the respondents to permit a fair trial to proceed; that is a fair rather than a perfect trial.

48 Dr Besser’s evidence explains the importance which the films had for decisions which he made during the course of treatment, and further shows that they would be very significant now if he were called upon to answer allegations of negligence, and in the course of doing so, to explain decisions which he made in the course of treatment. In my opinion it was correct of Studdert J to treat the absence of films as a very important consideration in relation to the question whether there could now be a fair trial.

49 With respect to the second principal criticism relating to Dr Besser’s continuing with the third ventriculostomy surgery after blood was observed, the appellant’s counsel contended: (para13 of p.6 of orange appeal book)

It is submitted that there can be no prejudice affecting the question of whether it was appropriate to cease the craniotomy and third ventriculostomy operation once blood in the subarachnoid space had been detected. Whether that amounts to a departure from proper standards or care can only be considered on an objective basis on the scenario as outlined in the operation findings by the first opponent at the time of the ventriculostomy.

The appellant’s counsel referred to a very firm and clear opinion expressed by Dr Fitzgerald. On 6 December 2000 Dr Fitzgerald by further letter added to or amended answer 29(a) in these terms: (p33 of vol.2 of blue appeal book)

The answer to 29a. is after having performed the craniotomy and noticed the subarachnoid and or subdural blood, Dr Besser should have concluded the procedure as is and not performed the 3rd ventriculostomy and also he should have left the ventricular drain in place.

50 In a report prepared and signed by Dr Besser on 30 September 1982 included in the hospital records, Dr Besser made a record of performing the operation. In the course of his description of the operation he said: (p.95 of vol.1of blue appeal book)

The dura was opened and to my surprise the brain had the appearance of a recent subarachnoid haemorrhage and there was some oozing of blood in the subdural space. I could not really account for this but assumed that it may have occurred when the ventricular catheter was placed. Nevertheless the brain was not really swollen and I proceeded with the operation after catheterising the ventricle and draining off some CSF. The latter was mildly blood stained.
Under magnified vision the right frontal lobe was retracted using the Granberg self-retaining retractor and the preoptic and optic cisterns were opened. The lamina terminalis which was greatly expanded and thinned out then came into view and was easily opened. The floor of the third ventricle could now be visualised as a thinned collapsed membrane. I had some difficulty in perforating this as the third ventricle was so voluminous and the constant trickle of blood made visualisation difficult. Nevertheless I was happy that I had made an opening into the interpeduncular cistern but I was concerned at the amount of blood about and worried that this might block up my ventriculostomy opening.
The self retaining retractor was removed and the wound well irrigated with saline solution. I could not really account for the ooze of blood into the operative field and I decided to close.

51 In the course of cross-examination Dr Besser’s evidence included the following: (p.60 of black appeal book)

Q. Would not the presence of blood when you opened the dura have caused you to have stopped to ascertain the extent of the haematoma and its whereabouts?
A. Look, I can’t remember my thoughts at the time but I saw some oozing of blood. I presume there wasn’t enough to stop me from carrying on with the operation but I can’t remember.
Q. Would you agree with me that if there was a subarachnoid haemorrhage, which you seem undoubtedly to have diagnosed, it was ill-advised to have proceeded further with the surgery that you embarked upon?
A. My interpretation was that it was due to the operation that was done two days earlier. The craniotomy was in the vicinity of the frontal burr hole and ventricular drain.
Q. But that doesn’t really answer my question. You might have known where you thought it was coming from but you had no idea of the precise nature of it, nor of its extent, did you?
A. I can’t remember my thoughts at the time, I just know that it wasn’t enough to stop me from proceeding.
Q. If there was a subarachnoid haemorrhage unchecked, that would have been regarded as a serious matter, would it not?
A. It depends what it was due to. If it was due to an aneurism or a vascular malformation bleeding, yes, I agree.
Q. Whatever the cause, if it continues, if you have got a subarachnoid which continues to bleed, that is always a cause for concern, is it not?
A. It depends on the extent of it. If it’s localised and due to trauma, then no, it’s not of concern.
Q. But as you proceeded – and without proceeding a great deal further – you were concerned about the amount of blood getting into the operative field, weren’t you?
A. I was.
Q. Wouldn’t that have caused you a great deal of concern at the time?
A. I think I was only worried about it blocking up the opening that I made for the ventriculostomy.
Q. I understand the concern but if you’re embarking upon a procedure which is likely to be compromised by the presence of blood flowing into the operative field, wouldn’t that have been a sign that you should have discontinued and revisited it later when you discovered the cause of the bleeding?
A. Yes, you could take that view.

52 In dealing with this Studdert J said: (p.36 of red appeal book)

82. It does not follow from the fact that the third defendant does not now recall why he proceeded with the operation that he did not perceive at the time that there was good reason for continuing with it. The third defendant is prejudiced by not now being able to recall why he chose to proceed.

53 It was submitted that the reasoning of Studdert J in this paragraph was incorrect and that his Honour should have addressed the question whether the decision to continue the operation by itself could on a reasonable view be said to be justifiable. It was said that this submission was supported by the last question and answer in the passage of cross-examination of Dr Besser I have set out. In my opinion this submission is not correct and the conclusion of Studdert J is quite a reasonable conclusion and well justified by the evidence. The last question and answer in the passage I have quoted are not, on any reasonable understanding, a concession by Dr Besser that the course he took was not justified or was not justifiable, or that he should have discontinued the operation. The question and answer did nothing to establish that if his mind had been brought to the subject at a time when recollection was still available he could not have dealt more fully or adequately with the course he took when blood was encountered during the operation; and they did nothing to establish that in those circumstances he would not have been able to explain fully or adequately the decision which he took to continue as far as he did. Dr Besser’s evidence explained from the beginning in his affidavit his difficulties in recalling the actual events, and his evidence in cross-examination, including the passage I have set out, to my mind illustrates his difficulties in a clear way.

54 It was also contended that no material prejudice ought to have been found in circumstances where Dr Besser did not indicate what his reasoning might have been at the time. I do not accept this submission, which is simply not accommodated to the difficulty presented by the circumstances that Dr Besser’s recollection and the CT scan films and arteriogram/angiogram film are not available. Dr Besser would, according to his evidence (which was found to be reliable), have looked at the films and formed his own judgment and would not have relied solely on Dr Lamond’s reports. In any event, all the considerations presenting themselves to him and his own thinking and analysis of them during the operation are not now available, to him or to anyone else. In the nature of the circumstances, he cannot show how he would answer this allegation of negligence if he were called upon to do so.

55 The evidence of Dr Besser shows that he is in no real position now to recall or explain in a full or clear way the events and circumstances which presented themselves to him in the course of the operation and which had a bearing on the course he took. His evidence also shows that there could well have been important observations, facts and circumstances available to him at the time, but no longer available. The passage of time and the unavailability of any recollection of the high detail of the circumstances of the operation at the conclusion are likely to render a trial of proceedings in relation to the allegations made against him unfair.

56 The films of the CT scans and Dr Besser’s understanding and interpretation on seeing them have not survived the long interval of time before the commencement of the proceedings. It is clear, both inherently and in the light of Dr Besser’s evidence which was found to be reliable, that they are both of great importance for presentation of any defence on a fair basis. Other sources of information about the events are available, including hospital notes, Dr Besser’s own operation reports and X-ray reports of Dr Lamond; and there are no notes such as Dr Besser would have made if he had differed with the X-ray reports in some major way which would have affected the way in which he managed the appellant. There is no basis on which the absence of the CT scans should properly be attributed to careless or unreasonable behaviour on behalf of the second respondent; they were not within the control of the first respondent. As the evidence of Dr Jones shows: (para.2(c) at p.3 of vol.5 of blue appeal books)

(c) the Hospital does not have in its possession any scans relating to the Plaintiff. So far as I can ascertain, the scans relating to the Plaintiff were destroyed after seven years in accordance with the Hospital’s usual practice.

57 There is no evidence establishing that the second respondent’s practice was not reasonable and I see no reason to think that it was an unreasonable practice, particularly before amendments to the Limitation Act 1969 in 1990 which conferred powers of extension on the Court. Even so, before 1990 it was possible for a person under disability to have longer, perhaps considerably longer than 6 years within which to bring proceedings. There are no circumstances particular to the appellant which should have prompted either respondent to give any attention to preservation of films or records by the time when the films were destroyed. There is no context in which criticism of the second respondent is available. The appellant of course bears no responsibility for the loss of the films. The films would have been available if she had brought proceedings within the ordinary limitation period of 6 years then prescribed by law. The absence of the films when she brought the proceedings is an objective circumstance for which default should be attributed to neither party; and Studdert J did not make any such attribution.

58 Dr Fitzgerald’s opinions were expressed with great firmness and clarity, not accompanied with much detail or circumstance. If accepted they would fully support claims of negligence with respect to choosing the treatment path which did not included the shunt, continuing the operation when blood was observed, and not undertaking evacuation of the haematoma immediately. His evidence would also show that the absence of films or other records of the CT scans, other than Dr Lamond’s notes, is not of great importance.

59 The appellant’s senior counsel contended that Studdert J had not fully addressed Dr Fitzgerald’s evidence and its implications and had made very few references to Dr Fitzgerald in the course of the judgment. It is true that arithmetically there were few references to Dr Fitzgerald while he and his evidence were plainly of great importance. Studdert J summarised Dr Fitzgerald’s views (See para.12 at p.12 of red appeal book). Dr Fitzgerald’s evidence and the strength of his views set the terms of the debate. I see there being relatively few express references as a reflection of the overwhelming importance of Dr Fitzgerald’s evidence, not of any kind of disregard.

60 Evidence in the report of Professor Fearnside tendered by the first respondent, supports the importance of seeing the CT scans when considering whether courses followed by Dr Besser were appropriate. Professor Fearnside said: (p.53 of vol.5 of blue appeal books)

…Without examination of the CT scan, it is very difficult to comment upon the reasonableness or not to proceed with an immediate and urgent evacuation of the haematoma on 30th September 1982.

61 Studdert J referred to evidence of Professor Fearnside which was to the effect that the description of the CT scan of 30 September 1982 in Dr Lamond’s clinical notes did not provide him with much information about how deep the haematoma was, and that the original CT scan would probably provide more information. Studdert J referred to the difficulty of qualifying an independent expert or experts to comment on the appropriateness of the procedure performed by Dr Besser, of his decisions relating to when to operate and of his appraisal of the circumstances bearing on that. Studdert J said: (para.83 of p.37 of red appeal book)

83. Both Mr Cranitch and Mr Ingram, in addressing the issue of prejudice, sought to minimise the significance of the missing films in the decisions reached and the procedures undertaken by the third defendant. For the reasons stated, I am not persuaded by those submissions. Moreover, as earlier observed, it is to be expected that the third defendant would seek to qualify an independent expert to express opinions bearing upon central issues in this cause if the matter was to proceed to trial. I referred earlier to the disadvantage any such expert would face, absent the films, when considering the appropriateness of the operation performed by the third defendant (see para 76 above). Moreover, any expert considering the allegation that the third defendant should have acted urgently to evacuate the haematoma would be disadvantaged by the absence of the films, consideration of which would have been relevant in determining not only whether the third defendant should have operated urgently, but whether had he done so the neurological damage could have been reduced, and if so to what extent. I am mindful in this regard of the evidence of Professor Fearnside considered earlier at paras 69-70.

62 The absence of the CT scan of 30 September 1982 was not a prominent consideration in Studdert J’s reasoning, although it did have some place. The bases of his Honour’s conclusion included the difficulty of Dr Besser supporting his view with the expert evidence of others. In my opinion this is quite an important consideration, bearing in mind the unqualified terms in which the opinions of Dr Fitzgerald were expressed. Somewhat surprisingly, in relation to such a subject as neurosurgery, Dr Fitzgerald presented his opinions in terms which are highly concrete and not open to consideration in relation to events emerging in the course of an operation, or otherwise in the course of treatment of a patient. When confronted with a case to this effect, the forensic need to support Dr Besser’s own opinion with the opinions of other experts who are in a position to express a view is quite important, and the absence of material which such experts would need to see is also quite important.

63 Accepting the appellant’s claim relating to disability for present purposes, she could have brought proceedings against the respondents at any time up to December 1996; and if she had done so, the respondents would have had to go to trial with all the disadvantages flowing from the unavailability of the films. The respondents were joined as defendants about four and a half years later than December 1996. For reasons which I stated at paras. [12] and [13], comparison between the position the respondents would be in if the proceedings were allowed to go to trial with the position they would have been in if the proceedings had been brought only four and half years earlier has no bearing on whether the grant of an extension is just and reasonable. Difficulties with which the appellant’s claim would have confronted the respondents if she had brought proceedings late in 1996 are not a useful index of comparison; she did not bring such proceedings, and she was not in a position to do so as she had no perception that she had any grounds.

64 Dr Besser himself in evidence strongly defended his decision with respect to the time at which it was appropriate to operate to relieve the haemorrhage. Dr Besser’s evidence shows the difficulties of his position in defending the allegations relating to the time of operating to evacuate the haematoma. Dr Besser’s oral evidence shows that he could not recall precisely the factors which influenced him in his decision about when to evacuate the haematoma; he says to the effect that he would have been influenced by discussions with senior colleagues. This body of evidence, which was accepted by Studdert J, shows that Dr Besser was unable to give evidence of the factors which operated on his decisions at the time, and shows, in clear way, that he was prejudiced, indeed disabled in attempting to defend this part of the appellant’s claim. The evidence also shows that the scan film of 30 September 1982 could contain information relevant to judgments made by him in managing the appellant.

65 The close attention given to the first respondent’s evidence of the prejudice he would incur at any trial has obscured some more general considerations. Quite apart from the particular difficulties proved by Dr Besser, more general considerations of prejudice arose from the great length of time, over 17 years, which passed before any indication was given that a claim might be made. The inherently adverse influences of the passage of such a long period of time, in relation to allegations of negligence of high detail and technicality, have a strong claim for consideration when deciding an application under s60G. The adverse influence of the passage of such a long time on the quality of the evidence available, and on the quality of the consideration which can be given to conducting the proceedings, should not be obscured by more detailed considerations, important as they are. Evidence shows that some leaders of the profession have left the scene; two very prominent neurosurgeons of those days, who were named in evidence as persons whom Dr Besser might have consulted have died, while others have retired. The whole exercise of reconstructing the state of the art and of knowledge in 1982 has become a difficult one. The absence of CT scan films and other records, after so many years, is itself a powerful illustration of the difficulties in the path of a fair trial. The simple absence of documents of such primary importance is a daunting difficulty for any endeavour to establish whether decisions made in September and October 1982 were reasonable. Records like that gain in importance as time passes, recollections are lost or become less reliable and persons who participated in the events become unavailable for enquiry.

66 The conclusions of Studdert J that there would be significant prejudice to Dr Besser if the claim against him were allowed to proceed, and that it had not been shown that a decision to extend the time was just and reasonable, are well within the range of conclusions which were available to his Honour. The conclusions had a basis in a strong demonstration of actual prejudice in evidence of Dr Besser, including passages which I have set out at length, which evidence Studdert J fully accepted.

67 His Honour’s having reached those conclusions is no indication at all, to my mind, that there was an error of principle, or any error at all, in Studdert J’s reasoning with respect to the haemorrhage and the criticism that there was a failure to operate to evacuate the haemorrhage soon after it was detected on 30 September 1982 and recorded in the CT scan, which showed a large haematoma deeply placed. In my opinion the conclusion reached by Studdert J was a conclusion reasonably available from the findings made by his Honour, which have not been shown to be incorrect. There is no error of principle in the conclusion reached.

68 Appellant’s counsel asked for leave to read further evidence, including affidavits of Mr Billing, solicitor for the appellant, and of Dr Fitzgerald, about the implications of records in nursing notes dealing with an event which occurred at 4pm on 27 September 1982, and of a nurse’s observation following the operation of 28 September 1982; the notes themselves were in evidence before Studdert J but it is said that the possible significance of these particular notes was first adverted to after an application had been made for leave to appeal. The relevance of the further material put forward would depend on there first being an amendment to the particulars of negligence. In my opinion this part of the material does not have and could not have any relevance to matters raised by the appeal unless and until the Court of Appeal were satisfied that there had been some error in the exercise of discretion by Studdert J, and that the Court of Appeal itself should embark on an exercise of the discretion. If those events happened, there would be occasion to address whether there should be an amendment of the particulars and whether the further evidence should be admitted. As appears earlier I am of the view that there is no occasion to address these matters.

69 There are also parts of the affidavits which have a claim of relevance under the existing pleadings; all of that material could and should, if the application had been conducted with reasonable diligence have been put in evidence before Studdert J. If that had happened the respondents would have had an opportunity to deal with it then. There must be some sound ground, or some good reason for admitting further evidence under sub.75A (7) of the Supreme Court Act 1970 and in my opinion none has been shown. A simple wish to expand the evidence on which decision is to be given is not enough. A claim to have a new insight on the implications of some evidence which was available and was tendered earlier will rarely be enough: decision will respond to the nature and importance of the insight. In my view leave to tender this further material ought not be granted. Notwithstanding that the requirement of special grounds in sub.75 A (8) does not apply, I am of the view that the Court of Appeal should not admit this part of the proposed further evidence.

70 In my opinion the Court of Appeal should dismiss the appeal with costs.

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Last Modified: 05/06/2004