Fletcher v Hamilton-Gibbs

[2009] NSWSC 124

CITATION:	FLETCHER v HAMILTON-GIBBS & ORS [2009] NSWSC 124
HEARING DATE(S):	25/09/07, 26/09/07, 27/09/07, 12/12/07, 13/12/07, 14/02/07, 19/03/08, 20/03/08
JUDGMENT DATE :	6 March 2009
JUDGMENT OF:	Adams J at 1
DECISION:	Application refused with costs
CATCHWORDS:	Limitation Act 1969 - earlier case refused extension - new particulars of negligence - whether can make new application or renew old application - extension of time refused
LEGISLATION CITED:	Limitation Act 1969
CATEGORY:	Principal judgment
CASES CITED:	Fletcher v Besser [2004] NSWCA 132 Nominal Defendant v Manning (2000) 50 NSWLR 139
PARTIES:	Joanna Wilhelmina Fletcher (Plaintiff) Peter Hamilton-Gibbs (First Defendant) Peter Durey (Second Defendant) Michael Besser (First Respondent) Sydney South West Area Health Service (formerly Central Sydney Area Health Service) (Second Respondent)
FILE NUMBER(S):	SC 12351/1995
COUNSEL:	L King SC/K Connor SC (Plaintiff) No appearance (First Defendant) D Villa (Second Defendant) D Davies SC/J Downing/P Rooney (First Respondent) S Kalfas SC (Second Respondent)
SOLICITORS:	Graham Billing & Co (Plaintiff) Carmody Crampton (First Defendant) Kennedys (Second Defendant) Tress Cocks & Maddox (First Respondent) Ebsworth & Ebsworth (Second Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 March 2009

12351/95 - FLETCHER v HAMILTON-GIBBS & ORS

JUDGMENT

HIS HONOUR:

Introduction

1 On 22 September 1982 Ms Fletcher was admitted to the Orange Base Hospital under the care of Dr Gordon, a consultant neurologist. Dr Gordon assessed Ms Fletcher as having symptoms of raised intracranial pressure attributable to a tumour or hydrocephalus and transferred her to the Royal Prince Alfred Hospital, conducted by the second respondent, the Central Sydney Area Health Service. At the hospital Ms Fletcher came under the care of Michael Besser, the first respondent and investigations revealed that she was suffering from hydrocephalus secondary to aqueduct stenosis. A CT scan was performed on 23 September which showed very marked hydrocephalus. There was a history demonstrating increased and, arguably, increasing intercranial pressure. On 27 September hospital records note an episode of unconsciousness and decerebration. On 28 and 30 September 1982 the first respondent carried out a right frontal craniotomy and a third ventriculostomy (for brevity referred to hereafter simply as a ventriculostomy). Shortly after commencement of the latter procedure blood was seen at the site but the procedure was nevertheless completed. Probably as a result of the surgery, Ms Fletcher suffered a large deep intracerebral haemorrhage away from the operation site. On 12 October 1982 the first respondent carried out a craniotomy to evacuate the haematoma. Ms Fletcher was left severely disabled with left side hemiplegia and, not surprisingly, suffered from a number of continuing major problems and disabilities in the years that followed.

2 Ms Fletcher commenced proceedings in 1992 against the first defendant, Peter Hamilton-Gibbs and the second defendant, Peter Durey, in 1992. These defendants were her general practitioners. Ms Fletcher alleges that they did not treat the symptoms, which she was then exhibiting, that were related to her brain problems. Following investigations made by her solicitor Mr Billing, which were much delayed, Ms Fletcher sought to commence proceedings against the first and second respondents upon the ground that her treatment in the hospital and by Dr Besser was negligent. It was alleged that the negligence comprised treating Ms Fletcher in September 1982 by way of a ventriculostomy rather than by inserting a ventricular shunt (the choice of operation case), on 30 September 1982 Dr Besser continuing with the operation once blood was sighted (the continuation of operation case) and failing to immediately evacuate the haematoma that later developed (the haematoma evacuation case).

The applications to extend the limitation period

3 It was necessary that Ms Fletcher obtain an extension of the limitation period which had by then long since expired and, for that purpose, a notice of motion was filed in this Court on 4 February 2002 seeking the relevant orders (the earlier proceedings). Studdert J concluded that the extension of time should not be granted and, on 1 October 2002, dismissed the notices of motion. In substance, Studdert J found that, in the events that happened and given the effluxion of time, it would not be just and reasonable to permit the proposed trial to proceed. On 4 May 2004 the Court of Appeal dismissed an appeal from his Honour’s judgment: Fletcher v Besser & Anor [2004] NSWCA 132.

4 Sometime in September 2003, whilst going through the evidence in preparation for the appeal, Mr Billing noticed an entry in the cerebral observation chart that Ms Fletcher was decerebrate and had lost consciousness at 4pm on 27 September. Although he had read these notes before, this particular entry now struck him as being potentially much more significant than he had earlier realised. He brought it to Dr Fitzgerald’s attention and asked about it. Dr Fitzgerald said that he had overlooked this entry when he had considered the hospital records for the purpose of giving an opinion about the adequacy of Ms Fletcher’s treatment in the hospital at Dr Besser’s hands. He gave an explanation (which was rather reconstruction than recollection) as to how this might have occurred, derived at least in part, from the misplacement in the correct order of a page of the case history notes. He also overlooked what he now regarded as another significant piece of evidence, namely the positioning of the burr hole for the ventriculogram which demonstrated, he said that Dr Besser was always going to undertake a ventriculostomy. Although it is difficult to accept, having regard to the detailed examination of the hospital records Dr Fitzgerald necessarily undertook when giving his initial opinion and evidence, that he overlooked what is now said to be a very significant symptom, I am minded to do so. It is one thing to read something and quite another to appreciate its significance, especially if (as it were) one is on the hunt for something else. One must allow for ordinary human failings: even Homer nods. At the same time, the rules that distinguish between fresh and new evidence exist for perfectly sensible reasons of policy and justice. Here, it is incontestable that the evidence was available at all material times and reasonable diligence would not have overlooked it.

5 When Dr Fitzgerald reconsidered the course of the plaintiff’s care in light of the now appreciated entries, he opined that the hospital and Dr Besser were negligent in other respects than those which he had earlier identified. Ms Fletcher now wishes to sue for that other alleged negligence and, on 10 October 2005, filed a further notice of motion (now an amended notice of motion dated 5 December 2005) seeking an extension of time to enable her to do so. On the her behalf it is argued that the case now sought to be established is significantly different from that considered by Studdert J, so that the prejudice thought by his Honour as having arisen and which led to his refusal of the previous application was no longer applicable. It is further contended in substance that, if a fair trial of the second case can be had, the old case in some respects should also be tried given, as I understand the argument, the connecting features of the relevant events. An additional argument is advanced justifying an extension of time to try the whole of the old case on the ground of some additional evidence that was given in the present proceedings which, it is submitted, showed that a critical factual conclusion underlying Studdert J’s refusal of leave was incorrect.

6 The case now sought to be brought against the hospital and Dr Besser (the second case) is that attempts to relieve the intercranial pressure suffered by Ms Fletcher by inserting a drain should have been undertaken as soon as the CT scan confirmed aqueductal stenosis, certainly by 24 September 1982, that further investigations should have been carried out following the loss of consciousness and decerebrate events on 27 September, that no surgery should have been attempted on 30 September and a shunt rather than a ventriculostomy should have been performed on 30 September. The first three allegations of negligence are related and may be termed the failure to drain case. It will be seen that it is also sought to resurrect the choice of operation case, this principally on the basis of evidence given by Dr Besser that, it is contended, differed markedly from that given by him before Studdert J or otherwise that the circumstances are so linked that, if the second case is allowed to proceed, the old case should be also permitted. Insofar as the hospital is concerned, its negligence either arises from the failures of its staff to bring relevant matters to Dr Besser’s attention or Dr Besser’s alleged failures.

7 The respondents concede that there is a prima facie case of negligence against them but, of course, this is not to suggest that, on a fair trial, negligence will actually be found. In substance it is argued that, in the circumstances, a fair trial cannot now be undertaken.

The significance of the earlier proceedings

8 As is obvious, it is not easy for a party who has once been unsuccessful in respect of an interlocutory application to obtain a favourable result on a second application made on substantially the same grounds. In this case, Studdert J had decided that the negligence particularised in the statement of claim as it stood at the time of his consideration of Ms Fletcher’s application for extension of time raised matters for determination in respect of which the prejudice against the first and second respondents was such that the trial would not be fair. Ms Fletcher deals with this problem in three ways: firstly, it is contended on her behalf that further material has come to hand which raises new allegations of negligence in respect of the litigation of which the matters held by Studdert J to be prejudicial are of no or relatively little significance; secondly, it is contended that, because the first respondent changed his stance in relation to one aspect of the prejudice found by Studdert J, what was considered by his Honour to cause unfairness can now be seen as not doing so; and thirdly, if the second case is to proceed, the evidence as recently interpreted that supports it reflects also on the choice of operation question and the balance as perceived by Studdert J (and approved by the Court of Appeal) is varied sufficiently for a trial on that question to be seen as able to be fair.

9 The significance of a prior determination on an application for extension of a limitation period was discussed in Nominal Defendant v Manning (2000) 50 NSWLR 139. In that case, the plaintiff applied under the Motor Accidents Act 1988 for leave to commence an action out of time for damages for injuries suffered in a motor vehicle accident. That application was dismissed. The plaintiff then made another such application to another judge which was supported by evidence that was available at the time of the earlier application but, as it happened, was not presented. The second application succeeded although certain heads of damages were excluded from the permitted claim. In substance, the first application was refused upon the ground that the delay had not been sufficiently explained. Amongst the material presented in the second application was what the judge found constituted a full and satisfactory explanation for the delay and his Honour went on then to consider whether it was fair and just that the leave sought by the application should be granted. He thought it should be granted in some respects.

10 The unsuccessful defendant appealed to the Court of Appeal contending that, in principle, the second application should have been dismissed because it was supported by new evidence which with due diligence should have been put before the judge in the first application and there was no evidence of any change of circumstances between the making of the two applications. Foster AJA, after a view of the authorities, concluded that, although it was right to severely criticise the failure of the plaintiff’s legal advisers to produce evidence explaining the delay in the first application, the making of the second application which included that material should not be regarded as constituting an abuse of the Court’s process and went on to say (50 NSW LR at 167) –

“[123] … It was not necessary [in order to admit and consider the fresh evidence] that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour’s discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view…apparent…that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant’s interests could be protected by an appropriate costs order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course.
[124] I should add that, in my opinion, no additional fact was demonstrated in the present case which could cause the second application to be an abuse of process. It was not simply a repetition of the previously failed application. It was, quite clearly, a genuine endeavour to repair the deficiencies in the first application. It was not a case of ‘hawking’ the application from judge to judge in a search for a successful outcome. It may be noted, of course, that it was only a second application. A third application following upon two previous failures might well enter the area of abuse of process.”

His Honour then went on to consider the question of prejudice, rejecting the appellant’s contentions in this regard. The question of prejudice is very much in issue in this case and it will be necessary to deal with it in due course.

11 In dealing with the issues arising from the repetition of the application for leave to institute proceedings, Heydon JA said (50 NSWLR at 154) –

“[67] … A second application without additional evidence would smack of judge shopping and be unlikely to succeed. If at a second interlocutory hearing new evidence is called which could have been called earlier, the absence of a satisfactory explanation for the failure to do so is a factor increasing the risk of dismissal. Another relevant factor would be whether in the second hearing the court was invited to revisit questions of law which had been fully argued. Yet another relevant matter would be whether in the second hearing the court was being invited to reopen factual matters investigated in and decided after cross-examination in the first. However, in Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 139 at [9] Bryson J said:
‘… The need for maintaining finality and preserving the understanding of litigants that there is finality of hearings at which the merits are determined and a judgment is given is less pressing in interlocutory appeals.’
That point of view in relation to appeals is preferable to the position enunciated thus by Hayne JA in relation to interlocutory hearings at the primary level in D A Christie Pty Ltd v Baker [1996] 2 VR 58 at 602:
‘Respondents to applications under s 23A are as entitled to the final and certain determination of questions relating to extension of time for commencing proceedings as they are to the final and certain disposition of any action that may be instituted against them.’
Respondents have a very strong entitlement to finality once a trial on the merits has occurred and all appellate processes are exhausted, and their entitlement is protected by the various doctrines related to res judicata . But their entitlement to finality is less compelling in relation to applications to extend time with a view to ensuring a trial on the merits in due course.
[68] Bryson J noted in the case before him that Ms Fletcher had not filed any affidavit in the hearing before the Master. He continued (at [11]):
‘Where something of such glaring and primary importance as Ms Fletcher’s own account of her use of time has been omitted, confidence that the proceedings have been disposed of on a just basis cannot be very strong. The sense that there may well have been a miscarriage of the proceedings, even one for which Ms Fletcher or those advising her are the only persons who bear responsibility, appear so strong as to favour admitting her evidence now that it is belatedly brought forward. It is not appropriate to allow procedural mismanagement to have unduly serious consequences, although finally they can be so extreme as to merit closing out a party from consideration.’
The same principles are applicable where the question is whether a second interlocutory application should be permitted after the first one has failed.
[69] In Meddings v Gold Coast City Council [1988] 1 QDR 528 at 529, Macrossan J said there was a right to make a second application to extend limitation periods, but did not say what discretionary factors were relevant, and (at 536) McPherson J said of Ms Fletcher in that case:
‘There is in theory nothing to prevent her from making another such application on the same or similar material, even in practice such an application would almost certainly fail.’”

12 Heydon JA went on to deal with the relevant discretionary considerations (50 NSWLR 156-7) –

“[72] Nothing in the above reasoning…is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in the second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky … [a] litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) – the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs – and others – damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily – are evils which each court in its individual discretion will rightly strain to avoid.
[73] But the risk of the evils must be balanced against all of the circumstances of the case relevant to whether it is fair and just that leave should be granted, and in particular whether a trial which is just and fair for all parties can be held. It must be remembered that the present context concerns the issue of whether an Ms Fletcher for an extension of a limitation period will ever be able to have the case considered on the merits: failure in the application will prevent any judicial examination of Ms Fletcher’s substantive claim, which may in turn have catastrophic consequences for Ms Fletcher and Ms Fletcher’s family… Further, while in Henricks v Agsecond (1997) 26 MVR 277 at 286, this Court questioned whether Ms Fletcher’s blamelessness for delay was relevant on the issue whether a just and fair trial was possible, it would appear to be relevant to whether a second application to extend time should be permitted in the sense that blameworthiness would tell against Ms Fletcher and blamelessness may tell in favour of Ms Fletcher. Thus the reasons why the first application failed may have nothing to do with Ms Fletcher personally: Ms Fletcher’s legal representative may have been incompetent, or may have been ill or unavoidably absent; a vital witness may have been prevented from attending or may, contrary to all legitimate expectations, have failed to attend or to come up to proof; evidence may have been rejected because of defective service which was not the fault of either Ms Fletcher or Ms Fletcher’s legal representative. The possible factors which might cause failure in the first application but which might be capable of remedy in a second are wide in range. The position for which the Nominal Defendant contends must be rejected because it does not allow for an evaluation of any of them…”

Mason P concluded that, to the contrary, Ms Fletcher was guilty of an abuse of process in making a second interlocutory application.

13 Ms Fletcher now seeks to extend time to commence proceedings resting on allegations of negligence differing (with one exception) from the allegations sought to be brought forward in the earlier proceedings. These allegations are not merely different characterisations of the same acts or omissions but different acts or omissions. The evidentiary basis for the second case is contained in the hospital material that was relied on for the earlier case and was the subject of extensive evidence before Studdert J. The material upon which the second case relies (I accept) was either not seen or not understood and hence did not form part of the case considered by Studdert J. Ms Fletcher, however, did not completely give away the contention that the earlier case should be reconsidered either on its merits alone or because, if Ms Fletcher succeeds in persuading me that she should be entitled to litigate the present case, it is contended that there is no good reason for not permitting her to obtain a reconsideration of the question whether the first case should also be litigated providing, of course, that she is able to establish that the defendants can have a fair and just trial. To this (ancillary) contention Ms Fletcher now adds that, in giving evidence in the present proceedings Dr Besser conceded matters which he had denied in the earlier hearing or, at least, which Ms Fletcher was unable to prove in that hearing and that this constitutes an additional ground for permitting her not only to re-litigate the case made before Studdert J but to succeed in obtaining an extension of time enabling her to litigate her first case. It is therefore necessary to deal, in some detail, with the case made before Studdert J and the evidence led before him, to contrast that case with the case presently made and the two sets of alleged acts and omissions which, it is contended, provide the bases for the two cases for negligence now sought to be brought forward.

The first case

14 The particular events forming the basis for allegations of negligent care were as follows. The CT scan of Ms Fletcher’s head performed on 23 September 1982 demonstrated a very marked hydrocephalus due to aqueductal stenosis. On 28 September 1982 Dr Besser either himself inserted or supervised the insertion of a ventricular catheter via a frontal burr hole and a ventriculogram was performed confirming the diagnosis. The catheter was left in situ allowing for the drainage of CSF. On 30 September 1982 Dr Besser carried out a right-frontal craniotomy and ventriculostomy. This is a procedure which allows drainage of CSF from the ventricles into the subarachnoid space which decompresses the ventricles and therefore returns intercranial pressure to normal.

15 At about the time of the surgery, and (as Studdert J found) probably because of it, Ms Fletcher suffered a large deep intra-cerebral haemorrhage away from the operation site. On 12 October 1982, Dr Besser carried out a craniotomy to evacuate the haematoma. Ms Fletcher was left severely disabled with left-sided hemiplegia. Her case was that these subsequent neurological deficits were caused by the cerebral haemorrhage which caused dangerously raised intercranial pressure and required urgent surgical drainage. Ms Fletcher’s case, supported by evidence from Dr Fitzgerald, a neurosurgeon practising in the United States of America was, in essence, that Ms Fletcher should have been treated in the first instance by the use of a ventricular shunt and not by ventriculostomy, that when Dr Besser sighted blood shortly after the operation on 30 September 1982 began, he should not have continued with the ventriculostomy and that as soon as the haematoma had been observed, it should have immediately been evacuated. It appears that Dr Besser had stated that the cause of the haemorrhage, though unclear, was probably due to sudden ventricular decompression.

16 Generally speaking, a shunt procedure is less likely to cause a haemorrhage than a ventriculostomy. Studdert J found and, it seems to me if I may say so with respect, rightly, that material provided by Dr Fitzgerald is sufficient, though perhaps barely, to establish for the purposes of the extension application that Ms Fletcher’s case was capable of establishing negligence in Dr Besser and the hospital. The evidence of Dr Besser before Studdert J was, as summarised by his Honour, (see [2002] NSWSC 899 at [60] ff) that the anatomy of Ms Fletcher’s ventricular system would have influenced his decision as to the type of surgery to be undertaken. The size of the ventricles and their shape, especially that of the third ventricle, were of crucial importance. It is true that Dr Lamond’s report described the size and shape of the third ventricle as enlarged but not how large it was. The larger the ventricles, the more favoured would be ventriculostomy over a shunt. This is plainly a matter for nice surgical judgment.

17 Another relevant distinction – although not, I think, material to the radiology – is that a shunt, because it is permanently inserted in the patient’s brain, is subject to various mechanical complications over the patient’s lifetime whereas a ventriculostomy had the substantial advantage of healing the condition without a permanent artefact in the patient’s head. Dr Besser agreed that a ventriculostomy has a higher initial risk but had the countervailing advantage to which I have referred.

18 The second surgical issue arising from Dr Fitzgerald’s opinion concerned the need to evacuate the haematoma as soon as it was detected. The CT scan carried out on 30 September 1982 and reported on in Dr Besser’s own notes, showed the presence of a large, deep, intra-cerebral haemorrhage in the right hemisphere, away from the site of the operation and deep in the right parieto-occipital region. The scan was followed by an angiogram on the following day. The CT films, again, are now not available. Studdert J accepted Dr Besser’s evidence that he could not recall why he did not immediately attempt to evacuate the haematoma but there were a number of reasons why such a postponement would have been appropriate. Firstly, the surgical evacuation was scheduled for 7 October 1982 (namely, five days before it was actually undertaken) but was postponed because Ms Fletcher had a fever. Dr Besser said that, at the present time, he would have been inclined to wait ten days at all events to enable to bleeding the solidify but he is unable to recall what reasons he had at the time for not acting earlier. He said, and Studdert J accepted (as, for that matter, do I) that he would have been influenced in the decision that he made on 30 September 1982 not to immediately evacuate the haematoma by the films that had been taken on that day. The medical issues created by the presence of the haematoma, which I have briefly described as coming from Dr Besser’s evidence, were confirmed in some greater detail by Professor Fearnside. Professor Fearnside, in his evidence, unfavourably contrasted the report on the CT scan with the information available from an actual examination. Studdert J accepted that in respect of this second issue of negligence, the CT scan films of 30 September were important in considering the timing of the operation and the prospects of the procedure hence since as to both of these issues the size and location of the haematoma were of particular importance.

19 The third issue was the continuation of the ventriculostomy despite observation of oozing blood. Here, the problem for Dr Besser was, in substance, that he simply could not recall why he continued with the operation despite seeing the blood. All he could say was that he thought it right to continue with the procedure.

20 Although there are other matters of prejudice alleged by Dr Besser – and by the hospital as it happens – the principal demonstrated prejudice (as distinct from presumptive prejudice) was, as I read Studdert J’s judgment, the absence of the CT films. I should mention that it seems to be accepted that Dr Besser’s practice in difficult cases (and there is no doubt that this was a difficult case) was to discuss them with senior specialist colleagues he identified as Dr Segelov, Dr Vanderfield and Dr Johnstone. Dr Besser did not recall whether he did so, but it may easily be accepted, I think, that it was likely that he did. Dr Segelov and Dr Vanderfield had long since died whilst Dr Johnstone had retired. At all events, it would be most unlikely that these doctors – were they able to give evidence – would now have any recollection of this particular matter. This is rather an illustration of the problem of presumptive prejudice though it is nonetheless real and, I think, significant.

21 A much more comprehensive account of the evidence is given in the judgment of Studdert J and also in that of Bryson JA in the Court of Appeal: Fletcher v Besser & Anor [2004] NSWCA 132. I do not think it is necessary for present purposes for me to repeat that material or to expand on it.

22 In brief, Studdert J considered that the absence of the CT films significantly disadvantaged Ms Fletcher’s defence and that this, together with the ordinary failures of recollection, the inability to obtain evidence of contemporary consultations with colleagues and inform present experts sufficiently to enable convincing opinions to be given on the correctness of the decisions made by Dr Besser as to the treatment of Ms Fletcher, precluded acceptance of the contention that a trial of the case against him or the hospital could be fairly conducted. The Court of Appeal came to the same conclusion.

The present case

23 As summarised by counsel on Ms Fletcher’s behalf, the present claims of negligence against Dr Besser are –

(i) he should have inserted a drain as soon as possible after the CT scan was performed on Thursday 23 September; and
(ii) he should have had further investigations carried out on and after Ms Fletcher lost consciousness and became decerebrate around 4pm on Monday 27 September.

24 The hospital is vicariously liable for Dr Besser’s negligence, if any, and may be additionally negligent if (as seems likely) the decerebrate event was not brought to Dr Besser’s attention.

25 As I understand it, it is contended on behalf of Ms Fletcher that it should have been appreciated that the raised intracranial pressure was causing acute symptoms requiring immediate relief and steps to drain the CSF should have been taken as soon as the CT scan was examined on 23 or 24 September. This first significant drainage would have reduced the size of the ventricles, including the third ventricle, which needed to be kept large for a ventriculostomy, which could not then have proceeded. Since the haematoma, it is accepted on all sides, resulted in all likelihood from the ventriculostomy, it would not have occurred had that operation not taken place and thus the major consequential injury would probably have been avoided. (I interpolate that this seems to raise a distinct problem of causation but I need not deal with it, in light of my view about the proper outcome of the application.)

26 Whether the line of reasoning which, as I understand it, Ms Fletcher wishes to litigate, is persuasive, it seems to me that, on the evidence of Dr Fitzgerald, it is at least arguable. It will be seen, however, that one aspect of the case rests upon the hypothesis that Dr Besser was aware of the decerebrate event. I have concluded that, in all probability, this was not brought to his attention and I do not understand it to be submitted that it was negligent for him not to have personally examined the chart if he was not informed of any problem. If it is a crucial step in Ms Fletcher’s second action that Dr Besser knew or ought to have known of the decerebrate event, this must impinge upon the assessment of the prima facie case of negligence. So far as the hospital is concerned, if it be probable that the information was not conveyed to Dr Besser, and it was important (or probably important) in the sense for which Ms Fletcher contends, then the case of negligence against it is obviously strengthened. However, this rather depends on the inferences fairly available from the hospital notes and an assumption as to their completeness and reliability.

The hospital records

27 The second case is, in substance, that Ms Fletcher required emergency rather than emergent treatment and thus attention has focused on the signs and symptoms, not only in the history she gave as to her condition before admission but also to the observations made at the hospital, in particular those noted in the cerebral observation chart. In this section I deal with the records in a general way. When I deal with the second case in detail, it will be necessary to mention other matters disclosed in the records upon to which particular reference is made in evidence or in the submissions.

28 On 20 September 1982, Ms Fletcher was referred by her general practitioner to Dr Wylie, a specialist gynaecologist, who referred her to Dr Gordon, a consultant neurologist in Orange for neurological management. She was admitted to Orange Base Hospital on 22 September 1982. Dr Gordon thought that there was strong evidence of a frontal tumour and made arrangements for her to be transferred to Royal Prince Alfred Hospital under the care of Dr Besser for further neurological management. Dr Gordon’s report concluded –

“I felt that she had evidence of raised intercranial pressure and in view of the symptoms and physical signs I felt it most likely she had a parasagittal frontal lobe tumour or alternatively a posterior fossa lesion with hydrocephalus. I felt in view of the rather long history and the accompanying urinary incompetence a frontal lobe tumour was more likely. I discussed her case with Dr Michael Besser a neurosurgeon at Prince Alfred Hospital in Sydney and I commenced her on Dexamethasone and arranged for her transfer to Sydney …”

29 The outpatient notes of the hospital show that Ms Fletcher arrived at 12.30pm on 23 September 1982. A note on the clinical record shows that, when she was admitted, Ms Fletcher was vague, oriented and emotionally labile. She was thought to be mildly dysarthric and examination of the optic fundi confirmed the presence of bilateral papilloedema. Power in her arms was normal but there was a mild weakness of hip flexion in the legs. Reflexes were brisk and had been identified by Dr Gordon and her plantar responses were flexor. She had an ataxic gait. A CT scan of Ms Fletcher’s head was undertaken on 23 September 1982. It was reported on by the radiologist, Dr Lamond, as follows –

“The examination has been performed with and without contrast. 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. The posterior fossa slices show well-marked artefact and are less than perfect but I cannot identify any posterior fossa lesion. A foramen magnum slice shows some high density in the inferior part of the medulla but it is not reproduced elsewhere. I do not think that it represents haematoma. I think that the signs indicate that the patient has aqueduct obstruction of long standing which is probably now more obstructed.”

30 When Ms Fletcher came into hospital she was initially seen by Dr Caldwell who took a history and conducted an examination. His notes form part of the hospital record. It appears that following his neurological examination, Dr Caldwell formed the impression that Ms Fletcher was suffering from a cerebral tumour and queried the presence of a low lesion with a blocking of the ventricular system. Having formed this impression his note says, “For CT scan” and blood tests. This next page shows the apparent outcome of those tests which had been noted by Dr Caldwell. It is following these notes that a treatment plan is set out. Again, Dr Caldwell signed off on the notes. There is then a reference to his taking a measurement of Ms Fletcher’s head circumference and that she should undergo an eye examination. This also is signed off once more. It seems certain that the measurement of Ms Fletcher’s head circumference was made at the request of Dr Besser but, of course, it does not follow that Dr Besser had seen Ms Fletcher by this stage. It is, I think, very likely that the notes of the blood results, the plan, the head circumference measurement and eye examination were made on 23 September though the page itself is undated. Dr Besser thought it likely that those events occurred on 23 September. Dr Besser agreed that a junior doctor in Dr Caldwell’s position would not have formulated the plan without discussing the patient with him. Furthermore, Dr Besser inferred from the reference to the head circumference which was of interest to him but would have been of no interest to Dr Caldwell, that it had been done at his request and, he thinks almost certainly, he would have seen Ms Fletcher on the 23rd. Furthermore, he thought that he would have seen the CT scan by that time because he would have needed to look at the scan to indicate the plan which was noted by Dr Caldwell.

31 The notes do not mention Dr Besser as having seen Ms Fletcher on that day but I think it is more than likely that he did. This is for two reasons. The first is that Dr Besser had already discussed with Dr Gordon the circumstances of Ms Fletcher’s admission, was therefore aware that she was coming in and, as he said, his usual practice in those circumstances was to see the patient at an early stage to give some assurance to the referring doctor that the patient was being properly looked after. Secondly, there is a note on the record of the circumference of Ms Fletcher’s head. It is the unusual nature of this examination which persuades Dr Besser that it was done by him though possibly at his direction.

32 The notes refer also to a three-step treatment plan, namely, the transfer to the operating theatre on the following Tuesday for a burr hole to be made, in the afternoon an isotope study to be undertaken and on Thursday “definitive surgery”. In this context, definitive surgery is surgery aimed at attempting to cure and correct the patient’s condition as distinct from diagnostic surgery aimed at attempting to explain it. It appears to be common ground that Dr Caldwell, an intern, was not of sufficient seniority to have proposed the management plan and that this was agreed to in consultation with Dr Besser. Strictly speaking, of course, Dr Besser’s presence was not necessary for the management plan to be formulated but, on the whole, I think that he had more probably than not been present and seen Ms Fletcher or, at the very least, had discussed her case with Dr Caldwell.

33 There is no doubt that Dr Besser saw Ms Fletcher on 24 September, the notes stating that he did and Dr Besser accepting that he did so. Those notes (signed by Dr Caldwell) reiterate the management plan with some additional detail but omit – possibly significantly – the reference to surgery. The next note is made on 27 September by Dr Worthington stating that Ms Fletcher was to undergo a burr hole and ventriculography the following day.

34 The nurses’ notes have entries for 24, 25, 26 and 27 September describing Ms Fletcher’s condition but making no reference to any doctor’s attendance. An entry made at 9pm on 27 September said that at about 4.00pm Ms Fletcher suffered a loss of consciousness “for approximately two minutes”. Her pupils were dilated and fixed. At 4.15pm her pupils were still dilated but were then reactive. The resident medical officer was informed. The nursing notes Ms Fletcher was “transferred to NS3 at 10.00pm with ? cerebral turn”. The cerebral observation chart is somewhat more dramatic. The note made at 4.00pm is that Ms Fletcher was unconscious, her pupils “(?) dilated and fixed” and she was “decerebrate”. At 4.15, she was noted as spontaneous and, although her pupils were dilated they were reactive. The “comments” column is left blank although it is in this column that the “decerebrate” entry was made at 4.00pm and an entry of “orientated” is made at 5.15pm. Returning to the nurses’ notes, on 20 September 1982 Ms Fletcher is noted to have apparently had little sleep through the night; Glasgow coma scale observations were commenced and remained optimal “although Pt seems somewhat drowsy and slow”. At 9.45pm the observation was made that Ms Fletcher appeared to be becoming increasingly drowsy with a Glasgow scale varying between 14 and 6. Again, the resident medical officer was notified. It was noted that she had normal power in her limbs and obeyed commands though with decreased alertness. On the following day at 4.20am Ms Fletcher was noted as “still … [illegible] groggy”.

35 As appears from what I have said above the only evidence of decerebration is the cerebral observation chart. A decerebrate event is marked by dramatic physical symptoms easily observable and unlikely to be mistaken. Accordingly, Ms Fletcher submits that the reliability of the observation ought not reasonably to be doubted. The relevant note also refers to a loss of consciousness at this time. However, the nursing notes for 27 September state that Ms Fletcher had a “satisfactory day” with other entries being unremarkable. The note at 9pm does not refer to it but does refer to unconsciousness for two minutes at 4pm, with the next observation being made at 4.15pm. There is room for real doubt about what actually occurred.

36 We know, from the report of Dr Lamond, the radiologist, that a CT scan was conducted, as I have pointed out, on 23 September but, as it happens, the hospital notes make no mention of the undertaking of this procedure except prospectively. The importance of interpreting the CT scan for the purpose of enabling Dr Besser to understand how he came to formulate his management plan was not only a significant issue in the earlier proceedings but also in the present proceedings. To a significant degree, this was accepted by Studdert J and was one of the main reasons relied on by his Honour for refusing to extend time. Amongst other things, it is urged on Dr Besser’s behalf that because those CT scans are now missing he is unable to fairly answer the second case that is made against him by Ms Fletcher. Mr King SC for Ms Fletcher, referring to the absence of any mention of the scans in the notes of 23 September and an entry in the nurses’ notes at 10.30pm that the patient was admitted “… for CT scan” argues that, although it might have been conducted on 23 September as Dr Lamond’s report states, this was after Ms Fletcher had been seen by Dr Besser and the treatment plan noted. I think this evidence is too slight a basis to justify the conclusion for which Mr King SC contends.

37 Following the operation of 30 September, Dr Besser made the following note –

“… This thirty six year old lady had a history going back at least a year which consisted of dizziness, ataxia and most recently incontinence. As well, her husband related the onset of mild dementia and confusion recently. Examination revealed bilateral papilloedema and gross ataxia. Subsequent CT scan showed gross hydrocephalus due to aqueduct stenosis.
I felt that it would be good to perform a third ventriculostomy in this lady and so prevent all the complications inherent in a shunt procedure. A burr hole and ventricular catheterisation was performed two days earlier and a Metrimizide ventriculography confirmed the diagnosis of aqueduct stenosis. An attempted isotope study by lumbar puncture to document a patent subarachnoid space unfortunately failed with the isotope being injected into the subdural space. However, I felt it was reasonable to go ahead with ventriculostomy.
The day before the procedure Mrs Fletcher was quite drowsy but I felt that this may have been due to overdrainage of CSF.”

The note then describes the operation itself, which is irrelevant for present purposes.

38 Much is made of this note, not so much for what it says as for what it does not say. I deal with this discussion in due course.

39 It is obviously not altogether safe to assume that records are complete. Common experience shows, especially where people are under stress – including of course doctors and medical staff – that a record might not be made even of important matters. One often sees notes of events made some time after the event itself. This is itself likely to reduce accuracy. Sometimes, I have no doubt, it might be intended to make a note but, in the hustle and bustle of busy work, it is forgotten. Moreover, it is often dangerous to draw a positive conclusion from a negative circumstance. Mr King SC rightly points to the importance of taking notes of all-important observations but this is, as any realistic view must recognize, a counsel of perfection. Some matters are unlikely to be the subject of notes, such as informal discussions between colleagues. Nor is it necessary or, perhaps, desirable, that notes be made of all potential medical issues resolved by the actual events themselves. Notes are also made in a particular context. Thus, although the nurse’s note said, following admission to the ward at 10.30pm on 23 September, “For CT scan”, Dr Besser interpreted this note as not indicating whether the CT scan had occurred or not on that day. He said that the process was, at the time, that almost certainly Ms Fletcher would have gone from the emergency department to the scanning department and then to her ward and that scans were not done at that time of night from the ward unless it was an emergency. This interpretation is reinforced by the absence of any mention elsewhere in the notes about Ms Fletcher leaving the ward to go for a CT scan. Amongst other things, this shows that notes are always made in a context and that it is sometimes dangerous to draw inferences from notes absent knowledge of that contemporaneous context.

Evidence about the records

40 Dr Besser agreed that the history recorded by Dr Caldwell, in substance conveys the information that, whilst some of the patient’s symptoms historically were essentially chronic or longstanding, they were associated with some recent more severe and significant symptoms. Dr Besser agreed that this history of itself meant that Ms Fletcher required drainage to eliminate the risks from the perpetuation of the raised intercranial pressure, but opined this could take place within a few days of admission and was not immediately necessary. I take it that this opinion rested upon both the clinical picture as shown in the notes but also – and I am minded to believe – on the fact that he did not institute emergency drainage, which reflected his then view of the case. The need to reduce intercranial pressure by drainage was not the immediate object of conducting the ventriculogram. Although the ventricular catheter had this effect, complete drainage is not wanted because it is important that the third ventricle be kept large for the purpose of undertaking the ventriculostomy. In a letter to Ms Fletcher’s solicitor on 12 November 1996, in answer to the question: “What was the purpose of the ventricular catheter?” Dr Besser answered –

“ The purpose of the ventricular catheter was both to perform a ventriculogram in order to find the cause of the hydrocephalus and also for analysis of CSF to ensure that there is no chronic infection .”

The next question specifically went to drainage –
“2. Is it meant to drain CSF?
The purpose of the ventricular catheter was to perform a ventriculogram but the ventricular catheter was left in situ because of the extent of the hydrocephalus and concern that the patient’s clinical status may deteriorate due to her obvious obstruction of CSF pathways.
It was not inserted to drain any specific quantities of CSF. There is no relationship between this and Mrs Fletcher’s intercerebral haemorrhage which was subsequently documented following the craniotomy .”

The last sentence in the above passage was directed to the then understood cause of Mrs Fletcher’s disabilities following the operation.

41 Some drainage was of course an inevitable outcome of inserting the ventricular catheter. It was not (and could not be) suggested to Dr Besser that he was unaware of this or had overlooked it at the time: it was, as it were, a given. Although it is true that the questions of Mr Billing directly raised the purpose of the catheter and whether it was meant to drain CSF, the context was a series of questions directed to the doctor for the purpose of preparation of a case against Dr Hamilton-Gibbs and Dr Durey (her general practitioners) claiming damages arising out of their alleged failure to diagnose her condition or refer her to specialists for diagnosis and treatment. It is apparent that he also had in mind that Ms Fletcher’s condition resulted from the cerebral haemorrhage and wished to make the point that the catheterisation had not caused that haemorrhage. If the question whether it was imperative as a matter of urgency to drain the CSF, as distinct from leaving that to occur in the course of conducting the ventriculogram were raised, that would have directed Dr Besser’s attention to the particular issue. I think that Dr Besser’s answer should be interpreted as a reference to the primary purpose of the catheterisation. The letter may be important as showing that Dr Besser’s attention was brought to the purpose of the ventriculogram as he recalled in 1996, sometime earlier than the issue was raised in the present application.

42 Dr Besser was taken to the cerebral observation charts showing that on 27 September 1982 Ms Fletcher lost consciousness and seen to decerebrate. It also showed that, at 4pm on that day, her pupils were fixed and, at 10am on that day, although reactive they were sluggish. On the charts for 23, 24, 25 and 26 September there were notes from time to time that the pupils were sluggish, fixed and very sluggish. Dr Besser agreed that sluggish reaction of pupils and fixation of pupils can indicate raised intercranial pressure but pointed out that, during this time, she was also observed to be orientated and alert, illustrating that her condition was a dynamic one and the problems caused by raised intercranial pressure are very much matters of degree. Even so, sluggishness of the pupils and fixation of the pupils, if present, were together with the decerebrate events indications of deterioration. So far as the apparent inconsistency is concerned between sluggish reactivity of the pupils, and indeed, different reactivity of right and left pupils on the one hand and, on the other, the patient remaining alert and orientated, he thought that in Ms Fletcher’s case this was due to the dilation of the back end of the third ventricle pressing on the upper part of the brain stem in the tectal plate area, noting that the ventriculogram showed a dilated supra-pineal recess – which impinges on the tectal plate. Of course, this did not mean that she did not also suffer in this respect from the effects of raised intercranial pressure. Dr Besser pointed out that, at all events, quite apart from a decerebrate event, there were many other things in Ms Fletcher’s history that suggested raised intercranial pressure at the time, as I understand his evidence, she was admitted to hospital.

43 Dr Besser agreed that the occurrence of the decerebrate event with loss of consciousness was very serious, indeed, potentially fatal and, furthermore, if the patient were untreated there is – and I suppose this is obvious – increased risk of further episodes. Dr Besser agreed that the decerebrate event of 27 September was a further serious deterioration in Ms Fletcher’s condition.

44 There is a live question whether the decerebrate event was brought to Dr Besser’s attention. Certainly, there is a note that the RMO was informed but no record of any attendance or what, if anything, he did with the information. One explanation may have been that, as the notes show, Ms Fletcher apparently recovered rather quickly and the RMO (assuming he was in fact informed) may have thought that the observation did not warrant any action at that stage. Dr Fearnside expressed the view that a decerebrate event was a serious matter which should have been brought to the attention of Dr Besser. Dr Besser said that, had he been informed of it, he expected that he would have done something about it. Dr Besser’s operation report says nothing about the decerebrate event and his evidence was that had he been aware of it at that time he would have mentioned it, although he could not exclude the possibility that he simply overlooked doing so. Dr Besser agreed that his practice at the time would have been to see the patient every day except perhaps on Sunday, together with the registrar and the resident medical officer and the nursing staff. However, this does not mean that he necessarily inspected the cerebral observation charts because he would have relied on the junior staff to keep him abreast of the situation. Dr Besser would have examined the patient and spoken to her. He assumed that he would have been made aware of progress as shown in the cerebral observation charts but does not recall whether this happened. In my view, the likelihood is that the decerebrate event was, for whatever reason, not brought to Dr Besser’s attention. Indeed, as I understand the case, this is conceded by the applicant.

45 Dr Besser agreed that it may have been that, had he been made aware of the decerebrate event with loss of consciousness, he would have performed a burr hole and drainage on the afternoon or evening of 27 September rather than the following morning: in short, he would have seen to it that there was some definite drainage capable of achieving a marked reduction in intercranial pressure. Had this occurred, he agreed that it would have been likely that the craniotomy and ventriculostomy would not have gone ahead on 30 September because of the ensuing reduction in the size of the third ventricle due to the drainage. If the cause of the haematoma was the sudden decompression caused by the ventriculostomy – which seems to be accepted – avoidance of this procedure may have meant that the haematoma with its consequential damage, might not have occurred. Both Professor Fearnside and Dr Besser stated that there may well have been additional features of which they were unaware that might have given rise to the haematoma but there is no suggestion, as I understand it, that the missing films informed these possibilities.

46 The ventriculogram showed that that third ventricle was replacing pituitary tissue and expanded the fossa and that the supra-pineal recess was “huge”. As Dr Besser said, these are the usual results of severe hydrocephalus showing that it had been present and growing for a very long time and had reached an extremely severe point. He agreed that pathology of that kind is completely consistent with the onset of recent severe symptoms indicating that there could be a further severe deterioration almost at any time unless a ventricular drain is present.

47 The medical issues, or at least a general description of them, is usefully summarised, I think, in an answer given by Dr Besser during cross-examination –

(T p16 14/12/07 line 26)
“Q. Just in relation to this decerebrate event the CAT scan of 23 September, by that I mean the missing films, speak of the pathology four days earlier, you accept that?
A. The report of the CAT scan, is that what you’re saying?
Q. What you’d see on the films would tell you what the pathology was on 23rd?
A. No, I disagree with that. Look, this patient came along with symptoms and signs of raised intracranial pressure. The CAT scan showed that the ventricles were very, very dilated and yet we have a head circumference which is in the normal range so this means the patient wasn’t born with ongoing hydrocephalus.
Q. Dr, may I interrupt you --
A. If I could just continue for a second – and then the CAT scan report says the fourth ventricle is not seen. Now, the classical diagnosis of hydrocephalus by a radiologist that’s due to aqueduct stenosis is that the lateral ventricles and the third ventricles are dilated out of proportion to the size of the fourth ventricle which is small. If the fourth ventricle is not seen at all this is a bit of a red flag in the context of this patient. We have a patient who does not appear to have a congenital cause because the head circumference is in the normal range and a CAT scan report, I mean, I can’t remember the CAT scan but the report says the fourth ventricle is not seen. It says there is artefact in the pituitary fossa. It mentions that there may be some abnormality of the brain stem. Now, these are things which need to be taken into account before you treat a patient with hydrocephalus.”

48 It is obvious then that there are a number of interrelating considerations of some complexity as to which it was necessary to make a medical judgment. However, in relation to what ought to have happened by way of the exercise of proper medical expertise to deal with the decerebrate event (on the assumption that Dr Besser was aware of it) the CAT scan of 23 September is immaterial as also is the CAT scan film of 30 September following the craniotomy since, in substance, Dr Besser agrees that, had there been such an event, urgent drainage should and would have been instituted.

49 On looking at the matter as a whole, it was put by Mr King SC to Dr Besser that, considering Ms Fletcher as a patient on 23 and 24 September 1982, armed with the details from Dr Gordon, the admission notes from Dr Johnstone, the admission notes and case history notes from Dr Caldwell and his examination of the patient, if a neurosurgeon had felt that prompt treatment to relieve intercranial pressure was indicated and had a concern about drainage of any kind by reason of the possibility of a lesion in the posterior fossa, he could have armed himself with the scan, sought out advice from senior colleagues and obtained a collegiate view on 24 September – presumably the same view which encouraged him to proceed with the ventriculogram on the 28th. Dr Besser agreed that this could have been achieved.

Are the records sufficient?

50 In the result, as I have pointed out, drainage did not occur until the ventriculogram of 30 September. The second case focuses attention on the preceding events. Ms Fletcher now alleges that the severely raised intracranial pressure with which she was evidently admitted required to be immediately reduced by drainage and that this could and should have been done well before 28 September.

51 The hospital records appear to document a severe acute case of raised (and rising) intercranial pressure. Are these records sufficiently complete and reliable enough a picture of Ms Fletcher’s condition at the time to enable a fair trial to be conducted of the question whether the delay of four days or so was medically negligent? Of course, this requires consideration of the issues relevant to the apparent conclusion by Dr Besser that such emergency treatment either ought not or need not be undertaken. Both these issues were the subject of evidence. The starting point – apparently accepted by the applicant – is that he cannot now remember any of the details of Ms Fletcher’s admission and treatment and must rely almost entirely on the records, on what he believes to have then been his practice, and reconstruction of events from those sources.

52 Dr Besser’s case on the application involves two approaches. The first is that the records are not sufficiently clear or complete or reliable to enable a fair judgment to be made of the necessity for emergency drainage. The second is that, at all events, a live question in cases such as Ms Fletcher’s and likely to have been present to his mind at the time, is the risk that reducing cranial pressure where the condition was due to a posterior fossa lesion, could bring about upward herniation of the brain stem leading to unconsciousness and death due to the sudden release of cerebrospinal fluid (CSF) from the ventricular system. Quite understandably, he cannot now recall whether this problem was indeed present to his mind at the time, however. Dr Besser said that concern about this possibility may have been the reason for his thinking that a ventricular drain on 23 or 24 September 1982 ought not be placed. However, the absence of the films means that he cannot now say whether indeed they excluded a posterior fossa lesion. Having regard to the state of CT technology at the time, there is sometimes bone artefact in the posterior fossa which make it difficult to exclude tumours or other lesions. On the other hand, Dr Besser agrees that, by the time he placed the ventricular drain on 28 September, he must have been satisfied that a tumour had been excluded because, of course, the effect of the drain would be to reduce the cranial pressure.

89 There are some apparent inconsistencies in the neurological notes. Thus, the patient is shown as having fixed pupils but nevertheless awake and orientated which cannot occur although there is also a note that pupils are very sluggish which may or may not be a correction of the reference to fixed pupils. Other references to very sluggish pupils are made on at least three occasions but, again, as Dr Besser points out, she is shown as orientated. Dr Besser pointed out that although discrepancy between the reactivity of the pupils is consistent with the effects of raised intercranial pressure, there are other explanations. One is that there can be poorly reactive or even non-reactive pupils in patients who have pressure on the tectal plate, that is the upper part of the brainstem, and as it happens in this case the ventriculogram explains that because there was demonstrated a dilated supra-pineal recess, which is the back part of the third ventricle and that impinges on the tectal plate, which is an explanation here for those symptoms. The doctor’s volunteering of this possible explanation for the otherwise apparently inconsistent observations redounds, I rather think, to his credit since it is clearly advantageous to him to rely on the suggestion that the apparent discrepancy of observations shows that they were not altogether reliable. He did, however, point out that there were two occasions of inequality of the pupils, an observation which, as I gather, was likely to represent some lack of experience by the nurse because there was no reason that he could see why Ms Fletcher should have inequality of the pupils. Dr Besser put it down to the fact that Ms Fletcher was not in the neurosurgery ward where nurses would be likely to be more experienced in making observations of this kind. There were, however, more than two entries – there were four. Dr Besser agreed that the observation should be taken note of but he thought that inequality of the pupils in a patient who is alert and orientated may be somewhat spurious. Also, he thought that inequality of the pupils in a patient with hydrocephalus is not relevant.

90 So far as the decerebration event is concerned, Dr Besser commented that it appeared to have been transient, possibly caused by (temporarily) raised intercranial pressure and the ventriculogram on the following day confirmed hydrocephalus due to aqueduct stenosis and did not show any other acute problem. Given the history in all likelihood it was intercranial pressure but this was not the only explanation. He does not now recall whether he was told of it, as I have mentioned, but having been told of it other causes such as epilepsy might have been possible though they were, in effect, subsequently excluded. However, as Dr Besser fairly pointed out, there are a great number of other symptoms that at all events indicated raised intercranial pressure. Furthermore, by the time of the decerebrate event the CT scan had been taken and there is no question that that disclosed a condition which would have led to raised intercranial pressure. Dr Besser was asked about the continued drowsiness after the event of decerebration as consistent with residual problems. He did not agree. He said that patho-physiologically the event is an effect of the brainstem and once it recovers and the patient regains consciousness, there is no ongoing effect from what has happened to the brainstem. Continued drowsiness may have been caused by what also caused the decerebration of course. However, Dr Besser agreed that sustained drowsiness after a decerebrate event is a matter of concern.

91 There was a great deal of further cross-examination of both Dr Besser and Dr Fearnside about other matters disclosed in the records, in particular the neurological observations. It is sufficient for me to observe that this evidence disclosed a quite complicated medical picture requiring assessment of a variety of interrelated matters. Although Dr Fitzgerald’s opinion is, I think, that these matters were really far more simple – at least to an experienced neurologist – than is suggested by this evidence, on a careful reading of his evidence (including, of course, his affidavits) my opinion that this was a complicated and difficult case requiring careful diagnosis and far from obvious judgments is reinforced. After all, the case sought to be made by Ms Fletcher is whether drainage should have been instituted at a time significantly before the ventriculogram was performed, a timeframe of but five days. I do not accept that the clinical picture is so clearly demonstrated on the documents (which is all, in substance, that we have) as is contended on Ms Fletcher’s behalf.

Other matters of prejudice

92 Some of these matters vie with particular force differentially as between Dr Besser and the hospital. However, this differentiation is not important, as it seems to me, except in respect of the decerebration. Clearly, it should have been brought to Dr Besser’s attention either by nursing or medical staff. If it were not, that would be a particular of negligence against the hospital but not, it seems to me, against Dr Besser. However, subject to this difference in the cases, other differences are mere matters of emphasis and nothing much turns on them.

93 Hospital records showed that a number of nurses attended Ms Fletcher between 27 September and the craniotomy on 30 September. Three of those nurses only have been located, two of whom were student nurses at the time and one a registered nurse. Two other student nurses were located but they had made only entries prior to 27 September. The five nurses who were located were provided with copies of the hospital records but none had any particular recall of Ms Fletcher. This enquiry is criticised because no photographs of Ms Fletcher were shown to them. Given the timeframes, it seems to me that this criticism has no real weight. The contention of Mr Kalfas SC for the hospital that there is in effect an inconsistency between the nurses notes on the one hand and the cerebral observation chart on the other is persuasive. There is no strong reason for accepting the accuracy of one observation over the other – though as I have said, one should be cautious about inferring a positive from a negative. The former note was made by a Ms Moors, then a student nurse and now located. Not surprisingly, she has no recollection of Ms Fletcher’s treatment and her role in it. The experience of the nurse who made the entry in the cerebral observation chart is not known. The submission on behalf of the hospital that the inability to clarify what appears to be an important factual issue relied heavily upon by Ms Fletcher is a significant prejudice is, to my mind, well founded. Ms Moors’ note states that the RMO was informed. There is no note of his or her attendance, though it is difficult to imagine that he or she would not have attended if such a marked symptom had occurred, still less that there would be no note of what was done in consequence of it. As it happens, the RMO cannot now be identified.

94 I have already referred to the evidence of Dr Fitzgerald, Dr Besser and Dr Fearnside as to the possible significance of a decerebrate event, should one have occurred. All are agreed that some immediate steps needed to be taken to relieve intercranial pressure. One possible explanation for this not occurring is, of course, that Dr Besser was not informed of it. On the other hand, he may have been informed of what led the nurse to make the entry and decided that it was not a decerebrate event or decided that it was simply a passing symptom, explained as an “A” wave by Dr Fearnside. All these are reasonable possibilities. It seems to me that, the correctness of the cerebral chart in this respect being called into question, whether such an event occurred is a live and substantial issue. What Dr Besser or for that matter the hospital (though the RMO) should have done is scarcely capable of sensible assessment at this remove. Such a matter is very much, as it seems to me, a question of medical judgment based upon not only an adequate grasp of the history but also a consideration of the way in which the patient presented on examination. Dr Besser’s expectation, according to his then practice, is that he would have seen Ms Fletcher at least daily except perhaps on Sunday, accompanied by the registrar, resident and nursing staff. He would have expected to have had communications with, for example, Dr Worthington and the RMO. Such attendances are not referred to in the extant records which appear to be incomplete. For example, there are no entries in the case history notes for 25 or 26 September and only one for 27 September. So far as the continuing unwellness of Ms Fletcher after 27 September is concerned, there are notes on 28, 29 and 30 September but those notes are of observations which are necessarily to some degree subjective. In this respect I have already referred to the observations of drowsiness. A Mr Ross, who was one of the nurses at the time and responsible for one entry at 4.30 am on 29 September, describes the patient’s night as “satisfactory” adding, “still appears groggy” and noting that the ventricular drain appeared to be working. Mr Ross has been contacted but does not have any particular recall about the case. Other nurses who made earlier entries than on 27 September have been contacted but are unable to give useful information. Medical staff who might have been involved in any response to the decerebrate event on 27 September were Drs Worthington, Caldwell, Surachai, Morgan, Roberts and Loo. They have been able to be identified because of the hospital notes but there may have been other doctors, as Mr Kalfas pointed out, who were involved in Ms Fletcher’s treatment but, because they are not mentioned in the notes, cannot now be identified. Not surprisingly, the identified doctors cannot go further than the notes.

Conclusion

95 As I have mentioned, the defendants accept for the purpose of the present application, that Ms Fletcher has a triable case of negligence against them. The crucial question is whether, in terms of s 60G(2) of the Limitation Act 1969, the Court can conclude that it is just and reasonable to order that the limitation period be extended and whether the Court should so order in the exercise of its discretion. The real question is whether a trial will be a fair trial. Studdert J accepted that Dr Besser’s evidence, especially that his recollection of Ms Fletcher was very limited, in particular he has no specific recollection of the operations performed on 28 and 30 September and 12 October 1982 and his knowledge of them is, in substance, limited to the hospital documents. Dr Besser’s evidence before me was to the same effect. Of course, it is for me to assess for myself the reliability and truthfulness of this evidence without deferring to Studdert J’s opinion. I have done so. I thought that Dr Besser’s evidence was both truthful and reliable. I have already mentioned the attack made on it that depended on an answer he gave as to the need for the ventriculogram to answer the choice of operation case. I repeat the conclusion I have already given that this evidence did not justify the conclusion or even, to my mind, the suspicion that Dr Besser’s evidence was not truthful and reliable. Again, in the proceedings before me, Dr Besser emphasised the need to have the films available, especially of the CT scan of 23 September to show whether one, I think the major, reason for not immediately instituting a drainage procedure was the possibility of a subdural haemorrhage or other lesion in the posterior fossa. Other criticisms have been made of his credibility based on the way in which this case unfolded and suggesting that, at least so far as the possibility of the presence of a lesion in the posterior fossa was concerned, this was a late and convenient explanation for delay that should not be accepted. I do not accept these criticisms. The evidence as a whole persuades me that this was indeed a live problem and caused some, though uncertain, delay.

96 Of course, as Dr Besser and Dr Fearnside explained (and I accept) whether it was necessary to institute emergency as distinct from emergent treatment depended upon the entire clinical picture. Leaving aside the decerebrate event, there appears to be no particular damage requiring more urgent treatment than that which was in fact undertaken. There were indications of a troubling increase in intercranial pressure, such as the pupillary symptoms and drowsiness, unconsciousness and decerebration (by the 27th), to which Dr Fitzgerald refers. Accepting some deterioration was occurring, whether the immediate response for which Dr Fitzgerald contends was required and, in particular the failure to do so was negligent, is very much a question of medical judgment in respect of a multiplicity of signs and symptoms which were, in their very nature, matters of degree. Drainage was instituted on the 28th, though secondary to a ventriculogram.

97 I do not see how, even apart from the specific prejudice caused by the lack of the films and the uncertainties of the medical records, a fair trial can now be had in which Dr Besser or any witness who might be called on his or the hospital’s behalf could deal in any specific way with Ms Fletcher’s unfolding medical condition. In the course of his judgment in the previous appeal Bryson JA said (Fletcher v Besser 2004 NSWCA 132 at 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.”

In my view, the considerations referred to by Bryson JA apply with virtually equal force to the present circumstances. Indeed, the choice of operation case and the evacuation of the haematoma case were at least specific procedures indicated by specific circumstances. The very generality of the case now sought to be made by Ms Fletcher depends on assessing how acute were her symptoms in a situation in which, not only are their descriptions uncertain, but the crucial medical issues matters of fact and degree.

98 Accordingly, Ms Fletcher has not established that, in respect of the first case, it warrants departure from the decision of Studdert J. For what it is worth, I have at all events independently come to the view that a fair trial cannot now be conducted in respect of that case. In respect of the second case sought to be made, I have concluded that the prejudice suffered by both Dr Besser and the hospital caused by the effluxion of time since the material events is such that there can be no fair trial conducted of it.

99 Accordingly, the application must be refused with costs.

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