O'Reilly v Western Sussex NHS Trust (No.6)

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.6) [2014] NSWSC 1824
Hearing dates: 7/10/2013 - 11/10/2013,14/10/2013 - 18/10/2013 (UK)4/11/2013 - 8/11/2013, 13/11/2013 - 15/11/2013, 31/01/2014, 14/02/2014, 07/05/2014 - 08/05/2014
Decision date: 19 December 2014
Jurisdiction: Civil
Before: Garling J
Decision:
(1) Judgment for the plaintiff in a sum to be calculated for damages for the value of the dependency of the late Dr O'Reilly;
(2) Judgment for the defendants on the claim by the plaintiff for damages for personal injury by way of psychiatric harm;
(3) Direct the parties to bring in short minutes of order to reflect the amount of judgment in Order (1). Such short minutes to be filed and served by 13 February 2015;
(4) If any party seeks to make an application for costs, then such application is to be made by notice of motion supported by affidavit evidence and is to be filed and served no later than 4pm 13 February 2015;
(5) Any evidence in response to such application is to be filed and served no later than 4pm 27 February 2015;
(6) Grant leave for such motion or motions to be made returnable before Garling J at 2pm on 13 March 2015;
(7) Adjourn the proceedings generally for directions to 2pm on 13 March 2015;
(8) Liberty to apply on 3 days' notice.

Catchwords:
PRIVATE INTERNATIONAL LAW - choice of law - torts - agreement as to applicable law - common law of England and Wales

TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - duty of care - standard of care - health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom in 2003

TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - breach of duty - second defendant - ought to have ordered a colonoscopy be undertaken to ensure whole of the left colon up to and including splenic flexure was visualised, whether - third defendant - performed endoscopy procedure without due care and skill by failing to insert endoscope to sufficient distance to visualise splenic flexure, whether - failed to appreciate investigation was incomplete and refer for further investigation, whether - investigation accorded with acceptable professional practice in the United Kingdom at that time, whether - in 2003 following the 2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland would be following acceptable practice, whether - particular doctor free to proceed in a way which did not conform with the Guidelines if the doctor judged that the particular circumstances warranted a different approach - breach of duties established

TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - causation - wrongful act, neglect or default was the sole or substantial cause, or a material contribution to, the death giving rise to the claim, whether - delay in treatment of colorectal tumour was a cause in law of death, whether - cause of death - death due to complications attributable to obstructed bowel and emergency operations, whether - death due to terminal cancer, whether - stage of tumour in 2003 - benign and not metastasized, whether - malignant and metastasized, whether - expert evidence of tumour volume doubling time - expert evidence of development of metastases - malignant tumour in 2003 - metastatic spread beyond immediate region of tumour in 2003 - treatment which would have been administered had the cancer been discovered in 2003 - planned surgical removal of tumour and affected lymph nodes and chemotherapy administered - no bowel obstruction and emergency surgery in 2006 would have occurred - causal connection between bowel obstruction and death - compensable loss established - extent of loss - likely survival period - additional two years

DAMAGES - torts - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK), s 1A - bereavement - statutory sum - financial loss - loss of financial support to end of November 2008 - loss of services - loss of caregiver services - loss of services to family generally

LIMITATION OF ACTION - negligence - torts - personal injury - psychiatric injury - nervous shock - Limitation Act 1980 (UK), ss 11, 14 - accrual of cause of action - date of knowledge of plaintiff - onus on plaintiff to establish requisite date of knowledge fell within a period of three years before she commenced her claim - statute barred
TORTS - negligence - personal injury - psychiatric injury - nervous shock - secondary victim - proximity - considerable period of time elapsed between tortious conduct of defendants and injury suffered - lack of requisite proximity
Cases Cited: AB & Ors v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Crabtree v Wilson [1993] PIQR Q24
Crocker v British Coal Corporation (1995) 29 BMLR 159
Gregg v Scott [2002] EWCA Civ 1471
Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176
Harris v Empress Motors Ltd [1983] EWCA Civ J0714-3; [1983] 3 All ER 561
Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682
Mallett v McMonagle [1970] AC 166
McGhee v National Coal Board [1973] 1 WLR 1
Sion v Hampstead Authority (1994) 5 Med LR 170
Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213
Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822
Tahir v Haringey Health Authority [1988] Lloyds LR: Med 104
Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194
Taylor v Somerset Health Authority (1993) 4 Med LR 34
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455
Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB)
Category: Principal judgment
Parties: Sue Ellen O'Reilly (P)
Western Sussex Hospital NHS Trust (D1)
Manoj Sen (D2)
Mansour Poushin (D3)
Representation: Counsel:
Mr Bartley SC / Mr Toomey (P)
Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3)
Solicitors:
Beilby Poulden Costello (P)
Kennedys (Australasia) Pty Ltd (D1, D2, D3)

File Number(s): 2011/187028

JUDGMENT

On 2 November 2006, Dr David O'Reilly died in the United Kingdom.

At that time he was married to Sue-Ellen O'Reilly, the plaintiff, and they had three children, Laura, Jordan and Shane.

Mrs O'Reilly has brought proceedings in negligence arising out of the death of the late Dr O'Reilly, claiming damages pursuant to the Fatal Accidents Act 1976 (UK). She alleges that the death of the late Dr O'Reilly was caused by the negligence of the defendants. This action can conveniently be referred to as the compensation to relatives proceeding.

She also brings proceedings claiming damages for psychiatric injury, by way of nervous shock, which she suffered, arising out of the death of the late Dr O'Reilly. This action can be conveniently be referred to as the nervous shock proceeding.

Parties

The plaintiff, Mrs Sue-Ellen O'Reilly, was born in Sydney in 1953. She had four siblings. Her father, a general practitioner, specialised in the field of rheumatology and sports medicine.

The evidence about her early life is sparse.

Mrs O'Reilly obtained tertiary qualifications, and in 1984 married the late Dr O'Reilly. She had by that stage pursued a career in journalism. Having married Dr O'Reilly she moved to Canberra. Their first child, Laura, was born in 1986. Their second, Jordan, in 1988, and their third child, Shane, in 1989.

Shane suffered from cerebral palsy and was severely brain damaged. He was significantly disabled and required 24 hour care from his family. He needed assistance with all the tasks of daily living and he was confined to a wheelchair.

Both Dr O'Reilly and Mrs O'Reilly were journalists, and worked in journalism related areas. Because of the need to provide intensive care for Shane, it was not possible for both of them to work full-time. Initially, Dr O'Reilly worked full-time whilst Mrs O'Reilly cared for Shane. Towards the end of 1992, it was agreed that Mrs O'Reilly would return to full-time work, and Dr O'Reilly would move to part-time work and undertake some freelance journalism so that he could be the primary carer for Shane.

In mid-1995, the O'Reilly family moved to the United Kingdom. The move was precipitated by the existence in the United Kingdom of better facilities for children with disabilities such as Shane's. A particular school, Ingfield Manor in West Sussex offered a highly specialised form of educational and therapeutic intervention for children with cerebral palsy. Shane attended at that school.

The O'Reilly family returned to Australia at the end of 1998, but found that the disability services in Australia were nowhere near as appropriate for Shane as those in the United Kingdom. Accordingly, they returned to the United Kingdom in 2000.

As this judgment will later show, it was in the United Kingdom in 2003 that the events, the subject of these proceedings, occurred. It was there in 2006 that the late Dr O'Reilly died.

As I have mentioned, Dr O'Reilly was a journalist. By 1989, he was the national political correspondent for the Bulletin Magazine. He was a member of the Parliamentary Press Gallery in Canberra, and was highly regarded. After the family moved to the United Kingdom on the first occasion Dr O'Reilly worked full-time from home as a freelance writer for a range of Australian and UK publications.

In 1997, he was commissioned to write a biography of an Australian politician, Cheryl Kernot. It was subsequently published.

Whilst in Australia in 1999, Dr O'Reilly decided to study part-time for a PhD in Political Science. He continued with this study as an external student at Monash University after the family returned to the United Kingdom.

Whilst in the United Kingdom, Dr O'Reilly worked from home as a freelance journalist, studied for his PhD, and did some part-time work as a tutor for Australian history students enrolled at the Menzies Centre in London, which is a part of Kings College.

In April 2006, Dr O'Reilly was awarded his PhD. He then worked on a book project which was commissioned by Monash University about the profiles of 16 prominent Australians working in the United Kingdom. As well, he was engaged in the process of turning his PhD thesis into a book for a UK publisher. It was whilst he was engaged in these projects that Dr O'Reilly died.

The proceedings are brought by Mrs O'Reilly on behalf of herself and her two children, Laura and Jordan. That is because Shane died at home in Australia on 11 July 2011 due to complications relating to his disability.

Laura first moved to England with her family when she was nine years old. She remained there, and undertook her education there, except for the period when the family returned to Canberra. At the time of her father's death, Laura was studying for an undergraduate degree at Cambridge University. She graduated in 2010, and in 2011 commenced studying a post-graduate law degree at the University of NSW.

Jordan was educated in England. After his father's death and the family's return to Australia, he enrolled in undergraduate studies in occupational therapy at the University of Sydney.

Together with his sister Laura, they have assisted in the running of a charity called "Fighting Chance" which was set up in NSW after the family returned to Australia in 2008.

The first defendant, the Western Sussex Hospitals NHS Trust, is the legal entity sued with respect to St Richard's Hospital, Chichester ("the Hospital"). It was at the Hospital in 2003 that Dr O'Reilly underwent a procedure upon which the plaintiff's claim substantially rests.

The second defendant, Mr Manoj Sen, is a consultant colorectal surgeon. He presently practises in Germany and has done so since 2008.

Mr Sen was working in August 2003 as a locum colorectal surgeon at the Hospital. He worked there between May 2003 and October 2003. He saw Dr O'Reilly on one occasion only, being 19 August 2003.

The third defendant, Mr Mansour Poushin, is also a consultant colorectal surgeon. Mr Poushin was born and originally educated in Iran. Before studying medicine, he trained and worked as a physiotherapist in Tehran, England and Sweden. He left Iran in 1979 after the Islamic revolution. He migrated to Sweden. He worked there as a senior physiotherapist and, in January 1982, was accepted to study medicine. He graduated with a medical degree from Gothenburg University in 1988. Thereafter, he spent a good deal of time at the Karlskoga Hospital undertaking his surgical training. Except for a period when he worked in the United Kingdom between February 2001 and September 2007, he has lived and practised medicine in Sweden, primarily at the Karlskoga Hospital.

Mr Poushin commenced to practice in the UK as a locum consultant general surgeon in February 2001. He was employed at the Hospital in November 2003 as a full-time locum consultant in general and colorectal surgery. He commenced this term of employment in the week commencing 10 November 2003. This meant that 12 November 2003, the date of the procedure which he carried out upon Dr O'Reilly, was the first day upon which he was rostered to undertake endoscopy procedures at the Hospital. He only saw Dr O'Reilly on this occasion.

Factual Context - An Outline

Dr O'Reilly was born on 25 September 1951. Accordingly, at the time he attended upon Mr Sen in August 2003, he was 51 years old. When he saw Mr Poushin in November 2003, he was 52 years old.

According to his daughter's evidence, which I accept, Dr O'Reilly was a fit and healthy person. He was not overweight and paid a good deal of attention to what he ate. He did not smoke, and drank alcohol in moderation. He was generally an active person. On weekends during summer, whilst in the UK, he would play cricket. He enjoyed running. He was generally a person who took his health seriously. This was entirely understandable because he needed to be fit and healthy to continue being the primary carer for Shane.

In 1988, he underwent surgery for the removal of his spleen. He seems to have completely recovered from that procedure.

At least by the year 2003, Mr O'Reilly had suffered from the effects of haemorrhoids, but intermittently, and to a minor extent. He sought no treatment from any medical practitioner for this condition.

Whilst in the UK, he was a patient of the general practice conducted at The Surgery in Billingshurst. This was a multi-practitioner practice. According to the records of The Surgery, Dr O'Reilly was seen by Dr Charles Wood on a number of occasions when he attended at The Surgery. Sometimes he was seen by other practitioners.

On an occasion in 2003, Dr O'Reilly experienced a blood loss whilst using the toilet which was heavier and of a different colour, darker red, than he had been accustomed to with the irregular occurrence of his haemorrhoids. As a consequence, he promptly made an appointment to see his general practitioner, Dr Wood, about this event.

He attended upon Dr Wood on 13 June 2003. Dr Wood has no recollection of this consultation, apart from what is written in notes and correspondence.

It is apparent from the notes that he undertook a manual rectal examination of Dr O'Reilly. He determined that Dr O'Reilly should be referred for a surgical opinion and investigation. Accordingly, he referred Dr O'Reilly to Mr J Simson, a consultant surgeon, at the Hospital. The referral took place in accordance with the National Health Scheme which existed at the time in the United Kingdom. That is to say, without cost to Dr O'Reilly.

The letter of referral, which was dated 13 June 2003, says this:

"This fellow has had a little bleeding from time to time over the last 5 years, usually associated with a pile he says. However, over the last month there has been rather more bleeding, the last bit of stool has often been streaked with blood and there have been some drops of blood after he has finished.

On examination, there is a very strange, rather hard conical looking lesion at the anal margin, and although this was not bleeding at the time, I guess this could be the source. The rectal examination was rather difficult due to considerable discomfort at the time.

I should be most grateful for your further opinion."

In 2003, Mr Simson, together with his colleague, Mr Cripps, supervised the colorectal surgical unit at the Hospital. When referral letters arrived, either Mr Cripps or Mr Simson would make an assessment of the urgency of each patient's symptoms and histories, and would then allocate a priority for that patient. In Dr O'Reilly's case, markings on the referral letter indicate that he was to be seen "soon", meaning that he would typically be examined by either Mr Simson or Mr Cripps, or alternatively, a locum consultant practising within the unit, within 12 weeks of the receipt of the referral letter.

In this case, Dr O'Reilly was seen within the allocated time period at the Hospital, in the colorectal unit by Mr Sen on 19 August 2013.

Mr Sen has no recollection of seeing Dr O'Reilly. However, he made contemporaneous notes of the consultation, which I accept are reliable. He was given a history that Dr O'Reilly, whom he recorded as a 52 year old, had a four month history of fresh per rectal bleeding which occurred with defecation, and which streaked the stool.

Dr O'Reilly did not provide him with any history of a recent change in bowel habit, unexplained weight loss or anorexia (meaning loss of appetite).

Mr Sen undertook an examination of the abdomen. He detected no abnormality. He then used a rigid sigmoidoscope inserted to 18cm to conduct an anal examination which revealed the existence of two large skin tags, and second-degree haemorrhoids.

Based upon Dr O'Reilly's history, and his findings at examination, Mr Sen formulated a plan, which was to undertake a further examination of the left colon, at least, by a flexible sigmoidoscopy. Mr Sen then added this note:

"If he consents then TCI [to come in] for excision [of] anal skin tags."

Mr Sen dictated a letter to the general practitioner, Dr Wood, which was sent on the following day. The letter records in part the history and results of examination.

The letter said:

"Thank you for referring this very pleasant Australian journalist to my clinic today. Off and on, for the last few months, he has had fresh blood passed rectally, often at the end of defecation and streaking the stool. This has not been associated with any bouts of constipation [or] diarrhoea and indeed, he keeps a fairly regular normal bowel habit. There is no associated tenesmus, urgency, weight loss or loss of appetite. There is no family history of colorectal disease.

Clinical examination and proctosigmoidoscopy revealed two large, fleshy, anal skin tags. Proctoscopy also revealed some fairly prominent second degree haemorrhoids.

He could be bleeding from any of these, and if so, these would require surgical remedy. However, before we put his bleeding down to these lesions, I would like to examine his left colon at the very least with help of a flexible sigmoidoscopy, and we could band his piles, if they are still prominent, at the same sitting. When I meet him for the flexible sigmoidoscopy I will then discuss with him the pros and cons of excising the skin tags under a short general anaesthetic."

At the time he wrote the letter, Mr Sen's employment plans were that he would be remaining at the Hospital in his capacity as a locum consultant colorectal surgeon for a further lengthy period which would have ordinarily meant that, and it was highly likely that, he would be the surgeon who carried out the procedure which was "... to examine his left colon at the very least with the help of a flexible sigmoidoscopy ...". As the terms of his letter make clear, Mr Sen clearly contemplated that he would be undertaking the procedure. This accorded with the unit's usual practice. But for his unexpected change of plans, I am satisfied this is what would have occurred.

However, in late October 2003, for personal reasons which could not have been predicted in August 2003, Mr Sen finished up his work as a locum consultant colorectal surgeon and left the Hospital on 31 October 2003.

At the time he wrote this letter, Mr Sen was of the view that the flexible sigmoidoscopy of which he spoke, would have been carried out using a colonoscope which was 150cm in length, rather than a device called a flexible sigmoidoscope which was 60cm in length. He said in evidence, and I accept, that in the National Health Service in the United Kingdom in 2003, it was rare to use a 60cm device to perform a flexible sigmoidoscopy. Neither Mr Sen nor Mr Poushin ever used the 60cm device at the Hospital.

According to his evidence, which I accept, when Mr Sen wrote that he wished to examine Dr O'Reilly's left colon, he intended that he would examine the whole of the left colon from the anus through to the splenic flexure. He said that, had he carried out the procedure, this is what he would have done. In my view, that is the only reasonable interpretation of what he wrote in his letter sent on 20 August 2003.

It is sufficient to conclude the recitation of these facts to note that it is clear that Mr Sen was concerned to reach a diagnosis of the rectal bleeding which had been reported to him, both by the patient Dr O'Reilly, and the general practitioner Dr Wood.

Mr Sen's evidence was, and I accept, that he formed the view that the purpose of the examination that he wished to undertake, was to exclude a sinister cause for the bleeding by way of any lesion existing in the left colon, whether it was a pre-cancerous polyp or else a more developed and potentially cancerous lesion.

It will be necessary to give a more detailed explanation of a number of the technical terms used here in due course, together with an explanation of the basic anatomy involved.

Dr O'Reilly was next seen with respect to his colorectal problems when he presented at the Hospital on 12 November 2003, which was the date fixed by the Hospital for his procedure. At that time, a flexible sigmoidoscopy was undertaken by the third defendant, Mr Poushin.

Mr Poushin was acting as a locum consultant surgeon at the Hospital at the time. As I earlier related, he formally commenced his employment on 6 November 2003, with the first week of rostered professional duties being in the week commencing 10 November 2003. 12 November 2003 was the first day upon which Mr Poushin undertook an operating list, and procedures such as that performed on Dr O'Reilly.

Mr Poushin has no recollection of Dr O'Reilly, nor of the procedure. Such description as he is able to give of what happened in November 2003 is based upon his usual practice, and his review of the contemporaneous medical records that still exist. He has some recollection of general matters.

The principal contemporaneous record is a document described as "Colonoscopy Report". This was a pro forma document, held in the computer system at the Hospital, which was completed with patient specific entries which were largely selected from drop down menus available when completing the pro forma document on the computer.

Prior to consulting with Dr O'Reilly, I am satisfied that Mr Poushin in accordance with his usual habit of practice generally (rather than any developed practice at the Hospital), read the Hospital file, which principally consisted of the letter from Dr O'Reilly's general practitioner, Dr Wood, dated 13 June 2003, the handwritten history sheet compiled by Mr Sen on 19 August 2003, and the letter sent by Mr Sen to Dr Wood dated 20 August 2003.

Prior to the procedure commencing, Mr Poushin obtained Dr O'Reilly's consent to the procedure. The consent form is a standard form available for all procedures undertaken at the hospital. Mr Poushin wrote the words "Flex. Sigmoidoscopy" as the name of the proposed procedure. He recorded on that document that he had explained to Dr O'Reilly that the intended benefits of the procedure were "diagnosis, screening" and that the serious or frequently occurring risks were "perforation, bleeding".

For the purpose of undergoing this procedure in November 2003, the usual practice was for patients such as Dr O'Reilly, after arrival, to have at least one, and perhaps two, enemas administered per rectum for the purpose of preparing the left colon by emptying it of its faecal content prior to a flexible sigmoidoscopy being commenced.

The Colonoscopy Report completed by Mr Poushin contained a number of patient-specific entries in it. From those entries it can be observed that Mr Poushin's conclusions at the end of the procedure were that the patient tolerated the procedure well and that his bowel preparation was satisfactory. In describing what he saw, Mr Poushin reported that "at the splenic flexure, the bowel was normal" and further that, "the rest of the visualised bowel was normal".

On the standard colonoscopy report, there was a printed diagrammatic depiction of the whole of the colon. Drawn on the report, by hand, was an arrow pointing to the splenic flexure. Mr Poushin inserted that arrow to, as he described it in his statement:

"... indicate that the instrument reached that anatomical point [splenic flexure], which comprises the furthest/distal end of the left colon."

Mr Poushin said, and I accept, that the fact that the bowel preparation was noted as being satisfactory meant that he had a clear view of the bowel. There was no faecal matter which was interfering with a clear view of the left colon. Equally, having regard to the fact that no abnormality was reported upon, I accept that Mr Poushin did not detect any abnormality in that part of the left colon that he examined.

There is a real issue in this case, which it will be necessary to resolve in due course, as to what part of the left colon was actually examined by Mr Poushin, including whether he did in fact reach, or else visualise, the splenic flexure, as his Colonoscopy Report recorded.

The instrument used by Mr Poushin to perform the endoscopic investigation was a colonoscope that was 150cm in length. This is an instrument which can be used both to undertake a flexible sigmoidoscopy, and was commonly used for that purpose in the United Kingdom in 2003, or else a complete colonoscopy through to the caecum. The instrument, a version of which was produced to, and examined by, the Court, has markings on it at 10cm intervals from its tip. These markings enable an operator to know what length of the instrument has been inserted through the anus into the colon.

The defendants concede in submissions that the Court should find that, although Mr Poushin reported that he had visualised the splenic flexure, or else reached it and visualised it, that he did not in fact do so. They also concede that in fact, he could not have visualised the splenic flexure.

The defendants also concede that there was present in Mr O'Reilly's colon, as at the date of Mr Poushin's examination in November 2003, a lesion between 0.7cm and 1cm in size, which was located in the same anatomical position as the lesion discovered and removed surgically at the Hospital on 26 July 2006, namely at the splenic flexure or else slightly below the splenic flexure, and towards the anus.

Although the evidence on this is sparse, I accept that it is likely that after the procedure was concluded, Mr Poushin told Dr O'Reilly that he had not detected any abnormality in the course of his examination with the colonoscope.

The precise detail of what Mr Poushin in fact did during the procedure, and what he saw, is a matter of dispute, and will need to be considered in due course.

Dr O'Reilly, having been discharged from the Hospital, returned home no doubt reassured by having been told by Mr Poushin that he could detect no abnormality in his left colon.

Apparently, Mr Poushin must have discussed with Dr O'Reilly a procedure to remove his skin tags, and to either band, inject or undertake a haemorrhoidectomy with respect to his haemorrhoids, because the Hospital records record such a procedure as being booked to be carried out about one week later, on 20 November 2003. That appointment was apparently cancelled by Dr O'Reilly. The procedure was re-booked for 19 December 2003, and was again cancelled by Dr O'Reilly.

On 27 February 2004, Dr O'Reilly attended at the Hospital at the pre-op clinic. The notes of that consultation recorded by a nurse indicate that he was examined on that day, and routine pre-operative checks and measurements were undertaken. His urine was normal. His weight was recorded at 79kg. His height was recorded as 5'10". His body mass index was recorded at 25, and his blood pressure was recorded as 140/90.

The nurse's note is in the following form:

"I spoke with Mr O'Reilly in pre-op clinic. His op was cancelled for 2/52 ago and rescheduled for 2/4/4. He is supposed to be flying to Germany on 3/4/4 on a compulsory business trip. Obviously this would not be a sensible plan, [therefore] we need to cancel this and reschedule him for the future. He is still keen to have the op (anal skin tag removal and banding/injection/removal haemorrhoids)."

The patient notes were sent to Mr Poushin's secretary, who was to arrange the rescheduling of the operation. The evidence is unclear when, if at all, this procedure was undertaken.

The next occasion when Dr O'Reilly visited Dr Wood, his general practitioner, was on 26 May 2004. He went there complaining of the existence of a haemangioma in the middle of his back on the right hand side. He was concerned that it was a suspicious growth. There was no immediate treatment because Dr Wood formed the view that the growth was not suspicious, but prudently advised that the growth ought to be reviewed regularly, annually.

About the middle of 2005, Dr O'Reilly was seen on two occasions at The Surgery, with respect to an upper respiratory tract infection, for which he was prescribed some antibiotics. In August 2005, he was again seen at The Surgery by the practice nurse, who administered a pneumococcal vaccination.

On 5 April 2006, Dr O'Reilly attended at The Surgery and was seen by Dr Stuart Shaw. He gave a history of lower colicky abdominal pain for a period of about three weeks. He told Dr Shaw that there had been some feeling of bloating. After an examination and the taking of some samples for tests, Dr Shaw concluded that the likely cause of his condition was irritable bowel syndrome.

Dr O'Reilly again attended at The Surgery on 21 April 2006, when he was seen by Dr Wood. He complained to Dr Wood of excessive wind and frequency of defecation. He gave a history that his colicky abdominal pain was relieved by opening his bowels. He said that the pain and symptomatology had been worse over the last two months. On examination, Dr Wood detected that Dr O'Reilly's abdomen was tender, particularly in the region of the left iliac fossa. Dr Wood, having noted that his flexible sigmoidoscopy in November 2003 was normal, confirmed to Dr O'Reilly that he had irritable bowel syndrome, in accordance with his colleagues' earlier diagnosis

In conversations with his wife, following upon his visits to The Surgery, Dr O'Reilly reported that he had been informed by both Dr Shaw and Dr Wood, that their diagnosis that he had irritable bowel syndrome was the most likely one, because he had had a clear flexible sigmoidoscopy examination in November 2003. There is no reason to doubt, and I accept, that the absence of any abnormality being detected on that examination in November 2003, was a significant clinical finding which the general practitioners took into account in reaching their view that the symptoms with which Dr O'Reilly presented in April 2006, were best diagnosed and treated, as irritable bowel syndrome. The negative finding was clearly a significant matter for Dr O'Reilly.

Dr O'Reilly's symptoms, pain and distress did not resolve. On 11 July 2006, he presented again to The Surgery and was seen by Dr Wood. He reported to Dr Wood that he had changed his diet significantly. His bowels were opened regularly, but he still had pain in the region of his left iliac fossa. He also told Dr Wood that he was feeling stressed by his circumstances. Dr Wood diagnosed irritable bowel syndrome, prescribed some medication for it, and undertook a depression screen to assess the extent of Dr O'Reilly's stress. He concluded that he was demonstrating features of mild depression.

On 26 July 2006, Dr O'Reilly, whilst at home, collapsed. He had a severe bout of vomiting and significant abdominal pain. An ambulance was summoned, and he was taken to the Accident and Emergency Department at the Hospital.

According to the ambulance notes, Dr O'Reilly informed the ambulance officers that he had recently lost about a stone in weight. According to their evidence, such a significant recent weight loss had been detected by both his daughter, Laura, and his wife. They had urged him to seek medical help. However, he informed them in terms, much as Dr Shaw and Dr Wood had advised him, that he was suffering from irritable bowel syndrome. He obviously thought that the matter was in hand. This view was consistent with the advice which he was receiving from the doctors at The Surgery. Their advice depended upon, and was consistent with, the report by Mr Poushin of negative sinister findings after the endoscopic examination in November 2003.

Dr O'Reilly arrived at the Accident and Emergency Department at about 1340 on 26 July 2006. He was examined, and a range of investigations were undertaken. The imaging that was undertaken detected the existence of a large bowel obstruction in the area of the splenic flexure. Later that day he was operated upon by Mr Bowyer, a consultant upper gastro-intestinal surgeon. An extended right hemicolectomy was performed which showed:

"... small volume ascites, multiple peritoneal and omental deposits, large secondaries in the liver, tumour plaque on the right diaphragm and small bowel caught up in the primary tumour, (moderately differentiated adenocarcinoma, pT4, pN2 M1 Dukes Stage C2)."

The tumour that was excised was submitted to histopathology. On 1 August 2006, it was reported that there existed a 4cm diameter moderately differentiated adenocarcinoma which had penetrated into the adjacent small bowel. There were multiple omental and peritoneal nodules of adenocarcinoma, one of which was on the peritoneal surface of the caecum and was locally invading into the submucosa of the large bowel. There were metastases to five of the lymph nodes. The histopathology reported the tumour staging as I have earlier indicated.

On 4 August 2006, a CT scan was performed which showed multiple metastases scattered throughout Dr O'Reilly's liver.

His post-operative course was complicated. On 9 August 2006, a further laparotomy and defunctioning ileostomy was performed. On 11 August 2006, he was taken back to surgery where an abdominal washout was performed. On 15 August 2006, because of an acute deterioration due to a small bowel perforation, his condition deteriorated such that he was taken to the Intensive Treatment Unit ("ITU") where a tracheotomy was performed.

Ultimately, on 8 September 2006, Dr O'Reilly was discharged from the Hospital and referred to a medical oncologist, Professor David Cunningham.

On 12 September 2006, Professor Cunningham reported to Mr Bowyer on his observations with respect to Dr O'Reilly. He recorded the operative findings and the complex course which I have summarised. He then said:

"This patient has metastatic colorectal cancer. Systemic chemotherapy can only play a role in his management if his physical condition improves sufficiently to tolerate treatment."

Professor Cunningham made a suggestion with respect to obtaining treatment locally. Because Dr O'Reilly's condition did not ever physically improve, no chemotherapy was ever administered.

On 27 September 2006, Dr O'Reilly was readmitted to the Hospital with a bowel obstruction. This required further surgery which was performed on 12 October 2006. By this time, it was clear that Mr O'Reilly's cancer could not be adequately treated, and that he was terminally ill.

On 27 October 2006, Dr O'Reilly was transferred from the Hospital to St Catherine's Hospice, where he was treated palliatively. On 2 November 2006, Dr O'Reilly died.

It will be necessary to consider in more detail and determine the cause of Dr O'Reilly's death for the purposes of determining whether the breaches of duty, if any, of the defendants caused that death.

Cause of Dr O'Reilly's Death

The plaintiff submits that Dr O'Reilly died of complications directly attributable to his obstructed bowel, and the emergency operations which were needed to deal with the obstruction.

The defendants submit that the evidence does not permit such a finding because there was no statement of opinion by any expert to the effect that the death of Dr O'Reilly was due to complications relating to the abdominal surgery. Rather, the defendants submit that Dr O'Reilly died because of his terminal cancer.

No post-mortem examination was carried out, and the death certificate was not admitted into evidence. It was first sought to be tendered at the end of the defendants' oral submissions. The tender was opposed. For reasons which I delivered ex tempore on 8 May 2014, I refused the defendants' application to re-open their case to tender the document.

I have set out above the significant events of July 2006, and thereafter, with regard to Dr O'Reilly's operative treatment. It will be necessary to expand on those events to some extent.

In cross-examination, Mr Sen told Mr Bartley SC, senior counsel for the plaintiff, that elective surgery of the bowel and colon to remove a carcinoma would have "a very, very low mortality rate". He also said that emergency operations have a higher risk of complications which were more likely to ensue than if the surgery was performed electively.

Dr O'Reilly underwent significant emergency surgery on 26 July 2006. The surgery comprised "... extended right hemicolectomy, small bowel resection and partial omentectomy". After the surgery, and whilst recovering, Dr O'Reilly continued to suffer from internal bleeding as a large volume of blood was seen to come from his drainage tube. This necessitated being returned to surgery in the early hours of 27 July 2006, when he underwent a laparotomy. At that laparotomy, no bleeding was found. He underwent a transfusion with blood and fresh frozen plasma (an extracted fraction of blood intended to assist with the clotting process) and was returned to the ITU.

There continued to be further evidence of ongoing bleeding. Six hours later, Dr O'Reilly was returned to the theatre when it was found that his bowel was dilated with blood. The bleeding vessel was sealed off.

Dr O'Reilly initially recovered quite well until 9 August 2006, when he deteriorated acutely over a period of two hours. It was found that the cause of his acute deterioration was a perforation in his small bowel. The perforation was repaired during laparotomy. He then spent 12 days in the ITU, with a tracheotomy. He was septic throughout that period.

By 23 August 2006, which was nearly a month after his initial emergency admission, Dr O'Reilly's condition improved. On 24 August 2006, he was transferred out of the ITU to a Ward. He required a further procedure to drain a right-sided accumulation of fluid.

In a letter from the Hospital to his general practitioner on 8 September 2006, his time in the Hospital after the initial emergency surgery was described "as a protracted course of post-op complexities". At discharge on 8 September 2006, he had a defunctioning ileostomy.

On 27 September 2006, Dr O'Reilly was again admitted as an emergency patient to the Hospital and required further surgery. He had an obstruction in his small bowel, which had resulted in significant dehydration. He required further surgery by way of laparotomy which was carried out on 12 October 2006. According to Mr Bowyer, the operating surgeon, Dr O'Reilly's abdomen "... was densely packed with adhesions and tumours". He said that there was only a "remote hope" because of his general condition that he would be able to have chemotherapy.

On 29 October 2006, Dr O'Reilly was transferred to St Catherine's Hospice where he died on 2 November 2006.

In their joint report, the UK experts agreed that had the tumour been detected and resected, i.e. removed, around November 2003, then it would not have been present in July 2006 and could not have caused a bowel obstruction at that time. It follows that Dr O'Reilly would not have undergone the significant emergency surgery with the stormy and complex course of recovery which he did in 2006.

In a joint report of Professor Price, one of the UK experts, and Professor Tattersall, an expert resident in Australia, Professor Tattersall expressed his agreement with the answers of the UK expert in these respects.

The experts are also agreed that if the tumour had been discovered in November 2003, it would have promptly been removed by surgical intervention, and Dr O'Reilly would probably have been treated with systemic chemotherapy.

The evidence of the whole of Dr O'Reilly's stormy and complex course which ensued after his collapse at home in July 2006 is convincing in its connection to the obstruction of his bowel relating to his tumour. The extent of the emergency surgery, which was necessary to address the bowel obstruction and removal of the large tumour that was found, was significant.

Dr O'Reilly's course after that surgery was characterised by the need for further surgery and major interventions. It is clear that the bowel obstruction and essential emergency surgery set in motion the decline in his health and wellbeing which was, with the exception of a short period in September 2006 when his health appeared to be relatively stable, a continuous progression downwards until his death.

In the joint report of Professors Price and Tattersall, they agreed that Dr O'Reilly:

"... died very soon after his diagnosis as a result of surgical operative difficulties he had and the extent of his peritoneal metastases".

The reference to peritoneal metastases encompassed the metastases identified after the 2006 surgery, which were found in the omentum surrounding the outside of the bowel. These metastases are a direct result of the size and spread of the tumour by 2006. They did not exist in 2003, and had appropriate treatment taken place then, they would not have escaped from the bowel into the omentum as they had done by 2006.

Professor Price, in her oral evidence, in January 2014, confirmed her view that:

"... he had a number of major complications after the operation. ... He ... was then unwell and he was referred for chemotherapy and didn't have chemotherapy and died. To me, that's an immediate complication of surgery, like he died within the operation ..."

I accept the unchallenged joint opinion of Professors Tattersall and Price, and the opinion expressed by Professor Price in her oral evidence.

I am satisfied that Dr O'Reilly's death was caused (in the sense which the law recognises) by the consequences to his health of the bowel obstruction and subsequent emergency surgery. Of course, that bowel obstruction was caused by the unrestrained growth of the tumour which was present in his left colon in November 2003. That tumour would not have been present, and there would have been no blockage, if surgery had been performed in a timely way in 2003.

I am satisfied that the plaintiff has proved the necessary causal connection between the bowel obstruction and Dr O'Reilly's death.

Anatomy, Procedures and Technical Terms

In order to understand more fully these facts, the allegations of negligence and the expert evidence, it is necessary to provide an explanation of various anatomical features, the nature of the procedures involved, and some of the technical terms used.

The Colon

The colon is that part of the large intestine which commences closest to the mouth (proximally) at the caecum, and finishes furthest from the mouth (distally) at the anus.

The colon is essentially shaped like an inverted U and can readily be described as comprising three parts:

(a) the right colon, also known as the proximal colon or the ascending colon. This is situated on the right-hand side of the patient's body and commences at the caecum;

(b) the transverse colon, which ordinarily has a largely horizontal lie and which has, internally, a triangular shaped lumen; and

(c) the left colon, which is also known as the descending colon or the distal colon, and which, internally, has a largely circular shaped lumen.

The junction of the right colon and the transverse colon is known as the hepatic flexure. The junction of the left colon and the transverse colon is known as the splenic flexure.

The left colon, which finishes at the rectum, consists of the descending colon and the sigmoid colon. The left colon is then followed by the rectum, the anal canal and the anus.

The descending colon is also known as the proximal colon because it is that part of the left colon which is situated closest to the mouth.

The sigmoid colon is largely shaped like an "S". The boundary between the sigmoid colon and the rectum is the recto-sigmoid junction.

As is obvious, the length of the colon, or any constituent part of it, will vary from individual to individual. As well, there will be a variation between individuals about the architecture of the colon. Some will have more, or differently shaped loops in the colon, than others. The stature of an individual will also affect colon length.

Sometimes the technique of an individual proceduralist will temporarily affect the length of the colon examined. As Professor Phillips noted in his article in Clinical Risk 2006 12, 211-217 at 213:

"... the bowel can concertina on to the scope ... or alternatively the scope pushes the colon ahead of itself, thereby stretching it ..."

Accordingly, the depth of insertion of an instrument measured from the markings on the instrument is not automatically to be taken as being an accurate guide to the length of the colon which has in fact been penetrated and examined.

Identifiable Landmarks of the Colon

Those witnesses, including the individual defendants who were well familiar with the conduct of endoscopic procedures, all agreed that there were a number landmarks which assisted the endoscopist to identify what part of the bowel was being examined.

The first of these was identified as the shape of the lumen of the colon. The lumen is the internal opening of the colon. In the left colon it is generally round. In the transverse colon, the shape is generally triangular. According to Mr Sen, that change in shape is obvious and readily detectable. He apparently has not had trouble identifying it.

The second landmark is the presence of a purple shadow cast by the presence of the spleen. In this case, because some years before 2003 Dr O'Reilly had undergone a splenectomy, this landmark was not available to be used.

Another landmark is the presence of an observable pulse in the transverse colon, which does not exist in the left colon. The pulse is observable because the heart beat is transmitted through the diaphragm only to the transverse colon.

Another landmark which Mr Sen regarded as unreliable, was the transmission of light from within the lumen through the abdominal wall, which is then visible externally.

The final landmark which is used by endoscopists, but which is irrelevant to the procedure undertaken in this case is the caecum, a readily identifiable feature at the proximal end of the right, or ascending, colon.

Technical Terms "Proximal" and "Distal"

Use of these two words will vary because the terms respectively describe a part of the anatomy which is closer to, or else more distant from, an identified anatomical reference point. In the conventional approach used for the digestive system, which includes the colon, the term "proximal" is used to describe the parts of the digestive system which are closer to the mouth; and the term "distal" is used to describe the parts of the digestive system which are closer to the anus. A distal feature such as the descending colon can have a proximal section, that is, that part near the splenic flexure and away from the anus, and a distal section, that is, that part nearer the rectum.

Equally, if one was referring, as some witnesses did from time to time, to whether a part of the descending colon was closer to or further from the anus, then the use of the terms would be reversed. Some care needs to be taken to ensure when considering evidence using these terms, what the identified anatomical reference point is.

Procedures

Endoscopy is a generic term given to a procedure which enables the examination of internal parts of the body, usually via a camera or lens mounted on the tip of the instrument. If the instrument (a scope) is inserted through the mouth, it is called a gastroscope. This did not happen in this case. If the instrument is inserted through the anus, as happened here, then it is possible to undertake a number of different examinations, and the term given to the instrument or procedure will vary according to the intended examination. All of these examinations fall within the umbrella term endoscopy.

Relevantly to the procedure in this case, there are two examinations. The first is:

(a) a colonoscopy, which is an examination of the entire colon, and rectum, commencing at the anus and going through to the caecum. In order to be successfully performed, the patient is required to have their whole colon emptied of its contents, usually through a self-administered medication on the afternoon or evening before the procedure. Once the preparation is underway, the patient needs to remain in close proximity to a toilet, and is often, therefore, unable to be at their workplace. As well, the patient is generally given appropriate sedation for the duration of the procedure. A reasonable recovery time is necessary after the procedure.

The instrument used for this procedure is described as a colonoscope, or sometimes a "long colonoscope" and is either 150cm or 160cm in length. The evidence was often imprecise about the actual length of the instrument, both measurements were used somewhat interchangeably. However, in this case, these different measurements are of no importance. This long instrument has a lens, and a light source which allows the doctor undertaking the procedure to view the images of the colon on a video monitor. Typically, the colonoscope also enables a biopsy of tissue of the colon to be taken, removal of any polyps found during the procedure and, potentially, if required, the sealing off of bleeding vessels with heat treatment (cauterisation).

The long colonoscope has marked gradations at 10cm intervals from its tip. This marking allows the proceduralist to quickly determine what length of instrument has been inserted into a patient's body.

(b) The second is a flexible sigmoidoscopy, which is the name given to the procedure by which a limited length and range of the left colon is examined. The examination is limited in a number of ways.

The procedure of flexible sigmoidoscopy is not intended to examine the whole of the colon. It is limited to examining from the anus up to the sigmoid colon, and such parts of the descending colon, proximal to the sigmoid colon, which can conveniently be examined. Accordingly, the only bowel preparation which is administered is either one or two rectal enemas intended to cleanse the descending colon, but not the transverse or ascending colon. The enema or enemas are administered at the hospital on the morning of the procedure. Except for the day of the procedure no time is required away from work.

Sedation may be, although generally is not, administered for the procedure. No anaesthetic is administered. An anaesthetist (or a medical practitioner performing that function) is not required to be present. The post procedure care is less complicated and involves a shorter time for the patient than does a colonoscopy. Because the endoscope is being inserted for a shorter distance into the bowel, the risk of perforation of the bowel is much less.

In some cases, the choice of instrument to be used is also a limiting factor in both the length and the range of the bowel being examined.

In the United Kingdom in 2003, there were two instruments potentially available - either of which could be used to perform a flexible sigmoidoscopy. One, called a flexible sigmoidoscope, was limited to 60cm in length ("the short endoscope"), and the view of the bowel was obtained, when this instrument was used, directly through lenses attached to the instrument. The view was not displayed on a video monitor.

The second instrument, which was widely in use and which was the only instrument used at the Hospital, was the 150cm or 160cm colonoscope which I have previously described ("the long colonoscope"). When used for a flexible sigmoidoscopy procedure, this instrument was not used for its entire length, but only for a length sufficient to examine the left colon. Because a colonoscope has length gradations marked along the tube, it is possible to determine what length of instrument has been inserted. The UK experts generally agreed that if a colonoscope was used to undertake a flexible sigmoidoscopy, it was within reasonable practice bounds to insert the colonoscope to a length of 60cm measured from the anus by reference to the gradations on the instrument.

It was well recognised in 2003 that a flexible sigmoidoscopy (whether performed with the short endoscope or the long colonoscope inserted to a length of 60cm) had limitations as a procedure. In a 1999 article by J Painter & Ors, "Depth of Insertion at Flexible Sigmoidoscopy: Implications for Colorectal Cancer Screening and Instrument Design" published in Endoscopy, 1999; 31(3): 227-231, it was noted that the splenic flexure was not reached in the majority of examinations which used a standard 60cm instrument. The same conclusions are applicable if the long colonoscope is inserted to 60cm measured by the gradations on the instrument.

The study also found that in order to extend as far as the splenic flexure, an average 75.4cm of colonoscope was needed. It continued:

"That is, in order to enter the descending colon, more than 60cms of instrument was frequently inserted into the sigmoid colon before subsequent straightening to reach the splenic flexure. Therefore it appears than an instrument of at least 80 to 100cms in length would be required to ensure examination to the splenic flexure."

The paper, although published in 1999, was presented in abstract form at the September 1996 meeting of the British Society of Gastroenterology. The UK experts accepted that these conclusions were well known in the profession in 2003. These conclusions were, or else ought to have been, well known to the two defendant doctors.

Foreign Law

As the events which give rise to the cause of action upon which Mrs O'Reilly sues occurred in the United Kingdom, the parties are agreed that the relevant law of negligence which is to be applied is the common law of England and Wales.

The parties in their submissions on the question of liability also referred the Court to a significant number of judgments of courts of England and Wales on questions relevant to breach of duty and causation. Having regard to the similarity, but not coincidence, of the common law of England and Wales in this area, with the common law as it has been in Australia, and the current statutory law in NSW, there is no difficulty in the Court identifying the position of the common law in England and Wales, and applying it to this case.

Equally, although the parties agreed on a Joint Memorandum as to Foreign Law, there was no suggestion from either party that the Court should not, for itself, examine the relevant authorities and act in accordance with the principles identified in them. In fact, the parties both agreed that this was the correct approach for the Court to follow.

Pursuant to a direction on 12 October 2012, the parties filed a Joint Memorandum as to Foreign Law.

Having agreed that the relevant law of negligence was the common law of England and Wales, the parties agreed that that common law required a plaintiff to prove the following elements:

(a) the defendants owed to the plaintiff a duty of care to avoid reasonably foreseeable injury;

(b) the defendants were in breach of that duty of care; and

(c) proof on the balance of probabilities that the breach of duty of care was a cause in law of the adverse consequences complained of by the plaintiff.

The parties agreed on the standard of care, which is not unimportant in this case. The parties' agreement was as follows:

"As to the standard of care to be provided, the common law of England and Wales requires that the relevant health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom at the time the criticised treatment was given (here 2003)."

This agreement derives from the decision of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, that a doctor who had acted in accordance with a practice accepted at the time as property by a responsible body of medical opinion skilled in the particular form of treatment in question, was not guilty of negligence because there was a body of competent professional opinion which might adopt a different technique.

It will be convenient to refer to this statement as "the Bolam test" or "the Bolam principle".

In the United Kingdom, these propositions on the law of causation are well established:

(a) The burden of proof in causation is upon the plaintiff.

(b) Causation is a question of past fact, to be decided on a balance of probabilities: see Mallett v McMonagle [1970] AC 166.

(c) If the plaintiff proves that the negligence was the sole cause, or a substantial cause, or that it materially contributed to the damage, then the plaintiff succeeds in full: see Bonnington Castings Ltd v Wardlaw [1956] AC 613; McGhee v National Coal Board [1973] 1 WLR 1.

(d) If the plaintiff fails to cross this threshold, then there will be no recovery of any damages: see Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428.

See Tahir v Haringey Health Authority [1988] Lloyds LR: Med 104 per Otton LJ cited with apparent approval in Gregg v Scott [2002] EWCA Civ 1471 at [29] per Latham LJ.

Insofar as causation and loss were concerned, the parties were agreed that the common law of England and Wales did not provide a remedy for the loss of, or reduction in, the chance of a better outcome. The common law required that the plaintiff must show on the balance of probability, that the delay in treatment was a cause in law of Dr O'Reilly's death: see Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176.

Section 1 of the Fatal Accidents Act 1976 (UK), which was agreed to be the applicable legislation, is in the following form:

"1. Right of action for wrongful act causing death

(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

Although not the subject of any submission by any of the parties, and in light of the agreement to which I have referred above, I would interpret this provision as meaning that if the wrongful act, neglect or default was the sole or a substantial cause, or a material contribution to, the death which gives rise to the claim, then it will fall within the provision of this section.

As well, there was an agreement that if there was any limitation period, then the provisions of the Limitation Act 1980 (UK) were applicable.

There was also a significant degree of agreement on quantum. However, it is unnecessary to set out that agreement here.

Pleadings

The final pleading upon which the plaintiff rested her causes of action was the Third Further Amended Consolidated Statement of Claim, which was filed on 7 November 2013.

That Statement of Claim pleaded 19 separate particulars of negligence. They are as follows:

"38. Each of the Defendants, through their acts and omissions, breached their duties of care.

Particulars

a. having offered the deceased 'screening', failed to perform a colonoscopy as part of the screening for bowel cancer;

b. alternatively, failed to perform a barium enema following the flexible sigmoidoscopy on 12 November 2003;

c. failed to direct that a colonoscopy be done as part of the screening for bowel cancer;

cc. the second defendant, having arrived at the clinical view that the deceased's left colon required exploration to the splenic flexure, failed to order that that investigation be carried out by way of colonoscopy.

d. alternatively, failed to direct that a barium enema be performed following the flexibl[e] sigmoidoscopy on 12 November 2003;

e. failed to diagnose a pre-cancerous polyp (or polyps) during the screening for bowel cancer on 12 November 2003;

f. on or about 12 November 2003 failed to advise the deceased that no diagnosis of his rectal bleeding had been reached;

g. on or about 12 November 2003 failed to advise the deceased that the flexible sigmoidoscopy was incomplete;

h. on or about 12 November 2003 failed to advise the deceased that he had not undergone 'screening';

i. on or about 12 November 2003 failed to advise the deceased that his left colon had only been partly examined;

j. on or about 12 November 2003 failed to advise the deceased and Dr Wood that there was no basis for their report to the deceased and to Dr Wood that the deceased's bowel was normal;

k. the third defendant failed to appreciate the landmarks which should have informed him as to whether he had in fact reached the splenic flexure;

l. the third defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon had been completed to the splenic flexure;

m. the third defendant failed to appreciate and understand the landmarks which should have informed him of whether he had in fact reached the splenic flexure;

n. alternatively, the third defendant failed to use those landmarks properly or at all to guide him as to whether he had conducted an examination of the left colon to the splenic flexure;

o. the third defendant proceeded on the basis that to insert the endoscope to a distance of 60cm was necessarily sufficient in order to satisfy himself that he had reached the splenic flexure with the instrument;

p. the third defendant proceeded on the basis that the applicable professional guidelines, namely the Guidelines for the Management of Colorectal Cancer (2001) of the Association of Coloproctology of Great Britain and Ireland, required no more than that, or in the alternative mandated that, the endoscope be inserted by a distance of no more than 60cm in order to conduct an examination of the left colon to the splenic flexure;

q. the third defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon has been completed to the splenic flexure;

r. the third defendant failed to appreciate that a flexible sigmoidoscopy procedure was, as at November 2003, not limited to examination of the sigmoid colon, but, rather, was intended to examine the whole of the left colon to the splenic flexure."

In their Defence to the pleading, the defendants admitted that the first defendant, the NHS Trust, was the entity legally responsible for the clinical acts of the staff employed at the Hospital. There is no dispute that, for the purposes of this case, the first defendant, the NHS Trust, is also legally liable for the conduct of Mr Sen and Mr Poushin, the second and third defendants, in their treatment of Dr O'Reilly.

The defendants each admitted that they owed to Dr O'Reilly a duty to provide him with:

"... a standard of care that would be supported as reasonable by a responsible body of peers practising in the United Kingdom in 2003".

The defendants deny that they were in breach of their duty of care to Dr O'Reilly.

In answering the allegations of breach of duty of care, the defendants, in their Defence, set out a number of factors which they pleaded as supporting the proposition that they had acted reasonably. Those matters were as follows:

"a. in August and November 2003, the reasonable investigation was a flexible sigmoidoscopy. The reasonable presumptive working diagnosis was by reference to the local obvious anal cause namely bleeding from haemorrhoids, the anal skin flaps, or both. The deceased was appropriately and reasonably treated as an individual at low risk of bowel cancer by reason of his presentation which included the facts that he had no change in bowel habit or constipation; no family history of cancer; no weight loss; no palpable abdominal masses;

b. in the context of the matters noted at a. above and the confirmation of the normal bowel from the procedure carried out on 12 November 2003, it was reasonable to conclude that there was no evidence for any internal bleeding and that the planned treatment for the anal skin flaps and the haemorrhoids was the reasonable and appropriate course. In that event, there was no reasonable requirement to perform a barium enema after the normal findings with the flexible sigmoidoscopy;

c. the deceased's presentation in August and November 2003 correctly and appropriately led to the reasonable conclusion that prospectively the explanation for the bleeding was the anal skin flaps and/or haemorrhoids. The deceased on the basis of his recorded circumstances was at low risk of bowel cancer. The reasonable further investigative procedure was by way of a flexible sigmoidoscopy;

d. a colonoscopy would not have been part of the reasonable suite of investigative procedures in 2003 for a male with prospectively a low risk of bowel cancer;

e. for the same reasons that it was not reasonable to perform a barium enema following the normal results of the flexible sigmoidoscopy in a patient with a clinical profile whereby he was at low risk of bowel cancer and there was a reasonable prospective explanation for the symptoms of bleeding (which was planned to be remedied by surgery), there was no reasonable basis or need for the Defendants to direct that a barium enema be performed; and

f. the Defendants acted reasonably in treating the presentation of the deceased in August and November 2003."

As well, the defendants denied any causal link between their conduct and the death of Dr O'Reilly. They pleaded that by the time Dr O'Reilly saw Dr Wood on 13 June 2003, he already had "incurable cancer". They further pleaded that whatever form of treatment had been afforded to Dr O'Reilly in 2003, the probability was that:

"i. by 2003 there was advanced cancer present with at least one liver metastasis. The deceased had occult metastatic disease in microscopic form by this time and this would have been developed with omental and liver metastases. The rectal bleeding in 2003 was likely to be due to a local benign anal cause; and

ii. the deceased's survival would have been substantially the same as it was in fact (at most increased by four months) even if treated with systemic chemotherapy;"

As a consequence, the defendants pleaded there was no causal connection between any act or omission of the defendants, and the death of Dr O'Reilly.

Finally, the defendants pleaded that, insofar as the plaintiff alleged that she had suffered from psychiatric injury with consequent loss and damage, such injury was not caused by their negligence. They also pleaded that such action was brought more than three years after such a cause of action had accrued to the plaintiff, and was accordingly, not maintainable by reason of the provisions of s 11 of the Limitation Act 1980 (UK).

The Submissions

In her oral and written submissions, at the conclusion of her evidence, the plaintiff narrowed her case on breach of duty of care. The plaintiff identified that her case on liability could be concentrated in this way.

First, that Mr Sen, the second defendant, was negligent in August 2003 because he did not order a colonoscopy in light of his subjective (and entirely reasonable) intention to examine the whole of the left colon of Dr O'Reilly, because the term "flexible sigmoidoscopy" usually described a procedure which did not ordinarily reach, or enable the visualisation of, the whole of the left colon up to and including the splenic flexure. In short, based upon his clinical examination and plan, Mr Sen should have, but did not, order a colonoscopy.

Secondly, as against Mr Poushin, the third defendant, the plaintiff submitted that her case on breach of duty could be reduced to two aspects, namely:

(a) that he performed the endoscopy procedure without due care and skill because he failed to insert the endoscope to a sufficient distance which enabled him to either reach, or else visualise, the splenic flexure; and,

(b) having in fact failed to reach or visualise the splenic flexure, Mr Poushin negligently failed to appreciate that his investigation was incomplete, and failed to refer Dr O'Reilly for further investigation by way of a colonoscopy or some other alternative procedure.

In response to this summary of her case, the defendants, orally and writing, submitted, in effect, that the context in which Dr O'Reilly came to be assessed by Mr Sen, and then examined by Mr Poushin, was important. It was, as they submitted, that Dr O'Reilly was in a low risk category for patients of his age who presented with the symptoms and history which he had to be diagnosed with a cancer in the bowel. The defendants submitted that only 1 in 1000 patients with similar presenting symptoms and history to that of Dr O'Reilly is diagnosed with a bowel cancer.

As well, as a matter of context, the defendants submitted that any index of suspicion with respect to Dr O'Reilly having bowel cancer, was reduced because of the existence of inter-current conditions, namely the untreated anal skin tags and the second degree haemorrhoids, which provided a rational and benign explanation for his presenting symptoms of rectal bleeding.

Having regard to that context, the defendants submitted that the investigation performed on 12 November 2003 was for the purpose of diagnosing the cause of Dr O'Reilly's rectal bleeding, and it did so by identifying the haemorrhoids as being that cause. Accordingly, it was a reasonable examination.

In addition, the defendants submitted that for a person of Dr O'Reilly's age and low risk symptoms, with an identified possible innocent source of his rectal bleeding, acceptable practice at the time in the United Kingdom was encompassed by the Guidelines published in 2001 by the Association of Coloproctology of Great Britain and Ireland ("the Guidelines"), and that Mr Poushin's investigation accorded with those Guidelines. Hence, the Bolam principle would be satisfied by compliance with the Guidelines.

Because they feature significantly in the course of the evidence which it will be necessary to review in considering the question of breach of duty, it is convenient at this stage to identify the guidelines which are relied upon by the defendants.

2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland

The purpose of the Guidelines was described in this way, in the Guidelines themselves:

"Following the Government White Paper in 1991 'Working for Patients', the Department of Health approached the Association of Coloproctology of Great Britain and Ireland and the Royal College of Surgeons to request the production of clinical practice guidelines for the management of, among other conditions, colorectal cancer. The original Guidelines were published in 1996, with the purpose of assisting clinicians in clinical decision-making and practice, by removing uncertainty in areas where it is possible to do so. In addition, they described the gold standard of good clinical care, and were proscriptive of unacceptable clinical standards. The revised Guidelines have maintained these guiding principles and added newer evidence to support changes in clinical practice wherever possible."

Importantly, in considering their purpose, the Guidelines stressed that:

"... Guidelines are not intended to create a rigid framework where there is a reasonable difference of opinion. Thus, clinical freedom within limits defined by good practice, is preserved."

In describing colorectal cancer in the United Kingdom, the Guidelines said this:

"Colorectal cancer is the second most common cause of cancer death after lung cancer, the overall 5 year survival is less than 40% ... The high incidence of this disease, together with the fact that improvement in mortality in recent years has been modest, highlights the need for research into prevention, earlier diagnosis and better treatment.

Advanced disease at first presentation is still common, both the Trent/Wales and Wessex audits indicate that over 20% of patients present with distant metastases. This may improve with heightened awareness of the disease and its symptoms among the general public."

It follows from this last statement that 80 per cent of patients presenting with relevant symptoms, and who were investigated, did not have distant metastases.

The Guidelines went on to say:

"Investigations can be tailored according to the symptomatic presentation. The majority of cancers in patients presenting with rectal bleeding or a change in bowel habit without any other significant diagnostic factors, occur within 60cm of the anal verge and can be diagnosed by flexible sigmoidoscopy, which means that a selective policy for the investigation of the proximal colon by a barium enema or colonoscopy, can be safely adopted. Patients presenting with an iron deficiency anaemia, an abdominal mass or abdominal pain indicating incipient intestinal obstruction will require full colonic imaging by barium enema or colonoscopy."

The detailed Guidelines also included criteria for defining patients as high risk or low risk. That definition is propounded in the Guidelines for the purpose of ensuring a timely specialist appointment upon referral from a general practitioner. It is also used to determine the relevant investigation which needs to be carried out.

The rating system for risk depends upon the presence of symptoms and, in some cases, an age threshold. If a patient presented with rectal bleeding and a change in bowel habit with increased frequency of defecation and/or loose stools, which had persisted for at least six weeks, then such a patient, regardless of their age, would be regarded as a high risk category patient. On the other hand, a patient who presented with rectal bleeding persistently, but who did not have any anal symptoms would only be regarded as being in a high risk category if they were over 60 years of age.

Criteria which indicated that patients were at lower risk of cancer included rectal bleeding with anal symptoms or rectal bleeding with an obvious external visible cause such as prolapsed piles.

These criteria were, according to the Guidelines, to be used to determine which route of referral the patient was to follow.

The discussion contained in the Guidelines, which has been extracted above, together with the contents of the Guidelines relating to risk criteria, concluded with a recommendation which was in the following terms:

"In summary, it is recommended that patients with higher risk symptoms should be fast tracked, either in special clinics or with urgent appointments to routine clinics. Patients referred through such clinics should be investigated with either flexible or rigid sigmoidoscopy plus a high quality double contrast barium enema or colonoscopy when appropriate."

This recommendation was graded "B", which meant that, before it was made and published in the Guidelines, it required the availability of well conducted clinical studies, but not randomised clinical trials, on the topic of recommendation.

The Guidelines contain other material which is relevant on the question of the nature and identity of the tumour, its development and the likely path of treatment once a tumour was discovered.

The four UK based clinical experts, Professor Phillips, Professor Price, Professor Dorudi and Mr Finlay, met in joint conclave in accordance with the practice of the Court and gave their evidence concurrently. The joint report produced as a consequence of the joint conclave, records their opinion with respect to the Guidelines and their application in this case.

These experts agreed on the following matters with respect to the Guidelines:

(a) that in a 52 year old man with low risk symptoms of cancer, and an identified likely anal source for the rectal bleeding, a surgeon who followed the Guidelines would be following acceptable practice at the time;

(b) that the reference to flexible sigmoidoscopy was sufficient to encompass the surgeon using either the 60cm flexible sigmoidoscope as the instrument to undertake the examination, or else a 150cm colonoscope inserted to 60cm from the anus;

(c) that the majority of cancers in patients presenting with rectal bleeding occur within 60cm of the anal verge, and that necessarily, a proportion of cancers in such patients occur in the left colon, but beyond the distance of 60cm from the anal verge; and,

(d) that, whatever the Guidelines recommended, a particular doctor in the case of any one or other patient, was free to proceed in a way which did not conform with the Guidelines if that doctor judged that the particular circumstances warranted a different approach.

It may be observed that this last agreed statement reflected the statement in the Guidelines themselves. It confirms the common sense proposition that the Guidelines are not anything more than what they say they are, nor what their title suggests. It is clear that the Guidelines are not a code which mandated particular practices, but rather they set out to indicate what would be regarded as acceptable practice in general which is necessarily subject to any reasonable variations between patients and doctors, and which allows for clinical judgment on the part of the doctor.

The plaintiff submitted that another publication issued by the NHS in 1997 put forward a standard for clinical conduct which the Court ought prefer to the Guidelines. The document is described as "Improving Outcomes in Colorectal Cancer - The Manual". The UK experts did not accept that this document provided a standard of clinical care against which the conduct of the defendants could be considered. This is hardly surprising. The document itself says that it is not a set of clinical practice guidelines. Its principal intention is stated to be " ...to help the commissioning, planning and developing of colorectal cancer services". Properly evaluated, it is a document which relates to the planning and standardisation across the UK of appropriate colorectal cancer services. It is not, and should not be interpreted as the equivalent of the Guidelines discussed above.

The principal purpose for which the plaintiff relies on The Manual is for a statement on p33 which recommends that if colorectal cancer is suspected in a patient the initial investigation should " ... involve either colonoscopy alone or flexible sigmoidoscopy followed by a double-contrast barium enema." Whist I am satisfied that this is not the equivalent of a clinical practice guideline, it does not seem to me, even if given full effect, that it could tell against a finding that if a practitioner followed the Guidelines appropriately, they would be acting in accordance with the Bolam test. The Manual, does not advance the plaintiff's case in this respect.

Mr Sen

It is convenient to commence the consideration of the case against Mr Sen by examining his evidence in the factual context which I have earlier described. In so doing, it is necessary to keep in mind that his evidence consisted of written statements, oral examination and cross-examination.

In AB, Lord Mance adhered to his earlier view, and at [84] said:

"It is of course for a claimant to put his case as he thinks fit. No one is bound to commence proceedings, ... . But, if a claimant elects to issue and is pursuing proceedings, he must identify the case made and stand by it. Among the allegations which must, either explicitly or implicitly, be made, is that the case is not time-barred. Once an issue of knowledge is identified as arising under sections 11(4)(b) and 14(1), the onus lies upon the claimant to make good his case on knowledge, ... . A claimant bringing proceedings necessarily asserts that he or she has a properly arguable claim. ... Once proceedings are begun, it is by reference to the facts asserted as giving rise to the claim that the question of knowledge must be tested. The claimant cannot avoid this. Indeed, it is difficult in normal circumstances to think of a claimant trying to do so."

The President, Lord Phillips of Worth Matravers, who dissented as to the result, said of the onus issue, at [144]:

"Where a personal injury action is commenced more than three years after the cause of action arose and the defendant raises a challenge on the ground that it is time-barred, the onus is on the claimant to prove that the action was started less than three years from the date on which he acquired knowledge, as defined by section 14: see the comprehensive analysis of burden of proof in the context of limitation of Mance J in Crocker v British Coal Corporation (1995) 29 BMLR 159, 169 -173."

The law binding upon me has the result that, in this case, where, the defendants have pleaded that the limitation period has expired, it is for the plaintiff to satisfy the Court that the requisite date of knowledge, as that term is used in s 11(4)(b) of the Limitation Act, fell within a period of three years before she commenced her nervous shock action.

Although Mrs O'Reilly gave evidence, both by written statement and orally in Court on a number of occasions, and on the latter of those occasions specifically with respect to her nervous shock claim, and in some detail, the question of her state of knowledge of the matters set out in s 14 of the Limitation Act, and when that state of knowledge was reached, was never specifically addressed.

As the terms of s 14, which I have set out above, demonstrate, what needed to be established was when Mrs O'Reilly first had knowledge that her psychiatric injury was significant; that the injury was attributable in whole or in part to the act or omission which was alleged to constitute negligence or a breach of duty by the defendants, and the identities of the defendants. Or putting it differently, in the words of Lord Hoffman, having looked at how she put her case, and distilled what she was complaining about, whether she " ... had, in broad terms, knowledge of the facts on which that complaint is based."

In one of her statements which became an exhibit (Ex P), Mrs O'Reilly gave some quite detailed evidence about how she felt and what she did after her husband's death. It is clear that it was a struggle for her to carry on her life, look after her son Shane, who required 24 hour care because of his disability, attempt to stabilise her and her family's financial affairs, provide support for other children and to look after herself. She was clearly suffering from a depressive condition during this time because, in 2007, she was prescribed anti-depressants after a visit to a general practitioner. It would be entirely understandable if during this period she had not turned her mind to the question of how her husband's death had come about.

She returned to Australia in February 2008 in the hope of obtaining greater family support in caring for Shane. She continued to provide ongoing care for Shane until he died in July 2011. Throughout this period of time she was very busy in continuing his care. And as well, her evidence suggests that she continued to struggle with her own mental state.

The earliest expert written report, which is referred to in the evidence, was obtained from Dr Terry Gavaghan, an expert based in the Australian Capital Territory, and is dated 1 July 2010. Dr Gavaghan said in evidence that he was in England in 2007 when either by Mrs O'Reilly or perhaps one of her siblings, he was first presented with several hundred pages of medical notes and asked to provide some advice to Mrs O'Reilly as to what could be made from the documents, and seemingly, how Dr O'Reilly had come, completely unexpectedly, to die.

It was also clear from Dr Gavaghan's evidence that he was provided with further material through Mrs O'Reilly's lawyers from when he was first asked for help in 2007 through to the time of his first report, and then ultimately, the time of giving evidence.

He was not asked, and gave no evidence, about when he provided any advice, either oral or in writing, to Mrs O'Reilly as to what had happened, in his view, prior to his written report dated 1 July 2010.

Of course, it is entirely possible given the informal and familiar nature upon which he was earlier asked in 2007 to provide advice, that he could have given advice informally. However, there was no exploration of that fact with him in his evidence. The provision of such advice in 2007 by Dr Gavaghan to Mrs O'Reilly, particularly if it had been only in tentative terms, would, if it had been given, have been one way to have established a date of knowledge within the meaning of that phrase in the Limitation Act (UK). No attempt was undertaken to do so with Dr Gavaghan.

The evidence established that prior to February 2008, when Mrs O'Reilly returned to live in Australia, that she had consulted a firm of lawyers in London, Kingsley Napley who were very experienced in personal injury claims, including medical negligence claims. Mrs O'Reilly when being cross-examined gave this answer:

" ... I actually commenced legal action one month after David's death. I went to see a firm of solicitors in London called Kingsley Napley. I first went to see them in December 2007."

She added to that description of her attendance by a statement of her purpose in consulting those lawyers. She said:

"So one of the outcomes I was hoping for in taking legal action would be compensation for lost earnings so I could pay for the care that David otherwise would have provided to Shane if David hadn't died."

The apparent inconsistency in the date stated as December 2007 rather than December 2006 which would be one month after Dr O'Reilly died, was not further explored in either cross-examination or re-examination. The likelihood is that Mrs O'Reilly meant December 2006, and mistakenly said December 2007. I am of his view because of Mrs O'Reilly's statement about the proximity of the consultation to Dr O'Reilly's death, and the necessitous financial circumstances in which she found herself after his death and the financial outcome.

Somewhat confusingly, during later evidence, Mrs O'Reilly described her consultation with Kingsley Napley, as seeing them "... in a preliminary way. They were doing the preliminary work on the medical investigation". However, this evidence was given on a voir dire which was being conducted to determine an application for leave to rely upon a statement of Mrs O'Reilly which was served late. No party tendered this voir dire evidence on the trial, and accordingly, it must be ignored.

Whether there was one or more than one consultation between Mrs O'Reilly and her UK lawyers has not been made explicit. The task which those lawyers were briefed to undertake was not clearly identified. When dealing with her nervous shock claim, Mrs O'Reilly said of Kingsley Napley, that "we never went into this - I never went into this aspect of it - before I returned to Australia". However, that statement which I am prepared to accept, does not of itself and without more mean that Mrs O'Reilly's consultation, or consultations with the firm did not provide her with sufficient material to demonstrate that her state of knowledge was sufficient to start time running. After all, it had always been clear to Mrs O'Reilly from 2006 that she had been completely shocked by the sight of her husband collapsing in front of her at home, and that she had been profoundly affected by his death later that year. Her knowledge in July 2006 was relevantly deficient because she did not know at that time whether her injury was significant, and how her injury could be attributed to any act or omission on the part of the defendants.

In drawing attention to the briefing of lawyers, and consultations with them as forming part of the factual matrix relevant to the date of knowledge of Mrs O'Reilly, I do not ignore what Judge LJ said in Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213 that it does not automatically follow that the first date upon which a claimant took legal advice, necessarily equates with the claimant's date of knowledge, although such an inference may be justified in one case or another. See also Lord Wilson in AB at [5].

Mr Finlay, the consultant colorectal surgeon retained to give evidence in support of Mrs O'Reilly's case, was first retained by a letter of instruction dated 15 January 2009, sent to him by a solicitor at Kingsley Napley. His report was dated March 2009. Of all the UK expert reports tendered in Court, this seems to be the earliest. Mr Finlay's report also lists the documents with which he was provided for the purpose of his report. There is nothing in the description of those documents which, by reference to the date of their creation, enables a finding to be made as to when they came into existence, nor when any of the documents, or their contents, would have come to Mrs O'Reilly's attention.

The evidence which was adduced, which I have reviewed above, does not permit me to conclude, without more, that the date of knowledge of Mrs O'Reilly was within the three year period before the commencement of proceedings for nervous shock. In circumstances where the onus of proof of the relevant date of knowledge falls upon plaintiff, I am not prepared to supplement that evidence by drawing any inference, assuming one was available, which remedies such an evidentiary deficiency. In this respect, I follow and apply the principle identified by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-F, and, with respect, adopt his reasoning. His Honour said:

"In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of [a relevant witness]. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.

There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions."

In all of those circumstances, I cannot be, and I am not, satisfied that the plaintiff's date of knowledge was relevantly after 7 June 2008 being a date within a period of three years prior to the commencement of the nervous shock proceedings. I am therefore satisfied that Mrs O'Reilly's claim for damages for nervous shock is statute barred, and the defendants, for that reason alone, are entitled to judgment with respect to it.

In case I am in error on this issue, it is appropriate for me to consider the remaining disputed issues about whether, leaving aside the statutory bar, Mrs O'Reilly would otherwise have succeeded on her claim.

The issue to which I next turn is one which can conveniently be termed the proximity issue. In order for there to be a duty of care in a claim for nervous shock by a secondary victim, a term which can conveniently be used to describe Mrs O'Reilly's position, there needs to be proximity between the event which led to her shock and the negligence of the defendants. In secondary victim cases, the term "proximity" is used " ... to mean physical proximity in time and space to an event": Novo at [27] per Lord Dyson MR.

The defendants draw attention to the considerable period of time which elapsed between the tortious conduct of the defendants in 2003 and the collapse of Dr O'Reilly and also his death, both of which occurred in 2006.

The defendants commence their analysis of the law relevant to this issue by drawing attention to the approach of the common law in nervous shock cases where the claimant is a secondary victim. They first cite the decision of the Court of Appeal of England and Wales in Sion v Hampstead Authority (1994) 5 Med LR 170, where Staughton LJ said, with respect to claims by secondary victims:

"It is I think recognised almost universally that the common law ought to impose some limit on the circumstances in which a person can recover damages for the negligence of another."

The defendants next draw attention to the decision of the Court of Appeal in Taylor v Somerset Health Authority (1993) 4 Med LR 34. In that case, staff employed by the defendant hospital had negligently failed to diagnose and treat the plaintiff's husband's serious heart disease. The plaintiff claimed that she suffered nervous shock as a consequence of arriving at the hospital after learning that her husband had suffered a heart attack, some months later, at work and that he had died. The primary judge held that the death was the final consequence of negligence by the defendants many months earlier. The primary judge held, and was upheld in the Court of Appeal, that there was not sufficient proximity or propinquity between the defendants' negligence and the occurrence of the shock upon which the claim was based.

A similar result was reached in Novo where the period between the negligence of the defendants which caused the claimant's mother to be injured, and the mother's collapse at home in the presence of the claimant, as a consequence of which she suffered the nervous shock, was about three weeks.

Accordingly, the defendants submit that the claim which the plaintiff brings involves an extension to, or an expansion of, the ambit of liability in respect of claims for nervous shock by secondary victims contrary to the control mechanisms propounded first by Lord Oliver in Alcock. As is apparent from Alcock and subsequent authorities these control mechanisms cannot be justified by principle, but are essentially the consequence of judicial policy making, which are nevertheless well entrenched.

The plaintiff submits that Novo, and all that it encompasses, is readily distinguishable upon the facts from the present case. The plaintiff submits that the relevant event here, which was directly caused by the negligence of the defendants, was the collapse at home of Dr O'Reilly and that the necessary degree of proximity or propinquity existed between Mrs O'Reilly and the event caused by the breach of duty of the defendants to Dr O'Reilly.

There is no doubt that Mrs O'Reilly was present and saw Dr O'Reilly collapse. There is little doubt that on her evidence the event was sudden, it was entirely unexpected from her perspective, and that she reacted in a way consistent with what is required to establish nervous shock.

The plaintiff submits that what followed thereafter, namely, her psychological and psychiatric reaction to the events which followed, including the death of Dr O'Reilly, were reasonably foreseeable consequences of the psychiatric injury which she suffered, which was itself the consequence of the negligence of the defendants.

The plaintiff goes on to submit that the earlier failure of the defendants to diagnose, and appropriately treat, Dr O'Reilly's tumour:

"... merely created the conditions for the occurrence of [the collapse] just as a failure properly to construct a building at a much earlier point in time, leading to its collapse at a much later time and the death of its occupants, creates the conditions for the happening of that later event."

The plaintiff submits that there is no principled distinction to be drawn between the case at hand and the example given.

The plaintiff in particular draws attention to the remarks of Peter Gibson LJ in Sion which, she submits, although obiter dictum, are highly persuasive, correct in principle and which I ought to follow. Peter Gibson LJ said:

"I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system."

The difficulty with this submission is that the obiter remarks of Peter Gibson LJ have not commanded broad assent as guiding principles in the UK. To accept the plaintiff's submissions would be to extend one of the control mechanisms determined to be applicable by Alcock beyond " ... what the ordinary person would be regard as reasonable.": Novo at [30] per Lord Dyson MR.

Accordingly, Mrs O'Reilly has not established that she would have succeeded in her claim for nervous shock, even if it was not statute barred.

It is appropriate to note that the result in this respect would in all probability have been different if the tort had arisen in Australia and I was applying Australian law, but I am not. The result which I have reached is that determined by the application of UK law although the proceedings are being heard in this Court.

The defendants also submitted, in response to Mrs O'Reilly's nervous shock claim, that such was the disconformity between her pleadings which articulated a claim for nervous shock based upon her reaction to the death of her husband, and her final submissions which articulated a cause of action based upon her nervous shock arising upon seeing her husband collapse in June 2006 which was some months before he died, that the Court would not entertain the claim based upon the latter formulation of it, but would hold Mrs O'Reilly to the originally pleaded basis of the cause of action.

I am not prepared to accept this submission thereby precluding Mrs O'Reilly from mounting her nervous shock claim based upon the collapse of her husband at home. I agree that the pleading upon which Mrs O'Reilly relies does articulate her nervous shock action on the basis of her husband's death. But this was a case, in so far as Mrs O'Reilly's nervous shock was concerned, which was conducted by the parties without regard to that specific form of pleading.

I allowed a statement of Mrs O'Reilly to be tendered which comprehensively described her nervous shock as being related to the collapse of her husband. That statement was provided to the psychiatrist retained by the defendants. After it was provided, the psychiatrist re-examined Mrs O'Reilly, and prepared a report based on that re-examination and the history contained in the written statement. Mrs O'Reilly was cross-examined after the statement was tendered.

Having regard to the way in which her nervous shock claim was allowed to proceed, the interests of the defendants in ensuring that they could meet and deal forensically with that case were well catered for. There is simply no merit in this submission. I reject it.

I have considered whether, lest I be wrong in my analysis of the issues above, it is nevertheless appropriate for me to assess the damages which I would otherwise have awarded to Mrs O'Reilly for her nervous shock claim. The award of damages was not without its complexities.

The two expert psychiatrists who had examined Mrs O'Reilly were not of one opinion. The essence of their difference was not so much as to whether Mrs O'Reilly was presently suffering from a recognised psychiatric injury, namely, post-traumatic stress disorder, but rather its aetiology, and the causes of her present condition and the manifestations of it.

I have concluded that I should deal with an assessment of her damages, but with only brief reasons.

Dr Thomas Oldtree Clark examined Mrs O'Reilly in August 2013. He concluded in his report that Mrs O'Reilly had a major depressive disorder. He also concluded that she had initially suffered from an acute bereavement reaction which had continued over the years to become a pathological bereavement reaction. He noted that both the major depressive disorder and the pathological bereavement reaction could be a response to trauma.

In his oral evidence, Dr Clark made it clear that he thought that Mrs O'Reilly had suffered from post-traumatic stress disorder as a consequence of observing the collapse of her husband, and also his death. He said that from a clinical point of view, her major depressive disorder derived from that initial psychiatric state.

The thrust of the cross-examination of Dr Clark was that his diagnosis which attributed Mrs O'Reilly's psychiatric condition to the collapse of Dr O'Reilly, did not make any, let alone any adequate, allowance for the fact that Mrs O'Reilly's condition when Dr Clark saw her in 2013, had been either caused or at least contributed to, by a number of other stressors which were not tortiously caused by the defendants. These stressors included the facts, matters and circumstances surrounding the death in 2011 of her son, Shane; the facts, matters and circumstances surrounding the stress and strain which fell upon Mrs O'Reilly because after her husband's death she became the principal carer for Shane - which was both emotionally and physically exhausting work and her inability to obtain full-time employment after Shane's death in 2011. In addition, it was suggested that Mrs O'Reilly may have had a genetic predisposition to depression.

Finally, it was suggested that a major stressor which was causing or else contributing to her condition was her difficult financial state.

Putting it briefly, Dr Clark accepted that the stressors to which reference has just been made were generally present to some degree and may have contributed to the clinical condition which he observed in 2013. However, Dr Clark attributed the effects of those stressors to the original incident because, in his mind, they all derived from that incident.

Of interest in re-examination, Dr Clark attributed the trauma, and the effects of it, to the death of Mrs O'Reilly's husband. He said:

"The trauma in this context was the death of her husband. It can be interpreted as either part of the pathological bereavement reaction or could be interpreted as part of a beginning of a major depressive disorder. Or it can be interpreted as post-traumatic stress disorder. So it is acute and chronic in both categories but I chose bereavement seeing as it seems obvious, I chose her present clinical condition as being the most important."

Dr Leonard Howard Lee provided a number of reports in the proceedings to the defendants and also gave evidence. For the purpose of giving evidence, Dr Lee consulted with Mrs O'Reilly on 14 November 2013. He gave evidence the following day. His report of that day records his opinion that Mrs O'Reilly is:

"... currently reporting symptoms sufficient to meet DSM-5 criteria for post-traumatic stress disorder ('PTSD')."

However, for reasons which he expressed, Dr Lee did not accept that Mrs O'Reilly's overall situation was consistent with PTSD. Rather, he opined it was consistent with grief reaction. He formed this view because the results of psychometric tests provided to him indicated that there was a likelihood of exaggeration by Mrs O'Reilly. He said that her presentation was inconsistent with PTSD and that she had not reported intrusive memories or flashbacks until recently. He also noted that Mrs O'Reilly's records indicated pre-existing psychological disturbance and/or vulnerability:

"... which she does not acknowledge, and difficulties coping with Shane and I understand there is financial incentive for the intentional production of nervous shock symptoms".

Dr Lee's principal reason, so it seemed to me, for discounting the psychiatric injuries claimed by Mrs O'Reilly, was that he simply did not find her complaints credible. The other matters to which he referred by way of historic material do not advance this question.

Mrs O'Reilly was clearly psychologically vulnerable before the events of 2006. Her evidence, which as I have said, I accept, demonstrates that she suffered a profound shock when seeing her husband collapse in front of her. The subsequent assaults to her psychiatric well-being, namely when her husband died, her having to emotionally and physically manage as the primary carer for Shane, the difficulties of stabilising the financial circumstances of her family including obtaining employment in Australia, and her general bereavement and loss at her husband's death, are all foreseeable consequences of the original event giving rise to her nervous shock and post-traumatic stress disorder.

To the extent that the stressor involved in finding her son Shane dead, and coping and managing with that, added to her psychological well-being, it was an inter-current illness.

The evidentiary burden falls on the defendants to separate out the effects of such inter-current illness if the Court is not to award damages in respect of them. The defendant did not do so. In accordance with the principles discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 as further elaborated on in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the defendants must bear the consequences of that. The principles in this respect in Watts were cited with approval by Potter LJ (with whom Henry and Wall LJJ agreed) in Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822.

I am satisfied that Mrs O'Reilly is significantly psychiatrically disabled as a consequence of post-traumatic stress disorder, and a major depressive disorder. She is entitled to be compensated by way of general damages for that and her lost income.

I would assess her damages as follows:

General Damages: £75,000 (AUS $ 143,750)
Past Out of Pocket Expenses: $2,500
Past Economic Loss: $161,040
Future Out of Pocket Expenses: $5,000
Future Economic Loss: $125,000

Mrs O'Reilly would be entitled to interest with respect to some of these sums, and if a judgment was to be entered in her favour, this would need to be calculated.

Orders

I make the following orders:

(1) Judgment for the plaintiff in a sum to be calculated for damages for the value of the dependency of the late Dr O'Reilly;

(2) Judgment for the defendants on the claim by the plaintiff for damages for personal injury by way of psychiatric harm;

(3) Direct the parties to bring in short minutes of order to reflect the amount of judgment in Order (1). Such short minutes to be filed and served by 13 February 2015;

(4) If any party seeks to make an application for costs, then such application is to be made by notice of motion supported by affidavit evidence and is to be filed and served no later than 4pm 13 February 2015;

(5) Any evidence in response to such application is to be filed and served no later than 4pm 27 February 2015;

(6) Grant leave for such motion or motions to be made returnable before Garling J at 2pm on 13 March 2015;

(7) Adjourn the proceedings generally for directions to 2pm on 13 March 2015;

(8) Liberty to apply on 3 days' notice.

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CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	O'Reilly v Western Sussex NHS Trust (No.6) [2014] NSWSC 1824
Hearing dates:	7/10/2013 - 11/10/2013,14/10/2013 - 18/10/2013 (UK)4/11/2013 - 8/11/2013, 13/11/2013 - 15/11/2013, 31/01/2014, 14/02/2014, 07/05/2014 - 08/05/2014
Decision date:	19 December 2014
Jurisdiction:	Civil
Before:	Garling J
Decision:	(1) Judgment for the plaintiff in a sum to be calculated for damages for the value of the dependency of the late Dr O'Reilly; (2) Judgment for the defendants on the claim by the plaintiff for damages for personal injury by way of psychiatric harm; (3) Direct the parties to bring in short minutes of order to reflect the amount of judgment in Order (1). Such short minutes to be filed and served by 13 February 2015; (4) If any party seeks to make an application for costs, then such application is to be made by notice of motion supported by affidavit evidence and is to be filed and served no later than 4pm 13 February 2015; (5) Any evidence in response to such application is to be filed and served no later than 4pm 27 February 2015; (6) Grant leave for such motion or motions to be made returnable before Garling J at 2pm on 13 March 2015; (7) Adjourn the proceedings generally for directions to 2pm on 13 March 2015; (8) Liberty to apply on 3 days' notice.
Catchwords:	PRIVATE INTERNATIONAL LAW - choice of law - torts - agreement as to applicable law - common law of England and Wales TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - duty of care - standard of care - health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom in 2003 TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - breach of duty - second defendant - ought to have ordered a colonoscopy be undertaken to ensure whole of the left colon up to and including splenic flexure was visualised, whether - third defendant - performed endoscopy procedure without due care and skill by failing to insert endoscope to sufficient distance to visualise splenic flexure, whether - failed to appreciate investigation was incomplete and refer for further investigation, whether - investigation accorded with acceptable professional practice in the United Kingdom at that time, whether - in 2003 following the 2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland would be following acceptable practice, whether - particular doctor free to proceed in a way which did not conform with the Guidelines if the doctor judged that the particular circumstances warranted a different approach - breach of duties established TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - causation - wrongful act, neglect or default was the sole or substantial cause, or a material contribution to, the death giving rise to the claim, whether - delay in treatment of colorectal tumour was a cause in law of death, whether - cause of death - death due to complications attributable to obstructed bowel and emergency operations, whether - death due to terminal cancer, whether - stage of tumour in 2003 - benign and not metastasized, whether - malignant and metastasized, whether - expert evidence of tumour volume doubling time - expert evidence of development of metastases - malignant tumour in 2003 - metastatic spread beyond immediate region of tumour in 2003 - treatment which would have been administered had the cancer been discovered in 2003 - planned surgical removal of tumour and affected lymph nodes and chemotherapy administered - no bowel obstruction and emergency surgery in 2006 would have occurred - causal connection between bowel obstruction and death - compensable loss established - extent of loss - likely survival period - additional two years DAMAGES - torts - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK), s 1A - bereavement - statutory sum - financial loss - loss of financial support to end of November 2008 - loss of services - loss of caregiver services - loss of services to family generally LIMITATION OF ACTION - negligence - torts - personal injury - psychiatric injury - nervous shock - Limitation Act 1980 (UK), ss 11, 14 - accrual of cause of action - date of knowledge of plaintiff - onus on plaintiff to establish requisite date of knowledge fell within a period of three years before she commenced her claim - statute barred TORTS - negligence - personal injury - psychiatric injury - nervous shock - secondary victim - proximity - considerable period of time elapsed between tortious conduct of defendants and injury suffered - lack of requisite proximity
Cases Cited:	AB & Ors v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Crabtree v Wilson [1993] PIQR Q24 Crocker v British Coal Corporation (1995) 29 BMLR 159 Gregg v Scott [2002] EWCA Civ 1471 Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 Harris v Empress Motors Ltd [1983] EWCA Civ J0714-3; [1983] 3 All ER 561 Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682 Mallett v McMonagle [1970] AC 166 McGhee v National Coal Board [1973] 1 WLR 1 Sion v Hampstead Authority (1994) 5 Med LR 170 Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213 Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822 Tahir v Haringey Health Authority [1988] Lloyds LR: Med 104 Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194 Taylor v Somerset Health Authority (1993) 4 Med LR 34 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB)
Category:	Principal judgment
Parties:	Sue Ellen O'Reilly (P) Western Sussex Hospital NHS Trust (D1) Manoj Sen (D2) Mansour Poushin (D3)
Representation:	Counsel: Mr Bartley SC / Mr Toomey (P) Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3) Solicitors: Beilby Poulden Costello (P) Kennedys (Australasia) Pty Ltd (D1, D2, D3)
File Number(s):	2011/187028