South Western Sydney Area Health Service v Gabriel

[2001] NSWCA 477

CITATION:	SOUTH WESTERN SYDNEY AREA HEALTH SERVICE V. GABRIEL & ANOR., GATENBY V. GABRIEL & ANOR. [2001] NSWCA 477
FILE NUMBER(S):	CA 40434/01, 40436/01
HEARING DATE(S):	18 October 2001
JUDGMENT DATE:	17 December 2001
PARTIES :	South Western Sydney Area Health Service - Appellant/2nd Opponent Leisel Gabriel - 1st Respondent/1st Opponent Andrew Gatenby - 2nd Respondent/Claimant
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Rolfe AJA at 47

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	10080/00
LOWER COURT JUDICIAL OFFICER :	Williams DCJ

COUNSEL:	Ms. K. Burke for appellant Mr. G. Craddock for respondents
SOLICITORS:	Ebsworth & Ebsworth, Sydney for Appellant Charlton Sherman for 1st respondent Tress Cocks & Maddox for 2nd respondent
CATCHWORDS:	LIMITATION OF ACTIONS - Extension of time - Whether "just and reasonable" - Onus of proof - Applicant must prove there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. D.
LEGISLATION CITED:	Limitation Act 1969 ss.60G and 60I
CASES CITED:	Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 Salido v. Nominal Defendant (1993) 32 NSWLR 524 Jones v. Royal Hospital for Women [1998] NSWCA 384 Holt v. Wynter (2000) 49 NSWLR 128 BHP Steel (AIS) Pty. Ltd. v. Lakovski [2000] NSWCA 334 at [9] McLean v. Sydney Water Corporation [2001] NSWCA 122.
DECISION:	See par.46 of judgment

CA 40434/01

CA 40436/01

DC 10080/00

BEAZLEY JA

HODGSON JA

ROLFE AJA

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE V. GABRIEL & ANOR.

GATENBY V. GABRIEL & ANOR.

Judgment
1 BEAZLEY JA

: I agree with the reasons of Hodgson JA and the orders which he proposes.

2 HODGSON JA:: On 25th May 2001, Williams DCJ made an order under s.60G of the Limitation Act 1969 extending until 15th June 2001 the limitation period for a cause of action which Leisel Gabriel claimed to have against Andrew Gatenby and South Western Sydney Area Health Service; and ordered that on or before 15th June 2001 Ms. Gabriel file and serve a Statement of Claim in accordance with the Statement of Claim annexed to an affidavit by her solicitor.

3 Dr. Gatenby and the Health Service have applied for leave to appeal from that judgment. The application has been heard on the basis that, if leave is granted, the appeal will be determined on the basis of the arguments presented.

CIRCUMSTANCES

4 On 23rd December 1985, Ms. Gabriel, then 17, was admitted to Campbelltown Hospital, a hospital operated by the Health Service, complaining of sharp lower abdominal pains for about one day. According to hospital notes, various tests were carried out, including blood tests, and an ultrasound was taken. She was treated conservatively. Dr. Fleming, an obstetrician and visiting medical officer, could find no gynaecological problems. He suggested she have a consultation with a surgeon, being Dr. Gatenby, another visiting medical officer. Dr. Gatenby examined the applicant. According to the hospital notes, Dr. Gatenby’s examination occurred at 4pm on 24th December. Those notes say:

Seen by Dr. Gatenby 16.00. See consult sheet. Dr. Fleming phoned 16.45. Advised of Dr. Gatenby’s consult. Advise re pts condition. Dr. Fleming’s orders – home – seek Pate Friday. IV ceased. Patient advised. Discharged into mother’s care 17.00.

5 There was also in evidence Dr. Gatenby’s own record of the consultation, which contained the following:

Feeling better, eating, drinking. On examination mild pelvic tenderness. No guarding or rebound. Post-rectal [examination] not done. Provisional diagnosis? Pelvic inflammatory disease? MIHELSCHMERZ. Wants home – still febrile but since Christmas ok if S. Fleming says and to see again if pain increases.

6 Ms. Gabriel remained at home on 25th and 26th December, and her evidence is that the pain over those two days got worse; and on 27th December she was seen by her General Practitioner Dr. Pate, who arranged for her to be admitted to St. George Hospital under Dr. King. An appendiceal abscess was diagnosed and the infection drained with a corrugated drain left in situ. An appendectomy was not performed, but she was advised that such should be carried out in about six weeks time when the infection had settled. She was discharged from St. George Hospital on 4th January 1986.

7 An appendectomy was not undertaken at that time, and was not performed until 29th August 1986. On that day, Ms. Gabriel felt a pain whilst at work, and after consulting a doctor at the MLC Medical Centre, was admitted to St. George Hospital with acute appendicitis and an appendectomy was performed on that day.

8 The applicant was married on 21st February 1999, and when she did not become pregnant after a period of time she sought further advice. Tests were undertaken indicating fimbrial occlusion of the fallopian tubes due to scar tissue. She was advised that this rendered her infertile and that she would require IVF treatment. She commenced IVF treatment on 26th December 1999, and ultimately that treatment was successful and she became pregnant.

9 Ms. Gabriel seeks to claim damages for negligence in the delayed diagnosis of appendicitis, leading to her infertility.

EVIDENCE BEFORE PRIMARY JUDGE

10 In addition to material showing the above history, Ms. Gabriel relied on expert reports from Dr. Hugh, a general surgeon, and Dr. Lyneham, a reproductive endocrinology and infertility specialist, which were to the effect that Dr. Gatenby should not have discharged Ms. Gabriel from hospital on 24th December 1985, but either performed a laparotomy or at least kept her under observation. There was also some evidence to the effect that, if that had been done, infertility would not have occurred.

11 Evidence was led for Dr. Gatenby and the Health Service that the hospital notes are now only on microfiche and some are not readable; that the report of the ultrasound by a Dr. Chan is available but that the ultrasound film is not available and Dr. Chan cannot be located; that Ms. Gabriel’s GPs, including Dr. Pate, no longer have medical records going back to 1985; and that hospital employees cannot be traced. Dr. Gatenby gave evidence that he has no recollection of Ms. Gabriel or the consultation.

STATUTORY PROVISIONS

12 The relevant statutory provisions are ss.60G and 60I of the Limitation Act 1969, which are in the following terms:

60G(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.
….

60I(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)--(iii).
(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.

THE PRIMARY JUDGE’S DECISION

13 The primary judge first held that the requirements of s.60I were satisfied, and that indeed that matter had been conceded.

14 In considering s.60G, the primary judge referred to the cases Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541, Salido v. Nominal Defendant (1993) 32 NSWLR 524, Jones v. Royal Hospital for Women [1998] NSWCA 384, and Holt v. Wynter (2000) 49 NSWLR 128. On the basis of those authorities, he considered “that the only remaining question to be determined by this Court is whether or not it is just and reasonable to grant the application bearing in mind that if significant prejudice to a potential defendant has been established, the application should be refused”.

15 The primary judge considered whether the failure to show Dr. Gatenby’s own notes, the important extract from which is set out above, to Ms. Gabriel’s experts, meant that their opinions were insufficient to support the existence of a reasonable cause of action; and he held that it was not, and that matters such as that were matters for a trial.

16 He continued as follows:

Despite the age of the matter, with the exception of the ultrasound film and the applicant's general practitioner's notes, the documentary history is still available. In regard to the lack of the general practitioner's notes, it seems to me that they would not materially add to the issue to be tried, which is principally that the applicant should at least have been kept at Campbelltown Hospital for observation beyond 24 December if a laparotomy was not considered appropriate. As the abscess had crystallised by 27 December, the lack of Dr. Pate's or Dr. Guest's notes in my view does not affect the picture. The applicant's expert evidence suggests that the only negligence evident in the whole course of the applicant's treatment for appendicitis from 23 December, 1985 to August,1986 was that which occurred on 24 December, 1985 when she was discharged.

The defendant has not adduced any expert evidence to suggest that the plaintiff's experts have no basis for their opinions. Nor has the defendant adduced any expert evidence to suggest that an assessment of the applicant's claim cannot properly be made at this distant point of time on the basis of the information that is currently available.

The fact the individuals would not remember events at this remote time is a natural phenomenon and presumably something that the legislators would have been well aware of when passing S.60G. Indeed, it would be expecting a great deal of doctors like Dr. Gatenby and Dr. Fleming to remember the details of a one-off consultation even after a period of several years let alone 15 years and this would also apply even more so to other nursing staff and health care professionals.

The inability to remember a patient and a consultation at a remote time is clearly a disadvantage to defendant. It is clearly prejudicial to a defendant's case as is the mere fact that such a lengthy period of time has elapsed. However, the legislation was passed specifically to deal with situations of late onset or late discovery to ensure that a meritorious plaintiff was not kept out of Court. In those circumstances, whilst I am satisfied that the defendants are prejudiced, I cannot say that the prejudice is so significant that it would be unjust or unreasonable to allow the extension of the limitation period.

GROUNDS OF APPEAL

17 The grounds of appeal sought to be relied on in both matters are as follows:

1. His Honour erred in determining that the prejudice was not 'so' significant that it would be unjust or unreasonable to extend time.

2. His Honour erred in determining it was just and reasonable to extend time in circumstances where:
(i) the period of time from the date of the alleged incident was 16 years;
(ii) ultrasound film was no longer available;
(iii) Dr Chan, the doctor responsible for the ultrasound report was unable to be located;
(iv) Dr Gatenby had no independent recollection of the first respondent;
(v) Dr Fleming, the visiting medical officer of the first respondent was admitted under on 23 December, 1985, had no independent recollection of the first respondent;
(vi) the general practitioner, Dr Pate, no longer had the clinical notes for the period of December, 1985;
(vii) the first respondent was unable, in cross-examination, to confirm or deny the verification of Dr Gatenby's clinical contemporaneous notes;
(viii) the relevant medical and nursing personnel employee records were unable to be located and some personnel were unable to be identified;
(ix) Dr Wayne Ho, resident medical officer, was unable to be located;
(x) the first respondent had failed to adduce evidence to prove that it would not significantly prejudice the appellants if the extension of time was granted.

3. His Honour erred in failing to have regard, or sufficient regard, to the presumptive prejudice.

4. His Honour erred in having insufficient regard to the prejudice of fact proved by the appellant.

5. His Honour erred in determining that, having satisfied Section 60I of the Limitation Act, the first respondent had provided a reasonable and satisfactory explanation in accordance with the decision in Salido v. The Nominal Defendant (1993) 32 NSWLR 524.

6. His Honour erred in holding that the appellant should have adduced evidence to suggest that an assessment of the first respondent's claim could not properly be made at this distant point in time.

7. His Honour erred in holding that the general practitioner's notes did not add materially to the issues to be tried.

8. His Honour erred in determining that the expert evidence adduced by the first respondent demonstrated that the first respondent had a justiciable claim, in circumstances where:
(i) evidence demonstrated that Dr Gatenby was a visiting medical officer of the hospital and not an employee;
(ii) no negligence was suggested against the hospital by the first respondent's medical experts;
(iii) evidence against Dr Gatenby was minimal and the experts had based their opinions upon insufficient information relating to the facts surrounding the discharge of the respondent on 24 December, 1985;
(iv) it was assumed by his Honour that there was no issue as to vicarious liability as between the appellant and second respondent;
(v) it was assumed by his Honour that, notwithstanding evidence to the contrary, Dr Gatenby was an employee of the hospital.

18 The proposed Notices of Appeal sought orders that the application for extension of the limitation period be dismissed.

GROUNDS 6 AND 7

19 It is convenient first to deal with grounds 6 and 7, starting with ground 7. As regards grounds 7, Ms. Burke for the claimants submitted that the primary judge’s determination, that the absence of the general practitioner’s notes “would not materially add to the issues at trial”, was erroneous: Ms. Burke submitted that the notes could have been relevant in various ways, such as by throwing light on the reason for Ms. Gabriel’s discharge and on whether Ms. Gabriel or her parents contacted the general practitioner during 25th and 26th December 1985. In any event, the issues to be tried at the hearing and the materiality of documents were matters for the trial judge, not the judge hearing such an application as this.

20 In my opinion, in order for a judge hearing an application such as the present to decide whether material or significant prejudice is shown, it may be necessary for the judge to identify issues likely to arise and to consider the effect of non-availability of evidence in relation to those issues. That is what the primary judge did in this case. In my opinion, having regard to the limitations on appellate courts in interfering with decisions of primary judges, especially in decisions involving a measure of discretion, there is no appealable error shown in this matter.

21 In relation to ground 6, Ms. Burke submitted that there was no requirement for a respondent to an application such as the present to adduce expert evidence putting in issue the expert evidence of the appellant; and the primary judge’s comment about the absence of expert evidence suggested that the primary judge proceeded on the incorrect basis that such evidence could deal with the question of whether or not an assessment of the claim could properly be made at this distant point in time. The comment also suggested that the primary judge mistakenly believed there was an onus lying on a respondent to this type of application to lead such evidence.

22 In my opinion, the relevant passage, in the second paragraph from the primary judge’s judgment quoted above, merely records the absence of that evidence, without suggesting that there was any requirement or onus on a respondent to lead such evidence. Such evidence could have been led, and it might have thrown additional light on the question of what issues would be fought at the trial and thereby on the question of whether the deficiencies in evidence due to the lapse of time would cause prejudice to the respondents. Merely to record that such evidence was not given does not, in my opinion, indicate error.

23 Before proceeding to consider the other grounds, I should mention submissions made by Ms. Burke concerning an alleged attempt by the opponent to introduce new particulars of negligence, and complaining about the filing and service of an Amended Statement of Claim in the District Court.

24 It is sufficient for me to say that I propose to confine my consideration to the case for the opponent as argued at first instance and reflected in the reasons of the primary judge. If the appeal were dismissed, the question of any amendment to the Statement of Claim would be a matter to be dealt with by the District Court on an application properly brought to it for that purpose.

GROUND 8

25 In support of this ground, the principal submission was that Ms. Gabriel had not discharged her onus of proving a reasonable cause of action, because the only expert opinions in support of negligence were based on seriously incomplete material, notably in that they did not have available to them Dr. Gatenby’s own notes which showed that Ms. Gabriel was sent home because she wanted to be home at Christmas and was advised “to see again” if pain increased. Ms. Gabriel’s solicitors had obtained that material well in advance of the hearing, and so could have provided it to the experts for further advice. The circumstance that this was not done justifies an inference that this would not have assisted her case.

26 In my opinion, this is not a case where one can draw an adverse inference by reason of the material not being put to the experts. However, there is a question whether the experts’ material sufficiently supports the existence of a reasonable claim or reasonable cause of action to justify the granting of an extension of time, when there is this measure of incompleteness in the material on the basis of which their opinion was given. In my opinion, this was a matter properly addressed by the primary judge, and I am not satisfied there is any appealable error in the way he addressed this question or in his conclusion.

GROUNDS 1 TO 5
Submissions

27 Ms. Burke submitted that in applications to extend a limitation period, the authorities clearly showed that, in circumstances where a prospective defendant has adduced evidence of prejudice, the burden shifts to the prospective plaintiff to show that the prejudice is not a significant kind so as to render a fair trial unlikely: Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541, at 544, 547, and 555; BHP Steel (AIS) Limited v. Cinquegrana NSWCA 3/9/97; Szerdahelyi v. The Estate of Bailey NSWSC 1/5/97; Jones v. Royal Hospital for Women NSWCA 24/7/98. In determining that the appellants had suffered prejudice but that he was not satisfied that the prejudice was so significant that it would be unjust or unreasonable to grant the extension, Williams DCJ unwittingly raised the bar. The formulation suggested that the primary judge balanced the prejudice against the interests of the prospective plaintiff, and this also was an error of law.

28 During the course of argument it was noted that these submissions involved the submission that the primary judge had misplaced the onus of proof, putting it upon the prospective defendants to show that the prejudice was such that it would be unjust or unreasonable to grant the extension, whereas the true onus was on the prospective plaintiff; and that that argument may not be covered by the grounds in the Notice of Appeal. However, in circumstances where that argument was included in the written submissions provided in advance of the hearing by Ms. Burke and where Mr. Craddock could point to no prejudice, the Court permitted those submissions to be advanced.

29 Mr. Craddock submitted that the true test was that stated by s.60G of the Limitation Act, namely whether it was “just and reasonable” to grant the extension. Some of the cases referred to, such as Brisbane South Regional Health Service, dealt with different provisions, and could not necessarily be taken as determining the effect of s.60G. There was no error in the primary judge asking the question in terms of whether the prejudice was “so significant”, because it was possible to decide whether the prejudice to the defendant was “significant” so as to preclude an extension only by asking whether it was so significant that the chances of a fair trial were unlikely. Mr. Craddock submitted that this approach was justified by what was said in Holt v. Wynter (2000) 49 NSWLR 128, and also Sydney County Council v. Zegarac (1998) 43 NSWLR 195 at 198.

30 In so far as it was suggested that the primary judge had reversed the onus of proof, a fair reading of the whole of the judgment indicated that his Honour had asked the correct question, and no appealable error was shown in his discretionary decision.

Decision

31 In Holt v. Wynter, Sheller JA (with whom Meagher JA, Handley JA and Brownie AJA agreed) expressed the opinion that the effect of the High Court decision in Brisbane South Regional Health Authority v. Taylor was “that an application for extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant”. I accept that statement, but I do not accept that it should be understood as encapsulating either the total effect of the High Court decision, or the totality of the issues to be determined under provisions such as s.60G.

32 The ultimate issue under s.60G, as under some other similar provisions, is whether it is “just and reasonable” for the period to be extended, and the onus of establishing this is squarely on the applicant for the extension. In considering this matter, I would have regard to the following considerations.

(1) Whether or not there would be “significant prejudice”, as referred to by Sheller JA, is not to be judged in a vacuum. It is to be judged by considering whether or not the delay has made the chances of a fair trial unlikely: see BHP Steel (AIS) Pty. Limited v. Lakovski [2000] NSWCA 334 at [9]. And in considering this question, it must be remembered that ideal or perfect fairness is unattainable: what is required is an acceptably fair trial in the circumstances: see Holt v. Wynter at 142, per Priestley JA; McLean v. Sydney Water Corporation [2001] NSWCA 122.
(2) As Sheller JA says, if the extension would result in significant prejudice in this sense, the application should be refused; but this does not mean that the onus is on the potential defendant to prove such prejudice. The potential defendant will generally have an evidentiary onus to lead evidence suggesting the prejudice, but the ultimate onus is on the applicant to prove that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely: see Brisbane South Regional Health Service v. Taylor at 544 per Dawson J and 547 per Toohey and Gummow JJ.
(3) If the applicant does not discharge this onus, it must fail (except possibly in exceptional circumstances). Even if it does discharge this onus, there may still be other reasons why the Court may not be satisfied that it is just and reasonable to grant the extension: see McLean .

33 In the present case, it seems that the matter was fought on the basis that the only real issue was that concerning “significant prejudice”. For the above reasons, I think the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. In considering the primary judge’s reasons, it is necessary to ask whether or not they indicate that this is in substance the question which the primary judge asked and decided.

34 To my mind, no error is disclosed in the crucial passage which I have set out above, except such error as may be disclosed by the last sentence. The sentence strongly conveys the impression that the question which the primary judge set himself was whether or not the prejudice to the potential defendants, of which he was satisfied, was “so significant that it would be unjust or unreasonable to allow the extension of time”, and his answer to this question was that he was not satisfied that it was. As we have seen, the question which he should have asked was whether or not he was satisfied that the prejudice was not such as to make the chances of an acceptably fair trial unlikely; and, if he answered that question to the effect that he was satisfied of this, in the absence of any other issue the extension probably should have been granted.

35 In my opinion, the question posed and answered by the primary judge is significantly different from the question which he should have posed and answered; and, especially since this is in my opinion far from a clear case, the answer given by the primary judge to the question which he did in fact ask cannot be accepted as an answer to the question that he should have asked. It follows that, in my opinion, the order made by the primary judge must be set aside, resulting either in a new hearing before the District Court or a decision by this Court on the application. There is no material question of credibility involved, so in my opinion this Court should proceed to deal with the application itself.

36 In order to decide whether the opponent has established that there would not be the relevant prejudice, it is necessary first to identify the crucial issues in the case in respect of which the prospective defendants might be prejudiced. In my opinion, the crucial issues are:

(1) Was Dr. Gatenby negligent in authorising the discharge of Ms. Gabriel from hospital on 24th December 1985?
(2) Was Ms. Gabriel’s infertility caused by the discharge, that is, essentially, the delay between 25th December, when it may be inferred she would have been operated on had she not been discharged, and 27th December, when she was in fact operated on?

37 The crucial evidence on these questions, relied on by the opponent, was that of Dr. Hugh and Dr. Lyneham.

38 The relevant evidence of Dr. Hugh was as follows:

13. Given this background and considering the atypical nature of the presentation, I think the Campbelltown After Hours Medical Centre doctors and the Campbelltown Public Hospital staff and Dr Fleming behaved reasonably in observing your client, and in arranging appropriate investigations and consultation with a surgeon, Dr Gatenby.

14. Unfortunately, I do not think Dr Gatenby met accepted standards of care in dismissing the possibility of a surgical problem in your client. At the time of consultation she had suffered three days undiagnosed abdominal pain, with lower abdominal tenderness, fever and a substantial neutrophil leucocytosis, a sign of an acute infective process.

15. There is no indication as to whether Dr Gatenby did a digital rectal examination, but if he did, I find it difficult to believe, given the evolution of the condition into a fairly large pelvic abscess three days later, that there would not have been significant pelvic tenderness, a sign which would have supported a diagnosis of an inflammatory process in the pelvis as a cause for her fever..

16. Your client was evidently feeling a little better at the time of Dr Gatenby's consultation, and it is often difficult to advise operation in a patient who is improving, but I believe in this case consideration of the potential threat to fertility, represented by undiagnosed appendicitis should have weighed the balance in favour of a laparotomy.

17. A lesser alternative might have been laparoscopy, in which a telescope is inserted into the abdomen to inspect the contents, including the appendix, but laparoscopy was not, at that time, in wide use by general surgeons, although quite familiar to gynaecologists.

18. A further factor to be considered is why no features suggestive of appendicitis were noted on the ultrasound examination done by Dr Chan. There was, at that time developing literature about the role of ultrasound examination in the diagnosis of appendicitis. There is no indication in Dr Chan's report that he specifically attempted to look at the appendix. The ultrasound findings in appendicitis are well documented, and the technique is widely used for this purpose today. However, in fairness, it has to be said that the technical quality of ultrasound machines at that time was not as good as it is at present and that the ultrasound features of appendicitis were not as well recognised. However, Dr Chan did not note any free fluid in the pelvis and it is therefore reasonable to assume that the appendix, at this stage, was not perforated and had not developed a surrounding abscess.
******

B. Given our client 's presentation to Campbelltown Public Hospital do you consider that the failure to diagnose appendicitis and the need for an appendicectomy to be performed was a departure from proper standards of professional care ?

22. I do think the failure to diagnose appendicitis during that admission was a departure from accepted standards of professional care, particularly on the part of Dr. Gatenby.

C. Did this departure from proper standards of clinical practice materially contribute to the occurrence of infertility ?

23.The answer is a qualified yes. A missed diagnosis of appendicitis, resulting in a pelvic abscess, is very likely to lead to adhesions which may obstruct the fimbrial ends of the fallopian tubes and cause infertility. The hysterosalpingogram suggests that this was the case in your client. However, I note that your client suffered from secondary amenorrhoea before the episode of appendicitis, and although I am not an expert on infertility, I understand that the condition of amenorrhoea may be associated with infertility. Furthermore, it has to be said that your client did suffer appendicitis, and this in itself may well produce pelvic adhesions no matter how impeccable the diagnosis and treatment. However, the severity of the pelvic adhesions would be substantially greater in any patient who has had a pelvic abscess as a result of appendicitis. In addition, your client suffered a second attack of appendicitis which may have further contributed to the development of pelvic adhesions. It is not clear to me who was responsible for delaying the interval appendicectomy so that this unfortunate event happened.

D. Is it foreseeable on the balance of probability that such a departure would result in a client suffering from infertility in the form of a blocked fallopian tube ?

24. A qualified yes (see C above).

E. What treatment should the hospital and a reasonably competent attending doctor have administered to our client?

25. On 24 December, when your client was seen by Dr Gatenby, consideration should have been given either to keeping the patient in hospital under close observation, or carrying out a laparoscopy, or a laparotomy.

39 Dr. Lyneham’s relevant evidence was as follows:

On the basis of Dr. Gatenby’s opinion, your client was discharged from hospital on no treatment, despite her still be febrile with vomiting and diarrhoea. She still was complaining of some abdominal pain with certainly some findings on abdominal examination. It would be my opinion that this management was a departure from proper standards of professional care. However, the responsibility would fall predominantly on Dr Gatenby's shoulders for there was certainly no gynaecological disorder in this patient, a consultant gynaecologist had come to that view and he then relied on the opinion of the consultant general surgeon to determine whether there was a general surgical cause for the patient's clinical picture.

C. If the answer to B above is in the affirmative, are you of the view that the failure to diagnose and treat the appendicitis caused our client's infertility problem, or alternatively, do you agree that any action or omission by the Hospital staff which amounted to departure from proper standard of clinical practice at least materially contributed to the occurrence of her infertility?

From the limited information that you have provided, it does appear that the hysterosalpingogram has shown the presence of adhesions surrounding the right tube with blockage of the right tube as a consequence of those adhesions. That could be seen as a significant factor materially contributing to the occurrence of infertility in your client. However, I have received no other information concerning her fertility investigations, including information about patency of the left tube the presence of any hormonal disturbance or any sperm factor. It would be my opinion that the failure to either diagnose appendicitis or continue observing your client, rather than send her home, resulted in the development three days later of an appendiceal abscess and, as a consequence of this abscess, it is likely that she has developed adhesions around the right tube. Such adhesions would materially contribute to infertility and this contribution would be even more substantial if there was evidence of adhesions around the left tube as well.

D. If the answer to B above is in the alternative (sic) is it foreseeable that on the balance of probability such a departure would result in a client suffering from infertility in the form of blocked fallopian tubes?

If a departure from the proper standards of professional care resulted in the failure to diagnose appendicitis and perform appendicectomy, in circumstances where appendicitis was present, and three days later an appendiceal abscess necessitated surgery, then it would be my opinion that on the balance of probabilities such a departure would result in a patient suffering from the development of peritubal adhesions on the right side, and possibly on the left side, and such adhesions would contribute to the development of infertility in the patient.

E. If the answer to D above is in the affirmative please describe what treatment you consider the Hospital and a reasonably competent attending doctor should have administered to our client.

The definitive answer to this question must be provided by a general surgeon. I have already indicated the difficulty in reconciling the clinical picture that was initially apparent and the findings of Dr Gatenby. However, if Dr Gatenby, as a specialist surgeon, considered that there was no surgical intervention indicated at the time of his consultation, this would have to be accepted. However, with the patient continuing to be febrile and with a raised white cell count, and with the clinical picture not yet resolving but with the evidence indicating that there was no gynaecological disorder, I would feel that observation for another 24 hours would have been reasonable. In the event, your client did deteriorate significantly over the next three days, she was probably worse clinically the day after her discharge from hospital, and if she had been observed the clinical presentation of acute appendicitis may have been more apparent on 25 December than on 24 December. However. I stress that the definitive opinion to this question should not be provided by myself.

40 As noted earlier, neither of these doctors was shown Dr. Gatenby’s notes suggesting that Ms. Gabriel was feeling better, had requested to go home for Christmas, and was told to “see” again if pain increased. In circumstances where the opponent, as the applicant for the extension, did not take the step of showing this to the experts, the opponent has certainly not excluded the possibility that the question of Dr. Gatenby’s negligence could depend crucially on exactly what he said to Ms. Gabriel and her parents in his consultation. Did he say words to the effect that, if the pain got worse, Ms. Gabriel should come straight back to hospital? Or did he merely say, as Ms. Gabriel has given as her recollection, that she should see her GP the day after Boxing Day? If he said the former, then, so far as the evidence goes, it seems that this could be an answer to the negligence case sought to be made out.

41 Dr. Gatenby has no recollection of the matter. His notes suggest that he may have said something like the former alternative given above, but on their own, they could not possibly support a finding that he did so. Thus, so far as material put forward by the opponent is concerned, the case could turn on the terms of a conversation as to which Dr. Gatenby had an ambiguous note and no recollection.

42 It could be said that Dr. Gatenby might have been in the same position even if the proceedings had been commenced within time. That is not a decisive consideration. As pointed out by McHugh J in Brisbane South Regional Health Service at 544-5, prejudice is not determined by comparing the actual situation with what it would have been if the proceedings had been commenced just before the expiry of the relevant limitation period. If a trial of proceedings commenced just before the expiry of the limitation period is unfair because of the passage of that much time, as it may be, that is an unfairness which does not prevent a trial taking place: it is an unfairness which may be to either party’s disadvantage, and it is an unfairness that a court hearing the matter must attempt to minimise. The case is different where a potential plaintiff is seeking relief from the effect of the limitation period: the unlikelihood of an acceptably fair trial is a sufficient reason to deny that relief, even if there may have been a similar problem for a proceeding commenced just within the limitation period.

43 Consider a case where a plaintiff makes a claim as to which only the defendant is in a position to give evidence in opposition to it. If the defendant dies before the expiry of the limitation period, and the plaintiff then sues the defendant’s estate within that period, the proceedings can be pressed even though the estate cannot call evidence to defend the claim. The court will attempt to minimise unfairness by requiring the plaintiff to be diligent in calling available evidence and by being particularly careful in scrutinising the plaintiff’s case. If the defendant to such a case dies after the expiry of the limitation period, and the plaintiff then seeks an extension of the period, the death of the defendant would probably be regarded as involving such prejudice as to make the chances of a fair trial unlikely, and thus preclude the extension. In my opinion, if an extension were sought in circumstances where the death of the defendant had occurred (say) six months before the expiry of a six-year limitation period, the result should be the same, on the basis of McHugh J’s reasoning in the passage to which I have referred.

44 The prejudice to the potential defendants is exacerbated by the absence of the ultrasound film and of the GP’s notes, both of which could have thrown light on the situation. Taking all these matters into account, I am not affirmatively satisfied that the delay has not caused such prejudice to the defendant as to make the chances of an acceptably fair trial unlikely, and so I am not satisfied that it is just and reasonable that the period be extended.

45 Accordingly, it is unnecessary to consider the question of prejudice in relation to the other main issue. However, to my mind the loss of the ultrasound film would have been a potentially significant prejudice on this question also. The opponent’s case on causation seems to depend upon the opinion that her infertility was caused by an abscess which developed between 24th December and 27th December, and this opinion is supported by the absence of any reference in Dr. Chan’s ultrasound report to free fluid in the pelvis. It is unlikely that Dr. Chan could shed light on this, even if he could be found; but the film itself, viewed with hindsight, could be extremely important. Having regard to the lack of emphasis on this aspect in the conduct of the case below, I would not have refused an extension on this basis alone. However, I do think that this consideration confirms that it has not been shown that the prejudice from the delay to the potential defendants is not such as to make an acceptably fair trial unlikely.

46 For those reasons, in my opinion the following orders should be made:

1. Leave to appeal granted.
2. Appeal allowed with costs.
3. Respondent to have suitors fund certificate if otherwise entitled.
4. Orders of primary judge set aside, and in lieu thereof application dismissed with costs.

47 ROLFE AJA: I have had the advantage of reading in draft form the judgment of Hodgson JA, with whose reasons, save for one matter, and orders I agree.

48 The exception is in relation to Ground 8. In my opinion, Ms. Gabriel did not discharge the onus of establishing that she had evidence available of a reasonable cause of action, even to the standard required at this point.

49 The reports of both Dr. Hugh, a general surgeon upon whom Ms. Gabriel relied principally, and Dr. Lyneham was based solely on information furnished to them. Further, they were heavily qualified. The information they received did not include Dr. Gatenby’s record of the consultation, which is set out in paragraph 5 of Hodgson JA’s judgment. That stated what he found on examination including that Ms. Gabriel was feeling better; his tentative provisional diagnosis, (which would accord with the difficulties to which Dr. Hugh referred); her desire to be home at Christmas; the requirement that Dr. Fleming should agree to that; and the statement that she was to be seen again if pain increased.

50 In my view, this record, which was available to Ms. Gabriel’s legal advisors should have been before Dr. Hugh. Had he been aware of these matters he may have adhered to his position or he may not. The Court has been left in the position where it does not know. In these circumstances, Ms. Gabriel has failed to discharge even the quite light onus of proof placed on her at this stage. This conclusion does not involve the drawing of any adverse inferences. It merely leaves the evidence in the state to which I have referred.

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