Syrett v Vorbach No. DCCIV-99-336
[2001] SADC 46
•30 March 2001
SYRETT V VORBACH
[2001] SADC 46
1................ JUDGE BURLEY......... The plaintiff claims damages from the defendant for alleged breach of contract and negligence in respect of medical advice and treatment received by her from the defendant between May and July 1984. By paragraph 24 of her statement of claim she seeks an extension of time to bring the action pursuant to the provisions of Section 48 of the Limitation of Actions Act 1936 (the Act). By order dated 6 October 2000, it was directed that the application for an extension of time be heard and determined before any other issues in this action. The application was listed for trial on 21 February 2001 when Mr Halliday appeared for the plaintiff and Mr Besanko QC appeared for the defendant.
2 The relevant parts of Section 48 of the Act are as follows:-
“48.(1) Subject to this section, where an Act ... prescribes or limits the time for- -
(a) instituting an action; ...
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that- -
(a).... the court has jurisdiction to entertain;
or
(b).... the court would, if the action were not out of time, have jurisdiction to entertain.
(3)... This section does not- -
(a).... [immaterial];
or
(b).... empower a court to extend a limitation of time prescribed by this Act unless it is satisfied- -
(i).... that facts material to the plaintiff’s case were not ascertained by him until some point of time ... occurring after the expiration of [the limitation] period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff;
or
(ii)... [immaterial];
and that in all the circumstances of the case it is just to grant the extension of time.”
3 The action was not commenced until 10 March 1999, well after the expiry of the limitation period.
4 It is accepted by both parties that the Court has jurisdiction to entertain this application.
5 Section 48(3)(b) applies because the period of limitation has been prescribed by the Act. It is therefore necessary to determine whether the plaintiff has ascertained facts material to her case at some point in time occurring after the expiration of the limitation period and that the action was instituted within twelve months after the ascertainment of those facts and that in all the circumstances of the case it is just to grant the extension of time.
6 In Lovett v Le Gall (1975) 10 SASR 479, the Full Court considered what constituted “facts material to the plaintiff’s case”. Bray CJ said at 482.9:
“... I think the phrase takes in the whole complex of evidence and argument which will be advanced at the trial ...”
7 Wells J said at 485-486:
“Counsel concentrated most of their attention on the passage ‘. . . facts material to the plaintiff’s case . . .’. It seems to me that that passage must be read as a whole. When it is so read, the word ‘material’ denotes, in my opinion, facts that are not only relevant to the issues – which, I apprehend, may include the issue of damages – but are also of such a nature and of such weight that they may fairly be taken into account by a plaintiff who is in the course of considering whether he should or should not prosecute his claim to trial. Similarly, the word ‘case’ has a much wider purview than the expression ‘cause of action’; it comprehends, in my opinion, all evidence, law and argument to be relied on in court by the party concerned.”
8 The concept was also dealt with by the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636 where the Court said:
“A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case.”
9 The facts must be ascertained by the plaintiff personally: Lovett v Le Gall (supra) per Bray CJ at 484 and Sola Optical (supra) at 637. The ascertaining of material facts is not a difficult pre-condition to satisfy: Wright v Donatelli (1995) 183 LSJS 343 at 345 per Cox J.
10 Once there is a finding that new material facts have been ascertained by the plaintiff as required by the section, the Court must then exercise a discretion as to whether or not the extension of the limitation period should be granted. A number of matters must be considered in relation to the exercise of that discretion. These include any hardship to the plaintiff should the extension not be granted and prejudice to the defendant if it is.
11 An understanding of the plaintiff’s case is essential to the determination as to whether or not material facts have been ascertained by the plaintiff. Where the application for an extension of time is made other than at the trial of the action as a whole, recourse must be had to the pleadings to obtain that understanding. It is neither necessary nor appropriate to make findings of fact as to matters of liability, because detailed evidence as to liability will only be called at the trial if an extension of time is granted. Consequently, for the purposes of this application, I assume that the plaintiff will make out at trial the factual and legal matters necessary to found her claim. A judgment must then be made as to whether or not the plaintiff has ascertained facts at the relevant time and that those facts are material to her claim for damages in the sense referred to in the cases cited above. That process involves the Court making findings of facts and conclusions of law which relate to the application for an extension of time, but not otherwise.
12 The relevant parts of the pleadings, both the statement of claim and the defence, for the purposes of this application, are those which raise issues in respect of which the facts ascertained by the plaintiff are material. It is not a question of the plaintiff establishing that the facts may be material to any of the issues raised in the pleadings. There must on this application be a finding that they are material. That finding is based in part upon the assumption that the plaintiff is able to prove the relevant allegations in the statement of claim. In order to ascertain what allegations are relevant for the purposes of this application to extend the limitation period, it is necessary to examine the allegations made by the plaintiff regarding the ascertainment of facts. These are set out in paragraphs 26 to 31 of the amended statement of claim. For convenience, I have annexed a copy of those paragraphs to these reasons.
13 A perusal of those paragraphs reveals that it is alleged that facts were ascertained by the plaintiff on 11 June 1998, 10 July 1998, 1 March 2000, 6 May 2000 and 5 September 2000. Given that the proceedings were commenced on 10 March 1999, the question arises whether the facts ascertained after that date may be relied upon. In other words, is the plaintiff able to rely upon facts ascertained on 1 March 2000, 6 May 2000 and 5 September 2000. The alleged material facts relied upon for these dates are set out respectively in paragraphs 28, 29, 30 and 31.
14 Unfettered by authority I would have thought that the plaintiff is not able to rely upon the ascertainment of such facts at the time referred to because Section 48(3)(b)(i) appears to require that the action be instituted within twelve months after the ascertainment of the relevant facts by the plaintiff. In this case, the action was commenced well before the ascertainment of those facts. However, by paragraph 25 of her amended statement of claim the plaintiff pleads:
“25... The plaintiff says that new facts material to her case were only ascertained by her less than twelve months prior to the filing of this statement of claim” [my emphasis]
15 This seems to be based on the contention that the plaintiff’s claim, as articulated in the amended statement of claim, was not commenced until the filing of the amended statement of claim on 9 October 2000. That contention overlooks the fact that the claims for breach of contract and negligence have not been altered by the amended statement of claim. It is only the claim for an extension of time that has been amended and that does not alter the date of commencement of the original claim, namely 10 March 1999.
16 The plaintiff also relied upon the decision of the Northern Territory Court of Appeal in Ward v Walton (1989) 66 NTR 20. In that case the Court of Appeal had to deal with an application for an extension of time under the Northern Territory Limitation Act. Section 44(3) of that Act is the same as Section 48(3) of the South Australian Act.
17 The plaintiff was injured in a motor vehicle accident on 4 March 1982. In addition to spinal injury she developed deep vein thrombosis of which she was unaware. She instructed a solicitor to commence proceedings within the relevant three year period of limitation but the solicitor failed to do so. However, a writ was issued eleven days out of time and it was endorsed with an application for an extension of time pursuant to Section 44 of the Northern Territory Limitation Act. Between the date of the expiry of the limitation period and the date of the commencement of the proceedings another solicitor within the firm retained by the plaintiff had ascertained that the plaintiff suffered from deep vein thrombosis of the left leg from a medical report which also stated that the thrombosis was the direct result of the spinal injury sustained in the accident. The solicitor was unable to contact the plaintiff but, nevertheless, issued the writ eleven days out of time and sought the appropriate extension. The plaintiff did not ascertain that she was suffering from thrombosis until 15 August 1986, some seventeen months after the institution of the proceedings. The view taken by the Judge at first instance was referred to by Asche CJ as follows (at 22):
“The learned judge at first instance was of the view that words in s 44(3)(b)(i), namely ‘facts material to the applicant’s case were not ascertained by him’ must mean that the date of ascertainment of those facts must be 15 August 1986 and not the date of ascertainment by the applicant’s agents, ie her solicitors, on 22 August 1984. In this he was, with respect, clearly right, because the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628; ... had plainly said so, emphasising the significance of the expression ‘by him’. Their Honours were there construing the Limitation of Actions Act 1936 SA (as amended). Section 48(1)-(4) of that Act is in substantially similar terms in s 44(1)-(4) of the Limitation Act (NT). The High Court (CLR at 638) said: ‘Read as a whole the section yields the conclusion that it is ascertainment of material facts by the plaintiff personally that is required by para (i).’
His Honour then concluded that, pursuant to s 44(3)(b)(i), the applicant had to institute the action within 12 months of her ascertainment of those facts ie, she had to institute her action between 15 August 1986 and 15 August 1987. Since the applicant had not done that she could not come within the conditions of s 44(3)(b)(i). Since she did not come within those provisions the court was precluded from exercising any discretion to extend the time.”
18 Asche CJ, with whom Gallop J agreed, took a different view. Rice J thought that the Judge at first instance was correct. Asche CJ stated his view as follows (at 23/23):
“But it seems to me equally open, in the context of this sub-section, to regard the time limits fixed as the outer limits within which the action can be brought. The object seems to be to extend the time the applicant can bring her action by one year after the ascertainment of material facts; be those facts ascertained before the expiration of the limitation period or after. Thus the requirement that the action be instituted within 12 months after ascertainment means only, in this case, that the outer limit, or the last date within which the action had to be brought, was 15 August 1987. The inner limit, or earliest date that the action could be brought, would be 4 March 1982; so that any action within those limits would suffice. If the applicant had already brought the action before ascertainment she was then within those limits.”
19 It seems that the majority took the view that Section 44(3)(b)(i) did not have the effect of requiring the proceedings to be commenced after the ascertainment of facts. Rather, if the action were commenced before the expiry of a period of twelve months after the facts were ascertained, the extension could be granted if in the proper exercise of the Court’s discretion, it was appropriate to do so. The difficulty I have with the decision is that, because sub-section (4) of both Section 44 of the Northern Territory Limitation Act and Section 48 of the Act require the application for an extension of time to be endorsed on the originating process, the plaintiff, at the time of institution of the proceedings, identifies an application, the grounds for which, or the complete grounds for which, have not yet occurred. It might be said that if a subsequent application to amend to add further grounds is made, the amendment, in accordance with the principles in Brook v The Flinders University of South Australia (1987) 47 SASR 119, dates back to the date of the originating process, but that principle would not apply where the ground relied upon and the subject of amendment has not occurred by the time that the originating process was issued.
20 The main South Australian cases dealing with Section 48 of the Limitation of Actions Act are Lovett v Le Gall (1975) 10 SASR 479, Napolitano v Coyle (1977) 15 SASR 559 and Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364. The question of whether or not the plaintiff could rely upon material fact ascertained after the commencement of the proceedings did not directly arise for discussion in any of these cases, but a reading of them reveals that the reasoning behind the decisions assumes that the material fact has been ascertained prior to the commencement of the proceedings. In an indirect way the question was touched upon by Bray CJ in Napolitano v Coyle where his Honour considered both the 1972 and 1975 amendments dealing with Section 48 of the Limitation of Actions Act. He thought that for the purposes of the application for an extension of time before him, there was no material difference between the two sets of provisions. An examination of the 1972 amendment reveals, in my view, that the intention of the legislature was that the ascertainment of the material fact must precede the commencement of proceedings. His Honour dealt with the two sets of provisions as follows (at 560 et seq):
“Section 48 was added to the Limitation of Actions Act by the amending Act of 1972. By a further amendment of 1975, which came into force on 27th March, 1975, s 48 was repealed and a new s 48 substituted in its place. I set out the relevant parts of the two sections:
1972
‘(1).. Subject to this section, a court by which an action could, if it were not out of time, be entertained, may extend the time for bringing the action.
(2)... An extension of time shall not be granted by a court under sub-section (1) of this section unless it is satisfied that facts material to the plaintiff’s case were not ascertained by him until—
(a).... after, or within twelve months before, the expiration of the period of limitation;
and
(b)... within twelve months before the commencement of the action,
and that in all the circumstances of the case it is fair and equitable to grant the extension of time.’ ”
21 His Honour then sets out the 1975 legislation. He next said (at 561):
“Counsel were agreed that it was the 1972 section which was appropriate here, not the 1975 section. The three years from the date of the accident expired on 23rd November, 1974, before the 1975 Act came into force but the writ was issued after that date.
I am not sure if this is right. I can see some grounds for argument that the 1975 section was intended to apply even to cases where the action became statute-barred before the Act came into operation. However, it is unnecessary to decide the point. For the purposes of the present case there is no material difference between the two sections. The plaintiff did not attempt to invoke sub-s (3)(b)(ii) of the 1975 section, and if that is ignored there does not seem to me to be any significant difference in effect for the purposes of the present case whichever of the two sections is applied.”
22 It seems to me that a reading of the 1972 section makes it clear that the ascertainment of the material fact must take place before the commencement of the action. This is apparent from sub-section (2) of Section 48, the relevant parts of which are as follows:
“(2).. An extension of time shall not be granted by a court under sub-section (1) of this section unless it is satisfied that facts material to the plaintiff’s case were not ascertained by him until—
...
(b)... within twelve months before the commencement of the action ...”
23 If, to that extent, the 1972 provisions and the 1975 provisions have the same effect, it must follow that the Supreme Court of this State has interpreted the 1975 version of Section 48 to mean that the material facts must be ascertained prior to the commencement of the proceedings. Even if the decision to that effect by Bray CJ in Napolitano v Coyle was made obiter, it is nevertheless persuasive authority, and, because it is a decision of the Supreme Court of this State, it should be followed rather than the decision of the Northern Territory Court of Appeal.
24 For these reasons I do not consider that the plaintiff is able to rely upon material facts ascertained after the commencement of proceedings. Accordingly, the matters pleaded in paragraphs 28-31 of the amended statement of claim cannot be taken into account. The medical reports and notes referred to in those paragraphs were admitted into evidence de bene esse. Because they are not relevant, their tender should be rejected.
25 It is convenient at this stage to summarise the allegations in the statement of claim. The plaintiff was 36 when she consulted the defendant in May 1984. She alleges that she entered into a contract with the defendant for the provision of advice and treatment with regard to a tumour she had developed in her left breast. It has not been referred to specifically in the statement of claim, but evidence was given that in 1978 she was operated on by the defendant when tissue was removed from her left breast, the subsequent biopsy of which established that the tissue was benign.
26 The plaintiff asserts that the defendant was contractually bound to act with skill and care appropriate to the defendant’s qualification, including the provision of a referral to an appropriate specialist. The plaintiff asserts that the defendant owed a duty of care commensurate with his contractual obligations.
27 She was advised by the defendant to have the tumour surgically removed which was then to be tested by way of frozen section biopsy. She was admitted to the Western Community Hospital on about 9 May 1984 for removal of the tumour. That operation took place on 10 May and the tumour was subjected to histopathological analysis. That analysis was performed by Dr Kirkland but, it is alleged, the plaintiff was not shown the results of the biopsy. In late June 1984 the plaintiff underwent Xeromammograms of both breasts. It is alleged that in June 1984 the defendant informed the plaintiff that the left breast biopsy indicated that the plaintiff would develop terminal cancer within the next eight years and it is alleged that she was further advised that the Xeromammogram indicated that the right breast would also develop cancer. The plaintiff alleges that the defendant advised her to undergo a bilateral subcutaneous mastectomy. It is further alleged that she was informed by the defendant that all of her breast tissue would be removed by such an operation. The plaintiff said that she agreed to undergo the recommended operation but that if she had been properly advised she would not have agreed to do so. She asserts that if she had undergone clinical supervision instead of the operation, she would not have developed cancer of either the left or right breast.
28 On 31 July 1984, the bilateral subcutaneous mastectomy was performed by the defendant. At the same time a Dr Robson inserted prosthetic implants consisting of silicone gel into the plaintiff’s chest.
29 The plaintiff asserts that the defendant was in breach of the contract and negligent in that he wrongly advised her that she would develop cancer in the left and right breasts, he failed to inform her that Dr Kirkland had noted only the potential of pre-malignancy, he failed to advise the plaintiff that Dr Kirkland recommended continued clinical supervision and the defendant wrongly relied upon Xeromammograms to advise the plaintiff that the right breast would develop cancer. She asserts that the defendant failed to refer her to an oncologist and that he failed to refer the plaintiff to a general surgeon specialising in breast diseases. She alleges that he failed to ensure that only gel or gel/saline lumen implants were implanted in the plaintiff’s chest.
30 The plaintiff alleges in her statement of claim that she has suffered injury, including the removal of most of her breast tissue, the implanting of unsightly silicone prostheses in her breasts, the scarring of her breasts, the leaking of silicone. She alleges that she has had to undergo further surgery to remove the silicone implants which were replaced with saline gel implants, further surgery to remove and replace saline gel implants and that she has suffered pain in the chest, shoulders, arms, wrists, hands and thumbs and embarrassment and humiliation caused by unsightly and unnatural looking breasts and depression.
The Material Facts Relied Upon
31 By paragraph 26 of the statement of claim the plaintiff alleges that on or about 11 June 1998 she received from her solicitor a copy of a report from Dr Melville Carter dated 6 June 1998. Exhibit P2 is a copy of the report and the solicitor’s letter requesting the report. It is alleged that the report revealed that Dr Carter held various opinions. There is no doubt that if the plaintiff became aware for the first time of the opinions (or some of them) held by Dr Carter as alleged in paragraph 26 of the statement of claim, she thereby ascertained facts material to her case. At the very least she became aware that she could call evidence from Dr Carter of the nature referred to in paragraph 26.
32 Two questions must be examined in relation to paragraph 26: first, whether or not she first learnt of the opinions on or about 11 June 1998 and, second, whether or not the report of Dr Carter is, on an objective basis, capable of being construed as containing the opinions referred to in paragraph 26. In addition, it is necessary to examine the evidence of the plaintiff, as opposed to what is pleaded in paragraph 26, to determine by reference to that evidence what she ascertained by reading that report. It is therefore necessary to turn to the evidence of the plaintiff and that of her solicitor, Ms Smith, who gave evidence relevant to this aspect of the matter.
33 Ms Smith’s affidavit sworn on the 20th day of February 2001 was admitted into evidence. She was cross-examined by Mr Besanko on her affidavit.
34 According to her evidence, which I accept, she received a copy of Dr Carter’s report on 9 June 1998 and sent a copy of that report to the plaintiff on 10 June 1998. The plaintiff probably received the copy report on 11 or 12 June 1998. On 12 June 1998 the plaintiff attended at Ms Smith’s office and they read the report of 9 June 1998 of Dr Carter together.
35 The plaintiff said in evidence that she remembered reading the report (Exhibit P2) in her solicitor’s office in about June of 1998 (T58 et seq).
36 I quote from the transcript (T58-61):
“Q.... Can you tell his Honour what it was that you learnt about Dr Carter’s opinion.
A.There were a number of things. The most striking one was that he disagreed, Mr Carter disagreed in total with Mr Vorbach’s interpretation of the pathology report and the xeromammograms that I’d supplied. He disagreed with, in total, the fact that my right breast was vulnerable - he disagreed - he saw no reason why that was vulnerable.
...
A.That in the Kirkland and Cook biopsy report it was mentioned because of my age the lower end of the spectrum was clinical observation versus the radical end which was subcutaneous mastectomy, I think that’s what it said. At the time he basically wouldn’t have, Mr Carter wouldn’t have selected - advised mastectomy at that point in time. He disagreed on Mr Vorbach’s interpretation of the xeromammograms.
...
Q.What did you understand from reading the report as to the nature of his disagreement as to the risk.
A...... It wasn’t as great as I’d been led to believe. It wasn’t inevitable, it was only between 1.8 and 2.8, that of the rest of the community.
Q.What else did you learn if anything.
A...... That the monitoring with x-rays wasn’t really that relevant below the age of 40 because of the density of the female breast.
Q.Yes, and how old were you at the time that you had the surgery by Dr Vorbach.
A...... 36. I learnt that Mr Carter considered I would have been unlikely to have deteriorated into malignancy and unlikely to have died say 8 or 10 years hence, from that period. I mean basically it disagreed with Mr Vorbach’s diagnosis.
Q.Anything else.
A...... He recommends that ‘a bilateral mastectomy be carried out, that it was stated in his letter to Kenneth Robson, Mr K Robson, on 6 July 1984’.
...
A...... Okay. Mr Vorbach as a general surgeon recommends that a bilateral mastectomy be carried out as stated in his letter to Mr Kenneth Robson, right, dated 6 July 1984. It’s based on the mammograms showing identical appearance in the right breast. I didn’t know that Mr Vorbach had written to Mr Robson and said that he recommended mastectomy in both breasts based only on those mammograms being identical.
...
Q...... Can you continue please and with reference to the report if need be, of anything else that you learnt as being Mr Carter’s opinion from the report of 6 June 1998.
A.Mr Carter notes, ‘because of the absence of additional risk factors such as the possible family history or presence of atypical cells mammograms are not carried out currently until the age of 40 years.’ I interpreted that as Mr Carter couldn’t see any major factors as to why Mr Vorbach had taken this line to remove the tissue in both my breasts.
Q...... Anything else.
A.I am quoting Mr Carter’s report given by Dr James Kirkland and reviewed by Dr Martin Cook that indicates only that there was probable pre-malignant potential which is not even pre-malignant ‘- and I would have not have considered this to indicate a disturbing degree of risk for the future development of breast cancer.’ Which is again emphasising what Mr Carter said here about his letter to Mr Robson.
...
Q.Looking at the report is there anything else that you learnt about the opinion of Dr Carter.
A...... Mr Carter would have recommended that I remain under surveillance with six monthly clinical examinations and yearly mammography which is very important. But it’s the complete opposite tactic to the one that was taken.”
37 A further report of 22 June 1998 was obtained from Dr Carter (Exhibit P1). It is referred to at paragraph 27 of the amended statement of claim. The plaintiff remembered reading the report in her solicitor’s office. Ms Smith had sent a copy to the plaintiff on 9 July 1998. She saw the plaintiff at her office on 23 July 1998 and they went through the report together.
38 Again, I quote from the plaintiff’s evidence (T56 et seq):
“Q.... First of all, can you tell us, going through the report if need be, what it was that you learnt on reading that report.
A.Okay; going through the report I learnt that Mr Vorbach was a general surgeon. I learnt that xeromammograms were being phased out in favour of ordinary mammograms as status quo at that point in time. I read that Mr Vorbach apparently had based his advice and decision-making on a pathology report from a pathologist called Kirkland & Cook - looking for it here.
Q...... Take your time.
A.Sure. I learnt that Mr Carter regarded the fact that Mr Vorbach should have taken into account my age with regard to the spectrum of care that was mentioned in the Kirkland & Cook report that minimum - I am looking for it but it’s hard because -
Q...... Take your time.
A.The risk factors were contentious. I’m trying to pinpoint a specific - Mr Carter mentions that Mr Vorbach should have been aware of a more conservative treatment.
...
A.The risk factor that he mentions here is not big and I was basically informed by Mr Vorbach that the risk that the pathology showed was big.
...
Q.Looking at that again once more before I put to you another report, was there anything else that you’re able to say that you learnt about the opinions of Dr Carter on reading that report of 22 June 1998.
A...... Dr Vorbach’s area of expertise was general surgery not specialist in breast treatments. It was not the most frequently used diagnostic tool.
Q.What was not the most frequently -
A...... Referring to the xeromammograms.
Q.Anything else.
A...... It’s very ambiguous. I have to say in relation to that question, there’s nothing in here that I hadn’t learnt from Mr Carter’s previous report.”
39 A comparison of the evidence given by the plaintiff (as supported by the evidence of the solicitor, Ms Smith) with paragraph 26 of the amended statement of claim reveals that on about 12 June 1998 the plaintiff ascertained for the first time that Dr Carter held the opinions referred to in sub-paragraphs (b), (c), (d), part of (f), (g), (h), (i) and (k) of paragraph 26. As to paragraph 26(a) of the statement of claim it cannot, in my view, be sustained that as a result of reading the report of 6 June 1998, the plaintiff became aware that Dr Carter held the opinion that the defendant’s decision to perform the mastectomy was based on a pathology report by Dr Kirkland. Dr Carter made such a statement in his report but it cannot be said that that was his opinion, rather it was his assumption. Ascertaining the fact that Dr Carter made an assumption does not, in my view, constitute a material fact within the meaning of Section 48(3) of the Act.
40 As to sub-paragraph (f), she learnt that Dr Carter held the opinion that the pathology report indicated only a slight increase in the risk of contracting breast cancer, the chance being 1.8 to 2.8 times that applicable to the rest of the community. The range 1.8 to 2.8 is not contained in the report of 6 June 1998; instead the figure 2 is given, that is twice the rate for the rest of the population. The difference between what was said in the report and what the plaintiff said in evidence as to the range can be explained, I think, by confusion on the part of the plaintiff when she gave evidence. I consider that she has established on the balance of probabilities that she learnt of the opinion of Dr Carter that the risk of cancer to which she was subject was twice that in the population in general.
41 As to sub-paragraph (j), that assertion is supported neither by the plaintiff’s evidence nor by Dr Carter’s report of 6 June 1998.
42 In relation to paragraph 27 of the pleading, which refers to a report of 22 June 1998, the plaintiff said in her evidence that a reading of that report did not reveal to her anything which she had not already learnt from the report of 6 June 1998 (T57/36). Consequently on the evidence of the plaintiff, no material fact was ascertained by her as a result of reading the report of 22 June 1998.
43 It is necessary to emphasise that when the report of 6 June 1998 (Exhibit P2) is compared with the evidence of the plaintiff about what she learnt from reading the report, I have taken into account the solicitor’s letter of 12 May 1998 to Dr Carter requesting the report. That letter contains a brief history together with a series of questions which Dr Carter answered. It is necessary to read those questions in order to understand the answers given by him in his report.
44 It was put to the plaintiff in cross-examination that the plaintiff’s solicitor had a number of documents before the solicitor wrote to Dr Carter requesting a report. The documents referred to in the solicitor’s letter comprise a pathology report completed in 1978, a pathology report by Dr Kirkland in May 1984, a letter from the defendant to Dr Robson of 6 July 1984 and a pathology report performed after the operation of 31 July 1984. The plaintiff was asked whether she had seen those documents prior to 12 May 1994. The plaintiff said that she could not remember but she allowed for the possibility that that had taken place.
45 Ms Smith was also cross-examined on this topic (T173 et seq). She said that she sent a copy of the pathology report dated May 1984 to the plaintiff on 19 February 1998. Ms Smith was not cross-examined about any other of the documents referred to in the cross-examination of the plaintiff. I infer that, of the various documents, only the pathology report of May 1984 was sent to the plaintiff prior to June 1998. I do not think that the receipt of the one pathology report in February 1998 affects the extent to which I may find that the plaintiff ascertained new facts in June 1998 as detailed in her evidence.
46 In arriving at my conclusions relating to paragraph 26 of the amended statement of claim, I have taken into account the submission of Mr Besanko that the ascertainment of a material fact involved more than merely reading a report. He said that the significant facts of the report must register with the plaintiff in some way. Presumably he meant that the significance of the opinion held by Dr Carter ought to have been recognised by the plaintiff at the time that she read the report. To the extent that such a submission requires there to be a link between the ascertainment of the material fact and the commencement of the proceedings, this cannot be correct because the High Court in Sola Optical (supra) clearly rejected such a submission. In my view, it is sufficient if the plaintiff becomes aware of the material fact without necessarily understanding its significance in relation to any action that may be brought by her. Nor need the ascertainment of the fact cause the commencement of the proceedings. It is sufficient that, viewed objectively, the facts so ascertained are material to the plaintiff’s case and were previously unknown to her.
47 The plaintiff was cross-examined at length by Mr Besanko with regard to when she may have noted the matters arising from the various reports read by her. In particular, it was put to her that, in relation to Dr Carter’s reports, she may have read the reports in mid-1998 in conjunction with her solicitor but she did not “note” the material facts about which she gave evidence of ascertaining until shortly prior to trial. The plaintiff denied that this was so and the plaintiff’s solicitor was not cross-examined about this aspect of the matter. Given that there had been a waiver of privilege by the plaintiff in relation to what took place between the plaintiff and her solicitor relating to the ascertainment of material facts, I think that the plaintiff’s denial that she had only recently ascertained the material facts must be accepted.
48 In case I am wrong in concluding that material facts ascertained after the commencement of the action are not able to be relied upon, I propose to set out my views relating to the matters raised in paragraphs 28-31 of the amended statement of claim.
49 During the course of her evidence the plaintiff was referred to the report of Dr Steven Birrell, a surgeon at the Breast Centre of the Burnside Hospital. He described himself as a surgical oncologist. In paragraph 28 of the statement of claim the plaintiff has asserted that on about 1 March 2000 she received a report from Dr Birrell dated 7 February 2000, which is Exhibit P3. The plaintiff said that she read the report soon after 7 February. However, based on Ms Smith’s evidence, I find that the plaintiff first read a copy of the report on about 1 March 2000. Having been referred to the report the plaintiff said (T63/32 et seq):
“A.... One of the first things I remember is the fact that Dr Birrell refers to Dr Melville Carter and Dr Elizabeth Kent [sic should be Cant] as being authority at the time in breast disease and him basically wondering why I wasn’t referred to one of the two. A very striking thing which is on the bottom of p 2, on seeing this it was the first -
Q.This being what.
A...... This report, the paragraph at the bottom of p 2, Mr Birrell says that ‘the remaining breast tissue indeed, this was confirmed in the medical and veterinary science pathology report dated 19 - the - around the right breast was sent for pathology examination and normal breast elements were seen in the pathology specimen. This is not surprising as it is known that subcutaneous mastectomy leaves a significant amount of normal breast tissue and is not a recommended procedure when trying to remove all risk of breast cancer’. I didn’t know that until the day I read this report. I didn’t know I had any breast tissue remaining and I didn’t know that to eliminate all risk of cancer you had to eliminate - well, I believed that it had all been eliminated to eliminate the risk of cancer. I didn’t know I had any breast tissue remaining and I was very shocked.
...
Q...... If you could continue going through Dr Birrell’s report of 7 February and tell us whether there is anything else that you learnt for the first time as being Dr Birrell’s opinion.
A.This is another one that was stunning. In the ’78 report and the ’84 report according -
Q...... Just stop there, when you talk about reports what are you referring to.
A.Okay, the pathology reports from the pathologists involved in the biopsies on the two tumours I’d had removed.
Q...... Yes.
A.Dr Birrell quotes firstly ‘the pathology of the lesion excised in 1978 was the same as the pathology with a lesion excised in 1984’. I was never told that. ‘That would indeed be a reassuring factor’. I was never told that. Basically, that means nothing had changed. So I’d gone from ’78m [sic], six years to ’84 with a recurrence of something where nothing had changed.
Q...... Anything else.
A.Dr Birrell notes the switch about in Mr Vorbach, ‘It’s stated in the pathology report in 1984 that the lesion was potential premalignancy’, they’re the same words. However, in a letter to Mr Robson, it dated 6 July, ‘Mr Vorbach’s was that the lesion was disturbingly premalignant’, which falls into line with his change in attitude from seeing me at the Western Community Hospital and then seeing me in his rooms later. I didn’t know he’d written that letter to Mr Robson and he changed - I didn’t know that it was based just on that one report.
Q...... Just looking through it again, is there anything else that you learnt for the first time.
A.Yes, I might have mentioned this earlier, Mr Birrell refers to Mr Melville Carter at the Royal Adelaide Hospital was a well known expert in breast disease and Elizabeth Kent [sic should be Cant] at Flinders, he refers to them both. Mr Birrell would have thought that Mr Vorbach would have referred me being only 36 years old to one of these two entities who was reputedly at that time, an expert. He was surprised that I wasn’t referred to either one of those. I think in terms of what I found out that was new, that’s -.”
50 In cross-examination the plaintiff admitted that she knew, prior to reading Dr Birrell’s report, that Dr Cant and Dr Carter were in 1984 considered to be experts in the field of breast disease and, consequently, paragraph 28(c) has not been established.
51 Having compared the evidence of the plaintiff with the report of Dr Birrell, I find that on about 1 March 2000 the plaintiff read Dr Birrell’s report and ascertained for the first time that Dr Birrell held the opinions referred to in paragraphs 28(a), (b), (d), (e) and (f). I conclude that the plaintiff, having ascertained that Dr Birrell held the opinions referred to, thereby ascertained facts material to her case apart from the matter referred to in paragraph 28(a) of the statement of claim. That sub-paragraph refers to the pathology report which indicated that the defendant had not removed all of the plaintiff’s breast tissue in July 1984. Paragraph 21 of the statement of claim sets out the alleged breach of the terms of the contract between the plaintiff and the defendant and the alleged particulars of negligence. There is no reference in paragraph 21 to a failure to remove all of the plaintiff’s breast tissue. Consequently, the ascertainment by the plaintiff of the matters referred to in paragraph 28(a) of the statement of claim are not material to her case.
52 During the course of the plaintiff’s evidence reference was made to the report of Dr Tony Davis. The report is Exhibit P4. It was sent to her by her solicitor on 5 May 2000. By reading that report the plaintiff said that she became aware that she was suffering from an adjustment disorder with mixed emotional features which can be related to the surgery in 1984 and her subsequent history. She also learned that the chronic pain suffered by her has been significantly influenced by her psychological state. These matters are set out in paragraph 29 of the statement of claim.
53 I find that on about 6 May 2000 the plaintiff, by reading the report of Dr Davis, became aware that she suffered from a psychological condition related to the 1984 surgery, that her condition consisted of an adjustment disorder with mixed emotional features and that Dr Davis’ opinion is that the chronic pain suffered by the plaintiff since 1984 has been significantly influenced by her psychological state. Paragraph 29 refers to the ascertainment of Dr Davis’ opinions, but I think in relation to paragraphs 29(a) and (b), she actually learnt that she was suffering from a psychological condition. These are material facts relating to her claim because the condition and its consequences constitute evidence of psychological injury said to arise from the 1984 surgery.
54 The next report referred to in the plaintiff’s evidence was that of Dr Geoff Mower dated 24 September 1999. That report is Exhibit P5. Dr Mower was also called to give evidence. As I understand the plaintiff’s case, that evidence was adduced on the question of the exercise of the Court’s discretion to grant an extension of time which I will turn to later in these reasons.
55 The plaintiff thought that she read the report at her solicitor’s office in about September or October 2000. She said (T68/32 et seq):
“Q.... Just have a look through it again and satisfy yourself that there is nothing new that you haven’t told us about that you’d learnt as a result of reading Dr Mower’s report.
A.Para 5, Mr Mower says that treatment decisions of this nature are multi-factorial and are based upon far more than the biopsy interpretation alone.
Q...... Yes, go on.
A.So I construed that as him meaning that there was more to it that should have been looked into.
Q...... And just going on from there did you learn anything new for the first time about Dr Mower’s opinion.
A.He notes that Dr Kirkland comments on conservative versus radical management. He was obviously looking at the original report then.
Q...... Dr Kirkland comments upon management options.
A.Yes.
Q...... Did you up to that time know that Dr Mower had a view about some comments that Dr Kirkland had made about management options.
A.Not until I got this letter, this report, until I read through this report.
Q...... And what was it about management options that you learnt for the first time.
A.That it could be just - that there were conservative management options.
Q...... What did conservative management options mean to you.
A.Wait and see, keep watching, versus radical which means mastectomy.”
56 The plaintiff also referred in her evidence to the fact that the increased risk of cancer was possibly 1.8 to 2.8 times that of the general population. This aspect of the plaintiff’s understanding cannot be regarded as a new fact because she learnt from Dr Carter’s report of an increased risk of that order.
57 Paragraph 30(c) of the statement of claims refers to the recommendations of clinical supervision for subcutaneous mastectomy made in Dr Kirkland’s report. Although the plaintiff was aware of those recommendations prior to reading Dr Mower’s report, she was not aware that those recommendations represented the two extremes of management.
58 I find that on about 5 September 2000 (the date agreed to by the plaintiff in cross-examination) that the plaintiff read the report of Dr Geoff Mower and ascertained for the first time that Dr Mower held the opinions set out in paragraph 30(b) and (c) of the amended statement of claim. The matters referred to in paragraph 30(a) of the amended statement of claim were not referred to by the plaintiff. The matters referred to in paragraph 30(b) and (c) are material facts because they relate to the question of whether or not the defendant could be said to be in breach of contract or negligent for allegedly recommending to the plaintiff a double mastectomy.
59 The plaintiff next referred in her evidence to the case notes of Dr Tony Moore, a plastic surgeon. These are dealt with at paragraph 31 of the amended statement of claim and relate to paragraph 21(h) of the pleading where it is alleged that the defendant failed to ensure that only gel or gel/saline lumen implants were implanted in the plaintiff.
60 The plaintiff read the notes at her solicitor’s office on 5 September 2000. I quote from the evidence (T71/5 et seq):
“Q.... Can you tell us, if more than one, each instance of where you learnt something new.
A.Well these are the notes that he made when I went to see him after I came out of the Royal Adelaide and I was looking for more information and more opinions. He reinforces what’s wrong with me and what had been done as theoretically repair surgery at the Royal Adelaide. He spoke to me at that time - I hadn’t seen this report though he obviously noted that I needed something more robust in my chest because of the condition of - it was very fragile, and he noted that, and he made notes of his suggestions about what to do and where it could be done as an alternative, other than the Royal Adelaide, but he also made a verbal comment about -
Q...... I’m talking about what you read in the report for the first time, not the verbal comment.
A.Alright. Well that’s what I learnt here for the first time, what he’d taken notes on, what had got damaged from the silicone implants.”
61 In cross-examination (T141/35 et seq) the plaintiff agreed that after she had seen Dr Moore in June 1997 he informed her of various things about her condition, the content of which is reflected in his notes. She agreed that his notes were a written record of what he said in June 1997 and, consequently, they were matters that were not ascertained by her for the first time when she read the notes in her solicitor’s office. In light of that evidence I do not consider that the plaintiff has made out the matters referred to in paragraph 31 of the statement of claim.
62 With the exceptions referred to above, the plaintiff has made out a case in terms of paragraphs 26, 28, 29 and 30 of the amended statement of claim. Because I consider that the matters raised in paragraphs 28-31 are not relevant, I take into account only my conclusions and findings relating to paragraph 26 of the amended statement of claim. I must next consider the exercise of the discretion to extend the time for the commencement of the action until 10 March 1999.
63 By paragraph 13 of his amended defence, the defendant pleads:
“13... The defendant denies that it is just for the Court to exercise its discretion to extend the time within which the proceedings can be instituted and says he is prejudiced in that:
13.1.......... the treatment and consultations giving rise to the plaintiff’s claim was [sic] provided in May 1984;
13.2.......... no notice of the alleged claim was given to the defendant until he was served with the proceedings herein;
13.3.......... the defendant has destroyed all case notes and records in relation to the plaintiff;
13.4.......... Dr Kirkland who performed the histopathological analysis is deceased.”
These matters have been established on the evidence.
64 The length of the extension is a period of approximately 9 years for a cause of action based in contract and 12 years for a cause of action based in negligence. Cases such as Ulowski v Miller [1968] SASR 277, although involving an application to dismiss an action for want of prosecution, are of assistance on questions of delay and prejudice to the defendant. It is clear from Ulowski (at 284.1) that a lengthy period of time by itself can give rise to the inference of prejudice. It is common ground that the defendant was given no notice of the claim until he was served with the proceedings and it has been established by the evidence of the defendant and his wife that all the case notes and records have been destroyed.
65 In Williams & Anor v FS Evans & Sons & Anor (1988) 52 SASR 237, the Full Court dealt with delay and prejudice to the defendant in respect of an application to renew a writ. In relation to prejudice, White J said (at 244.1):
“There must be a substantial risk that a fair trial would not be possible or substantial risk of serious prejudice to the defendant.”
66 In Reeves v Leyland Motor Corporation of Australia Limited (No 2) (1984) 115 LSJS 62 Cox J said, in relation to prejudice in the context of an application to set aside a default judgment (at 64):
“The question must surely be whether ... the respondent will be worse off now, if it has to prove its case ... than it would have been if the case had gone to trial ... at the proper time;”
67 I think that these tests apply to this application.
68 I do not consider that the death of Dr Kirkland is prejudicial to the defendant because his report is available to both parties and the tissue samples on which he based his report are still available and have been the subject of analysis by Dr Mower.
69 The question of the length of delay is tied up with the assertion both in the defence and the defendant’s evidence, that he has no recollection of any conversations he had with the plaintiff relating to advice and treatment given by him. The defendant has pleaded in paragraph 7 of the defence what he would have done and said in accordance with his usual practice and I am reasonably confident, although no concession was made to this effect by the plaintiff’s counsel, that he would be able to give evidence of his usual practice at the trial. This is not the same as being able to give evidence of direct recollection of conversations that he had with the plaintiff. In addition, he is without his notes which, I infer, would have assisted him in giving such evidence. The fact of not now being able to give direct evidence of the relevant conversations because of the effluxion of time is a matter prejudicial to the defendant. Such inability is tied up with the destruction of his notes because it is likely that, had the notes been retained, they would have refreshed his memory. They would have at least allowed him to give evidence by reference to the notes even if he had no independent memory. Such evidence could potentially be better than evidence of his usual practice, because he has to answer a case where the plaintiff has, she says, a specific recollection of all of the relevant conversations.
70 I think it is necessary to take into account the circumstances giving rise to the destruction of the defendant’s clinical notes. Both he and his wife gave evidence in this regard. It is clear that the notes were not destroyed as a result of being served with these proceedings. That has not been suggested nor could it be. The notes were destroyed in the ordinary course of the defendant’s practice because he had limited storage space for records and it was necessary to cull his records in order to make space available. His wife made enquiries of the Australian Medical Association and of his solicitor in respect of the period for which notes should be kept. She was informed in each instance that a period of seven years was adequate.
71 When the notes were originally culled, Ms Vorbach adopted a period of 10 years from the date of the last appointment with the defendant. It was contended on the basis of such evidence that it was quite reasonable for the defendant to destroy patients’ notes for the reasons given and on the basis referred to in evidence. However, it is clear from the defendant’s evidence that no distinction was made between the various conditions for which patients were treated by the defendant. The defendant was an experienced general surgeon who dealt with, on a regular basis, treatment for breast cancer or suspected breast cancer. Had he given the matter proper thought, the fact that cancer may occur or re-occur at any time or complications from surgery in relation to breast cancer may occur or re-occur in the future, should have prompted him to retain records relating to patients such as the plaintiff indefinitely. The lack of space is not a sufficient reason for not doing so. The potential importance of having recourse to notes at varying times in the future far outweighs the inconvenience of making extra space available. Consequently, in my view, the responsibility for the adverse consequences which now apply to the destruction of the notes must be borne substantially by the defendant.
72 In applying the tests set out in Williams v FS Evans (supra) and Reeves v Leyland (supra) the prejudice relied upon must flow from, in this case, the effluxion of fifteen years since the date of the original surgery. In my view, that has not been made out by the defendant because he must accept most of the responsibility for the destruction of his notes. There are two causes for his inability now to recollect the relevant conversations with the plaintiff: first, the effluxion of time and, second, the destruction of his notes. The passing of the period of fifteen years is only partly responsible for the fact that the defendant is now unable to give direct evidence of the relevant conversations. In those circumstances I do not consider that substantially as a result of the delay, a fair trial would not be possible or that there was a substantial risk of serious prejudice to the defendant.
73 I must also take into account the position of the plaintiff with regard to the exercise of the discretion. If it is exercised adversely to her, she will lose the opportunity to pursue her claim in damages against the defendant. This, in my view, is a far more serious consequence than the difficulties to which the defendant is presently subject.
74 In Ulowski, Bray CJ referred to the need for the plaintiff, in resisting the application to dismiss the action for want of prosecution, to explain the delays that had occurred. I think there is a similar requirement on the part of the applicant for an extension of time. This aspect of the matter has not been dealt with specifically by the plaintiff in her evidence. However, when her evidence is considered as a whole, the underlying reason for the delay, at least between 1984 and 1997, was that she was not aware that she might potentially have a claim against the defendant in respect of the 1984 surgery. It was not until 1997, after she had undergone surgery performed by Associate Professor Gill in late 1986, that she became aware that she might have a claim against the defendant.
75 Her initial enquiries to her solicitor, Ms Smith, were to ascertain whether or not she might have a claim against Associate Professor Gill. When the solicitor made enquiries about her history, the situation with regard to the 1984 surgery and the pathology report arising therefrom indicated that further enquiries should be made with regard to the 1984 surgery rather than the surgery performed by Associate Professor Gill in late 1986. It took a further period of approximately two years before proceedings were commenced but, given the nature of the enquiries that had to be made, and the absence of the availability of records from hospitals and medical practitioners, the delay between 1997 and 1999, when the proceedings were commenced in March of that year, cannot be said to be substantial. Importantly, it cannot be suggested on the evidence that the plaintiff, between 1984 and 1997, passively let that time pass without making investigations which otherwise should have been undertaken. As I have said, until 1997, she was not aware that she might potentially have a claim against Dr Vorbach. In these circumstances it seems to me that the responsibility for the length of the delay between the original surgery and the commencement of the proceedings is not something for which the plaintiff is responsible in the sense that she sat idly by and let time pass without protecting her own position. She was not aware that she had a position to protect in relation to a potential claim against the defendant.
1 In all the circumstances, I consider that the discretion to grant or withhold the extension of time should be exercised in favour of the plaintiff. There will be an order that the time for commencement of the within action be extended to 10 March 1999.
ANNEXURE - AMENDED STATEMENT OF CLAIM
“26.Certain facts were ascertained by the plaintiff on or about 11 June 1998 when she received from her solicitor a copy of a report from Dr Melville Carter dated 6 June 1998. The report revealed that Dr Carter held the following opinions:
(a)that the defendant’s decision to perform a bi-lateral prophylactic mastectomy was based on a pathology report by Drs James Kirkland and Martin Cook on breast tissue taken from the plaintiff’s left breast in May 1984;
(b).... that the said pathology report concluded that changes in the plaintiff’s left breast indicated a pre-malignant potential;
(c).... that the defendant’s recommendation that a mastectomy be performed on the plaintiff’s right breast as well as the plaintiff’s left breast was based on the defendant’s reading of xero-mammograms which in his opinion showed identical appearances in both breasts;
(d).... that the xero-mammography relied upon by the defendant was not as detailed and reliable as the new standard mammography available at the time;
(e).... that the xero-mammograms relied upon by the defendant were misleading;
(f).... that the presence of florid sclerosing adenosis diclosed [sic] in the pathology report referred to in paragraph 26(a) herein indicated only a slight increase in the risk of contracting breast cancer and that did not exceed a relative risk factor of 2;
(g).... that the plaintiff’s left breast did not show disturbing pre-malignant changes;
(h).... that the plaintiff’s right breast was not vulnerable;
(i).... that the plaintiff did not show a very strong propensity for breast cancer in either the left or the right breast;
(j).... that if the bi-lateral subcutaneous mastectomy had not been performed:
(i) the plaintiff would not have developed breast cancer within three years; and
(ii)... the plaintiff would not have died within eight years;
(k).... that clinical supervision would have been an acceptable and preferable option to bi-lateral mastectomy.
27.... Further facts were ascertained by the plaintiff on or about 10 July 1998 when she received from her solicitor a supplementary report by the said Dr Carter dated 22 June 1998. The supplementary report revealed that Dr Carter held the following opinions:
(a)that the defendant was at all material times a general surgeon not specialising in breast surgery;
(b).... that in 1984 a specialist in breast surgery would not have recommended a bi-lateral mastectomy; and
(c).... that in 1984 the defendant knew or should have known that more conservative treatment was available.
28.... Further facts were ascertained by the plaintiff on or about 1 March 2000 when she received from her solicitor a report written by Dr Steven Birrell and dated 7 February 2000. This report revealed that Dr Birrell held the following opinions:
(a)that a pathology report performed on 19 March 1998 indicated that the defendant had not removed all of the plaintiff’s breast tissue in July 1984;
(b).... that the pathology of the lesion excised in 1978 was the same as the pathology of the lesion excised in 1984 and that this was a reassuring factor indicating no increase in atypia of cells within the breast tissue;
(c).... that in 1984 Ms Elizabeth Cant of Flinders Medical Centre and Mr Melville Carter of the Royal Adelaide Hospital were considered to be experts in the field of breast disease;
(d).... that the defendant should have referred the plaintiff to either Ms Cant or Mr Carter for a second opinion;
(e).... that the defendant wrongly interpreted the pathology report; and
(f).... that in 1984 many general surgeons would have referred the plaintiff to a specialist breast surgeon.
29.... Further facts were ascertained by the plaintiff on or about 6 May 2000 when she received from her solicitor a report by the psychiatrist Dr Tony Davis dated 28 April 2000. This report revealed that Dr Davis held the following opinions:
(a)that the plaintiff was and is suffering significant psychological disturbance subsequent to the surgery of 1984 and the related events;
(b).... that the plaintiff’s symptoms are indicative of a moderately severe adjustment disorder with mixed emotional features; and
(c).... that it is highly likely that the chronic pain suffered by the plaintiff has been significantly influenced by the psychological state.
30.... Further facts were ascertained by the plaintiff on 5 September 2000 when her solicitor showed her a report by Dr Geoff Mower dated 24 September 1999. This report revealed that Dr Mower held the following opinions:
(a)that in 1984 where a pathology report showed ductal hyperplasure and sclerosing adenosis the perceived risk of developing cancer varied greatly from authority to authority and perceptions were frequently conjectural;
(b).... that in 1984 the pathological approach to diagnosis and the clinical approach to treatment varied greatly from authority to authority; and
(c).... that the recommendation of clinical supervision or subcutaneous mastectomy made by Dr James Kirkland and Dr Martin Cook in the biopsy report referred to in paragraph 26(a) herein represented the two extremes of the management continuum.
31.... Further facts were ascertained by the plaintiff on 5 September 2000 when her solicitor provided her with a copy of the case notes of the plastic surgeon Dr Tony Moore. These notes revealed the following:
(a)that in 1997 the plaintiff was suffering from recurrent inflammation in the right medial upper quadrant of the left breast associated with the presence of silicone granuloma;
(b).... that in 1997 the plaintiff was suffering from contracted capsule formation with scar tissue associated with saline implants;
(c).... that the plaintiff’s saline implants were underfilled; and
(d) that silicone granuloma was present within the breast.”
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