Alrifai v ACT [2024] ACTCA 13

1. Faten Alrifai claimed damages for medical negligence arising from alleged delay in the diagnosis of her pancreatic cancer during her treatment at the Canberra Hospital. The proceedings were brought against the Australian Capital Territory as the entity vicariously liable for the conduct of the hospital.

2. Mrs Alrifai presented at the Canberra Hospital on numerous occasions in 2018 with various complaints including nausea and intense pain in the chest, abdomen and flank. Between the beginning of 2018 and the end of April that year, she had abdominal computed tomography (CT) scans on 1 January 2018, 6 April 2018 and 22 April 2018. On 26 April 2018, she had an endoscopic ultrasound which included a fine-needle aspiration. The hospital’s response to the results of those tests formed the central basis of Mrs Alrifai’s claim for medical negligence.

3. It was not alleged that the radiologists were negligent in reporting on the tests. The claim was confined to the response of the hospital medical team when results became available on three critical dates. The particulars of negligence alleged that the hospital was negligent in failing on or by 3 January 2018 or alternatively 6 or 26 April 2018 to recognise Mrs Alrifai’s increased risk of pancreatic adenocarcinoma given her symptoms (particular 25(a)); in failing on or by each of those dates to have taken various steps, including making or properly considering a differential diagnosis of pancreatic cancer and discussing her presentation with a surgeon, involving a surgeon in her care or seeking an opinion from a surgeon, so as to exclude or detect the presence of pancreatic cancer (particular 25(b)(iii) and (iv)) and various other omissions, including failing to diagnose Mrs Alrifai with pancreatic adenocarcinoma at an earlier time (particular 25(e)).

4. Shortly before the commencement of the hearing, the Territory made a limited admission of liability in respect of the results obtained on the last of the three critical dates, 26 April 2018, as follows: [T]he defendant admits that the failure of the plaintiff's treating clinicians to obtain a surgical opinion in relation to the plaintiff following the time at which the results of the endoscopic ultrasound and fine-needle aspiration undertaken on 26 April 2018 became available to them was a breach of the duty of care that it owed to the plaintiff.

5. However, the Territory denied that the admitted negligence caused any injury, loss or damage.

6. The primary judge (Balla AJ) found for the Territory and entered judgment accordingly: Alrifai v Australian Capital Territory [2022] ACTSC 48. Mrs Alrifai appeals from that decision. The appeal is largely confined to the issue of causation flowing from the Territory’s admitted negligence, which is defined in s 40 of the Civil Law (Wrongs) Act 2002 (ACT) to mean a “failure to exercise reasonable care and skill”. The admission was the failure of the treating clinicians to obtain a surgical opinion following the time at which the results of the endoscopic ultrasound and fine-needle aspiration undertaken on 26 April 2018 became available.

Nature of the appeal

7. The appeal is brought pursuant to s 37E of the Supreme Court Act 1993 (ACT) and is an appeal by way of rehearing. The task of this Court is to conduct a real review of the evidence at trial, make its own factual findings and deliver the judgment that, in our view, “ought to have been pronounced in the Court from which the appeal proceeds”: Dearman v Dearman [1908] HCA 84; 7 CLR 549 at 560. In so doing, the Court must not overlook the advantage of the primary judge in seeing and hearing the evidence and being immersed in the atmosphere of the trial (the “feeling” of the case): Fox v Percy [2003] HCA 22; 214 CLR 118 at [23].

Circumstances in which the claim was brought

8. It is necessary for that purpose to understand the relevant medical history, which was largely not in dispute. The following summary is drawn largely (and in parts verbatim) from the judgment of the primary judge.

9. Mrs Alrifai first presented at the Canberra Hospital on the evening of 25 December 2017 with symptoms of chest pain and nausea. At that stage, she was advised of a possible diagnosis of oesophageal reflux disease or early pancreatitis. She was discharged the same day.

10. On 1 January 2018, Mrs Alrifai was taken to the hospital by ambulance complaining of chest pain over the previous six days. She was admitted to hospital for two nights. An abdominal CT scan performed that day was reported as follows: Findings: There is some fat stranding surrounding the pancreatic body and tail with the pancreatic tail demonstrating slightly lower attenuation/oedema when compared to the remainder of the pancreas. Appearances are thought to relate to pancreatitis. No complication is identified… Impression: Features consistent with acute pancreatitis without complications. No features to suggest diverticulitis.

11. In the proceedings before the primary judge, Mrs Alrifai alleged that the hospital was negligent in failing to identify a mass on that scan and failing to obtain a surgical opinion at that point. The primary judge did not accept that aspect of the claim and it is not pressed in the appeal.

12. On 2 January 2018, Mrs Alrifai was attended by Dr Subramaniam, who was conducting a ward round. Based on Mrs Alrifai's clinical presentation and after further investigations, Dr Subramaniam diagnosed acute pancreatitis. On 3 January 2018, Mrs Alrifai underwent an abdominal ultrasound. The ultrasound excluded the presence of gallstones, which is one of the major causes of pancreatitis. Accordingly, Dr Subramanium considered that the next step for Mrs Alrifai would be to have an MRCP (explained in the primary judgment at [13] as a Magnetic Resonance Cholangiopancreatography, being a type of magnetic resonance imaging used to evaluate the pancreas and pancreatic duct for disease). The purpose of referring Mrs Alrifai for an MRCP was to exclude other possible causes of pancreatitis and to look for pancreatic lesions. Dr Subramaniam provided a discharge letter to Mrs Alrifai’s general practitioner stating “[Mrs Alrifai] had features consistent with pancreatitis however no clear cause was identified”. Dr Subramaniam asked the general practitioner to arrange for Mrs Alrifai to have an MRCP prior to follow-up in Dr Subramaniam’s clinic on 7 February 2018 at 9:15 am. The primary judgment records at [183] that Mrs Alrifai was asked to attend for an MRCP as an outpatient before her next appointment with Dr Subramaniam on 7 February 2018.

13. Mrs Alrifai did not attend her general practitioner and did not attend her outpatient appointment with Dr Subramaniam. There is no evidence that she had an MRCP at that time, as advised by Dr Subramaniam.

14. On 26 February 2018, Mrs Alrifai was taken to Canberra Hospital by ambulance presenting with a history of three days of “left flank pain”. The primary judgment records at [37] that, about an hour after she arrived, Mrs Alrifai had an argument with a staff member over analgesia and left without seeing a doctor. She returned later that day and was reviewed in the gastroenterology outpatients department. A discharge letter from Dr Angela Cropley recommended that Mrs Alrifai have an MRI scan “to just work out if there truly is any pancreas pathology”. Dr Cropley proposed that she would review Mrs Alrifai in the next few months.

15. On 7 March 2018, Mrs Alrifai was again taken to the Canberra Hospital by ambulance complaining of worsening left flank pain, nausea and vomiting. An abdominal ultrasound was performed but the pancreas could not be visualised.

16. On 13 March 2018, an MRCP was attempted. However, Mrs Alrifai experienced claustrophobia and could not get into the machine. Dr Subramaniam gave evidence that it was then decided that Mrs Alrifai should have the MRCP as an outpatient after taking diazepam. This was reported to Mrs Alrifai's general practitioner in a letter dated 13 March 2018. However, on 19 March 2018, Mrs Alrifai was again taken to the hospital by ambulance presenting with left-sided chest pain radiating down her arm. The discharge letter to the general practitioner dated 20 March 2018 stated: Patient decided to leave against medical advice. I’ve spoken to patient in detail regarding the risk of missing a NSTEMI which consequence can be devastating, even fatal. I have also stated that if patient walks out the door we won’t be responsible if her repeat troponin which were just sent shows a NSTEMI. Faten and her husband has decided to leave against medical advice after extensive conversation with me.

17. On 6 April 2018, Mrs Alrifai was again taken to the Canberra Hospital by ambulance. She was admitted under the care of Dr Drini. The hospital conducted abdomen and chest x-rays and a CT scan. The CT scan was reported as follows: Findings: …There is fat stranding surrounding the pancreatic tail which demonstrates low attenuation/oedema compatible remainder of the pancreas. Appearances are thought to relate to acute pancreatitis… Impression: Acute pancreatitis involving the pancreatic tail. The pancreatic tail demonstrates reduced enhancement/hypodensity that may reflect oedema or early necrosis (depending on the time interval between onset of symptoms and the current study). Repeat study is suggested to qualify the finding.

18. The second CT scan also identified inflammation in the splenic vein suspicious of splenic vein thrombosis.

19. In the proceedings before the primary judge, Mrs Alrifai contended that the hospital was negligent in failing to identify a mass on that scan and failing to obtain a surgical opinion at that point. The primary judge rejected that aspect of the claim and it is not pursued in the appeal.

20. Mrs Alrifai was discharged on 10 April 2018. On 13 April 2018, she underwent an MRCP at the hospital as an outpatient. The report noted a history of “pancreatitis with no clear cause”. The reported “impression” was “pancreas divisum”. The primary judge explained at [15] that “pancreas divisum is a birth defect in which parts of the pancreas do not join together” and “a well-described cause of recurrent pancreatitis”.

21. On 19 April 2018, Mrs Alrifai presented at the emergency department of the hospital complaining of pain. She was discharged the following day and saw Dr Subramaniam, who arranged for her to be admitted again in light of the level of pain she was suffering. She was admitted on 21 April 2018 and discharged on 2 May 2018. The Territory’s admission of breach of duty of care relates to the events of that admission.

22. Dr Subramaniam first arranged for a repeat CT scan, which was carried out on 22 April 2018. The following findings were reported: There is a hypoattenuating ovoid region within the tail of the pancreas, measuring 20 x 22 mm with areas of parenchymal enhancement and non-enhancement, pancreatic swelling, Peripancreatic stranding and a small volume of free fluid, in keeping with pancreatitis and focal areas of pancreatic necrosis. There is no evidence of gas formation. The remaining pancreas demonstrates normal appearances and enhancement. Pancreas divisum is re-demonstrated. The pancreatic duct is not dilated…

23. The reported “impressions” included “areas of non-enhancement within the pancreatic tail concerning for pancreatic necrosis” and “an underlying pancreatic lesion cannot be excluded”.

24. On 23 April 2018, Dr Subramaniam ordered further tests including tumour markers. The results received the following day recorded tumour markers within the normal range.

25. On 26 April 2018, an endoscopic ultrasound was performed during which a fine needle biopsy was taken from the tail of the pancreas. The endoscopic ultrasound was reported as follows: “an irregular mass was identified in the pancreatic tail. The mass was heterogeneous. The mass measured 20 mm x 20 mm in maximal cross-sectional diameter”.

26. The fine needle biopsy was reported as follows: Overall, the features are of acute pancreatitis with a small amount of cellular material showing worrying architectural and cytological changes. However in presence of inflammation, the atypia, at this stage, should be regarded as reactive in origin. Follow-up is recommended with review following resolution of the acute inflammatory process.

27. Dr Subramaniam took the results of the endoscopic ultrasound and the fine needle biopsy to a meeting of a multidisciplinary team on 1 May 2018. That team did not include a surgeon. As already noted, the Territory admits that the failure to obtain a surgical opinion when those results became available was a breach of the duty of care the hospital owed to Mrs Alrifai. The appeal is confined to the issue of factual causation following that admitted negligence.

28. Dr Subramaniam gave evidence that the multidisciplinary meeting was attended by two radiologists, a pathologist, Dr Fadia, Dr Aggarwal and a number of other gastroenterologists. The primary judge recorded at [78]: The radiologists and the gastroenterologists looked at the images. Dr Fadia reviewed the slides, went through the findings and told the meeting that the atypia should be considered as reactive. They then had a discussion and reached a consensus decision that this was an inflammatory process which needed ongoing follow up in the form of a repeat CT in three months. A pain management consultation was also requested for the plaintiff.

29. Mrs Alrifai was discharged from the hospital with a diagnosis of pancreatic tail pancreatitis. The discharge letter also recorded a diagnosis of “splenic vein thrombosis” with a recommendation to the general practitioner to continue Warfarin and administer Clexane (both anticoagulant medications) for the next six months.

30. Over the following months, Mrs Alrifai continued to present with abdominal pain, both at appointments with her general practitioner and at the Canberra Hospital. On one occasion in June 2018, she was discharged after receiving pain medication because she said she was pain free and wanted to leave, saying she would come back if the pain worsened. On another occasion she left before being reviewed by the gastroenterology team (primary judgment at [83]-[84]).

31. On 26 July 2018, Dr Aggarwal performed a second endoscopic ultrasound which identified that the mass measured 25 mm by 20 mm. Unlike the previous ultrasound, no specimens were collected during this procedure because Mrs Alrifai was being treated with the anticoagulant medications referred to above, which meant that the fine needle aspiration procedure would have carried a risk of bleeding. The notes from that procedure indicate that the “appearance [of the mass] is benign inflammatory changes although malignancy is not excluded on this examination”.

32. On 30 July 2018, Mrs Alrifai underwent a fourth CT scan which was reported as showing features “suggestive of resolving pancreatitis involving the pancreatic tail”.

33. On 23 August 2018, Mrs Alrifai presented at the Emergency Department at the hospital after having experienced a sudden onset of left-sided chest pain. Blood tests and an electrocardiogram were done but Mrs Alrifai declined to have an X-ray. The primary judge recorded that Mrs Alrifai left the hospital against medical advice “because she was asymptomatic”.

34. On 28 August 2018, Mrs Alrifai consulted a gastroenterologist in Sydney, Professor Wilson. He reported the impression that the lesion in the tail appeared to be resolving and looked more inflammatory than neoplastic.

35. A further CT scan performed on 29 October 2018 reported no significant change in the size of the hypoattenuating ovoid lesion in the pancreatic tail compared with the scan performed on 30 July 2018.

36. A sample of the mass tissue was ultimately obtained during a third endoscopic ultrasound performed by Dr Aggarwal on 8 November 2018. The procedure identified that the mass had now grown to 35 mm by 40 mm in diameter and appeared suspicious for adenocarcinoma. That sample was tested and resulted in a diagnosis of pancreatic tail adenocarcinoma.

37. On 26 November 2018, Mrs Alrifai was admitted to Royal Prince Alfred Hospital. She underwent a splenic artery angioembolism that day. On 27 November 2018, she underwent surgery to remove sections of her pancreas and spleen to which the cancer had spread.

38. From February to July 2019, Mrs Alrifai was treated with various chemotherapies which were eventually ceased at her request.

39. Mrs Alrifai continued to present at Canberra Hospital on a regular basis with abdominal pain throughout 2019 and 2020.

40. In February 2021, Mrs Alrifai travelled to Germany to undergo liquid nitrogen treatment. Upon her return, on 12 March 2021, she was referred for palliative treatment at the Canberra Hospital.

The findings of the primary judge on negligence

41. Mrs Alrifai's case rested heavily on the three CT scans obtained in the period up to 26 April 2018. She called evidence from two experts, Professor Morris and Professor Fox, to the effect that there should have been a diagnosis of cancer based on those scans. The primary judge rejected their evidence, for the reasons set out at [122]-[147] of the primary judgment. There is no appeal from that part of the decision (the rejection of the allegation that there should have been a diagnosis on the basis of those scans).

42. The primary judge then turned to deal with each of the particulars of negligence relied upon by Mrs Alrifai. Her Honour stated at [148] that she was not dealing with the particulars in the order set out in the pleading but had grouped together those which raised similar issues. It is not contended in the appeal that her Honour overlooked any particular in taking that approach.

43. In summary, the primary judge rejected every allegation of negligence apart from the hospital's admitted breach of duty in failing to obtain the opinion of a surgeon in light of the various test results that were available on 26 April 2018. The following allegations were rejected by the primary judge: (a) failure to recognise the plaintiff's increased risk of pancreatic adenocarcinoma in light of her symptoms (particular 25(a)): primary judgment at [149]-[153]. (b) failure to make or properly consider a differential diagnosis of pancreatic cancer (particular 25(b)(i)): primary judgment at [154]-[168]. (c) failure to conduct positron emission tomography (PET) and magnetic resonance (MR) imaging combined with the CT scanning (particular 25(b)(ii)): primary judgment at [169]-[188].

44. There is no appeal from those findings. The remaining sub-particulars of particular 25(b) captured, in different ways, the broad complaint of failure to obtain the opinion of a surgeon. The primary judge noted at [224] that, as to the last of the three points in time relied upon by Mrs Alrifai, the Territory had conceded that a surgical opinion should have been obtained after the endoscopic ultrasound on 26 April 2018 which showed “worrying architectural and cytological changes”. The primary judge otherwise rejected the remaining sub-particulars of particular 25(b), for the reasons stated at [195]-[229] of the primary judgment. Her Honour also rejected particulars 25(c), (d), (e), (f), (g) and (h) for the reasons stated at [189]-[194] and [230]-[243] of the primary judgment. There is no appeal from any of those findings.

The findings of the primary judge on causation

45. The claim was governed by the Civil Law (Wrongs) Act 2002 (ACT). The primary judge noted the test for causation set out in s 45 of that Act, as follows: (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). (emphasis in original)

46. The primary judge rejected Mrs Alrifai's claim for failure to prove the first element (factual causation). Her Honour analysed the issue of factual causation by reference to two limbs, as follows at [116]: I accept the submissions made by counsel for the defendant in relation to the manner in which the issue of causation in this case must be determined. The common law does not permit an action for recovery when the damage, for which compensation is awarded consequent upon breach of duty, is characterised as the loss of a chance of a better outcome. This means that the plaintiff must prove, on the balance of probabilities: (a) But for one or more of the alleged negligent acts or omissions, she would have undergone her surgery earlier than November 2018; and (b) Had she undergone surgery at that earlier time, she probably would have avoided the injuries particularised in the pleadings.

47. In relation to the first limb of factual causation, the primary judge concluded at [254]: I decline to find that the plaintiff has shown that, but for one or more of the alleged negligent acts or omissions, she would have undergone her surgery earlier than November 2018.

48. The primary judge had earlier recorded a separate, specific finding on the first limb of factual causation concerning the admitted breach at [228]: I decline to find that the plaintiff has shown that, if a surgical opinion had been obtained on 26 April 2018, she would have undergone surgery earlier than November 2018.

49. It is convenient to refer to that separate finding as the causation finding. The causation finding is challenged and indeed, is the central focus of the appeal.

50. In relation to the second of the two limbs set out above, the primary judge noted at [258] that, in light of her conclusion on the first limb of causation, it was not necessary to consider the second limb. Her Honour nonetheless set out the findings she would have made on that issue, concluding at [277]: I decline to find that the plaintiff has shown that earlier surgery would, on the balance of probabilities, [have] avoided any of the injuries she claims in the Further Amended Statement of Claim and the Amended Statement of Particulars. Grounds of appeal

51. The amended notice of appeal filed 27 June 2022 specified some 20 grounds of appeal. At the outset of the hearing of the appeal, Mr Hooke SC, senior counsel for Mrs Alrifai, helpfully distilled the argument to two grounds: (1) The primary judge erred in finding that the appellant’s pancreatic resection surgery would not have occurred earlier than in November 2018 had a surgeon reviewed and managed the appellant’s pancreatic mass on or soon after 26 April 2018; and (2) The primary judge erred by admitting expert opinion evidence from lay witnesses without having considered or granting leave under r 1243 of the Court Procedures Rules 2006 (ACT).

52. Mr Hooke indicated that the multiple alleged failures specified in the notice of appeal in support of ground (1) should be regarded as particulars of the overall challenge to the primary judge’s causation finding rather than as separate grounds of appeal.

53. Ground (1) as distilled does not respond in terms to any finding of the primary judge. As explained above, the primary judge did not find the hospital negligent in failing to have a surgeon review and manage Mrs Alrifai’s pancreatic mass on or soon after 26 April 2018. The only finding of negligence was the admitted negligence in failing to obtain the opinion of a surgeon at that time.

54. Further as to ground (1), as the Territory submitted, the primary judge did not make the positive finding recited in that ground. Rather, on an issue on which Mrs Alrifai bore the onus of proof under s 46 of the Civil Law (Wrongs) Act, the primary judge’s causation finding was as set out above at [48]. The sting of the complaint on this appeal was effectively that the primary judge erred in failing to find that factual causation with respect to the admitted breach of duty of care on 26 April 2018 was established on the evidence. That is the primary question on appeal.

55. Mrs Alrifai submitted that, if satisfied that ground (1) is made out, this Court would not need to address ground (2). The difficulty with that approach is that it leaves uncertain the evidentiary basis on which ground (1) should be determined. For that reason, it is convenient to address the substance of ground (2) first.

Were the opinions of treating doctors wrongly admitted as expert evidence?

56. Mrs Alrifai's written submissions in support of ground (2) asserted that “the Appellant objected many times throughout the hearing to expert evidence being given by lay witnesses”. The submissions complained that, at many points in the judgment, the primary judge referred to and relied on “lay evidence as expert opinion evidence” where no expert evidence had been served in accordance with the rules. It was contended by reference to those passages of the judgment that the primary judge had accepted opinion evidence given by Dr Aggarwal, Dr Subramaniam and Dr Drini, each of whom was a treating doctor. However, the submissions did not identify where that evidence had been the subject of objection. In order to give the appellant a full opportunity to make good this ground, the Court accordingly granted leave to her to provide a list of the objections to evidence taken at trial on the basis of r 1243 and leave both parties to make further submissions about those objections.

57. The list provided by the appellant identified only four “rule 1243 objections”. The first turned out, upon examination, not to have been an objection. The remaining three were all made during the evidence of the first witness called by the Territory, Dr Aggarwal. He was one of Mrs Alrifai's treating gastroenterologists. The first objection to his evidence taken by trial counsel for Mrs Alrifai (junior counsel in the appeal) came in the following exchange (at tcpt 273/38): MS THOMAS: Dr Aggarwal, you are aware that this case concerns a lady who presented with the condition that was understood to be pancreatitis, at least initially. Do you understand that?---I do. Could you explain to her Honour what pancreatitis is. MR RICHARDS: Objection, your Honour. This witness is being called as a lay witness. There are no reports. I understand - we vigorously object to any opinion evidence so far as an expert witness. Of course he can say things in relation to the hospital and what goes up at the hospital, but certainly not in opinion evidence. We don't have a report. I don't know what he's going to say.

58. The primary judge dealt with that objection in effect by prevailing upon counsel for the Territory, Ms Thomas, to move on, noting that the expert witness qualified by the Territory had given “a long definition” of pancreatitis. Shortly afterwards, Dr Aggarwal was asked what the causes of pancreatitis are. The same objection was taken and the judge dealt with it in the same way.

59. The final objection was raised after the doctor was asked to explain what an MRCP is. In written submissions in the appeal, Mrs Alrifai relied on the fact that counsel had at that point made “a standing objection to all expert opinion evidence from the lay witnesses where an expert report had not been received”. It is helpful to set out the relevant exchange in full: MS THOMAS: You mentioned one of the imaging modalities as MRI. Is there another imaging modality MRCP?---Yes. And can you explain to her Honour what those two investigations are and how they differ, if they do?---There are some subtle differences between the two and MRCP by definition, is designed not only to look at the pancreatic tissue or parenchyma, but also that ductular structures, we call it the pancreatic biliary tree, so the bile ducts and the pancreatic ducts which gives us initial information with regards to the cause, and an MRCP may just focus on the pancreatic tissue and not give the more detailed duct anatomies, so to speak, or the actual structures within the pancreas, and that is the primary role of an MRCP. HER HONOUR: Could you explain that to me again?---Yes Just the MRCP?---M’mm. Could you just explain it to me?---Yes. So an MRCP, it's an acronym. Yes, I understand that?---It's - - - Very long word?---Yes, magnetic resonance cholangiopancreatography is the full form of that, and what it does is, so you have the pancreas that allows you to look at the pancreatic tissue, the pancreatic parenchyma, looking for any abnormalities out there, but what's also useful is to define - there are tubes from the pancreas, we call them ducts, which extract the pancreatic juice, and -and, you know, transported to the small bowel. And similarly there's a bile duct which is a tube that comes out of the gallbladder and transports bile to the small bowel, but it passes through a portion of the pancreas, and - and the anatomy of that, in terms of what those tubes and ducts look like, and whether there's any abnormality out there, whether there's any blockages out there, is better to find from an MRCP. MR RICHARDS: Your Honour, I'm very sorry to interrupt, but I just want to put on the record an objection for any of the witness’ evidence in relation to opinions where we haven’t received a report. I just want to put that on the record because these - - - HER HONOUR: Are you describing that as an opinion, that last explanation of what an MRCP is? MR RICHARDS: Yes, because I didn’t ask Professor Fox and there’s nothing in the report about it, and it’s an opinion. HER HONOUR: So you’re expecting me to end up at the end of this hearing just knowing there’s an MRCP and not knowing what it is? MR RICHARDS: We have Professor Morris and we have Dr Burge who have yet to give evidence, and you will know what it is. HER HONOUR: All right. If they take any issue with what we have been told, I’m sure we will hear from you. MR RICHARDS: Okay. And I won't object again. HER HONOUR: Sure. MR RICHARDS: I just wanted to put that on the record that any opinions where we do not have a report, we are objecting.

60. The “standing objection” at that point to “any opinions where we do not have a report” was unhelpful in that it purported to preserve a position in a global way without specifying the evidence the subject of the objection. The primary judge could not sensibly have known what counsel would contend fell within the description of “opinions where we do not have a report”. The objection was also misconceived because Dr Aggarwal’s explanation of an MRCP was not opinion evidence. The answer may have reflected his specialised knowledge, but it was not an expression of opinion; it was evidence of a fact (what an MRCP is).

61. As already noted, the objections were described as “rule 1243 objections”, referring to r 1243 of the Court Procedures Rules. That rule provides: Except with the court’s leave or as otherwise agreed by all the active parties to a proceeding, the oral evidence in chief of an expert is not admissible unless an expert report served in accordance with rule 1241 (Service of expert reports) contains the substance of the matters sought to be adduced in evidence.

62. However, counsel does not appear to have taken the primary judge to that rule, in this context or at all. The closest he came was to refer to his understanding that, under the Court Procedures Rules, “nothing new should be introduced that isn’t in the reports”. That point was made during the evidence of Professor Richardson, who was qualified by the Territory as an expert witness.

63. Furthermore, having made the “standing objection”, counsel for Mrs Alrifai then proceeded himself to cross-examine Dr Aggarwal as to his opinion on certain matters, evidently with a view to securing admissions.

64. The principal difficulty with this ground is that medical practitioners sued for medical negligence must be permitted to make a full and fair defence to the allegations against them. As submitted on behalf of the Territory, that will involve their explaining, by reference to their own expertise and opinions held at the time, why they acted or failed to act in a particular way. Evidence of an opinion of a treating doctor adduced to explain why they acted in a particular way would be “relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed” and so would be admissible under s 77 of the Evidence Act 2011 (ACT).

65. There will not always be a bright line distinction between evidence relied upon as part of the factual defence to a medical negligence claim and expert opinion evidence proper. A “standard objection” is accordingly meaningless in that context. If a party wishes to object to opinion evidence given by a treating doctor, the objection should be made, and the basis for the objection clearly articulated, by reference to specified evidence at the time it is adduced. Where a treating doctor’s evidence of an opinion is admitted or not objected to because it is relevant to a fact in issue, it is always open to counsel to apply for an order limiting the use of such evidence under s 136 of the Evidence Act. That section was evidently referred to in written objections to the evidence of the expert witnesses (perhaps in relation to the admissibility of any history obtained from Mrs Alrifai), but the transcript of the hearing discloses no debate or ruling under s 136 in the context of the present issue concerning the admissibility of any opinions expressed by treating doctors.

66. In the circumstances, as submitted by the Territory, Mrs Alrifai should be bound by the manner in which the trial was conducted on her behalf.

67. For those reasons, ground (2) is not made out.

First limb of factual causation: whether the appellant would have undergone surgery earlier

68. The remaining issue raised by ground 1 of the appeal is whether Mrs Alrifai proved on the balance of probabilities that, but for the failure of her treating clinicians to obtain a surgical opinion following the time at which the results of the endoscopic ultrasound and fine-needle aspiration undertaken on 26 April 2018 became available to them, she would have undergone surgery earlier than November 2018.

69. Before turning to Mrs Alrifai's challenge to that conclusion, it is necessary first to resolve a dispute as to the scope of the Territory’s admission of breach of duty.

Scope of the Territory’s admission of breach of duty

70. Senior counsel for Mrs Alrifai contended in oral submissions that the Territory’s submissions were “curious” in that they treated the admitted breach as though it were “fixed in point of time in the days following 26 April 2018 and not thereafter”. He submitted that, properly understood, the admission concerned a breach that was ongoing, continuing from shortly after 26 April 2018 until November 2018, when Mrs Alrifai was finally referred to a surgeon. Counsel noted that none of the Territory’s experts addressed what should have been done after 1 May 2018 (the date on which the multidisciplinary team met without the inclusion of a surgeon). He submitted that this Court should accordingly infer that their answers to that question would not have assisted the Territory, in accordance with the principle in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at [418]-[419].

71. The Territory did not accept that its admission of breach was to be construed in that way, as an admission of continuing breach from the end of April 2018 until early November 2018. Counsel for the Territory, Ms Thomas, submitted that the allegation of negligence was that the opinion of a surgeon should have been obtained immediately after the results obtained on 26 April 2018 were known and that Mrs Alrifai’s case was conducted on that basis. Ms Thomas further submitted that, in determining whether the admitted negligence “caused particular harm” within the meaning of s 45 of the Civil Law (Wrongs) Act, it was necessary to consider the information a hypothetical surgeon would have had based on the results up to and including 26 April 2018 and what opinion would have been given at that point in time based on that information. Ms Thomas noted that Professor Morris, the expert surgeon qualified by Mrs Alrifai, did not address the period after 1 May 2018 any more than Professor Richardson did.

72. Ms Thomas submitted that no inference could be drawn that the evidence of Professor Richardson, a hepatobilary gastrointestinal laparoscopic and general surgeon called by the Territory, concerning any later period would not have assisted the Territory. Rather, the question for this Court was whether, having received the type of advice Professor Morris said he would have given, we should infer that Mrs Alrifai would have given informed consent to undergo surgical pancreatic resection in the absence of a diagnosis or further investigation of the mass seen on the CT scan reported on 22 April 2018.

73. Based on our review of the material put before this Court, we are not persuaded that the Territory's admission can properly be understood as an admission of a continuing breach from 1 May 2018 until early November 2018, when the advice of a surgeon was ultimately sought. Mrs Alrifai's case was not pleaded or run on that basis. Indeed, the evidence primarily addressed an earlier period, the case at trial being that the diagnosis of pancreatic cancer should have been reached within a week of 3 January 2018. As discussed in further detail below, the particulars of negligence in the statement of claim alleged negligence in failing to take certain steps “on or by” the three specified dates, of which 26 April 2018 was the latest. The defendant cannot be taken to have admitted a breach of duty that was not pleaded. The characterisation of the admission as one of continuing breach appears to reflect an unconscious shift in the case to accommodate the findings of the primary judge.

74. Furthermore, to construe the admission as an admission of ongoing breach (apparently day by day) would reflect an assumption as to the content of the duty of care that would be wholly unrealistic. The exercise of reasonable care and skill does not require medical professionals, as a precautionary measure, to review the case of each past patient each day for an indefinite period. Their professional services are reactive to the information presented to them at the time a patient is under their care. The admitted breach of duty was, of its nature, fixed at a point in time in Mrs Alrifai’s complex medical experience, when the results of the tests undertaken between 22 and 26 April 2018 were conveyed to Dr Subramaniam and considered by the multidisciplinary team.

75. Having regard to the way in which the case was pleaded and the hearing was conducted on behalf of Mrs Alrifai, and a correct legal understanding of the scope of the duty of care owed by medical practitioners, we consider that the admission made by the Territory was to be understood as being confined to a breach of duty in failing to obtain the opinion of a surgeon at around the time of the multidisciplinary team meeting concerning the results available up to that time. Any loss or damage caused by that breach of duty must be assessed on that premise.

The reasoning of the primary judge on whether the appellant would have undergone surgery earlier

76. The primary judge explained her causation finding on the case as conducted at [227], as follows: In determining whether the plaintiff has shown that, if a surgical opinion had been obtained on 26 April 2018, she would have undergone surgery earlier than November 2018, I take the following findings into account: (a) Professor Morris’ interpretation of the CT images underpins his opinion that surgery should have been performed immediately after 26 April 2018. I have not accepted that opinion. I also decline to find that a reasonably competent surgeon would have seen a mass which needed immediate removal in the investigations done up to 26 April 2018 for the same reasons I have not accepted the opinion of Professor Morris, the primary reason being the overwhelming medical evidence to the contrary. (b) I infer that, if a surgeon had become involved on 26 April 2018, he or she would have attended the MDT on 1 May 2018. As I have said the specialists at that meeting arrived at a consensus that the findings of the FNA were likely an inflammatory response. There is no basis for me to conclude that the surgeon would have dissented from that consensus, after listening to the other doctors. (c) In cross examination, Professor Morris gave evidence of the information he would have provided to the plaintiff before the operation to obtain informed consent, where imaging demonstrated the presence of a mass, but there was no positive cytology: (i) The risk of time passing while the mass was being investigated if it turned out to be malignant; (ii) The risks of the surgery, including haemorrhage, thromboembolic disease and pancreatic tail fistula and anaesthetic risks; (iii) The risk that the lesion was benign and that the resection was unnecessary. (iv) The removal of the spleen, which would require the patient to take medication for the rest of their lives. (v) The risk of death from the procedure, although Professor Morris regarded it as small. There is no evidence from the plaintiff as to what she would have done if, after 26 April 2018, she had been offered surgery and been given this information. (d) In his report dated 24 April 2021 Professor Morris said that after the EUS on 26 April 2018 "A surgical opinion was required, who could have explained to Ms Alrifai the pros and cons of further imaging or simply removing the mass." In relation to the alternative of carrying out further imaging rather than surgery, in cross examination Professor Morris added: "At the very least, I would have recommended that further imaging, further biopsies, further scans were required because one really only has a limited opportunity to help people with this and the earliest opportunity is their best opportunity”. Professor Morris agreed that inflammation can confound CT imaging results and that suspected inflammation is a consideration that would need to be taken into account in determining the timing of the imaging. I accept the submission made by counsel for the defendant that this evidence from Professor Morris of the further steps which “at the very least” were needed before surgery is consistent with the further investigations that were planned on the plaintiff's discharge from the Hospital on 2 May 2018.

77. Under the heading “Other matters”, the primary judge dealt with the scope of the medical opinions, stating at [250]-[252]: 250. Counsel for the plaintiff submitted that Dr Burge, Dr Katelaris and Professor Richardson were not asked by the Hospital to provide an opinion on whether a diagnosis should have been reasonably made after April 2018 while Professor Morris and Professor Fox were strongly of the view that a diagnosis should have been made as early as January 2018, but certainly by April 2018. 251. Counsel for the plaintiff submitted that as the Hospital’s expert witnesses did not provide an opinion on diagnosis after April 2018, and as both Professor Morris and Professor Fox opined that a diagnosis should have been made by April 2018, the only evidence before the Court is that a diagnosis of pancreatic cancer should have been made by April 2018. 252. For the Reasons set out earlier, I am satisfied that the defendant’s experts engaged directly with the plaintiff's experts as to the consequences of the investigations done up to and including the [endoscopic ultrasound] on 26 April 2018 as set out in the pleadings. The appellant’s complaints about the causation finding

78. In light of the position taken by senior counsel for the appellant in distilling the argument, the consideration that follows does not address every particular in the amended notice of appeal. Rather, the discussion deals with the individual points according to the way in which they were developed in written and oral submissions. To avoid confusion, these individual points are referred to in the discussion that follows as “arguments”.

Failure to consider a submission of substance: the “only evidence” was that a diagnosis of pancreatic cancer should have been made by April 2018

79. The first argument was that the primary judge failed to consider a submission of substance. The appellant submitted that the primary judge referred to the submission in question at [250] of her judgment but then failed to address it.

80. The “submission of substance” to which this argument referred was as follows: Dr Burge, Dr Peter Katelaris and Professor Richardson were not asked by the Defendant to provide an opinion on whether a diagnosis should have been reasonably made after April 2018. Professor Morris and Professor Fox were strongly of the view that a diagnosis should have been made as early as January 2018, but certainly by April 2018 […]. As the Defendants expert witnesses did not provide an opinion on diagnosis after April 2018, and as Professor Morris and Professor Fox opined that a diagnosis should have been made by April 2018, the only evidence before the Court is that a diagnosis of Pancreatic cancer should have been made by April 2018.

81. That submission was put in support of a particular of negligence which the primary judge did not find to be established and to which there is no challenge in the appeal.

82. The submission was included in written submissions provided to the primary judge at [5.32] under the heading “failure to make a diagnosis by the end of April 2018”. There was an allegation at particular 25(e) of the statement of claim of “failing to properly diagnose the plaintiff with pancreatic adenocarcinoma at an earlier time”. In further and better particulars provided by letter dated 23 June 2021, Mrs Alrifai’s solicitor confirmed as to particular 25(e) that “the earlier time at which the defendant should have diagnosed the plaintiff with pancreatic adenocarcinoma” was “within a week of 3 January 2018” (not “by the end of April 2018”).

83. It may be accepted that, in the way in which the case was run, an allegation of failure to make a diagnosis within a week of 3 January 2018 comprehended an allegation of failure to make a diagnosis by the end of April 2018. Particular 25(e) appears to have been relied upon as a catch-all allegation based on the evidence of Professor Morris and Professor Fox as to what could be seen on the three CT scans that had been obtained by the end of April 2018. The point is that this argument on appeal represents a sideways attack on a finding that has not been directly challenged (the rejection of particular 25(e)).

84. The Territory submitted in the appeal that the submission did not engage with the point on which Mrs Alrifai now challenges the decision of the primary judge, which is concerned with the failure to obtain the opinion of a surgeon. However, if we have understood the argument correctly, the point (at least by implication) is that, on the issue of the opinion a surgeon would have given had her opinion been sought at that time, the only evidence was that of Professor Morris and Professor Fox. The difficulty is that the primary judge did consider their evidence on this point in some detail. She rejected it, and there is no appeal from that finding.

85. The Territory submitted that it was not Mrs Alrifai’s case at first instance that a surgeon asked to provide an opinion after the results of 26 April 2018 were received would have diagnosed her pancreatic cancer at that time. According to the further and better particulars to which we have already referred, the case was instead concerned with the steps that should have been taken in response to a differential diagnosis of pancreatic cancer. The particulars contended that, no later than 3 January 2018, Mrs Alrifai should have been advised by a surgeon as to “the defendant having made a differential diagnosis of pancreatic cancer; the potential significant risks and harm for her in the event of delayed treatment of pancreatic cancer; the need for immediate further investigation including investigations by PET scanning combined with CT so as to exclude a diagnosis of pancreatic cancer; the need for removal of the pancreas within 4 weeks of the completion of further investigation…and otherwise as to the pros and cons of further imaging or simply removing the mass.”

86. The Territory’s admission of breach was directed to particular 25(b) concerning failure to take various steps “so as to exclude or detect the presence of pancreatic cancer”. As already noted, the admission concerned “the failure of the plaintiff’s treating clinicians to obtain a surgical opinion in relation to the plaintiff following the time at which the results of the endoscopic ultrasound and fine-needle aspiration undertaken on 26 April 2018 became available”. The admission established a breach of duty. However, after considering the consequences of that admitted breach, the primary judge was not satisfied that any loss or damage was caused.

87. Mrs Alrifai’s argument implicitly equates the allegation of failure to obtain a surgeon’s opinion with the allegation of failure to reach a diagnosis. The Territory did not understand that to be the way the case was put at first instance. Nor did the primary judge. Dealing with particular 25(e), her Honour said at [240], “Particulars (e) and (h) are a restatement of the plaintiff’s case and do not raise any new issues”.

88. But even assuming Mrs Alrifai did intend to put a case that a surgeon asked to provide an opinion as at 26 April 2018 would have arrived at a diagnosis (as opposed to a differential diagnosis) of pancreatic cancer, and relied on the submission about the evidence of Professor Morris and Professor Fox to make the point good, the primary judge did consider that submission as seen from her Honour’s reasons at [252] (set out above).

89. The “reasons set out earlier” included, first, her Honour's careful analysis at [122]-[147] as to what the CT scans showed and her reasons for not accepting the evidence of Professor Morris and Professor Fox on that issue and, secondly, her analysis at [203]- [228] of the discussions it was alleged the hospital should have had with a surgeon based on the information available as at 3 January 2018 and 6 April 2018. The contention that her Honour did not deal with the submission is simply wrong.

90. The primary judge’s rejection of the evidence of Professor Morris as to what can be seen on the slides is a conclusion with which we would not interfere. It is an issue on which the benefit of hearing the witness and seeing their analysis of the CT scans is poorly replicated in the atmosphere of an appeal. For example, the primary judge had the benefit of hearing Professor Richardson's explanation as to why he disagreed with Professor Morris's opinion as to what could be seen on the CT scans. During that evidence, the scans were put on a screen and aspects of the images were highlighted with a cursor. The primary judge enjoyed a significant advantage over this Court in hearing the evidence in that way.

91. Finally and in any event, we note that the submission made to the primary judge posited a false dichotomy. It did not follow, from the absence of evidence in the defendant’s case as to whether a diagnosis should have been made after April 2018, that the primary judge was compelled to accept evidence in the plaintiff’s case as to what diagnosis should have been made before the end of April 2018.

92. The first argument must therefore be rejected.

Making a finding where the evidence did not support the finding: the evidence of Professor Wilson

93. The second argument in support of ground (1) concerned the primary judge's reliance, in support of the causation finding, on the evidence of a gastroenterologist, Professor Wilson.

94. Properly analysed, this argument raised a minor point in the overall challenge to the causation finding. The Territory submitted that the evidence of a consultant gastroenterologist, Professor Wilson had no bearing on the causation finding. While that submission must be rejected, the evidence was marginal. One of the findings the primary judge took into account in reaching the causation finding was her rejection of the evidence of Professor Morris as to what could be seen on the CT scans taken on 1 January 2018, 6 April 2018 and 22 April 2018. Her Honour said at [227(a)]: Professor Morris' interpretation of the CT images underpins his opinion that surgery should have been performed immediately after 26 April 2018. I have not accepted that opinion…

95. Professor Morris was of the opinion that the CT images clearly demonstrated a mass in the tail of the pancreas. Professor Fox agreed. The primary judge had earlier explained her reasons for not accepting the evidence of Professor Morris and Professor Fox as to what could be seen on the CT images. One of the reasons her Honour gave at [143] was that other doctors did not see the “mass” or “abnormality” or “lesion” seen by Professor Morris and Professor Fox. One of the “other doctors” to whom her Honour referred was Professor Wilson. It may thus be accepted that Professor Wilson's evidence had some, albeit minimal, bearing on the causation finding.

96. The appellant argued that her Honour erred in having regard to Professor Wilson's opinion because it was not established that he had access to all of the relevant scans. His opinion was primarily reached by reference to a later scan, which he thought showed that the lesion in the pancreas was resolving and looked “more inflammatory than neoplastic”.

97. The primary judge considered the potential limitation that Professor Wilson did not have access to all relevant material. Her Honour was evidently prepared to draw the inference that he did have all the relevant results before him at the time he offered the opinion that the lesion seemed to be “resolving”. Listing the evidence on which her conclusion was based, the primary judge said at [143(e)]: Professor Wilson, a gastroenterologist, who provided a second opinion in August 2018, although exactly what material he sighted is not clear. However, I infer from his report that he had more than one CT scan and the MRCP because his report discloses, as I have said earlier, that he referred to the plaintiff’s CTs and MRCP. I am satisfied that the conclusion of Professor Wilson and the Department of Radiology at Liverpool Hospital is contrary to that of Professor Morris and Professor Fox when they concluded that those investigations were more consistent with the lesion in the tail of the pancreas resolving and looking more inflammatory than neoplastic (ie a tumour).

98. The effect of Mrs Alrifai’s second argument is to invite this Court to draw a different inference as to the material that was before Professor Wilson; to conclude on that basis that, contrary to the conclusion articulated by the primary judge at [143(e)], his evidence was not contrary to that of Professor Morris and Professor Fox; to conclude on that basis that the primary judge should not have rejected their evidence as to what could be seen on the CT scans (notwithstanding the absence of any direct challenge to that finding) and to interfere with the causation finding on that basis. Understood in that way, the argument is not compelling. It should be rejected.

Failure to take into account relevant evidence: requirement for management by a surgeon after April 2018

99. The third argument was that the primary judge failed to consider or take into account the opinions of Professor Richardson in his report dated 13 September 2021. Again, upon analysis, this argument sought to put a case that was not put in the proceedings at first instance. It was premised on an attempt to recast Professor Richardson’s opinion. The argument attributed to him opinions he simply did not express.

100. Professor Richardson was of the opinion that, from January 2018 to the end of April 2018, Mrs Alrifai was appropriately managed. However, he expressed the opinion that, once a mass was seen in the tail of the pancreas and there was a report of “worrying architectural and cytological changes”, that “a surgical opinion should have been sought at this stage”. In his supplementary report dated 16 October 2021, he said at that stage, in his opinion, “a surgical review was mandatory”. It was on the strength of that opinion that the hospital made its admission of breach of duty.

101. Mrs Alrifai’s third argument referred to that evidence and contended that Professor Richardson was of the opinion that, after 26 April 2018 when the results of the MRCP and the fine needle biopsy were known: the appropriate specialist for the management of the mass was a surgeon; a gastroenterologist was not the appropriate specialist to manage the mass; and that management by a surgeon was mandatory. That was not Professor Richardson’s evidence. He referred only to the need for surgical opinion and surgical review.

102. Professor Richardson was cross-examined in the proceedings before the primary judge. The only issue that was explored was the appropriate management between 22 and 26 April 2018. In that context, the professor was more concerned about the next investigations that were required than the availability of “a surgical consult”: Yes. Would you agree, having regard to what the radiologist actually recorded in the 22 April 2018 report, which you’ve referred to, and that is the necrosis, the 20 by 22 mil ovoid, that it would have been appropriate at that stage to have someone such as yourself, a surgeon, to have a look at the images?---I would state - and it depends on which hospital you work - that, at this stage, it is appropriate and necessary to do an endoscopic ultrasound. And that’s indeed what happened. Now, whether you get a surgical consult in those four days, I don’t think makes any difference to it. She needs an endoscopic ultrasound and a biopsy.

103. The proposition that it was no longer appropriate, after 26 April 2018, for Mrs Alrifai to be managed by a gastroenterologist was not put to him. It cannot now be taken as an established premise of the appellant's case.

104. Much of the argument nonetheless assumed that premise. The argument was, in short, that had a surgeon taken over the management of Mrs Alrifai's case after 26 April 2018, she would have undergone surgery earlier than November 2018. The appellant’s written argument equates the hospital’s admission, which reflected Professor Richardson’s opinion, with a concession that the management of Mrs Alrifai’s case should have been taken over by a surgeon after 26 April 2018. Thus, the appellant submitted that “management by a surgeon who, based on Professor Richardson’s opinion was the appropriate specialist to manage the mass with worrying changes, would very likely be different to management by a gastroenterologist who, based on Professor Richardson’s opinion, was not the appropriate specialist to manage the appellant once the mass with worrying changes was identified”.

105. Nowhere did Professor Richardson say that a gastroenterologist was not the appropriate specialist to manage Mrs Alrifai once the mass with worrying changes was identified. On the contrary, he noted at [19] of his second report that Mrs Alrifai had presented with “a constellation of symptoms, biochemical and radiological findings which were consistent with acute pancreatitis” and that it was appropriate that she was investigated to diagnose the cause of her recurrent pancreatitis. His point was that a surgical opinion should have been sought but he did not suggest that should have been to the exclusion of the gastroenterologists. The primary judge cannot be said to have erred in not considering the appellant’s recasting of that opinion. This argument must be rejected.

Making a finding that was not supported by the evidence: the causation finding

106. The matters taken into account by the primary judge in support of the causation finding were recorded at [227] of the judgment (reproduced above at [76]).

107. The appellant’s first argument about those findings was that the primary judge “reject[ed] Professor Morris’s surgical opinion that the mass needed immediate removal on the basis of overwhelming evidence to the contrary”. The appellant submitted that the judge did not say what the “overwhelming evidence to the contrary” was. That is not a fair criticism. For ease of reading, it will be recalled that what her Honour said at [227(a)] was: Professor Morris' interpretation of the CT images underpins his opinion that surgery should have been performed immediately after 26 April 2018. I have not accepted that opinion. I also decline to find that a reasonably competent surgeon would have seen a mass which needed immediate removal in the investigations done up to 26 April 2018 for the same reasons I have not accepted the opinion of Professor Morris, the primary reason being the overwhelming medical evidence to the contrary.

108. Her Honour was clearly there referring to her earlier, lengthy analysis of what the CT scans show, concluding at [144] where she said “[t]he first reason I do not accept the evidence of Professor Morris and Professor Fox as to what can be seen on the CT images is the overwhelming medical evidence to the contrary”. As already noted, there is no direct appeal from that conclusion, which underpinned the reasoning that followed. To the extent that it is the subject of collateral attack under the present ground, it must be rejected. As already explained, the primary judge had a significant advantage in assessing the evidence as to what can be seen on the CT scans. Her Honour’s finding on that issue is not demonstrated to have been wrong by incontrovertible facts or uncontested testimony (Fox v Percy at [28]) or glaringly improbable, or contrary to compelling inferences (Fox v Percy at [29]). On the contrary, the primary judge was called upon to determine a lively dispute that presented a stark choice between the opinions of highly qualified experts. No basis has been established for this Court to interfere with her Honour's conclusion that she did not accept the opinion of Professor Morris concerning what could be seen on the CT scans. Shorn of that premise, the argument for immediate surgery was significantly weakened.

109. Next, the appellant took issue with the finding at [227(b)] which again is set out above but for ease of reading was as follows: I infer that, if a surgeon had become involved on 26 April 2018, he or she would have attended the MDT on 1 May 2018. As I have said the specialists at that meeting arrived at a consensus that the findings of the FNA were likely an inflammatory response. There is no basis for me to conclude that the surgeon would have dissented from that consensus, after listening to the other doctors.

110. The appellant argued that this was “the wrong counterfactual” because the very specialist whose opinion should have been sought was not in the room. If what is meant by that submission is that the primary judge failed to give a voice to the hypothetical surgeon in the counterfactual, there is some force in that point. However, the appellant’s argument still failed to engage with the significance of her Honour’s rejection of the evidence of Professor Morris as to what could be seen on the CT scans and her acceptance of Professor Richardson’s evidence on that issue. On that premise, the counterfactual was not what advice would a surgeon have given in response to a diagnosis of pancreatic cancer. As submitted by the respondent, the counterfactual was to consider what advice a surgeon would have given in response to the results that indicated a diagnosis of pancreatitis and a differential diagnosis of pancreatic cancer.

111. Professor Richardson was cross-examined on that issue in the following: …If there is any suspicion that there may be a lesion or a growth or a mass which could be benign or perhaps malignant, investigations should be undertaken urgently with regard to the pancreas?---Well it would depend on how you define ‘urgently’ because in the presence of pancreatitis you would prefer that that settle because it will make any investigations more accurate and it will make it more likely that you'll diagnose a pancreatic tumour underlying -if there is an underlying one. So, you know, sometimes these things can take quite a number of weeks to resolve. You know, I have - as I say, I have a number of patients where we've literally spent months trying to resolve this, sometimes in a good way and sometimes not in the best way.

112. The Territory submitted that, even on the evidence of Professor Morris, it was not established that, if Mrs Alrifai had received the advice of a surgeon, she would have proceeded to immediate surgery. The correct counterfactual was to consider that question having regard to the opinion a reasonably competent surgeon would have given in relation to proceeding with a resection of the pancreas in the absence of a diagnosis of pancreatic cancer. Ms Thomas, who appeared as trial counsel and as well as in the appeal, conducted an incisive cross-examination of Professor Morris as to the conversation the hypothetical surgeon should have had in that circumstance in order to obtain fully informed consent before proceeding with that surgery. The primary judge summarised that evidence at [227(c)]. Her Honour then noted that there was no evidence from Mrs Alrifai “as to what she would have done if, after 26 April 2018, she had been offered surgery and been given this information”. It will be necessary to return to that last observation.

113. An aspect of Ms Thomas’s cross-examination was to draw attention to the fact that the opinions of Professor Richardson and gastroenterologist Professor Katelaris had no risk of being tainted by hindsight bias as they provided their opinions without knowing the ultimate diagnosis. As to the prospect of proceeding to surgery in the absence of a diagnosis, Professor Katelaris said (albeit in relation to an earlier point in time): I do not agree at all with Professor Morris that it is likely that she would have proceeded to pancreatic surgery within about four weeks even if a surgeon had been consulted at presentation. It would be unusual, indeed, if not reckless to advise surgery so precipitously before thorough investigations were completed and without a histological diagnosis of malignancy. … Precipitous surgery incurs the very real risk of an unnecessary, potentially life threatening and morbid major operation on a person with a potentially benign disease.

114. The Territory acknowledged in this context that Dr Katelaris is not a surgeon. That does not derogate from the force of his opinion. On the contrary, it tends to support the primary judge’s conclusion that, in a multidisciplinary discussion, it cannot be assumed that a surgeon's opinion (assuming it recommended surgery) would necessarily prevail.

115. As to the counterfactual of a multi-disciplinary meeting that included a surgeon, Ms Thomas submitted in the appeal that, if a surgeon had been brought into the multi-disciplinary team, she would have recommended further tests. Three tests were posited by Professor Morris. The first was tumour markers. However, Professor Morris was unaware that tumour markers had in fact been done on 26 April 2018 and were within normal range (Professor Richardson agreed that tumour markers are not always reliable in detecting pancreatic cancer, but the point is that the test posited had in fact been done).

116. Secondly, Professor Morris said the surgeon would recommend a PET scan. Professor Richardson absolutely disagreed that that was a useful form of investigation for the purpose of diagnosing cancer in 2018. In his second report at [38], he said “it is a nonsense to suggest that in 2018 a PET scan looking for cancer in someone with active pancreatitis would have been reasonable or even approved by the radiology department.”

117. Professor Morris ultimately accepted that a PET scan “is often not much use in differentiating cancer from pancreatitis unless there is evidence of disease outside the pancreas”. As noted by Ms Thomas, there was no evidence of disease outside the pancreas. She submitted that, in light of Professor Morris’s acceptance of the opinions of Professor Richardson and Dr Burge on that issue, there was no proper basis for inferring that, had a surgical opinion been obtained, a PET scan would have been performed after 26 April 2018 or would have brought Mrs Alrifai any closer to a diagnosis.

118. The third test posited was a further biopsy. A second ultrasound was conducted in July 2018. However, as already noted, a biopsy not undertaken during that ultrasound because of the risks caused by the fact that Mrs Alrifai was on Warfarin. A further biopsy was carried out in November 2018 and that led to the diagnosis of pancreatic cancer.

119. The appellant’s case on this argument requires the court to infer that the involvement of a surgeon would have resulted in a biopsy being carried out earlier. In light of Mrs Alrifai’s complex medical presentation and the fact that she did not always follow medical advice, it cannot be concluded on the balance of probabilities that the involvement of a surgeon would have resulted in an earlier biopsy.

120. As submitted by Ms Thomas, the second counterfactual is that, had a surgeon been included in the multidisciplinary team, with the equivocal results that were available at that time, she would have explained to Mrs Alrifai the pros and cons of going straight to surgery to remove the pancreas without a diagnosis and would have persuaded Mrs Alrifai to undergo surgery at that stage. That issue is discussed next.

Finding that the appellant would not have proceeded to surgery soon after 26 April 2018

121. The next argument in the notice of appeal appeared under the heading "finding that the appellant would not have proceeded to surgery soon after 26 April 2018". In the written submissions on appeal, this was argued as “making a finding when the evidence did not support the finding”.

122. The primary judge did not make a finding in the terms asserted in that argument. As already noted in relation to other arguments put by the appellant, her Honour said at [228], “I decline to find that the plaintiff has shown that, if a surgical opinion had been obtained on 26 April 2018, she would have undergone surgery earlier than November 2018.”

123. The difference is important. As submitted by the hospital in written submissions on the appeal, in the absence of direct evidence on the point, the question for the primary judge was whether it should be inferred that Mrs Alrifai would have opted for surgery, rather than further investigation of the mass, if the “pros and cons” of each option had been explained to her by a surgeon.

124. Mrs Alrifai argued that, while it is correct that her evidence did not address the point, there was other evidence to support a finding that, on the advice of a surgeon, she would have proceeded urgently with surgery. First, the submissions referred to evidence given by Mrs Alrifai that, had she known how serious her condition was, she would not have discharged herself from hospital. In order to assess the significance of that evidence, it is necessary to consider the full exchange: MR RICHARDS: There's been - there's a suggestion, in some of the medical reports, that you discharged yourself, from time to time, from Canberra hospital?---Yes. At the time, of any of those discharges, did anyone tell you anything, in relation to how serious your condition was, at that time, when you were discharging yourself?---No. No. Did anyone, at that time, tell you they were performing tests, on you, to see if you had cancer?---No. If someone told you that they were performing tests on you in relation to cancer, would you have discharged yourself?---No. I would have stayed in hospital, not leaving the hospital before I know if I have a cancer or not.

125. In the form in which it was given, that evidence would not have been compelling. The answer to the second question was flatly contradicted by the evidence concerning Mrs Alrifai’s presentation at the emergency department and subsequent decision to discharge herself against advice on 19 March 2018 noted at [16] above. The primary judge was not obliged to accept the evidence.

126. Secondly, Mrs Alrifai relied on the evidence of her later conduct, namely, the fact that, as soon as the diagnosis of pancreatic cancer was given in November 2018, she reacted promptly and followed advice, including consenting to immediate surgery. That evidence must be viewed in the context that she had received a certain diagnosis of cancer at that point. As submitted by the Territory, that is to be contrasted with the equivocal results obtained in April 2018, at which point the question was whether to undergo resection of the pancreas against the risk of cancer in the absence of a diagnosis or whether to undergo further investigation.

127. The difficulty with this argument is that this was an issue on which Mrs Alrifai bore the onus of proof as to a hypothetical situation. Her response to the certain diagnosis in November was one consideration, but there was also evidence of her having been a difficult patient who had ignored medical advice on several occasions. The most stark example is her decision to discharge herself on 19 March 2018 discussed at [16] above. We are not persuaded that the primary judge was wrong not to be satisfied that Mrs Alrifai had proved that she probably would have had surgery soon after 26 April 2018 had she been advised to do so in the circumstances that prevailed at that time. Her Honour's reasons for declining to make that finding were cogent. The contrary inference was not compelling.

128. Next, Mrs Alrifai was critical of the primary judge’s summary of the evidence of Professor Morris at [227(c)]. She complained that her Honour did not refer to or consider his evidence to the effect that the pancreatic tail surgery he considered should have been recommended in April 2018 was “minor surgery”. It is true that her Honour did not expressly refer to that evidence. However, she implicitly rejected it in her discussion of the evidence of Professor Katelaris: He strongly disagreed with Professor Morris’s opinion that if a surgeon had been involved, the mass would have been removed shortly after 3 January 2018. He said he did not think any reasonable surgeon would approve of that course, it did not accord with peer practice and he hoped Professor Morris would not operate without a diagnosis as diagnosis generally precedes major life-threatening surgery.

129. Mrs Alrifai also complained that the primary judge did not refer to or consider Professor Morris’s evidence that “the amount of pancreas that you need for both exocrine and endocrine function is really quite small”. It does not follow that Her Honour was compelled to find that Mrs Alrifai would have accepted an opinion to that effect and would have undergone surgery shortly after 26 April 2018. It is a relatively minor piece of information in the context of all of the advice Mrs Alrifai might have received from a surgeon at that time.

130. Finally, Mrs Alrifai took issue with the primary judge’s finding at [227(d)] (set out at [76] above) and the primary judge’s acceptance that the further investigations discussed by Professor Morris were consistent with the investigations planned on Mrs Alrifai’s discharge from the hospital on 2 May 2018,

131. Mrs Alrifai argued that, contrary to that finding, the further investigations recommended by Dr Subramaniam were not consistent with the opinions of Professor Morris and Professor Richardson. She submitted that, importantly, the further tests were not conducted urgently.

132. The evidence before the primary judge was that a further endoscopic ultrasound on 26 July 2018 was reported to show that the mass in the pancreatic tail had grown to 25 mm x 20 mm. The report of that ultrasound stated that a malignancy could not be excluded. However, a biopsy was not obtained during that ultrasound because Mrs Alrifai was on Warfarin and there was a risk of bleeding. Mrs Alrifai submits that, under proper management by a surgeon, she would have been taken off Warfarin so that a biopsy could be undertaken. There was also evidence of a CT scan undertaken on 30 July 2018. Mrs Alrifai submits that the primary judge erred in failing to take into account the findings of those tests “when determining that a seven-month delay after 26 April 2018 until diagnosis was reasonable in the circumstances”.

133. As submitted by the Territory, the primary judge made no such determination. The Territory submitted that this is unsurprising given that, as already explained, the allegations of negligence were confined to management of Mrs Alrifai’s treatment in the period between 1 January 2018 and the time of her discharge from the hospital on 2 May 2018.

134. The Territory’s written submissions nonetheless addressed in careful detail aspects of the evidence concerning the period after 26 April 2018. Those submissions make good the proposition that there was no evidence to support any findings as to what a surgical opinion obtained at any later point in time would have led to. The Territory submitted, “the appellant’s case on breach meant that there was no evidence to support a finding that anything done or not done after 26 April 2018 was unreasonable or even that a surgeon would have recommended a different course.” That submission must be accepted.

135. For those reasons, we are not persuaded that the primary judge’s conclusion as to the first limb of factual causation was wrong.

Second limb of factual causation: whether, had the appellant undergone surgery earlier, she would probably have avoided the injuries particularised in the pleadings

136. In light of her conclusion as to the first limb of factual causation, it was not necessary for the primary judge to determine the second limb. Her Honour nonetheless recorded the findings she would have made had she been satisfied that the mass should have been removed earlier than 11 November 2018.

137. The appellant challenged aspects of those findings. Our rejection of the challenge to the primary judge’s conclusion as to the first limb of factual causation means that it is not necessary for this Court to determine those grounds of appeal. For completeness, the conclusions we would have reached, had it been necessary to do so, are as follows.

138. The relevant injuries were shortened life expectancy, increased risk of recurrence of the cancer and pain and suffering.

Life expectancy

139. The primary judge accepted, on the whole of the evidence, that the mass grew between 1 January and 11 November 2018: at [260]. By reference to a classification system based on the size of a mass, her Honour found that the mass was at stage T1 in January 2018; at stage T2 on both 6 and 26 April 2018 and still at stage T2 when removed in November 2018. The finding that the mass was at the T2 classification in both April and November was not inconsistent with the finding that it had grown, as the T2 classification covers a range.

140. While the appellant’s argument on this issue was put in many ways in the amended notice of appeal, the central point appears to be that an increase in tumour size means a worsening prognosis. The appellant accordingly submitted that, having found that the mass increased in size between 26 April 2018 and 11 November 2018, the primary judge ought to have been satisfied that, had the mass been removed earlier, there would have been a better prognosis and a longer life expectancy.

141. A number of the appellant’s arguments in support of this part of ground (1) referred to the decision of the High Court in Tabet v Gett [2010] HCA 12; 240 CLR 537. However, as noted by the Territory, although the primary judge referred to that decision, it was not the basis on which her Honour determined this aspect of the causation issue. Her Honour’s conclusion was instead founded on her assessment of the expert evidence.

142. Mrs Alrifai relied on the evidence of Professor Morris and Professor Fox. The defendant relied on the evidence of medical oncologist Dr Burge. The primary judge preferred the evidence of Dr Burge, for reasons set out at [263] of the judgment, as follows: 263. I prefer the evidence of Dr Burge to that of Professor Fox and Professor Morris for the following reasons: (a) Dr Burge is a medical oncologist who subspecialises in gastrointestinal medical oncology. He treats many patients with pancreatic ductal adenocarcinoma of all stages in his clinics. Accordingly his expertise is directly relevant to the issues of prognosis and life expectancy to be determined by me. Professor Fox has not had any relevant clinical experience in treating patients with any form of cancer since 2006. Before that, he was not a specialist in pancreatic cancer. (b) Professor Fox and Professor Morris relied on a study which considered the prognosis of pancreatic cancer determined by tumour location. Professor Fox said the study was reliable because it used the SEER database, which he described as enormous, covering 1/3 of the population of the United States. Dr Burge pointed out that the study had many flaws as outlined by the authors in the discussion section of the paper. For example, the study had started looking at outcomes for patients in the years before adjuvant chemotherapy had been used. This means that the effect of adjuvant chemotherapy, which has made a difference, had not been captured. In addition the authors did not know how patients had been treated after they had surgery. Professor Fox did not think this was a problem. He said that all authors have to record the limitations and no study is absolutely perfect. It was reliable, he said, because of the large sample size. I do not accept this evidence from Professor Fox. Relying on a study to form an opinion about prognosis which has not allowed for the effects of chemotherapy is not persuasive in circumstances where there are other studies. Dr Burge, in forming his opinion, relied on a meta-analysis of 93 studies which he said demonstrated that, if there is any difference between the prognosis depending on tumour location, it is very small and could very well be contrary to the conclusions in the paper referred to by Professor Fox. As a consequence of this meta-analysis, when pancreatic research teams are designing clinical trials, tumour location is not taken into account. The pancreatic cancer community does not proceed on the basis that there is any significant relationship between tumour location and prognosis. 264. I am satisfied that Dr Burge has significantly more expertise that Professor Fox as to current issues in pancreatic oncology. I prefer his evidence to that of Professor Fox where they conflict.

143. Having made that assessment of the expert witnesses, the primary judge made the following findings at [265]: 265. I accept the opinion of Dr Burge that: (a) It is not likely that the plaintiff would have avoided a terminal diagnosis if her pancreatic cancer had been diagnosed in April 2018 rather than November 2018. Pancreatic adenocarcinoma carries a dismal prognosis and the vast majority of people who are diagnosed with the disease, die from it. While relative survival rates have modestly improved over the past 20-30 years and are better for younger patients, nonetheless similar annual incidence and death rates are seen from the disease in Australia. (b) Both Professors Morris and Fox relied on a change in the tumour size from January to November 2018 to infer that the prognosis must have been worse. Dr Burge said it is reasonable to assume the tumour did grow over that time. However the conclusion of Professors Morris and Fox was flawed as they had failed to consider the enormous biologic complexity of pancreatic adenocarcinoma, the interplay of various prognostic markers including nodal stage and microscopic resection margins and the cancer's ability to metastasize early. Most, but not all, studies do find that pathologic tumour size is prognostic for survival, after resection. This association reflects the biology of the cancer and its metastatic potential, amongst other unknown factors. It is far too simplistic to conclude that patients with larger tumours have a poorer survival simply because they were diagnosed later. Tumour size is just one of many prognostic factors that reflect cancer biology and impact patient outcomes. The proof that adjuvant FOLFIRINOX chemotherapy markedly improves prognosis comes from a large, randomized trial. In that study, tumour size was not associated with disease free survival. (c) The modern treatment approach for localized pancreatic adenocarcinoma is multi-disciplinary and involves both surgery and combination chemotherapy. It is becoming increasingly common to defer surgery and use pre-operative chemotherapy (sometimes with radiotherapy). Most patients managed by Dr Burge's group who are diagnosed with pancreatic adenocarcinoma are not treated with immediate surgery. They are given 3 - 6 months of pre-operative chemotherapy in part as a test of time to better select patients for surgery. Results from a randomized trial of pre-operative chemoradiation versus immediate surgery and adjuvant chemotherapy from Europe has demonstrated that despite lower rates of surgery in the group treated with pre-operative chemoradiation (hence deferred surgery), the survival of that patient group was superior. (d) Dr Burge did not agree with Professor Fox who had said that if the plaintiff had been diagnosed with pancreatic cancer in January 2018 she would have undergone a partial pancreptectomy and possibly adjuvant chemotherapy and that, given the small tumour size at that time, it is likely she would have avoided a terminal diagnosis. Dr Burge said that the plaintiff still had pancreatic adenocarcinoma in January 2018, and the prognosis for pancreatic adenocarcinoma is poor. (e) In addition, Dr Burge said, the plaintiff has a unique, and rare, molecular subtype of pancreatic adenocarcinoma. The cancer harbours an NTRK fusion oncogene, which is driving the malignancy. This subtype represents only 1 in 250 - 300 cases of pancreas adenocarcinoma. Most pancreas adenocarcinomas (>90%) are driven by KRAS mutations, which is not seen in this case. Therefore, with such unique biology, he could not be certain of the impact of surgery or adjuvant chemotherapy on prognosis as there is no data looking at this very rare subtype. This clouded his ability to state with any certainty what impact earlier treatment may have had. (f) If the plaintiff's pancreatic cancer had been diagnosed and treated earlier in 2018 (including in January 2018) it is not likely that she would have avoided adjuvant chemotherapy because it is routinely used after surgery for pancreatic adenocarcinoma, regardless of stage, as all patients are considered to be at sufficiently high risk of recurrence to warrant chemotherapy.

144. The primary judge accordingly declined to find that Mrs Alrifai had shown that, if the mass had been removed in January or April 2018, it would have affected the prognosis of her condition or her life expectancy (at [266]) and declined to find that Mrs Alrifai had shown that an earlier operation would have reduced the risk of recurrence (at [268]).

145. Mrs Alrifai’s arguments relied on medical literature that was admitted into evidence. The Territory submitted that those arguments ignored the reasoning explained by the primary judge at [263(b)] set out above. There was a stark debate between the experts as to the significance of the location of the tumour for survival rates and whether the delay in treatment led to a worse diagnosis. The primary judge ultimately accepted the opinion of Dr Burge on that issue at [264]. For reasons explained in the primary judgment, her Honour was satisfied that Dr Burge had significantly more expertise than Professor Fox as to current issues in pancreatic oncology. That conclusion informed her Honour’s assessment of the competing expert evidence on the issue of prognosis and life expectancy. No reason has been demonstrated for this Court to interfere with that assessment.

146. Mrs Alrifai also relied on the evidence of Dr Burge noted by the primary judge that “most, but not all, studies do find that pathological tumour size is prognostic for survival after resection”. She submitted that Dr Burge’s acceptance of that proposition should have led the primary judge to a finding on causation that, on the balance of probabilities, an increase in tumour size from 20 mm × 20 mm in April 2018 to 35 mm × 40 mm in November 2018 (an increase of more than four times the mass) meant a worse prognosis.

147. The Territory submitted that this was a misrepresentation of Dr Burge’s evidence. It noted that Dr Burge’s acknowledgement that “most studies” find that tumour size is prognostic for survival was given in the course of his explanation as to why they did so and why that conclusion could not be reached here, as explained by the primary judge at [265(c)].

148. The appellant’s submissions have not demonstrated any error in the primary judge’s analysis of this aspect of the causation issue.

Recurrence

149. The appellant’s submissions on the issue of recurrence did not raise any additional issue. It was submitted that the primary judge erred in her analysis of the risk of recurrence “as a part of the worsening prognosis” contended to have been made good on the evidence considered above.

Pain and suffering

150. As already noted, after receiving a diagnosis of pancreatic cancer, Mrs Alrifai underwent surgery and then chemotherapy.

151. The primary judge recorded at [269] the evidence of Professor Morris that the same procedure would have been done, including the removal of the spleen, regardless of when the operation had taken place. Her Honour also noted at [270] the evidence of Dr Burge stating that Mrs Alrifai would have undergone chemotherapy treatment regardless of when the operation had taken place. On the strength of those two pieces of evidence, her Honour concluded at [271] that the pain and suffering from the operation and the chemotherapy would not have been avoided if the operation had been done earlier.

152. There is no challenge to that finding.

153. However, Mrs Alrifai also claimed pain and suffering associated with her ongoing bouts of abdominal and epigastric pain. She contends that the primary judge failed to consider a submission that the delay in diagnosis and treatment between 26 April 2018 and 8 November 2018 caused her considerable pain and suffering from treatment and investigations during that period. The submission to the primary judge was that none of the ongoing investigations, medical treatment, hospital admissions or investigative gastroscopy and colonoscopies during that period would have occurred but for the delay in diagnosis until November 2018.

154. The argument on appeal was that the primary judge overlooked that submission and appears to have restricted her consideration of the claim for damages for pain and suffering to events and diagnoses occurring after the surgery in November 2018.

155. The written submissions in the appeal set out at length the treatment and investigations said to have been undertaken during that period “because of the delayed diagnosis”. However, the submissions did not refer to any expert evidence to support a finding that those treatments and investigations would have been avoided in the event of earlier surgery. The Territory submitted that there was no such evidence.

156. The Territory further submitted that the primary judge did not restrict her consideration to events and diagnoses occurring after the surgery in November 2018, but that her Honour did rely on evidence that bouts of pain continued with increased frequency after the surgery when she declined to find that any such pain and suffering would have been avoided by earlier surgery.

157. The Territory submitted that the finding contended for by Mrs Alrifai was not available in the absence of any expert opinion on the matter. The Territory further noted that none of the appellant’s treating doctors was cross-examined on this issue.

158. We accept the Territory’s submissions on this issue. In circumstances where: (a) Mrs Alrifai continued to suffer bouts of epigastric pain after the surgery (and indeed the incidence of such pain increased); (b) she led no expert evidence to suggest that such ongoing bouts would have been avoided by earlier surgery; and (c) she led no expert evidence that the many instances of treatment and investigation between 26 April 2018 and November 2018 would have been avoided had the surgery been undertaken earlier, it was plainly open to the primary judge to infer that such attacks would have continued (and required treatment and investigation) whenever the surgery had been undertaken.

159. For those reasons, had it been necessary to consider the second factual limb of causation, we would have rejected this aspect of ground (1).

Damages and Costs

160. The primary judge did not assess damages on a contingent basis and the parties did not address damages in oral submissions in the appeal. Mrs Alrifai proposed that this Court could determine damages if the appeal was allowed. However, it was agreed that, in that event, the parties would address damages after publication of this judgment in light of the findings made. As the appeal is to be dismissed, it is not necessary to undertake that exercise.

161. In relation to costs, neither party sought to depart from the ordinary course that costs ought to follow the outcome of the appeal.

Orders

162. For those reasons, we make the following orders: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs.

I certify that the preceding one hundred and sixty-two [162] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 12 April 2024