Fletcher v Besser

Court of Appeal (NSW)|2010-02-22|Before: Allsop P, McColl JA, Adams J, Coll JA

BACKGROUND 9 It is important to appreciate the background to the application dealt with by the primary Judge. This was the second occasion on which the applicant unsuccessfully sought an order from the Supreme Court extending the limitation period to enable her to commence proceedings against the respondents claiming damages for personal injuries. (For that reason, I refer to the application determined by the primary Judge as "the second application".) 10 The first application to the Supreme Court for an extension of the limitation period ("the first application") was made in February 2002 and was based on allegations that included the very same choice of operation case that the applicant now seeks to pursue. After a three day hearing, Studdert J dismissed the first application on 1 October 2002: Fletcher v Hamilton-Gibbs [2002] NSWSC 899. Studdert J took this course because he found (at [79], [82], [84], [87]) that an extension of the limitation period to enable the applicant to pursue her claims against the respondents, including the choice of operation case, would cause significant prejudice to each of them. In particular Studdert J considered (at [79]) that the respondents would be prejudiced because the films of CT scans taken of the applicant in hospital were no longer available to Dr Besser or to experts whom he might wish to call. 11 The second application was filed in the Supreme Court on 10 October 2005, approximately six months after the High Court refused special leave to appeal from the judgment of the Court of Appeal affirming Studdert J's dismissal of the first application. The hearing of the second application occupied eight hearing days, spread over some six months. Dr Besser was extensively cross-examined, as he had been on the hearing of the first application. The last hearing day of the second application was 20 March 2008, but it appears that the last written submissions were not filed until August 2008. 12 The allegations of negligence relied on in the second application were quite different from those relied on in the first application. The second application was said to be based on Dr Besser's negligence in failing to take steps to relieve the applicant's intra-cranial pressure no later than 24 September 1982, the day after a CT scan had confirmed the presence of aqueductal stenosis. This claim was described by the parties as the applicant's "failure to drain case". Senior counsel then appearing for the applicant emphasised in his opening address to the primary Judge that the failure to drain case was "very different" from the allegations of negligence relied on in the first application. 13 In the course of Dr Besser's cross-examination in the second application, he gave certain answers that, according to the applicant, acknowledged that he would not suffer the prejudice he had asserted in the first application, should he be required to defend the choice of operation case. In essence, the applicant claimed both before the primary Judge and on the leave application to this Court, that Dr Besser had volunteered answers that showed his earlier assertions of prejudice in relation to the choice of operation case were incorrect. 14 In order to pursue the choice of operation case in the second application, it was necessary for the applicant to foreshadow an amendment to her pleadings. Accordingly, a proposed third amended statement of claim ("3 ASC") was annexed to an affidavit which was read on the last day of the hearing of the second application. The 3 ASC included particulars of negligence to the effect that Dr Besser had failed to treat the applicant's gross hydrocephalus due to aqueduct stenosis by way of a ventricular shunt and had carried out a right frontal craniotomy and third ventriculostomy when it was inappropriate to do so. A proposed fifth amended statement of claim ("5 ASC") annexed to an affidavit apparently taken as read when written submissions were filed in August 2008, substantially expanded the pleading of the resurrected choice of operation case. 15 The primary Judge, like Studdert J in the first application, found (at [95]) Dr Besser to be an honest and reliable witness. His Honour rejected (at [62]) the applicant's contention that Dr Besser's evidence on the second application was inconsistent with his evidence on the first application. The primary Judge found (at [98]) that if the limitation period were to be extended, the respondents would suffer serious prejudice in defending both the failure to drain case and the choice of operation case. Accordingly, the primary Judge refused the application to extend the limitation period. 16 The applicant's case, as finally presented to the primary Judge on the second application, went considerably beyond the resurrected choice of operation case. However, on the application for leave to appeal to this Court Mr Agius expressly disavowed the failure to drain case, the original basis for the second application. Mr Agius made it clear that the applicant now wished to rely solely on the resurrected choice of operation case. As I have already remarked, the result is that the applicant seeks to revive the same case propounded in the first application. She does so notwithstanding the decision of Studdert J, affirmed by this Court, to dismiss her application for an extension of the limitation period. 17 It appears to have been common ground before Adams J that the second application for an extension of the limitation period could not simply be dismissed as an abuse of process, even if it was based on evidence that was available at the time of the first application had those acting for the applicant exercised reasonable diligence. This approach was in conformity with the holding of a majority of the Court of Appeal in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 (Heydon JA and Foster AJA; Mason P dissenting). The majority in that case preferred the dissenting view of Charles JA in DA Christie Pty Ltd v Baker [1996] 2 VR 582, over the view of the majority in Baker (Brooking and Hayne JJA). No submission has been made on the present leave application that the approach in Manning should be reconsidered having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 ("Civil Procedure Act"): see, in particular, Civil Procedure Act, ss 57(1)(d), 58(1)(a)(iii), 58(2)(a), (b)(ii), (iii), (v), (vi), 60. For present purposes, it is enough to observe, without casting doubt on the correctness of Manning at the time it was decided, that the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application. 18 The principal ground on which the applicant relies is that the primary Judge erred in failing to find that Dr Besser had admitted in the second application that he would not be prejudiced in defending the choice of operation case by the inability to locate films of CT scans and of a ventriculogram performed on the applicant prior to the ventriculostomy. Alternatively, the applicant contends that the primary Judge erred in failing to find that Dr Besser's evidence in the second application was inconsistent with his evidence in the first proceedings, insofar as he had claimed there that he required the films in order to recall why he had chosen to perform a third ventriculostomy rather than a ventricular shunt. 19 It is convenient to set out the two passages on which Mr Agius relied. 20 Mr Agius relied on two passages in the cross-examination of Dr Besser. The first occurred when Dr Besser was asked to go to Dr Lamond's report of the ventriculogram of 28 September 1982. The exchange was as follows (Ts 225): "Q. I suggest to you there is significant other information there, apart from the confirmation of the aqueduct obstruction as the cause of the hydrocephalus, that the third ventricle is replacing pituitary tissue and expanding the fossa? A. Yes. Q. That tells you two things: the condition is very longstanding and very severe? A. Yes. And also tells me other things. Q. What other things? A. Also tells me it is also suitable for a third ventriculostomy". 21 The cross-examiner returned to the subject later (Ts 269-270): "KING: … *Doctor, if you've got a clear grasp of the fact that the ventriculogram results showed you that [the applicant] was suitable for third ventriculostomy, you can justify your decision on the strength of that investigation can't you? Why do you have to complain about the missing CT scan of 23 September? OBJECTION (DAVIES) DAVIES: Dr Besser has always said she was suitable for a third ventriculostomy. HIS HONOUR: I don't think that's an objection to the question though, Mr Davies. That's an answer to the question. QUESTION MARKED * READ BACK A. Complain about it? KING: Why do you have to say that you're disadvantaged in meeting a case that you ought to have drained by way of a shunt rather than done a third ventriculostomy? A. Well I think I was saying that the CT scan didn't give me all the information I required and it would be quite dangerous to put in a shunt to drain the lateral ventricles if you can't be sure there's not a tumour in the posterior fossa. Q. But 5 days later your interpretation of the ventriculogram is that it makes it clear that third ventriculostomy is appropriate? A. Yes correct. Q. Well why, from the time the ventriculogram came into existence, are you disadvantaged by the absence of the CT scan of the 23rd? A. But I'm not if I've got the ventriculogram result ". (Emphasis added.)

FACTS 22 There have now been three judgments, two in the Common Law Division and one in the Court of Appeal, which have examined the evidence in this case at length. For the purposes of the leave application to this Court, it is sufficient to provide an outline of the facts not in dispute. 23 The applicant, then aged 36, was admitted to Orange Base Hospital in September 1982. A consultant neurologist formed the opinion that there was evidence of raised intra-cranial pressure attributable to a tumour or hydrocephalus. The neurologist arranged for her transfer to the Royal Prince Alfred Hospital (the "Hospital"). She was admitted to the Hospital, which was conducted by the Health Service, on 23 September 1982. There she came under the care of Dr Besser, a neurosurgeon. Investigations revealed that the applicant was suffering from hydrocephalus secondary to aqueduct stenosis. 24 A CT scan was performed on the applicant on 23 September 1982 by Dr Lamond, a radiologist. Dr Besser saw the CT scan and Dr Lamond's report. The report included the following: "There is a very marked hydrocephalus present. I cannot identify the fourth ventricle and it seems to represent an obstructive form of hydrocephalus. The size and shape of the ventricles would suggest it has been present for a considerable time. The posterior fossa slices show well marked artifact and are less than perfect but I cannot identify any posterior fossa lesion … I think that the signs indicate that the patient has aqueduct obstruction of long standing which is probably now more obstructed".

The film of the CT scan is no longer available. 25 On 27 September 1982, the Hospital's cerebral observation chart recorded that at 4 pm the applicant had suffered an episode of unconsciousness and decerebration. The nurses' notes for the same day included an entry at 9 pm recording that the applicant had suffered a loss of consciousness for about two minutes at 4 pm. 26 On 28 September 1982, Dr Besser inserted a ventricular catheter into the applicant via a frontal burr hole. A ventriculogram was performed confirming the diagnosis. The catheter was left in situ allowing for the drainage of cerebrospinal fluid. The film of the ventriculogram is no longer available. 27 Dr Lamond's record of the ventriculogram is as follows: "Aquaduct [sic] obstruction without deformity in the proximal 1cm of the aquaduct [sic] has been demonstrated. This indicates a developmental lesion. The 3rd ventricle is replacing pituitary tissue and expanding the fossa. The supra-pineal recess is huge". 28 On 30 September 1982, Dr Besser carried out a right frontal craniotomy and third ventriculostomy. As I have noted, this is a procedure which, if successful, allows the drainage of cerebrospinal fluid from the ventricles into the subarachnoid space. The procedure is intended to decompress the ventricles and return the intracranial pressure to normal. Shortly after the procedure commenced, blood was observed at the site. Nonetheless, Dr Besser completed the operation. At about the time of the procedure, the applicant suffered a large, deep intra-cerebral haemorrhage away from the operation site. This was probably caused by the surgery. 29 A CT scan was carried out on 30 September 1982. Dr Lamond reported on the scan as follows: "There is now a very large right hemisphere intracerebral haematoma. It is extending through the parietal and posterior parietal areas causing mass effect and displacing and effacing most of the right ventricle".

The CT film is no longer available. 30 Following the craniotomy and third ventriculostomy, Dr Besser prepared clinical notes, including the following passages: "I felt that it would be good to perform a third ventriculostomy in this lady and so prevent all the complications inherent in a shunt procedure. A bur [sic] hole and ventricular catheterisation was performed two days earlier and a Metrizimide ventriculography confirmed the diagnosis of aqueduct stenosis. An attempted isotope study by lumbar puncture to document a patent subarachnoid space unfortunately failed with the isotope being injected into the subdural space. However, I felt it was reasonable to go ahead with ventriculostomy . … In the Recovery Room [the applicant] was decerebrate although she had briskly reacting pupils. The left pupil was a little bit larger than the right. I was alarmed at this and immediately obtained a CT Scan. To my surprise there was now present a large deep intracerebral haemorrhage in the right hemisphere but away from the operative site de[e]p in the right parieto-occipital region. There was no haematoma in the posterior fossa and the ventricles were small but not collapsed and did not contain any fresh blood. I really had no explanation for this haematoma but could only think that ther[e] may be another co-existing lesion in the right thalamic region, perhaps accounting for both the hydrocephalus and the recent haemorrhage. I propose doing a cerebral angiogram as soon as possible. The outlook for [the applicant] however looks very grim". (Emphasis added.) 31 On 12 October 1982, Dr Besser carried out a craniotomy to evacuate the haematoma. Unfortunately, the applicant was left severely disabled with left side hemiplegia. She has suffered major health problems ever since.

THE FIRST APPLICATION 32 In 1992, the applicant commenced proceedings against two general practitioners, alleging that they had not adequately treated the symptoms she was exhibiting. These proceedings progressed extremely slowly. 33 In February 2002, the applicant filed her motion seeking an order that the limitation period be extended against Dr Besser and the Health Service. The applicant's case against Dr Besser, for whose conduct the Health Service was said to be vicariously liable, rested on three allegations of negligence: the choice of operation case; Dr Besser's continuation of the operation on 30 September 1982 notwithstanding that blood was seen (" continuation of operation case "); and Dr Besser's failure to evacuate immediately the haematoma that had developed (" haematoma case ").

Studdert J's Judgment 34 Studdert J found (at [46]) that the applicant had adduced evidence sufficient to suggest that she had a cause of action against each of Dr Besser and the Health Service. His Honour also found (at [50]) that although the applicant's representatives had acted tardily in making inquiries, the lapse of time was not enough of itself to warrant dismissal of the application. However, in Studdert J's view, the critical issue was whether an extension of time would result in significant prejudice to Dr Besser and the Health Service. 35 Studdert J found (at [56]) that the first indication that Dr Besser had that he might be sued was in February 2000. His Honour accepted (at [55], [57]) that Dr Besser had little recollection of the applicant's case and was dependent on the Hospital's records. These records had shortcomings, not least the absence of the films of the CT scans. Dr Lamond, the radiologist, had no independent recollection of the case. Dr Besser's practice had been to consult with senior medical practitioners about difficult cases, but none of those with whom he is likely to have consulted was available to give evidence. 36 Studdert J recorded (at [61]) that Dr Besser had been cross-examined about the sufficiency of the pre-operative scan report (as opposed to the films themselves). His cross-examination included the following passage: "Q. What different things would you have seen on it which would have led to you adopt shunt surgery in her case?

A. The size of the ventricles, the shape of the third ventricle. Whether there was any anatomy which would have persuaded me not to go ahead with a ventriculostomy.

Q. They are well described in the CT scan, aren't they?

Q. The largeness of the ventricles is one of the matters which you say which decided you to embark upon this course of surgery, rather than a shunt?

Q. Doctor, have a look at the report to answer any questions?

A. Yes. (Report shown). Well, it says that there is marked hydrocephalus. It doesn't tell me how big the ventricles are.

Q. It goes on to say the size and shape of the ventricles, it would suggest it would have been present for a long time?

Q. How small would they have to be before you consider doing a shunt procedure?

A. The point is if they are huge, really enormous, then I would favour ventriculostomy over shunt.

Q. How small would they have to be before you would consider a shunt?

A. Oh, well, that is a matter of surgical judgment. I can't give you an exact measurement.

Q. In terms of the shunt procedure, as I understand your evidence, what you didn't like about the shunt, at that time, was that it presented unnecessary mechanical complications?

Q. So it really, in terms of an elective procedure when you elect one or the other, the size of the ventricles probably had very little to do with your decision, didn't it?

37 In re-examination, Dr Besser had again stressed that, after a lapse of 20 years, reference to the films themselves would have helped him recall his decision-making processes. 38 Studdert J made the following findings (at [73]-[74]) about the availability of the films: "It has been submitted that to the extent that [Dr Besser] placed reliance upon the pre-operative procedures, it would not be necessary for a fair trial for the films themselves to be available. The diagnosis of aqueduct stenosis was not challenged and the [applicant] would not be challenging the circumstance that the ventricles were enlarged. Her case to be advanced through Dr Fitzgerald [the neurologist practising in Florida who was retained as an expert on behalf of the applicant] is simply that the procedure which was carried out was never appropriate and that the only appropriate procedure, having regard to the [applicant's] condition, was the shunt procedure. So it is submitted the issues are really black and white as to the selection of the operative procedure, and this being so the films are unnecessary. I do not accept this submission. Whilst it may be the [applicant's] case that the operation which [Dr Besser] decided to perform was never appropriate and that the [applicant's] condition should have been addressed by a shunt, I do not understand it to be [Dr Besser's] position that a shunt ought never to be preferred … The operation of choice depended upon the size of the ventricles and the most appropriate way of establishing their size would have been by reference to the films. What the films would have showed would, unquestionably, have been of importance to the assessment of Dr Besser's evidence and to the assessment of his decision to perform the operation undertaken. 39 Studdert J concluded (at [84]) that Dr Besser had established that he would suffer significant prejudice if the case was permitted to proceed. Accordingly, he could not conclude that it was "just and reasonable" within the meaning of s 60G of the Limitation Act for the limitation period to be extended. He therefore refused the application.

The Court of Appeal's Judgment 40 In dismissing the appeal to the Court of Appeal, Bryson JA (with whom Mason P and Giles JA agreed) made the following observations (Fletcher v Besser [2004] NSWCA 132 at [54]-[55]): "It was also contended that no material prejudice ought to have been found in circumstances where Dr Besser did not indicate what his reasoning might have been at the time. I do not accept this submission, which is simply not accommodated to the difficulty presented by the circumstances that Dr Besser's recollection and the CT scan films and arteriogram/angiogram film are not available. Dr Besser would, according to his evidence (which was found to be reliable), have looked at the films and formed his own judgment and would not have relied solely on Dr Lamond's reports. In any event, all the considerations presenting themselves to him and his own thinking and analysis of them during the operation are not now available, to him or to anyone else. In the nature of the circumstances, he cannot show how he would answer this allegation of negligence if he were called upon to do so.

The evidence of Dr Besser shows that he is in no real position now to recall or explain in a full or clear way the events and circumstances which presented themselves to him in the course of the operation and which had a bearing on the course he took. His evidence also shows that there could well have been important observations, facts and circumstances available to him at the time, but no longer available. The passage of time and the unavailability of any recollection of the high detail of the circumstances of the operation at the conclusion are likely to render a trial of proceedings in relation to the allegations made against unfair."

THE SECOND APPLICATION 41 The explanation provided to Adams J to justify the second application for leave to extend the limitation period was the discovery by the applicant's solicitor in September 2003 of the entry in the cerebral observation chart showing that she had become decerebrate and had lost consciousness at 4 pm on 27 September 1982. The solicitor had seen the entry in the records previously, but had not appreciated its potential significance for the applicant's case. 42 The solicitor drew the entry to the attention of Dr Fitzgerald, who then expressed the opinion that Dr Besser had been negligent in respects other than those that had previously been alleged. This led the applicant to propound a new case against the respondents. 43 The applicant now wished to rely on: the failure to drain case; and a contention further investigations should have been carried out after the events of 27 September 1982. 44 I have explained the circumstances in which the applicant resurrected the choice of operation case in the course of the second application. The primary Judge therefore had to address the question of prejudice in relation to both the failure to drain and choice of operation cases.

THE PRIMARY JUDGMENT 45 The primary Judge observed (at [43]-[44]) that Dr Besser had agreed in his evidence that the occurrence of the decerebrate event with loss of consciousness was very serious and that if he had been informed of it, he expected that he would have done something about it. However, his Honour noted that the applicant had conceded that the decerebrate event, for whatever reason, had not been brought to Dr Besser's attention. 46 His Honour also observed (at [57]) that the applicant's attempt to resurrect the choice of operation case rested on a contention that Dr Besser had given evidence on the second application that differed markedly from his evidence on the first application and amounted to an admission that he would not be prejudiced by the absence of the films of the CT scan and of the ventriculogram in defending the choice of operation case. 47 The primary Judge pointed out (at [61]) that Dr Besser had not been cross-examined about any possible contradiction in his evidence. His Honour was not satisfied that there was any contradiction between Dr Besser's evidence in the first proceedings and his evidence in the second (at [61]). His Honour thought that when Dr Besser referred to the "ventriculogram result" he may have meant the film, rather than the report of the result (the film no longer being available). The controversy had focussed on whether the film was necessary to enable the respondents to deal with the drainage case and in particular on the need to exclude the possibility of a lesion in the posterior fossa before undertaking any drainage, including the drainage attendant on a ventriculogram. His Honour thought that Dr Besser may have had in mind the drainage issue, not the choice of operation issue. These ambiguities should have been clarified by the cross-examiner, but were not. Accordingly, his Honour was unpersuaded that there had been such a change in the evidence as to justify revisiting the earlier decision of Studdert J and the Court of Appeal. 48 The primary Judge described (at [68]) the applicant's second case as, in substance, the following: "there was a longstanding, chronic illness suffered by [the applicant] that required remedial action in due course but that by the time she came to the hospital, her already serious symptomatology was getting markedly worse and there were signs of acute changes that required immediate attention. Those remedial steps were not taken in a timely way, a decerebrate event occurred, and then a subsequent inappropriate neurosurgical procedure undertaken which, at all events, should have been delayed until the consequences of the decerebration had been allowed to settle and, in the meantime, CSF [cerebrospinal fluid] drainage instituted". 49 The question was whether a trial of those issues could fairly be conducted. After a detailed consideration of the evidence, the primary Judge concluded (at [91]) that the symptoms and history of the patient presented a complicated and difficult case requiring careful diagnosis. Dr Fitzgerald, although suggesting that the presence of a tumour was only a remote possibility, agreed (at [70]) that the possibility had to be excluded. He also agreed that it was important to examine the CT scan carefully to exclude the possibility of a tumour and that the quality of images in 1982 was inferior to that obtained with more advanced technology. The expert called on behalf of Dr Besser strongly disagreed with Dr Fitzgerald's view that a brain tumour capable of causing the applicant's symptoms would have been so large as to be obvious on a CT scan in 1982. 50 The primary Judge accepted (at [95]) that Dr Besser had no recollection of the precise reasoning that led him not to institute immediately a drainage procedure. His Honour also accepted that Dr Besser needed to have the films of the CT scan (particularly of 23 September 1982) available in order to determine whether the principal reason was the importance of excluding a tumour. 51 Under the heading "Other matters of prejudice", the primary Judge found (at [93]) that there were inconsistencies between nurses' notes during the period 27 to 30 September 1982 (the date the craniotomy was performed) and the matters recorded on the cerebral observation chart. Three nurses had been located who had attended the applicant during the relevant period but after the lapse of time, none had any recollection of the applicant's circumstances. According to his Honour: "the inability to clarify what appears to be an important factual issue relied heavily upon by [the applicant] is a significant prejudice".

His Honour had previously found that it was not safe to assume that the hospital records were complete. 52 The primary Judge also found that the respondents were prejudiced in relation to a note made at 9 pm on 27 September 1982, to the effect that the RMO had been informed of the decerebrate event. The RMO could not be identified and no medical staff had any recollection of the events. Since there were a number of explanations for the lack of response to the event other than one involving negligence on the part of the respondents, they were prejudiced by the gaps in the records and the inability of medical and nursing staff to recall what had happened. His Honour observed (at [94]): "What Dr Besser or for that matter the hospital (th[r]ough the RMO) should have done is scarcely capable of sensible assessment at this remove. Such a matter is very much, as it seems to me, a question of medical judgment based upon not only an adequate grasp of the history but also a consideration of the way in which the patient presented on examination". 53 The primary Judge expressed (at [97]-[98]) his conclusion as follows: "I do not see how, even apart from the specific prejudice caused by the lack of the films and the uncertainties of the medical records, a fair trial can now be had in which Dr Besser or any witness who might be called on his or the hospital's behalf could deal in any specific way with [the applicant's] unfolding medical condition.

… In my view, the considerations referred to by Bryson JA [in the previous appeal] apply with virtually equal force to the present circumstances. Indeed, the choice of operation case and the evacuation of the haematoma case were at least specific procedures indicated by specific circumstances. The very generality of the case now sought to be made by [the applicant] depends on assessing how acute were her symptoms in a situation in which, not only are their descriptions uncertain, but the crucial medical issues matters of fact and degree. Accordingly, [the applicant] has not established that, in respect of the first case, it warrants departure from the decision of Studdert J. For what it is worth, I have at all events independently come to the view that a fair trial cannot now be conducted in respect of that case. In respect of the second case sought to be made, I have concluded that the prejudice suffered by both Dr Besser and the hospital caused by the effluxion of time since the material events is such that there can be no fair trial conducted of it".

THE APPLICANT'S ARGUMENT ON THE LEAVE APPLICATION 54 The applicant's principal contention is that Dr Besser's evidence (see at [21] above) makes it clear that he understood "the ventriculogram result" to mean the report of the radiologist (Dr Lamond), not the ventriculogram film (which had been lost). According to Mr Agius, other questions put to Dr Besser had clearly distinguished between the film and the report, the term "results" being used to describe the report alone. The applicant argues that the ventriculogram report confirmed that the cause of the hydrocephalus was aqueduct stenosis as had been indicated by the CT scan of 23 September 1982. Once Dr Besser confirmed that the ventriculogram showed that the applicant was suitable for a third ventriculostomy, no other thought processes (in relation to the choice of operation case) were required. In particular, Dr Besser could not be prejudiced by the absence of the CT scans of 23 September 1982. And he had conceded that the absence of the ventriculogram film could not prejudice him in defending the choice of operation case.

The Challenge to the Primary Judge's Finding 55 Mr Agius did not challenge the finding made by the primary Judge (and by Studdert J) that Dr Besser was an honest witness whose evidence was given truthfully, although he did assert that Dr Besser's evidence in the second application was inconsistent with his evidence in the first. As I have observed, the challenge was directed to the primary Judge's interpretation of the passages in Dr Besser's evidence upon which the applicant relied. 56 Mr Agius submitted that in the first application, the respondents had relied only on the absence of the films of the CT scan as a basis for a finding of prejudice in conducting the choice of operation case. It is true that Studdert J did not base his conclusions on the absence of the film of the ventriculogram carried out on 28 September 1982. But Dr Besser clearly asserted that it was important for him to have access to the ventriculogram film to enable him to explain his decision to opt for a third ventriculostomy rather than a ventricular shunt. The passage in his evidence in the first application is as follows (Supplementary White, 80-81): "Q You had a ventriculogram carried out on 24 September [ sic 28 September ], is that right?

Q. And that showed, 'Aqueduct obstruction without deformity in the proximal 1 centimetre of the aquaduct [sic] has been demonstrated'?

Q. That confirmed the provisional diagnosis , I take it, which was obtained on the CT scan?

Q. 'The third ventricle is replacing pituitary tissue and expanding the fossa. The supra-pineal recess is huge'?

Q. That gives you, does it not, a very good picture of the structures that you were contemplating operation for, is that right?

A. It describes the structures but it doesn't give me the picture that I need to decide on surgery; I'd need to see the films .

Q. I take it that you identified risk factors associated with the two types of surgery which were open to you, is that correct?

Q.. Can you tell me what the risk factors were for the surgery that you in fact performed? A. The risk factors for ventriculostomy. Q. Yes? A. There's a risk of infection, risk of bleeding, there is haemorrhage, a risk that it may not be a curative procedure, risk of death or stroke. They're the same risks I would quote for a third ventricular shunt. Q. Is there any difference in your view in the risk between that surgery and a shunt?

A. Yes, the risk is higher with a craniotomy and third ventriculostomy [than] with a shunt.

Q. What are the risk factors that you have enumerated are the increased ones as a result of the procedure that you adopted?

A. I would say all the risks were increased to a certain extent.

A. Yes. Q. And that was well-known to you, I take it, in 1982? A. I think so. Q. And I take it that you would not embark upon such surgery without being entirely sure, as best you could be, of your interpretation of the CT scans and the ventriculogram, which were the two tests available to you at that time ?

Q. Because, I take it, being well aware of the increased risk factors of the type of surgery you were to embark upon, you would not have embarked upon it unless you were very confident about the findings on the CT scans and the ventriculogram ? A. Yes. " (Emphasis added.) 57 Immediately before the second of the exchanges on which the applicant relied in the second application (set out at [21] above), this exchange occurred (White, 267-268): "Q. Doctor, just to bring you back to your affidavits where you speak of what the ventriculogram revealed, the first one says it reveals nothing. The second one doesn't mention the erosion of tissue and bone and that the supra-pineal recess is huge. Doctor, a reasonable reader of your affidavits against the background of Dr Lamond's radiological report, would think that you down played the results of the ventriculogram. That's fair enough isn't it?

Q. Doctor, don't you think that a reasonable reader of this material might think that you'd down played it because you accepted that you weren't hampered in meeting a proposed claim by the absence of a ventriculogram films [sic]? A. No ." (Emphasis added.) 58 The reason that Studdert J did not specifically advert to the significance of the ventriculogram film may have been that a ventriculogram performs a very similar function to a CT scan, albeit in a more invasive way. Dr Fitzgerald accepted in his evidence (White 98-99) in the second application that a ventriculogram performed in 1982 would have showed the ventricles in better relief than a CT scan. He also accepted that if one put aside the invasive character of a ventriculogram, in some circumstances it could yield better information than a CT scan (although Dr Fitzgerald's view was that a CT scan in this particular case would have been enough). 59 Within this framework, it is difficult to conclude that the primary Judge misinterpreted Dr Besser's evidence. The primary Judge had the advantage of observing Dr Besser in the witness box. While modern courts tend to be cautious in attributing too much weight to the advantage enjoyed by a trial judge, the opportunity to observe a witness is apt to be especially helpful in assessing the meaning and significance of particular passages in the evidence in the context of the witness's evidence as a whole. This is particularly so when the issues identified by the parties change as the case proceeds. 60 This litigation has been characterised by repeated changes in the way in which the applicant's case against the respondents has been presented. When the first exchange in Dr Besser's cross-examination on which the applicant relies took place (reproduced at [20] above), the applicant was advancing only the failure to drain case. In that context, Dr Besser was asked about certain information contained in the ventriculogram report, presumably with a view to testing why he had not undertaken a drainage procedure earlier than he did. He was then asked what "other things" the ventriculogram report had told him, to which he replied: "Also tells me it is also suitable for a third ventriculostomy". 61 Without further clarification, that answer (as the primary Judge found) could have had several different meanings. It perhaps might have had the meaning the applicant attributes to it. But given Dr Besser's insistence in the first application that, in order to recall his reasons for deciding to perform the third ventriculostomy he needed access to the films, his answer may well have meant that in September 1982, with the benefit of the films themselves, the report confirmed his judgment that a ventriculostomy was the appropriate procedure to perform. Or his answer might have conveyed that, as he looked at the report in the witness box, taking into account what he assumed the films must have shown in September 1982, he could see that the report must have been the catalyst for his decision to perform the ventriculostomy. 62 When the cross-examiner returned to the subject the following day (see at [21] above), it was clear that he was intending to address the topic of whether Dr Besser was prejudiced in his defence of the choice of procedure case. The thrust of the questioning was to ascertain why Dr Besser considered himself prejudiced in his defence, given that "the ventriculogram results showed that [the applicant] was suitable for a third ventriculostomy", by the absence of the CT scan of 23 September 1982. Dr Besser was asked: "Why, from the time the ventriculogram came into existence , are you disadvantaged by the absence of the CT scan of the 23rd?"

His answer was: "But I'm not if I've got the ventriculogram result ". (Emphasis added.) 63 The most obvious interpretation of this question and answer is that Dr Besser meant to refer not merely to the ventriculogram report but to the film on which the report was based. After all, his position had consistently been that the film was necessary for him to reconstruct his decision-making process concerning the third ventriculostomy. The question itself directed attention to the existence of the ventriculogram, not the report. And, as I have noted, immediately before this passage he had denied that his affidavits had implicitly accepted that he was not hampered in meeting the proposed claim by the absence of the ventriculogram film. 64 At the very least, Dr Besser's answer is capable of bearing this interpretation. If the cross-examiner considered the point important, it was open to him to question Dr Besser further and put to him squarely that he no longer adhered to the position that the ventriculogram film was necessary for him to have a fair opportunity of meeting the choice of operation case. This was never done. 65 Mr Agius submitted that other passages in the transcript showed that Dr Besser, by using the phrase "ventriculogram result", must have meant only the ventriculogram report (not the film). A number of the passages on which Mr Agius relied are themselves ambiguous. In others, it was the cross-examiner who used the expressions "ventriculogram results", "results of a ventriculogram" or similar expressions. In none did Dr Besser himself use the precise expression "ventriculogram result". The passages on which Mr Agius relied cannot require Dr Besser's answer to be accorded an unequivocal meaning that it does not bear when read in context. Similarly, a passage in the written submissions of counsel for the respondents in the first application on which Mr Agius relied cannot be read, in my opinion, as an admission that Dr Besser was not prejudiced by the unavailability of the ventriculogram scans. 66 The forensic decision made on behalf of the applicant to rely exclusively on the choice of operation case may well diminish the importance of the CT scan films to the defence case. I doubt that their absence can be dismissed as a matter of no significance, bearing in mind that Dr Besser's decision was made in the context of a patient whose condition was (as Adams J found) "complicated and difficult" and which unfolded during her period of hospitalisation. Be that as it may, the applicant's exclusive focus on the choice of operation case, if anything, increases the importance of Dr Besser having access to the ventriculogram film for the purposes of his defence. His principal difficulty, on the evidence accepted by the primary Judge, was that he was unable to recall or to reconstruct the reasons why he made the decision to perform a ventriculostomy rather than a shunt. His contemporaneous notes make it clear that he took the decision in the knowledge that his attempt to document a patent subarachnoid space had failed. Dr Besser's evidence, which was accepted by the primary Judge, was that the absence of the ventriculogram film - examination of which immediately preceded the critical decision - was important to his efforts to reconstruct the reasons for that decision. The absence of the film would clearly prejudice Dr Besser in defending the choice of operation case. 67 In my view, the applicant has not established that the primary Judge erred in reaching the conclusions he did about Dr Besser's evidence. In particular no basis has been shown for interfering with his findings that Dr Besser: did not admit that the absence of the ventriculogram film would not prejudice him in defending the choice of operation case; and

did not give evidence in the second proceedings on the question of prejudice that was inconsistent with his evidence in the first proceedings.

An Alternative Ground for Refusing Leave to Appeal 68 Mr Agius submitted that, even if the applicant established that the primary Judge had erred in interpreting Dr Besser's evidence, leave to appeal should be refused because of other findings of actual and presumptive prejudice. Among the matters he identified were that: Dr Besser's practice was to discuss complicated cases, such as that of the applicant, with more senior neurosurgeons. Since none of the medical practitioners with whom the applicant's case is likely to have been discussed is now available, Dr Besser is prejudiced in mounting his defence to the choice of operation case (at [82]). There were inconsistencies and uncertainties in the medical records, particularly in relation to the decerebrate event (at [93]-[94]). While Mr Agius submitted that the decerebrate event was not directly relevant to the choice of operation case, reconstructing the decision-making process would be hampered without either complete records or the ability to recall the critical events leading up to the ventriculostomy. Even without specific prejudice arising from the lack of films and the inadequacy of the records, a fair trial could not take place since Dr Besser, given his inability to recall the details, would be unable to deal in any specific way with the applicant's unfolding medical condition (at [97]). 69 In my opinion, had the challenge to the primary Judge's interpretation of Dr Besser's evidence been made out, the other findings of actual and presumptive prejudice, coupled with the fact that all the material relied on by the applicant was available to her advisors at the time of the first application, would have justified a refusal of leave to appeal.

CONCLUSION 70 Because the Court heard full argument on the merits of the appeal in conjunction with the leave application, I have given more detailed reasons for rejecting the applicant's argument than otherwise might have been appropriate. Nonetheless, no basis has been demonstrated for interfering with the primary Judge's interpretation of the evidence given by Dr Besser in the second application. Moreover, the applicant has attempted, without demonstrating good cause, to resurrect the very choice of operation case that was the subject of the unsuccessful first application. In these circumstances, the application for leave to appeal should be dismissed. There is no reason why costs should not follow the event.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Fletcher v Besser [2010] NSWCA 30

DA Christie Pty Ltd v Baker [1996] 2 VR 582 Fletcher v Besser [2004] NSWCA 132 CASES CITED: Fletcher v Hamilton-Gibbs [2002] NSWSC 899 Fletcher v Hamilton-Gibbs [2009] NSWSC 124 Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139

LOWER COURT MEDIUM NEUTRAL CITATION: Fletcher v Hamilton-Gibbs & Ors [2009] NSWSC 124

1 ALLSOP P: I have read the reasons in draft of Sackville AJA. I agree with the orders proposed by his Honour and with his Honour's reasons. 2 I would also, in particular, agree with his Honour that in the light of the Civil Procedure Act 2005 (NSW), ss 56-60, the authority of Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 may need to be reconsidered. 3 McCOLL JA: I agree with Sackville AJA and with the additional observation of Allsop P. 4 SACKVILLE AJA: This is an application for leave to appeal from a judgment of a Judge of the Supreme Court (Adams J). His Honour refused an application under s 60G of the Limitation Act 1969 for an extension of the limitation period so as to enable the applicant to commence proceedings against the first and second respondents ("Dr Besser" and "Health Service", respectively): Fletcher v Hamilton-Gibbs [2009] NSWSC 124. The Court has heard full argument on the merits of an appeal in conjunction with argument on the application for leave to appeal. 5 The case for which the applicant now seeks an extension of the limitation period is that Dr Besser was negligent in 1982 in choosing to perform a procedure known as a third ventriculostomy, as a means of relieving intra-cranial pressure caused by hydrocephalus. According to the applicant, Dr Besser should have performed an alternative and safer procedure, known as a ventricular shunt, to relieve the intra-cranial pressure. As a consequence of Dr Besser choosing to perform a third ventriculostomy, so the applicant contends, she suffered an intra-cerebral haemorrhage that led to her becoming a hemiplegic. The Health Service is said to be vicariously liable for Dr Besser's negligence. The parties described this claim as the applicant's "choice of operation case". 6 Dr Fitzgerald, a neurologist practising in Florida who was retained as an expert on behalf of the applicant, described the procedure actually undertaken by Dr Besser in uncontroversial terms: "A craniotomy and third ventriculostomy procedure involves open brain surgery in an operating field which has to be established underneath the exposed brain by retracting the frontal lobes of the brain itself within the skull cavity and opening the preoptic cistern around the chiasm to reach the lamina terminalis which is the operative site to access the third ventricle. This operative site when established for the third ventriculostomy procedure presents to the neurosurgeon as a narrow dark vertical wedge or tunnel shaped area normally about four centimetres deep in a typical adult brain which is not swollen. Located within this narrow wedge or tunnel shaped area are the optic nerves, the carotid artery and the jugular vein within the cavernous sinus in close proximity on either side. This is a dangerous area to operate within even in the most ideal operating conditions because of the close proximity of these vital nerves and blood vessels to the operative site and because of the relatively small and narrow confines within which the neurosurgeon must perform the third ventriculostomy procedure itself". 7 The evidence suggests that a ventricular shunt was less likely in 1982 to cause a haemorrhage in a patient. On the other hand, because a shunt was inserted permanently into the patient's brain, it was subject to mechanical complications over the patient's lifetime. A ventriculostomy carried with it a higher initial risk, but had the advantage of healing the patient without inserting an artefact permanently in the patient's brain. 8 As Mr Agius SC, who appeared with Mr Condon for the applicant, explained the choice of operation case, the applicant wished to rely on Dr Fitzgerald's opinion that it was unsafe for Dr Besser to proceed with the third ventriculostomy. According to Dr Fitzgerald's evidence, unless it was clear that there was a patent subarachnoid space into which the cerebrospinal fluid could drain, it was unsafe to have performed a third ventriculostomy. Dr Besser's post-operative notes showed that an attempted isotope study by lumbar puncture had failed to document a patent subarachnoid space.

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