Fletcher v Hamilton-Gibbs & Ors

(ii) that once the third defendant observed blood after performing the craniotomy he should not have continued with the operation;

(iii) that the third defendant should have acted urgently to evacuate the haematoma on 30 September 1982. 18 Mr Davies, on behalf of the third defendant, and Mr Kalfus, on behalf of the fourth defendant, submitted that the plaintiff had the requisite awareness for the purposes of s 60I(1)(a)(iii) after reports had been received from Dr Gordon and Professor Dan. Further knowledge was acquired through the reports of Dr Stening and of Dr Lester. It was submitted that the requisite awareness of the injuries and their connection with the acts and/or omissions of the third defendant existed by the end of 1996, by which time the plaintiff had available relevant reports from Dr Gordon and from Professor Dan.

Dr Gordon 19 On 17 October 1991 he reported to the plaintiff's solicitor on the post operative haematoma and on the further operation to evacuate the intracerebral clot. He reported on the permanent severe disability that related to her physical and neuropsychological functioning and that these features were related predominantly to the cerebral haemorrhage. He reported that Dr Besser had stated that the cause of the haemorrhage "was unclear but was probably due to sudden ventricular decompression" and considered it was quite reasonable to assume that this was the cause, although he did not consider it possible to say that the haemorrhage was solely precipitated by this.

Professor Dan 20 Professor Dan reported to the plaintiff's solicitor on 1 August 1996 that the complications resulting in left hemiplegia arose during the surgical management carried out by the third defendant. Then, on 20 November 1996, Professor Dan reported that it was more probable than not that the haemorrhage occurred either at the time of the induction of the anaesthetic or during the period of the ventriculostomy. He added in response to specific questions: "8. The decision making processes undergone by Dr Besser leading him to elect ventriculostomy rather than a shunt would have to be discussed with him, but the operations were the same, whether Mrs Fletcher was diagnosed earlier or at the time at which she was diagnosed. 9. A shunt procedure is less likely to cause a haemorrhage than a ventriculostomy, but that is merely one of the factors to be taken into account in determining whether a shunt or a ventriculostomy would be a more appropriate form of management." 21 Mr Davies submitted reading the above reports of Professor Dan and of Dr Gordon would inform the reader not only of the nature of the injuries suffered but of their connection with the procedures adopted by the third defendant. 22 It was further submitted that reports from Dr Stening dated 30 July 1997 and 11 May 1998, served on Mr Billing 2 June 1998, and from Dr Leicester dated 12 February 1996, served on 15 February 1996, provided additional evidence of the connection between what was done and not done by the third defendant and the plaintiff's injuries. 23 Mr Davies submitted that what s 60I(1)(a)(iii) is concerned with is the lack of awareness of there being any connection between the plaintiff's injury and the third defendant's acts or omissions, and not absence of awareness of consequential legal conclusions. Mr Davies cited the decision of the Court of Appeal in Drayton Coal Pty Limited v Drain (unreported, NSWCA, 22 August 1995). Mr Davies referred to the judgment of Gleeson CJ, with which the other members of the court agreed, and in the course of which the Chief Justice said concerning s 60I: "2. The requirement, in s60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiffs personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference). 3. S60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s60I(1)." 24 There was an awareness by 1996 of the existence of the third defendant's acts or omissions (in treating the plaintiff) and their connection with the plaintiff's injuries, so Mr Davies submitted. True it is that the plaintiff did not know then, and indeed did not know until the year 2000, that the third defendant's behaviour was considered to be negligent, but that was simply because it was not until that time that Dr Grant and Dr Fitzgerald were asked the questions which prompted the opinions that they expressed. It cannot be, Mr Davies submitted, that time did not run until then having regard to the language of s 60I as considered in Drain. 25 In my opinion, that submission advanced by Mr Davies, and adopted by Mr Kalfus, ought not to be accepted. It places too narrow a construction upon the language of the provision. 26 In Dedousis v The Water Board (1993-94) 181 CLR 171 Deane, Dawson, Toohey, Gaudron and McHugh JJ said as to the provision, at 181-182: "It is true that s 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, if a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system, then the proper conclusion is that the plaintiff was "unaware of the connection between the personal injury and the defendant's act or omission" within the meaning of s 60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions." 27 Consistently, in Drain the Chief Justice observed: "5 If a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s60I(1)(a)(iii) will be satisfied." 28 Just as in Dedousis and in Drain it was said that the lack of awareness of a safer system of work being available sufficed for the purposes of s 60I(1)(a)(iii), it seems to me that the lack of awareness in the plaintiff of the shunt procedure being the proper procedure (on the case the plaintiff wants to present) satisfies this gateway requirement. Moreover, it was not until the opinions of Dr Grant and Dr Fitzgerald became available that the plaintiff was made aware (again on the case sought to be presented) that an urgent operation should have been undertaken to evacuate the haematoma. Again, until the opinion of Dr Fitzgerald became available, the plaintiff was not aware once the craniotomy procedure was performed on 30 September and blood was detected that the third defendant should not have proceeded with the operation at that point of time. 29 The earlier opinions upon which Mr Davies and Mr Kalfus rely do not address any suggested shortcomings in what the third defendant did or more appropriate procedures that could have avoided the harm suffered. Indeed, Professor Dan had commented favourably on the procedure undertaken by the third defendant in his report of 27 February 1997: "Whilst there are various factors involved in selecting a procedure to manage the condition of hydrocephalus, in general terms Ventriculostomy is used when there is considerable degree of ventricular enlargement. The enlargement thins out the floor of the ventricle and therefore makes the ventriculostomy technically simpler to perform. It also has the advantage of reducing the significant complication of collapsing ventricles which results from drainage of the ventricular fluid. In effect, this is like puncturing a balloon which then collapses down. In this case the brain contracts down. Because the skull is rigid and fixed in volume, a space is produced over the surface of the brain. The brain is then relatively unsupported and movement of the brain, relative to the skull may cause tearing veins which lead to haemorrhage. It is not uncommon in the presence of advanced hydrocephalus for a patient to oscillate between the two extremes of large ventricles and blood clots on the surface of the brain to their considerable detriment. A ventriculostomy minimises the risks of this complication. On the other hand, when the ventricles are not large, it is still a risk that subdural haemorrhages may occur, but the risk is significantly smaller than in the presence of advanced hydrocephalus. Overall, ventriculostomy is performed less frequently that shunting procedures, but in the presence of large ventricles is an excellent choice. Dr Besser's comment that he elected to perform a ventriculostomy to prevent complications is therefore entirely valid." 30 Further, to the extent that the plaintiff in the heads of negligence earlier identified relies upon omissions by the third defendant, it cannot be said that the plaintiff became aware of those omissions until expert opinion became available as to what it is to be contended the third defendant should have done and that knowledge was not forthcoming until 2000. 31 The decision in Drain has been applied in many cases in the Court of Appeal to which my attention has been drawn: see Telstra Corp Limited v Rea [2002] NSWCA 49; Briggs v Sewell [2002] NSWCA 182; Milperra Marketing Pty Limited v Bayliss [2001] NSWCA 315; Maclean v Sydney Water Corporation [2001] NSWCA 122; Commonwealth of Australia v Clarke [2000] NSWCA 174; Gladesville RSL Club v Bartsch (1998) 44 NSWLR 674; and CSR Limited v Rendell (unreported, NSWCA, 7 August 1996). 32 I do not read in any of the above decisions support for the narrow construction of s 60I(1)(a)(iii) for which the respondents to this motion contend. 33 The matters of which the plaintiff was unaware until 2000 were the medical opinions supporting the heads of negligence above identified. Whilst the plaintiff may have been aware of what the third defendant did and what he did not do in terms of treatment, there was a lack of awareness going to the appropriateness of the third defendant's acts and omissions in treatment. 34 In Do Carmo v Ford Excavations Pty Limited (1983-84) 154 CLR 234 at 254 Dawson J, in considering s 57(1)(b)(ii) of the Limitation Act, said that the reference there to the material facts "does not include a reference to a cause of action in negligence but is rather a reference to the facts which constitute the acts or omissions, including those facts which are necessary to show the negligent character of those acts or omissions , upon which such a cause of action might be founded." (Emphasis added) 35 Similarly, when s 60I(1)(a)(iii) is being considered, the requisite awareness cannot exclude an awareness as to how the plaintiff ought to have been treated. 36 For the above reasons, I am satisfied in the present case that the plaintiff has passed through the gateway of s 60I(1)(a)(iii). 37 In addition, of course, the plaintiff is required to satisfy the Court under s 60I(1)(b) that the application was made within three years after the plaintiff "became aware" or "ought to have become aware" of the matters referred to in s 60I(1). 38 In addressing this issue what is relevant is the knowledge that the plaintiff had or ought to have had. In the course of cross examination of Mr Billing questions were asked to explore the possibility that Mr Billing was seeking to investigate the issue as to whether there had been negligence by the third defendant. That cross examination related to correspondence that Mr Billing had had with doctors prior to 1997. I am unable to find, and I do not find, that Mr Billing himself was aware of the existence of evidence inculpating the third defendant or the fourth defendant until after Mr Cranitch had conferred with Dr Grant in December 1999. I accept Mr Billing's evidence to that effect (see his affidavit sworn 6 July 2000, para 16). Even if he had been aware earlier his knowledge would not become the knowledge of the plaintiff until it was conveyed to the plaintiff: see as to this Telstra Corp v Rea (supra). 39 The plaintiff's evidence that she did not have prior knowledge of the matters addressed in the reports of Dr Fitzgerald and Dr Grant is unchallenged and I accept it. So for the purposes of s 60I(1)(b), I am satisfied that the application for the order here sought has been made within the requisite three year period. I am further satisfied by the evidence that I should not find that the plaintiff ought to have become aware of the existence of the medical opinion upon which her cause is sought to be based before she actually became aware of it. The evidence (and in particular the plaintiff's affidavit of 30 January 2002) discloses that the plaintiff is a person who has laboured under physical handicaps and, indeed, some intellectual and emotional handicaps since 1982, and it seems to me in the circumstances that the plaintiff was entitled to trust her solicitor to do what was required to look after her interests.

Is there a case to advance? 40 Before determining whether it is just and reasonable to extend the limitation period, it is necessary to determine whether there is evidence pointing to a cause of action against the proposed defendants. The plaintiff is not required on this application to prove the evidence of negligence that would be required to be introduced at the trial. What the plaintiff is here required to prove is that there is evidence available, or likely to be available at trial, to establish liability in the defendants. As Mason P said in Dow Corning v Paton (unreported, NSWCA, 24 April 1998): "An application is not a trial of the action. But the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced that demonstrates that the dilatory plaintiff has a real case to advance. See generally Council of the City of Sydney v Zegarac (Court of Appeal, unreported, 26 February 1998)." 41 Notwithstanding the many opinions of experts expressed in this case prior to 2000, there was no evidence available to indicate that the plaintiff could establish negligence against the third defendant and, indeed, the evidence before the Court would indicate the contrary. At the present time, the plaintiff is dependent upon the evidence of Dr Fitzgerald alone. 42 The date appointed for the hearing of the cause against the first and the second defendants was vacated to permit the plaintiff to pursue an application to join the third and fourth defendants, and the joinder application was entertained by Assistant Registrar Howe on 4 June 2001. When that application was successful, the plaintiff's claim was still supported by Dr Grant but in the course of the hearing before me two further medical reports from Dr Grant emerged (Exhibit A). Those reports indicated that Dr Grant no longer provides support for the plaintiff's case. Indeed, in his report of 5 September 2000, Dr Grant concluded: "I am at no stage suggesting that the proceedings undertaken by Dr Besser were less than those of standard care expected of a neurosurgeon. I am simply suggesting, and possibly with the addition of hindsight, that there were other possible ways in which this [sic] proceedings could have been handled. This certainly does not mean that I would imply that there was any negligence on the surgeon's part." 43 This leaves the plaintiff with the evidence of Dr Fitzgerald. Objection was taken to evidence from this source because of non-compliance with the Rules of Court and unsatisfactory compliance with the requirements of Schedule K. However, when objection was taken in the course of the hearing I admitted this evidence. Having regard to the nature of the present application, it seems to me that it is not necessary at this stage for the plaintiff to introduce reports from Dr Fitzgerald in the form required by the Rules of Court for trial purposes; it is sufficient here for the plaintiff to show that there would be evidence available at trial to establish a cause of action, provided such evidence is accepted: see Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430. Certainly the material presently available from Dr Fitzgerald is not in a form which would permit of its introduction in evidence at a trial. Strict compliance with the Rules of Court and Schedule K would be required before any evidence was introduced from this witness, whether he is ultimately required for cross examination or not. 44 However, for present purposes it seems to me that the material provided by Dr Fitzgerald, though meagre, establishes that the plaintiff has a case to advance against the third defendant. Earlier I recorded the concession by the parties that for present purposes the cases against the third and the fourth defendants are to be regarded as interwoven. If the plaintiff succeeds against the third defendant, then his relationship to the fourth defendant for relevant purposes is such that points to the possibility that the fourth defendant would itself become liable for the negligence of the third defendant. 45 It follows from this that the plaintiff is entitled for the purposes of this application to rely upon the principle referred to in Briggs v James Hardy & Co. Pty Limited (1989) 16 NSWLR 549 as expressed by Hope JA at 554: "…where a plaintiff brings an action against two defendants alleging that one or both are liable, and there is some evidence to connect each defendant with the events the subjects of the action, then provided the plaintiff establishes a prima facie case against one of the defendants, the other defendant will not be dismissed from the action until the whole of the evidence has been heard. As it seems to me this means that a plaintiff is entitled to bring an action against two defendants if he has evidence to establish a prima facie case against one of the defendants, and also has evidence pointing to the possibility of the other defendant being liable." 46 In my opinion then, the plaintiff has sufficient evidence of a real case to advance against both the third defendant and the fourth defendant.

Tardiness 47 It has been submitted by the defendants that there has been such tardiness in the pursuit of this application that the Court should exercise its discretion against the plaintiff. 48 No complaint is made in this context about the delay that occurred before the beginning of 1990. Prior to that time the plaintiff was significantly handicapped, and I referred to this earlier (see para 8 above). However, Mr Billing came into the matter in June 1990 and it is submitted that little was done to make appropriate inquiries in the matter before the end of 1999. Mr Davies pointed to the following steps being taken:

(a) a report was obtained from Dr Gordon in October 1991;

(b) the statement of claim was filed against the first and the second defendants in May 1992;

(d) Mr Billing wrote to Professor Dan in June 1996;

(e) it was the conference in November 1999 which triggered communication with Dr Grant. 49 On the other hand, the focus of Mr Billing's activities had been the preparation of the plaintiff's case against the first defendant and the second defendant. Mr Billing's affidavits and various of the annexures to those affidavits indicate the steps that were being taken over the period to prepare the plaintiff's case for trial against the first and the second defendants. As I have already indicated, I accept that Mr Billing was not aware of the possibility of a claim against the third defendant, and through him the fourth defendant, before Dr Grant was approached late in 1999. Professor Dan had earlier reported favourably on the nature of the operation that the third defendant had undertaken (see para 29 above). 50 Whilst the time lapse between Mr Billing's introduction to this matter and the first perception that there was a claim that could be mounted against the third and the fourth defendant was a lengthy time, I do not see this as being a feature which of itself would call for dismissal of the plaintiff's application. In my opinion, the critical question is that of prejudice and that is the issue upon which the outcome of this application must depend.

Prejudice 51 Before an extension of time can be granted to the plaintiff, this Court must be satisfied by the plaintiff that the justice of the case requires that the exercise of discretion should be in her favour. This application for an extension of time should be refused if the effect of granting the extension would result in significant prejudice to the defendants: see Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541 and Holt v Winter (2000) 49 NSWLR 128 and in particular per Sheller JA at 147. See also Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207 (at para 88). 52 In the much cited judgment of McHugh J in Brisbane South his Honour said at 555: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action." 53 A presumption of prejudice to the third and fourth defendant would exist in this case by reason of the lapse of time since the expiration of the limitation period. This case concerns events that occurred in 1982. 54 However, neither the third nor the fourth defendant relies simply on presumptive prejudice. Each defendant has introduced evidence of actual prejudice. 55 The third defendant swore an affidavit dated 17 August 2000 addressing the issue, and he was cross examined on this affidavit. I accept the third defendant's evidence to be truthful and reliable. Dr Besser said that he has a very limited recollection of the plaintiff but he does recall seeing her before surgery and he has a vague (and correct) recollection that the plaintiff was a Jehovah's Witness. It is also his recollection that the plaintiff was adamant that she wanted no blood transfusions. 56 The first indication Dr Besser was given that the plaintiff intended to sue him was in February 2000. The third defendant had earlier given two reports to Mr Billing dated 12 November 1996 and 16 December 1996, but the letters from Mr Billing that prompted that reports did nothing to alert Dr Besser to possible action against him. Indeed, I accept that when Mr Billing wrote to Dr Besser he did not then contemplate action against him, and wrote: "Mrs Fletcher has asked us to pass on her thanks to you for your treatment of her as she regards you as having saved her life and is most grateful to you for that." 57 I accept for the purposes of this application that the third defendant is dependent upon the hospital records of the fourth defendant. Those records contain the third defendant's typed notes dated 30 September 1982 in relation to the craniotomy and third ventriculostomy procedure that he performed. The notes for that date signed by the third defendant are detailed but there are shortcomings elsewhere in the hospital records, not the least of which is that whilst there are reports in those notes of CT scans and of an angiogram, the films themselves upon which those reports were based are no longer in existence. Dr Besser acted on the films rather than the reports, interpreting the films for himself. He said that he did so to determine his management of his patient. Dr Besser said that it was not uncommon for him to speak to the radiologist, in this case Dr Lamont. He cannot recall whether he spoke to Dr Lamont about the films or the reports relating to the plaintiff and I accept that Dr Lamont, who has recently been seriously ill, has no recollection of his involvement (see the affidavits of Roslyn Jones sworn 16 May 2001 and the affidavit of Williams Hawson sworn 1 March 2002). 58 I also observe that the third defendant said it was his practice to talk about difficult cases, and he considered the plaintiff's case to be a difficult one, with senior medical practitioners, namely Dr Segelov, Dr Vanderfield and Dr Johnstone. Dr Segelov and Dr Vanderfield are now deceased and Dr Johnstone has retired. The third defendant has no recollection as to whether he did speak about this case with any of those peers. 59 On the hearing of this application the missing films were the focus of much attention, and it is appropriate that I consider the significance of these missing films. Having regard to Dr Fitzgerald's opinion underpinning the plaintiff's claim, the various heads of negligence which the plaintiff will seek to maintain are to be found in para 17 above. The missing films are relevant to the matters identified in para 17. 60 According to the third defendant, the anatomy of the ventricular system would have influenced his decision as to the type of surgery to be undertaken. The size of the ventricles and their shape, particularly the shape of the third ventricle, determined the suitability of the procedure which he opted to undertake. 61 Dr Besser was cross examined about the sufficiency of the pre-operative scan report (as opposed to the films themselves) and in the course of this cross examination gave the following evidence (T 70-71): "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. The size of the ventricles? A. Yes. Q. They are well described in the CT scan, aren't they? A. They are. 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? A. Yes. 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? A. Yes Q. That suggests they are all enlarged? A. Yes, but it doesn't tell me how large they are. 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. But they would have to be quite small? A. Presumably smaller than this lady. 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? A. Over the patient's lifetime, yes. 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? A. No, I disagree. It had a lot to do with it." 62 In re-examination Dr Besser was asked the following questions and he gave the following answers: "Q. You were asked a number of questions about the risks associated with the two alternative procedures of a shunt or a ventriculostomy. Are there also competing advantages of the two procedures as well? A. Yes. Well, that was, I'm sure that part of my decision-making is that the advantage of a third ventriculostomy, although the initial risk is higher, if it succeeds as it does in the majority of patients then that patient is cured. Q. And you had a number of questions put to you about whether or not it was really necessary for you now to see the scans, as opposed to read the reports. Does the viewing of the scans assist in memory in terms of putting yourself back in the position you were in, in 1982, more than the written reports? A. Oh, yes, it would. Very much so. 20 years is a very long time to recall the features and the thoughts and the decision-making at the time. It would help a lot." 63 Professor Fearnside gave evidence on this application also and he was cross examined at some length, having earlier provided a report to the fourth defendant's solicitors dated 25 February 2002. In that report Professor Fearnside responded to a number of specific question and they included the following responses to the following questions: " (a) What matters are relevant to a decision to undertake the procedure upon Joanna Fletcher as actually performed by Dr Besser compared to a shunt procedure as proposed by Dr Fitzgerald? The primary consideration is of the risk benefit analysis of a third ventriculostomy via a craniotomy as compared to a shunt procedure. In 1982, such a ventriculostomy would have been performed via a craniotomy although in later years, endoscopic procedures became the operation of choice. A successful third ventriculostomy would provide a fistula between the internal ventricular system and the external subarachnoid space. A shunt procedure is a formation of an internal body fistula from the cerebral ventricle to, generally, the abdominal cavity. Shunt tubing may become blocked, fracture or angulate and valve and flow controlling may malfunction. This might result in recurrence of the previous symptoms of raised intracranial pressure and require further operations. A third ventriculostomy, generally, would be a 'once only' procedure. Once the internal fistula in the floor of the third ventricle is made blockage would be quite unusual. A third ventriculostomy did require a formal craniotomy with all the possible complications for such a procedure. A shunt is, on balance, less invasive and a long established treatment of aqueduct stenosis in the adult. (b) Can a determination now be made on the probabilities on the information contained in the records of the RPA (in the absence of x-ray film and CT film) whether the procedure adopted by Dr Besser is to be preferred to a shunt procedure or vice versa. If not what factors are relevant to such determination which are not available because of the lapse of time? The decision to perform a third ventriculostomy or a shunt procedure is a surgical decision, made at the time by the surgeon having regard to all factors prevailing at the particular time and this does include the radiological investigations. The absence of the radiological investigations does make it more difficult to provide comment. However, in 1982, both shunt procedures and third ventriculostomy were acceptable procedures for treatment of adult aqueduct stenosis. The choice largely depends upon the preferences of the surgeon." (Emphasis added) 64 I accept that Professor Fearnside holds the opinions above expressed and I accept the expertise of this witness. Those responses lent support to the third defendant's emphasis on the importance of the films themselves. 65 Then it is to be alleged that the third defendant should have acted urgently to evacuate the haematoma on 30 September 1982. A scan was carried out on 30 September 1982 and reported on in the third defendant's notes of that date. The scan, according to the third defendant, showed the presence of a large, deep intracerebral haemorrhage in the right hemisphere but away from the operative site and deep in the right parieto-occipital region. The scan was followed by an angiogram on the following day. In his supplementary written submissions, Mr Ingram argued that the third defendant was not prejudiced by the absence now of the CT scan because obviously he saw it on 30 June 1982, as his notes indicate, and he was influenced to obtain an angiogram. The only purpose of this could have been to establish whether the haemorrhage may have been caused by some vascular disorder, so that the CT scan had performed its function. I do not accept this submission that prejudice has been negatived by this sequence of events for reasons which I shall state. 66 Dr Besser cannot recall now why a procedure to attempt the evacuation of the haematoma was not undertaken immediately, but in his affidavit he has stated reasons why the postponement was appropriate. I accept however that the third defendant is now at a disadvantage by reason of relevant memory loss in determining why he acted as he did and when he did. 67 The hospital notes reveal that a surgical evacuation of the haematoma was scheduled for 7 October 1982 but was then postponed because of the plaintiff's fever. The third defendant says he cannot explain why he would have proposed the operation on 7 October when his present inclination would be to wait ten days before attempting to evacuate a haematoma of this type. The third defendant has explained the reason for this delay to postpone surgery for ten days is to enable the bleeding to solidify. However, the third defendant cannot recall what reasons he had for not acting earlier than he did. As it transpired, because of the fever the further surgery was not undertaken until 12 October 1982. 68 The defendant said, and I accept, that he would have been influenced in the decision that he made on 30 September 1982 by the films that had been taken that day. 69 In the report of Professor Fearnside, to which I made earlier reference, he was asked to consider what factors were relevant to a decision to undertake "immediate and urgent evacuation of the haematoma" after the procedure on 30 September 1982, and in response Professor Fearnside identified a number of factors, one of which was the clinical condition of the patient and another of which was the radiological appearance of the haematoma with particular regard to size and site. As to the second of these factors, Professor Fearnside wrote: "The clinical condition of the patient is the most important factor. Firstly, this relates to the neurological examination at the time and has regard to the level of consciousness and focal neurological disorder. The second factor is as to whether the patient's neurological condition is stable over a short or moderate period of observation or whether there is a deterioration either in the level of consciousness or worsening of the focal neurological signs. A second important factor is the radiological appearance of the haematoma with particular regard to size and site. The CT scan reports a large haematoma deeply placed. In 1982, there would be a division of views as to whether such a haematoma should be treated surgically or not. Further, if a surgical option was selected, the time of the surgery was debatable. It could be argued that early surgery would provide the patient with the greatest chance of reversal of focal neurological signs. However, it would have been equally argued that the irreversible damage causing the focal neurological signs occurred at the time of the haemorrhage and that surgery would be reserved for a progressive deterioration in the condition of the patient due to raised intracranial pressure. When the haematoma was identified on 30th September 1982, there would have been little liquifaction of the lesion and solid clot would have been present within the brain substance. The argument for late drainage of such a haematoma relied upon the observation that, a haematoma liquefies with the efflux of time and can then be drained through a burr hole or trephine craniotomy rather than a larger craniotomy." 70 When he was cross examined, Professor Fearnside had put to him the report on the CT scan of 30 September and Professor Fearnside said the description in that report "does not provide me with much information of how deep it is" (T 81). He was asked then about the angiogram on 1 October and whether that assisted him in determining whether there was a window of opportunity to have minimised the neurological damage, but in his opinion the CT scan "would probably provide more information" (T 81). 71 It seems to me upon consideration of the relevant evidence that the CT scan films of 30 September are of importance when one considers not only whether the third defendant should have operated immediately to address the haematoma but also as to what the prospects of such a procedure may have been. The precise size and location of the haematoma was particularly relevant to those issues. 72 It is convenient at this point to consider the submissions by Mr Cranitch and by Mr Ingram in the further written submissions concerning the missing records to which I have been referring. 73 It has been submitted that to the extent that the third defendant 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 plaintiff would not be challenging the circumstance that the ventricles were enlarged. Her case to be advanced through Dr Fitzgerald is simply that the procedure which was carried out was never appropriate and that the only appropriate procedure, having regard to the plaintiff'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. 74 I do not accept this submission. Whilst it may be the plaintiff's case that the operation which the third defendant decided to perform was never appropriate and that the plaintiff's condition should have been addressed by a shunt, I do not understand it to be the third defendant's position that a shunt ought never to be preferred. Mr Ingram drew attention to what the third defendant wrote to Mr Billing in November 1996 (annexure "B" to the affidavit of the third defendant sworn 17 August 1996). There the third defendant described ventriculostomy as "a preferred option for treatment of hydrocephalus secondary to aqueduct stenosis because it does not lead to dependence on a mechanical shunt system in the long term." However, contrary to the thrust of Mr Ingram's submission, it was not the third defendant's evidence that a shunt should never be undertaken. 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. 75 Professor Fearnside supports the evidence which Dr Besser gave to this effect. I referred earlier to the opinion of Professor Dan to the effect that ventriculostomy is "an excellent choice" where there are large ventricles (para 29 above). It is by reference to the films themselves that the size of the ventricles could be proved. 76 If this case was to proceed, no doubt the third defendant would seek to qualify an independent expert or experts to comment upon the appropriateness of the procedure he performed. Had the films been available it would have been important for any expert qualified to consider them before expressing his opinion. Absent such films, any such expert would be disadvantaged, and so too would the third defendant. 77 Turning to the absence of the films of 30 September, Mr Cranitch submitted that the plaintiff would not be challenging the seriousness of the haemorrhage or that it was present deep in the brain. The plaintiff would not be challenging the difficulty of the task that would have been presented in evacuating that haematoma. The issue about the haematoma was not where it was placed but whether it should have been left for as long as it was, or whether it should have been evacuated immediately. He submitted that whether the film was available or not did not resolve this question. What Mr Cranitch argued was that the plaintiff had lost the chance of a more successful evacuation procedure with less residual damage. 78 Whilst recognising that the plaintiff would seek to present her case in that way, I do not consider that lessens the importance which the films would have had. Those films would have been relevant not only to the assessment of the chance of success of immediate surgery but also to whether there was any real chance at all, and it follows as to whether immediate surgery would have been warranted. 79 In my opinion, the third defendant would suffer a real prejudice at trial because the films I have considered above are not available. 80 It is next alleged that the third defendant was negligent in proceeding with the operation on 30 September once, having performed the craniotomy, he first observed the blood ooze. The third defendant is now unable to recall what the factors were that bore upon his decision to continue with the procedure. In cross examination Mr Cranitch asked the third defendant these questions and elicited these answers (T 60): "Q. Would not the presence of blood when you opened the dura have caused you to have stopped to ascertain the extent of the hematoma and its whereabouts? A. Look, I can't remember my thoughts at the time but I saw some oozing of blood. I presume that wasn't enough to stop me from carrying on with the operation but I can't remember. Q. Would you agree with me that if there was a subarachnoid hemorrhage, which you seem undoubtedly to have diagnosed, it was ill-advised to have proceeded further with the surgery that you embarked upon? A. My interpretation was that it was due to the operation that was done two days earlier. The craniotomy was in the vicinity of the frontal burr hole and ventricular drain. Q. But that doesn't really answer my question. You might have known where you thought it was coming from but you had no idea of the precise nature of it, nor of its extent, did you? A. I can't remember my thoughts at the time, I just know that it wasn't enough to stop me from proceeding." 81 In his submissions Mr Cranitch argued that prejudice has not been proved on this issue and that this is not an area in which films assume any relevance. The third defendant's notes of 30 September record what he saw and the third defendant has the benefit of his notes as to this. He made a surgical judgment at the time, that much is evident, and there is no explanation he could advance other than that he considered it appropriate at the time. Mr Cranitch summarised the submission in this way: that the third defendant was not going to suffer prejudice because he failed to recollect why he embarked upon "indefensible conduct". 82 It does not follow from the fact that the third defendant does not now recall why he proceeded with the operation that he did not perceive at the time that there was good reason for continuing with it. The third defendant is prejudiced by not now being able to recall why he chose to proceed. 83 Both Mr Cranitch and Mr Ingram, in addressing the issue of prejudice, sought to minimise the significance of the missing films in the decisions reached and the procedures undertaken by the third defendant. For the reasons stated, I am not persuaded by those submissions. Moreover, as earlier observed, it is to be expected that the third defendant would seek to qualify an independent expert to express opinions bearing upon central issues in this cause if the matter was to proceed to trial. I referred earlier to the disadvantage any such expert would face, absent the films, when considering the appropriateness of the operation performed by the third defendant (see para 76 above). Moreover, any expert considering the allegation that the third defendant should have acted urgently to evacuate the haematoma would be disadvantaged by the absence of the films, consideration of which would have been relevant in determining not only whether the third defendant should have operated urgently, but whether had he done so the neurological damage could have been reduced, and if so to what extent. I am mindful in this regard of the evidence of Professor Fearnside considered earlier at paras 69-70. 84 In my opinion, the third defendant has proved that there would be significant prejudice to him if this claim against him was now allowed to proceed. 85 Evidence was adduced by the fourth defendant raising additional matters for consideration on the issue of prejudice. By reference to the hospital records, a list of doctors identified as being involved in the treatment of the plaintiff was prepared (see Annexure A to the affidavit of William Hawson sworn 1 March 2002). Six doctors were thus identified and five of those were located. It suffices for present purposes to observe that none of those doctors has any relevant recollection of the plaintiff or of her treatment (again see the affidavit of William Hawson sworn 1 March 2002). The sixth of these doctors was Dr Surachai, and according to the hospital records he was the doctor who assisted Dr Besser at the operation on 30 September 1982. Mr Hawson has been unable to locate Dr Surachai and the New South Wales Medical Board has no record as to his present whereabouts. 86 Whether there was a breach of the duty of care owed by the third defendant to the plaintiff is to be determined by reference to the circumstances and standards of 1982, and it is to be expected that proof of such circumstances and standards would less readily be available than proof of current circumstances and standards. The evidence establishes that at least two of the third defendant's peers in 1982 are now deceased. I refer to Dr Segelov and to Dr Vanderfield. 87 I am acutely conscious of the fact that the refusal of the plaintiff's application will have the consequence that her claim against the third and the fourth defendants will be at an end. However, it is not my task to balance the plaintiff's prejudice if her application is refused against the prejudice to the third and the fourth defendants if the application is granted: see Brisbane South (supra). Before I can make the order sought by the plaintiff, I must be satisfied that it is just and reasonable to order that the limitation period should be extended. It seems to me for the reasons stated that the third and fourth defendants have established that to grant the plaintiff's application for extension would result in significant prejudice to the defendants. It follows that the application must be dismissed. 88 There are motions for summary dismissal pending in this Court on the application of each of the third and the fourth defendants. Those defendants each seek orders for the review of the decision of Assistant Registrar Howe allowing the joinder of those defendants in the cause. 89 It is in the circumstances unnecessary to proceed with those notices of motion. Mr Cranitch properly acknowledged that if the plaintiff was unsuccessful with the extension application not only should her notice of motion be dismissed but an order should be made pursuant to Pt 13 r 5 that the proceedings against those defendants should be dismissed.

Formal orders 90 1. The plaintiff's amended notice of motion filed on 4 February 2002 is dismissed.

The proceedings against the third defendant and the fourth defendant are dismissed pursuant to Pt 13 r 5 of the Rules of Court.

I order the plaintiff to pay the costs of the third and the fourth defendants of this notice of motion.

The notice of motion of the third defendant filed 27 July 2001 is therefore dismissed.

The notice of motion of the fourth defendant filed on 6 August 2001 is also therefore dismissed.

I make no orders as to the costs on the notices of motion filed by the third defendant and by the fourth defendant. **********

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