FLETCHER v HAMILTON-GIBBS & ORS

The applications to extend the limitation period 3 It was necessary that Ms Fletcher obtain an extension of the limitation period which had by then long since expired and, for that purpose, a notice of motion was filed in this Court on 4 February 2002 seeking the relevant orders (the earlier proceedings). Studdert J concluded that the extension of time should not be granted and, on 1 October 2002, dismissed the notices of motion. In substance, Studdert J found that, in the events that happened and given the effluxion of time, it would not be just and reasonable to permit the proposed trial to proceed. On 4 May 2004 the Court of Appeal dismissed an appeal from his Honour's judgment: Fletcher v Besser & Anor [2004] NSWCA 132. 4 Sometime in September 2003, whilst going through the evidence in preparation for the appeal, Mr Billing noticed an entry in the cerebral observation chart that Ms Fletcher was decerebrate and had lost consciousness at 4pm on 27 September. Although he had read these notes before, this particular entry now struck him as being potentially much more significant than he had earlier realised. He brought it to Dr Fitzgerald's attention and asked about it. Dr Fitzgerald said that he had overlooked this entry when he had considered the hospital records for the purpose of giving an opinion about the adequacy of Ms Fletcher's treatment in the hospital at Dr Besser's hands. He gave an explanation (which was rather reconstruction than recollection) as to how this might have occurred, derived at least in part, from the misplacement in the correct order of a page of the case history notes. He also overlooked what he now regarded as another significant piece of evidence, namely the positioning of the burr hole for the ventriculogram which demonstrated, he said that Dr Besser was always going to undertake a ventriculostomy. Although it is difficult to accept, having regard to the detailed examination of the hospital records Dr Fitzgerald necessarily undertook when giving his initial opinion and evidence, that he overlooked what is now said to be a very significant symptom, I am minded to do so. It is one thing to read something and quite another to appreciate its significance, especially if (as it were) one is on the hunt for something else. One must allow for ordinary human failings: even Homer nods. At the same time, the rules that distinguish between fresh and new evidence exist for perfectly sensible reasons of policy and justice. Here, it is incontestable that the evidence was available at all material times and reasonable diligence would not have overlooked it. 5 When Dr Fitzgerald reconsidered the course of the plaintiff's care in light of the now appreciated entries, he opined that the hospital and Dr Besser were negligent in other respects than those which he had earlier identified. Ms Fletcher now wishes to sue for that other alleged negligence and, on 10 October 2005, filed a further notice of motion (now an amended notice of motion dated 5 December 2005) seeking an extension of time to enable her to do so. On the her behalf it is argued that the case now sought to be established is significantly different from that considered by Studdert J, so that the prejudice thought by his Honour as having arisen and which led to his refusal of the previous application was no longer applicable. It is further contended in substance that, if a fair trial of the second case can be had, the old case in some respects should also be tried given, as I understand the argument, the connecting features of the relevant events. An additional argument is advanced justifying an extension of time to try the whole of the old case on the ground of some additional evidence that was given in the present proceedings which, it is submitted, showed that a critical factual conclusion underlying Studdert J's refusal of leave was incorrect. 6 The case now sought to be brought against the hospital and Dr Besser (the second case) is that attempts to relieve the intercranial pressure suffered by Ms Fletcher by inserting a drain should have been undertaken as soon as the CT scan confirmed aqueductal stenosis, certainly by 24 September 1982, that further investigations should have been carried out following the loss of consciousness and decerebrate events on 27 September, that no surgery should have been attempted on 30 September and a shunt rather than a ventriculostomy should have been performed on 30 September. The first three allegations of negligence are related and may be termed the failure to drain case. It will be seen that it is also sought to resurrect the choice of operation case, this principally on the basis of evidence given by Dr Besser that, it is contended, differed markedly from that given by him before Studdert J or otherwise that the circumstances are so linked that, if the second case is allowed to proceed, the old case should be also permitted. Insofar as the hospital is concerned, its negligence either arises from the failures of its staff to bring relevant matters to Dr Besser's attention or Dr Besser's alleged failures. 7 The respondents concede that there is a prima facie case of negligence against them but, of course, this is not to suggest that, on a fair trial, negligence will actually be found. In substance it is argued that, in the circumstances, a fair trial cannot now be undertaken.

The significance of the earlier proceedings 8 As is obvious, it is not easy for a party who has once been unsuccessful in respect of an interlocutory application to obtain a favourable result on a second application made on substantially the same grounds. In this case, Studdert J had decided that the negligence particularised in the statement of claim as it stood at the time of his consideration of Ms Fletcher's application for extension of time raised matters for determination in respect of which the prejudice against the first and second respondents was such that the trial would not be fair. Ms Fletcher deals with this problem in three ways: firstly, it is contended on her behalf that further material has come to hand which raises new allegations of negligence in respect of the litigation of which the matters held by Studdert J to be prejudicial are of no or relatively little significance; secondly, it is contended that, because the first respondent changed his stance in relation to one aspect of the prejudice found by Studdert J, what was considered by his Honour to cause unfairness can now be seen as not doing so; and thirdly, if the second case is to proceed, the evidence as recently interpreted that supports it reflects also on the choice of operation question and the balance as perceived by Studdert J (and approved by the Court of Appeal) is varied sufficiently for a trial on that question to be seen as able to be fair. 9 The significance of a prior determination on an application for extension of a limitation period was discussed in Nominal Defendant v Manning (2000) 50 NSWLR 139. In that case, the plaintiff applied under the Motor Accidents Act 1988 for leave to commence an action out of time for damages for injuries suffered in a motor vehicle accident. That application was dismissed. The plaintiff then made another such application to another judge which was supported by evidence that was available at the time of the earlier application but, as it happened, was not presented. The second application succeeded although certain heads of damages were excluded from the permitted claim. In substance, the first application was refused upon the ground that the delay had not been sufficiently explained. Amongst the material presented in the second application was what the judge found constituted a full and satisfactory explanation for the delay and his Honour went on then to consider whether it was fair and just that the leave sought by the application should be granted. He thought it should be granted in some respects. 10 The unsuccessful defendant appealed to the Court of Appeal contending that, in principle, the second application should have been dismissed because it was supported by new evidence which with due diligence should have been put before the judge in the first application and there was no evidence of any change of circumstances between the making of the two applications. Foster AJA, after a view of the authorities, concluded that, although it was right to severely criticise the failure of the plaintiff's legal advisers to produce evidence explaining the delay in the first application, the making of the second application which included that material should not be regarded as constituting an abuse of the Court's process and went on to say (50 NSW LR at 167) - "[123] … It was not necessary [in order to admit and consider the fresh evidence] that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view…apparent…that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate costs order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course. [124] I should add that, in my opinion, no additional fact was demonstrated in the present case which could cause the second application to be an abuse of process. It was not simply a repetition of the previously failed application. It was, quite clearly, a genuine endeavour to repair the deficiencies in the first application. It was not a case of 'hawking' the application from judge to judge in a search for a successful outcome. It may be noted, of course, that it was only a second application. A third application following upon two previous failures might well enter the area of abuse of process."

His Honour then went on to consider the question of prejudice, rejecting the appellant's contentions in this regard. The question of prejudice is very much in issue in this case and it will be necessary to deal with it in due course. 11 In dealing with the issues arising from the repetition of the application for leave to institute proceedings, Heydon JA said (50 NSWLR at 154) - "[67] … A second application without additional evidence would smack of judge shopping and be unlikely to succeed. If at a second interlocutory hearing new evidence is called which could have been called earlier, the absence of a satisfactory explanation for the failure to do so is a factor increasing the risk of dismissal. Another relevant factor would be whether in the second hearing the court was invited to revisit questions of law which had been fully argued. Yet another relevant matter would be whether in the second hearing the court was being invited to reopen factual matters investigated in and decided after cross-examination in the first. However, in Hartigan v International Society for Krishna Consciousness Inc [1999] NSWSC 139 at [9] Bryson J said: '… The need for maintaining finality and preserving the understanding of litigants that there is finality of hearings at which the merits are determined and a judgment is given is less pressing in interlocutory appeals.' That point of view in relation to appeals is preferable to the position enunciated thus by Hayne JA in relation to interlocutory hearings at the primary level in D A Christie Pty Ltd v Baker [1996] 2 VR 58 at 602: 'Respondents to applications under s 23A are as entitled to the final and certain determination of questions relating to extension of time for commencing proceedings as they are to the final and certain disposition of any action that may be instituted against them.' Respondents have a very strong entitlement to finality once a trial on the merits has occurred and all appellate processes are exhausted, and their entitlement is protected by the various doctrines related to res judicata . But their entitlement to finality is less compelling in relation to applications to extend time with a view to ensuring a trial on the merits in due course. [68] Bryson J noted in the case before him that Ms Fletcher had not filed any affidavit in the hearing before the Master. He continued (at [11]): 'Where something of such glaring and primary importance as Ms Fletcher's own account of her use of time has been omitted, confidence that the proceedings have been disposed of on a just basis cannot be very strong. The sense that there may well have been a miscarriage of the proceedings, even one for which Ms Fletcher or those advising her are the only persons who bear responsibility, appear so strong as to favour admitting her evidence now that it is belatedly brought forward. It is not appropriate to allow procedural mismanagement to have unduly serious consequences, although finally they can be so extreme as to merit closing out a party from consideration.' The same principles are applicable where the question is whether a second interlocutory application should be permitted after the first one has failed. [69] In Meddings v Gold Coast City Council [1988] 1 QDR 528 at 529, Macrossan J said there was a right to make a second application to extend limitation periods, but did not say what discretionary factors were relevant, and (at 536) McPherson J said of Ms Fletcher in that case: 'There is in theory nothing to prevent her from making another such application on the same or similar material, even in practice such an application would almost certainly fail.'" 12 Heydon JA went on to deal with the relevant discretionary considerations (50 NSWLR 156-7) - "[72] Nothing in the above reasoning…is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in the second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky … [a] litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid. [73] But the risk of the evils must be balanced against all of the circumstances of the case relevant to whether it is fair and just that leave should be granted, and in particular whether a trial which is just and fair for all parties can be held. It must be remembered that the present context concerns the issue of whether an Ms Fletcher for an extension of a limitation period will ever be able to have the case considered on the merits: failure in the application will prevent any judicial examination of Ms Fletcher's substantive claim, which may in turn have catastrophic consequences for Ms Fletcher and Ms Fletcher's family… Further, while in Henricks v Agsecond (1997) 26 MVR 277 at 286, this Court questioned whether Ms Fletcher's blamelessness for delay was relevant on the issue whether a just and fair trial was possible, it would appear to be relevant to whether a second application to extend time should be permitted in the sense that blameworthiness would tell against Ms Fletcher and blamelessness may tell in favour of Ms Fletcher. Thus the reasons why the first application failed may have nothing to do with Ms Fletcher personally: Ms Fletcher's legal representative may have been incompetent, or may have been ill or unavoidably absent; a vital witness may have been prevented from attending or may, contrary to all legitimate expectations, have failed to attend or to come up to proof; evidence may have been rejected because of defective service which was not the fault of either Ms Fletcher or Ms Fletcher's legal representative. The possible factors which might cause failure in the first application but which might be capable of remedy in a second are wide in range. The position for which the Nominal Defendant contends must be rejected because it does not allow for an evaluation of any of them…"

Mason P concluded that, to the contrary, Ms Fletcher was guilty of an abuse of process in making a second interlocutory application. 13 Ms Fletcher now seeks to extend time to commence proceedings resting on allegations of negligence differing (with one exception) from the allegations sought to be brought forward in the earlier proceedings. These allegations are not merely different characterisations of the same acts or omissions but different acts or omissions. The evidentiary basis for the second case is contained in the hospital material that was relied on for the earlier case and was the subject of extensive evidence before Studdert J. The material upon which the second case relies (I accept) was either not seen or not understood and hence did not form part of the case considered by Studdert J. Ms Fletcher, however, did not completely give away the contention that the earlier case should be reconsidered either on its merits alone or because, if Ms Fletcher succeeds in persuading me that she should be entitled to litigate the present case, it is contended that there is no good reason for not permitting her to obtain a reconsideration of the question whether the first case should also be litigated providing, of course, that she is able to establish that the defendants can have a fair and just trial. To this (ancillary) contention Ms Fletcher now adds that, in giving evidence in the present proceedings Dr Besser conceded matters which he had denied in the earlier hearing or, at least, which Ms Fletcher was unable to prove in that hearing and that this constitutes an additional ground for permitting her not only to re-litigate the case made before Studdert J but to succeed in obtaining an extension of time enabling her to litigate her first case. It is therefore necessary to deal, in some detail, with the case made before Studdert J and the evidence led before him, to contrast that case with the case presently made and the two sets of alleged acts and omissions which, it is contended, provide the bases for the two cases for negligence now sought to be brought forward.

The first case 14 The particular events forming the basis for allegations of negligent care were as follows. The CT scan of Ms Fletcher's head performed on 23 September 1982 demonstrated a very marked hydrocephalus due to aqueductal stenosis. On 28 September 1982 Dr Besser either himself inserted or supervised the insertion of a ventricular catheter via a frontal burr hole and a ventriculogram was performed confirming the diagnosis. The catheter was left in situ allowing for the drainage of CSF. On 30 September 1982 Dr Besser carried out a right-frontal craniotomy and ventriculostomy. This is a procedure which allows drainage of CSF from the ventricles into the subarachnoid space which decompresses the ventricles and therefore returns intercranial pressure to normal. 15 At about the time of the surgery, and (as Studdert J found) probably because of it, Ms Fletcher suffered a large deep intra-cerebral haemorrhage away from the operation site. On 12 October 1982, Dr Besser carried out a craniotomy to evacuate the haematoma. Ms Fletcher was left severely disabled with left-sided hemiplegia. Her case was that these subsequent neurological deficits were caused by the cerebral haemorrhage which caused dangerously raised intercranial pressure and required urgent surgical drainage. Ms Fletcher's case, supported by evidence from Dr Fitzgerald, a neurosurgeon practising in the United States of America was, in essence, that Ms Fletcher should have been treated in the first instance by the use of a ventricular shunt and not by ventriculostomy, that when Dr Besser sighted blood shortly after the operation on 30 September 1982 began, he should not have continued with the ventriculostomy and that as soon as the haematoma had been observed, it should have immediately been evacuated. It appears that Dr Besser had stated that the cause of the haemorrhage, though unclear, was probably due to sudden ventricular decompression. 16 Generally speaking, a shunt procedure is less likely to cause a haemorrhage than a ventriculostomy. Studdert J found and, it seems to me if I may say so with respect, rightly, that material provided by Dr Fitzgerald is sufficient, though perhaps barely, to establish for the purposes of the extension application that Ms Fletcher's case was capable of establishing negligence in Dr Besser and the hospital. The evidence of Dr Besser before Studdert J was, as summarised by his Honour, (see [2002] NSWSC 899 at [60] ff) that the anatomy of Ms Fletcher's ventricular system would have influenced his decision as to the type of surgery to be undertaken. The size of the ventricles and their shape, especially that of the third ventricle, were of crucial importance. It is true that Dr Lamond's report described the size and shape of the third ventricle as enlarged but not how large it was. The larger the ventricles, the more favoured would be ventriculostomy over a shunt. This is plainly a matter for nice surgical judgment. 17 Another relevant distinction - although not, I think, material to the radiology - is that a shunt, because it is permanently inserted in the patient's brain, is subject to various mechanical complications over the patient's lifetime whereas a ventriculostomy had the substantial advantage of healing the condition without a permanent artefact in the patient's head. Dr Besser agreed that a ventriculostomy has a higher initial risk but had the countervailing advantage to which I have referred. 18 The second surgical issue arising from Dr Fitzgerald's opinion concerned the need to evacuate the haematoma as soon as it was detected. The CT scan carried out on 30 September 1982 and reported on in Dr Besser's own notes, showed the presence of a large, deep, intra-cerebral haemorrhage in the right hemisphere, away from the site of the operation and deep in the right parieto-occipital region. The scan was followed by an angiogram on the following day. The CT films, again, are now not available. Studdert J accepted Dr Besser's evidence that he could not recall why he did not immediately attempt to evacuate the haematoma but there were a number of reasons why such a postponement would have been appropriate. Firstly, the surgical evacuation was scheduled for 7 October 1982 (namely, five days before it was actually undertaken) but was postponed because Ms Fletcher had a fever. Dr Besser said that, at the present time, he would have been inclined to wait ten days at all events to enable to bleeding the solidify but he is unable to recall what reasons he had at the time for not acting earlier. He said, and Studdert J accepted (as, for that matter, do I) that he would have been influenced in the decision that he made on 30 September 1982 not to immediately evacuate the haematoma by the films that had been taken on that day. The medical issues created by the presence of the haematoma, which I have briefly described as coming from Dr Besser's evidence, were confirmed in some greater detail by Professor Fearnside. Professor Fearnside, in his evidence, unfavourably contrasted the report on the CT scan with the information available from an actual examination. Studdert J accepted that in respect of this second issue of negligence, the CT scan films of 30 September were important in considering the timing of the operation and the prospects of the procedure hence since as to both of these issues the size and location of the haematoma were of particular importance. 19 The third issue was the continuation of the ventriculostomy despite observation of oozing blood. Here, the problem for Dr Besser was, in substance, that he simply could not recall why he continued with the operation despite seeing the blood. All he could say was that he thought it right to continue with the procedure. 20 Although there are other matters of prejudice alleged by Dr Besser - and by the hospital as it happens - the principal demonstrated prejudice (as distinct from presumptive prejudice) was, as I read Studdert J's judgment, the absence of the CT films. I should mention that it seems to be accepted that Dr Besser's practice in difficult cases (and there is no doubt that this was a difficult case) was to discuss them with senior specialist colleagues he identified as Dr Segelov, Dr Vanderfield and Dr Johnstone. Dr Besser did not recall whether he did so, but it may easily be accepted, I think, that it was likely that he did. Dr Segelov and Dr Vanderfield had long since died whilst Dr Johnstone had retired. At all events, it would be most unlikely that these doctors - were they able to give evidence - would now have any recollection of this particular matter. This is rather an illustration of the problem of presumptive prejudice though it is nonetheless real and, I think, significant. 21 A much more comprehensive account of the evidence is given in the judgment of Studdert J and also in that of Bryson JA in the Court of Appeal: Fletcher v Besser & Anor [2004] NSWCA 132. I do not think it is necessary for present purposes for me to repeat that material or to expand on it. 22 In brief, Studdert J considered that the absence of the CT films significantly disadvantaged Ms Fletcher's defence and that this, together with the ordinary failures of recollection, the inability to obtain evidence of contemporary consultations with colleagues and inform present experts sufficiently to enable convincing opinions to be given on the correctness of the decisions made by Dr Besser as to the treatment of Ms Fletcher, precluded acceptance of the contention that a trial of the case against him or the hospital could be fairly conducted. The Court of Appeal came to the same conclusion.

The present case 23 As summarised by counsel on Ms Fletcher's behalf, the present claims of negligence against Dr Besser are - (i) he should have inserted a drain as soon as possible after the CT scan was performed on Thursday 23 September; and (ii) he should have had further investigations carried out on and after Ms Fletcher lost consciousness and became decerebrate around 4pm on Monday 27 September. 24 The hospital is vicariously liable for Dr Besser's negligence, if any, and may be additionally negligent if (as seems likely) the decerebrate event was not brought to Dr Besser's attention. 25 As I understand it, it is contended on behalf of Ms Fletcher that it should have been appreciated that the raised intracranial pressure was causing acute symptoms requiring immediate relief and steps to drain the CSF should have been taken as soon as the CT scan was examined on 23 or 24 September. This first significant drainage would have reduced the size of the ventricles, including the third ventricle, which needed to be kept large for a ventriculostomy, which could not then have proceeded. Since the haematoma, it is accepted on all sides, resulted in all likelihood from the ventriculostomy, it would not have occurred had that operation not taken place and thus the major consequential injury would probably have been avoided. (I interpolate that this seems to raise a distinct problem of causation but I need not deal with it, in light of my view about the proper outcome of the application.) 26 Whether the line of reasoning which, as I understand it, Ms Fletcher wishes to litigate, is persuasive, it seems to me that, on the evidence of Dr Fitzgerald, it is at least arguable. It will be seen, however, that one aspect of the case rests upon the hypothesis that Dr Besser was aware of the decerebrate event. I have concluded that, in all probability, this was not brought to his attention and I do not understand it to be submitted that it was negligent for him not to have personally examined the chart if he was not informed of any problem. If it is a crucial step in Ms Fletcher's second action that Dr Besser knew or ought to have known of the decerebrate event, this must impinge upon the assessment of the prima facie case of negligence. So far as the hospital is concerned, if it be probable that the information was not conveyed to Dr Besser, and it was important (or probably important) in the sense for which Ms Fletcher contends, then the case of negligence against it is obviously strengthened. However, this rather depends on the inferences fairly available from the hospital notes and an assumption as to their completeness and reliability.

The hospital records 27 The second case is, in substance, that Ms Fletcher required emergency rather than emergent treatment and thus attention has focused on the signs and symptoms, not only in the history she gave as to her condition before admission but also to the observations made at the hospital, in particular those noted in the cerebral observation chart. In this section I deal with the records in a general way. When I deal with the second case in detail, it will be necessary to mention other matters disclosed in the records upon to which particular reference is made in evidence or in the submissions. 28 On 20 September 1982, Ms Fletcher was referred by her general practitioner to Dr Wylie, a specialist gynaecologist, who referred her to Dr Gordon, a consultant neurologist in Orange for neurological management. She was admitted to Orange Base Hospital on 22 September 1982. Dr Gordon thought that there was strong evidence of a frontal tumour and made arrangements for her to be transferred to Royal Prince Alfred Hospital under the care of Dr Besser for further neurological management. Dr Gordon's report concluded - "I felt that she had evidence of raised intercranial pressure and in view of the symptoms and physical signs I felt it most likely she had a parasagittal frontal lobe tumour or alternatively a posterior fossa lesion with hydrocephalus. I felt in view of the rather long history and the accompanying urinary incompetence a frontal lobe tumour was more likely. I discussed her case with Dr Michael Besser a neurosurgeon at Prince Alfred Hospital in Sydney and I commenced her on Dexamethasone and arranged for her transfer to Sydney …" 29 The outpatient notes of the hospital show that Ms Fletcher arrived at 12.30pm on 23 September 1982. A note on the clinical record shows that, when she was admitted, Ms Fletcher was vague, oriented and emotionally labile. She was thought to be mildly dysarthric and examination of the optic fundi confirmed the presence of bilateral papilloedema. Power in her arms was normal but there was a mild weakness of hip flexion in the legs. Reflexes were brisk and had been identified by Dr Gordon and her plantar responses were flexor. She had an ataxic gait. A CT scan of Ms Fletcher's head was undertaken on 23 September 1982. It was reported on by the radiologist, Dr Lamond, as follows - "The examination has been performed with and without contrast. 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 artefact and are less than perfect but I cannot identify any posterior fossa lesion. A foramen magnum slice shows some high density in the inferior part of the medulla but it is not reproduced elsewhere. I do not think that it represents haematoma. I think that the signs indicate that the patient has aqueduct obstruction of long standing which is probably now more obstructed." 30 When Ms Fletcher came into hospital she was initially seen by Dr Caldwell who took a history and conducted an examination. His notes form part of the hospital record. It appears that following his neurological examination, Dr Caldwell formed the impression that Ms Fletcher was suffering from a cerebral tumour and queried the presence of a low lesion with a blocking of the ventricular system. Having formed this impression his note says, "For CT scan" and blood tests. This next page shows the apparent outcome of those tests which had been noted by Dr Caldwell. It is following these notes that a treatment plan is set out. Again, Dr Caldwell signed off on the notes. There is then a reference to his taking a measurement of Ms Fletcher's head circumference and that she should undergo an eye examination. This also is signed off once more. It seems certain that the measurement of Ms Fletcher's head circumference was made at the request of Dr Besser but, of course, it does not follow that Dr Besser had seen Ms Fletcher by this stage. It is, I think, very likely that the notes of the blood results, the plan, the head circumference measurement and eye examination were made on 23 September though the page itself is undated. Dr Besser thought it likely that those events occurred on 23 September. Dr Besser agreed that a junior doctor in Dr Caldwell's position would not have formulated the plan without discussing the patient with him. Furthermore, Dr Besser inferred from the reference to the head circumference which was of interest to him but would have been of no interest to Dr Caldwell, that it had been done at his request and, he thinks almost certainly, he would have seen Ms Fletcher on the 23rd. Furthermore, he thought that he would have seen the CT scan by that time because he would have needed to look at the scan to indicate the plan which was noted by Dr Caldwell. 31 The notes do not mention Dr Besser as having seen Ms Fletcher on that day but I think it is more than likely that he did. This is for two reasons. The first is that Dr Besser had already discussed with Dr Gordon the circumstances of Ms Fletcher's admission, was therefore aware that she was coming in and, as he said, his usual practice in those circumstances was to see the patient at an early stage to give some assurance to the referring doctor that the patient was being properly looked after. Secondly, there is a note on the record of the circumference of Ms Fletcher's head. It is the unusual nature of this examination which persuades Dr Besser that it was done by him though possibly at his direction. 32 The notes refer also to a three-step treatment plan, namely, the transfer to the operating theatre on the following Tuesday for a burr hole to be made, in the afternoon an isotope study to be undertaken and on Thursday "definitive surgery". In this context, definitive surgery is surgery aimed at attempting to cure and correct the patient's condition as distinct from diagnostic surgery aimed at attempting to explain it. It appears to be common ground that Dr Caldwell, an intern, was not of sufficient seniority to have proposed the management plan and that this was agreed to in consultation with Dr Besser. Strictly speaking, of course, Dr Besser's presence was not necessary for the management plan to be formulated but, on the whole, I think that he had more probably than not been present and seen Ms Fletcher or, at the very least, had discussed her case with Dr Caldwell. 33 There is no doubt that Dr Besser saw Ms Fletcher on 24 September, the notes stating that he did and Dr Besser accepting that he did so. Those notes (signed by Dr Caldwell) reiterate the management plan with some additional detail but omit - possibly significantly - the reference to surgery. The next note is made on 27 September by Dr Worthington stating that Ms Fletcher was to undergo a burr hole and ventriculography the following day. 34 The nurses' notes have entries for 24, 25, 26 and 27 September describing Ms Fletcher's condition but making no reference to any doctor's attendance. An entry made at 9pm on 27 September said that at about 4.00pm Ms Fletcher suffered a loss of consciousness "for approximately two minutes". Her pupils were dilated and fixed. At 4.15pm her pupils were still dilated but were then reactive. The resident medical officer was informed. The nursing notes Ms Fletcher was "transferred to NS3 at 10.00pm with ? cerebral turn". The cerebral observation chart is somewhat more dramatic. The note made at 4.00pm is that Ms Fletcher was unconscious, her pupils "(?) dilated and fixed" and she was "decerebrate". At 4.15, she was noted as spontaneous and, although her pupils were dilated they were reactive. The "comments" column is left blank although it is in this column that the "decerebrate" entry was made at 4.00pm and an entry of "orientated" is made at 5.15pm. Returning to the nurses' notes, on 20 September 1982 Ms Fletcher is noted to have apparently had little sleep through the night; Glasgow coma scale observations were commenced and remained optimal "although Pt seems somewhat drowsy and slow". At 9.45pm the observation was made that Ms Fletcher appeared to be becoming increasingly drowsy with a Glasgow scale varying between 14 and 6. Again, the resident medical officer was notified. It was noted that she had normal power in her limbs and obeyed commands though with decreased alertness. On the following day at 4.20am Ms Fletcher was noted as "still … [illegible] groggy". 35 As appears from what I have said above the only evidence of decerebration is the cerebral observation chart. A decerebrate event is marked by dramatic physical symptoms easily observable and unlikely to be mistaken. Accordingly, Ms Fletcher submits that the reliability of the observation ought not reasonably to be doubted. The relevant note also refers to a loss of consciousness at this time. However, the nursing notes for 27 September state that Ms Fletcher had a "satisfactory day" with other entries being unremarkable. The note at 9pm does not refer to it but does refer to unconsciousness for two minutes at 4pm, with the next observation being made at 4.15pm. There is room for real doubt about what actually occurred. 36 We know, from the report of Dr Lamond, the radiologist, that a CT scan was conducted, as I have pointed out, on 23 September but, as it happens, the hospital notes make no mention of the undertaking of this procedure except prospectively. The importance of interpreting the CT scan for the purpose of enabling Dr Besser to understand how he came to formulate his management plan was not only a significant issue in the earlier proceedings but also in the present proceedings. To a significant degree, this was accepted by Studdert J and was one of the main reasons relied on by his Honour for refusing to extend time. Amongst other things, it is urged on Dr Besser's behalf that because those CT scans are now missing he is unable to fairly answer the second case that is made against him by Ms Fletcher. Mr King SC for Ms Fletcher, referring to the absence of any mention of the scans in the notes of 23 September and an entry in the nurses' notes at 10.30pm that the patient was admitted "… for CT scan" argues that, although it might have been conducted on 23 September as Dr Lamond's report states, this was after Ms Fletcher had been seen by Dr Besser and the treatment plan noted. I think this evidence is too slight a basis to justify the conclusion for which Mr King SC contends. 37 Following the operation of 30 September, Dr Besser made the following note - "… This thirty six year old lady had a history going back at least a year which consisted of dizziness, ataxia and most recently incontinence. As well, her husband related the onset of mild dementia and confusion recently. Examination revealed bilateral papilloedema and gross ataxia. Subsequent CT scan showed gross hydrocephalus due to aqueduct stenosis. 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 burr hole and ventricular catheterisation was performed two days earlier and a Metrimizide 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. The day before the procedure Mrs Fletcher was quite drowsy but I felt that this may have been due to overdrainage of CSF."

The note then describes the operation itself, which is irrelevant for present purposes. 38 Much is made of this note, not so much for what it says as for what it does not say. I deal with this discussion in due course. 39 It is obviously not altogether safe to assume that records are complete. Common experience shows, especially where people are under stress - including of course doctors and medical staff - that a record might not be made even of important matters. One often sees notes of events made some time after the event itself. This is itself likely to reduce accuracy. Sometimes, I have no doubt, it might be intended to make a note but, in the hustle and bustle of busy work, it is forgotten. Moreover, it is often dangerous to draw a positive conclusion from a negative circumstance. Mr King SC rightly points to the importance of taking notes of all-important observations but this is, as any realistic view must recognize, a counsel of perfection. Some matters are unlikely to be the subject of notes, such as informal discussions between colleagues. Nor is it necessary or, perhaps, desirable, that notes be made of all potential medical issues resolved by the actual events themselves. Notes are also made in a particular context. Thus, although the nurse's note said, following admission to the ward at 10.30pm on 23 September, "For CT scan", Dr Besser interpreted this note as not indicating whether the CT scan had occurred or not on that day. He said that the process was, at the time, that almost certainly Ms Fletcher would have gone from the emergency department to the scanning department and then to her ward and that scans were not done at that time of night from the ward unless it was an emergency. This interpretation is reinforced by the absence of any mention elsewhere in the notes about Ms Fletcher leaving the ward to go for a CT scan. Amongst other things, this shows that notes are always made in a context and that it is sometimes dangerous to draw inferences from notes absent knowledge of that contemporaneous context.

Evidence about the records 40 Dr Besser agreed that the history recorded by Dr Caldwell, in substance conveys the information that, whilst some of the patient's symptoms historically were essentially chronic or longstanding, they were associated with some recent more severe and significant symptoms. Dr Besser agreed that this history of itself meant that Ms Fletcher required drainage to eliminate the risks from the perpetuation of the raised intercranial pressure, but opined this could take place within a few days of admission and was not immediately necessary. I take it that this opinion rested upon both the clinical picture as shown in the notes but also - and I am minded to believe - on the fact that he did not institute emergency drainage, which reflected his then view of the case. The need to reduce intercranial pressure by drainage was not the immediate object of conducting the ventriculogram. Although the ventricular catheter had this effect, complete drainage is not wanted because it is important that the third ventricle be kept large for the purpose of undertaking the ventriculostomy. In a letter to Ms Fletcher's solicitor on 12 November 1996, in answer to the question: "What was the purpose of the ventricular catheter?" Dr Besser answered - " The purpose of the ventricular catheter was both to perform a ventriculogram in order to find the cause of the hydrocephalus and also for analysis of CSF to ensure that there is no chronic infection ."

The next question specifically went to drainage - "2. Is it meant to drain CSF? The purpose of the ventricular catheter was to perform a ventriculogram but the ventricular catheter was left in situ because of the extent of the hydrocephalus and concern that the patient's clinical status may deteriorate due to her obvious obstruction of CSF pathways. It was not inserted to drain any specific quantities of CSF. There is no relationship between this and Mrs Fletcher's intercerebral haemorrhage which was subsequently documented following the craniotomy ."

The last sentence in the above passage was directed to the then understood cause of Mrs Fletcher's disabilities following the operation. 41 Some drainage was of course an inevitable outcome of inserting the ventricular catheter. It was not (and could not be) suggested to Dr Besser that he was unaware of this or had overlooked it at the time: it was, as it were, a given. Although it is true that the questions of Mr Billing directly raised the purpose of the catheter and whether it was meant to drain CSF, the context was a series of questions directed to the doctor for the purpose of preparation of a case against Dr Hamilton-Gibbs and Dr Durey (her general practitioners) claiming damages arising out of their alleged failure to diagnose her condition or refer her to specialists for diagnosis and treatment. It is apparent that he also had in mind that Ms Fletcher's condition resulted from the cerebral haemorrhage and wished to make the point that the catheterisation had not caused that haemorrhage. If the question whether it was imperative as a matter of urgency to drain the CSF, as distinct from leaving that to occur in the course of conducting the ventriculogram were raised, that would have directed Dr Besser's attention to the particular issue. I think that Dr Besser's answer should be interpreted as a reference to the primary purpose of the catheterisation. The letter may be important as showing that Dr Besser's attention was brought to the purpose of the ventriculogram as he recalled in 1996, sometime earlier than the issue was raised in the present application. 42 Dr Besser was taken to the cerebral observation charts showing that on 27 September 1982 Ms Fletcher lost consciousness and seen to decerebrate. It also showed that, at 4pm on that day, her pupils were fixed and, at 10am on that day, although reactive they were sluggish. On the charts for 23, 24, 25 and 26 September there were notes from time to time that the pupils were sluggish, fixed and very sluggish. Dr Besser agreed that sluggish reaction of pupils and fixation of pupils can indicate raised intercranial pressure but pointed out that, during this time, she was also observed to be orientated and alert, illustrating that her condition was a dynamic one and the problems caused by raised intercranial pressure are very much matters of degree. Even so, sluggishness of the pupils and fixation of the pupils, if present, were together with the decerebrate events indications of deterioration. So far as the apparent inconsistency is concerned between sluggish reactivity of the pupils, and indeed, different reactivity of right and left pupils on the one hand and, on the other, the patient remaining alert and orientated, he thought that in Ms Fletcher's case this was due to the dilation of the back end of the third ventricle pressing on the upper part of the brain stem in the tectal plate area, noting that the ventriculogram showed a dilated supra-pineal recess - which impinges on the tectal plate. Of course, this did not mean that she did not also suffer in this respect from the effects of raised intercranial pressure. Dr Besser pointed out that, at all events, quite apart from a decerebrate event, there were many other things in Ms Fletcher's history that suggested raised intercranial pressure at the time, as I understand his evidence, she was admitted to hospital. 43 Dr Besser agreed that the occurrence of the decerebrate event with loss of consciousness was very serious, indeed, potentially fatal and, furthermore, if the patient were untreated there is - and I suppose this is obvious - increased risk of further episodes. Dr Besser agreed that the decerebrate event of 27 September was a further serious deterioration in Ms Fletcher's condition. 44 There is a live question whether the decerebrate event was brought to Dr Besser's attention. Certainly, there is a note that the RMO was informed but no record of any attendance or what, if anything, he did with the information. One explanation may have been that, as the notes show, Ms Fletcher apparently recovered rather quickly and the RMO (assuming he was in fact informed) may have thought that the observation did not warrant any action at that stage. Dr Fearnside expressed the view that a decerebrate event was a serious matter which should have been brought to the attention of Dr Besser. Dr Besser said that, had he been informed of it, he expected that he would have done something about it. Dr Besser's operation report says nothing about the decerebrate event and his evidence was that had he been aware of it at that time he would have mentioned it, although he could not exclude the possibility that he simply overlooked doing so. Dr Besser agreed that his practice at the time would have been to see the patient every day except perhaps on Sunday, together with the registrar and the resident medical officer and the nursing staff. However, this does not mean that he necessarily inspected the cerebral observation charts because he would have relied on the junior staff to keep him abreast of the situation. Dr Besser would have examined the patient and spoken to her. He assumed that he would have been made aware of progress as shown in the cerebral observation charts but does not recall whether this happened. In my view, the likelihood is that the decerebrate event was, for whatever reason, not brought to Dr Besser's attention. Indeed, as I understand the case, this is conceded by the applicant. 45 Dr Besser agreed that it may have been that, had he been made aware of the decerebrate event with loss of consciousness, he would have performed a burr hole and drainage on the afternoon or evening of 27 September rather than the following morning: in short, he would have seen to it that there was some definite drainage capable of achieving a marked reduction in intercranial pressure. Had this occurred, he agreed that it would have been likely that the craniotomy and ventriculostomy would not have gone ahead on 30 September because of the ensuing reduction in the size of the third ventricle due to the drainage. If the cause of the haematoma was the sudden decompression caused by the ventriculostomy - which seems to be accepted - avoidance of this procedure may have meant that the haematoma with its consequential damage, might not have occurred. Both Professor Fearnside and Dr Besser stated that there may well have been additional features of which they were unaware that might have given rise to the haematoma but there is no suggestion, as I understand it, that the missing films informed these possibilities. 46 The ventriculogram showed that that third ventricle was replacing pituitary tissue and expanded the fossa and that the supra-pineal recess was "huge". As Dr Besser said, these are the usual results of severe hydrocephalus showing that it had been present and growing for a very long time and had reached an extremely severe point. He agreed that pathology of that kind is completely consistent with the onset of recent severe symptoms indicating that there could be a further severe deterioration almost at any time unless a ventricular drain is present. 47 The medical issues, or at least a general description of them, is usefully summarised, I think, in an answer given by Dr Besser during cross-examination - (T p16 14/12/07 line 26) "Q. Just in relation to this decerebrate event the CAT scan of 23 September, by that I mean the missing films, speak of the pathology four days earlier, you accept that? A. The report of the CAT scan, is that what you're saying? Q. What you'd see on the films would tell you what the pathology was on 23rd? A. No, I disagree with that. Look, this patient came along with symptoms and signs of raised intracranial pressure. The CAT scan showed that the ventricles were very, very dilated and yet we have a head circumference which is in the normal range so this means the patient wasn't born with ongoing hydrocephalus. Q. Dr, may I interrupt you -- A. If I could just continue for a second - and then the CAT scan report says the fourth ventricle is not seen. Now, the classical diagnosis of hydrocephalus by a radiologist that's due to aqueduct stenosis is that the lateral ventricles and the third ventricles are dilated out of proportion to the size of the fourth ventricle which is small. If the fourth ventricle is not seen at all this is a bit of a red flag in the context of this patient. We have a patient who does not appear to have a congenital cause because the head circumference is in the normal range and a CAT scan report, I mean, I can't remember the CAT scan but the report says the fourth ventricle is not seen. It says there is artefact in the pituitary fossa. It mentions that there may be some abnormality of the brain stem. Now, these are things which need to be taken into account before you treat a patient with hydrocephalus." 48 It is obvious then that there are a number of interrelating considerations of some complexity as to which it was necessary to make a medical judgment. However, in relation to what ought to have happened by way of the exercise of proper medical expertise to deal with the decerebrate event (on the assumption that Dr Besser was aware of it) the CAT scan of 23 September is immaterial as also is the CAT scan film of 30 September following the craniotomy since, in substance, Dr Besser agrees that, had there been such an event, urgent drainage should and would have been instituted. 49 On looking at the matter as a whole, it was put by Mr King SC to Dr Besser that, considering Ms Fletcher as a patient on 23 and 24 September 1982, armed with the details from Dr Gordon, the admission notes from Dr Johnstone, the admission notes and case history notes from Dr Caldwell and his examination of the patient, if a neurosurgeon had felt that prompt treatment to relieve intercranial pressure was indicated and had a concern about drainage of any kind by reason of the possibility of a lesion in the posterior fossa, he could have armed himself with the scan, sought out advice from senior colleagues and obtained a collegiate view on 24 September - presumably the same view which encouraged him to proceed with the ventriculogram on the 28th. Dr Besser agreed that this could have been achieved.

Are the records sufficient? 50 In the result, as I have pointed out, drainage did not occur until the ventriculogram of 30 September. The second case focuses attention on the preceding events. Ms Fletcher now alleges that the severely raised intracranial pressure with which she was evidently admitted required to be immediately reduced by drainage and that this could and should have been done well before 28 September. 51 The hospital records appear to document a severe acute case of raised (and rising) intercranial pressure. Are these records sufficiently complete and reliable enough a picture of Ms Fletcher's condition at the time to enable a fair trial to be conducted of the question whether the delay of four days or so was medically negligent? Of course, this requires consideration of the issues relevant to the apparent conclusion by Dr Besser that such emergency treatment either ought not or need not be undertaken. Both these issues were the subject of evidence. The starting point - apparently accepted by the applicant - is that he cannot now remember any of the details of Ms Fletcher's admission and treatment and must rely almost entirely on the records, on what he believes to have then been his practice, and reconstruction of events from those sources. 52 Dr Besser's case on the application involves two approaches. The first is that the records are not sufficiently clear or complete or reliable to enable a fair judgment to be made of the necessity for emergency drainage. The second is that, at all events, a live question in cases such as Ms Fletcher's and likely to have been present to his mind at the time, is the risk that reducing cranial pressure where the condition was due to a posterior fossa lesion, could bring about upward herniation of the brain stem leading to unconsciousness and death due to the sudden release of cerebrospinal fluid (CSF) from the ventricular system. Quite understandably, he cannot now recall whether this problem was indeed present to his mind at the time, however. Dr Besser said that concern about this possibility may have been the reason for his thinking that a ventricular drain on 23 or 24 September 1982 ought not be placed. However, the absence of the films means that he cannot now say whether indeed they excluded a posterior fossa lesion. Having regard to the state of CT technology at the time, there is sometimes bone artefact in the posterior fossa which make it difficult to exclude tumours or other lesions. On the other hand, Dr Besser agrees that, by the time he placed the ventricular drain on 28 September, he must have been satisfied that a tumour had been excluded because, of course, the effect of the drain would be to reduce the cranial pressure. 53 Dr Besser's evidence is that it may well have been that he was in some doubt about the possible presence of a posterior fossa lesion in the three or four days after admission and this led him to decide not to drain immediately; certainly, exclusion of the risk was essential. But, at all events, (the decerebrate event aside) he may well have concluded that emergency drainage was unnecessary. It is obvious that these considerations are not independent. Thus, Dr Fitzgerald accepts, as I understand it, that a CT scan was an essential prerequisite to drainage (though his opinion is that the scan in fact did not, indeed would not, obscure a complicating lesion). In the result, of course, we know that there was no such lesion and it must follow therefore that the CT scan did not show one although it does not follow that there was no artefact on the film that made it possible for there to have appeared to be such a condition present. Dr Lamond's report did not suggest the presence of any posterior fossa lesion but it does not, to my mind, exclude it: the language strikes me as carefully chosen, especially in light of the avowed purpose of the scan, as taken it seems from the clinical notes, namely "? tumour". There is no suggestion of an obstructing haematoma. 54 The risk of decompression is also present when a ventriculogram is performed, since again a reduction of intercranial pressure occurs. As Mr King SC quite reasonably asks, what was it between 23 and 28 September that enabled Dr Besser to conclude that a ventricular drain could safely be undertaken on the latter day? I will come to this issue further in due course but, accepting Dr Besser's explanation for not draining the CSF on or shortly after admission, the only explanation seems to be that further examination of the film, perhaps following discussions with Dr Lamond or other neurosurgeons at the hospital, convinced Dr Besser that the apprehended danger was not or was unlikely to be present. 55 The simple fact is that, looking back, Dr Besser cannot recall why he did not perform a drainage except for the risk which he mentions and reasons that there must have been something on the film which suggested the presence of a posterior fossa lesion even though Dr Lamond was unable to identify one. 56 The crucial question is whether Ms Fletcher has established that, despite the missing information in the broadest sense, including the failures of recollection over time and missing or unavailable witnesses as well as the missing films, a trial of these issues can be fairly and justly conducted.

Did Dr Besser give inconsistent evidence? 57 It will be seen that Ms Fletcher's present case resurrects, as a part of the attack on the treatment plan, the question whether Dr Besser should have performed a ventriculostomy rather than a shunt on 30 September. As I have pointed out, Studdert J (and confirmed by the Court of Appeal) held that Ms Fletcher had not established that a trial of that issue could fairly be conducted in light, principally of the lack of the films of the CT scan conducted on 23 September. Mr King SC argues that, at all events, Ms Fletcher should not be excluded from revisiting that decision. Accepting that there is a heavy burden placed on Ms Fletcher persuading me that I should either reconsider it or come to a different view from that of Studdert J, Mr King can now point to evidence given by Dr Besser in the present proceedings which, on the face of it, differs markedly from that given before Studdert J and which, by itself he argues, justifies revisiting what might be called the choice of operation question. 58 Let me turn to that evidence. The relevance of the CT scans was touched on at many points in the evidence before Studdert J. It can best be summarised, however, in the following passage from the cross-examination of Dr Besser - "Q. What I'm suggesting to you was that your real issue and concern with shunts was the fact that mechanically they didn't seem to you to function well over the patient's lifetime and you wanted to adopt a once and for all solution? A. And the other risks involved with shunts, which I mentioned before. Q. Yes. I understand that. But as I understand what you are saying to me, that providing the ventricles were large enough you would embark upon a ventriculostomy as a preferential procedure to a shut because the mechanics of a shunt and the other complications you mentioned were against the shunt procedure? A. Because of the long time complications, yes. Q. So the only issue disclosed upon the CT scan was whether it was large enough for you to embark upon the sort of surgery you elected to do, is that right? A. Yes, definitely. Q. And may we take it then that the fact that you embarked upon the surgery would suggest to you that whatever was shown in the CT scan made you make that decision comfortably? A. Yes, I think you could assume that. Q. And similarly, I take it that the shape of the ventricles you have assessed were suitable for this procedure in preference to the shunt? A. Yes. Q. So that in terms of what the actual films may now show you, it is clear that your decision at the time was a carefully made on based upon the fact that the size of the ventricles was of adequate shape and size to embark upon this surgery? A. Yes, and to exclude any other causes for her hydrocephalus. Q. Indeed. And that was effectively, the other causes might well have been arterial vascular problems which were otherwise excluded by the angiogram? A. Yes. Q. And also was excluded by the ventriculogram as well at the earlier point of time? A. Correct.

Q. The next scan was 30 September 1982? A. Yes.

Q. Without contrast? A. Yes. … RE-EXAMINATION DAVIES: 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 completing 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 note 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." 59 Before me, Dr Besser's evidence, on being referred to the ventriculogram, was that it showed that Ms Fletcher's condition "is…suitable for a third ventriculostomy." This point was taken up later -

"KING: …Doctor, if you've got a clear grasp of the fact that the ventriculogram results showed you that Mrs Fletcher 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?

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.

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." 60 It is submitted by Mr King SC that the concession by Dr Besser that he did not need the earlier CT scan if he had the ventriculogram "result" is such a material change from the doctor's evidence before Studdert J that it justifies my reconsidering his Honour's conclusion about the choice of operation case, both because it changes the evidentiary picture significantly but also because of the concomitant effects on Dr Besser's credibility. 61 This submission suffers from the considerable difficulty that Dr Besser was not cross-examined about the apparent contradiction. At all events, after a careful rereading of the evidence, I am not satisfied that there is indeed a contradiction. I think that Dr Besser may well have meant to refer to the ventriculogram film rather than the report, "result" encompassing either possibility. The central issue before Studdert J - as, I think before me in respect of the scan of 23 September - was the distinction between the reports of Dr Lamond on the one hand and the actual films on the other. It will be seen that the question to which Dr Besser responded was about the absence of the earlier scan itself. It seems to me that it is likely that Dr Besser's reference to "result" was intended to refer to the same item in respect of the ventriculogram. There is the additional complicating feature that the cross-examination - indeed virtually all the medical issues - agitated before me concerned whether the films were themselves necessary to enable Dr Besser and the hospital to deal adequately with the first drainage case now being put. The controversy focused on the asserted need to exclude the possibility of a lesion in the posterior fossa before undertaking any drainage - including, as it happened, the drainage attendant upon a ventriculogram - this also being mentioned by the doctor as a risk of a shunt. In short, I think that Dr Besser may have had in mind the drainage problem, not the choice of procedure problem. Yet another interpretation is that the "problem" he was considering was the problem at the time of the operation whether to insert a shunt or conduct a ventriculostomy, a problem that was resolved at that time in his mind by the ventriculogram, rather than the "problem" posed by the subsequent litigation whether he could now defend that decision without the films he then had. All these ambiguities should have been clarified by cross-examination. I am certainly far from satisfied that the answers fairly bear the interpretation contended for by Mr King SC. 62 I am unpersuaded that there has been such a change in the evidence as to justify revisiting the decisions of Studdert J and the Court of Appeal. Nor do any of the other matters argued in favour of the extension of time in respect of the drainage case give rise to any doubts about the correctness of those decisions. I have endeavoured to consider the matters produced to me in respect of the choice of operation of case on their own merits. It is sufficient for me to respectfully state that my own view is the same as that of Studdert J. 63 The present case is that Ms Fletcher claims there should have been an early drainage of CSF to reduce the very marked acute rise in CSF demonstrated by her worsening symptoms and the decerebrate event of 27 September. 64 Accepting (as I do) that there is a real case for Dr Besser and the hospital that the drainage should not have been undertaken without first excluding the possibility of a lesion in the posterior fossa, does the absence of the films and the other supporting evidence prejudice the conduct of such a case?

The evidence of Dr Fitzgerald 65 Ms Fletcher relies on the evidence of Dr Sean Fitzgerald who has for many years practiced as a neurosurgeon in a number of hospitals in the United States. There is no dispute as to his expertise. The starting point for Dr Fitzgerald's evidence was the clinical picture as revealed in Dr Lamond's radiological report. Firstly, the report of the CT scan noted, amongst other things, that there is "a very marked hydrocephalus present … [of] an obstructive form … [which] has been present for a considerable time … [the signs indicating] that the patient has aqueduct obstruction of longstanding which is probably now more obstructed". Amongst other things the ventriculogram indicated a "developmental lesion" and the doctor noted that the "3rd ventricle is replacing pituitary tissue and expanding the fossa [and] the supra-pineal recess is huge". Dr Fitzgerald's interpretation was that the "range of build-up of the pathology" was at the "end stage". Dr Fitzgerald observed that there were a number of possible causes of increased intercranial pressure but that, whatever they might be, it was necessary to treat that pressure because it was causing Ms Fletcher's "severe symptoms at the time of her admission into the hospital". Accordingly, whatever the cause of the obstruction might have been that gave rise to Ms Fletcher's gross or very marked hydrocephalus, the treatment must be directed to relieving that pressure by drainage. 66 Dr Fitzgerald saw it as a mark of the severity of Ms Fletcher's condition that she suffered the decerebration to which I have already referred. This he described as a primitive response that occurs when part of the upper brain is pressed through the hole in the fibrous sheath separating the upper brain from the lower brain (the tentorium) from pressing that part of the brain and the structures beneath the tentorium, in particular the brainstem. Changes in respiration and blood pressure occur and the consequences of such an event can be fatal. Here, Ms Fletcher survived but, nevertheless, the decerebration was a significant marker of the gravity of her situation. The other symptoms disclosed in the medical history and, in particular, those evident at the hospital indicated, in Dr Fitzgerald's view, not only longstanding gross hydrocephalus caused by aqueduct stenosis but included symptoms of recent onset indicating a significant acute deterioration in her condition. These symptoms arising from her highly raised intercranial pressure demonstrated, in the Doctor's view, that the point had been reached where her brain was becoming severely compromised and reduction of that pressure was required as soon as possible. In his opinion, the delay between the CT scan on 23 September and the placement of a ventricular catheter and drainage of CSF on 28 September was inappropriately long and departed from reasonable standards of care at the time of any competent neurosurgeon. In Dr Fitzgerald's view, the placement of a ventricular catheter to drain off CSF should have been undertaken urgently soon after Ms Fletcher's admission to the hospital, shortly after the CT scan and no later than the following day. 67 Dr Fitzgerald inferred from the material that the decerebration was not drawn to Dr Besser's attention. He considered that no neurosurgeon would have operated on Ms Fletcher to perform a ventriculostomy on 30 September if it were known that she had suffered the decerebration on 27 September. He said that any neurosurgeon would have waited a period of time with close monitoring to allow the brain and associated structures to recover from the stress of the event in the context, of course, of ongoing drainage of the ventricular system during the period. He considered that Dr Besser, without knowing of the decerebration, performed major brain surgery upon Ms Fletcher on 30 September, when there was inadequate time for her brain to recover. As I understand the doctor, a similar delay would have been required if, instead of a ventriculostomy, Ms Fletcher had been treated by way of a ventricular shunt. He said that doing so at an appropriate time would have avoided the inter-cerebral haemorrhage which, it appears, led to the haematoma and dense left hemiplegia which Ms Fletcher developed. This material is not relied on in Ms Fletcher's second case although, if I accede to her application to reopen the first case, no doubt it will be. However, it is evident that, if Dr Besser was unaware of the event then, as I have already said, no case against him of negligence can be made out on this count though the same is not the case for the hospital. However, the point of the second case against the doctor is that immediate or almost immediate steps should have been taken by him to reduce Ms Fletcher's intercranial pressure after she had come into the hospital and the decerebration was cogent evidence of how dire her situation was. 68 In the end, then, Ms Fletcher's second case is relatively simple. In substance it is that there was a longstanding, chronic illness suffered by Ms Fletcher 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 drainage instituted. 69 The question, of course, is whether a trial of these issues can now fairly be conducted. Quite apart from matters of general prejudice, the evidence, not surprisingly, focused on the absence of the CT and ventriculogram films. Dr Fitzgerald said that, although it would be useful to have such films, they were not necessary in order adequately to consider whether there had been negligence in failing to institute a drainage as, in his opinion, should have been done. I understand Dr Fitzgerald's position to be that, although another neurosurgeon might possibly differ from him reasonably about the need to have the film as distinct from the report of a scan in order to adequately deal with the question whether or not there should have been immediate drainage, he did not think it was it was a reasonable view for a neurosurgeon to hold. In his view, the reports were sufficient to reflect what the film, if it were available, would show. 70 Dr Fitzgerald agreed that the possibility of a tumour should be excluded "to the best of your ability and to the best of the imaging available". He accepted also that it was possible, though only remotely possible, that Ms Fletcher's condition was caused by a subarachnoid haemorrhage and that this possibility also should be excluded before draining CSF. However, in fairness to Dr Fitzgerald, he thought that there were no symptoms suggesting such a condition. Dr Fitzgerald accepted that CT scanning in the early 1980s, in particular in 1982, was inferior to those obtainable today and that imaging techniques now produce much better results. However, he considered that, if there was a tumour of such significance as to have caused Ms Fletcher's aqueductal stenosis, it would be seen on the CT scan and it would not be mistaken, in his view, for any artefact. Dr Fitzgerald accepted that it was important to carefully examine the CT scan to exclude the possibility of a tumour before draining. He agreed that, if there were any doubt, it would be appropriate to discuss the scan with other neurosurgical colleagues and, at all events, with the radiologist. Dr Fitzgerald said that, even when the CT scan was taken in 1982, scans were good enough to pick out tumours of the size that it would take to cause the sort of clinical symptomatology from which Ms Fletcher suffered. Maybe the image would not be as clear as later and other imaging could achieve but he thought it would appear on the CT scan in some form and then, if there was any doubt, it could be repeated or further investigated if it was thought that a cerebral tumour was even a remote possibility. Dr Fitzgerald also agreed that it was necessary to exclude the possibility of subdural haematoma before undertaking drainage and that a CT scan was appropriate for this purpose.

The defendants' medical evidence 71 The hospital called Dr Michael Fearnside, a specialist neurosurgeon, to give evidence about various aspects of the case. The decerebrate event was described by him as "transient" and he disagreed with Dr Fitzgerald's opinion that damage had been caused by it, because "Ms Fletcher's clinical parameters returned to the pre-episode levels". A great deal of Dr Fearnside's evidence was focused on the significance of the decerebration event, I take it to demonstrate firstly that its significance is a matter of real medical controversy, which in turn is relevant to a consideration of whether the available evidence - in this case only documentary evidence from the hospital records - is sufficient to enable the medical question posed by its occurrence to be fairly tried. Dr Fearnside said that decerebration "signifies a serious malfunction of the brain, an interruption of the pathways of the brain at the level of the upper portion of the brainstem" and in slightly different language, explained its occurrence as arising from greatly increased intercranial pressure forcing the lower part of the brain down onto and through the tentorium. However, he pointed out that there was a secondary mechanism that caused the rise of intercranial pressure which in turn caused the transient period of decerebration, "and that is that, where patients have raised intercranial pressure, waves of further increases of intercranial pressure can occur, which are self-limiting and explain the phenomenon that Mrs Fletcher exhibited at that time". These, called "A" waves, are generally self-limiting and of short duration. Dr Fearnside also pointed out that decerebration can be fatal if it is sustained. He thought that Ms Fletcher had an intercranial pressure wave which increased the intercranial pressure which, in turn, caused her to lose consciousness. The fact that she recovered consciousness supported this scenario rather than a sustained increase in intercranial pressure. Dr Fearnside also thought that other symptoms were, at least, ambiguous. Thus he was minded to discount the significance of Ms Fletcher's drowsiness which may well have been caused by having taken codeine and being intensively observed during the night which of itself interrupts a sleep pattern although he did not suggest that the symptom, together with the other matters, should have been ignored. 72 So far as Dr Lamond's report of the CT scan was concerned, Dr Fearnside agreed that, if he considered that there was a risk that artefacts on the film in the area of the posterior fossa might have obscured the presence of something as serious as a tumour, he would, as an experienced and appropriately qualified radiologist, perform the CT scan again. 73 Dr Fearnside said - "The diagnosis of aqueductal stenosis was always very difficult on the early scanners and to a degree it was an inference from the … [appearance of] the enlarged ventricles above the obstruction and the normal ventricle below the obstruction, but it was not until MRI scanning became available that that diagnosis could be refined. And this was the reason that many neurosurgeons would have preferred to ensure that that was so, that it was a benign aqueductal stenosis by doing a ventriculogram because aqueductal stenosis can also be caused by a tumour within the brainstem and that would be more obvious in the ventriculogram than in the CT scans in 1982. So, while one could be reasonably certain, one couldn't be absolutely certain, and obviously the treatment would be different." 74 Dr Fearnside was taken to the admission note made by Dr Caldwell and agreed that it was comprehensive. He also agreed that there were clear indications of a serious symptom complex, particularly having regard to the history of eight drop attacks a day, falling to the floor with complete weakness of arms and legs, morning nausea and vomiting, and, from the neurological examination, that she was mildly dysarthric and that examination of the fundi showed bilateral papilloedema. 75 It seems clear enough from the notes that the treatment plan was that, on the Tuesday Ms Fletcher was to go to the operating theatre for a burr hole to be made, and on the afternoon of that day there would be an isotope study (to document a patent subarachnoid space) and then two days later, on the Thursday "definitive surgery" which could theoretically be either a ventriculostomy or a shunt, though the former procedure was selected. It is pointed out on behalf of Ms Fletcher that this plan was made before the CT scan had been obtained and it is contended, as I understand it, that it follows that the question whether another cause of the aqueductal stenosis such as a tumour was in fact not being considered since, if it were thought to be necessary to exclude it or subdural bleeding the plan would have been expressed to be conditional on further investigation. (At the same time, as I have pointed out, Dr Lamond considered that he was being asked to look for a tumour.) 76 So far as the notes go, it seems clear that the plan, working towards a ventriculostomy, made no provision for any earlier drainage to relieve pressure and symptoms immediately. Dr Fearnside, however, said - "The problem I have with that is that no diagnosis had been made when she was admitted to Prince Alfred Hospital other than that she had symptoms consistent with raised intercranial pressure …. She didn't have a CT scan at Orange … The differential diagnosis was a cerebral tumour. I cannot imagine that this treatment plan would have been developed without the knowledge of the CT scan because the treatment, had it been a cerebral tumour, which it might have been or hydrocephalus, which it was, would be quite different. A third ventriculostomy wouldn't be treatment for a tumour of the cerebral hemispheres, for example, which this still could have been." 77 Dr Fearnside agreed that the elements of the plan shown in the notes, strongly suggest that "this is a treatment plan for hydrocephalus, not a brain tumour" and that this decision could not reasonably have been made in his opinion until the CT scan had been obtained. It is clear that the CT scan had been ordered by Dr Johnson when Ms Fletcher was first admitted to the emergency department on 23 September at about 12.30 pm. She was seen by Dr Caldwell later on the same day and the treatment plan, which is apparently in Dr Caldwell's writing, made on the same day, though precisely when, is not stated. The CT scan report is dated 23 September, so the same day. It is therefore, I think, at least reasonably likely that the plan was not made until after the scan had been considered. However, Dr Fearnside's view appears to be that, on the assumption that it was available, the scan excluded the likelihood of a tumour because otherwise the plan would not have been unqualified. In other words, if the CT scan did not give a clear answer to the question whether there was a tumour or other cause of the aqueductal stenosis, the plan to proceed nevertheless to a ventriculostomy was unreasonable. In this respect, his evidence favours the application. 78 This reasoning, however, depends upon assuming that, had there been a qualification depending on what the scan revealed, it would have been noted by Dr Caldwell. On the face of it, it seems unlikely that such an important qualification would not have been noted but it is not difficult to imagine circumstances in which such a note might have been overlooked, particularly because the definitive surgery proposed was to occur in three days' time. Dr Gordon, the consultant neurologist, had transferred Ms Fletcher from the Orange Base Hospital to Royal Prince Alfred Hospital because he thought "there was strong evidence that she had a frontal tumour". I simply do not accept that the possibility of a tumour would have been immediately discounted either by Dr Caldwell or by Dr Besser. Indeed, the nursing note of 10.30 pm when Ms Fletcher was admitted to the ward stated that she was admitted "with ? cerebral tumour". Dr Gordon thought that Ms Fletcher had evidence of raised intercranial pressure and, in view of the symptoms and physical signs, that it was most likely she had a parasagittal frontal lobe tumour or alternatively a posterior fossa lesion with hydrocephalus, with the former being more likely. 79 One therefore is left with two unlikely scenarios which depend upon the assumption (which I think is highly probable to be the fact) that it was important to exclude the differential diagnosis: the first is that the need to definitely exclude the possibility of a brain tumour was overlooked; and the second is that no note was made of the need to exclude the possibility before making a plan for a ventriculostomy. It seems to me that the probabilities markedly favour the likelihood that there is simply an omission from the notes. I would draw this conclusion from the logic of the events themselves but it is reinforced by the point that, at the time the note was made, the phrase "definitive surgery" did not necessarily mean (though, according to Dr Fearnside it strongly suggested) that the surgery was directed to hydrocephalus not a brain tumour. Certainly, the plan did not involve any immediate drainage. So far as the note of the plan is concerned, it may well have simply been an initial plan proposed by Dr Caldwell and not a final plan agreed on with Dr Besser. If that is so, it might explain why, when Ms Fletcher was seen the following morning by both Dr Caldwell and Dr Besser, only the first two parts of the plan are confirmed and there is no reference to the proposed surgery. Although a burr hole suggested, as Dr Fearnside said, the probability of performing a ventriculogram it could also be done for the purpose of drainage. Dr Fearnside agreed that the ventriculogram was at the time the best diagnostic tool available for excluding a tumour. If drainage was instituted when Ms Fletcher first attended the hospital, that would have prevented the undertaking of a ventriculogram. The drainage would progressively decrease the ventricles and although it is possible to inject contrast material down the ventricular catheter, this is not technically satisfactory. Depending how rapidly the ventricles would return to a normal size, a further ventricular puncture would be difficult, though not impossible. A ventriculogram is generally performed when the ventricles are enlarged preparatory to performing a definitive procedure such as a shunt or a ventriculostomy. Accordingly, the two reasons for performing a ventriculogram, to confirm the diagnosis of aqueductal stenosis (i.e. to exclude a tumour) and to visualise a third ventricle for the purpose of a ventriculostomy would have been precluded had there been an immediate drainage of CSF. 80 Dr Fearnside's opinion was that the plan could only have been made (or, at, least definitely determined) when Dr Besser had effectively excluded the diagnosis of a tumour or other lesion. On 24 September, namely the day after the plan was noted, a case history noted an examination of Ms Fletcher by Dr Besser and Dr Caldwell. The notes stated that the first two steps proposed in the plan were to be undertaken. There can be little doubt that the CT scan was by that time available. There is no note that suggested the need to consider whether Ms Fletcher was suffering from a brain tumour or, for that matter, a subdural haematoma. It appeared to follow that, if Dr Besser had been troubled by the possibility that the CT scan might not have excluded a tumour, by the time the plan was confirmed, this possibility had been excluded. Dr Fearnside agreed with this, with the qualification, "that he may have been concerned, and it is not in the notes anywhere, of an intrinsic tumour of the brainstem which can cause secondary aqueductal stenosis which may not be identified on the CT scan in 1982 and he was hoping to reassure himself with a ventriculogram that that was not so". 81 Dr Fearnside thought it was important to differentiate the particular part of the posterior fossa relevant to the possibility of a tumour. There were two main parts of the brain at this point, one in the cerebellar hemispheres, which, had a tumour been present there, would have been obvious in the CT scan in 1982. The other component is the brainstem and it is this area which is rather more difficult to image for a number of reasons, principally reflection from adjacent bone and in 1982 CT scans were not particularly accurate at picking up tumours within the brainstem. The fourth ventricle and the aqueduct lie within the brainstem. In 1982, aqueduct stenosis was one of the more difficult areas to absolutely diagnose. This was a reason that ventriculography was used. 82 Both Dr Fearnside and Dr Besser placed some emphasis on the desirability, if not the necessity, to discuss difficult or complicated conditions with senior colleagues. Dr Fearnside accepted that, for a neurosurgeon like Dr Besser, he would have thought it unnecessary that he would have needed to discuss with a senior colleague so basic a procedure as inserting a drain to relieve intercranial pressure to alleviate symptoms caused by a build-up of CFS but this view, I think, concerned the procedure itself, not the need to consider whether a lesion had been excluded. 83 A part of the observations to which Dr Fitzgerald refers as indicating the need for immediate drainage were references in the cerebral observation chart to sluggish pupil reactivity. Dr Fearnside commented that such observations are highly subjective. He said that raised intercranial pressure with some sort of neurological disorder in the brain affecting pupil reflexivity can be examined by shining a light in the eye and comparing the constriction of the pupil with a normal reaction. In the nature of things, as I understand Dr Fearnside's evidence, this is a very subjective observation and, I would infer, one that should be looked at with some caution. 84 Dr Fearnside also pointed out that it was necessary to be cautious about drawing inferences from pupillary reactivity to light, mentioning a number of independent variables which made this so. Dr Fearnside thought that not much weight could be placed on sluggishness or pupillary reactivity: what is important is whether the pupils react or not, and whether the pupils are equal or not, these being the two indicative observations which would raise concerns about raised intercranial pressure. The doctor pointed out that although it is true there were several observations of unequal pupils, yet they normalised. He said that if there were a structural lesion causing pupillary inequality it would not normalise but remain abnormal. Looking at the other observations, that is that she was spontaneously moving, talking and communicating, she was oriented and was gripping a hand, taken as a whole, there would seem to be no other indicators suggesting an overall deterioration in her neurological condition. The pupillary inequality was problematic but it normalised and such inequality can vary because of the position of ambient light. On the other hand, Dr Fearnside thought that these symptoms could not be dismissed; it would be necessary for the specialist to examine the patient him or herself. He made the observation that, had the pupillary signs stated in the notes been significant he would have expected a deterioration in her level of consciousness but the column in the notes dealing with that question does not indicate that this occurred except during the decerebration event. 85 Dr Besser flatly disagreed with Dr Fitzgerald's evidence that a brain tumour capable of causing Ms Fletcher's symptoms could have been so large as to have been obvious on a CT scan such as that taken in 1982 of Ms Fletcher. Dr Besser said that such tumours are not always large or obvious on CT scans and that, in particular, the presence of bone artefact in the posterior fossa can make tumours hard to identify or exclude. This was a common problem with CT scans around that time. By way of elaboration, the doctor pointed out that - "… This patient came along with symptoms and signs of raised intercranial pressure. The CAT scan showed that the ventricles were very, very dilated and yet we have a head circumference which is in the normal range, so this means the patient wasn't born with ongoing hydrocephalus … Now, the classical diagnosis of hydrocephalus by a radiologist as due to aqueduct stenosis is that the lateral ventricles and the third ventricles are dilated out of proportion to the size of the fourth ventricle which is small. If the fourth ventricle is not seen at all [as the report said] this is a bit of red flag in the context of this patient … [The report] says there is artefact in pituitary fossa. It mentions that there may be abnormality of the brainstem. Now these are things which need to be taken into account before you treat a patient with hydrocephalus." 86 It was pointed out to Dr Besser that his earlier affidavits of 2006 had not referred to the need to consider the question of the presence of a subdural haematoma or a tumour before instituting drainage and that availability of the CT film was necessary to support, if not establish, this explanation. Dr Besser said that, at the earlier time he was attempting to recall, as best he could, the circumstances and the fact was that he was unable to do so. As I understand it, the elaboration of this point by reference to the need to exclude the differential diagnoses is a hypothesis on his part, since he has no actual recollection. It seems to me, having looked at those earlier affidavits, that Dr Besser's explanation is a credible one. However, he did propose in those affidavits a reason for not draining immediately, namely that Ms Fletcher's symptoms were chronic rather than acute and might not have called for the immediate surgical intervention as proposed by Dr Fitzgerald. Dr Besser's explanation was that he was not thinking about all the possible reasons why he would not have put in a drain. In a patient who had a chronic disease that he felt did not need urgent drainage, that would be a sufficient reason for not undertaking that procedure. 87 Dr Besser agreed that the notes of 23 and 24 September show that he had decided upon a plan involving the performance of a ventriculogram on 28 September but says that he nevertheless would have needed to satisfy himself that there was no posterior fossa lesion present before actually performing the ventriculogram. Although this qualification is not mentioned on the notes, I do not think that this fact could justify the inference that Dr Besser's reconstruction of his reasoning is wrong. Since I accept that it was of vital importance to exclude the possibility of a tumour, I think it is most unlikely that it would have been overlooked by Dr Besser. The point really being made on Ms Fletcher's behalf is, I think, that this risk had been excluded by the scan and, accordingly, further delay in drainage could not be explained as a matter of appropriate medical practice. This argument depends upon accepting Dr Fitzgerald's opinion that any potentially dangerous lesion must have been so large as to be unmistakably demonstrated by the CT film and that it could not have been mistaken for an artefact, so that when Dr Besser saw the film on 23 September (as he thinks almost certain) or 24 September (which is certain) there was no longer a reason for not undertaking immediate drainage. 88 Dr Besser agreed that, reading the symptoms recorded by Dr Caldwell, they demonstrate that whilst some of the patient's symptoms historically were essentially chronic or longstanding, they were associated with more severe and significant symptoms of some recency. Dr Besser said that obviously he had concluded at that time that Ms Fletcher required treatment within a few days but not immediately. 89 There are some apparent inconsistencies in the neurological notes. Thus, the patient is shown as having fixed pupils but nevertheless awake and orientated which cannot occur although there is also a note that pupils are very sluggish which may or may not be a correction of the reference to fixed pupils. Other references to very sluggish pupils are made on at least three occasions but, again, as Dr Besser points out, she is shown as orientated. Dr Besser pointed out that although discrepancy between the reactivity of the pupils is consistent with the effects of raised intercranial pressure, there are other explanations. One is that there can be poorly reactive or even non-reactive pupils in patients who have pressure on the tectal plate, that is the upper part of the brainstem, and as it happens in this case the ventriculogram explains that because there was demonstrated a dilated supra-pineal recess, which is the back part of the third ventricle and that impinges on the tectal plate, which is an explanation here for those symptoms. The doctor's volunteering of this possible explanation for the otherwise apparently inconsistent observations redounds, I rather think, to his credit since it is clearly advantageous to him to rely on the suggestion that the apparent discrepancy of observations shows that they were not altogether reliable. He did, however, point out that there were two occasions of inequality of the pupils, an observation which, as I gather, was likely to represent some lack of experience by the nurse because there was no reason that he could see why Ms Fletcher should have inequality of the pupils. Dr Besser put it down to the fact that Ms Fletcher was not in the neurosurgery ward where nurses would be likely to be more experienced in making observations of this kind. There were, however, more than two entries - there were four. Dr Besser agreed that the observation should be taken note of but he thought that inequality of the pupils in a patient who is alert and orientated may be somewhat spurious. Also, he thought that inequality of the pupils in a patient with hydrocephalus is not relevant. 90 So far as the decerebration event is concerned, Dr Besser commented that it appeared to have been transient, possibly caused by (temporarily) raised intercranial pressure and the ventriculogram on the following day confirmed hydrocephalus due to aqueduct stenosis and did not show any other acute problem. Given the history in all likelihood it was intercranial pressure but this was not the only explanation. He does not now recall whether he was told of it, as I have mentioned, but having been told of it other causes such as epilepsy might have been possible though they were, in effect, subsequently excluded. However, as Dr Besser fairly pointed out, there are a great number of other symptoms that at all events indicated raised intercranial pressure. Furthermore, by the time of the decerebrate event the CT scan had been taken and there is no question that that disclosed a condition which would have led to raised intercranial pressure. Dr Besser was asked about the continued drowsiness after the event of decerebration as consistent with residual problems. He did not agree. He said that patho-physiologically the event is an effect of the brainstem and once it recovers and the patient regains consciousness, there is no ongoing effect from what has happened to the brainstem. Continued drowsiness may have been caused by what also caused the decerebration of course. However, Dr Besser agreed that sustained drowsiness after a decerebrate event is a matter of concern. 91 There was a great deal of further cross-examination of both Dr Besser and Dr Fearnside about other matters disclosed in the records, in particular the neurological observations. It is sufficient for me to observe that this evidence disclosed a quite complicated medical picture requiring assessment of a variety of interrelated matters. Although Dr Fitzgerald's opinion is, I think, that these matters were really far more simple - at least to an experienced neurologist - than is suggested by this evidence, on a careful reading of his evidence (including, of course, his affidavits) my opinion that this was a complicated and difficult case requiring careful diagnosis and far from obvious judgments is reinforced. After all, the case sought to be made by Ms Fletcher is whether drainage should have been instituted at a time significantly before the ventriculogram was performed, a timeframe of but five days. I do not accept that the clinical picture is so clearly demonstrated on the documents (which is all, in substance, that we have) as is contended on Ms Fletcher's behalf.

Other matters of prejudice 92 Some of these matters vie with particular force differentially as between Dr Besser and the hospital. However, this differentiation is not important, as it seems to me, except in respect of the decerebration. Clearly, it should have been brought to Dr Besser's attention either by nursing or medical staff. If it were not, that would be a particular of negligence against the hospital but not, it seems to me, against Dr Besser. However, subject to this difference in the cases, other differences are mere matters of emphasis and nothing much turns on them. 93 Hospital records showed that a number of nurses attended Ms Fletcher between 27 September and the craniotomy on 30 September. Three of those nurses only have been located, two of whom were student nurses at the time and one a registered nurse. Two other student nurses were located but they had made only entries prior to 27 September. The five nurses who were located were provided with copies of the hospital records but none had any particular recall of Ms Fletcher. This enquiry is criticised because no photographs of Ms Fletcher were shown to them. Given the timeframes, it seems to me that this criticism has no real weight. The contention of Mr Kalfas SC for the hospital that there is in effect an inconsistency between the nurses notes on the one hand and the cerebral observation chart on the other is persuasive. There is no strong reason for accepting the accuracy of one observation over the other - though as I have said, one should be cautious about inferring a positive from a negative. The former note was made by a Ms Moors, then a student nurse and now located. Not surprisingly, she has no recollection of Ms Fletcher's treatment and her role in it. The experience of the nurse who made the entry in the cerebral observation chart is not known. The submission on behalf of the hospital that the inability to clarify what appears to be an important factual issue relied heavily upon by Ms Fletcher is a significant prejudice is, to my mind, well founded. Ms Moors' note states that the RMO was informed. There is no note of his or her attendance, though it is difficult to imagine that he or she would not have attended if such a marked symptom had occurred, still less that there would be no note of what was done in consequence of it. As it happens, the RMO cannot now be identified. 94 I have already referred to the evidence of Dr Fitzgerald, Dr Besser and Dr Fearnside as to the possible significance of a decerebrate event, should one have occurred. All are agreed that some immediate steps needed to be taken to relieve intercranial pressure. One possible explanation for this not occurring is, of course, that Dr Besser was not informed of it. On the other hand, he may have been informed of what led the nurse to make the entry and decided that it was not a decerebrate event or decided that it was simply a passing symptom, explained as an "A" wave by Dr Fearnside. All these are reasonable possibilities. It seems to me that, the correctness of the cerebral chart in this respect being called into question, whether such an event occurred is a live and substantial issue. What Dr Besser or for that matter the hospital (though 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. Dr Besser's expectation, according to his then practice, is that he would have seen Ms Fletcher at least daily except perhaps on Sunday, accompanied by the registrar, resident and nursing staff. He would have expected to have had communications with, for example, Dr Worthington and the RMO. Such attendances are not referred to in the extant records which appear to be incomplete. For example, there are no entries in the case history notes for 25 or 26 September and only one for 27 September. So far as the continuing unwellness of Ms Fletcher after 27 September is concerned, there are notes on 28, 29 and 30 September but those notes are of observations which are necessarily to some degree subjective. In this respect I have already referred to the observations of drowsiness. A Mr Ross, who was one of the nurses at the time and responsible for one entry at 4.30 am on 29 September, describes the patient's night as "satisfactory" adding, "still appears groggy" and noting that the ventricular drain appeared to be working. Mr Ross has been contacted but does not have any particular recall about the case. Other nurses who made earlier entries than on 27 September have been contacted but are unable to give useful information. Medical staff who might have been involved in any response to the decerebrate event on 27 September were Drs Worthington, Caldwell, Surachai, Morgan, Roberts and Loo. They have been able to be identified because of the hospital notes but there may have been other doctors, as Mr Kalfas pointed out, who were involved in Ms Fletcher's treatment but, because they are not mentioned in the notes, cannot now be identified. Not surprisingly, the identified doctors cannot go further than the notes.

Conclusion 95 As I have mentioned, the defendants accept for the purpose of the present application, that Ms Fletcher has a triable case of negligence against them. The crucial question is whether, in terms of s 60G(2) of the Limitation Act 1969, the Court can conclude that it is just and reasonable to order that the limitation period be extended and whether the Court should so order in the exercise of its discretion. The real question is whether a trial will be a fair trial. Studdert J accepted that Dr Besser's evidence, especially that his recollection of Ms Fletcher was very limited, in particular he has no specific recollection of the operations performed on 28 and 30 September and 12 October 1982 and his knowledge of them is, in substance, limited to the hospital documents. Dr Besser's evidence before me was to the same effect. Of course, it is for me to assess for myself the reliability and truthfulness of this evidence without deferring to Studdert J's opinion. I have done so. I thought that Dr Besser's evidence was both truthful and reliable. I have already mentioned the attack made on it that depended on an answer he gave as to the need for the ventriculogram to answer the choice of operation case. I repeat the conclusion I have already given that this evidence did not justify the conclusion or even, to my mind, the suspicion that Dr Besser's evidence was not truthful and reliable. Again, in the proceedings before me, Dr Besser emphasised the need to have the films available, especially of the CT scan of 23 September to show whether one, I think the major, reason for not immediately instituting a drainage procedure was the possibility of a subdural haemorrhage or other lesion in the posterior fossa. Other criticisms have been made of his credibility based on the way in which this case unfolded and suggesting that, at least so far as the possibility of the presence of a lesion in the posterior fossa was concerned, this was a late and convenient explanation for delay that should not be accepted. I do not accept these criticisms. The evidence as a whole persuades me that this was indeed a live problem and caused some, though uncertain, delay. 96 Of course, as Dr Besser and Dr Fearnside explained (and I accept) whether it was necessary to institute emergency as distinct from emergent treatment depended upon the entire clinical picture. Leaving aside the decerebrate event, there appears to be no particular damage requiring more urgent treatment than that which was in fact undertaken. There were indications of a troubling increase in intercranial pressure, such as the pupillary symptoms and drowsiness, unconsciousness and decerebration (by the 27th), to which Dr Fitzgerald refers. Accepting some deterioration was occurring, whether the immediate response for which Dr Fitzgerald contends was required and, in particular the failure to do so was negligent, is very much a question of medical judgment in respect of a multiplicity of signs and symptoms which were, in their very nature, matters of degree. Drainage was instituted on the 28th, though secondary to a ventriculogram. 97 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 Ms Fletcher's unfolding medical condition. In the course of his judgment in the previous appeal Bryson JA said (Fletcher v Besser 2004 NSWCA 132 at 65) - "The close attention given to the first respondent's evidence of the prejudice he would incur at any trial has obscured some more general considerations. Quite apart from the particular difficulties proved by Dr Besser, more general considerations of prejudice arose from the great length of time, over 17 years, which passed before any indication was given that a claim might be made. The inherently adverse influences of the passage of such a long period of time, in relation to allegations of negligence of high detail and technicality, have a strong claim for consideration when deciding an application under s60G. The adverse influence of the passage of such a long time on the quality of the evidence available, and on the quality of the consideration which can be given to conducting the proceedings, should not be obscured by more detailed considerations, important as they are. Evidence shows that some leaders of the profession have left the scene; two very prominent neurosurgeons of those days, who were named in evidence as persons whom Dr Besser might have consulted have died, while others have retired. The whole exercise of reconstructing the state of the art and of knowledge in 1982 has become a difficult one. The absence of CT scan films and other records, after so many years, is itself a powerful illustration of the difficulties in the path of a fair trial. The simple absence of documents of such primary importance is a daunting difficulty for any endeavour to establish whether decisions made in September and October 1982 were reasonable. Records like that gain in importance as time passes, recollections are lost or become less reliable and persons who participated in the events become unavailable for enquiry."

In my view, the considerations referred to by Bryson JA 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 Ms Fletcher 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. 98 Accordingly, Ms Fletcher 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. 99 Accordingly, the application must be refused with costs. **********

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