Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou [Nikolaou v Papasavas Phillips & Co (1988) 166 CLR 394], including "the evidence that would or should have been available to the plaintiff at that time" (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action."
35 The ultimate question formulated by the trial judge to be answered on the balance of probabilities was this: "what were the prospects that the plaintiff would have secured, either a verdict in contested proceedings or an offer of settlement in compromise of his claim" against the medical defendants: ([58], Red, 28S-U). Although the trial judge did not expressly say so at this point, it is clear that this test was drawn from the judgment of Brennan J in Johnson v Perez (supra).
36 The trial judge held that in answering this hypothetical question she was entitled to consider the medical defendants' approach to settlement of the claim in the circumstances where the claim depended heavily upon the assessment of competing expert evidence: ([58], Red, 28U-29C).
37 In upholding the claim, the trial judge had made a number of factual findings based upon the available hospital records. This was in order to assess Mr Reynolds' prospects of success in the original action against the medical defendants. First the trial judge found that "although the evidence suggested a possibility that the x-ray films could have still have been retained in the hospital records in 1992, it did not extend that possibility to a probability.": ([54], Red, 26O-P). The significance of this finding was twofold.
38 First the trial judge held that it was inappropriate to draw the inference that the x-ray films would have been produced had the Solicitors instantly issued subpoenae for their production, upon being instructed: ([54], Red, 26R-S). That is to say, had the usual Hospital practice been followed, the x-rays would have been destroyed by then, being well after three years. That leaves a possibility only, of their production, and then only in the unlikely event that, despite the practice, any x-rays had been retained. It was therefore not proven that the absence of these records was caused by the negligence of the Solicitors.
39 Second, but equally significantly for Mr Reynolds' case against the Solicitors was the fact that a court hearing the matter or experts preparing reports for litigation would have been in the very same position in which the solicitors in fact were. That is to say, even if the solicitors had not been negligent, the court would have had to contend with the absence of the x-ray records, and base its opinion on experts who also did not have the advantage of being able to give "a definitive answer" (see [57], Red, 27V). As with many proceedings, the court would have to labour towards a conclusion on the balance of probabilities with incomplete information.
40 The trial judge then set out a number of facts which she considered, were established by such of the Hospital records as were available: ([55], Red, 26V-27J). No issue is taken as to the correctness of these findings of fact, and I set them out below:
"(1) The plaintiff suffered, a fracture of the upper tibia and fibula close to the knee on the left leg.
(2) The fracture was complicated by comminution, angulation, flakes of bone and overlapping of fragments.
(3) No reference is made in the medical notes to the growth plate either as to its position or condition.
(4) During the plaintiff's first admission to Hospital not less than three attempts were made to correct the angulation of the fracture by the wedging procedures.
(5) The fracture remained unstable at the time of the plaintiff's discharge from Hospital on 30 October 1985, the plaintiff's evidence being that he was able to feel the bones moving within the plaster cast.
(6) Treatment in the fracture clinic after discharge involved at least four further wedging procedures. The fracture remained unstable.
(7) The senior surgeon, Dr Stephen, who had been scheduled to undertake the open reduction of the fracture in February 1986, became unavailable.
(8) The procedure performed by Dr Powell, then an orthopaedic registrar, was unsuccessful in correcting the angulation."
41 The trial judge then noted (at [56], Red, 27L-S) that the evidence in the claim did not address in detail a number of issues which arose from it, namely:
"(a) the extent to which inadequate supervision was undertaken of the treatment provided in the fracture clinic;
(b) the reason that Dr Stephen became unavailable in February 1986;
(c) The extent of the supervision of Dr Powell when he stepped into Dr Stephen's position to perform the surgery. "
42 The trial judge found that all the medical experts stated that the x-ray films were "vital to a definitive answer" as to whether an earlier attempt at internal fixation of the fracture would have achieved a better outcome from Mr Reynolds: ([57], Red, 27V). Given that all the medical practitioners were in the same position, the trial judge made findings as to their opinion in terms of that question. In the case of Drs Bornstein and Roebuck, the trial judge found that they were prepared to state that the delay (in carrying out an internal fixation) was clearly excessive in the face of a clearly unstable fracture that did not respond to repeated attempts at closed reduction. In the case of Drs Ellis and Cummine, the trial judge found that they declined to express an opinion on the issue of medical negligence without the opportunity to see x-ray films. The trial judge found that only Dr Claffey was prepared to state that the delay was not excessive.
43 In terms of Mr Reynolds prospects of success in a litigated action, the trial judge found that the although he was not certain of a successful outcome, it could not be said that he would certainly have failed either: ([59], Red, 29E-G. This was on the basis that the evidence established that the body of medical opinion obtained by Mr Reynolds himself was divided on the relevant question. Included amongst the reports of those representing Mr Reynolds were the reports commissioned from Drs Ellis and Claffey who were (as set out above) respectively neutral and adverse to Mr Reynolds' case against the medical defendants. The trial judge reasoned that in an adversarial context it was unlikely that those representing Mr Reynolds would have made available the reports of Drs Ellis and Claffey to the defendants or the Court, since those expert opinions were not favourable to Mr Reynolds.
44 Based upon that reasoning, the trial judge seems to have concluded that a Court considering Mr Reynolds' case against the medical defendants would have had before it the remaining reports of Drs Roebuck and Bornstein (who were favourable, the former emphatically so) and the report of Dr Cummine who declined to express an opinion in the absence of the x-rays. By contrast, the Court would not have had the reports of Drs Ellis and Claffey. The trial judge also held there was evidence suggestive, albeit not conclusive, of a failure of supervision in the fracture clinic: ([59], Red, 29L). In those circumstances, the trial judge held there was a reasonable prospect, going beyond a far-fetched possibility, that once all that evidence had been placed before it - though I interpolate also with any opinion to the contrary from the medical defendants' experts - a Court would have been persuaded to accept Dr Roebuck's view that discharging Mr Reynolds with a clearly unstable fracture was "asking for trouble": ([59], Red, 29O-Q). I observe that this conclusion did not depend on the x-rays. Therefore, on the hypothesis that the matter went to a litigated outcome, the trial judge was prepared to find that "there was some prospect that the plaintiff would have succeeded in his claim": ([59], Red, 30J).
45 The trial judge also considered Mr Reynolds' prospects of obtaining a negotiated settlement from the medical defendants. As previously mentioned, her Honour found that it was unlikely that the reports of Drs Ellis and Claffey would have been made available to those defendants. Evidence was given before the trial judge by Ms Greenland, the solicitor on the record for the medical defendants in the actual proceedings lodged out of time on behalf of Mr Reynolds. The trial judge recorded that Ms Greenland gave evidence that as a matter of fact she was unable to place any assessment on the plaintiff's case because of the absence of evidence. The trial judge did not consider that the actual offers of compromise made by Ms Greenland (which involved costs only) were relevant to the hypothetical question which she had to answer. In the judge's view, contrary to express assertions by Ms Greenland herself, those offers were made "in the circumstances of the very limited prospects of success of the plaintiff's application for an extension of time to bring his medical negligence claim." [59], Red, 29V-30C) and could not be used to infer the attitude that the medical defendants would have taken to settlement if there had been no negligence.
46 Hence, the judge concluded, first, that "there was some prospect that, had they been dealing with the action in 1992 or 1993, in the absence of the complications of the limitations issues, the defendants would have undertaken a reasoned assessment of the risk that the views of the experts supporting the plaintiff's claim would have been accepted". Second, the judge concluded that "having undertaken this exercise, there was a prospect that the defendants would have offered to settle the claim on a basis more attractive than that offered in 1998": [59], Red, 30H-M)
47 Given this conclusion that Mr Reynolds' cause of action had some prospects of success, either at trial or by way of negotiated settlement, the trial judge proceeded to answer in the affirmative the question, whether Mr Reynolds lost anything of value. She said: "I find that the negligence of the defendants in these proceedings deprived the plaintiff of the opportunity of securing compensation by way of court assessment or by compromise." ([60], Red, 30O-Q). Thus Mr Reynolds did lose something of value.