Ngo v Elysee

Course of the primary proceedings

1. The primary judge's task was complicated by the course the proceedings took. The original statement of claim addressed Mr Elysee's treatment at various times by the seven general practitioners over the entire period of ten years during which he was a patient of the Bankstown practice. As the claim was originally framed, it brought forward an undifferentiated allegation of negligence on the part of all seven doctors, alleging that Mr Elysee's diabetes, his high blood pressure and the possibility of renal disease had not been adequately managed, monitored or referred for specialist treatment over that lengthy period.
2. The case advanced in the original pleadings assumed that the renal disease could, with earlier treatment, have been avoided. Specifically, it was alleged that the risk of renal disease from both hypertension and diabetes is well recognised and that the defendants ought to have known about that risk and closely monitored Mr Elysee's renal function. The pleading contended that, as a result of their alleged negligence in failing to do so, Mr Elysee developed chronic kidney disease, coronary artery disease, atrial fibrillation and depression.
3. The case on that basis found support in the expert medical evidence served by Mr Elysee. Dr Stephen Thornley, consultant endocrinologist, provided a report dated 17 June 2016 in which he expressed the following opinion: "With respect to Mr Elysee's mortality and morbidity, substandard care by his previous General Practitioners at the Bankstown Medical Centre/Primary Health of both the Type 2 diabetes mellitus but also the blood pressure and failure to appropriately act upon the development of chronic kidney disease and proteinuria have resulted in Mr Elysee having Stage 4 to Stage 5 chronic kidney disease, coronary artery disease, atrial fibrillation and depression. If the diabetes and hypertension had been appropriately controlled, at least from the period 2006 onwards, then it is highly likely that kidney function would be much improved compared to what it is now and that Mr Elysee may not have developed the cardiac issues that he has developed."
4. At the time that report was prepared, Dr Thornley was not aware that Mr Elysee had longstanding hepatitis C. The experts who conferred in the conclave on causation ultimately agreed that Mr Elysee's kidney disease was probably caused by that disease, which was then untreatable.

The causation report

1. The causation conclave was held first, before the conclave on liability. It was attended by Dr Thornley, Professor Steven Boyages (an endocrinologist retained by Dr Ngo), Dr John Burke (a renal physician retained by Dr Ngo) and Professor Zoltan Endre (a renal physician retained by one of the other defendants). The experts were asked to address a series of specified questions (two of which had been objected to by Mr Elysee's solicitor). The experts reached agreement as to the answer to every question. In short, the effect of their agreed answers to the agreed questions was that no act or omission of any doctor had caused or contributed to any condition suffered by Mr Elysee. That reflected a change in the position of Dr Thornley who, as already noted, had prepared his original report in ignorance of the fact that Mr Elysee suffered from hepatitis C.
2. The answers were set out in a joint report dated 2 May 2018 (to which I will refer as the causation report). It is appropriate to set out the critical answers in full.
3. As to diabetes, the relevant questions and responses were as follows: "6.5 What is the cause of this condition in the plaintiff? The experts agree that Type II diabetes is typically caused by a combination of genetic factors and environmental factors. The latter includes lifestyle factors, such as activity and nutrition. The plaintiff has an additional factor, chronic Hepatitis C infection, which may increase the likelihood of developing diabetes. 6.6 Did any act or omission of each defendant cause or materially contribute to this condition? If so, please specify. The experts agree that no act or omission of any defendant caused or materially contributed to his acquiring diabetes."
4. As to hypertension, the relevant questions and responses were as follows: "6.10 What is the cause of this condition in the plaintiff? The experts agree that the cause of the plaintiff's hypertension is probably multi-factorial, but the most likely sequence of contributing events was firstly, the acquisition of Hepatitis C, with subsequent development of hepatic fibrosis, and evidence of immune hyper reactivity (cryoglobulin), with likely impact on the kidney, as evidenced by the focal segmental glomerulosclerosis (FSG) seen in the renal biopsy conducted 5 March 2013 cited in paragraph 4.105 of Annexure A. 6.11 Did any action or omission of each defendant cause or materially contribute to this condition? If so, please specify. The experts agree that no act or omission of any defendant caused or materially contributed to the plaintiff acquiring hypertension. The experts further agree that, as to the ongoing control of the plaintiff's hypertension, the medications prescribed for, and the monitoring of, the plaintiff's blood pressure by the defendants from time to time was appropriate. The worsening of the plaintiff's blood pressure control in 2011/12 coincided with the worsening in his kidney function."
5. The cause of Mr Elysee's renal disease was addressed in the answer to question 6.13. There appear to be some words missing in the third sentence but the burden of the answer is clear: "6.13 What is the nature and cause of renal disease in the plaintiff? In particular, is there any contribution from his Hepatitis C? The experts agree that the plaintiff's renal disease is caused by FSG. The probable cause of the FSG is longstanding Hepatitis C*. There may have been additional contributions to chronic kidney disease from his hypertension and possibly from diabetes, although this does not seem given the findings of the biopsy referred to in paragraph 4.105 of Annexure A. Cryoglobulinemia may have been an additional contributor to his kidney disease. (*Dr Thornley and A/Prof Burke were not aware of the plaintiff's history of Hepatitis C when they prepared their reports in this matter.)"
6. The critical agreement was in the answer to question 6.18, as follows: "6.18 Did any act or omission of each defendant cause or materially contribute to the plaintiff's renal disease? If so, please specify. The experts agree that no act or omission of any defendant caused or materially contributed to the plaintiff's renal disease."
7. There were also questions directed to whether Mr Elysee's own conduct had materially contributed to his condition. The experts agreed that Mr Elysee's own contribution to his hypertension and renal disease was dependent on the extent of his compliance with his blood pressure medication. It was noted that there appeared to have been times when his compliance was sub-optimal.
8. The questions to which Mr Elysee's solicitor had objected were questions 6.20 and 6.21. It was agreed in advance of the conclave that those questions would be answered but that the facilitator would be informed of the objection. The basis for the objection was that causation was ultimately a matter for the trial judge.
9. The response to question 6.20 was as follows: "6.20 Having regard to the medical records relating to the plaintiff that were reasonably available to each of the defendant general practitioners of the medical centre in the period from 2002 to 2012 (including the records relating to each consultation with the plaintiff over that period), and assuming that those general practitioners provided the type of medical care that ordinary reasonable general practitioners of a busy medical centre ought reasonably to have provided, and also having regard to the plaintiff's failure on a number of occasions to follow the advice and recommendations of the general practitioners (including the failure to attend the specialists to which he was referred and his own decision on occasions not to take his prescribed medications correctly), is it more probable than not that the plaintiff's: a. CKD b. Hypertension c. Coronary artery disease d. Type 2 diabetes mellitus e. Chronic hepatitis C virus would be materially different today and, if so, to what extent and why? The experts agree that the plaintiff's clinical course would probably not have been altered had any different medical care been provided by the defendant general practitioners, including by earlier referral to other specialists such as endocrinologists, kidney specialists and cardiac specialists.
10. The experts otherwise referred to their earlier answers. In light of the answer to question 6.20, it was not necessary for them to answer question 6.21.

The liability report

1. The liability conclave was convened a few days later. The questions to be answered had all been agreed in advance. Dr Thornley did not participate in that conclave. The experts who addressed the question of breach of duty in respect of Dr Ngo were Associate Professor Peter Clyne (a retired general practitioner retained by Mr Elysee) and Dr Burke (retained by Dr Ngo). Two other doctors retained by other defendants, Dr Simon Young and Dr Vincent Roche, participated but they did not address the conduct of Dr Ngo; conversely, Dr Burke did not address the conduct of the defendants other than Dr Ngo.
2. The joint report prepared by the liability experts was not provided until 7 May 2018, the first day of the hearing. I will refer to that report as the liability report. It recorded that the experts had reached agreement on some issues including, as to the fourth and seventh defendants, that their treatment of Mr Elysee conformed to the standard widely accepted by peer professional opinion as competent professional practice.
3. As to Dr Ngo, Associate Professor Clyne and Dr Burke disagreed. The question concerning Dr Ngo was directed to his management of Mr Elysee's hypertension and diabetes and whether his care and treatment of Mr Elysee was reasonable and had appropriate regard to the clinical records.
4. Dr Burke expressed the opinion that Dr Ngo had managed the plaintiff's hypertension in the manner expected of a competent medical practitioner. He considered that Dr Ngo had prescribed appropriate medication; that satisfactory control of the blood pressure was achieved by February 2012 and that the cause of poor control from time to time before then was Mr Elysee's non-compliance with medication. Associate Professor Clyne agreed that the prescribed medication was appropriate and that Mr Elysee was non-compliant but considered that Dr Ngo fell short of acceptable standards of care because he failed to investigate the reasons the blood pressure was poorly controlled. He said Mr Elysee should have been informed about the importance of taking his medication and made to understand the significance of non-compliance. He said Dr Ngo should have referred Mr Elysee for specialist intervention if he was unable to achieve blood pressure control.
5. As to diabetes, both experts agreed that the control of Mr Elysee's diabetes was sub-optimal during the period when he was under Dr Ngo's care. However, Dr Burke considered that Dr Ngo had managed the diabetes in the manner expected of a competent medical practitioner dealing with a non-compliant patient. Associate Professor Clyne disagreed.
6. As to overall care and treatment having regard to the clinical records, the experts also disagreed. Dr Burke said that although Mr Elysee's multiple medical problems made it "desirable to have referred the plaintiff to other specialists (endocrinology, nephrology and maybe cardiology)", it would not have made a difference to his clinical path in the long run as he was going to progress to chronic renal failure. He said, "It may have slowed it a bit but it was set in place that he was going to progress to end stage renal failure anyway". At the trial, counsel for Mr Elysee fastened on that statement, contending that it reflected a concession as to causation that was inconsistent with Dr Burke's agreement recorded in the causation report.
7. Associate Professor Clyne disagreed as to the adequacy of Dr Ngo's management. He considered that Dr Ngo had failed to refer, failed to take an adequate history, failed to monitor Mr Elysee's conditions, failed to investigate and failed to follow up.
8. There was also a question as to Mr Elysee's "failure to adhere to medication and suggested referral" which all four experts considered. They agreed that Mr Elysee was non-compliant with medication and in attending referrals. They indicated that the contribution of this to the progression of his illness was otherwise answered in the earlier questions.

Summary judgment application by the other defendants

1. Shortly after the commencement of the hearing, presumably in light of the content of the recently-received liability report, the claims against the fourth and seventh defendants were resolved on the basis that judgment would be entered in their favour.
2. The primary judge then proceeded to hear an application brought by all of the remaining defendants except Dr Ngo for summary judgment under r 13.4 of the UCPR (the sixth defendant, Dr Abdullah, is deceased and was no longer a party at that time). The application was based on the matters agreed in the causation report. For reasons that are not apparent, Dr Ngo did not join in that application but his counsel noted that, if it was granted on the basis indicated (that causation could not be proved), it would follow that Dr Ngo would have the benefit of the same ruling.
3. It is necessary to refer briefly to the course of that application. The defendants tendered the causation report. They noted that the report could be tendered at the trial as evidence of the matters agreed. [6] They further noted that the report clearly reflected a change of mind on the part of the plaintiff's causation expert, Dr Thornley. It was submitted that Dr Thornley could not give any different evidence in the trial to prove causation of any loss having regard to the provisions of the rules concerning expert evidence.
4. In response to the application, counsel for Mr Elysee tendered the liability report. The defendants objected that the content of that report could not rationally affect the assessment of the issues raised by the motion because, whatever the position as to liability, the issue of causation was unanimously and unequivocally put to bed by the causation report. The judge admitted the liability report "subject to relevance".
5. In the course of explaining its relevance, counsel for the plaintiff asserted that the case the plaintiff sought to make was that the proper management of Mr Elysee's condition earlier on would have "slowed the progression" of his kidney disease so that he would have had a better outcome and would not have been faced with imminent dialysis. For that purpose, he relied in particular on Dr Burke's statement that earlier referral to other specialists "may have slowed [the progression to chronic renal failure] a bit".
6. The primary judge then asked counsel for the plaintiff whether he wanted to cross-examine the causation experts on the summary judgment application (counsel had not foreshadowed that course). Ms Elbourne, who was appearing for one of the other defendants, noted that r 31.24(6) of the UCPR forbids any evidence being given about the discussion in a conclave. That rule provides: (6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.
7. The defendants also submitted that the case now sought to be put (that earlier treatment would have slowed the progression of Mr Elysee's condition) was not the case pleaded. Ms Elbourne submitted that to permit Dr Burke's statement in the liability report to be put to the causation experts at this stage would require amendment of the pleading and a further conclave on causation, a course she submitted the judge would not permit at that stage having regard to the requirements of s 56 of the Civil Procedure Act 2005 (NSW). Ms Elbourne further submitted that, in accordance with r 31.28(3)(c), Dr Thornley could not be permitted to give evidence inconsistent with his agreement recorded in the causation report without leave which, pursuant to r 31.28(4), was not to be given unless the court was satisfied that there were exceptional circumstances warranting that course.
8. The primary judge ruled that Dr Thornley could give evidence on the summary judgment application but reserved his position as to the admissibility of the evidence he might give "lest it appear that he is departing from the opinion he has provided in the conclave report".
9. Shortly after that ruling, the three defendants seeking summary judgment reached agreement with Mr Elysee to settle the proceedings, also on the basis of judgment in their favour.

Dr Ngo's summary judgment application

1. That left Dr Ngo as the only remaining defendant. He then made own his application for summary dismissal under r 13.4 of the UCPR, reprising the arguments put by the other defendants. It was recorded at that stage that the plaintiff no longer proposed to call Dr Thornley. Counsel for Dr Ngo accordingly submitted that the plaintiff was back in the position of having to "solve the insoluble causation problem" resulting from the agreement recorded in the causation report. Counsel for Mr Elysee responded that the position as against Dr Ngo was different in light of what Dr Burke had said in the liability report.
2. Counsel for the plaintiff tendered the liability report, which he submitted was relevant on the basis that it recorded an apparent concession by Dr Burke concerning Prof Clyne's opinion that Dr Ngo ought to have referred Mr Elysee for specialist treatment in respect of his hypertension and that, although that would not have stopped end-stage renal failure, it would have slowed its progression. Counsel for Mr Ngo objected to the tender on the basis that the question of causation was answered definitively in the causation report.
3. The resolution of that issue was confusing. The judge reserved his ruling as to the admissibility of the liability report over the lunch adjournment. When court resumed, Mr Elysee renewed his application to call Dr Thornley to give oral evidence. In light of that application the judge said he would defer his ruling on the admissibility of the liability report but then immediately had it marked as an exhibit.
4. The application to call Dr Thornley was opposed on substantially the grounds previously addressed when the other defendants were present. The judge determined to permit the evidence to be led "on this application". Counsel for Dr Ngo evidently understood that to mean that the evidence was being taken on the voir dire (presumably meaning on the application to call further expert evidence-in-chief, for which leave was required). However, the evidence was subsequently treated as being evidence on the summary judgment application.
5. Dr Thornley gave evidence by telephone. Before turning to that evidence, it is necessary to explain some test results obtained shortly before Mr Elysee's first consultation with Dr Ngo. Throughout the period when Mr Elysee was a patient at the Bankstown Medical Centre, he had regular blood tests. Three results were of particular importance: creatinine and the calculation of estimated glomerular filtration rate (eGFR), which give an indication of kidney function, and Hemoglobin A1c (HbA1c), which is a diagnostic test for diabetes. Dr Thornley is an endocrinologist, a specialty concerned with diabetes (among other things). Mr Elysee's results at various times indicated poor renal function and suboptimal control of his diabetes. He also had high blood pressure readings at various times, particularly during the period when he was seeing Dr Ngo.
6. On 16 April 2009, before Mr Elysee's first consultation with Dr Ngo, another doctor at the Bankstown practice (the late Dr Abdullah) had ordered blood tests which revealed that Mr Elysee had an elevated serum creatinine level (120 umol/L) and a low eGFR (54 ml/min/1.73^2). In the manner in which the case was recast following receipt of the causation report, the alleged significance of those particular results assumed some importance in the case against Dr Ngo.
7. The evidence given by Dr Thornley on the summary judgment application (recorded in the transcript as being on the voir dire) was brief. The following evidence was led in chief: Q. What I'd like to do is ask you a question, and the question is, do you believe the progression of the plaintiff's condition to end stage renal failure could have been slowed if Dr Ngo - that is Dr Ngo - had referred the plaintiff to other specialists, be it endocrinologist, nephrologists or maybe a cardiologist? A. In my opinion Mr Elysee should have been referred to a physician such as a nephrologist or an endocrinologist or cardiologist. In 2009, because a review of his kidney function and blood pressure suggested both had deteriorated around the period of 2009. And he was eventually referred by another GP to a renal physician in 2012. So there was a delay by three years, and that did cause a more progressive deterioration in kidney function in my opinion. Q. Are you able to quantify the difference? A. It's likely that if Mr Elysee had been referred to a kidney physician in 2009, it may have delayed the development of end stage renal failure by approximately two years in my opinion."
8. Dr Thornley was then cross-examined by counsel for Dr Ngo as to the time when he considered a referral ought to have been made. It was noted that the doctor had made an error as to the point when the eGFR fell to 54; he had recorded it as being in January 2009 whereas the correct date was 16 April 2009. The doctor accepted that was a typographical error in his report. Apart from that correction, the only cross-examination was as follows: "Q. Is it your evidence then that's the timing point that the referral ought to have been made? A. Yes, and at that time also his blood pressure started to deteriorate. His blood pressure was quite problematic over the next three years."
9. The primary judge then directed questions to Dr Thornley concerning question 6.20 in the causation report (one of the questions to which the plaintiff had objected), concluding as follows: Q. Do you adhere to your - the agreement that is recorded on the following page? A. There was certainly debate about this question, and it was my opinion that the development of renal failure may have been delayed by a couple of years, by about two years. But the two nephrologists - and I defer to them in this because it's their area of expertise - didn't think that was significant but - and I guess I defer to them because they're nephrologists. But I do think it certainly would have been - excuse me - helpful to have referred this matter a bit earlier to a kidney physician. It may have given him a little bit of extra mileage in terms of development of end stage kidney failure."
10. It may be noted that the answer referred to the content of the conference between the expert witnesses which (as the judge had been informed) is prohibited under r 31.24(6) of the UCPR unless the parties affected agree.
11. The judge continued: "Q. Can I just go back now to the conclusion which is - if you could turn to question 6.6? A. 6.6. Yes. Q. Could you just read that question and the answer, and tell us whether you adhere - that is, you agree with the answer that is provided there? A. The answer is I do agree with the answer. It's different to my initial report but there was more - excuse me - more information available subsequent to my report nearly two years ago, which suggests that there was an effort by the general practitioners to refer this man to a specialist … (not transcribable) … on several occasions, and he only attended on one occasion. There was also significant evidence of non-compliance on the part of the patient repeated over the years which I didn't have access to in my initial report. Q. Would you also please turn to 6.12? A. 6.12. Yes Q. Can you just read the one line question and the answers provided and tell the Court whether you adhere - that is, you agree with what you - what is recorded there? A. In terms of non-compliance, there is a lot of evidence of non-compliance … (not transcribable) … needing hypertensive medication. The patient at times simply ran out of medication. His blood pressure was problematic in that three years before he was referred to the renal physician in 2012. Q. All I'm asking is the question is, did any action or omission of the plaintiff materially contribute to this condition? And the answer - A. (Not transcribable) ... acquiring hypertension but in terms of the treatment of hypertension, I think non-compliance was a major issue. He didn't take the prescribed medication. Q. You see that answer, "The experts agree that no act or omission of the plaintiff materially contributed to him acquiring hypertension", A. Well, we - well, that means that he developed hypertension simply - that he developed it - that it contributed to its developing. It was just one of those things. But in terms of the treatment after he developed hypertension, in my submission, the non-compliance, as I said. Q. Would you also go over, if you would, please, to 6.18? A. (Not transcribable) ... Q. Do you see the question and the answer to that question? A. I would agree with that - the statement. The development of the renal disease was not caused by any act or omission of any of the defendants."
12. At the conclusion of argument on the summary judgment application, counsel for Mr Elysee confirmed (in response to a question from the primary judge) that his case was now confined to the contention that, as a result of Dr Ngo's alleged negligence, Mr Elysee had lost the benefit of a two-year delay in reaching end-stage kidney disease requiring dialysis. Counsel added that the case was that Mr Elysee had significant hypertension for three years leading up to that diagnosis and that was "very relevant to the deterioration of his kidney disease".
13. The primary judge refused Dr Ngo's summary judgment application. His Honour found that the claim based on postponement of Mr Elysee's renal failure was "clearly pleaded" and that the experts had not considered that issue in their conclaves. On that basis, his Honour concluded that, although the causation report was conclusive on other issues, the Court could not be satisfied that there was only a bare prospect of success.

Amendment of the pleading against Dr Ngo

1. The case accordingly proceeded against Dr Ngo. During his opening, counsel for Mr Elysee tendered a table of Mr Elysee's serum creatinine levels and calculated eGFR values which included the values recorded for 16 April 2009. Counsel stated that he would be relying on the evidence given by Dr Thornley "that the time to do something different was when the eGFR scores were 54". He also relied on the continuing hypertension in that context.
2. At the conclusion of the opening, counsel for Dr Ngo noted that the case now appeared to include an allegation that the readings on 16 April 2009 should have created in the mind of a reasonable medical practitioner a need for referral. That case was not pleaded. Counsel for Dr Ngo sought clarification as to the kind of specialist to whom it was alleged Dr Ngo should have given a referral at that point. Counsel for the plaintiff sought time to take instructions on that issue. In due course, a second further amended statement of claim was filed containing the following new paragraph: "As a result of the delay in the plaintiff obtaining adequate treatment of his renal disease on or shortly after 20 July 2009 the plaintiff's diabetes and hypertension were sub-optimally controlled up until he was referred to a renal physician in July 2012. But for the delay the progression of the plaintiff's kidney disease would have been slower and the plaintiff may not have developed the cardiac issues that he has developed."
3. The particulars of injuries were also amended so as to remove the allegation that chronic renal impairment, diabetes and hypertension were caused by the alleged negligence. The new particulars confined the case to "acceleration of chronic kidney disease" and "psychological injury". As submitted on behalf of Dr Ngo, the complaint of "acceleration" must be taken to be a misdescription. There was no evidence to suggest that any act of any doctor could have accelerated the disease; the complaint (as amended) was that earlier referral for specialist treatment would have slowed its progression.

Evidence in the primary proceedings

1. Mr Elysee gave evidence. It is not necessary to go to the detail as it does not inform the issues raised in the appeal. Mr Elysee did not initially call evidence from any other witness. The transcript of Dr Thornley's evidence on the voir dire was tendered as an exhibit. Counsel for Dr Ngo did not oppose that course.
2. Dr Ngo did not give evidence. He called Dr Burke, who was asked to explain the sentence in the liability report relied upon by Mr Elysee (that referral to other specialists "may have slowed it a bit but it was set in place that he was going to progress to end stage renal failure anyway"). The burden of Dr Burke's lengthy answer was to adhere to the view expressed in the causation report, namely, that with his primary kidney illness of hepatitis C (which Mr Elysee had acquired when it was untreatable) and the comorbidities with that illness, "the process was already set in place for chronic renal failure".
3. Dr Burke was also asked about the 16 April 2009 results. He explained that serum creatinine is a waste product of muscle. The acronym "GFR" stands for glomerular filtration rates. He emphasised that the "so-called eGFR" is not an actual measurement; it is an estimate of the filtration rate expressed as a percentage. Dr Burke said that a creatinine around 100 or 120 is "so-called normal range" and that patients do not require dialysis until creatinine reaches about 500. He indicated that he personally does not place a lot of faith in the eGFR calculation, stating that there are other ways of calculating the filtration rate which achieve a more accurate result.
4. As to the creatinine reading on 16 April 2009 of 120, Dr Burke said that was "becoming borderline normal, borderline abnormal". He explained that a number of factors can cause a rise in the serum creatinine, such as viral illness, certain medications and dehydration. He said that, in the face of a mild rise in the serum creatinine (implicitly, such as that shown on 16 April 2009), the first thing he would do would be to repeat the test.
5. The other readings of creatinine and eGFR seen by Dr Ngo were as follows: Date Creatinine eGFR 1 March 2010 100 68 17 August 2010 95 69 15 February 2012 110 60

1. As to the result of 1 March 2010, Dr Burke said that, as a nephrologist, he would know from that result that there could be some damage done to the kidneys but he regarded that level as still within the normal range. He said that the readings of 17 August 2010 and 15 February 2012 were also within the normal range.
2. Dr Burke was asked whether the readings of 16 April 2009 warranted referral to a renal physician. He said, "No, I would have thought that the general practitioner should have repeated that blood test. That would have been what I would have thought that he should have done." He was not challenged on that evidence.
3. Pressed as to what he meant when he said referral to a specialist "may have slowed it a bit", Dr Burke said: "A. Well what I was saying is that his renal function was - has progressed to chronic renal failure. What, as I've said earlier, what are the contributing factors to that? We've got his focal segmental sclerosis associated with the hepatitis C, we've got hypertension that can be a contributing factor if it's not well controlled, and it wasn't well controlled and there were apparently some compliance problems there, and so on the biopsy there was some evidence of hyalinosis, and that can be caused by hypertension. So what I'm saying is that there - that some of that histological damage and microvascular damage done in his kidneys is possibly related to hypertension. Other factors could be genetic, and also the diabetes can contribute to microvascular disease as well as hepatitis C. So there are a number of factors there that with the hepatitis C, the diabetes, the hypertension, possibly genetic, that contributed to the worsening of the microvascular disease, that can then cause further deterioration of the renal function."
4. Turning then to Dr Ngo's treatment of the hypertension, Dr Burke described the course of treatment prescribed by Dr Ngo and expressed the opinion that Dr Ngo had given the kind of management that he, Dr Burke, would recommend. His evidence-in-chief concluded by reference to the agreement between the experts as to causation of the renal disease, saying: "A. That's correct. And the reason for that being is that the factors that are contributing to that renal function to - possibly deteriorating were hypertension, and that was being addressed by Dr Ngo with changes in his blood pressure medication, and also in an attempt to get better control of the diabetes, which can also then cause further deterioration in renal function. But the primary disease, being caused by hepatitis C, that wasn't a cause or the fault of the patient or any of the doctors that he actually had that disease with the co-morbidities with it."
5. In cross-examination, it was put to Dr Burke (contrary to the position accepted by all of the causation experts) that Mr Elysee's hypertension, rather than hepatitis C, was the primary cause of his renal failure. Dr Burke did not accept that proposition. He accepted that hypertension was a contributing cause but maintained the view that hepatitis C was the primary cause. He also noted, in respect of the management of hypertension, that Mr Elysee appeared to have been non-compliant with his medication.
6. Dr Burke accepted that he would have been able to get Mr Elysee's blood pressure under good control. It was put to him that that was one of the reasons he had agreed with Associate Professor Clyne in the liability conclave that it would have been preferable for Mr Elysee to be referred to a specialist back in 2009. He said he did "not necessarily agree" that a specialist would be better able to make a patient more compliant. He was then asked whether he wished to change the opinion he had expressed in the liability report. He said he maintained his opinion that Mr Elysee was going to progress to chronic renal failure. He said what he was suggesting in the liability report was that, if Mr Elysee had had better control of his blood pressure, that may have slowed the progression but that it would be "hard to put a qualitative effect on that".
7. Dr Burke was cross-examined as to whether the eGFR and creatinine results of 16 April 2009 should have prompted the medical practitioners to consider kidney disease. He said: "A. Well, I think any treater that knows that somebody's got diabetes, then they are at risk of kidney disease. The - the point is - is that on the blood test, there was nothing there that suggested that there was significant impairment or renal impairment on the grounds that you have to have about 45% to 50% permanent damage before you'll see a change on - on the blood test."
8. In short, nothing in Dr Burke's evidence afforded a basis for finding that Dr Ngo was negligent in the management of Mr Elysee's hypertension or in failing to refer him to a specialist in 2009 or thereafter.
9. Dr Ngo also tendered a pathology report dated 27 April 2009, less than two weeks after the allegedly critical results of 16 April 2009. That report had been requested by Dr Youssef Nagwa of a practice at Ramsgate. There was no suggestion that it had ever been seen by Dr Ngo but it was significant on the issue of causation because it showed creatinine of 87 (where normal range is 56-120) and an eGFR calculation of 84 (where more than 60 is regarded as being within the normal range). Those results were marked exhibit 3.
10. In his closing submissions, counsel for Dr Ngo submitted that the plaintiff could not establish causation. He noted the evidence of Dr Burke that the reading of 16 April 2009 suggested a need to confirm the test. In reliance upon exhibit 3, he submitted that the only evidence was that, 11 days later, normal values were recorded. He noted that the onus of proof was on the plaintiff to prove causation (in accordance with s 5D of the Civil Liability Act 2002 (NSW)) and submitted that causation could not be proved.
11. Concerning Dr Thornley, counsel for Dr Ngo noted that, at the time Dr Thornley prepared his report, he was not aware that Mr Elysee had hepatitis C. Counsel also noted that Dr Thornley had not been told about the report in exhibit 3 which showed a normal creatinine level and eGFR calculation shortly after the results of 16 April 2009.
12. The judge indicated his view that those matters should have been put to Dr Thornley in cross-examination and volunteered that he would consider an application by Mr Elysee to re-open his case to call Dr Thornley. The following morning, counsel for Mr Elysee made that application.
13. The application was opposed by counsel for Dr Ngo on a number of grounds. First, he recorded that he had only been informed of the application at 10 o'clock that morning. Secondly, he submitted that it would be an extraordinary step to allow a plaintiff to reopen his case after closing submissions. Thirdly, he noted that no exceptional circumstances had been identified for allowing further expert evidence to be adduced. As already noted, it had been drawn to the attention of the primary judge during the summary judgment application by the other defendants that the rules concerning expert evidence imposed such a constraint. Dr Thornley's original report, while straying into liability issues, had offered no specific opinion concerning the conduct of Dr Ngo. It addressed the whole ten year period and did not address the position regarding any individual doctor. Fourthly, it was noted that the decision not to call Dr Thornley in the trial had been a forensic decision made by counsel for the plaintiff and that he had instead chosen only to tender the two pages of transcript of the evidence on the voir dire. Fifthly, counsel for Dr Ngo reminded the judge of the provisions of ss 56 and 58 of the Civil Procedure Act. Finally, he noted that counsel for Mr Elysee had not even outlined the further evidence he proposed to adduce.
14. The primary judge granted the application without calling on counsel for Mr Elysee to respond to those powerful submissions. In his brief oral reasons, the judge expressed the view that the question whether Dr Thornley was aware that Mr Elysee suffered from hepatitis C after he prepared his expert report was "of critical importance in the case". It is not clear why that was thought to be so. It was clear from the causation report that Dr Thornley had learned about the hepatitis C at least by the time of the conclave. The point Dr Ngo's counsel had been making in his closing submissions was that the absence of that information at the time Dr Thornley prepared his original report explained the change in his opinion.
15. In any event, further evidence was given. Dr Thornley said he had become aware of the fact that the plaintiff had long-standing hepatitis C at the time he received the defendants' expert reports. He said that this information did not change his opinion. That evidence is difficult to reconcile with the fact that, in his original report, Dr Thornley expressed the opinion that failure to manage the plaintiff's conditions had caused his kidney disease whereas, in the joint causation report, he joined in the opinion that the cause of the disease was probably his long-standing hepatitis C. In explaining why that information did not change his opinion, Dr Thornley in substance reverted to the opinion expressed in his original report. He said that focal glomerulosclerosis can be caused by hepatitis C but can also be caused by hypertension. He emphasised that Mr Elysee had had high blood pressure readings over a three-year period from 2009 to 2012.
16. Counsel for Mr Elysee also directed some short questions to Dr Thornley's expertise.
17. At what was to be the conclusion of the further evidence-in-chief, the judge suggested to counsel for the plaintiff that he might wish to ask Dr Thornley about the issue of "the period over which the onset of the need for dialysis might have arisen because of the alleged failure". Counsel for Mr Elysee then asked a further question by reference to Dr Thornley's report in the following exchange: "Q. Then at the end of that paragraph you've expressed an opinion in respect to this case, and you've said that if some other things have been done, it is highly likely that kidney function would be much improved compared to what it is now. Do you see that? A. Yes Q. Are you able to give qualitative effect, or quantify that in respect of the progression of the kidney disease? A. Mr Elysee had a three year period of poorly controlled hypertension, as I said, between 2009 and 2012, and during that time, certainly by 2012, kidney function had deteriorated significantly, and he had established stage 3 chronic kidney disease, which since then has progressed. It is my opinion that if his hypertension had been flagged in 2009 and treated appropriately at that time, probably with multiple medications - and in fact when he saw Dr Mangos in 2012 he was on four-five medications within 12 months - that his blood pressure would have been better controlled, and that would have resulted in a slowing of the progression of the chronic kidney disease."
18. That was a new opinion. In his original report, Dr Thornley had not expressed any opinion by reference to the period between 2009 and 2012. As set out above, his opinion as to causation of damage was expressed by reference to what would have happened "if the diabetes and hypertension had been appropriately controlled, at least from the period 2006 onwards".
19. The judge then asked further questions directed to the evidence Dr Thornley had given on the voir dire concerning the agreed answer to question 6.20 of the causation report, as follows: "Q. In your telephone evidence you said there was certainly debate about this question, that is, the question as to what period of time the plaintiff would have before he's likely to need dialysis. A. Mm. Q. You said 'There was certainly debate about this question' - that's presumably in the conclave. A. Yes. Q. 'And it was my opinion that the development of renal failure may have been delayed by a couple of years, by about two years. But the two nephrologists, and I defer to them in this case because of their expertise, didn't think that was significant but I guess I defer to them because they're nephrologists.' When you say 'It was my opinion' do you mean it was your opinion in the past but something has happened to change that opinion or are you still of that opinion? A. I'm still of that opinion. Q. Well then in what way do you defer to the nephrologists? A. At the time of the conclave, I was the only one who had that opinion and I guess it was a consensus three out of four that the wholly controlled hypertension in that three year period would not have made a material difference, but in my experience it does and it's an essential part of managing patients with hypertension and impending chronic kidney disease that you control the blood pressure very tightly and there is some data that that can delay the need for dialysis, for the development of coronary artery disease, et cetera, et cetera. Q. Yes, you continued, but I do think certainly it would've been helpful to have referred this matter a bit earlier to a kidney physician, it may have given him a little bit of extra mileage in terms of development of the end stage kidney failure. A. That's correct Q That's still your opinion? A. Yes it is."
20. Counsel for Dr Ngo attempted to cross-examine Dr Thornley on the same issue, specifically, the fact that the two nephrologists had not agreed with his view that, with better treatment of the hypertension, the development of renal failure may have been delayed by about two years. Counsel for the plaintiff objected to the question on the basis that it would contravene r 31.24(6) of the UCPR (no such objection had been taken when the issue was raised by the judge).
21. After taking the issue a bit further, the cross-examiner was eventually stopped in that line of questioning on the basis of the apprehended breach of the rules. After the conclusion of the cross-examination, however, the judge asked further questions on that issue but by reference to the doctor's original report, as follows: "Q. You were asked some questions concerning the disagreement that took place in the conclave, and you referred to that in your evidence at page 73 of the transcript. What I'm not clear on is whether you are adhering to your opinion that had the disease, had the renal condition been properly treated, it is highly likely that the need for dialysis would not have been possibly required for an additional two years? A. That is correct. Q. That's your view today, is it? A. Yes, that's an estimation, your Honour. Q. So you're saying it is highly likely that that would be the result? A. I would modify that to probably, your Honour. Q. It's probable that the disease would have been slowed? A. Yes, your Honour. Q. It's probable that the disease would have been slowed for up to two years? A. Correct.
22. With respect, the judge's question conflated several aspects of Dr Thornley's earlier evidence. In his original report (before he knew about the hepatitis C), Dr Thornley had said: "If the diabetes and hypertension had been appropriately controlled, at least from the period 2006 onwards, then it is highly likely that kidney function would be much improved compared to what it is now and that Mr Elysee may not have developed the cardiac issues that he has developed."
23. In his evidence on the voir dire (notwithstanding his agreement recorded in the causation report at question 6.20 that the plaintiff's clinical course would probably not have been altered had any different medical care been provided by the general practitioners, including earlier referral) he had been permitted to express the opinion that "it's likely that if Mr Elysee had been referred to a kidney physician in 2009, it may have delayed the development of end stage renal failure by approximately two years" (my emphasis). He had not said that was "highly likely".
24. Apart from making a number of unarticulated assumptions as to what was comprehended in the premise "had the renal condition been 'properly treated'", the judge's question educed evidence of the firmer opinion that, had that occurred, the disease "probably" would have been slowed for up to two years.

Primary judge's findings

1. The recitation of the evidence in the primary judgment is confusing in some respects. After summarising the pleadings, his Honour indicated that he would set out in tabulated form "hypertension readings showing and classifying the systolic and diastolic readings for normal and elevated risk" and that "these two tables will be incorporated in the decision". However, the first table that followed (table A) in fact set out the creatinine and eGFR readings for the five dates relevant to the claim against Dr Ngo (the four results obtained by Dr Ngo and the additional result in exhibit 3). That may have been a reproduction of a document handed up by counsel for Dr Ngo during his closing submissions. The table included notes apparently derived from the relevant pathology reports. In respect of the results of 16 April 2009, against the eGFR calculation of 54, the note said "suggests moderate chronic kidney failure". It is not clear whether his Honour intended to record that as a finding or merely a replication of the pathologist's note; if it was the latter, it was incomplete. The full note was "eGFR 30-59 mL/min/1.73m 2 suggests moderate chronic kidney failure and indicates the need for further investigation including assessment of proteinuria and cardiovascular risk factors".
2. Similarly, concerning the results obtained by the doctor at Ramsgate on 27 April 2009 showing an eGFR of 84 (derived from exhibit 3), the table included a note "does not exclude kidney disease". Again, that is the note on the pathology report. It is not clear what reliance his Honour placed on it; the unchallenged evidence of Dr Burke was that an eGFR calculation of 84 was within normal range.
3. Table A was followed by table B which set out a generic classification of severity of hypertension, as described in the judgment.
4. Next, the primary judge said he would be referring to "readings known as 'eGFR'". In fact, as explained above, the eGFR calculations had already been set out in table A. What followed as table C was a table headed "Stratification of cardiovascular risk in hypertension to quantify prognosis". The relevance of that information to his Honour's findings was not explained. Finally, as table D, his Honour set out a summary of medical terms handed up during submissions.
5. The primary judge then summarised the plaintiff's history and the history of his treatment by Dr Ngo, including a table of all blood pressure measurements taken by Dr Ngo. His Honour then recorded at [22]: "Significantly readings were taken of creatinine and eGFR on 16 April 2009 by Dr Ngo. The readings showed that there was moderate chronic kidney failure as at 16 April 2009. The readings thereafter fluctuated but for present purposes the plaintiff relies essentially on the failure of the practitioner to refer him for specialist treatment resulting from 16 April 2009 readings."
6. With respect, that paragraph contained a number of errors. First, the readings of 16 April 2009 were not taken by Dr Ngo but by the late Dr Abdullah. As recorded elsewhere in the judgment, the first time Mr Elysee consulted Dr Ngo was on 20 July 2009. Secondly, the finding that the serum creatinine level and eGFR calculation of 16 April 2009 showed that there was "moderate chronic kidney failure as at 16 April 2009" is directly contrary to the only expert evidence on that issue, being the evidence of Dr Burke summarised above.
7. The primary judge then recited the medical evidence at length. In doing so, he repeated an error in the report of Dr Clyne that Dr Ngo was managing Mr Elysee's blood pressure "from 26 May 2009": at [34]. In fact, as already noted, Mr Elysee's first consultation with Dr Ngo was on 20 July 2009. Further, whereas Dr Clyne assumed that Dr Ngo was Mr Elysee's general practitioner throughout the relevant period, he was in fact seeing other doctors and had described another doctor, not Dr Ngo, as his GP.
8. The primary judge then turned to consider the defendant's submissions. After referring to a submission concerning Mr Elysee's failure to return to see Dr Ngo within two weeks after 20 July 2009 (as he had been advised to do), the judge said at [76]: "Again this matter is a factor for consideration, but is secondary to the critical matter of whether the plaintiff should have been referred to a specialist in April 2009. The defendant did not cross-examine Dr Clyne, nor Dr Thornley."
9. Dr Ngo could not, of course, have referred Mr Elysee to a specialist in April 2009 as he did not meet him until July of that year. More importantly, the last sentence was wrong. When Dr Thornley gave evidence on the voir dire, counsel for Dr Ngo cross-examined him briefly to pin him down to the eGFR calculation of 54 in April 2009 as the point at which he was saying the referral to a specialist should have been made. When the judge granted leave to the plaintiff to call further evidence from Dr Thornley after the conclusion of closing submissions, counsel for Dr Ngo cross-examined him at length. It is true that he did not specifically put to Dr Thornley that there was no warrant to refer Mr Elysee to a specialist in April 2009. The burden of the point sought to be put in cross-examination went to causation (the issue on which Dr Thornley had been put forward as an expert and the issue in which he had apparently been permitted to give further evidence). Specifically, counsel sought to put to Dr Thornley that his view as to whether any damage was caused by the alleged delay in treatment was at odds with those of the two nephrologists, to whom he had said he deferred. However, that cross-examination was curtailed by the objection on the basis of r 31.24 of the UCPR.
10. After a consideration of the defendant's submissions concerning the evidence of Dr Thornley and Associate Professor Clyne, the judge said at [80]: "The Court considers that the evidence of Dr Thornley should prevail. Namely, that had the plaintiff been referred to a specialist physician practising in the renal area, at a time when the indicators were that he was suffering from chronic renal failure, in April 2009, should be accepted [sic]. Dr Bourke [sic] did not contest such conclusion, and Dr Burke's evidence is supportive of such opinion."
11. The syntax of the second sentence is such that the finding is incomplete in a critical respect. As far as it goes, it is framed as a finding as to causation, not breach of duty. However, it entails (whether as a finding or an assumed premise) the proposition that the test results of April 2009 indicated that Mr Elysee was suffering from chronic renal failure. Dr Burke's evidence contradicted that premise and there was no other evidence that supported it. In light of the confusing references to "Dr Bourke" and Dr Burke" in the last sentence, it is not possible to know what evidence the judge was relying on to find otherwise.
12. The primary judge continued at [81]: "As to the length of time when the plaintiff may have been able to postpone dialysis, Dr Burke, whilst he could not quantify the time, agreed that it may have slowed the progress. The Court, in view of the unchallenged evidence of Dr Thornley, considers that two years is the approximate time. The Court also notes the evidence of Associate Professor Clyne is supportive and considers that in the circumstances the evidence establishes that the plaintiff should have been referred for specialist renal treatment in April 2009 and thereafter, being in mind [sic] that the hypertension was, according to all the records, poorly controlled or uncontrolled. Lastly, Dr Burke agreed the earlier intervention might have slowed the progress of the plaintiff's condition" (emphasis added).
13. The judge expressed his conclusion at [93] under the heading "Findings", as follows: "The Court finds that the defendant was negligent in failing to refer the plaintiff for specialist medical treatment when the test results indicated that such a course was required. In making such finding, the Court accepts the evidence of Associate Professor Clyne and Dr Thornley. Secondly, the Court finds that but for such negligence, the plaintiff may have postponed the onset of his illness for a period of two years before dialysis will be required."
14. Reading that conclusion together with the finding at [81], it is clear that the kind of specialist to whom his Honour considered the referral should have been made was a renal specialist. Unhelpfully, whereas the preceding discussion had been confined to the question whether there should have been referral based on the results of 16 April 2009, the finding at [81] was that the referral should have been made "in April 2009 and thereafter". The primary judge made no finding as to what would have happened had such a referral been made. In the context of the evidence as to Mr Elysee's non-compliance with previous referrals and prescribed medication, that was an important issue.

Principles to be applied in determining the appeal

1. The principles to be applied in determining an appeal brought under s 127 of the District Court Act were considered by Sackville AJA in Hare v Harmer [2009] NSWCA 68 at [38]-[47]. The appeal is by way of rehearing and the Court has the powers and duties of the court from which the appeal is brought, including powers and duties concerning the drawing of inferences and the making of findings of fact: s 75A(5), (6)(b) of the Supreme Court Act 1970 (NSW). As the discussion in Hare v Harmer reveals, the determination whether to exercise and discharge those powers and duties or to order a new trial (or neither) requires careful consideration. In that case, it was not appropriate for the Court to resolve the factual issues raised by the appeal as they required an evaluation of conflicting lay and expert evidence. Accordingly, it became necessary for the Court to consider the constraint in ordering a new trial imposed by r 51.53(1) of the UCPR. However, as Sackville AJA explained, there are circumstances in which this Court can appropriately substitute its own findings of fact for those made by the trial judge. His Honour said at [47]: "Waterways Authority v Fitzgibbon does not necessarily prevent an appellate court, where the trial judge has been shown to have erred on a factual question, from substituting its own findings of fact for those made by the trial judge. It may be that, once the trial judge's error is corrected, the probative evidence on a particular issue points to only one conclusion. Alternatively, if the remaining evidence, although conflicting, presents no issue of the reliability or credit of particular witnesses, the appellate court may be in as good a position as the trial judge to resolve the conflict: cf Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551-552, per Gibbs ACJ, Jacobs and Murphy JJ. Moreover, it is necessary to bear in mind the "overriding purpose" stated in s 56(1) of the Civil Procedure Act. Nevertheless, Waterways Authority v Fitzgibbon suggests that in a case where there is conflicting oral evidence, or where there is an unresolved dispute as to the reliability of evidence, an appellate court should exercise caution before deciding to substitute its own findings for those made by the trial judge."
2. Further, the reference in s 75A(6) of the Supreme Court Act to the powers "and duties" of this Court concerning the drawing of inferences and the makings of findings of fact would suggest that, where this Court is in as good a position as the trial judge to resolve the factual issues necessary to determine the case, it should do so.

Breach of duty

1. The first ground of appeal is: "The trial judge erred in determining that the appellant breached the duty of care that he owed to the plaintiff."
2. The primary judge's finding as to breach of duty was that Dr Ngo "was negligent in failing to refer the plaintiff for specialist medical treatment when the test results indicated that such a course was required".
3. The respondent submitted that the challenge in ground 1 misunderstands that finding. He submitted that the "test results" to which his Honour referred were not the borderline kidney function tests obtained on 16 April 2009 but rather "the abnormal blood pressure reading scores and diabetes scores (HbA1c)". Senior counsel for the respondent subsequently acknowledged in oral submissions that the primary judge did not address the question of diabetes. However, the submission was maintained that it was never the plaintiff's case that he should have been referred to a renal physician in 2009 on the basis of tests indicating chronic kidney failure and that the finding at [93] of the primary judgment referred not only to the results of 16 April 2009 but also to subsequent blood pressure readings.
4. I do not accept those submissions. As the foregoing analysis of the course of the trial reveals, while a broader case was originally pleaded, the case put forward following the determination of the summary judgment applications was that Dr Ngo was negligent in failing to refer Mr Elysee for treatment by a specialist renal physician on the strength of the results of 16 April 2009.
5. Further, that is the case determined by the primary judge. Reading the judgment as a whole, it is clear that the test results to which his Honour referred at [93] of the primary judgment were the creatinine and eGFR results of 16 April 2009 referred to in the earlier passages of the judgment set out above.
6. The finding as to breach of duty combined a factual finding as to the medical significance of those results and a judgment as to the content of the duty of care owed by Dr Ngo. As already noted, Dr Ngo was content to argue the appeal on the assumption that he saw those results, even though there was no evidence that he did. On that assumption, he submitted that the evidence did not support the finding that the results indicated that Mr Elysee had chronic kidney disease or that referral to a renal specialist was required at that stage.
7. The evidence of Dr Burke on those issues is summarised at length above. As noted in that discussion, it does not support the judge's finding of negligence. The burden of his evidence was that the appropriate response to a single test result showing a mild elevation in creatinine was to repeat the test.
8. In his further evidence given at the end of the hearing, Dr Thornley agreed that "one-off" pathology tests can be misleading and that, in respect of the eGFR calculation of 54, it would be desirable to have a repeat test to determine whether that was an accurate value. That evidence was not considered by the primary judge.
9. In my view, the appellant has demonstrated that the judge's finding as to breach of duty is unsupported by the evidence. There was no evidence to support a finding that the pathology results of 16 April 2009 indicated that referral to a specialist was warranted. The only specific evidence on that issue was to the effect that a single result is inconclusive and that the general practitioner should have repeated that blood test. Dr Thornley's evidence did not address that issue with any specificity. His opinion was that Mr Elysee "should have been referred to a physician such as a nephrologist or an endocrinologist or cardiologist" in 2009 "because a review of his kidney function and blood pressure suggested both had deteriorated around the period of 2009". That evidence rolled up a number of unarticulated premises and was otherwise so vague as to be incapable of supporting the finding of negligence made by the primary judge.
10. Even assuming the primary judge's finding as to negligence included reliance upon the blood pressure readings over the whole period from 2009 to 2012, the evidence did not establish that referral to a specialist was required at any particular point during that period. When pressed on that issue, senior counsel for the respondent submitted that the referral should probably have been made in May 2011 but the basis for choosing that point was not articulated. The evidence of Dr Burke was that, throughout that period, Dr Ngo was prescribing the medications that Dr Burke would have prescribed and that the poor control of hypertension at various times was due to non-compliance with medication.
11. To the extent that the separate allegation of negligent management of the hypertension was maintained (which is not clear), the judge's finding did not extend to breach of duty on that basis; it was confined to the alleged failure to refer. The respondent's notice of contention does not address that issue and accordingly it is not open to him to contend that the primary judge should have found negligence on any basis other than failure to refer to a specialist.

Causation

1. The second ground of appeal is: "The trial judge erred in determining the issue of causation: (a) [not pressed] (b) in permitting the respondent leave to call Dr Thornley; (c) in failing to consider all of the evidence (in particular, Exhibit 3); (d) in preferring the opinion evidence of Dr Thornley concerning renal function and prognosis to that of Dr Burke and Dr Endre (both being opinions to which Dr Thornley deferred); (e) in failing to provide adequate reasons for preferring the opinion evidence of Dr Thornley concerning renal function and prognosis to that of Dr Burke and Dr Endre."
2. In my respectful opinion, the judge erred in allowing Dr Thornley to give further evidence after the conclusion of closing submissions. First, it was procedurally unfair, for the reasons given by counsel for Dr Ngo when he opposed the grant of leave. Secondly, to the extent that the evidence strayed beyond the opinions expressed in the report previously served, leave should not have been granted unless there were exceptional circumstances: r 31.28(4) of the UCPR. None were identified. The course of the evidence (particularly the answers given to the questions put by the primary judge set out above) resulted in the expression of what was arguably a fresh opinion specifically addressing the position from 2009 and exclusively directed to the conduct of Dr Ngo without notice to him.
3. The respondent submitted that the reason the primary judge allowed further evidence from Dr Thornley was that the causation report did not deal with the issue of postponement. That is what is recorded in the primary judgment at [14]. However, those remarks were directed to the evidence given by Dr Thornley on the summary judgment application. When the transcript of that evidence was tendered in the trial, it was not objected to by counsel for Dr Ngo. The complaint in ground 2 is directed to the second round of evidence given by Dr Thornley after the conclusion of the defendant's closing submissions. The burden of the complaint is that, having heard closing submissions from the defendant as to why that evidence failed to establish causation, the judge permitted Dr Thornley to give further evidence to shore up the plaintiff's case.
4. In any event, even assuming the evidence was appropriately admitted, in my respectful opinion, the finding of causation is unsustainable. As already explained, the primary judge's finding as to breach of duty was confined to negligence in failing to refer to a specialist. The finding as to what damage was caused by that negligence was "the Court finds that but for such negligence, the plaintiff may have postponed the onset of his illness for a period of two years before dialysis will be required."
5. Assuming the negligence finding related to the failure to refer Mr Elysee to a renal specialist on the strength of the creatinine and eGFR results of 16 April 2009, there is no evidence to establish that the course of Mr Elysee's treatment would have been any different had a referral been given at that point. Indeed, the evidence rather suggested otherwise. Exhibit 3 was important on that issue. It showed that, less than two weeks after the borderline results of 16 April 2009, a repeat blood test gave results well within the normal range. If a referral had been given at Mr Elysee's first consultation with Dr Ngo on 20 July 2009, it is entirely speculative as to what would have been shown by any further blood tests at the time the referral was taken up, what treatment any specialist would then have given and whether that would have resulted in any different outcome for Mr Elysee.
6. Even if the primary judge is to be understood to have found that it was negligent not to refer Mr Elysee to a specialist at some unidentified point after April 2009 based on his high blood pressure readings, the finding is unsustainable. The joint causation report held unanimously and unequivocally that the appellant did not cause or materially contribute to the progress of the respondent's chronic kidney disease. As already explained, there was a measure of ambivalence in the way in which the case developed after the receipt of that report. Contrary to the respondent's submissions in the appeal, a case was squarely put that Mr Elysee should have been referred to a renal physician in 2009 when creatinine and eGFR test results (allegedly) indicated abnormal kidney function. Indeed, as the case was opened against Dr Ngo, that appeared to be the only remaining issue. At that stage, the basis on which it was said that the hurdle posed by the causation report could be overcome was Dr Burke's alleged concession that referral to a renal specialist "may have" slowed the disease "a bit". That was hardly cogent proof of causation.
7. As the case proceeded in the plaintiff's cross-examination of Dr Burke, in closing submissions and in the additional evidence of Dr Thornley, the distinction between the narrower case and the case originally pleaded became blurred. That is perhaps reflected in the judge's finding of negligence in failure to refer in April 2009 "and thereafter". The difficulty with that finding, and the case it determined, was the absence of any clarity as to when (if not on 20 July 2009) or to whom a referral should have been made and what difference it would have made at any point.
8. With respect, the primary judge did not explain his reasons for preferring the very general evidence of Dr Thornley over that of Dr Burke. In circumstances where, in the joint causation report, Dr Thornley had indicated that he would defer to the two nephrologists (Dr Burke and Dr Endre), their evidence as to causation should have been accepted as being determinative. Even if that is wrong, there was no evidence as to what different outcome might have been achieved had a referral been given in May 2011, as the respondent submitted should have occurred, [7] or indeed at any other time.
9. Finally, as submitted on behalf of Dr Ngo at the trial, it was not established and there is no basis for inferring that, against a history of failure to follow up referrals to specialists and non-compliance with his medication, Mr Elysee would on this occasion have conducted himself in such a way as to obtain any greater benefit from a referral to a specialist at some point between 2009 and 2012 compared with the treatment he was being offered by Dr Ngo.
10. For those reasons, I am satisfied that the challenged findings cannot stand.

Determination of the appeal

1. It cannot be said that this is a case in which the evidence was all one way. There was conflicting evidence between the experts. However, that conflict presents no issue of the reliability or credit of the relevant witnesses, each of whom agreed to be bound by the code of conduct referred to in r 31.23(1) of the UCPR (set out in Schedule 7). In those circumstances, I do not think there is any occasion to order a new trial. This Court is in as good a position as the trial judge to resolve the conflict in accordance with the principles discussed by Sackville AJA in Hare v Harmer.
2. The evidence does not support the conclusion that it was negligent of Dr Ngo not to refer Mr Elysee to a renal specialist on the strength of the creatinine and eGFR results of 16 April 2009. Even assuming the plaintiff maintained the broader case of failure to refer at some unidentified point over the following three years on the strength of the high blood pressure readings and having regard to the plaintiff's hepatitis C and its comorbidities, Dr Ngo has demonstrated that, even if a breach of duty of care could be established (which may be doubted), Mr Elysee cannot prove causation of any loss. For those reasons, I propose the following orders: 1. that the appeal be allowed; 2. that the orders of the primary judge entered on 31 May 2018 be set aside; 3. that judgment be entered for the appellant; 4. that the respondent pay the appellant's costs of the proceedings before the primary judge and of the appeal; 5. that the respondent be granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
3. SACKVILLE AJA: I agree with McCallum JA.

Endnotes

1. Elysee v Ngo [2018] NSWDC 137. Dr Hassan was originally the first defendant but the proceedings against him were resolved after the commencement of the hearing.
2. Elysee v Ngo [2018] NSWDC 137 at [93].
3. Elysee v Ngo [2018] NSWDC 137 at [84].
4. Elysee v Ngo [2018] NSWDC 137 at [81].
5. Elysee v Ngo [2018] NSWDC 137 at [95]-[97].
6. UCPR, r 31.26.
7. Tcpt, 1 March 2019, p 34(3) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2019