Supreme Court New South Wales

• Medium Neutral Citation: O'Reilly v Western Sussex NHS Trust (No.6) [2014] NSWSC 1824
• Hearing dates: 7/10/2013 - 11/10/2013,14/10/2013 - 18/10/2013 (UK)4/11/2013 - 8/11/2013, 13/11/2013 - 15/11/2013, 31/01/2014, 14/02/2014, 07/05/2014 - 08/05/2014
• Decision date: 19 December 2014
• Jurisdiction: Civil
• Before: Garling J

Decision

(1) Judgment for the plaintiff in a sum to be calculated for damages for the value of the dependency of the late Dr O'Reilly;

(2) Judgment for the defendants on the claim by the plaintiff for damages for personal injury by way of psychiatric harm;

(3) Direct the parties to bring in short minutes of order to reflect the amount of judgment in Order (1). Such short minutes to be filed and served by 13 February 2015;

(4) If any party seeks to make an application for costs, then such application is to be made by notice of motion supported by affidavit evidence and is to be filed and served no later than 4pm 13 February 2015;

(5) Any evidence in response to such application is to be filed and served no later than 4pm 27 February 2015;

(6) Grant leave for such motion or motions to be made returnable before Garling J at 2pm on 13 March 2015;

(7) Adjourn the proceedings generally for directions to 2pm on 13 March 2015;

(8) Liberty to apply on 3 days' notice.

• Catchwords: PRIVATE INTERNATIONAL LAW - choice of law - torts - agreement as to applicable law - common law of England and Wales; TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - duty of care - standard of care - health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom in 2003; TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - breach of duty - second defendant - ought to have ordered a colonoscopy be undertaken to ensure whole of the left colon up to and including splenic flexure was visualised, whether - third defendant - performed endoscopy procedure without due care and skill by failing to insert endoscope to sufficient distance to visualise splenic flexure, whether - failed to appreciate investigation was incomplete and refer for further investigation, whether - investigation accorded with acceptable professional practice in the United Kingdom at that time, whether - in 2003 following the 2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland would be following acceptable practice, whether - particular doctor free to proceed in a way which did not conform with the Guidelines if the doctor judged that the particular circumstances warranted a different approach - breach of duties established; TORTS - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK) - compensation to relatives - medical negligence - essentials of cause of action - causation - wrongful act, neglect or default was the sole or substantial cause, or a material contribution to, the death giving rise to the claim, whether - delay in treatment of colorectal tumour was a cause in law of death, whether - cause of death - death due to complications attributable to obstructed bowel and emergency operations, whether - death due to terminal cancer, whether - stage of tumour in 2003 - benign and not metastasized, whether - malignant and metastasized, whether - expert evidence of tumour volume doubling time - expert evidence of development of metastases - malignant tumour in 2003 - metastatic spread beyond immediate region of tumour in 2003 - treatment which would have been administered had the cancer been discovered in 2003 - planned surgical removal of tumour and affected lymph nodes and chemotherapy administered - no bowel obstruction and emergency surgery in 2006 would have occurred - causal connection between bowel obstruction and death - compensable loss established - extent of loss - likely survival period - additional two years; DAMAGES - torts - negligence - fatal accidents legislation - Fatal Accidents Act 1976 (UK), s 1A - bereavement - statutory sum - financial loss - loss of financial support to end of November 2008 - loss of services - loss of caregiver services - loss of services to family generally; LIMITATION OF ACTION - negligence - torts - personal injury - psychiatric injury - nervous shock - Limitation Act 1980 (UK), ss 11, 14 - accrual of cause of action - date of knowledge of plaintiff - onus on plaintiff to establish requisite date of knowledge fell within a period of three years before she commenced her claim - statute barred; TORTS - negligence - personal injury - psychiatric injury - nervous shock - secondary victim - proximity - considerable period of time elapsed between tortious conduct of defendants and injury suffered - lack of requisite proximity
• Cases Cited: AB & Ors v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428; Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bonnington Castings Ltd v Wardlaw [1956] AC 613; Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; Crabtree v Wilson [1993] PIQR Q24; Crocker v British Coal Corporation (1995) 29 BMLR 159; Gregg v Scott [2002] EWCA Civ 1471; Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176; Harris v Empress Motors Ltd [1983] EWCA Civ J0714-3; [1983] 3 All ER 561; Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682; Mallett v McMonagle [1970] AC 166; McGhee v National Coal Board [1973] 1 WLR 1; Sion v Hampstead Authority (1994) 5 Med LR 170; Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213; Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822; Tahir v Haringey Health Authority [1988] Lloyds LR: Med 104; Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194; Taylor v Somerset Health Authority (1993) 4 Med LR 34; Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455; Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB)
• Category: Principal judgment
• Parties: Sue Ellen O'Reilly (P); Western Sussex Hospital NHS Trust (D1); Manoj Sen (D2); Mansour Poushin (D3)
• Representation: Counsel: Mr Bartley SC / Mr Toomey (P); Mr Wilson-Smith QC / Mr Cheney SC (D1, D2, D3); Solicitors: Beilby Poulden Costello (P); Kennedys (Australasia) Pty Ltd (D1, D2, D3)
• File Number(s): 2011/187028

JUDGMENT

1 On 2 November 2006, Dr David O'Reilly died in the United Kingdom.

2 At that time he was married to Sue-Ellen O'Reilly, the plaintiff, and they had three children, Laura, Jordan and Shane.

3 Mrs O'Reilly has brought proceedings in negligence arising out of the death of the late Dr O'Reilly, claiming damages pursuant to the Fatal Accidents Act 1976 (UK). She alleges that the death of the late Dr O'Reilly was caused by the negligence of the defendants. This action can conveniently be referred to as the compensation to relatives proceeding.

4 She also brings proceedings claiming damages for psychiatric injury, by way of nervous shock, which she suffered, arising out of the death of the late Dr O'Reilly. This action can be conveniently be referred to as the nervous shock proceeding.

Parties

5 The plaintiff, Mrs Sue-Ellen O'Reilly, was born in Sydney in 1953. She had four siblings. Her father, a general practitioner, specialised in the field of rheumatology and sports medicine.

6 The evidence about her early life is sparse.

7 Mrs O'Reilly obtained tertiary qualifications, and in 1984 married the late Dr O'Reilly. She had by that stage pursued a career in journalism. Having married Dr O'Reilly she moved to Canberra. Their first child, Laura, was born in 1986. Their second, Jordan, in 1988, and their third child, Shane, in 1989.

8 Shane suffered from cerebral palsy and was severely brain damaged. He was significantly disabled and required 24 hour care from his family. He needed assistance with all the tasks of daily living and he was confined to a wheelchair.

9 Both Dr O'Reilly and Mrs O'Reilly were journalists, and worked in journalism related areas. Because of the need to provide intensive care for Shane, it was not possible for both of them to work full-time. Initially, Dr O'Reilly worked full-time whilst Mrs O'Reilly cared for Shane. Towards the end of 1992, it was agreed that Mrs O'Reilly would return to full-time work, and Dr O'Reilly would move to part-time work and undertake some freelance journalism so that he could be the primary carer for Shane.

10 In mid-1995, the O'Reilly family moved to the United Kingdom. The move was precipitated by the existence in the United Kingdom of better facilities for children with disabilities such as Shane's. A particular school, Ingfield Manor in West Sussex offered a highly specialised form of educational and therapeutic intervention for children with cerebral palsy. Shane attended at that school.

11 The O'Reilly family returned to Australia at the end of 1998, but found that the disability services in Australia were nowhere near as appropriate for Shane as those in the United Kingdom. Accordingly, they returned to the United Kingdom in 2000.

12 As this judgment will later show, it was in the United Kingdom in 2003 that the events, the subject of these proceedings, occurred. It was there in 2006 that the late Dr O'Reilly died.

13 As I have mentioned, Dr O'Reilly was a journalist. By 1989, he was the national political correspondent for the Bulletin Magazine. He was a member of the Parliamentary Press Gallery in Canberra, and was highly regarded. After the family moved to the United Kingdom on the first occasion Dr O'Reilly worked full-time from home as a freelance writer for a range of Australian and UK publications.

14 In 1997, he was commissioned to write a biography of an Australian politician, Cheryl Kernot. It was subsequently published.

15 Whilst in Australia in 1999, Dr O'Reilly decided to study part-time for a PhD in Political Science. He continued with this study as an external student at Monash University after the family returned to the United Kingdom.

16 Whilst in the United Kingdom, Dr O'Reilly worked from home as a freelance journalist, studied for his PhD, and did some part-time work as a tutor for Australian history students enrolled at the Menzies Centre in London, which is a part of Kings College.

17 In April 2006, Dr O'Reilly was awarded his PhD. He then worked on a book project which was commissioned by Monash University about the profiles of 16 prominent Australians working in the United Kingdom. As well, he was engaged in the process of turning his PhD thesis into a book for a UK publisher. It was whilst he was engaged in these projects that Dr O'Reilly died.

18 The proceedings are brought by Mrs O'Reilly on behalf of herself and her two children, Laura and Jordan. That is because Shane died at home in Australia on 11 July 2011 due to complications relating to his disability.

19 Laura first moved to England with her family when she was nine years old. She remained there, and undertook her education there, except for the period when the family returned to Canberra. At the time of her father's death, Laura was studying for an undergraduate degree at Cambridge University. She graduated in 2010, and in 2011 commenced studying a post-graduate law degree at the University of NSW.

20 Jordan was educated in England. After his father's death and the family's return to Australia, he enrolled in undergraduate studies in occupational therapy at the University of Sydney.

21 Together with his sister Laura, they have assisted in the running of a charity called "Fighting Chance" which was set up in NSW after the family returned to Australia in 2008.

22 The first defendant, the Western Sussex Hospitals NHS Trust, is the legal entity sued with respect to St Richard's Hospital, Chichester ("the Hospital"). It was at the Hospital in 2003 that Dr O'Reilly underwent a procedure upon which the plaintiff's claim substantially rests.

23 The second defendant, Mr Manoj Sen, is a consultant colorectal surgeon. He presently practises in Germany and has done so since 2008.

24 Mr Sen was working in August 2003 as a locum colorectal surgeon at the Hospital. He worked there between May 2003 and October 2003. He saw Dr O'Reilly on one occasion only, being 19 August 2003.

25 The third defendant, Mr Mansour Poushin, is also a consultant colorectal surgeon. Mr Poushin was born and originally educated in Iran. Before studying medicine, he trained and worked as a physiotherapist in Tehran, England and Sweden. He left Iran in 1979 after the Islamic revolution. He migrated to Sweden. He worked there as a senior physiotherapist and, in January 1982, was accepted to study medicine. He graduated with a medical degree from Gothenburg University in 1988. Thereafter, he spent a good deal of time at the Karlskoga Hospital undertaking his surgical training. Except for a period when he worked in the United Kingdom between February 2001 and September 2007, he has lived and practised medicine in Sweden, primarily at the Karlskoga Hospital.

26 Mr Poushin commenced to practice in the UK as a locum consultant general surgeon in February 2001. He was employed at the Hospital in November 2003 as a full-time locum consultant in general and colorectal surgery. He commenced this term of employment in the week commencing 10 November 2003. This meant that 12 November 2003, the date of the procedure which he carried out upon Dr O'Reilly, was the first day upon which he was rostered to undertake endoscopy procedures at the Hospital. He only saw Dr O'Reilly on this occasion.

Factual Context - An Outline

27 Dr O'Reilly was born on 25 September 1951. Accordingly, at the time he attended upon Mr Sen in August 2003, he was 51 years old. When he saw Mr Poushin in November 2003, he was 52 years old.

28 According to his daughter's evidence, which I accept, Dr O'Reilly was a fit and healthy person. He was not overweight and paid a good deal of attention to what he ate. He did not smoke, and drank alcohol in moderation. He was generally an active person. On weekends during summer, whilst in the UK, he would play cricket. He enjoyed running. He was generally a person who took his health seriously. This was entirely understandable because he needed to be fit and healthy to continue being the primary carer for Shane.

29 In 1988, he underwent surgery for the removal of his spleen. He seems to have completely recovered from that procedure.

30 At least by the year 2003, Mr O'Reilly had suffered from the effects of haemorrhoids, but intermittently, and to a minor extent. He sought no treatment from any medical practitioner for this condition.

31 Whilst in the UK, he was a patient of the general practice conducted at The Surgery in Billingshurst. This was a multi-practitioner practice. According to the records of The Surgery, Dr O'Reilly was seen by Dr Charles Wood on a number of occasions when he attended at The Surgery. Sometimes he was seen by other practitioners.

32 On an occasion in 2003, Dr O'Reilly experienced a blood loss whilst using the toilet which was heavier and of a different colour, darker red, than he had been accustomed to with the irregular occurrence of his haemorrhoids. As a consequence, he promptly made an appointment to see his general practitioner, Dr Wood, about this event.

33 He attended upon Dr Wood on 13 June 2003. Dr Wood has no recollection of this consultation, apart from what is written in notes and correspondence.

34 It is apparent from the notes that he undertook a manual rectal examination of Dr O'Reilly. He determined that Dr O'Reilly should be referred for a surgical opinion and investigation. Accordingly, he referred Dr O'Reilly to Mr J Simson, a consultant surgeon, at the Hospital. The referral took place in accordance with the National Health Scheme which existed at the time in the United Kingdom. That is to say, without cost to Dr O'Reilly.

35 The letter of referral, which was dated 13 June 2003, says this:

"This fellow has had a little bleeding from time to time over the last 5 years, usually associated with a pile he says. However, over the last month there has been rather more bleeding, the last bit of stool has often been streaked with blood and there have been some drops of blood after he has finished.

On examination, there is a very strange, rather hard conical looking lesion at the anal margin, and although this was not bleeding at the time, I guess this could be the source. The rectal examination was rather difficult due to considerable discomfort at the time.

I should be most grateful for your further opinion."

36 In 2003, Mr Simson, together with his colleague, Mr Cripps, supervised the colorectal surgical unit at the Hospital. When referral letters arrived, either Mr Cripps or Mr Simson would make an assessment of the urgency of each patient's symptoms and histories, and would then allocate a priority for that patient. In Dr O'Reilly's case, markings on the referral letter indicate that he was to be seen "soon", meaning that he would typically be examined by either Mr Simson or Mr Cripps, or alternatively, a locum consultant practising within the unit, within 12 weeks of the receipt of the referral letter.

37 In this case, Dr O'Reilly was seen within the allocated time period at the Hospital, in the colorectal unit by Mr Sen on 19 August 2013.

38 Mr Sen has no recollection of seeing Dr O'Reilly. However, he made contemporaneous notes of the consultation, which I accept are reliable. He was given a history that Dr O'Reilly, whom he recorded as a 52 year old, had a four month history of fresh per rectal bleeding which occurred with defecation, and which streaked the stool.

39 Dr O'Reilly did not provide him with any history of a recent change in bowel habit, unexplained weight loss or anorexia (meaning loss of appetite).

40 Mr Sen undertook an examination of the abdomen. He detected no abnormality. He then used a rigid sigmoidoscope inserted to 18cm to conduct an anal examination which revealed the existence of two large skin tags, and second-degree haemorrhoids.

41 Based upon Dr O'Reilly's history, and his findings at examination, Mr Sen formulated a plan, which was to undertake a further examination of the left colon, at least, by a flexible sigmoidoscopy. Mr Sen then added this note:

"If he consents then TCI [to come in] for excision [of] anal skin tags."

42 Mr Sen dictated a letter to the general practitioner, Dr Wood, which was sent on the following day. The letter records in part the history and results of examination.

43 The letter said:

"Thank you for referring this very pleasant Australian journalist to my clinic today. Off and on, for the last few months, he has had fresh blood passed rectally, often at the end of defecation and streaking the stool. This has not been associated with any bouts of constipation [or] diarrhoea and indeed, he keeps a fairly regular normal bowel habit. There is no associated tenesmus, urgency, weight loss or loss of appetite. There is no family history of colorectal disease.

Clinical examination and proctosigmoidoscopy revealed two large, fleshy, anal skin tags. Proctoscopy also revealed some fairly prominent second degree haemorrhoids.

He could be bleeding from any of these, and if so, these would require surgical remedy. However, before we put his bleeding down to these lesions, I would like to examine his left colon at the very least with help of a flexible sigmoidoscopy, and we could band his piles, if they are still prominent, at the same sitting. When I meet him for the flexible sigmoidoscopy I will then discuss with him the pros and cons of excising the skin tags under a short general anaesthetic."

44 At the time he wrote the letter, Mr Sen's employment plans were that he would be remaining at the Hospital in his capacity as a locum consultant colorectal surgeon for a further lengthy period which would have ordinarily meant that, and it was highly likely that, he would be the surgeon who carried out the procedure which was "... to examine his left colon at the very least with the help of a flexible sigmoidoscopy ...". As the terms of his letter make clear, Mr Sen clearly contemplated that he would be undertaking the procedure. This accorded with the unit's usual practice. But for his unexpected change of plans, I am satisfied this is what would have occurred.

45 However, in late October 2003, for personal reasons which could not have been predicted in August 2003, Mr Sen finished up his work as a locum consultant colorectal surgeon and left the Hospital on 31 October 2003.

46 At the time he wrote this letter, Mr Sen was of the view that the flexible sigmoidoscopy of which he spoke, would have been carried out using a colonoscope which was 150cm in length, rather than a device called a flexible sigmoidoscope which was 60cm in length. He said in evidence, and I accept, that in the National Health Service in the United Kingdom in 2003, it was rare to use a 60cm device to perform a flexible sigmoidoscopy. Neither Mr Sen nor Mr Poushin ever used the 60cm device at the Hospital.

47 According to his evidence, which I accept, when Mr Sen wrote that he wished to examine Dr O'Reilly's left colon, he intended that he would examine the whole of the left colon from the anus through to the splenic flexure. He said that, had he carried out the procedure, this is what he would have done. In my view, that is the only reasonable interpretation of what he wrote in his letter sent on 20 August 2003.

48 It is sufficient to conclude the recitation of these facts to note that it is clear that Mr Sen was concerned to reach a diagnosis of the rectal bleeding which had been reported to him, both by the patient Dr O'Reilly, and the general practitioner Dr Wood.

49 Mr Sen's evidence was, and I accept, that he formed the view that the purpose of the examination that he wished to undertake, was to exclude a sinister cause for the bleeding by way of any lesion existing in the left colon, whether it was a pre-cancerous polyp or else a more developed and potentially cancerous lesion.

50 It will be necessary to give a more detailed explanation of a number of the technical terms used here in due course, together with an explanation of the basic anatomy involved.

51 Dr O'Reilly was next seen with respect to his colorectal problems when he presented at the Hospital on 12 November 2003, which was the date fixed by the Hospital for his procedure. At that time, a flexible sigmoidoscopy was undertaken by the third defendant, Mr Poushin.

52 Mr Poushin was acting as a locum consultant surgeon at the Hospital at the time. As I earlier related, he formally commenced his employment on 6 November 2003, with the first week of rostered professional duties being in the week commencing 10 November 2003. 12 November 2003 was the first day upon which Mr Poushin undertook an operating list, and procedures such as that performed on Dr O'Reilly.

53 Mr Poushin has no recollection of Dr O'Reilly, nor of the procedure. Such description as he is able to give of what happened in November 2003 is based upon his usual practice, and his review of the contemporaneous medical records that still exist. He has some recollection of general matters.

54 The principal contemporaneous record is a document described as "Colonoscopy Report". This was a pro forma document, held in the computer system at the Hospital, which was completed with patient specific entries which were largely selected from drop down menus available when completing the pro forma document on the computer.

55 Prior to consulting with Dr O'Reilly, I am satisfied that Mr Poushin in accordance with his usual habit of practice generally (rather than any developed practice at the Hospital), read the Hospital file, which principally consisted of the letter from Dr O'Reilly's general practitioner, Dr Wood, dated 13 June 2003, the handwritten history sheet compiled by Mr Sen on 19 August 2003, and the letter sent by Mr Sen to Dr Wood dated 20 August 2003.

56 Prior to the procedure commencing, Mr Poushin obtained Dr O'Reilly's consent to the procedure. The consent form is a standard form available for all procedures undertaken at the hospital. Mr Poushin wrote the words "Flex. Sigmoidoscopy" as the name of the proposed procedure. He recorded on that document that he had explained to Dr O'Reilly that the intended benefits of the procedure were "diagnosis, screening" and that the serious or frequently occurring risks were "perforation, bleeding".

57 For the purpose of undergoing this procedure in November 2003, the usual practice was for patients such as Dr O'Reilly, after arrival, to have at least one, and perhaps two, enemas administered per rectum for the purpose of preparing the left colon by emptying it of its faecal content prior to a flexible sigmoidoscopy being commenced.

58 The Colonoscopy Report completed by Mr Poushin contained a number of patient-specific entries in it. From those entries it can be observed that Mr Poushin's conclusions at the end of the procedure were that the patient tolerated the procedure well and that his bowel preparation was satisfactory. In describing what he saw, Mr Poushin reported that "at the splenic flexure, the bowel was normal" and further that, "the rest of the visualised bowel was normal".

59 On the standard colonoscopy report, there was a printed diagrammatic depiction of the whole of the colon. Drawn on the report, by hand, was an arrow pointing to the splenic flexure. Mr Poushin inserted that arrow to, as he described it in his statement:

"... indicate that the instrument reached that anatomical point [splenic flexure], which comprises the furthest/distal end of the left colon."

60 Mr Poushin said, and I accept, that the fact that the bowel preparation was noted as being satisfactory meant that he had a clear view of the bowel. There was no faecal matter which was interfering with a clear view of the left colon. Equally, having regard to the fact that no abnormality was reported upon, I accept that Mr Poushin did not detect any abnormality in that part of the left colon that he examined.

61 There is a real issue in this case, which it will be necessary to resolve in due course, as to what part of the left colon was actually examined by Mr Poushin, including whether he did in fact reach, or else visualise, the splenic flexure, as his Colonoscopy Report recorded.

62 The instrument used by Mr Poushin to perform the endoscopic investigation was a colonoscope that was 150cm in length. This is an instrument which can be used both to undertake a flexible sigmoidoscopy, and was commonly used for that purpose in the United Kingdom in 2003, or else a complete colonoscopy through to the caecum. The instrument, a version of which was produced to, and examined by, the Court, has markings on it at 10cm intervals from its tip. These markings enable an operator to know what length of the instrument has been inserted through the anus into the colon.

63 The defendants concede in submissions that the Court should find that, although Mr Poushin reported that he had visualised the splenic flexure, or else reached it and visualised it, that he did not in fact do so. They also concede that in fact, he could not have visualised the splenic flexure.

64 The defendants also concede that there was present in Mr O'Reilly's colon, as at the date of Mr Poushin's examination in November 2003, a lesion between 0.7cm and 1cm in size, which was located in the same anatomical position as the lesion discovered and removed surgically at the Hospital on 26 July 2006, namely at the splenic flexure or else slightly below the splenic flexure, and towards the anus.

65 Although the evidence on this is sparse, I accept that it is likely that after the procedure was concluded, Mr Poushin told Dr O'Reilly that he had not detected any abnormality in the course of his examination with the colonoscope.

66 The precise detail of what Mr Poushin in fact did during the procedure, and what he saw, is a matter of dispute, and will need to be considered in due course.

67 Dr O'Reilly, having been discharged from the Hospital, returned home no doubt reassured by having been told by Mr Poushin that he could detect no abnormality in his left colon.

68 Apparently, Mr Poushin must have discussed with Dr O'Reilly a procedure to remove his skin tags, and to either band, inject or undertake a haemorrhoidectomy with respect to his haemorrhoids, because the Hospital records record such a procedure as being booked to be carried out about one week later, on 20 November 2003. That appointment was apparently cancelled by Dr O'Reilly. The procedure was re-booked for 19 December 2003, and was again cancelled by Dr O'Reilly.

69 On 27 February 2004, Dr O'Reilly attended at the Hospital at the pre-op clinic. The notes of that consultation recorded by a nurse indicate that he was examined on that day, and routine pre-operative checks and measurements were undertaken. His urine was normal. His weight was recorded at 79kg. His height was recorded as 5'10". His body mass index was recorded at 25, and his blood pressure was recorded as 140/90.

70 The nurse's note is in the following form:

"I spoke with Mr O'Reilly in pre-op clinic. His op was cancelled for 2/52 ago and rescheduled for 2/4/4. He is supposed to be flying to Germany on 3/4/4 on a compulsory business trip. Obviously this would not be a sensible plan, [therefore] we need to cancel this and reschedule him for the future. He is still keen to have the op (anal skin tag removal and banding/injection/removal haemorrhoids)."

71 The patient notes were sent to Mr Poushin's secretary, who was to arrange the rescheduling of the operation. The evidence is unclear when, if at all, this procedure was undertaken.

72 The next occasion when Dr O'Reilly visited Dr Wood, his general practitioner, was on 26 May 2004. He went there complaining of the existence of a haemangioma in the middle of his back on the right hand side. He was concerned that it was a suspicious growth. There was no immediate treatment because Dr Wood formed the view that the growth was not suspicious, but prudently advised that the growth ought to be reviewed regularly, annually.

73 About the middle of 2005, Dr O'Reilly was seen on two occasions at The Surgery, with respect to an upper respiratory tract infection, for which he was prescribed some antibiotics. In August 2005, he was again seen at The Surgery by the practice nurse, who administered a pneumococcal vaccination.

74 On 5 April 2006, Dr O'Reilly attended at The Surgery and was seen by Dr Stuart Shaw. He gave a history of lower colicky abdominal pain for a period of about three weeks. He told Dr Shaw that there had been some feeling of bloating. After an examination and the taking of some samples for tests, Dr Shaw concluded that the likely cause of his condition was irritable bowel syndrome.

75 Dr O'Reilly again attended at The Surgery on 21 April 2006, when he was seen by Dr Wood. He complained to Dr Wood of excessive wind and frequency of defecation. He gave a history that his colicky abdominal pain was relieved by opening his bowels. He said that the pain and symptomatology had been worse over the last two months. On examination, Dr Wood detected that Dr O'Reilly's abdomen was tender, particularly in the region of the left iliac fossa. Dr Wood, having noted that his flexible sigmoidoscopy in November 2003 was normal, confirmed to Dr O'Reilly that he had irritable bowel syndrome, in accordance with his colleagues' earlier diagnosis

76 In conversations with his wife, following upon his visits to The Surgery, Dr O'Reilly reported that he had been informed by both Dr Shaw and Dr Wood, that their diagnosis that he had irritable bowel syndrome was the most likely one, because he had had a clear flexible sigmoidoscopy examination in November 2003. There is no reason to doubt, and I accept, that the absence of any abnormality being detected on that examination in November 2003, was a significant clinical finding which the general practitioners took into account in reaching their view that the symptoms with which Dr O'Reilly presented in April 2006, were best diagnosed and treated, as irritable bowel syndrome. The negative finding was clearly a significant matter for Dr O'Reilly.

77 Dr O'Reilly's symptoms, pain and distress did not resolve. On 11 July 2006, he presented again to The Surgery and was seen by Dr Wood. He reported to Dr Wood that he had changed his diet significantly. His bowels were opened regularly, but he still had pain in the region of his left iliac fossa. He also told Dr Wood that he was feeling stressed by his circumstances. Dr Wood diagnosed irritable bowel syndrome, prescribed some medication for it, and undertook a depression screen to assess the extent of Dr O'Reilly's stress. He concluded that he was demonstrating features of mild depression.

78 On 26 July 2006, Dr O'Reilly, whilst at home, collapsed. He had a severe bout of vomiting and significant abdominal pain. An ambulance was summoned, and he was taken to the Accident and Emergency Department at the Hospital.

79 According to the ambulance notes, Dr O'Reilly informed the ambulance officers that he had recently lost about a stone in weight. According to their evidence, such a significant recent weight loss had been detected by both his daughter, Laura, and his wife. They had urged him to seek medical help. However, he informed them in terms, much as Dr Shaw and Dr Wood had advised him, that he was suffering from irritable bowel syndrome. He obviously thought that the matter was in hand. This view was consistent with the advice which he was receiving from the doctors at The Surgery. Their advice depended upon, and was consistent with, the report by Mr Poushin of negative sinister findings after the endoscopic examination in November 2003.

80 Dr O'Reilly arrived at the Accident and Emergency Department at about 1340 on 26 July 2006. He was examined, and a range of investigations were undertaken. The imaging that was undertaken detected the existence of a large bowel obstruction in the area of the splenic flexure. Later that day he was operated upon by Mr Bowyer, a consultant upper gastro-intestinal surgeon. An extended right hemicolectomy was performed which showed:

"... small volume ascites, multiple peritoneal and omental deposits, large secondaries in the liver, tumour plaque on the right diaphragm and small bowel caught up in the primary tumour, (moderately differentiated adenocarcinoma, pT4, pN2 M1 Dukes Stage C2)."

81 The tumour that was excised was submitted to histopathology. On 1 August 2006, it was reported that there existed a 4cm diameter moderately differentiated adenocarcinoma which had penetrated into the adjacent small bowel. There were multiple omental and peritoneal nodules of adenocarcinoma, one of which was on the peritoneal surface of the caecum and was locally invading into the submucosa of the large bowel. There were metastases to five of the lymph nodes. The histopathology reported the tumour staging as I have earlier indicated.

82 On 4 August 2006, a CT scan was performed which showed multiple metastases scattered throughout Dr O'Reilly's liver.

83 His post-operative course was complicated. On 9 August 2006, a further laparotomy and defunctioning ileostomy was performed. On 11 August 2006, he was taken back to surgery where an abdominal washout was performed. On 15 August 2006, because of an acute deterioration due to a small bowel perforation, his condition deteriorated such that he was taken to the Intensive Treatment Unit ("ITU") where a tracheotomy was performed.

84 Ultimately, on 8 September 2006, Dr O'Reilly was discharged from the Hospital and referred to a medical oncologist, Professor David Cunningham.

85 On 12 September 2006, Professor Cunningham reported to Mr Bowyer on his observations with respect to Dr O'Reilly. He recorded the operative findings and the complex course which I have summarised. He then said:

"This patient has metastatic colorectal cancer. Systemic chemotherapy can only play a role in his management if his physical condition improves sufficiently to tolerate treatment."

86 Professor Cunningham made a suggestion with respect to obtaining treatment locally. Because Dr O'Reilly's condition did not ever physically improve, no chemotherapy was ever administered.

87 On 27 September 2006, Dr O'Reilly was readmitted to the Hospital with a bowel obstruction. This required further surgery which was performed on 12 October 2006. By this time, it was clear that Mr O'Reilly's cancer could not be adequately treated, and that he was terminally ill.

88 On 27 October 2006, Dr O'Reilly was transferred from the Hospital to St Catherine's Hospice, where he was treated palliatively. On 2 November 2006, Dr O'Reilly died.

89 It will be necessary to consider in more detail and determine the cause of Dr O'Reilly's death for the purposes of determining whether the breaches of duty, if any, of the defendants caused that death.

Cause of Dr O'Reilly's Death

90 The plaintiff submits that Dr O'Reilly died of complications directly attributable to his obstructed bowel, and the emergency operations which were needed to deal with the obstruction.

91 The defendants submit that the evidence does not permit such a finding because there was no statement of opinion by any expert to the effect that the death of Dr O'Reilly was due to complications relating to the abdominal surgery. Rather, the defendants submit that Dr O'Reilly died because of his terminal cancer.

92 No post-mortem examination was carried out, and the death certificate was not admitted into evidence. It was first sought to be tendered at the end of the defendants' oral submissions. The tender was opposed. For reasons which I delivered ex tempore on 8 May 2014, I refused the defendants' application to re-open their case to tender the document.

93 I have set out above the significant events of July 2006, and thereafter, with regard to Dr O'Reilly's operative treatment. It will be necessary to expand on those events to some extent.

94 In cross-examination, Mr Sen told Mr Bartley SC, senior counsel for the plaintiff, that elective surgery of the bowel and colon to remove a carcinoma would have "a very, very low mortality rate". He also said that emergency operations have a higher risk of complications which were more likely to ensue than if the surgery was performed electively.

95 Dr O'Reilly underwent significant emergency surgery on 26 July 2006. The surgery comprised "... extended right hemicolectomy, small bowel resection and partial omentectomy". After the surgery, and whilst recovering, Dr O'Reilly continued to suffer from internal bleeding as a large volume of blood was seen to come from his drainage tube. This necessitated being returned to surgery in the early hours of 27 July 2006, when he underwent a laparotomy. At that laparotomy, no bleeding was found. He underwent a transfusion with blood and fresh frozen plasma (an extracted fraction of blood intended to assist with the clotting process) and was returned to the ITU.

96 There continued to be further evidence of ongoing bleeding. Six hours later, Dr O'Reilly was returned to the theatre when it was found that his bowel was dilated with blood. The bleeding vessel was sealed off.

97 Dr O'Reilly initially recovered quite well until 9 August 2006, when he deteriorated acutely over a period of two hours. It was found that the cause of his acute deterioration was a perforation in his small bowel. The perforation was repaired during laparotomy. He then spent 12 days in the ITU, with a tracheotomy. He was septic throughout that period.

98 By 23 August 2006, which was nearly a month after his initial emergency admission, Dr O'Reilly's condition improved. On 24 August 2006, he was transferred out of the ITU to a Ward. He required a further procedure to drain a right-sided accumulation of fluid.

99 In a letter from the Hospital to his general practitioner on 8 September 2006, his time in the Hospital after the initial emergency surgery was described "as a protracted course of post-op complexities". At discharge on 8 September 2006, he had a defunctioning ileostomy.

100 On 27 September 2006, Dr O'Reilly was again admitted as an emergency patient to the Hospital and required further surgery. He had an obstruction in his small bowel, which had resulted in significant dehydration. He required further surgery by way of laparotomy which was carried out on 12 October 2006. According to Mr Bowyer, the operating surgeon, Dr O'Reilly's abdomen "... was densely packed with adhesions and tumours". He said that there was only a "remote hope" because of his general condition that he would be able to have chemotherapy.

101 On 29 October 2006, Dr O'Reilly was transferred to St Catherine's Hospice where he died on 2 November 2006.

102 In their joint report, the UK experts agreed that had the tumour been detected and resected, i.e. removed, around November 2003, then it would not have been present in July 2006 and could not have caused a bowel obstruction at that time. It follows that Dr O'Reilly would not have undergone the significant emergency surgery with the stormy and complex course of recovery which he did in 2006.

103 In a joint report of Professor Price, one of the UK experts, and Professor Tattersall, an expert resident in Australia, Professor Tattersall expressed his agreement with the answers of the UK expert in these respects.

104 The experts are also agreed that if the tumour had been discovered in November 2003, it would have promptly been removed by surgical intervention, and Dr O'Reilly would probably have been treated with systemic chemotherapy.

105 The evidence of the whole of Dr O'Reilly's stormy and complex course which ensued after his collapse at home in July 2006 is convincing in its connection to the obstruction of his bowel relating to his tumour. The extent of the emergency surgery, which was necessary to address the bowel obstruction and removal of the large tumour that was found, was significant.

106 Dr O'Reilly's course after that surgery was characterised by the need for further surgery and major interventions. It is clear that the bowel obstruction and essential emergency surgery set in motion the decline in his health and wellbeing which was, with the exception of a short period in September 2006 when his health appeared to be relatively stable, a continuous progression downwards until his death.

107 In the joint report of Professors Price and Tattersall, they agreed that Dr O'Reilly:

"... died very soon after his diagnosis as a result of surgical operative difficulties he had and the extent of his peritoneal metastases".

108 The reference to peritoneal metastases encompassed the metastases identified after the 2006 surgery, which were found in the omentum surrounding the outside of the bowel. These metastases are a direct result of the size and spread of the tumour by 2006. They did not exist in 2003, and had appropriate treatment taken place then, they would not have escaped from the bowel into the omentum as they had done by 2006.

109 Professor Price, in her oral evidence, in January 2014, confirmed her view that:

"... he had a number of major complications after the operation. ... He ... was then unwell and he was referred for chemotherapy and didn't have chemotherapy and died. To me, that's an immediate complication of surgery, like he died within the operation ..."

110 I accept the unchallenged joint opinion of Professors Tattersall and Price, and the opinion expressed by Professor Price in her oral evidence.

111 I am satisfied that Dr O'Reilly's death was caused (in the sense which the law recognises) by the consequences to his health of the bowel obstruction and subsequent emergency surgery. Of course, that bowel obstruction was caused by the unrestrained growth of the tumour which was present in his left colon in November 2003. That tumour would not have been present, and there would have been no blockage, if surgery had been performed in a timely way in 2003.

112 I am satisfied that the plaintiff has proved the necessary causal connection between the bowel obstruction and Dr O'Reilly's death.

Anatomy, Procedures and Technical Terms

113 In order to understand more fully these facts, the allegations of negligence and the expert evidence, it is necessary to provide an explanation of various anatomical features, the nature of the procedures involved, and some of the technical terms used.

The Colon

114 The colon is that part of the large intestine which commences closest to the mouth (proximally) at the caecum, and finishes furthest from the mouth (distally) at the anus.

115 The colon is essentially shaped like an inverted U and can readily be described as comprising three parts:

(a) the right colon, also known as the proximal colon or the ascending colon. This is situated on the right-hand side of the patient's body and commences at the caecum;

(b) the transverse colon, which ordinarily has a largely horizontal lie and which has, internally, a triangular shaped lumen; and

(c) the left colon, which is also known as the descending colon or the distal colon, and which, internally, has a largely circular shaped lumen.

116 The junction of the right colon and the transverse colon is known as the hepatic flexure. The junction of the left colon and the transverse colon is known as the splenic flexure.

117 The left colon, which finishes at the rectum, consists of the descending colon and the sigmoid colon. The left colon is then followed by the rectum, the anal canal and the anus.

118 The descending colon is also known as the proximal colon because it is that part of the left colon which is situated closest to the mouth.

119 The sigmoid colon is largely shaped like an "S". The boundary between the sigmoid colon and the rectum is the recto-sigmoid junction.

120 As is obvious, the length of the colon, or any constituent part of it, will vary from individual to individual. As well, there will be a variation between individuals about the architecture of the colon. Some will have more, or differently shaped loops in the colon, than others. The stature of an individual will also affect colon length.

121 Sometimes the technique of an individual proceduralist will temporarily affect the length of the colon examined. As Professor Phillips noted in his article in Clinical Risk 2006 12, 211-217 at 213:

"... the bowel can concertina on to the scope ... or alternatively the scope pushes the colon ahead of itself, thereby stretching it ..."

122 Accordingly, the depth of insertion of an instrument measured from the markings on the instrument is not automatically to be taken as being an accurate guide to the length of the colon which has in fact been penetrated and examined.

Identifiable Landmarks of the Colon

123 Those witnesses, including the individual defendants who were well familiar with the conduct of endoscopic procedures, all agreed that there were a number landmarks which assisted the endoscopist to identify what part of the bowel was being examined.

124 The first of these was identified as the shape of the lumen of the colon. The lumen is the internal opening of the colon. In the left colon it is generally round. In the transverse colon, the shape is generally triangular. According to Mr Sen, that change in shape is obvious and readily detectable. He apparently has not had trouble identifying it.

125 The second landmark is the presence of a purple shadow cast by the presence of the spleen. In this case, because some years before 2003 Dr O'Reilly had undergone a splenectomy, this landmark was not available to be used.

126 Another landmark is the presence of an observable pulse in the transverse colon, which does not exist in the left colon. The pulse is observable because the heart beat is transmitted through the diaphragm only to the transverse colon.

127 Another landmark which Mr Sen regarded as unreliable, was the transmission of light from within the lumen through the abdominal wall, which is then visible externally.

128 The final landmark which is used by endoscopists, but which is irrelevant to the procedure undertaken in this case is the caecum, a readily identifiable feature at the proximal end of the right, or ascending, colon.

Technical Terms "Proximal" and "Distal"

129 Use of these two words will vary because the terms respectively describe a part of the anatomy which is closer to, or else more distant from, an identified anatomical reference point. In the conventional approach used for the digestive system, which includes the colon, the term "proximal" is used to describe the parts of the digestive system which are closer to the mouth; and the term "distal" is used to describe the parts of the digestive system which are closer to the anus. A distal feature such as the descending colon can have a proximal section, that is, that part near the splenic flexure and away from the anus, and a distal section, that is, that part nearer the rectum.

130 Equally, if one was referring, as some witnesses did from time to time, to whether a part of the descending colon was closer to or further from the anus, then the use of the terms would be reversed. Some care needs to be taken to ensure when considering evidence using these terms, what the identified anatomical reference point is.

Procedures

131 Endoscopy is a generic term given to a procedure which enables the examination of internal parts of the body, usually via a camera or lens mounted on the tip of the instrument. If the instrument (a scope) is inserted through the mouth, it is called a gastroscope. This did not happen in this case. If the instrument is inserted through the anus, as happened here, then it is possible to undertake a number of different examinations, and the term given to the instrument or procedure will vary according to the intended examination. All of these examinations fall within the umbrella term endoscopy.

132 Relevantly to the procedure in this case, there are two examinations. The first is:

(a) a colonoscopy, which is an examination of the entire colon, and rectum, commencing at the anus and going through to the caecum. In order to be successfully performed, the patient is required to have their whole colon emptied of its contents, usually through a self-administered medication on the afternoon or evening before the procedure. Once the preparation is underway, the patient needs to remain in close proximity to a toilet, and is often, therefore, unable to be at their workplace. As well, the patient is generally given appropriate sedation for the duration of the procedure. A reasonable recovery time is necessary after the procedure.

The instrument used for this procedure is described as a colonoscope, or sometimes a "long colonoscope" and is either 150cm or 160cm in length. The evidence was often imprecise about the actual length of the instrument, both measurements were used somewhat interchangeably. However, in this case, these different measurements are of no importance. This long instrument has a lens, and a light source which allows the doctor undertaking the procedure to view the images of the colon on a video monitor. Typically, the colonoscope also enables a biopsy of tissue of the colon to be taken, removal of any polyps found during the procedure and, potentially, if required, the sealing off of bleeding vessels with heat treatment (cauterisation).

The long colonoscope has marked gradations at 10cm intervals from its tip. This marking allows the proceduralist to quickly determine what length of instrument has been inserted into a patient's body.

(b) The second is a flexible sigmoidoscopy, which is the name given to the procedure by which a limited length and range of the left colon is examined. The examination is limited in a number of ways.

The procedure of flexible sigmoidoscopy is not intended to examine the whole of the colon. It is limited to examining from the anus up to the sigmoid colon, and such parts of the descending colon, proximal to the sigmoid colon, which can conveniently be examined. Accordingly, the only bowel preparation which is administered is either one or two rectal enemas intended to cleanse the descending colon, but not the transverse or ascending colon. The enema or enemas are administered at the hospital on the morning of the procedure. Except for the day of the procedure no time is required away from work.

Sedation may be, although generally is not, administered for the procedure. No anaesthetic is administered. An anaesthetist (or a medical practitioner performing that function) is not required to be present. The post procedure care is less complicated and involves a shorter time for the patient than does a colonoscopy. Because the endoscope is being inserted for a shorter distance into the bowel, the risk of perforation of the bowel is much less.

In some cases, the choice of instrument to be used is also a limiting factor in both the length and the range of the bowel being examined.

133 In the United Kingdom in 2003, there were two instruments potentially available - either of which could be used to perform a flexible sigmoidoscopy. One, called a flexible sigmoidoscope, was limited to 60cm in length ("the short endoscope"), and the view of the bowel was obtained, when this instrument was used, directly through lenses attached to the instrument. The view was not displayed on a video monitor.

134 The second instrument, which was widely in use and which was the only instrument used at the Hospital, was the 150cm or 160cm colonoscope which I have previously described ("the long colonoscope"). When used for a flexible sigmoidoscopy procedure, this instrument was not used for its entire length, but only for a length sufficient to examine the left colon. Because a colonoscope has length gradations marked along the tube, it is possible to determine what length of instrument has been inserted. The UK experts generally agreed that if a colonoscope was used to undertake a flexible sigmoidoscopy, it was within reasonable practice bounds to insert the colonoscope to a length of 60cm measured from the anus by reference to the gradations on the instrument.

135 It was well recognised in 2003 that a flexible sigmoidoscopy (whether performed with the short endoscope or the long colonoscope inserted to a length of 60cm) had limitations as a procedure. In a 1999 article by J Painter & Ors, "Depth of Insertion at Flexible Sigmoidoscopy: Implications for Colorectal Cancer Screening and Instrument Design" published in Endoscopy, 1999; 31(3): 227-231, it was noted that the splenic flexure was not reached in the majority of examinations which used a standard 60cm instrument. The same conclusions are applicable if the long colonoscope is inserted to 60cm measured by the gradations on the instrument.

136 The study also found that in order to extend as far as the splenic flexure, an average 75.4cm of colonoscope was needed. It continued:

"That is, in order to enter the descending colon, more than 60cms of instrument was frequently inserted into the sigmoid colon before subsequent straightening to reach the splenic flexure. Therefore it appears than an instrument of at least 80 to 100cms in length would be required to ensure examination to the splenic flexure."

137 The paper, although published in 1999, was presented in abstract form at the September 1996 meeting of the British Society of Gastroenterology. The UK experts accepted that these conclusions were well known in the profession in 2003. These conclusions were, or else ought to have been, well known to the two defendant doctors.

Foreign Law

138 As the events which give rise to the cause of action upon which Mrs O'Reilly sues occurred in the United Kingdom, the parties are agreed that the relevant law of negligence which is to be applied is the common law of England and Wales.

139 The parties in their submissions on the question of liability also referred the Court to a significant number of judgments of courts of England and Wales on questions relevant to breach of duty and causation. Having regard to the similarity, but not coincidence, of the common law of England and Wales in this area, with the common law as it has been in Australia, and the current statutory law in NSW, there is no difficulty in the Court identifying the position of the common law in England and Wales, and applying it to this case.

140 Equally, although the parties agreed on a Joint Memorandum as to Foreign Law, there was no suggestion from either party that the Court should not, for itself, examine the relevant authorities and act in accordance with the principles identified in them. In fact, the parties both agreed that this was the correct approach for the Court to follow.

141 Pursuant to a direction on 12 October 2012, the parties filed a Joint Memorandum as to Foreign Law.

142 Having agreed that the relevant law of negligence was the common law of England and Wales, the parties agreed that that common law required a plaintiff to prove the following elements:

(a) the defendants owed to the plaintiff a duty of care to avoid reasonably foreseeable injury;

(b) the defendants were in breach of that duty of care; and

(c) proof on the balance of probabilities that the breach of duty of care was a cause in law of the adverse consequences complained of by the plaintiff.

143 The parties agreed on the standard of care, which is not unimportant in this case. The parties' agreement was as follows:

"As to the standard of care to be provided, the common law of England and Wales requires that the relevant health care practitioners act in accordance with a responsible body of their peers practising in the United Kingdom at the time the criticised treatment was given (here 2003)."

144 This agreement derives from the decision of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, that a doctor who had acted in accordance with a practice accepted at the time as property by a responsible body of medical opinion skilled in the particular form of treatment in question, was not guilty of negligence because there was a body of competent professional opinion which might adopt a different technique.

145 It will be convenient to refer to this statement as "the Bolam test" or "the Bolam principle".

146 In the United Kingdom, these propositions on the law of causation are well established:

(a) The burden of proof in causation is upon the plaintiff.

(b) Causation is a question of past fact, to be decided on a balance of probabilities: see Mallett v McMonagle [1970] AC 166.

(c) If the plaintiff proves that the negligence was the sole cause, or a substantial cause, or that it materially contributed to the damage, then the plaintiff succeeds in full: see Bonnington Castings Ltd v Wardlaw [1956] AC 613; McGhee v National Coal Board [1973] 1 WLR 1.

(d) If the plaintiff fails to cross this threshold, then there will be no recovery of any damages: see Barnett v Chelsea and Kensington Hospital Management Committee [1961] 1 QB 428.

147 See Tahir v Haringey Health Authority [1988] Lloyds LR: Med 104 per Otton LJ cited with apparent approval in Gregg v Scott [2002] EWCA Civ 1471 at [29] per Latham LJ.

148 Insofar as causation and loss were concerned, the parties were agreed that the common law of England and Wales did not provide a remedy for the loss of, or reduction in, the chance of a better outcome. The common law required that the plaintiff must show on the balance of probability, that the delay in treatment was a cause in law of Dr O'Reilly's death: see Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176.

149 Section 1 of the Fatal Accidents Act 1976 (UK), which was agreed to be the applicable legislation, is in the following form:

"1. Right of action for wrongful act causing death

(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

150 Although not the subject of any submission by any of the parties, and in light of the agreement to which I have referred above, I would interpret this provision as meaning that if the wrongful act, neglect or default was the sole or a substantial cause, or a material contribution to, the death which gives rise to the claim, then it will fall within the provision of this section.

151 As well, there was an agreement that if there was any limitation period, then the provisions of the Limitation Act 1980 (UK) were applicable.

152 There was also a significant degree of agreement on quantum. However, it is unnecessary to set out that agreement here.

Pleadings

153 The final pleading upon which the plaintiff rested her causes of action was the Third Further Amended Consolidated Statement of Claim, which was filed on 7 November 2013.

154 That Statement of Claim pleaded 19 separate particulars of negligence. They are as follows:

"38. Each of the Defendants, through their acts and omissions, breached their duties of care.

Particulars

a. having offered the deceased 'screening', failed to perform a colonoscopy as part of the screening for bowel cancer;

b. alternatively, failed to perform a barium enema following the flexible sigmoidoscopy on 12 November 2003;

c. failed to direct that a colonoscopy be done as part of the screening for bowel cancer;

cc. the second defendant, having arrived at the clinical view that the deceased's left colon required exploration to the splenic flexure, failed to order that that investigation be carried out by way of colonoscopy.

d. alternatively, failed to direct that a barium enema be performed following the flexibl[e] sigmoidoscopy on 12 November 2003;

e. failed to diagnose a pre-cancerous polyp (or polyps) during the screening for bowel cancer on 12 November 2003;

f. on or about 12 November 2003 failed to advise the deceased that no diagnosis of his rectal bleeding had been reached;

g. on or about 12 November 2003 failed to advise the deceased that the flexible sigmoidoscopy was incomplete;

h. on or about 12 November 2003 failed to advise the deceased that he had not undergone 'screening';

i. on or about 12 November 2003 failed to advise the deceased that his left colon had only been partly examined;

j. on or about 12 November 2003 failed to advise the deceased and Dr Wood that there was no basis for their report to the deceased and to Dr Wood that the deceased's bowel was normal;

k. the third defendant failed to appreciate the landmarks which should have informed him as to whether he had in fact reached the splenic flexure;

l. the third defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon had been completed to the splenic flexure;

m. the third defendant failed to appreciate and understand the landmarks which should have informed him of whether he had in fact reached the splenic flexure;

n. alternatively, the third defendant failed to use those landmarks properly or at all to guide him as to whether he had conducted an examination of the left colon to the splenic flexure;

o. the third defendant proceeded on the basis that to insert the endoscope to a distance of 60cm was necessarily sufficient in order to satisfy himself that he had reached the splenic flexure with the instrument;

p. the third defendant proceeded on the basis that the applicable professional guidelines, namely the Guidelines for the Management of Colorectal Cancer (2001) of the Association of Coloproctology of Great Britain and Ireland, required no more than that, or in the alternative mandated that, the endoscope be inserted by a distance of no more than 60cm in order to conduct an examination of the left colon to the splenic flexure;

q. the third defendant failed to insert the endoscopic device to a point proximal to the splenic flexure where the change in the morphology of the bowel informs a consultant colorectal surgeon of ordinary skill and competence that the examination of the colon has been completed to the splenic flexure;

r. the third defendant failed to appreciate that a flexible sigmoidoscopy procedure was, as at November 2003, not limited to examination of the sigmoid colon, but, rather, was intended to examine the whole of the left colon to the splenic flexure."

155 In their Defence to the pleading, the defendants admitted that the first defendant, the NHS Trust, was the entity legally responsible for the clinical acts of the staff employed at the Hospital. There is no dispute that, for the purposes of this case, the first defendant, the NHS Trust, is also legally liable for the conduct of Mr Sen and Mr Poushin, the second and third defendants, in their treatment of Dr O'Reilly.

156 The defendants each admitted that they owed to Dr O'Reilly a duty to provide him with:

"... a standard of care that would be supported as reasonable by a responsible body of peers practising in the United Kingdom in 2003".

157 The defendants deny that they were in breach of their duty of care to Dr O'Reilly.

158 In answering the allegations of breach of duty of care, the defendants, in their Defence, set out a number of factors which they pleaded as supporting the proposition that they had acted reasonably. Those matters were as follows:

"a. in August and November 2003, the reasonable investigation was a flexible sigmoidoscopy. The reasonable presumptive working diagnosis was by reference to the local obvious anal cause namely bleeding from haemorrhoids, the anal skin flaps, or both. The deceased was appropriately and reasonably treated as an individual at low risk of bowel cancer by reason of his presentation which included the facts that he had no change in bowel habit or constipation; no family history of cancer; no weight loss; no palpable abdominal masses;

b. in the context of the matters noted at a. above and the confirmation of the normal bowel from the procedure carried out on 12 November 2003, it was reasonable to conclude that there was no evidence for any internal bleeding and that the planned treatment for the anal skin flaps and the haemorrhoids was the reasonable and appropriate course. In that event, there was no reasonable requirement to perform a barium enema after the normal findings with the flexible sigmoidoscopy;

c. the deceased's presentation in August and November 2003 correctly and appropriately led to the reasonable conclusion that prospectively the explanation for the bleeding was the anal skin flaps and/or haemorrhoids. The deceased on the basis of his recorded circumstances was at low risk of bowel cancer. The reasonable further investigative procedure was by way of a flexible sigmoidoscopy;

d. a colonoscopy would not have been part of the reasonable suite of investigative procedures in 2003 for a male with prospectively a low risk of bowel cancer;

e. for the same reasons that it was not reasonable to perform a barium enema following the normal results of the flexible sigmoidoscopy in a patient with a clinical profile whereby he was at low risk of bowel cancer and there was a reasonable prospective explanation for the symptoms of bleeding (which was planned to be remedied by surgery), there was no reasonable basis or need for the Defendants to direct that a barium enema be performed; and

f. the Defendants acted reasonably in treating the presentation of the deceased in August and November 2003."

159 As well, the defendants denied any causal link between their conduct and the death of Dr O'Reilly. They pleaded that by the time Dr O'Reilly saw Dr Wood on 13 June 2003, he already had "incurable cancer". They further pleaded that whatever form of treatment had been afforded to Dr O'Reilly in 2003, the probability was that:

"i. by 2003 there was advanced cancer present with at least one liver metastasis. The deceased had occult metastatic disease in microscopic form by this time and this would have been developed with omental and liver metastases. The rectal bleeding in 2003 was likely to be due to a local benign anal cause; and

ii. the deceased's survival would have been substantially the same as it was in fact (at most increased by four months) even if treated with systemic chemotherapy;"

160 As a consequence, the defendants pleaded there was no causal connection between any act or omission of the defendants, and the death of Dr O'Reilly.

161 Finally, the defendants pleaded that, insofar as the plaintiff alleged that she had suffered from psychiatric injury with consequent loss and damage, such injury was not caused by their negligence. They also pleaded that such action was brought more than three years after such a cause of action had accrued to the plaintiff, and was accordingly, not maintainable by reason of the provisions of s 11 of the Limitation Act 1980 (UK).

The Submissions

162 In her oral and written submissions, at the conclusion of her evidence, the plaintiff narrowed her case on breach of duty of care. The plaintiff identified that her case on liability could be concentrated in this way.

163 First, that Mr Sen, the second defendant, was negligent in August 2003 because he did not order a colonoscopy in light of his subjective (and entirely reasonable) intention to examine the whole of the left colon of Dr O'Reilly, because the term "flexible sigmoidoscopy" usually described a procedure which did not ordinarily reach, or enable the visualisation of, the whole of the left colon up to and including the splenic flexure. In short, based upon his clinical examination and plan, Mr Sen should have, but did not, order a colonoscopy.

164 Secondly, as against Mr Poushin, the third defendant, the plaintiff submitted that her case on breach of duty could be reduced to two aspects, namely:

(a) that he performed the endoscopy procedure without due care and skill because he failed to insert the endoscope to a sufficient distance which enabled him to either reach, or else visualise, the splenic flexure; and,

(b) having in fact failed to reach or visualise the splenic flexure, Mr Poushin negligently failed to appreciate that his investigation was incomplete, and failed to refer Dr O'Reilly for further investigation by way of a colonoscopy or some other alternative procedure.

165 In response to this summary of her case, the defendants, orally and writing, submitted, in effect, that the context in which Dr O'Reilly came to be assessed by Mr Sen, and then examined by Mr Poushin, was important. It was, as they submitted, that Dr O'Reilly was in a low risk category for patients of his age who presented with the symptoms and history which he had to be diagnosed with a cancer in the bowel. The defendants submitted that only 1 in 1000 patients with similar presenting symptoms and history to that of Dr O'Reilly is diagnosed with a bowel cancer.

166 As well, as a matter of context, the defendants submitted that any index of suspicion with respect to Dr O'Reilly having bowel cancer, was reduced because of the existence of inter-current conditions, namely the untreated anal skin tags and the second degree haemorrhoids, which provided a rational and benign explanation for his presenting symptoms of rectal bleeding.

167 Having regard to that context, the defendants submitted that the investigation performed on 12 November 2003 was for the purpose of diagnosing the cause of Dr O'Reilly's rectal bleeding, and it did so by identifying the haemorrhoids as being that cause. Accordingly, it was a reasonable examination.

168 In addition, the defendants submitted that for a person of Dr O'Reilly's age and low risk symptoms, with an identified possible innocent source of his rectal bleeding, acceptable practice at the time in the United Kingdom was encompassed by the Guidelines published in 2001 by the Association of Coloproctology of Great Britain and Ireland ("the Guidelines"), and that Mr Poushin's investigation accorded with those Guidelines. Hence, the Bolam principle would be satisfied by compliance with the Guidelines.

169 Because they feature significantly in the course of the evidence which it will be necessary to review in considering the question of breach of duty, it is convenient at this stage to identify the guidelines which are relied upon by the defendants.

2001 Guidelines of the Association of Coloproctology of Great Britain and Ireland

170 The purpose of the Guidelines was described in this way, in the Guidelines themselves:

"Following the Government White Paper in 1991 'Working for Patients', the Department of Health approached the Association of Coloproctology of Great Britain and Ireland and the Royal College of Surgeons to request the production of clinical practice guidelines for the management of, among other conditions, colorectal cancer. The original Guidelines were published in 1996, with the purpose of assisting clinicians in clinical decision-making and practice, by removing uncertainty in areas where it is possible to do so. In addition, they described the gold standard of good clinical care, and were proscriptive of unacceptable clinical standards. The revised Guidelines have maintained these guiding principles and added newer evidence to support changes in clinical practice wherever possible."

171 Importantly, in considering their purpose, the Guidelines stressed that:

"... Guidelines are not intended to create a rigid framework where there is a reasonable difference of opinion. Thus, clinical freedom within limits defined by good practice, is preserved."

172 In describing colorectal cancer in the United Kingdom, the Guidelines said this:

"Colorectal cancer is the second most common cause of cancer death after lung cancer, the overall 5 year survival is less than 40% ... The high incidence of this disease, together with the fact that improvement in mortality in recent years has been modest, highlights the need for research into prevention, earlier diagnosis and better treatment.

Advanced disease at first presentation is still common, both the Trent/Wales and Wessex audits indicate that over 20% of patients present with distant metastases. This may improve with heightened awareness of the disease and its symptoms among the general public."

173 It follows from this last statement that 80 per cent of patients presenting with relevant symptoms, and who were investigated, did not have distant metastases.

174 The Guidelines went on to say:

"Investigations can be tailored according to the symptomatic presentation. The majority of cancers in patients presenting with rectal bleeding or a change in bowel habit without any other significant diagnostic factors, occur within 60cm of the anal verge and can be diagnosed by flexible sigmoidoscopy, which means that a selective policy for the investigation of the proximal colon by a barium enema or colonoscopy, can be safely adopted. Patients presenting with an iron deficiency anaemia, an abdominal mass or abdominal pain indicating incipient intestinal obstruction will require full colonic imaging by barium enema or colonoscopy."

175 The detailed Guidelines also included criteria for defining patients as high risk or low risk. That definition is propounded in the Guidelines for the purpose of ensuring a timely specialist appointment upon referral from a general practitioner. It is also used to determine the relevant investigation which needs to be carried out.

176 The rating system for risk depends upon the presence of symptoms and, in some cases, an age threshold. If a patient presented with rectal bleeding and a change in bowel habit with increased frequency of defecation and/or loose stools, which had persisted for at least six weeks, then such a patient, regardless of their age, would be regarded as a high risk category patient. On the other hand, a patient who presented with rectal bleeding persistently, but who did not have any anal symptoms would only be regarded as being in a high risk category if they were over 60 years of age.

177 Criteria which indicated that patients were at lower risk of cancer included rectal bleeding with anal symptoms or rectal bleeding with an obvious external visible cause such as prolapsed piles.

178 These criteria were, according to the Guidelines, to be used to determine which route of referral the patient was to follow.

179 The discussion contained in the Guidelines, which has been extracted above, together with the contents of the Guidelines relating to risk criteria, concluded with a recommendation which was in the following terms:

"In summary, it is recommended that patients with higher risk symptoms should be fast tracked, either in special clinics or with urgent appointments to routine clinics. Patients referred through such clinics should be investigated with either flexible or rigid sigmoidoscopy plus a high quality double contrast barium enema or colonoscopy when appropriate."

180 This recommendation was graded "B", which meant that, before it was made and published in the Guidelines, it required the availability of well conducted clinical studies, but not randomised clinical trials, on the topic of recommendation.

181 The Guidelines contain other material which is relevant on the question of the nature and identity of the tumour, its development and the likely path of treatment once a tumour was discovered.

182 The four UK based clinical experts, Professor Phillips, Professor Price, Professor Dorudi and Mr Finlay, met in joint conclave in accordance with the practice of the Court and gave their evidence concurrently. The joint report produced as a consequence of the joint conclave, records their opinion with respect to the Guidelines and their application in this case.

183 These experts agreed on the following matters with respect to the Guidelines:

(a) that in a 52 year old man with low risk symptoms of cancer, and an identified likely anal source for the rectal bleeding, a surgeon who followed the Guidelines would be following acceptable practice at the time;

(b) that the reference to flexible sigmoidoscopy was sufficient to encompass the surgeon using either the 60cm flexible sigmoidoscope as the instrument to undertake the examination, or else a 150cm colonoscope inserted to 60cm from the anus;

(c) that the majority of cancers in patients presenting with rectal bleeding occur within 60cm of the anal verge, and that necessarily, a proportion of cancers in such patients occur in the left colon, but beyond the distance of 60cm from the anal verge; and,

(d) that, whatever the Guidelines recommended, a particular doctor in the case of any one or other patient, was free to proceed in a way which did not conform with the Guidelines if that doctor judged that the particular circumstances warranted a different approach.

184 It may be observed that this last agreed statement reflected the statement in the Guidelines themselves. It confirms the common sense proposition that the Guidelines are not anything more than what they say they are, nor what their title suggests. It is clear that the Guidelines are not a code which mandated particular practices, but rather they set out to indicate what would be regarded as acceptable practice in general which is necessarily subject to any reasonable variations between patients and doctors, and which allows for clinical judgment on the part of the doctor.

185 The plaintiff submitted that another publication issued by the NHS in 1997 put forward a standard for clinical conduct which the Court ought prefer to the Guidelines. The document is described as "Improving Outcomes in Colorectal Cancer - The Manual". The UK experts did not accept that this document provided a standard of clinical care against which the conduct of the defendants could be considered. This is hardly surprising. The document itself says that it is not a set of clinical practice guidelines. Its principal intention is stated to be " ...to help the commissioning, planning and developing of colorectal cancer services". Properly evaluated, it is a document which relates to the planning and standardisation across the UK of appropriate colorectal cancer services. It is not, and should not be interpreted as the equivalent of the Guidelines discussed above.

186 The principal purpose for which the plaintiff relies on The Manual is for a statement on p33 which recommends that if colorectal cancer is suspected in a patient the initial investigation should " ... involve either colonoscopy alone or flexible sigmoidoscopy followed by a double-contrast barium enema." Whist I am satisfied that this is not the equivalent of a clinical practice guideline, it does not seem to me, even if given full effect, that it could tell against a finding that if a practitioner followed the Guidelines appropriately, they would be acting in accordance with the Bolam test. The Manual, does not advance the plaintiff's case in this respect.

Mr Sen

187 It is convenient to commence the consideration of the case against Mr Sen by examining his evidence in the factual context which I have earlier described. In so doing, it is necessary to keep in mind that his evidence consisted of written statements, oral examination and cross-examination.

188 Much of Mr Sen's evidence was unchallenged. Because he had no recollection of Dr O'Reilly, much of his evidence was a reconstruction by reference to his ordinary practice. On the whole, so far as I could discern, he was doing his best to give accurate and reliable evidence. I generally accept his evidence as to facts, his practice and matters within his expertise.

189 In August 2003, when Mr Sen saw Dr O'Reilly, he was a well-experienced consultant colorectal surgeon. He had obtained his undergraduate qualifications in 1983, and was made a Fellow of the Royal College of Surgeons of England in 1987. He had first held a position as a consultant surgeon in 1994, and had undertaken many endoscopies by the time he came to see Dr O'Reilly in 2003. He said in evidence, and I accept, that he had first started performing procedures on his own with respect to investigations of the left colon in 1989 and 1990, when undertaking a rotation in colorectal surgery at St Thomas's Hospital. That is, about 13 years prior to his consultation with Dr O'Reilly.

190 During his time as a consultant colorectal surgeon at the Hospital and elsewhere, he taught specialist registrars to perform both flexible sigmoidoscopies and colonoscopies.

191 There is, and can be, no criticism of the history which Mr Sen took from Dr O'Reilly, or his examination with a rigid sigmoidoscope, and also the digital rectal examination, all of which occurred on 19 August 2003.

192 In particular, in the course of his examination, Mr Sen noted that the skin tags, which he took to be the same feature as Dr Wood had described as being a "conical shaped lesion" were not inflamed, although he presumed they had been when Dr O'Reilly was seen by Dr Wood.

193 Mr Sen was of the opinion, and again he is not criticised for this, that the skin tags may have been a source of the bleeding suffered by Dr O'Reilly, but that would have been a rare occurrence, and only if they were inflamed. It followed that, at the time of Mr Sen's examination, although it was possible that the anal skin tags were a source of Dr O'Reilly's bleeding, he did not think it likely because they were not inflamed.

194 In his consultation with Dr O'Reilly on 19 August 2003, Mr Sen set out to arrive at a diagnosis of the rectal bleeding described by Dr Wood in his referral letter, which Mr Sen accepted was correctly described, as overt rectal bleeding.

195 Mr Sen's evidence consisted of two written statements and his oral evidence. The oral evidence was largely consistent with his written statements. However, I gained the impression that his oral evidence was more detailed than his written statements and provided a good deal more explanation of his thought process and conclusions at that time. To the extent that there was any inconsistency, I have found it better to rely upon his oral evidence, which I note was not the subject of much re-examination to clarify, or else place in a different context, any answer which he gave in cross-examination.

196 In cross-examination, Mr Sen accepted that the rectal bleeding described may have indicated an intra-colonic source for the bleeding, which meant that it was highly likely that there may be a sinister cause for the bleeding. I understood him to mean by that expression, a lesion or malignancy, or else the precursor of such sinister pathology. I accept this evidence of Mr Sen's view at the time. It accords with his letter and the plan which he developed of undertaking an examination of the left colon.

197 In using the description "left colon", both in terms of his diagnosis and in terms of his correspondence to Dr Wood and, as well, in giving evidence, Mr Sen said, and I accept, that he was describing the whole of the left colon from the anus through to, and including, the splenic flexure.

198 Mr Sen accepted in his evidence that in Dr O'Reilly's case he could not have finally diagnosed, with confidence, on 19 August 2003 that the cause of Dr O'Reilly's rectal bleeding was his haemorrhoids. Hence, he determined that there was a need to undertake an endoscopic examination.

199 Mr Sen agreed that in coming to the conclusion, as he did, that an endoscopic examination of Dr O'Reilly was appropriate, and that it was "imperative" in the conduct of such an examination to exclude a sinister cause for the bleeding suffered by Dr O'Reilly.

200 Mr Sen regarded the rectal bleeding in Dr O'Reilly's case as a sufficient sign to warrant investigation of the left colon so as to exclude a sinister cause because, as he said, his view was that the "vast majority" of detected colon cancers occurred in the left colon distal to the splenic flexure.

201 It is important to note, as he said in his evidence, which I accept, that he was intending that the examination of Dr O'Reilly take place in a way which exposed to the investigator, the whole of the left colon, up to and including the visualisation of the splenic flexure. That was because, according to his evidence, he was of the view that, if there was anything sinister which was causing Dr O'Reilly's symptoms, then it was 90 per cent certain that it was between the anus and the splenic flexure. As well, Mr Sen's view of the statistical evidence was that 90 per cent of all colorectal tumours occur in the left colon. It was as a consequence of that that he was interested in looking (by investigation) at the colon from the splenic flexure distally, that is to say from the splenic flexure down to the anus.

202 Mr Sen gave evidence that, if he had performed the flexible sigmoidoscopy on Dr O'Reilly, he would not have been satisfied that the examination had been adequately performed unless he had reached, at least, the splenic flexure. In his view, an examination to that extent was necessary because of the risk that there may be a lesion in the part of the left colon which was not examined if the splenic flexure was not reached or clearly visualised. This evidence in cross-examination is entirely consistent with what he said in his first statement with respect to his usual practice in 2003, that is:

"Had that procedure [flexible sigmoidoscopy], for any reason, not reached the splenic flexure which marks the limit of the left colon, or otherwise not provided a satisfactory view of the left colon, then in accordance with my usual practice, I would have ordered further investigations in the form of barium enema or full colonoscopy."

203 Mr Sen also gave evidence orally, which I accept, that he would not have been satisfied with the performance of a flexible sigmoidoscopy by way of an examination, unless he was confident that he had reached and thereby visualised the splenic flexure. An examination to this extent would have ensured that he had visualised the whole of the left colon.

204 To the extent that this written and oral evidence differs from and is inconsistent with the content of paragraph 6, 7, 8 and 10 of his second statement, I do not accept that those paragraphs represent accurately the true content of Mr Sen's thinking and approach to practice in 2003.

205 For example, the substance of what is conveyed by paragraph 8 of the second statement, namely that his practice was to explain to patients the flexible sigmoidoscope after insertion "... and how far into the bowel (i.e. approximately 60cm) it can reach", meant that he intended only to undertake an examination of a limited part of the left colon, i.e. by inserting no more than 60cm of the colonoscope is simply unable to be believed. It is wholly inconsistent with his first statement, his oral evidence, and his contemporaneous letter to Dr Wood in which he expresses the intention to examine the whole of the left colon of Dr O'Reilly. It is also inconsistent with his evidence that the words "...at the very least..." which were used in his letter to Dr Wood, referred to the means of examining the left colon i.e. by flexible sigmoidoscopy, and not to the extent of the examination of the left colon.

206 Of particular importance for Mr Sen when he undertook examinations of the left colon, in assisting him to satisfy himself that he had reached the splenic flexure, was the use of the landmark which is constituted by a change in the morphology of the bowel itself as between the left colon and the transverse colon. As I have earlier noted, the lumen in the left colon has a generally round shape, whereas the lumen in the transverse colon is triangular in shape. Mr Sen's practice when investigating the left colon, was to put the instrument into the colon and bowel until he had seen the triangular lumen of the transverse colon, and having satisfied himself that he had reached the transverse colon, he would then withdraw the instrument, and thereby he would be satisfied that he had reached the splenic flexure.

207 Mr Sen also said in evidence that the other landmark which he used to satisfy himself that he had reached the splenic flexure, was his observation of the pulse being transmitted through the diaphragm into the transverse colon. In 2003, Mr Sen regarded these two landmarks as being the "gold standards" by which an operator could tell that a flexible sigmoidoscopy had reached the splenic flexure and an examination of the whole of the left colon had occurred. Although Professor Phillips suggested that these were generally regarded as rather soft, and often indistinct or uncertain landmarks, I accept Mr Sen's evidence that for a skilled endoscopist, these landmarks are readily visible, and ought to be viewed during the procedure.

208 Mr Sen accepted, as did all of the experts, that the anatomy of the left colon and the extent to which it changes shape and has redundant lengths, is entirely idiosyncratic to individual patients. Some have longer colons than others. Some colons have more bends and twists than others. In some, the sigmoid colon is shorter and the descending colon is longer. The possibilities are numerous.

209 Mr Sen gave this evidence in respect of the examination which he intended to undertake upon Dr O'Reilly, which I accept:

"Q. You would have wanted to be certain, would you not, that the flexible sigmoidoscopy had achieved what you wanted; namely, a satisfactory examination of the whole of the left colon, up to the splenic flexure.

A. Up to and including the splenic flexure.

...

Q. Certainly, if you had carried out a flexible sigmoidoscopy [and] ... if you had had any doubts about whether you had actually reached the splenic flexure, there is absolutely no way that you would report that you had reached it?

A. Absolutely, yes.

Q. Because that would be an incomplete flexible sigmoidoscopy wouldn't it?

A. Yes.

Q. And that would mandate a further investigation?

A. Yes."

210 Mr Sen also gave evidence, which I accept, when discussing the conduct of an endoscopy of the left colon in the context that he had earlier identified the existence of the triangular cross-section of the lumen in the transverse colon, and the observable pulse in the transverse colon as being the gold standard landmarks available to an endoscopist undertaking an examination of the left colon. He said:

"A. ... we just agreed how you could reach the transverse colon, and if you come back a little bit, that would be the splenic flexure. The splenic flexure itself can be mistaken for another kink in the bowel, in layman's terms, and there may be other abnormal kinks which, you know, can give rise to the impression that you have reached the splenic flexure, which is why we discussed the two gold standards.

Q. So the fact that you reached what seemed to be a right angle, or a bend, would not, in itself, be in any way confirmatory that you had reached the splenic flexure?

A. Not at all.

Q. Quite the contrary?

A. Quite the contrary."

211 It is clear from his evidence, and as well from his letter to Dr Wood in which Mr Sen used the phrase when referring to examining the left colon "... at the very least with the help of a sigmoidoscopy", that Mr Sen determined, that in the case of Dr O'Reilly, what needed to happen to achieve a proper diagnosis was that a sinister cause of the bleeding in the left colon needed to be identified or excluded. He did not feel confident to assign as a final diagnosis that the bleeding was to be attributed to the haemorrhoids. As well, because the anal skin tags were not inflamed, he was not persuaded that the rectal bleeding could be attributed to the skin tags.

212 He therefore intended that to achieve a proper diagnosis in Dr O'Reilly's case, the whole of the left colon, from the anus up to and including the splenic flexure, would be examined. Such an examination was to take place, by him, at the booked time in the unit at the Hospital.

213 He also intended to address on that occasion the other potential causes, in particular, the haemorrhoids, by undertaking a banding procedure which was intended to prevent the haemorrhoids bleeding. He then intended that, if the bleeding continued notwithstanding that he had observed the whole of the left colon, found nothing sinister, and satisfactorily banded the haemorrhoids, to undertake a colonoscopy to examine the whole of the bowel from the anus through to the caecum.

214 The terms of his carefully worded letter also reserved the question of whether a flexible sigmoidoscopy would successfully examine the whole of the left colon. Whilst it was Mr Sen's common and, perhaps, universal experience, and certainly his confident expectation that he was able, whilst undertaking a flexible sigmoidoscopy, to reach and visualise the splenic flexure, his plan allowed for the possibility of further investigation if he did not do so. Nevertheless, it was essential in Mr Sen's plan for Dr O'Reilly, that he could be sure that by visualising the whole of the left colon, he had excluded a sinister, that is, malignant, cause for Dr O'Reilly's overt rectal bleeding.

215 As the words used by Mr Sen in his letter to Dr Wood recognised, and as was a matter of general knowledge in the profession in 2003, there could be no guarantee that a flexible sigmoidoscopy would in fact enable an examination of the whole of Dr O'Reilly's left colon. It seems clear that Mr Sen was confident in his own professional skill to use the flexible sigmoidoscopy to examine the whole of the left colon. Indeed, his own counsel submitted that:

"... he demonstrated healthy self-confidence in his abilities as an endoscopist ..."

216 It also seems that he was confident of his own skill to recognise either or both of the landmarks necessary to reassure himself that he had reached the splenic flexure, and had examined the whole of the left colon.

217 In his first statement, Mr Sen, in the context of responding to the allegations pleaded, referred to his knowledge of the Guidelines.

218 Initially, he rejects the proposition that he should have undertaken a colonoscopy as the initial examination on the basis that the symptoms with which Dr O'Reilly presented did not warrant such an examination. That suggestion occurs immediately following his evidence that he intended that the flexible sigmoidoscopy would examine the whole of the left colon, which he says is the location, based upon his understanding in 2003 (and now), in which 90 per cent of bowel tumours are found.

219 If those parts of Mr Sen's first statement are read in combination, and together with, his oral evidence, it is clear that Mr Sen was addressing his failure to undertake a colonoscopy for the purpose of investigating all of the colon proximal to the splenic flexure: in other words, the transverse colon and the right colon. In so doing he was correct to deny any negligence in failing to inspect those parts of the colon. As the colonoscopy was the only procedure capable of undertaking such an examination, he was in that context, correct to reject such an allegation of negligence.

220 But his understanding of the nature and content of the plaintiff's allegation was incorrect. The plaintiff's case, properly understood, was that an examination of the whole of the left colon was required. It was the plaintiff's case that such an examination could only be ensured by undertaking a colonoscopy in lieu of a flexible sigmoidoscopy because the flexible sigmoidoscopy was well known to be an inadequate procedure for ensuring such a complete examination.

221 Mr Sen then turns to the Guidelines and says that undertaking a flexible sigmoidoscopy accorded with them. Importantly, he adds a qualification to this evidence when he says at paragraph 17, returning to the flexible sigmoidoscopy procedure:

"Had that procedure, for any reason, not reached the splenic flexure, which marks the limit of the left colon, or otherwise not provided a satisfactory view of the left colon, then in accordance with my usual practice I would have ordered further investigation in the form of a barium enema or full colonoscopy."

222 This approach is confirmed later in his first statement, in paragraph 21, when he says with respect to the Guidelines, that they called:

"... for the clinician to exercise clinical judgment in determining whether to subject the patient to a flexible sigmoidoscopy or directly to colonoscopy."

223 He also considers the Guidelines in the context of risk criteria. He identifies the Low Risk Criteria and that Dr O'Reilly's presentation fell within them. He says that the Low Risk Criteria made it reasonable not to order a colonoscopy, by which he must be understood to mean (as the Guidelines themselves say), an examination of the colon proximal to the splenic flexure.

224 Mr Sen's second statement makes no reference at all to the Guidelines. His oral evidence did not include any significant reference to the Guidelines, saying only that he was duty bound by the Guidelines to examine the left colon by which I understood him to mean the whole of the left colon from the anus to the splenic flexure.

225 The UK experts considered this matter in their joint report. They agreed on the following answers:

"iii. The Experts agree that, in a 52 year old man with low risk symptoms and an identified likely anal source for their bleeding, a surgeon who followed the Association of Coloproctology of Great Britain and Ireland Guidelines 2001 would be following acceptable practice at the time.

iv. The Guidelines on page 17 state: 'The majority of cancers in patients presenting with rectal bleeding or a change in bowel habit without any other significant diagnostic factors occur within 60cms of the anal verge and can be diagnosed by flexible sigmoidoscopy'. "

226 I am satisfied that it was always Mr Sen's intention that the examination which he thought necessary and appropriate for Dr O'Reilly in light of his presenting symptoms, was one which endoscopically examined the whole of his left colon from the anus up to and including the splenic flexure. As is apparent from the parts of the Joint Report which I have just set out, such an examination exceeded what was called for in accordance with reasonable and acceptable practice in the UK. But it was an entirely acceptable clinical decision by Mr Sen. Clearly, and without criticism, he was not following the limit of the Guidelines, but thought it necessary to do more.

227 In those circumstances, where it was necessary to ensure the examination of the whole of the left colon, the UK experts were unanimously of the view that a flexible sigmoidoscopy was not the appropriate method of ensuring such an examination.

228 In understanding Mr Sen's approach to Dr O'Reilly's investigations, a number of factual features are important. They include:

(a) the Guidelines do not make any specific reference to the instrument which is to be used for performing a flexible sigmoidoscopy. Nor do the Guidelines mandate, recommend or suggest that when a flexible sigmoidoscopy is undertaken with a long colonoscope, that it is only inserted to a fixed distance from the anus, namely 60cm;

(b) in 2003, in the NHS, it was rare that the 60cm sigmoidoscope was used to undertake a flexible sigmoidoscopy. Rather, a long colonoscope was usually used. At the Hospital in 2003, a long colonoscope was always used; and

(c) in 2003, Mr Sen's experience was that he was only using a long colonoscope to undertake flexible sigmoidoscopies; that when doing flexible sigmoidoscopies, he got "... to the splenic flexure all the time"; that he used the triangular shape of the lumen of the transverse colon to indicate that he had reached the splenic flexure; he never relied on the calibration markings on the long colonoscope to indicate the extent of the penetration of the instrument into the bowel, and it was his experience that only rarely was the splenic flexure reached with 40cm of the long colonoscope having been inserted but it usually read 60-70cm and often went up to 90cm.

229 It seems to me that in paragraph 21 of his first statement, Mr Sen in describing the clinical judgment he was being asked to make was addressing the question of which procedure ought to have been undertaken, namely a flexible sigmoidoscopy, to examine the descending colon up to the splenic flexure, or else a colonoscopy to examine the whole of the colon to the ascending colon, and down to the caecum. Because he thought that the symptoms were unlikely to be proximal to the splenic flexure, and because in his experience 90 per cent of cancers were in the left colon i.e. from the splenic flexure to the anus, his choice of investigation method was one which enabled the examination of the entire left colon, and not the balance of the colon, which carried with it the additional risks which he identified.

230 Put differently, if I accept that the practice in place in the UK in 2003, which reflected the Guidelines and which was regarded by the UK experts as an appropriate practice, was to undertake a flexible sigmoidoscopy by only inserting the long colonoscope until the 60cm calibration was reached at the anus, and that any further insertion of the long colonoscope was not required to comply with the Guidelines and good clinical practice, then it is clear that notwithstanding this, the investigation considered necessary and appropriate in Dr O'Reilly's case by Mr Sen, was not merely the practice which accorded with the Guidelines, but rather something more than the Guidelines required.

231 Accordingly, Mr Sen, acting in accordance with that part of the Guidelines which said "Investigations can be tailored according to the symptomatic presentation" elected to undertake an investigation which was more extensive than a flexible sigmoidoscopy limited to insertion of the instrument to a maximum length of 60cm calibrated at the anus.

232 Thus, Mr Sen's evidence that he was acting in accordance with the Guidelines as he understood them, may be accepted. But it was never his intention that the only examination of Dr O'Reilly's left colon was to be a limited one conducted by a length of instrument inserted only to 60cm.

233 In light of the evidence and these conclusions, it is now convenient to consider the allegation that Mr Sen was in breach of his duty of care.

Breach of Duty by Mr Sen

234 Putting it briefly, the plaintiff alleged that if Mr Sen wanted to examine the whole of the left colon, then he ought, acting with reasonable skill and diligence, have ordered a colonoscopy.

235 The UK experts accepted that it would be open to a surgeon in Mr Sen's position to decide that in order to diagnose a patient's rectal bleeding, it was necessary to examine the whole of the left colon.

236 However, Professor Phillips expressed the view that it was unnecessary on the basis of Dr O'Reilly's presenting symptoms for anything more than an examination by way of flexible sigmoidoscopy to be undertaken without necessarily viewing the whole of the left colon, and without reaching or visualising the splenic flexure.

237 The basis of this view was that Dr O'Reilly was at a low risk of developing colon cancer and there was an obvious, and not sinister, cause of his rectal bleeding namely, the anal skin tags or else his haemorrhoids. As well, Professor Phillips pointed to the Guidelines and a broadly based professional practice in the UK in 2003, as providing support for this view.

238 I have set out above the relevant passages from the Guidelines to which Professor Phillips drew attention and to which the Joint Report referred.

239 In their Joint Report, the UK experts were asked this question, and gave their answers by reference to the acceptable standards prevailing in the UK in August 2003:

"1. Was it acceptable practice for Mr Sen to have formulated a plan to have Dr O'Reilly's left colon investigated, at the very least, with flexible sigmoidoscopy?

Comment:

(i) The experts have considered the phrase 'at the very least'.

(ii) In their joint view, in the presence of clinical circumstances that required the whole of the left colon, including the splenic flexure to be guaranteed to have been examined, then a flexible sigmoidoscopy was not a sure enough way to have achieved that aim and a colonoscopy/barium enema/CT colography should have been ordered.

...

(vi) The experts agreed at (ii) above that a 60cm flexible sigmoidoscope would not ensure examination of the splenic flexure."

240 The expression "a 60cm flexible sigmoidoscope" in that last answer, understood in the context of their reports, and the evidence in the case, means the procedure of flexible sigmoidoscopy undertaken by inserting the instrument used, whatever its length, to 60cm measured from the anus.

241 Later in their report, the experts agreed that it was "simply not possible" to have the whole of Dr O'Reilly's left colon investigated with a flexible sigmoidoscopy.

242 It follows that if I accept, and I do, Mr Sen's evidence as to his diagnostic plan then, notwithstanding his own confidence in his own ability to achieve an examination of the entire left colon by proceeding with a flexible sigmoidoscopy, ordering such an examination could not be a sure enough way to achieve the end result which he wished. In accordance with proper practice according to the evidence of the UK experts, he should have, but did not, order a colonoscopy.

243 I am satisfied that this, subject to the considerations discussed below, would constitute a breach of duty.

244 The defendants seek to argue that because Dr O'Reilly was properly regarded as being at low risk of cancer, having regard to his age, the symptoms with which he presented, and the absence of other symptoms such as a change in bowel habit, then by application of the Guidelines, all that was required in accordance with good practice, was for him to be examined by a flexible sigmoidoscopy, and that a lesser examination than that contemplated by Mr Sen would have been in Dr O'Reilly's case, acceptable practice. Accordingly, they submit, that by application of the Bolam test, there can be no breach of duty.

245 It can be readily accepted, as the evidence of all of the medical experts seemed to do, that if a practitioner followed the Guidelines, then they were conducting themselves in accordance with acceptable practice.

246 As well, the defendants point to the fact that in considering whether or not it was a breach of duty for Mr Sen not to undertake a colonoscopy, the risk in, and inconvenience of, a colonoscopy together with its low diagnostic yield, needed to be considered. In this context, the defendants pointed to the evidence that colonoscopy was not in 2003 ordinarily offered in the UK as a screening tool to anybody below the age of 60.

247 The argument that Mr Sen's clinical conduct was not able to be criticised because the Guidelines permitted the flexible sigmoidoscopy which he referred to in his letter to Dr Wood is, with respect, erroneous for two reasons.

248 The examination contemplated by the Guidelines, by way of flexible sigmoidoscopy, would not be expected nor intended to examine the whole of the left colon up to and including the splenic flexure. It was a lesser examination because, as the experts were careful to explain, what was called for in the procedure of flexible sigmoidoscopy was insertion of the endoscope if the shorter instrument was used for its maximum possible length, or if the longer instrument was used, until the 60cm calibration was reached at the anus. In the majority of cases, this would provide a limited examination of only part of the left colon.

249 That must be so for the reason that a fixed measurement of 60cm from the anus will not necessarily reach 60cm into the colon of an individual patient because, amongst other things, of the idiosyncratic nature of an individual patient's bowel. Nor will it necessarily, and in a significant proportion of cases does not, reach or enable the splenic flexure to be visualised.

250 Thus it is clear, having regard to Mr Sen's stated intention, reinforced by his evidence, that in the case of Dr O'Reilly, he was not intending that the examination prescribed by the Guidelines would be the examination conducted in this case. He was intending that a different investigation be undertaken, namely one which visualised the whole of the left colon. As the experts accepted, a doctor in Mr Sen's position, confronted with particular symptoms in a particular patient, was entitled to undertake a more detailed and extensive examination than the Guidelines required. The Guidelines necessarily permitted such individualised medicine to be practised, notwithstanding that it was part of the NHS Scheme.

251 This greater examination was what Mr Sen was intending to be done. No doubt, because of his:

"... demonstrated healthy self-confidence in his abilities as an endoscopist ... personally achieving a higher standard of proficiency than ... his peers ..."

to quote from Mr Sen's counsel's submissions, he was confident that he could achieve his intended aim by a flexible sigmoidoscopy. However, it was always his plan to reach the splenic flexure. Ordering only a flexible sigmoidoscopy, in the NHS system, where it was not certain that he would undertake the endoscopy himself, although that was highly likely, could not have achieved his diagnosis or his investigatory plan.

252 In those circumstances, the reliance by the defendants on the Guidelines to justify the undertaking of a lesser examination is erroneous.

253 If Mr Sen only intended to examine such part of the colon as could be reliably examined by a flexible sigmoidoscopy, and he regarded that, in light of the presentation of Dr O'Reilly together with his history and symptoms, as being adequate and appropriate, then acting in accordance with the Guidelines would have been reasonable practice. But Mr Sen was not so satisfied. He determined something more was necessary. The difficulty for Mr Sen is that he did not order the appropriate procedure in circumstances where he had clinically determined that the whole of the left colon required examination. And that because of his confidence in his own abilities.

254 To the extent that the defendants seek to rely upon a comparison of the risks and benefits from the use of the colonoscopy, including pointing to the small chance that a cancer would be discovered, it is clear that Mr Sen had regard to those questions. He had regard to those questions because, firstly, he determined that it was necessary to examine the whole of the left colon, which included looking for the presence of cancers which were located in the left colon but more proximally than the reach of a 60cm instrument (or an instrument inserted to 60cm from the anus). He specifically accepted that had he been unable to examine the whole of the left colon with a flexible sigmoidoscopy, then a colonoscopy would have been appropriate. His letter to Dr Wood, by use of the words "... at the very least ..." demonstrated this acceptance. His evidence unequivocally accepted this view.

255 In other words, Mr Sen himself had undertaken the risk benefit analysis, and concluded that there was no reason not to undertake a colonoscopy if the whole of the left colon could not be otherwise exposed during the flexible sigmoidoscopy procedure.

256 In summary, the defendants' resistance of a finding of breach of duty on the part of Mr Sen is to say that clinically, acting appropriately, he did not need to mandate an investigation of the kind which he did, and that a lesser investigation would have been acceptable practice. The resistance cannot be sustained.

257 I reject this approach. It is to substitute a hypothetical for an actual. In this sense, it is an approach which invites the Court to disregard what Mr Sen in fact intended to do, told Dr Wood that he would do, and what he would have done had he been there to perform the procedure, and to assume that he could have, acting appropriately, done something less. But, the reality is that he did not. He determined, and no one criticises this, on a particular investigatory plan to achieve a diagnosis in Dr O'Reilly's case. As it turns out, although Mr Sen did not know it, that investigation and diagnostic plan would have achieved, correctly, a diagnosis of Dr O'Reilly's condition. That is to say, had the whole of the left colon been examined, then the lesion which both parties agree was present in Dr O'Reilly's left colon just at or else, slightly distal to, the splenic flexure, would have been observed.

258 In other words, although he did not know it, Mr Sen's plan was in fact the correct one. Acting in accordance with the Guidelines would not have achieved a diagnosis of Dr O'Reilly's lesion.

259 The defendants also seek to argue that properly understood, Mr Sen's diagnostic plan was simply to undertake (or cause to be undertaken) a flexible sigmoidoscopy, thereby examining such part of Dr O'Reilly's left colon as could be examined by such a procedure. The defendants submit that properly understood, that was what he was saying about his plan in his letter to Dr Wood. The defendants point to the clinical practice which accorded with the Guidelines as supporting this interpretation of Mr Sen's plans.

260 This approach is epitomised in the evidence of Professor Phillips where, in paragraph 11 of this Report of 7 September 2013, he said:

"My experience is that doctors, not being legally trained nor legally inclined, use language quite loosely. In my opinion, Mr Sen's intention was that a flexible sigmoidoscopy should be undertaken ... "

261 This approach is erroneous, and must be rejected for a number of reasons. First, such an interpretation does not reflect the ordinary meaning of the words which were written. Secondly, it does not accord with Mr Sen's own evidence, either in writing or orally. Thirdly, it is beyond the proper reach of Professor Phillips' role as a witness to interpret or re-interpret contemporaneous facts and impute an intention to a person involved in the actual events. Finally, the resolution of what Mr Sen said and did, and intended to say or do, is a matter for the Court and not an expert.

262 In my view, the approach of the defendants is misguided and misplaced. One has to deal with what it was that Mr Sen had determined was appropriate to be done, and as all of the experts agreed, if that was his intention, then he could not have achieved it by ordering a flexible sigmoidoscopy in accordance with acceptable practice, but was required to order a colonoscopy. This he did not do. One cannot approach the matter as the defendants' expert sought to do by placing a different interpretation on what Mr Sen intended to do, or else positing that an investigation which was not intended to be done, would have accorded with good practice.

263 Mr Sen is in breach of his duty.

264 The defendants argued that even if a colonoscopy was proposed by Mr Sen, Dr O'Reilly would not have undergone it. I reject that submission. I am satisfied from the evidence of his family, that Dr O'Reilly was careful about his health and it is more likely than not that he would have accepted Mr Sen's advice.

Mr Poushin's Position

265 Mr Poushin had no recollection of the occasion in November 2003, when he undertook a flexible sigmoidoscopy upon Dr O'Reilly.

266 His evidence accordingly was a reconstruction entirely based upon what he said was his usual practice. There was however, as it appeared in the course of his evidence, a fundamental difficulty with this assertion because the day when he performed the flexible sigmoidoscopy upon Dr O'Reilly was the first day of his undertaking any endoscopies at the Hospital, where he had commenced employment as a locum just a few days earlier.

267 That in fact he had a standard practice at the Hospital at that time is a matter of which I am unpersuaded. No doubt, having regard to his conduct of many endoscopies by that time of his career, he had a procedure which he was ordinarily accustomed to follow, but how that fitted with what the practice and procedures were at the Hospital is unexplored in the evidence.

268 For reasons that will come to be explained, I regard the evidence of Mr Poushin as largely unreliable, and unless it is corroborated, or it is against his interests, I do not accept it, or place any weight upon it.

269 There are a significant number of reasons to come to this conclusion. They include, but are not limited to, the following:

(a) his complete lack of memory of the occasion in November 2003, when he performed the endoscopy upon Dr O'Reilly;

(b) his numerous attempts to reconstruct what must have happened by reference to a standard practice in circumstances where he was working for the first occasion at the Hospital, on the day he performed Dr O'Reilly's procedure;

(c) the unreliability overall of his evidence because of significant inconsistencies between each of his statements and his oral evidence;

(d) his wholly unsatisfactory evidence, given orally, about his asserted knowledge of the existence of the 2001 Guidelines, and his asserted conscious practice of complying with them when he undertook the procedure;

(e) his wholly inconsistent evidence which he gave as to whether he did or did not reach the splenic flexure; and

(f) his general demeanour in the witness box accompanied by his manner of giving evidence which, including significantly long pauses between questions and answers, and his tendency to formulate an answer which he thought helped his case, gave me an impression that he was attempting to give his evidence in a way which would result in the best outcome for him.

270 Simply put, he was an unsatisfactory witness and his evidence was unreliable. It is necessary to expand on these remarks somewhat, which will involve a somewhat detailed analysis of his evidence. It will also be necessary to refer to the way in which the defendants' case was pleaded from time to time.

271 Initially, in their Defence, the defendants pleaded that Mr Poushin's endoscopy had reached the splenic flexure, and Dr O'Reilly's left colon was visualised to that juncture. As well, the defendants pleaded that the bowel preparation of Dr O'Reilly was satisfactory, with the result that a clear view of the bowel was available. Further, the defendants pleaded that there was no abnormality present in the left colon, and that a normal bowel was seen. This Defence accepted, and was based upon, the accuracy of the contents of the Colonoscopy Report to which reference has been made. The relevant contents of that Report were set out in the Defence.

272 That Defence was filed on 6 July 2011, and no doubt reflected the instructions which the lawyers for the third defendant had received. Of course, the second defendant had no role to play in this part of the factual assertions. Those allegations remained unchanged until a further version of the defence was filed on 15 October 2013. That further version suggested for the first time that Mr Poushin reached "... what he perceived to be..." the splenic flexure.

273 The initial evidentiary statement of Mr Poushin, which was signed on 21 December 2012, also reflected the view of the facts in the original Defence. He said:

"The fact that the bowel preparation was satisfactory meant that I had a clear view of the bowel. I did not detect any abnormality. I had a good view of the left side of the colon up to the splenic flexure, and it was normal."

274 Immediately prior to expressing his evidence in that form, Mr Poushin had referred to the contents of the Colonoscopy Report which he had completed at the conclusion of the examination. That document is the only contemporaneous document created by Mr Poushin which records his examination. He also referred to the hand drawn arrow on the Report as a demonstration or indication that he had reached the splenic flexure.

275 The only other contemporaneous document about the procedure is one that was prepared before the procedure, apparently by the attending nurse. Having noted the date of the procedure, it records the procedure as "f/sig [flexible sigmoidoscopy] and banding"; Dr O'Reilly's blood pressure and pulse; some of his personal details, including his history of the removal of his spleen in 1988 and that he did not know of any allergies. It also noted that Dr O'Reilly was not taking Warfarin, a medication intended to prevent blood clotting; that he had been fasting since 7pm the evening before the procedure, and that a microlax enema was given at 7am on 12 November 2003. It further recorded the time of 10.40 which, I infer, was the time at which the flexible sigmoidoscopy commenced to be undertaken or was intended to be undertaken.

276 It is to be observed that the letter written by Mr Sen to Dr Wood on 20 August 2003, noted that the plan determined by Mr Sen was for a flexible sigmoidoscopy to be undertaken, and banding of piles at the same time if required.

277 Mr Sen's evidence was that the proper and appropriate practice at that time, if the piles were prominent and banding was appropriate clinically, was to undertake the examination in the following way:

(a) first, undertake a digital examination per rectum;

(b) then undertake the flexible sigmoidoscopy; and then, at the conclusion of the flexible sigmoidoscopy, having withdrawn the endoscope which was used,

(c) insert a shorter more rigid instrument known as a proctoscope and with the use of that instrument, to undertake banding of the piles,

all of this being done while the patient had a clean bowel. The evidence of Mr Poushin does not suggest that such a practice was followed.

278 Returning then to Mr Poushin's account, in his first statement, having made reference to undertaking the flexible sigmoidoscopy, he makes no reference at all to whether he did, or did not, undertake any procedure for the banding of Dr O'Reilly's haemorrhoids, nor does he make any reference to any discussion which he had with Dr O'Reilly about undertaking that procedure. In fact, he did not undertake the banding procedure because, I would infer, it was neither clinically necessary nor appropriate so to do.

279 In his first statement, Mr Poushin made no mention of the clinical Guidelines. He made no mention of the nature of the instrument used. He did not mention that his examination was limited because the instrument was inserted only to 60cm calibrated from the anus.

280 At the commencement of his oral evidence, Mr Poushin affirmed the correctness of the contents of his first statement. In light of the contents of his second statement, and his evidence generally, this was curious. By unequivocally affirming the correctness of his first statement, and without qualification, Mr Poushin in his evidence in chief was providing the Court with two versions of events which on any view were simply inconsistent with each other. That is because he also affirmed, at the same time, the correctness of his second statement.

281 The contemporaneous Colonoscopy Report also includes a hand drawn arrow which, I accept, Mr Poushin placed on the standard diagram, with the point of the arrow head directed at the splenic flexure. It was intended to, and did, indicate, contemporaneously, Mr Poushin's satisfaction that he had reached or else visualised the splenic flexure.

282 Accordingly, if one pauses at this point to analyse the case advanced by Mr Poushin, both on the pleadings, by his first written statement and having regard to the contents of the contemporaneous Colonoscopy Report, it was this: he had undertaken a flexible sigmoidoscopy, no particular instrument had been specified; he recorded and specifically noted that he had reached or else visualised the splenic flexure and that no abnormality had been detected. His case also was that he regarded himself as a competent endoscopist who had considerable experience having undertaken hundreds of endoscopies, and that no irregularity existed inside Dr O'Reilly's left colon at the time of the examination.

283 Prior to this point in time, it seems that it had generally been believed in the camp of the third defendant, that what had been used was a 60cm instrument. Accordingly, when Professor R K S Phillips, the primary colorectal surgery expert retained by the defendants, gave his earlier reports, he highlighted the fact that it was entirely possible that a lesion in the upper descending colon (or proximal descending colon) could exist without being visualised by a properly undertaken flexible sigmoidoscopy. He pointed to learned articles which recognise this factual occurrence in a significant number of cases, that is, 29 per cent. Hence, Professor Phillips expressed the view, arguendo, that there was no inconsistency between the proper and competent undertaking of a flexible sigmoidoscopy and the existence of a tumour or lesion in the upper descending colon, because the nature of a person's anatomy was such that the splenic flexure, and the whole of the descending colon, may not necessarily have been viewed.

284 This expert view of Professor Phillips was consistent with the expert opinion of Professor Pat Price, who was the defendants' principal oncology expert, and who had expressed the opinion that there was a malignant tumour in the upper descending colon at or around the splenic flexure in November 2003. She opined in her first report dated 7 May 2011, that on the probabilities, in November 2003 there would have been present in Dr O'Reilly's upper descending colon at the splenic flexure, a tumour in the region of 1cm that would have been staged as a "T2N1 moderately differentiated carcinoma".

285 As well, Professor Price expressed the view that such tumour would have been readily detectable had a colonoscopy been performed. I am satisfied that she was referring to any endoscopy procedure which reached or visualised the splenic flexure, in circumstances where the bowel preparation was satisfactory.

286 Given that this was the defendant's case, the only rational explanation which could adequately explain the existence of a tumour of the size posed by Professor Price, at or about the splenic flexure but in the descending colon, the fact that the endoscopy had reached and visualised the splenic flexure and had reported no abnormality being present, is that the tumour was present, the endoscopy reached the splenic flexure and the operator, Mr Poushin, did not detect the presence of the tumour, such failure to detect it being obviously negligent.

287 No expert expressed the opinion that a failure to detect a tumour about 1cm in size was acceptable practice in circumstances when the part of the bowel in which it was located was visualised, the bowel having been properly prepared.

288 In final submissions, senior counsel for the defendants accepted that had these facts been so, then the failure to detect the tumour was negligent on the part of the third defendant. He submitted that the Court would not find the facts necessary for this conclusion, and in particular the Court would not find that Mr Poushin had reached the splenic flexure.

289 The second way, factually, which the third defendant, Mr Poushin, put his case was really based upon an assertion to be found in the first expert report of Professor R K S Phillips. There, in January 2011, well before the first statement of Mr Poushin was signed, Professor Phillips posited, as a possible account of the circumstances, the following:

"The flexible sigmoidoscopy

15) I enclose a copy of an article 'Depth of Insertion At Flexible Sigmoidoscopy: Implications For Colorectal Cancer screening And Instrument Design' by Painter at al (Endoscopy 1999; 31:227-231).

16) In David O'Reilly's case the cancer was subsequently found to be in the proximal descending colon. The Conclusions on page 227 state 'Examination of the entire sigmoid was not achieved in approximately one quarter of patients...mainly because of discomfort. The descending colon is intubated in a minority of cases'. The relevant data are given in Table 1 at page 229.

17) The point this article makes is that a peer group on average fails to examine into the descending colon, which means that Mr Poushin, if he likewise failed which in my opinion was the probable case, performed no differently to his peer group.

18) The Court should be aware that during colonoscopy the only anatomical landmarks of any constancy are the anus at one end and the caecum, appendix and terminal ileum at the other. As flexible sigmoidoscopy does not expect to reach the caecum, appendix and terminal ileum, there are no anatomical landmarks after the anus that tell the endoscopist 'This is the sigmoid colon' and 'This is the descending colon'. The endoscopist relies on a value judgment based on the depth of insertion of the instrument, 'experience' and so on to arrive at some idea as to how far he or she has reached. This is frequently not as far as the endoscopist actually thinks, largely due to looping of the instrument in a long sigmoid colon.

19) For these reasons in my opinion Mr Poushin acted as a peer group might have acted, not only in terms of erroneously thinking he had reached the descending colon when in fact he had not but also in terms of simply not having got there in the first place. For these reasons in my opinion Mr Poushin was not in Breach of Duty in terms of the conduct and assessment of the flexible sigmoidoscopy itself." (Emphasis in original)

290 It is to be noted that this opinion was expressed by Professor Phillips, having regard to his belief that the instrument which had been used was 60cm in length, and was not the longer instrument.

291 Having hypothesised what may have occurred in this report of January 2011, that hypothesis seems to have been maintained by Professor Phillips in his second report of 21 March 2012, where, when responding to a report served by the plaintiff of Dr Terry Gavaghan, he says:

"I agree that there is no clear yardstick as to how far a flexible sigmoidoscope has really been passed. I agree that a 60cm insertion may not mean the endoscope has reached a definite anatomical location. I agree that, as with colonoscopy, the flexible endoscope is prone to looping."

292 The hypothesis suggested by Professor Phillips was further developed by him in his report of 8 September 2013, where he says this:

"16. What this means is that in averagely competent hands a flexible sigmoidoscopy had an approximate 30% chance only of detecting a cancer in this area [upper descending colon].

...

The previously enclosed literature on depth of insertion shows that in only a minority of cases is the splenic flexure actually seen. The introduction of the previous enclosure stated:

'most endoscopists carry out flexible sigmoidoscopy using a 60cm instrument and many aim to examine the entire left colon to the splenic flexure'.

19. I have previously pointed to the absence of landmarks apart from the anus at the point of insertion, and the ileocecale junction at the proximal end of the colon.

20. What this means is that the endoscopist may intend to examine the colon up until the splenic flexure, but usually does not do so. In addition, having no landmarks to be sure where he or she is, the endoscopist may mistakenly (but in my view not negligently) consider they have reached one point in the colon when in fact they are at some other point in the colon.

21. I would thus consider Mr Poushin to have been in error as to where he was, but not negligent in that error as there are no landmarks and the sigmoid descending junction appears much as the splenic flexure (and a peer group has been shown to be similarly in error). These are simply knowledge limitations to flexible sigmoidoscopy."

293 Professor Price, although acknowledging the limit of her expertise in the area of endoscopies, embraced a similar construct. In her first report, dated 7 May 2011, she theorised:

"... it is likely that the flexible sigmoidoscopy in November 2003 did not examine sufficiently far into the bowel to find the tumour which was proximal, and would need a colonoscopy to have been performed to detect it."

294 As I have earlier noted, Mr Poushin's first statement was signed in December 2012, about 18 months after this report of Professor Price. His statement of what he said occurred did not accord with the course of conduct theorised by Professor Price.

295 Mr Poushin's second statement was dated 26 September 2013. That is to say, about two and a half weeks after Professor Phillips had provided a further explanation in his 8 September 2013 report of his 2011 hypothesis, and provided a justification for that hypothesis as being acceptable conduct by reference to medical literature, and common practice.

296 At that point, it appears to have been recognised by Mr Poushin that he had not used a 60cm instrument, but that he had used a 150cm long colonoscope. He says in his second statement of September 2013, by reference to the notation on his colonoscopy report, that the instrument used was described as "CF2401". By reference to that description, he confirms that the instrument in fact used was a 150cm long colonoscope. When he gave evidence, Mr Poushin said that he had not used a 60cm long instrument in the United Kingdom for many years prior to 2003, and that the only instruments which were available at the Hospital in 2003 were the longer ones. This fact does not seem to have been known to Professor Phillips, who had assumed that the short 60cm instrument was used as he accepted, in his evidence, until a short time prior to the hearing of the expert evidence by the Court.

297 The second statement of Mr Poushin, again not based on any recollection, but rather a second reconstruction of what he believed, in September 2013, he would have done nearly 10 years earlier, was to assert that he had, whilst using the longer instrument, only inserted it to the 60cm calibration mark on the colonoscope.

298 The effect of this reconstructed version was that his failure to reach or visualise the splenic flexure and his failure to detect the lesion which it is agreed was present, could be satisfactorily explained as having occurred without negligence, as Professor Phillips postulated.

299 In seeking to support this version of what must have happened, Mr Poushin advanced two fundamental assertions.

300 First, that as the degree of bowel preparation undertaken for a flexible sigmoidoscopy does not clear the bowel sufficiently to allow a good view beyond the first 60cm approximately of the colon, the proceduralist only inserts the instrument to 60cm. Secondly, that a patient scheduled for a flexible sigmoidoscopy has not been administered with any sedation and therefore remains awake and sensitive throughout, and the inflation of the bowel becomes painful in most patients beyond the first 60cm.

301 I am unable to accept the reconstructed version. There are a number of reasons for this.

302 First, it is directly inconsistent with Mr Poushin's first version. Secondly, it is contrary to his oral evidence, and lacks clinical logic. Thirdly, it is contrary to the only contemporaneous document of which Mr Poushin was the author.

303 It is to be recalled that Mr Poushin's first version of events did not suggest any inadequacy of bowel preparation. On the contrary, he said the preparation was satisfactory and he had a clear view of the bowel. In the first version, Mr Poushin did not suggest that he had inserted the colonoscope to the calibrated 60cm mark and no further. He now says that this is all that happened. Further, he specifically noted that he had a good view of the whole of the colon up to the splenic flexure, whereas he now suggests in his second version that he did not in fact have such a view.

304 As well, the basis advanced that patients do not tolerate the insertion of more than 60cm of instrument because of pain and discomfort is directly contradicted by his first account that Mr O'Reilly tolerated the procedure well - a remark which is referrable to the instrument being inserted sufficiently far into the left colon to reach, or at least visualize, the splenic flexure.

305 In his oral evidence, Mr Poushin said that on the basis of what Mr Sen wrote in his letter, which he understood to require an examination of the whole of the left colon, up to and including the splenic flexure, he intended to undertake such an examination. He agreed that by only inserting 60cm of the colonoscope, he may or may not have reached the splenic flexure. In those circumstances, it is most unlikely that he stopped the insertion of the colonoscope at the 60cm calibration. It was his evidence that, so far as he was concerned, this would not have been a complete examination having regard to his intention. If he had done such an examination, and there was a good clinical or anatomical reason for so doing, ordinary clinical practice would have required a contemporaneous note to be made of that obstacle, and there was none.

306 The Colonoscopy Report which is Mr Poushin's only contemporaneous document dealing with what happened during the procedure, contains entries which tell against the two reasons asserted in support of the reconstruction in his second statement. It also tells against the whole of this second reconstructed version. The first reason given was that bowel preparation for a flexible sigmoidoscopy does not allow a good view of the whole of the left colon. The Report recorded that bowel preparation was satisfactory and he had visualised the splenic flexure. These statements do not sit together. The second reason advanced is that most patients, because they are not sedated, do not tolerate the insertion of more than 60cm of a colonoscope. The Colonoscopy Report recorded that Dr O'Reilly tolerated the procedure well. There is no suggestion that because of pain or discomfort the procedure was terminated or else truncated in the sense of the possible extent of insertion.

307 In addition, the hand drawn arrow inserted onto the diagram on the Colonoscopy Report, which clearly recorded, and was intended to record, that the examination reached the splenic flexure contradicts this second reconstructed version.

308 Accordingly, I reject this version of the events as contained in the second statement.

309 Mr Poushin seemingly gave a third version of the events in his oral evidence. He accepted that this account was also a reconstruction. Prior to his oral evidence, Mr Poushin had met with Professor Phillips and had discussions with him. As well, his legal team (or a member of it) had drawn his attention to the Guidelines. It seems from an answer in cross-examination that Mr Poushin was not specifically aware until then of the most relevant part of the Guidelines.

310 The reconstruction which he advanced in oral evidence, was one where he seemingly reverted to his first version of events given in his first statement, but limited that version of events by "in hindsight" accepting that whilst he believed at the time, and accordingly reported accurately, that he had visualised the shape of the left colon including the splenic flexure, that he must have been mistaken as to the extent of visualisation and that the splenic flexure was not visualised.

311 This reconstructed version was uncannily similar to the hypothesis expressed by Professor Phillips in paragraphs 18-21 of his report of 8 September 2013, to which I have made reference above.

312 The difficulty with this reconstruction is not only the inconsistency with his earlier versions, but particular answers given in cross-examination. On the topic of anatomical features, it is clear that Mr Poushin recognised that a sure guide to the extent of the investigation was the change in shape of the lumen once the transverse colon was reached. Mr Poushin said, by reference to his own experience, that in accordance with good practice, he could not have made an assumption that the splenic flexure had been reached unless he had seen the change in lumen shape, or else another anatomical guide - the existence of an observable pulse, which only occurs in the transverse colon. Accordingly, if he correctly reported contemporaneously that he had visualised the splenic flexure, he could only have done so by reference to the landmark of the changed shape of the lumen.

313 His evidence on this question accepted that his conduct in not reaching the splenic flexure, identified by reference to the lumen shape landmark, would be unacceptable. He said:

"Q. Mr Poushin, it would be wholly unacceptable for a consultant colorectal surgeon practising in the United Kingdom in 2003 to assume that a flexible sigmoidoscopy had reached the splenic flexure unless he or she had seen either what Mr Sen called the gold standards yesterday, or you yourself today have described as the sure guide. It would be wholly below standard to do other than that; wouldn't it?

A. Yes, when you put it like this, yes."

314 Ultimately, the defendants submitted that the Court would accept that Mr Poushin undertook the procedure by inserting the long colonoscope to 60cm, as the Guidelines and good practice required, and believed that he had reached, or visualised, the splenic flexure but that he had not in fact done so. They submitted that in those circumstances the fact that he did not identify the presence of the lesion was unsurprising since he did not reach or visualize that part of the left colon near the splenic flexure where the lesion was located. I don't accept these submissions as to what is likely to have occurred. As I have earlier said, I don't accept the version contained in Mr Poushin's second statement. I do not accept that he undertook the procedure by inserting the colonoscope to 60cm of calibrated length from the anus and then deliberately stopping. It follows from that I cannot accept the defendants' submissions which I have referred to above. The submissions find no support in Mr Poushin's only contemporaneous document.

315 I am satisfied that what is most likely to have occurred during the procedure undertaken by Mr Poushin is that which is reflected in the contemporaneous document which he prepared - the Colonoscopy Report. The test which he undertook was intended to examine the whole of the left colon. In those circumstances, I am satisfied that he inserted the long colonoscope as far as he thought necessary to reach the splenic flexure. I am satisfied that the bowel preparation was satisfactory and that accordingly he could adequately visualize the bowel which was exposed to the long colonoscope. He clearly thought that he had reached the splenic flexure and reported accordingly. If he had, in fact, reached the splenic flexure, then he ought, in accordance with proper practice, to have seen the lesion which it is agreed was present in the colon. If he did not observe the lesion then he was in breach of his duty.

316 Alternatively, if Mr Poushin thought that he had reached the splenic flexure but he had not, then he could not have visualised the landmark referable to the change of lumen shape. Notwithstanding the reticence of Professor Phillips about the certainty of recognition of that landmark, the evidence of Mr Sen, and Mr Poushin, satisfies me that an experienced endoscopist will know by reference to that landmark that they have reached the splenic flexure.

317 On the probabilities, it is the second of these alternatives which occurred in Dr O'Reilly's case. I think it unlikely that with good bowel preparation, and a clear bowel, as is recorded in Dr O'Reilly's case, Mr Poushin would not have seen the lesion which was in existence.

318 But I think that it is likely that he assumed that he had reached the splenic flexure without identifying adequately, or appropriately, the relevant landmark of lumen shape change. In those factual circumstances which is what I am satisfied occurred here, I accept Mr Poushin's own view of his conduct which is set out in the transcript recorded above, namely that it would be wholly unacceptable, and wholly below standard to have proceeded in that way. Such a view of professional acceptability is, having regard to the circumstances, to be treated as if it were an admission against his own interest.

319 In those circumstances, Mr Poushin's conduct was in breach of his duty. He should have, but did not examine the whole of the left colon. He should have, but did not realise that he had not reached the splenic flexure. Had he done the examination properly, he would have discovered the lesion which was present in Dr O'Reilly's bowel in November 2003.

Causation

320 Having found that there was a breach of duty, it is necessary to make some factual findings which are relevant to the issue of causation.

321 The starting point is the agreement of the parties that on 12 November 2003, at the time Mr Poushin performed the flexible sigmoidoscopy, there was present in Dr O'Reilly's colon, at about the splenic flexure, a lesion which was in the order of 0.7mm to 1cm in size.

322 The end point is the existence of the tumour discovered at surgery on 27 July 2006. At that time, a large primary tumour was discovered which was situated at or near the splenic flexure. It had adhered to the small bowel. On histology examination, the tumour was described as a 4cm diameter moderately differentiated adenocarcinoma, which had penetrated into the adjacent small bowel. There were multiple omental and peritoneal nodules of adenocarcinoma, one of which was on the peritoneal surface of the caecum, and was locally invading into the sub mucosa of the large bowel.

323 There were metastases to five of the lymph nodes, and a few days later, a CT scan established that there were multiple metastases scattered throughout Dr O'Reilly's liver. The cancer was histologically staged as T4 N2, and also Dukes Stage C2.

324 In order to determine whether the plaintiff has established causation, it will be necessary to identify with particularity the following conclusions as to the tumour and appropriate treatment.

325 First, it will be necessary to determine at what stage the tumour was in November 2003. Secondly, it will be necessary to determine what the treatment for Dr O'Reilly would have been had the tumour been discovered at that time. Thirdly, it will be necessary to determine what the likely outcome of that treatment would have been in Dr O'Reilly's case, and in particular, what his prognosis in terms of his survival period was from the time the tumour ought to have been discovered and treated appropriately. Finally, it will be necessary to compare those conclusions with the known facts as to what happened so as to identify whether Mrs O'Reilly has established compensable loss arising from Dr O'Reilly's death.

326 The plaintiff submits that in November 2003, the lesion was benign and had not metastasized. Consequently, the plaintiff contends that after surgery, Dr O'Reilly would have fully recovered and lived to an ordinary life expectancy.

327 The defendants submit that by November 2003, the lesion was malignant, it had metastasized and that, even with appropriate treatment by way of surgery and chemotherapy, Dr O'Reilly would have lived for no more than four months or so longer than he in fact did.

328 The term "lesion" is used to describe a range of pathological manifestations of abnormal tissue. The term can include malignant tumours and non-malignant growths. It can also include a tumour or growth at an early stage or at a late stage. Accordingly, whilst the parties agreed on the presence and size of the lesion, there was no agreement as to what form it took, namely whether it was cancerous, pre-cancerous or benign. As well, there was no agreement as to whether the lesion had metastasised, or if so, to what extent.

329 Some further explanation of the terms used becomes necessary, in the context of colorectal cancer.

330 The term "polyp" is used to describe a benign lesion. A polyp is an abnormal growth arising from the lining of the colon. It protrudes rather like a mushroom into the lumen.

331 An adenomatous polyp is one of two types of benign polyps. An "adenoma" is a non-benign tumour. A "tumour" may be described as "in situ", or else "invasive". If it is described as in situ, this means that it is located in the lumen of the colon, and has not yet begun to invade the adjacent tissues.

332 If a tumour is described as invasive, then the tumour has begun to spread into the adjoining tissues which, in the colon, consist of layers. The first layer on the outer side of the lumen is the mucosa, followed by the sub-mucosa, muscle layers and the serosa. Outside of the serosa are blood vessels and lymph nodes.

333 A tumour which has invaded the adjoining tissue is still regarded as a local one, and hence capable of surgical removal unless it has metastasised. That is, its metastases (or cells of the primary tumour) have spread to remote organs such as the liver, either though the lymphatic system or through the blood vessels.

334 A polyp is visible as a projection from the lining of the colon into the lumen. As a poly (or lesion) grows, it may become cancerous or it may remain benign.

335 The medical profession has developed at least two systems for the description of tumour development and growth. The first, which is known as Dukes Staging, involves these stages:

A	Tumour within bowel wall
B	Tumour through the bowel wall
C	Involvement of the metastatic lymph nodes
C1	Less than four lymph nodes involved
C2	More than four lymph nodes involved
D	Distant metastases detected clinically or radiologically

336 According to an article co-written by Professor Phillips in Clinical Risk (2006) 12, 211-217, five year survival rates by reference to Dukes Staging, and deduced from patients treated "by average rather than expert surgeons" is:

A	97 per cent;
B	75 per cent
C1	38 per cent
C2	19 per cent
D	poor

337 A second and more detailed system for the description of tumours is the TNM system. It describes tumours and their progress by reference to tumour growth, nodal involvement and presence of metastases. It is:

T0	No evidence of presenting tumour
T1	Tumour invades sub-mucosa
T2	Tumour invades muscularis propria
T3	Tumour invades sub-serosa or adjacent tissue
T4	Tumour extends beyond adjacent organs
N0	No evidence of lymph node involvement
N1	1-3 regional lymph nodes involved
N2	Four or more regional lymph nodes involved
N3	Any lymph node involvement along a named muscle trunk
M0	No metastases involved
M1	Distal metastases present

338 As I have earlier observed, after removal of the tumour in 2006, it was staged as T4 N2 and it was described as Dukes C2. There were distant metastases present in the liver. The diameter was 4cm.

339 Necessarily, over two and a half years earlier, the tumour was not as large. The parties agreed it was around 0.7mm-1cm in size. Professor Price in her first report estimated that in 2003 the tumour:

"... would have been staged as a T2 N1 moderately differentiated carcinoma at that time".

340 Professor Price's conclusion is supported by the broadly accepted rates of tumour volume doubling time i.e. the time taken for a tumour to double its volume. In colorectal cancer this can be in the order of 130 days, and often much longer. For a tumour to be 1cm in diameter, then 30 doublings have occurred. For a 3cm diameter tumour, then 35 doublings have occurred. Thereafter tumour growth is far more rapid with fewer doublings, so that only 40 doublings are required for a 10cm diameter tumour. Thus, using the 130 day figure, the following broad picture occurs:

1mm-1cm	10 doublings	3 years 7 months
1cm-3cm	5 doublings	1 year 10 months
3cm-10cm	5 doublings	1 year 10 months

341 The time between November 2003 and July 2006 is 2 years and 8 months. Within the broad tumour growth periods, I am satisfied that in November 2003 the tumour was like to be about 1cm as the parties have agreed. It had progressed to 4cm over the next 2 years and 8 months.

342 The other measure used by the experts, was to consider the position with respect to the development of metastases. In August 2006, metastases were identified in the liver.

343 Mr Finlay, one of the experts called by the plaintiff, was the author of a seminal article which sought to describe the rate of metastatic spread and development from a primary tumour site.

344 Mr Finlay's study was published in the British Journal of Surgery in 1988: Vol 75: 641-644. It was a relatively small study involving 29 hepatic metastases from 15 patients. The study acknowledged the complexity of assessing tumour growth because of the many variables. As Mr Finlay said:

"A simple extrapolation of growth curves to indicate the age of metastases is a precarious exercise".

345 Nevertheless, by applying a Gompertzian growth pattern, an analysis regarded as appropriate, in his article Mr Finlay expressed this conclusion:

"... the median age of the overt and occult metastases at the time of surgery was calculated to be 3.7 and 2.3 years respectively."

346 Gompertzian growth is a pattern of growth of cells in tumours where growth is slowest at the end of a time period.

347 In his second report, Mr Finlay said:

"My study, was designed to calculate the growth of metastases from colorectal cancer (not the growth of the primary cancer) and by extrapolation the timing of the metastatic process. Our calculations however can only be described as a 'best guess' albeit based on the mathematical calculations and tumour growth observations that we made. The study suggested that overt metastases, such as those that were found in Mr O'Reilly, may have been present for a long period of time and we specifically said in the discussion that we did not believe these dates to be exact. It is important to note however that if metastases had been present for 3.7 years then it follows that the primary cancer [h]as also been present for at least 3.7 years."

348 The joint expert report of the UK experts addressed the issues of whether the lesion, which it was agreed was present, was likely to be malignant or benign. Their report contains this material:

"Causation

13. In November 2003, was the lesion in the late Mr O'Reilly's left colon referred to in the Assumptions ('the lesion') likely to be adenomatous polyp or some other form of lesion, and if so what?

Comment

i. The Experts are agreed that in the final analysis the answer to this and subsequent questions depends on the Court's finding as to the likely growth rate of hepatic metastases (and primary colonic malignancies) and the back calculations that have been used as well as the likely natural history of the cancer and its spread.

ii. If Mr Finlay's article 'Growth rate of hepatic metastases in colorectal carcinoma' (Br J Surg 1988; 75: 641-4) is accepted as the guide to the back calculations and if, despite the various caveats, with 'obvious' metastases the 'average best estimates' that metastases had already been present in the liver was 3.7 years, then the Experts agree that in November 2003 there must have been an already incurable cancer present.

iii. Mr Finlay agrees that the best available data suggest the metastases had been present 3.7 years. Mr Finlay and Professor Dorudi agree that the original lesion was a cancer that had metastasised.

iv. The Experts are agreed that there was likely to have been a 0.7-1cm cancer that on the balance of probabilities had already metastasised to the liver. The Experts agree that the natural history of this tumour in particular and these tumours in general means that it is inconceivable that the primary tumour was not already a cancer in November 2003 and it is highly likely (approximately 90% chance) that there was a metastatic disease present at that time.

v. In conclusion, the Experts are all agreed that on the balance of probabilities in November 2003, there was a cancer which was incurable.

14. In November 2003, was the lesion benign or malignant?

Comment

i. The Experts are agreed a cancer that had already metastasised."

349 Professor Martin Tattersall, a specialist cancer physician, is Australian-based and could not attend the joint conference of the UK experts.

350 However, a joint telephone conference was arranged between Professor Tattersall and Professor Price for the purpose of identifying areas upon which they agreed, and areas upon which they disagreed.

351 Question 13 in the UK joint report, was put again to the joint telephone conference of Professor Tattersall and Professor Price. Their joint report of 1 November 2013, includes this opinion:

"Causation

13. In November 2003, was the lesion in the late Mr O'Reilly's left colon referred to in the Assumptions ('the lesion') likely to be adenomatous polyp or some other form of lesion, and if so what?

Comment

i. Both Experts agreed that the lesion would have been a malignant tumour in November 2003.

ii. Both Experts agreed that 90 to 95% of colon tumours arise from polyps, but agreed that this would already have been a tumour by November 2003.

...

14. In November 2003, was the lesion benign or malignant?

Comment

i. Both Experts agreed that the lesion would have been malignant at that time."

352 The plaintiff, in seeking to persuade the Court that the lesion was benign in 2003, largely relies upon the evidence of Dr Gavaghan, who is a consultant physician in general medicine who practised in the area of gastroenterology and endoscopy. Dr Gavaghan expressed the opinion that a proper investigation of Dr O'Reilly in the second half of 2003 would have revealed:

"... more likely than not, a pre-cancerous polyp or possibly a small malignancy."

He went on to say:

"If the polyp was greater than 10mm in size, there was a 40% chance that it was malignant. It is well recognised that the changes which lead to the development of tumours from polyps in the bowel ma[y] take years to develop. ... Given the findings at surgery and the knowledge of wisdom as to the rate of progress of tumours of this type, it is more likely than not that what should have been detected in 2003 would have been a pre-cancerous polyp or a small Dukes tumour."

353 It is apparent from his initial report that Dr Gavaghan based this conclusion upon this reasoning:

"Estimates of the time at which a tumour developed in relation to bowel tumours, involve a consideration of the doubling time of such tumours. The average tumour doubling time for the bowel cancer is 660 days. The best estimate of liver metastases tumour doubling time is about 220 days."

354 Dr Gavaghan was also provided with the joint report of the UK experts and asked to indicate whether he agreed or disagreed. With respect to the questions which have been set out earlier, he answered:

"Causation

13. In November 2003, was the lesion in the late Mr O'Reilly's left colon referred to in the Assumptions ('the lesion') likely to be adenomatous polyp or some other form of lesion, and if so what?

Comment

On causation now, the lesion in 2003 in the late Mr O'Reilly was almost certainly an adenomatous polyp or an adenomatous polyp with significant dysplasia or even 'in-situ' malignancy.

14. In November 2003, was the lesion benign or malignant?

Comment

In November 2013, I suspect the lesion was likely to be benign."

355 A later remark in his report makes it plain that where he was referring to an in-situ malignancy, Dr Gavaghan was suggesting that the lesion would have been a Dukes A lesion.

356 There is no doubt that Dr Gavaghan is a highly experienced consultant physician with a speciality in gastroenterology. There is no doubt that in the course of that practice, he has seen many patients upon whom he has conducted endoscopies.

357 In his oral evidence, and in particular in the course of cross-examination, it became apparent that Dr Gavaghan's opinion was given from the perspective of an experienced clinician. He himself said that he was not an academic. In answer to a question about the reports which he had written in response to reports from other experts, he gave this evidence:

"A. ... They were very - I think there were a lot of reports from maybe cellular biologists or, way beyond my area of expertise and I didn't comment about them, because I don't have any experience in it. People were talking about, you know, the nature of malignant cells. I think there was one, a professor of pathology, I read one report. I think they were speculating on how long it would take tumours to metastasise.

Q. Insofar as they were dealing with the growth rate of tumours doubling and that sort of thing.

A. Yes.

Q. That would be beyond your expertise?

A. It is beyond my expertise.

...

Q. ... And insofar as it's beyond your expertise, it follows that you wouldn't be in a position to challenge what that expert said?

A. Oh no. These are all academic points, yes, from many years of research, I would imagine."

358 Dr Gavaghan was taken to that part of his report which I have set out above, relating to tumour doubling time as being 660 days. During the course of the cross-examination, the Court asked these questions and received these answers:

"Q. Let me come directly to it doctor. The Court is confronted with a range of opinions on this thorny issue of the tumour doubling time and metastatic development?

A. Yes.

Q. I take it you would not want me to take these figures here in paragraph 42 in preference to the evidence of an expert who's researched the question, identified the relevant peer review journals and articles around the world and provided me with a considered careful opinion analysing the research available on the subject?

A. I wouldn't be expert enough to do that, your Honour."

359 Later in his cross-examination, it became apparent that Dr Gavaghan's evidence about the issue of whether the lesion was benign or malignant was largely based on his clinical experience. The following evidence was given:

"Q. Question 14, can you find that?

A. Yes.

Q. Was the lesion benign or malignant?

A. Yes.

Q. Again would you defer to the oncologist in relation to that?

A. Yes, except to say in my experience I would have expected it to have been benign, in that if it was malignant it's very likely that he wouldn't have been around in 2006 when he died.

Q. So that, of course, will depend. If it were malignant in 2003, your experience would tell you he would have died before 2006?

A. Yes. Well, sorry, I qualify that by saying if it was purely in situ malignancy. He could have had in situ malignancy, but I was talking about invasive malignancy. If he had invasive malignancy in 2003 it's very likely he would have died in 2006 with no treatment.

His Honour

Q. Why do you say that, doctor?

A. Just on experience your Honour. I mean I would defer to the oncologist, the cytogenetics and all those other issues, but that's in my experience people who have metastatic disease die very quickly and they also - they don't survive three years without any treatment at all.

Wilson-Smith

Q. But there are papers and academics address papers where they look at doubling rates and so on.

A. I accept that.

Q. Which is out with your expertise?

A. It is outside of my expertise.

Q. And similarly, where you answered question 15, again that is you are telling us from your experience what your position is?

A. I am.

Q. But again you would defer to others for an expert view on it. Is that right?

A. Yes, I would, yes."

360 That his opinion was based largely on clinical experience is unsurprising. To the extent that his opinion is based upon a tumour doubling time of 660 days, rather than the much shorter period of 130 days used by Professor Price, it must be wrong. Dr Gavaghan's doubling period produces a much slower growing tumour by approximately a factor of five. So if the tumour was 4 cm in July 2006, it would have been at about 2cm, 22 months earlier, namely September 2004, and half the size again, namely 1 cm, 22 months before that i.e. November 2002. On that basis, not only was the tumour present in November 2003, but it must have been larger than 1cm. Tumours larger than 1cm were, according to the evidence, much more likely to be malignant than not. The tumour doubling time relied upon by Dr Gavaghan provides no support for a finding that in November 2003, the lesion was benign.

361 The plaintiff's case, namely that the lesion was either benign or else, at worst, a Dukes A tumour, to the extent that it was based upon the evidence of Dr Gavaghan, is unconvincing - particularly when compared to the greater expertise of Professors Price and Tattersall, and also Mr Finlay. I prefer the evidence of those with greater in-depth knowledge based on not just clinical experience but also academic research and consideration. All of these experts concluded that in November 2003, the tumour was malignant. I am persuaded that this was so.

362 The issue then becomes, in substance, whether the difference in view between Professor Price and Professor Tattersall as to the extent of the malignancy, and in particular whether it had spread to the distant organs, resolves in favour of accepting the conclusion which either expresses.

363 This difference of view was explored in cross-examination. The following evidence was given by Professor Tattersall:

"Q. The difference between you and Professor Price is really quite limited, is it not: essentially, the difference between you is whether or not the tumour had metastasised in 2003?

A. Yes, she assumes that it had and I say that there is a possibility that it had but it is only about a 20% possibility.

...

Q. You accept ... and it is common ground there was a tumour about 4cm at surgery in 2006, yes?

A. Yes.

Q. And there would have been a primary tumour in 2003?

A. I have been asked to assume that. I thought there was a lesion there and assumed it, that is what I have been asked to assume, yes.

...

Q. It is common ground that that was malignant in 2003?

A. Yes, that is common ground."

364 Thus, the area of disagreement is, at the end of the evidence, very narrow. It is only whether the tumour, in 2003, had metastasised beyond the immediate region of the tumour.

365 The significance of this is that if it had metastasised only to regional lymph nodes then surgery, together with appropriate chemotherapy, would have resulted in the likely removal of all malignant cells with consequent full recovery, or at least very good prospects of full recovery. Whereas if the tumour had metastasised the distant organs then, even with appropriate surgery and chemotherapy, the likelihood of complete recovery was low.

366 The UK experts, in their joint report, notwithstanding Mr Finlay's initial reluctance to be precise about the likelihood of metastatic spread, unanimously concluded that in 2003 there was likely to have been metastatic spread beyond the immediate region of the tumour.

367 However, Mr Finlay, upon whose study the UK experts based their opinion, remained diffident about any mathematical precision. In his evidence in the joint conclave he said with respect to his study:

"... with its sequential CT scans over a period of time, and we were able to watch these metastases or growths in the liver, get bigger.

On that basis we did a mathematical extrapolation which allows for the fact that tumours grow more rapidly in their early life, less rapidly in their late life, a technique called Gompertzian growth, ... and on that basis we came up with a number. That number is the average for the metastases we studied in the smallish number of patients that we studied then. It is not by any means meant to be an exact figure. We said at the time that all we are saying is that these metastases have been there for a long time. That was really our observation at the end of the study. This paper, as in today, has been widely used in causation issues on a very defined basis, that is 3.7 years means 3.7 years. And I have been very clear over a number of years now to say that while that was the number, and I'm always very reluctant to say: 'Was 3.4 OK, was 3.9, what happens?' That degree of accuracy is in my view not appropriate, but what I can say is that tumour that has these deposits has been there for a very long time, but it is the best number we have, and I'm not aware of any other number which studies metastases.

Now in order to be a metastasis, it means that the primary tumour must have been present in order to spread, and Professor Price has much [more] experience than I do and knowledge of the growth of primary tumours, so there are two pieces of information here that you might wish to consider. One is the extrapolation from the secondary deposits, and [the other] the extrapolation of the primary tumour."

368 Mr Finlay's evidence made it clear that the 95 per cent confidence interval for the timeframe in his study meant that the period for development of the metastases ranged from about 2 years 8 months to 4 years and 10 months.

369 Mr Finlay at all times made it clear in his evidence that a tumour was in existence prior to the commencement of metastisation. In the course of the joint evidence of the UK experts, I asked this question:

"... Is there a way that one can tell the tumour has gone from benign to metastasised? Is there a point in time ...?

370 The following answers were given:

"Professor Price: That magic moment when you can think it has or it hasn't? No.

...

Professor Phillips: No, you can't decide.

Professor Finlay: You've asked the $64,000 question really ... the short answer is no, but it does take us to something that perplexes oncologists in general and that is why do cancers metastasise; do they metastasise progressively, that is they have a period where they are not metastasised. Or some tumour biologists believe they either metastasise or they metastasise from the outset, behave consistently in that manner, and we don't know the answer to that but we would dearly like to.

...

Professor Dorudi: ... look, I would agree. I spend a lot of my research looking at molecular factors to try and predict how tumours behave, and with the best molecular diagnostics we have, we still couldn't, so I agree with my co-experts."

371 The panel of experts went on to agree that:

"... all one can really do is work backwards from what one finds at surgery, at whatever stage that is."

372 The experts agreed that their answers in their joint report were based upon that methodology.

373 Professor Price went on to explain, with the general agreement of her fellow experts, the way in which she had undertaken that back-calculation. She accepted that if you took the shortest timeframe in the 95 per cent confident interval from Mr Finlay's paper (that is, 2 years and 8 months), that that placed Dr O'Reilly at the extreme end of the measured period for metastasisation. She said this:

"And that is if he is the extreme, and there isn't evidence that he is extreme. But I find when I do this type of work, you always have to try and get data from the patient, where was he, and then you are very safe, nobody would say within a month or so. So you have to be really sort of comfortable and that's why I think we put the figure about 90% sure that the metastases were there. It's not just on a good day if everything goes right, we're pretty sure, but that's also why with the primary tumour in that short interval, we couldn't imagine it not being present ..."

All of the other experts in joint session agreed with that evidence.

374 This is an area in which medical science does not enable certainty of prediction and finding. However, I am persuaded on the balance of probabilities that the likelihood is that by November 2003, the tumour in Dr O'Reilly had metastasised. In so doing, I accept the opinion of Professor Price and her UK colleagues which demonstrates that only if Dr O'Reilly's case had fallen at the extremes of the calculations derived from Mr Finlay's article, would there have been no metastasisation. Their opinion that they have a 90 per cent degree of confidence that the tumour had metastasised by November 2003 enables me to confidently, on the balance of probabilities, accept that was so.

375 In those circumstances I am satisfied that by November 2003, the tumour had metastasised beyond the immediate region of the tumour. This conclusion is not inconsistent with Professor Tattersall's view because he allowed for this to occur, although in a small percentage of cases.

376 Accordingly, I accept Professor Price's original opinion that in November 2003 it was likely that the tumour was staged as T2N1 which would mean that it was the equivalent of a Dukes C1 staging

377 Had the tumour of that staging been discovered in November 2003, the expert opinion is that Dr O'Reilly would have been offered surgery, which would have removed the tumour, and such parts of the lymph node system which could have appropriately been removed by surgery. Surgery in that way, in a planned non-emergency state, would, on the probabilities, have been uncomplicated and successful. Dr O'Reilly would, I am satisfied, have recovered well from the surgery.

378 I also accept that Dr O'Reilly, if treated appropriately, would have been offered chemotherapy and his progress would have been closely observed and monitored.

379 The experts are also agreed that if the tumour had been resected in November 2003, there would have been no bowel obstruction in 2006. The experts are also agreed that, if the tumour had metastasised by November 2003, Dr O'Reilly, even if properly treated with surgery and chemotherapy, would probably have eventually died as a consequence of his cancer.

380 There is a complex hypothetical factual issue as to the likely survival period of Dr O'Reilly had the tumour been discovered and had he received appropriate treatment by way of surgery and chemotherapy.

381 Professor Price, in her report, suggested that doing the best she could, it was her opinion that the late Dr O'Reilly would have lived for about four months more than he in fact did. Her opinion was the foundation of the defendants' submission on this issue. Acceptance of this opinion of Professor Price, has the consequence of establishing compensable loss for the purposes of the compensation to relatives cause of action. That is because, it is agreed that during the relevant time, Dr O'Reilly was earning an income from which the plaintiff and his children derived financial support, and further that he provided valuable services to the family which contribute to that compensable loss.

382 However, the oral evidence of Professor Price was a little different with respect to the added life expectancy of Dr O'Reilly had the tumour been removed in November 2003. In the course of a series of discursive answers in which she provided a range of possibilities derived from data contained in worldwide studies of average patients, Professor Price said this:

"So a best case scenario, taking this, is that the adjuvant chemotherapy does a very good job and it slows it a bit ... so then we have to say when he does recur and then after that he gets 16 months, maximum 24 months. I think that's solid data."

383 Professor Price was asked, so far as was possible, to translate the average population data to Dr O'Reilly. She said:

"We have no data on him as to how he did respond to chemotherapy. Sometimes patients have had a bit of chemo, ... you could say perhaps stretch it to 36 months, something like that, but in fact - no, we do know about him actually because we know he had a lot of metastases, ..."

384 Mr Finlay drew attention to the nature of the changing metastases and the fact that Dr O'Reilly would not have succumbed to the difficulties of the big operation. As is obvious, had surgery in late 2003 removed the primary tumour and affected lymph nodes, there would no longer have been a primary source of metastases. In those circumstances, it is likely that the number of metastases which developed in Dr O'Reilly would have been fewer than there in fact was over the same period.

385 In the course of that evidence Professor Price undertook some further calculations and she said this:

"I have just done a quick calculation here, just to try and give some ballparks to you. Assuming the abdomen's fine, the liver metastases, we know had he been well enough to have chemotherapy he would have done, so let's take 3.7 months as a given. What's the upper bound, and trying to work it out, likely time of developing it, he may have had an extra, I would have said, maximum 2 years."

386 In later evidence, Professor Price reiterated her view that the studies showed that treatment with chemotherapy extended life by about four months when compared with patients who did not receive chemotherapy. She was asked to assume that Dr O'Reilly had been given an estimate of two years life expectancy in the weeks after his admission in July 2006 for the surgery which he had. She said that she thought such a suggestion would be "a little bit optimistic".

387 Her attention was then drawn to her earlier evidence in the course of the joint expert evidence, which I have set out above, with respect to the period "16 months, maximum 24 months ...". The Court asked her a question and she gave this answer:

"Q. I must say I took from that answer that had the late Dr O'Reilly received systemic or palliative chemotherapy, the study or trial to which you referred would have predicted that he got between 16 and 24 months additional period of life which strikes me as similar to the assumption that counsel put to you. Have I misunderstood your evidence you gave in October?

I think that is absolutely correct. I think it depends on when he will have it. It is very difficult - it depends on the question. If the question is, if he is diagnosed in 2006 with metastatic disease, what is his average survival, ... We say on average the data suggests 15 months. ... If a patient is denied chemotherapy, what is the increase in survival, the data suggests 4 months.

So it depends whether we actually want to put a time chart out there. I thought I was trying to be helpful in my initial report in saying there is causation that flows from this, the evidence is he will survive longer. If you look at randomised trials, he would have survived 4 months longer. If you do an own time chart for himself, looking at data, you will probably get a little longer. It depends where you look at it, but yes, he would have survived longer than his date of death had he been diagnosed earlier. ...

But I understood the issue was, was there any improvement in survival and, yes, I think there would have been."

388 It is not an easy task to decipher the evidence on this question - to say the least - it is confused. However, it is necessary for the Court in light of the clearly proved fact, that Dr O'Reilly would have died at a later time than he did had the tumour been detected in November 2003, and had he received appropriate surgery and treatment, to make as best an assessment as is possible of that additional period of years.

389 Such a finding is a necessary step in the assessment of damages, that is, in what sum has the plaintiff and her two children been deprived of financial support by reason of the premature death of Dr O'Reilly.

390 By reference to the five years population survival rates for a tumour which is staged as a Dukes C1, it can be seen that 38 per cent of patients have survived for five years. It follows that 62 per cent survived for less than five years. It must be concluded from this population statistic alone, that Dr O'Reilly, as a member of that population, had a real and not illusory prospect of living for five years from the time when his tumour was first discovered. I have chosen the Dukes stage of C1 because this reflects my finding as to the likely state of the tumour which ought to have been, but was not, discovered in November 2003.

391 Professor Price's unqualified opinion was that the addition of chemotherapy in the case of an individual compared with an individual who was not treated with chemotherapy, resulted in a four to five month period of additional life. This does not take into account, in Dr O'Reilly's case, such life expectancy improvement as may have been obtained by early surgical intervention.

392 At the stage of early surgical intervention in November 2003, the primary tumour would have been removed, and the mechanism of Dr O'Reilly's death in 2006 would not have occurred due to the intestinal blockage. The tumour would no longer have been present to continue to metastasise. I am satisfied that the number of metastases would have been significantly fewer than the "multiple metastases scattered throughout the liver" which were discovered in 2006.

393 Of the various figures referred to by Professor Price, the range of additional life seemed to me to vary from somewhere in the order of 15 months to a maximum of three years. Looking overall at her evidence, it seems to me that Professor Price seemed to accept that an appropriate allowance for additional years, taking into account not just treatment by chemotherapy, but all proper early surgical and other treatment, the probability is that Dr O'Reilly would have survived for a further period of two years longer than he did.

394 This period, in my view, sits comfortably with the known facts. Dr O'Reilly was generally a fit person. He looked after his health. Without any treatment at all Dr O'Reilly lived for about three years after the time at which the tumour ought to have been discovered, at which time it would have been a Dukes C1 tumour. An additional two years of life would have taken him to about five years.

395 This is not inconsistent with the epidemiological, or population-based, data. I am satisfied that it is likely Dr O'Reilly would have lived that long because of the fact that he would have had good treatment and appropriate treatment at an early stage of the tumour, and that having regard to his general state of health and positive attitude to ensuring longevity of life for the benefit of his family generally, and his son, Shane, in particular, he would have done better than most.

396 Accordingly, I am satisfied on the balance of probabilities that had the tumour been discovered in November 2003, and had Dr O'Reilly received appropriate surgery and treatment, he would have lived until about the end of November 2008. That is to say, he died prematurely by a period of two years.

397 This period, although longer than that contended for by the defendants, because of Dr O'Reilly's earnings and provision of valuable services to the family, gives rise to a compensable loss for the purpose of the compensation to relatives claim. I note that UK law does not enable a Court to compensate a person for a lost chance of a better outcome. However, here, the Court is not making a finding of a lost chance, but rather has, on the facts, determined a specific period of life expectancy which Dr O'Reilly would have had but for the breach of duty of the defendants. The lost period produces a compensable loss, the value of which is capable of ready assessment.

398 It follows from my earlier conclusions that both Mr Sen and Mr Poushin were in breach of their duty in 2003, and that had they not been in breach of their duty Dr O'Reilly would have received appropriate surgery for the removal of the tumour which existed in November 2003, and subsequent treatment including by chemotherapy, which would have resulted in a longer period of life than in fact Dr O'Reilly's course was. The plaintiff has proved that the breaches of duty of the defendants has caused her a loss and is entitled to recover damages for that loss.

399 As well, I should note that, as is apparent from earlier findings, that I am satisfied that the failure to identify the tumour and remove it, was also the cause of Dr O'Reilly's premature death. That death, as I have found, was caused by the fact that his bowel was obstructed by the unrestrained growth of the tumour; that as a consequence he was subjected to emergency surgery of considerably greater complexity than would have been the case had his surgery been elective and undertaken three years earlier when the tumour was smaller; and that his death occurred because of the complex surgery, and was unlikely to have occurred had there been elective surgery in 2003.

400 Shortly put, the defendants were in breach of their duty thereby causing Dr O'Reilly's death in November 2006. That death, taking into account Dr O'Reilly's condition of colorectal cancer, was, I am satisfied, two years earlier than it would otherwise have been as a consequence of his disease.

Assessment of Damages

401 During the course of the hearing, counsel announced various agreements as to damages. At the conclusion of the submissions counsel for the plaintiff provided the Court with a schedule of the damages which the plaintiff claimed. A number of the items on the Schedule were agreed to by the defendants, as mathematically appropriate calculations.

402 The Schedule reflected the principal case put for the plaintiff, that but for the negligence of the defendants, the plaintiff would have been entirely cured and lived an ordinary life expectancy.

403 On that basis, entirely conventionally, the plaintiff claimed lost income from the earnings of Dr O'Reilly both to date of trial and to 30 June 2018, the value of past loss of services provided to Shane O'Reilly by Dr O'Reilly continuing to 11 July 2011, when Shane died. Past loss of services provided to the family generally after the death of Shane and future loss of services.

404 In addition, there is a statutory sum of £10,000 (AUS $19,972.00) by way of damages for bereavement which is payable by reason of the provisions of s 1A of the Fatal Accidents Act.

405 However, I have not accepted the entirety of the plaintiff's claim about Dr O'Reilly having an ordinary life expectancy.

406 On the contrary, I have found that Dr O'Reilly's life would have come to an end by the conclusion of November 2008 by reason of the metastatic tumour which existed in November 2003, which tumour did not derive from any fault on the part of the defendants.

407 Accordingly, I would be persuaded to find that the value of the dependency is constituted by these heads of loss:

(7) Loss of financial support provided to the family derived from Dr O'Reilly's capacity to earn income in the period from 26 July 2006, when he collapsed (up until which time he was in fact engaged in earning income) until the end of November 2008, the time when I have determined that he would have died in any event;

(8) Loss of services provided to Shane as his principal carer, which services are capable of being valued in monetary terms;

(9) Loss of services provided to the family generally to the extent to which those services are capable of being valued in monetary terms; and,

(10) Damages for bereavement in accordance with s 1A of the Fatal Accidents Act.

Loss of Financial Support

408 The plaintiff submitted that the conventional approach to the dependency calculation is to be found in Harris v Empress Motors Ltd [1983] EWCA Civ J0714-3; [1983] 3 All ER 561. The appropriate methodology is also to be found in Crabtree v Wilson [1993] PIQR Q24. The defendants accepted that this was the correct approach.

409 Because both Dr O'Reilly and Mrs O'Reilly were earning income and contributing jointly to the financial support of the family, the conventional approach requires the Court to add together the earnings, net after tax, of the two spouses, and then make a number of deductions from that total to arrive at the value of the dependency.

410 In this case, the parties agreed that Dr O'Reilly was earning the sum of AUS $ 33,850 gross per annum. The parties were going to, but did not, inform the Court of the appropriate tax rate applicable at the time in the UK. That is a matter which should be capable of agreement. As well, it is necessary to have the figures for the net after tax income of Mrs O'Reilly in the period from 26 July 2006 to 30 November 2008. Again these figures should be readily capable of agreement.

411 The plaintiff would also be entitled to interest in accordance with the Senior Courts Act 1981 (UK). This will need to be calculated.

412 Accordingly, the parties should calculate, in accordance with the agreed methodology, the relevant sum for the loss of dependency claim for the period 26 July 2006, through to and including 30 November 2008, and interest thereon.

Loss of Services Provided to Shane

413 Dr O'Reilly was the primary carer for Shane. It is also clear that between when Dr O'Reilly fell ill in July 2006 and when he otherwise would have died at the end of November 2008, the plaintiff has been deprived of the services which the late Dr O'Reilly performed as the primary caregiver for his son, Shane. She is entitled to the value of those services. Again, although the plaintiff's entitlement to a proper value of those services was not put in issue, the parties have not agreed on what that value is.

414 The plaintiff claims for the value of 1,932 hours per annum. This number is accepted as reasonable by the defendants. The value of these services needs to be calculated on an hourly rate for the period 26 July 2006 to 30 November 2008.

415 The parties do not agree on the hourly rate for the value of these services. The plaintiff claims a rate of AUS $30. The defendants submit by reference to rates allowed in another case, Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066 (QB), which after deductions average out at £9.24 per hour for a different period to that appropriate to be calculated here. The defendants submit that this rate ought then be the subject of further deduction by way of 25% to reflect the fact that no income tax or national insurance contributions are payable on the award, and that no expenses of employment have been incurred. The hourly figure converts on current rates to AUS$17.66. The discounted figure to about AUS $13.24.

416 Having carefully read the authority relied upon by the defendants, I am, with the greatest respect, quite unable to agree that in this case any deduction for the reasons stated should be made from the ordinary hourly rate. The plaintiff is entitled to the value of the lost services - that is what it would cost her to replace those services by obtaining them commercially. That is a gross cost, not a net one after deductions of the kind discussed in Whiten. As a matter of principle the appropriate rate ought be the gross, undiscounted rate.

417 Neither of the hourly rates were the subject of any evidence. The Court is being asked to make its best assessment of these competing contentions, in circumstances where neither party has thought it necessary, or appropriate to adduce any evidence. Doing the best I can, and trying to be fair between the parties, I have determined that the hourly rate for the calculation of the services provided by Dr O'Reilly to Shane should be AUS$ 25.00 per hour.

418 The parties will need to bring in a calculation of the total, and any interest, which results from the application of this hourly rate, and the number of annual hours indicated above, when applied to the period 26 July 2006 to 30 November 2008.

Loss of Services to Family Generally

419 The plaintiff claims an additional sum to represent the value of Dr O'Reilly's services to the family generally during the appropriate period. That period is, consistently with my judgment, from 26 July 2006 to 30 November 2008.

420 The defendants did not agree with this claimed item, but did not put any specific submissions dealing with it. Dr O'Reilly, worked from home, whilst his wife was employed full-time in London. The claim made is for 1 hour a day by way of domestic services to the family. In my view, that claim and the magnitude of it, is entirely reasonable. I would accordingly allow for seven hours per week at the rate of AUS$25 per hour for the period identified. Again the parties will need to calculate this and any interest which is due on it.

Damages for Bereavement

421 The sum of AUS$19,972 ought to be allowed for this head of claim.

422 Accordingly, it will be necessary for the parties to calculate and provide to the Court, short minutes of order which recognise the value of the plaintiff's claim based upon these factual findings. The parties should also agree on the appropriate apportionment, if any, which is required to be made on an award of damages, by reason of the provisions of s 3(2) of the Fatal Accidents Act.

Mrs O'Reilly's Nervous Shock Action

423 In the Third Amended Consolidated Statement of Claim, at paragraph 41, Mrs O'Reilly pleads that as a result of the negligence of each of the defendants, she:

"... has suffered and continues to suffer psychiatric injury with consequent loss and damage."

424 The principles of law which are applicable to this cause of action are those which arise in the United Kingdom. This law is different from that which applies domestically in Australia.

425 Relevantly, the principal authority is that of the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. At 416, Lord Oliver said:

"The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J in the instant case, and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and fourthly, that the injuries suffered arose from witnessing the death of, or extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event, but a close temporal connection between the event and the plaintiff's perception of it, combined with a close relationship of affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has been added the reasonable foreseeability on the part of the defendant that in that combination of circumstances, there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim."

His Lordship went on to say:

"Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation."

426 The approach in the UK to claims for nervous shock as Lord Oliver set the necessary steps out in Alcock, has been criticised as unhelpful by the UK Law Reform Commission. Lord Hoffman in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, said at 511B:

"It seems to me that in this area of the law, the search for principle was called off in [Alcock]. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle. I agree that Jane Stapleton's remark that "once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer:" see The Frontiers of Liability, vol. 2, p. 87."

427 Lord Hoffman in White described the five steps which have been extracted above in Lord Oliver's speech in Alcock as being "control mechanisms". Of them he said that they were:

"... more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds."

428 Although clearly unsatisfied by the intellectual basis for these conditions, Lord Hoffman in White noted at 502B:

"It is now too late to go back on the control mechanisms as stated in the Alcock case ... Until there is legislative change, the courts must live with them and any judicial developments must take them into account."

429 Very recently the Court of Appeal dealt with a claim for injury by nervous shock in Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194.

430 That was a case in which Ms Taylor, who witnessed her mother's death, claimed damages from her mother's employer, Novo, in effect as a "secondary victim" of what occurred.

431 Her mother, Mrs Taylor, was injured in an accident at work as a result of which she sustained injuries to her head and left foot. She was injured when a fellow employee caused a stack of racking boards to tip over on top of her. Novo admitted its negligence for the accident. Mrs Taylor was making a good recovery from the injuries sustained in the accident when, about three weeks after the accident, she suddenly and unexpectedly collapsed and died at home. Her sudden collapse and death were due to deep vein thrombosis and consequent pulmonary emboli, which themselves were due to the injuries that she had sustained in her accident.

432 There was no dispute that the plaintiff had suffered significant post-traumatic stress disorder, which it was accepted constituted a psychiatric injury, as a result of witnessing her mother's death. However, the entitlement of the plaintiff to damages was put in issue.

433 The principal issue was whether the plaintiff was, in the words of Lord Oliver in Alcock:

"... personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards."

434 In Novo, the defendant argued that the necessary proximity, namely that Mrs Taylor was either present at the scene of the accident which caused the death or must have been involved in its immediate aftermath, was lacking because she was not present at the scene of the original accident and was not involved in its immediate aftermath. She in fact suffered the shock which led to her illness at her mother's home twenty one days later.

435 Lord Dyson, the Master of the Rolls, said:

"In the present case, Novo's negligence had two consequences which were separated by three weeks in time. The judge described them as two distinct events. The use of the word "event" has the tendency to distract. In reality there was a single accident or event (the falling of the stack of racking boards) which had two consequences. The first was the injuries to Mrs Taylor's head and arm; and the second (three weeks later) was her death. There was clearly a relationship of legal proximately between Novo and Mrs Taylor. Moreover, if Ms Taylor had been in physical proximity to her mother at the time of the accident and had suffered shock and psychiatric illness as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim on established principles. But in my view, to allow Ms Taylor to recover as a secondary victim on the facts of the present case would be to go too far."

436 The Master of the Rolls then set out his two reasons, which were interrelated for this. He said:

"... if the judge is right, Ms Taylor would have been able to recover damages for psychiatric illness even if her mother's death had occurred months, and possibly years, after the accident (subject, of course, to proving causation). This suggests that the concept of proximity to a secondary victim cannot reasonably be stretched this far. ...

The second reason is closely connected with the first. In Frost, the House of Lords recognised that this area of the law is to some extent arbitrary and unsatisfactory. ... It is true that the issue in Frost was very different from that with which we are concerned in the present case. But that does not detract from the force of the general point that their Lordships were making. In my view, the effect of the judge's approach is potentially to extend the scope of liability to secondary victims considerably further than has been done hitherto. The courts have been astute for the policy reasons articulated by Lord Steyn to confine the right of action of secondary victims by means of strict control mechanisms. In my view, these same policy reasons militate against any further substantial extension. This should only be done by Parliament.

... Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother's accident. She cannot recover damages for the shock and illness that such suffered as a result of seeing her mother's death three weeks after the accident."

437 Moore-Bick and Kitchin LJJ agreed with Lord Dyson MR.

438 The plaintiff here puts her claim on the basis that the relevant event giving rise to her psychiatric illness is the collapse of the late Dr O'Reilly at home on 26 July 2006. In one of her statements, the plaintiff said this about the morning of 26 July 2006:

"7. I was in the bedroom getting ready for the day when David came in. He looked really terrible. He started to tell me about the vomiting he had had that morning and then he suddenly wrapped his arms around his stomach and he had a terrible look of pain on his face. He was terribly distressed and I could not really understand what he was saying. He was obviously in terrible pain. He was bent over double and then he collapsed to the floor.

8. It was a shocking event. I had no idea what the cause of his collapse was. I was very agitated and I felt clammy. My heart was racing and I was shaking. David was making moaning noises and his face was grimacing with the pain. He could not stand up.

9. I just panicked. I had never seen anything like this before and I was really frightened. I was out of breath and just felt completely out of control."

439 Having sought advice from her father in Australia, a medical practitioner, Mrs O'Reilly telephoned an ambulance which arrived quickly. Dr O'Reilly was taken straight to hospital. Mrs O'Reilly could not immediately follow because of the need to care for her son, Shane. She later learned in the course of the afternoon in a phone call from her husband, that he required emergency exploratory surgery to address his problem and find out what was causing his bowel obstruction. Later that evening she was again telephoned by her husband, who informed her that the doctors had found cancer.

440 Of the events of 26 July 2006, Mrs O'Reilly says:

"I can still picture David collapsing as if it was yesterday. I tried to get it out of my mind and sometimes I can. However, often the memory of it just comes back and I feel as if I am in the same situation again."

441 She was informed of the need for her husband to go back into surgery during the course of the evening. She was able to obtain some assistance with Shane and she went to the hospital - arriving there in the course of the morning on 27 June 2006, whilst Dr O'Reilly was in the recovery ward recovering from his third operation. There, in a small anteroom, she spoke to the senior surgeon, Mr Bowyer. Mr Bowyer informed her of the extent of the cancer which had been found at the first operation and the existence of extensive secondaries throughout the bowel and liver of Dr O'Reilly. Mr Bowyer informed Mrs O'Reilly that her husband had only two to three months to live, but said that if he was well enough to obtain chemotherapy and perhaps liver resection, he had a chance of surviving for another two to three years.

442 Mrs O'Reilly describes her reaction to that news in this way:

"As soon as Dr Bowyer left the room I doubled over in pain clutching my stomach and then I heard someone screaming which turned out to be me. Physically, I felt as though I had been kicked in the stomach by an elephant, a physical sensation which remained with me for many months."

443 It is apparent from Mrs O'Reilly's statement that she continued to find the subsequent deterioration in the health of Dr O'Reilly a difficult experience. She described it as a "totally horrific nightmare experience". On the one hand, she found that she had to act calmly for her children, but on the other, she found she could not eat properly and rapidly lost significant weight during that period. She found observing the deterioration in her husband, the fact that he was in constant and increasing pain, and that he was clearly unwell, continued to have an effect upon her. When he needed to be readmitted to hospital in September 2006, Mrs O'Reilly was "enormously distressed ... in a state of panic". She says that she was "completely devastated when he had to go off to hospital again".

444 She was alone with her husband when he died. As his death approached, in the few days during which Dr O'Reilly was in St Catherine's Hospice, Mrs O'Reilly records that:

"When I was sitting with him, I would keep having this sequence of thoughts of his being fit and healthy and then his collapsing and everything that happened since July at my then being with him whilst he was dying."

445 There is no doubt that since the death of Dr O'Reilly, Mrs O'Reilly has encountered a number of events which have caused significant difficulty to her and which have exacerbated her psychiatric state, including the unexpected death of her son, Shane, and as well, her need to return to Australia to be near her family for support with looking after Shane, which did not ensure a smooth relationship with her other two children, Laura and Jordan. As well, she has been troubled by her financial circumstances.

446 In assessing the nature and extend of the psychiatric injury suffered by Mrs O'Reilly, it will be necessary to keep carefully in mind, these other factors which were not directly caused by the defendants' negligence, but which may nevertheless have been foreseeable as aggravating the consequences of their negligence, namely Mrs O'Reilly's psychiatric condition.

447 In light of comments made by Dr Lee, the psychiatrist retained by the defendants, it is convenient for me to here record, that having seen Mrs O'Reilly give evidence about this subject matter, and having thereby gained some insight into the effect which it had upon her, I accept all of her evidence on this issue. Specifically, I reject the proposition that she was in any way malingering, seeking to exaggerate the stress which she felt and which she was under, or in any way seeking to maximise the true effect of the events surrounding her husband's death upon her.

448 The defendants resist the claim for nervous shock brought by Mrs O'Reilly. Whilst they accept that it is open to the Court to find that she has suffered, and continues to suffer from, psychiatric injury, they deny that they are liable to compensate her in respect of that injury. They deny owing her a duty of care. They deny that the relevant event for the purpose of determining whether a duty of care was owed is the collapse of the late Dr O'Reilly at home in July 2006, and they plead that in any event this claim is statute barred because it was brought more than three years after the cause of action accrued and hence the limitation period had expired.

449 It is convenient to address the limitation question first. The limitation period, and the consequences of it, are fixed by the Limitation Act 1980 (UK). The parties agreed that this was the applicable legislation.

450 Section 11 of that Act makes provision for the limitation period, and the time within which proceedings are to be commenced with respect to actions for damages for negligence where such claims include damages in respect of personal injury to a plaintiff or any other person. This action by Mrs O'Reilly for her personal injuries by way of psychiatric harm falls within that section.

451 Relevantly, the terms of s 11 are as follows:

"11. Special time limit for actions in respect of personal injuries

...

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from -

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

(5) ..."

452 The defendant submits that whether by reference to the date upon which Dr O'Reilly collapsed at home, namely 26 July 2006, or else by reference to the date of his death, namely 2 November 2006, the three year period allowed would have expired either on 27 July 2009 or else 3 November 2009. They submit that since the proceedings for damages for nervous shock were first commenced on 7 June 2011, the limitation period had by that time expired, and the claim was statute barred.

453 The provisions of s 14 of the Limitation Act (UK) are relevant with respect to the definition of the date of knowledge, a phrase used in s 11. Section 14 is in the following form:

"14. Definition of date of knowledge for purposes of sections 11 and 12

(1) Subject to subsection (1A) below, and sections 11 and 12 of this Act, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -

that the injury in question was significant; and

that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

the identity of the defendant; and

if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

(1A) ...

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

454 It might be expected that if the time was to date from either of the events to which earlier reference has been made, then the defendants' submission about the expiry of the limitation period calculated by reference to s 11(4)(a) of the Limitation Act, prior to the commencement of the action for nervous shock on 7 June 2011, is unarguably correct.

455 The question then arises as to the date of knowledge of Mrs O'Reilly, in accordance with s11(4)(b) of the Limitation Act, as the person injured, with respect to how that is to be assessed pursuant to s 14 of the Limitation Act (UK).

456 It was in issue between the plaintiff and defendants as to who bore the onus of proof of the limitation defence and hence proof of whether Mrs O'Reilly's date of knowledge was later than 7 June 2008, which was three years before the proceedings were commenced.

457 The limitation defence was pleaded by the defendants in their Defence. The Limitation Act imposes a bar to proceedings rather than extinguishing the cause of action. The relevant operative words in s 11(3) are:

"An action ... shall not be brought after the expiration of the period ..."

In those circumstances, it is thus necessary for a defendant to plead the expiration of the limitation period. The terms of the statute do not extinguish the right of action which a person has.

458 Not only do I derive that from the terms of s 11, but such an interpretation is consistent with the provisions of s 33 of the Limitation Act (UK). This section provides for a discretionary exclusion of the relevant time limit in actions for personal injury.

459 It says:

"33. Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."

460 The section goes on to identify matters to which the Court is obliged to have regard in considering whether to exercise its discretionary power. It is convenient to note here that the plaintiff did not make any application to the Court, pursuant to s 33, to direct that the limitation period should not apply to her nervous shock action. Accordingly, no occasion arises for the consideration of the section in a substantive sense, that is to say, whether the pre-conditions for the exercise of the Court's discretion have been established and whether in the exercise of its discretion, the Court would grant any relief. Nevertheless, its provisions assist in understanding the scheme of the Limitation Act as it applies to personal injury actions.

461 If the true effect of s 11 was to extinguish a cause of action by reason of the effluxion of time, then there would be no basis upon which the Court could act under s 33 to resurrect that cause of action. Rather, the words used in s 33 reflect the fact that a court may disallow reliance on a time bar if "...it would be equitable to allow an action to proceed". In those circumstances, I am satisfied that the true effect of s 11 of the Limitation Act is to provide a bar. The bar to an action needs to be specifically pleaded and relied upon by a defendant who wishes to argue it, and it may be waived by the conduct of a defendant.

462 As I have earlier mentioned, that is what the defendants did in this case. I should also record that this judgment deals with a single consolidated Further Amended Statement of Claim which incorporates all of the causes of action. However, that consolidation came about by reason of orders made by the Common Law Registrar in the course of case management. It was made plain at that time that the relevant date for the commencement of the nervous shock proceedings remained the date when that claim was first commenced. The consolidation was not intended to, nor did it, subsume this cause of action into the compensation to relatives cause of action which had been commenced in 2009, thereby allowing the plaintiff to rely on the earlier date of commencement which was within time.

463 The plaintiff submitted that in order to substantiate the limitation defence, it was incumbent upon the defendants to establish either the date on which the cause of action accrued, or else the date of knowledge of Mrs O'Reilly, if that is a later date. The plaintiff reasoned that, as the defendants pleaded the limitation period as a defence, then they bore the onus of proving the facts necessary to establish it.

464 The cause of action accrued when Mrs O'Reilly suffered nervous shock. On the case mounted by the plaintiff, this was in July 2006 when Dr O'Reilly collapsed. To that extent, the plaintiff accepted that the defendants had demonstrated when the cause of action accrued (i.e. the existence of a duty, the fact of a breach of that duty, and the happening of damage). But, so the plaintiff submitted, the defendants needed to do more to successfully rely upon the expiration of the time limit fixed by s 11. They needed to prove that the date of knowledge of Mrs O'Reilly had been acquired at a time prior to 7 June 2008, which was the date three years prior to when the nervous shock proceedings were commenced.

465 The defendants submitted that they bore no onus of proof and that the onus of proof fell onto the plaintiff, and drew the Court's attention to a number of judgments, which they submitted the Court ought apply.

466 In Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682, the House of Lords was dealing with the application of the concept of knowledge in the context of s 14A of the Limitation Act. The speech of Lord Nicholls of Birkenhead makes it plain that the observations which were made were equally applicable to the provisions of s 14 of the Limitation Act.

467 Although each of the members of the House of Lords made separate speeches, they were all agreed as to the applicable principles. It will be sufficient for my purposes to set out how Lord Nicholls dealt with them. He said:

"8. Two aspects of these "knowledge" provisions are comparatively straightforward. They concern the degree of certainty required before knowledge can be said to exist, and the degree of detail required before a person can be said to have knowledge of a particular matter. On both these questions courts have had no difficulty in adopting interpretations which give effect to the underlying statutory purpose.

9. Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: "Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice." In other words, the claimant must know enough for it to be reasonable to begin to investigate further.

10. Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know "the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence": section 14A(8)(a). Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. ... In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117-118, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates "in general terms" that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren, Purchas LJ said that what was required was knowledge of the "essence" of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. ... To the same effect Hoffmann LJ said section 14(1)(b) requires that "one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based": Broadley v Guy Clapham & Co [1994] 4 All ER 439, 448.

11. A similar approach is applicable to the expression "attributable" in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was "attributable" in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, "attributable" has been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damage as opposed to a probable one: see Nash v Eli Lilly & Co [1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against a claimant until he knows there is a real possibility his damage was caused by the act or omission in question."

468 Against this identification of the applicable principles and what is required to be proved to enable application of ss 11(4)(b), and 14(1), it is next appropriate to consider which party bears the onus of proving these matters on the facts of this case.

469 In 1995, Mance J (as his Lordship then was), in a claim brought over ten years after the limitation period would ordinarily have expired, held that it was not for the defendants to prove that the plaintiff had the required knowledge more than three years before the commencement of the action. He held that the onus of proof was on the plaintiff: see Crocker v British Coal Corporation (1995) 29 BMLR 159.

470 The Supreme Court of the United Kingdom considered this issue recently in AB & Ors v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78. These appeals dealt with nine of a large number of claims which had been commenced in the period between 2004 and 2008, by former servicemen who claimed injury, disability, or death allegedly sustained by them as a consequence of being exposed to radiation during, and in the aftermath of, experimental explosions of nuclear devices between 1952 and 1958 in Australia and the South Pacific. The Court was divided on the ultimate question of whether the appeals ought to be allowed.

471 However, three of the justices specifically addressed the issue of which party bore the onus of proof in respect to the expiration of the limitation period. There was no disagreement on this issue. Lord Wilson at [4] referred, with approval, to the decision of Lord Mance in Haward where at [106] Lord Mance said that the onus fell onto a claimant to " ...plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing."

472 In AB, Lord Mance adhered to his earlier view, and at [84] said:

"It is of course for a claimant to put his case as he thinks fit. No one is bound to commence proceedings, ... . But, if a claimant elects to issue and is pursuing proceedings, he must identify the case made and stand by it. Among the allegations which must, either explicitly or implicitly, be made, is that the case is not time-barred. Once an issue of knowledge is identified as arising under sections 11(4)(b) and 14(1), the onus lies upon the claimant to make good his case on knowledge, ... . A claimant bringing proceedings necessarily asserts that he or she has a properly arguable claim. ... Once proceedings are begun, it is by reference to the facts asserted as giving rise to the claim that the question of knowledge must be tested. The claimant cannot avoid this. Indeed, it is difficult in normal circumstances to think of a claimant trying to do so."

473 The President, Lord Phillips of Worth Matravers, who dissented as to the result, said of the onus issue, at [144]:

"Where a personal injury action is commenced more than three years after the cause of action arose and the defendant raises a challenge on the ground that it is time-barred, the onus is on the claimant to prove that the action was started less than three years from the date on which he acquired knowledge, as defined by section 14: see the comprehensive analysis of burden of proof in the context of limitation of Mance J in Crocker v British Coal Corporation (1995) 29 BMLR 159, 169 -173."

474 The law binding upon me has the result that, in this case, where, the defendants have pleaded that the limitation period has expired, it is for the plaintiff to satisfy the Court that the requisite date of knowledge, as that term is used in s 11(4)(b) of the Limitation Act, fell within a period of three years before she commenced her nervous shock action.

475 Although Mrs O'Reilly gave evidence, both by written statement and orally in Court on a number of occasions, and on the latter of those occasions specifically with respect to her nervous shock claim, and in some detail, the question of her state of knowledge of the matters set out in s 14 of the Limitation Act, and when that state of knowledge was reached, was never specifically addressed.

476 As the terms of s 14, which I have set out above, demonstrate, what needed to be established was when Mrs O'Reilly first had knowledge that her psychiatric injury was significant; that the injury was attributable in whole or in part to the act or omission which was alleged to constitute negligence or a breach of duty by the defendants, and the identities of the defendants. Or putting it differently, in the words of Lord Hoffman, having looked at how she put her case, and distilled what she was complaining about, whether she " ... had, in broad terms, knowledge of the facts on which that complaint is based."

477 In one of her statements which became an exhibit (Ex P), Mrs O'Reilly gave some quite detailed evidence about how she felt and what she did after her husband's death. It is clear that it was a struggle for her to carry on her life, look after her son Shane, who required 24 hour care because of his disability, attempt to stabilise her and her family's financial affairs, provide support for other children and to look after herself. She was clearly suffering from a depressive condition during this time because, in 2007, she was prescribed anti-depressants after a visit to a general practitioner. It would be entirely understandable if during this period she had not turned her mind to the question of how her husband's death had come about.

478 She returned to Australia in February 2008 in the hope of obtaining greater family support in caring for Shane. She continued to provide ongoing care for Shane until he died in July 2011. Throughout this period of time she was very busy in continuing his care. And as well, her evidence suggests that she continued to struggle with her own mental state.

479 The earliest expert written report, which is referred to in the evidence, was obtained from Dr Terry Gavaghan, an expert based in the Australian Capital Territory, and is dated 1 July 2010. Dr Gavaghan said in evidence that he was in England in 2007 when either by Mrs O'Reilly or perhaps one of her siblings, he was first presented with several hundred pages of medical notes and asked to provide some advice to Mrs O'Reilly as to what could be made from the documents, and seemingly, how Dr O'Reilly had come, completely unexpectedly, to die.

480 It was also clear from Dr Gavaghan's evidence that he was provided with further material through Mrs O'Reilly's lawyers from when he was first asked for help in 2007 through to the time of his first report, and then ultimately, the time of giving evidence.

481 He was not asked, and gave no evidence, about when he provided any advice, either oral or in writing, to Mrs O'Reilly as to what had happened, in his view, prior to his written report dated 1 July 2010.

482 Of course, it is entirely possible given the informal and familiar nature upon which he was earlier asked in 2007 to provide advice, that he could have given advice informally. However, there was no exploration of that fact with him in his evidence. The provision of such advice in 2007 by Dr Gavaghan to Mrs O'Reilly, particularly if it had been only in tentative terms, would, if it had been given, have been one way to have established a date of knowledge within the meaning of that phrase in the Limitation Act (UK). No attempt was undertaken to do so with Dr Gavaghan.

483 The evidence established that prior to February 2008, when Mrs O'Reilly returned to live in Australia, that she had consulted a firm of lawyers in London, Kingsley Napley who were very experienced in personal injury claims, including medical negligence claims. Mrs O'Reilly when being cross-examined gave this answer:

" ... I actually commenced legal action one month after David's death. I went to see a firm of solicitors in London called Kingsley Napley. I first went to see them in December 2007."

She added to that description of her attendance by a statement of her purpose in consulting those lawyers. She said:

"So one of the outcomes I was hoping for in taking legal action would be compensation for lost earnings so I could pay for the care that David otherwise would have provided to Shane if David hadn't died."

484 The apparent inconsistency in the date stated as December 2007 rather than December 2006 which would be one month after Dr O'Reilly died, was not further explored in either cross-examination or re-examination. The likelihood is that Mrs O'Reilly meant December 2006, and mistakenly said December 2007. I am of his view because of Mrs O'Reilly's statement about the proximity of the consultation to Dr O'Reilly's death, and the necessitous financial circumstances in which she found herself after his death and the financial outcome.

485 Somewhat confusingly, during later evidence, Mrs O'Reilly described her consultation with Kingsley Napley, as seeing them "... in a preliminary way. They were doing the preliminary work on the medical investigation". However, this evidence was given on a voir dire which was being conducted to determine an application for leave to rely upon a statement of Mrs O'Reilly which was served late. No party tendered this voir dire evidence on the trial, and accordingly, it must be ignored.

486 Whether there was one or more than one consultation between Mrs O'Reilly and her UK lawyers has not been made explicit. The task which those lawyers were briefed to undertake was not clearly identified. When dealing with her nervous shock claim, Mrs O'Reilly said of Kingsley Napley, that "we never went into this - I never went into this aspect of it - before I returned to Australia". However, that statement which I am prepared to accept, does not of itself and without more mean that Mrs O'Reilly's consultation, or consultations with the firm did not provide her with sufficient material to demonstrate that her state of knowledge was sufficient to start time running. After all, it had always been clear to Mrs O'Reilly from 2006 that she had been completely shocked by the sight of her husband collapsing in front of her at home, and that she had been profoundly affected by his death later that year. Her knowledge in July 2006 was relevantly deficient because she did not know at that time whether her injury was significant, and how her injury could be attributed to any act or omission on the part of the defendants.

487 In drawing attention to the briefing of lawyers, and consultations with them as forming part of the factual matrix relevant to the date of knowledge of Mrs O'Reilly, I do not ignore what Judge LJ said in Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213 that it does not automatically follow that the first date upon which a claimant took legal advice, necessarily equates with the claimant's date of knowledge, although such an inference may be justified in one case or another. See also Lord Wilson in AB at [5].

488 Mr Finlay, the consultant colorectal surgeon retained to give evidence in support of Mrs O'Reilly's case, was first retained by a letter of instruction dated 15 January 2009, sent to him by a solicitor at Kingsley Napley. His report was dated March 2009. Of all the UK expert reports tendered in Court, this seems to be the earliest. Mr Finlay's report also lists the documents with which he was provided for the purpose of his report. There is nothing in the description of those documents which, by reference to the date of their creation, enables a finding to be made as to when they came into existence, nor when any of the documents, or their contents, would have come to Mrs O'Reilly's attention.

489 The evidence which was adduced, which I have reviewed above, does not permit me to conclude, without more, that the date of knowledge of Mrs O'Reilly was within the three year period before the commencement of proceedings for nervous shock. In circumstances where the onus of proof of the relevant date of knowledge falls upon plaintiff, I am not prepared to supplement that evidence by drawing any inference, assuming one was available, which remedies such an evidentiary deficiency. In this respect, I follow and apply the principle identified by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-F, and, with respect, adopt his reasoning. His Honour said:

"In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of [a relevant witness]. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.

There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions."

490 In all of those circumstances, I cannot be, and I am not, satisfied that the plaintiff's date of knowledge was relevantly after 7 June 2008 being a date within a period of three years prior to the commencement of the nervous shock proceedings. I am therefore satisfied that Mrs O'Reilly's claim for damages for nervous shock is statute barred, and the defendants, for that reason alone, are entitled to judgment with respect to it.

491 In case I am in error on this issue, it is appropriate for me to consider the remaining disputed issues about whether, leaving aside the statutory bar, Mrs O'Reilly would otherwise have succeeded on her claim.

492 The issue to which I next turn is one which can conveniently be termed the proximity issue. In order for there to be a duty of care in a claim for nervous shock by a secondary victim, a term which can conveniently be used to describe Mrs O'Reilly's position, there needs to be proximity between the event which led to her shock and the negligence of the defendants. In secondary victim cases, the term "proximity" is used " ... to mean physical proximity in time and space to an event": Novo at [27] per Lord Dyson MR.

493 The defendants draw attention to the considerable period of time which elapsed between the tortious conduct of the defendants in 2003 and the collapse of Dr O'Reilly and also his death, both of which occurred in 2006.

494 The defendants commence their analysis of the law relevant to this issue by drawing attention to the approach of the common law in nervous shock cases where the claimant is a secondary victim. They first cite the decision of the Court of Appeal of England and Wales in Sion v Hampstead Authority (1994) 5 Med LR 170, where Staughton LJ said, with respect to claims by secondary victims:

"It is I think recognised almost universally that the common law ought to impose some limit on the circumstances in which a person can recover damages for the negligence of another."

495 The defendants next draw attention to the decision of the Court of Appeal in Taylor v Somerset Health Authority (1993) 4 Med LR 34. In that case, staff employed by the defendant hospital had negligently failed to diagnose and treat the plaintiff's husband's serious heart disease. The plaintiff claimed that she suffered nervous shock as a consequence of arriving at the hospital after learning that her husband had suffered a heart attack, some months later, at work and that he had died. The primary judge held that the death was the final consequence of negligence by the defendants many months earlier. The primary judge held, and was upheld in the Court of Appeal, that there was not sufficient proximity or propinquity between the defendants' negligence and the occurrence of the shock upon which the claim was based.

496 A similar result was reached in Novo where the period between the negligence of the defendants which caused the claimant's mother to be injured, and the mother's collapse at home in the presence of the claimant, as a consequence of which she suffered the nervous shock, was about three weeks.

497 Accordingly, the defendants submit that the claim which the plaintiff brings involves an extension to, or an expansion of, the ambit of liability in respect of claims for nervous shock by secondary victims contrary to the control mechanisms propounded first by Lord Oliver in Alcock. As is apparent from Alcock and subsequent authorities these control mechanisms cannot be justified by principle, but are essentially the consequence of judicial policy making, which are nevertheless well entrenched.

498 The plaintiff submits that Novo, and all that it encompasses, is readily distinguishable upon the facts from the present case. The plaintiff submits that the relevant event here, which was directly caused by the negligence of the defendants, was the collapse at home of Dr O'Reilly and that the necessary degree of proximity or propinquity existed between Mrs O'Reilly and the event caused by the breach of duty of the defendants to Dr O'Reilly.

499 There is no doubt that Mrs O'Reilly was present and saw Dr O'Reilly collapse. There is little doubt that on her evidence the event was sudden, it was entirely unexpected from her perspective, and that she reacted in a way consistent with what is required to establish nervous shock.

500 The plaintiff submits that what followed thereafter, namely, her psychological and psychiatric reaction to the events which followed, including the death of Dr O'Reilly, were reasonably foreseeable consequences of the psychiatric injury which she suffered, which was itself the consequence of the negligence of the defendants.

501 The plaintiff goes on to submit that the earlier failure of the defendants to diagnose, and appropriately treat, Dr O'Reilly's tumour:

"... merely created the conditions for the occurrence of [the collapse] just as a failure properly to construct a building at a much earlier point in time, leading to its collapse at a much later time and the death of its occupants, creates the conditions for the happening of that later event."

502 The plaintiff submits that there is no principled distinction to be drawn between the case at hand and the example given.

503 The plaintiff in particular draws attention to the remarks of Peter Gibson LJ in Sion which, she submits, although obiter dictum, are highly persuasive, correct in principle and which I ought to follow. Peter Gibson LJ said:

"I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system."

504 The difficulty with this submission is that the obiter remarks of Peter Gibson LJ have not commanded broad assent as guiding principles in the UK. To accept the plaintiff's submissions would be to extend one of the control mechanisms determined to be applicable by Alcock beyond " ... what the ordinary person would be regard as reasonable.": Novo at [30] per Lord Dyson MR.

505 Accordingly, Mrs O'Reilly has not established that she would have succeeded in her claim for nervous shock, even if it was not statute barred.

506 It is appropriate to note that the result in this respect would in all probability have been different if the tort had arisen in Australia and I was applying Australian law, but I am not. The result which I have reached is that determined by the application of UK law although the proceedings are being heard in this Court.

507 The defendants also submitted, in response to Mrs O'Reilly's nervous shock claim, that such was the disconformity between her pleadings which articulated a claim for nervous shock based upon her reaction to the death of her husband, and her final submissions which articulated a cause of action based upon her nervous shock arising upon seeing her husband collapse in June 2006 which was some months before he died, that the Court would not entertain the claim based upon the latter formulation of it, but would hold Mrs O'Reilly to the originally pleaded basis of the cause of action.

508 I am not prepared to accept this submission thereby precluding Mrs O'Reilly from mounting her nervous shock claim based upon the collapse of her husband at home. I agree that the pleading upon which Mrs O'Reilly relies does articulate her nervous shock action on the basis of her husband's death. But this was a case, in so far as Mrs O'Reilly's nervous shock was concerned, which was conducted by the parties without regard to that specific form of pleading.

509 I allowed a statement of Mrs O'Reilly to be tendered which comprehensively described her nervous shock as being related to the collapse of her husband. That statement was provided to the psychiatrist retained by the defendants. After it was provided, the psychiatrist re-examined Mrs O'Reilly, and prepared a report based on that re-examination and the history contained in the written statement. Mrs O'Reilly was cross-examined after the statement was tendered.

510 Having regard to the way in which her nervous shock claim was allowed to proceed, the interests of the defendants in ensuring that they could meet and deal forensically with that case were well catered for. There is simply no merit in this submission. I reject it.

511 I have considered whether, lest I be wrong in my analysis of the issues above, it is nevertheless appropriate for me to assess the damages which I would otherwise have awarded to Mrs O'Reilly for her nervous shock claim. The award of damages was not without its complexities.

512 The two expert psychiatrists who had examined Mrs O'Reilly were not of one opinion. The essence of their difference was not so much as to whether Mrs O'Reilly was presently suffering from a recognised psychiatric injury, namely, post-traumatic stress disorder, but rather its aetiology, and the causes of her present condition and the manifestations of it.

513 I have concluded that I should deal with an assessment of her damages, but with only brief reasons.

514 Dr Thomas Oldtree Clark examined Mrs O'Reilly in August 2013. He concluded in his report that Mrs O'Reilly had a major depressive disorder. He also concluded that she had initially suffered from an acute bereavement reaction which had continued over the years to become a pathological bereavement reaction. He noted that both the major depressive disorder and the pathological bereavement reaction could be a response to trauma.

515 In his oral evidence, Dr Clark made it clear that he thought that Mrs O'Reilly had suffered from post-traumatic stress disorder as a consequence of observing the collapse of her husband, and also his death. He said that from a clinical point of view, her major depressive disorder derived from that initial psychiatric state.

516 The thrust of the cross-examination of Dr Clark was that his diagnosis which attributed Mrs O'Reilly's psychiatric condition to the collapse of Dr O'Reilly, did not make any, let alone any adequate, allowance for the fact that Mrs O'Reilly's condition when Dr Clark saw her in 2013, had been either caused or at least contributed to, by a number of other stressors which were not tortiously caused by the defendants. These stressors included the facts, matters and circumstances surrounding the death in 2011 of her son, Shane; the facts, matters and circumstances surrounding the stress and strain which fell upon Mrs O'Reilly because after her husband's death she became the principal carer for Shane - which was both emotionally and physically exhausting work and her inability to obtain full-time employment after Shane's death in 2011. In addition, it was suggested that Mrs O'Reilly may have had a genetic predisposition to depression.

517 Finally, it was suggested that a major stressor which was causing or else contributing to her condition was her difficult financial state.

518 Putting it briefly, Dr Clark accepted that the stressors to which reference has just been made were generally present to some degree and may have contributed to the clinical condition which he observed in 2013. However, Dr Clark attributed the effects of those stressors to the original incident because, in his mind, they all derived from that incident.

519 Of interest in re-examination, Dr Clark attributed the trauma, and the effects of it, to the death of Mrs O'Reilly's husband. He said:

"The trauma in this context was the death of her husband. It can be interpreted as either part of the pathological bereavement reaction or could be interpreted as part of a beginning of a major depressive disorder. Or it can be interpreted as post-traumatic stress disorder. So it is acute and chronic in both categories but I chose bereavement seeing as it seems obvious, I chose her present clinical condition as being the most important."

520 Dr Leonard Howard Lee provided a number of reports in the proceedings to the defendants and also gave evidence. For the purpose of giving evidence, Dr Lee consulted with Mrs O'Reilly on 14 November 2013. He gave evidence the following day. His report of that day records his opinion that Mrs O'Reilly is:

"... currently reporting symptoms sufficient to meet DSM-5 criteria for post-traumatic stress disorder ('PTSD')."

521 However, for reasons which he expressed, Dr Lee did not accept that Mrs O'Reilly's overall situation was consistent with PTSD. Rather, he opined it was consistent with grief reaction. He formed this view because the results of psychometric tests provided to him indicated that there was a likelihood of exaggeration by Mrs O'Reilly. He said that her presentation was inconsistent with PTSD and that she had not reported intrusive memories or flashbacks until recently. He also noted that Mrs O'Reilly's records indicated pre-existing psychological disturbance and/or vulnerability:

"... which she does not acknowledge, and difficulties coping with Shane and I understand there is financial incentive for the intentional production of nervous shock symptoms".

522 Dr Lee's principal reason, so it seemed to me, for discounting the psychiatric injuries claimed by Mrs O'Reilly, was that he simply did not find her complaints credible. The other matters to which he referred by way of historic material do not advance this question.

523 Mrs O'Reilly was clearly psychologically vulnerable before the events of 2006. Her evidence, which as I have said, I accept, demonstrates that she suffered a profound shock when seeing her husband collapse in front of her. The subsequent assaults to her psychiatric well-being, namely when her husband died, her having to emotionally and physically manage as the primary carer for Shane, the difficulties of stabilising the financial circumstances of her family including obtaining employment in Australia, and her general bereavement and loss at her husband's death, are all foreseeable consequences of the original event giving rise to her nervous shock and post-traumatic stress disorder.

524 To the extent that the stressor involved in finding her son Shane dead, and coping and managing with that, added to her psychological well-being, it was an inter-current illness.

525 The evidentiary burden falls on the defendants to separate out the effects of such inter-current illness if the Court is not to award damages in respect of them. The defendant did not do so. In accordance with the principles discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 as further elaborated on in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the defendants must bear the consequences of that. The principles in this respect in Watts were cited with approval by Potter LJ (with whom Henry and Wall LJJ agreed) in Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822.

526 I am satisfied that Mrs O'Reilly is significantly psychiatrically disabled as a consequence of post-traumatic stress disorder, and a major depressive disorder. She is entitled to be compensated by way of general damages for that and her lost income.

527 I would assess her damages as follows:

• General Damages: £75,000 (AUS $ 143,750)
• Past Out of Pocket Expenses: $2,500
• Past Economic Loss: $161,040
• Future Out of Pocket Expenses: $5,000
• Future Economic Loss: $125,000

528 Mrs O'Reilly would be entitled to interest with respect to some of these sums, and if a judgment was to be entered in her favour, this would need to be calculated.

Orders

529 I make the following orders:

(1) Judgment for the plaintiff in a sum to be calculated for damages for the value of the dependency of the late Dr O'Reilly;

(2) Judgment for the defendants on the claim by the plaintiff for damages for personal injury by way of psychiatric harm;

(3) Direct the parties to bring in short minutes of order to reflect the amount of judgment in Order (1). Such short minutes to be filed and served by 13 February 2015;

(4) If any party seeks to make an application for costs, then such application is to be made by notice of motion supported by affidavit evidence and is to be filed and served no later than 4pm 13 February 2015;

(5) Any evidence in response to such application is to be filed and served no later than 4pm 27 February 2015;

(6) Grant leave for such motion or motions to be made returnable before Garling J at 2pm on 13 March 2015;

(7) Adjourn the proceedings generally for directions to 2pm on 13 March 2015;

(8) Liberty to apply on 3 days' notice.

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Decision last updated: 19 December 2014