WALTON-TAYLOR v WILSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and STEIN JJA 29-30 September 1997, 1 October 1997, 26 March 1998 [1998] NSWCA 253 MEDICAL NEGLIGENCE — EXPERT EVIDENCE — plaintiff (appellant) experiences abdominal pains in late pregnancy — first defendant (first respondent) a general practitioner causes induction of early birth — child safely delivered — shortly after birth plaintiff experiences further abdominal pain — appendicitis now first diagnosed — three subsequent operations including appendectomy and sub-total hysterectomy — plaintiff alleges negligence against first defendant in his not obtaining advice from a specialist obstetrician or surgeon before inducing early birth — plaintiff alleges if such advice obtained appendicitis would have been diagnosed in time for removal without need for subsequent operations which caused her damage — division of expert opinion — experts agree that in late pregnancy treatment differs for acute appendicitis and appendiceal abscess — judge relies on one expert medical witness in finding (a) first defendant not negligent in not calling in specialist, (b) in any event, "on the balance of probabilities", the plaintiff at time of alleged negligence suffered abscess formation and it would have been then unsafe to operate. On appeal the appellant (plaintiff) submitted Ireland J: 1. erred in accepting one expert's opinions because when forming his opinions that witness had not taken into account all the evidence in the case; 2. erred when finding, based on the materials before him that the first defendant was not negligent when he did not consult a specialist; 3. erred when finding an abscess formation had already occurred at the time that it was said that the first defendant should have obtained specialist advice; further, the expert's evidence, upon which Ireland J relied, did not support the trial judge's view on abscess formation; 4. had not given sufficient reasons for a number of his conclusions essential to the final decision of the case. These matters included: his preference for one expert over the other experts; his conclusions as to the clinical state of the plaintiff at relevant times; his conclusions concerning abscess formation; and his decision to accept the first defendant as a reliable witness despite the defects in his evidence and conflicts with other witnesses. Held: 1. It was open for Ireland J to accept the expert he relied on as an eminent, objective and honest expert witness; his various opinions were not inconsistent with one another. 2. In his evidence, the expert relied on by the judge took fully into account the primary evidentiary materials in their complete form at the end of the trial; this was accepted by the plaintiff's counsel at the trial. 3. It was not shown for the plaintiff in the appeal that Ireland J was led into error by palpable misuse of his advantage of the kind spoken of in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v National Railways Commission (1993) 177 CLR 472 when he accepted one expert's opinion over the others. 4. Although there was substance in the submission that the trial judge's second ground of decision, viz referral to a specialist would have been fruitless as there was already abscess formation making surgery unsafe, was not supported by the evidence of the expert relied on by his Honour in the way that he thought, nevertheless there was no sound basis for disturbing the trial judge's first ground of decision, viz that the plaintiff failed to 2 UNREPORTED JUDGMENTS establish that the first defendant was negligent in not recognising the need for specialist consultation, this conclusion being based on the expert evidence accepted by the judge. 5. Ireland J sufficiently discussed and explained the reasons as to his findings so as to enable any interested party to understand, with reasonable certainty, why he reached the conclusions he did. 6. It was well open for the trial judge to accept the first defendant's answers and to find him an "impressive and credible witness". Cases: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v National Railways Commission (1993) 177 CLR 472 Ahmedi v Ahmedi (1991) NSWLR 288 GIO of NSW v Luong (CA, 2 April 1992, unreported) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Priestley JA Introduction On 28 April Mrs Walton-Taylor, who lived in Corowa, and was expecting she would give birth on or about 17 May 1986, felt severe abdominal pain. She went to the Corowa District Hospital. Dr Wilson, who had been her general practitioner since about 1980 and who had been attending to her pre-natal care, decided to induce labour early. This was done, and on | May 1986 Mrs Walton-Taylor was delivered of a healthy baby girl. On 13 May 1986 she was operated on for what was found to be a perforated appendix which it was not then safe to remove. Several pockets of pus were drained and a drain tube left in the pelvis. She was given antibiotics. The internal infection was controlled. On 31 July 1986 a further operation was done. Her appendix was taken out. So were her right ovary and fallopian tube. In March 1988 she had a sub-total hysterectomy. In 1987 she began proceedings against Dr Wilson (the first defendant) and the Corowa District Hospital (the second defendant or the Hospital) for medical negligence. Her claim was that by midday on 29 April Dr Wilson should have referred her for specialist examination and treatment, and that this would have led to diagnosis of acute appendicitis and the taking out of her appendix. None of the other later operations would have been necessary and she would have been spared the removal of organs and much pain, anxiety and inconvenience. It is important in understanding her appeal to remember that her claim against Dr Wilson was not that he was negligent in failing to diagnose acute appendicitis by midday on 29 April 1986, but that he had then negligently failed to get advice from a specialist obstetrician or surgeon. Her case was that he should have done so, and if he had, acute appendicitis would have been diagnosed, the appendix safely removed, and she would have suffered none of the consequences that in fact happened. Her proceedings came before Ireland J in the Common Law Division. He decided that she had not established negligence against either defendant and entered judgment for them. In case he was wrong he assessed in detail the damages the plaintiff would have been entitled to if she had won. His assessment was $159,689. The plaintiff appealed. In the appeal only liability was in issue. If she succeeded on this, she accepted the judge's assessment of damages. URJ WALTON-TAYLOR v WILSON (Priestley JA) 3 Outline of the facts in more detail From December 1982 until mid 1985, the plaintiff had had abdominal pains from time to time. From December 1982 for a period of nine weeks she had recurrent discomfort and persistent right pelvic pain. In June and November 1983 she had tenderness of the right ovary. On 12 February 1985 she again had right ovary tenderness and also suffered an irritable bowel and colon. Later in February 1985 she had abdominal pain with a tender colon and diarrhoea. In March 1985 she had pain, bloating and tenderness. Dr Pill, an obstetrician, carried out a laparoscopy at Corowa Hospital on 20 March 1985. He diagnosed mild endometriosis (flaking of the uterus). On 20 May 1985 and on 21 June 1985 she had recurrences of abdominal pain. Dr Pill saw her on 21 June 1985 when he observed a recurrence of abdominal distension, a markedly noisy abdomen and lower abdominal pain. Following a review by Dr Pill she was referred to Dr Ramsden, a surgeon who carried out a colonoscopy on 12 July 1985. None of the medical practitioners was able to make a confident diagnosis of what underlay this sequence of abdominal pains. Dr Wilson was left with the impression that the plaintiff tended to speak of pain as being more severe than would be expected from the actual physical facts. The plaintiff became pregnant about or soon after the beginning of August 1985. Dr Wilson began ante natal checkups in about October 1985. No incident of any consequence occurred until early April 1986 when the plaintiff began to be troubled with occasional and increasing right-sided abdominal pain. On 18 April 1986 she attended on Dr Wilson complaining of persistent pain. Then, early in the morning of 28 April 1986, when the plaintiff began to feel what she thought were contractions, she went to the Corowa District Hospital. The contraction feelings ended about 9 am. She then became aware of pain in her abdomen and felt very nauseous. She was examined by Dr Wilson and remained in hospital. She was seen by Dr Wilson again at 1.45 pm. A note made by a member of the nursing staff at the time of this examination was "Query gut infection". In his evidence in chief Dr Wilson said that he recalled "feeling that the major problem was a gut infection at this stage" (2/390E). The plaintiff continued to complain of severe abdominal pain throughout 28 and 29 April 1986. Dr Wilson examined her on a number of occasions. Two factors, among others, seem to have been in Dr Wilson's mind throughout this period. The first was that although he thought the plaintiff was very uncomfortable, and that her pain was genuine, he did not think it was of the marked severity of which the plaintiff complained (4/687B-C and G). The other factor was that although he was tentatively of the view that the plaintiff had a gut infection he could not assign any specific cause to the pain she was experiencing. This position continued through 30 April. Dr Wilson agreed in cross-examination that on that day he knew the plaintiff had continuing pain which was not severe to his perception but which increased on the evening of 30 April. He also agreed that at that stage he did not know whether the pain was in utero or by reason of some gastro intestinal problem or caused by some other reason (4/689M-T). Dr Wilson was cross-examined further about this on the next day of the trial. The following passage both illustrates a central question in the case and shows how Dr Wilson saw his patient's situation in the evening of 30 April: "Q. If we go back to the evening of 30 April. By 6.30 pm on that evening she had been in hospital for 60 hours, had she not? A. Yes, I have a note of that. Q. Having been admitted at 6.30 am on 28 April? 4 UNREPORTED JUDGMENTS A. Yes. Q. And she had been treated for abdominal pain that she had experienced from time to time throughout that period by means of analgesia, had she not? A. Yes. Q. You not knowing what was causing the pain? A. Yes. Q. That evening, 30 April, did it not occur to you that the prudent thing to do would be to get a specialist opinion? A. If I had felt that her clinical condition would have warranted a specialist opinion I would have asked for it, yes. Q. You told us yesterday there was an increase in pain that evening and you had no idea what was causing it? A. That is correct. Q. Did that not concern you? A. Yes. Q. Sufficiently to seek a specialist opinion? A. Not in the clinical condition, no. Q. So easy to have picked up the phone and rung Dr Pill? A. In any event, as you have pointed out, Dr Pill was down on the 1° anyhow. If I had felt she needed a specialist consultation I would have asked him at that stage. Q. It just did not cross your mind on that evening? A. No, not as a matter of priority, no. Q. Not at all? A. Not as a matter of priority. Q. It did not cross your mind, did it, on the evening of 30 April to get Dr Pill to look at this woman that day? A. It crossed my mind if her clinical condition had warranted it, yes. Q. I am not asking a hypothetical question? A. No, I replied. Q. It did not cross your mind, did it? A. It may well have crossed my mind if he was down the next day and she was still - or required, in the light of her clinical condition, a specialist consultation I would have asked him to see her, that's only logical. Q. You do not think 60 hours is a protracted period for someone of 38 weeks' gestation to suffer pain, nausea and vomiting? A. Not with the situation as I saw it, no." (4/736H-737G) Treland J's decision on liability To me, not a medical practitioner but a lawyer sitting on an appeal against Ireland J's decision, knowing the facts of the plaintiff's complaints to Dr Wilson up to 1 May 1986 and knowing now that the parties accept that at that date she was suffering, at the least, from acute appendicitis, it seems obvious that Dr Wilson should, on 29 April 1986, have considered the possibility of appendicitis and taken whatever steps were then appropriate to deal with that possibility. However, that this is a simple minded view seems to be demonstrated by at least two things. Amongst Dr Wilson's qualifications was a Diploma of Obstetrics from the Royal College of Obstetricians and Gynaecologists in the United Kingdom; although this was quite a common qualification among general practitioners, not entitling a holder to be regarded as a specialist, he was an experienced general practitioner; yet, despite his knowledge and experience, he URJ WALTON-TAYLOR v WILSON (Priestley JA) 5 did not regard appendicitis as a realistic possibility. The other thing was the expert evidence in the case. Some expert medical opinion (that of Mr Keiller and Dr Giltrap) supported the view that Dr Wilson was negligent in not calling in a specialist, other expert medical opinion (Professor Tracy) was emphatically of the contrary view. The expertise of these witnesses in the relevant fields of medicine was not questioned. Ireland J accepted the substance of Professor Tracy's opinions concerning the appropriateness of the procedures followed by Dr Wilson. Certain passages in Ireland J's reasons show the basis upon which he arrived at his decision and were the main subject of criticism by the plaintiff in her appeal. These were: ".. Professor Tracy was emphatic in his disagreement with the proposition that a specialist obstetrician or surgeon would be more likely to come to a correct diagnosis of the cause of severe abdominal pain in late pregnancy than a generalist. This is not a case which turns upon the credibility of witnesses. Both the plaintiff and the first defendant were impressive and credible witnesses who did their utmost to give their evidence in a straightforward, frank and truthful manner. The same may be said of all witnesses called on behalf of the parties, including the expert witnesses. It is common ground that if in the period between admission to hospital on 28 April and induction of the birth on 1 May a diagnosis of acute appendicitis had been made, surgery would have been the appropriate option. There is no doubt that Dr Wilson did not make a diagnosis of appendicitis during that period and he believed that the plaintiffs pain and discomfort was generated by her long standing abdominal problems, referred to variously by him as 'gut infection' and by others as 'colitis'. The difficulty of diagnosing appendicitis in late pregnancy is widely recognised by experts on both sides of the record. The plaintiff's expert, Dr Keiller, made no criticism of Dr Wilson for not having come to a diagnosis of appendicitis prior to induction. His criticism was limited to a failure on the part of Dr Wilson to call in a specialist at a stage when the degree of analgesia which the plaintiff was receiving became necessary. However, this criticism is based upon the view held by Dr Keiller that a specialist would 'almost certainly have come to a diagnosis' even y not a complete diagnosis which may have warranted surgical exploration. The difficulty I find with Dr Keiller's approach is that he later went on to say that 'if the patient had acute appendicitis at that stage and it was diagnosed then the correct treatment provided it had not gone to abscess formation, would have been appendicectomy' (my emphasis). I take this to mean that Dr Keiller, in common with other experts, concedes that if the condition had, at that time, proceeded to abscess formation then conservative treatment rather than surgery was the appropriate way to proceed." (I interrupt here to note that the evidence showed that the description "acute appendicitis" was accepted by the various medical experts as describing a stage in the progress of an inflamed appendix towards perforation which precedes the stage of abscess formation, and that at the stage of acute appendicitis surgical intervention would have been an appropriate procedure, but had the further stage of abscess formation been reached the danger accompanying surgical intervention was such that it should not be attempted.) Ireland J's reasons continued: 6 UNREPORTED JUDGMENTS "Whether or not the plaintiff was suffering from acute appendicitis or from appendiceal abscess during the period from 28 April to 1 May, can only be established retrospectively. The most cogent evidence is that available from the findings at operation by Dr Giltrap on 13 May. At that time there was extensive abscess formation and the appendicitis had progressed to a stage where surgical removal of the appendix was considered too risky. The conservative treatment with intravenous antibiotics was continued. The specialist surgeon, Dr Kingsell, recalled having been spoken to by Dr Giltrap within a day or so of operation and recorded his impression that Dr Giltrap was 'fairly confident that her problem had been an appendiceal abscess'. Dr Kingsell was satisfied with the treatment regime that Dr Giltrap had outlined to him. On an analysis of the medical evidence, Professor Tracy was of the view that at the relevant time the condition was one of appendiceal abscess. On the balance of probabilities, I am persuaded that this is so, albeit an acute phase had probably preceded abscess formation. It follows from this finding that even had Dr Wilson taken the step of calling in specialist assistance prior to inducing the birth on 1 May, the appropriate procedure to have been followed and the one which more probably than not would have been followed in the circumstances, was the conservative regime which Dr Wilson in fact put in place." Ireland J then discussed the appropriate formulation of the duty of care in the circumstances by reference to the recognised authorities. No criticism is made in this case of the legal rules which he applied to the facts of the matter. He then continued: "The present case is one in which the court, of necessity, must rely heavily upon the expert evidence called in determining the central issue. In this regard I have been greatly impressed and indeed persuaded by the expert evidence called on behalf of the defendants. Although doctors Keiller and Giltrap expressed the opinion that Dr Wilson ought to have arranged for the plaintiff to be referred to a specialist surgeon on 29 April and 2 May, I am not persuaded that in light of the symptomatology and clinical signs she was exhibiting (or perhaps more particularly the classical signs of appendicitis which she was not exhibiting) at that time and given Dr Wilson's background knowledge of the plaintiff as a long term sufferer of abdominal pain, that it was negligent of him not to do so. In this regard I accept the views expressed by Professor Tracy that the management plan adopted by Dr Wilson with respect to the plaintiff was appropriate and in any event would probably in the circumstances of this case have been that followed by a specialist had one been called in. I do not accept the plaintiff's contentions enumerated in the comprehensive written submissions under the heading 'Credit Analysis of Dr Wilson' as being more than genuine errors of a minor nature, sifted from a massive volume of material in the form of written and oral evidence, nor do I find substance in the criticisms made of Professor Tracy's evidence. In the circumstances of this case, I am not persuaded that there was any failure on the part of Dr Wilson to act reasonably in the circumstances. Given his knowledge of the plaintiff as a patient, together with the absence of symptoms which would, had they been present, have led a practitioner to a diagnosis of URJ WALTON-TAYLOR v WILSON (Priestley JA) 7 appendicitis, he was, in my view, acting reasonably in following the regime which he put in place and in continuing to treat his patient without necessarily seeking specialist intervention. I am further persuaded that had Dr Wilson, prior to induction, called in specialist assistance the probabilities are that a conservative regime would have been followed and the consequences which befell the plaintiff would have done so in any event." Two distinct grounds appear from Ireland J's reasons for finding the plaintiff had not established negligence. The first was his opinion, on the evidence as he saw it, that Dr Wilson had not been negligent in not seeking specialist opinion prior to 1 May 1986. This involved rejection of the appellant's primary contention at the trial and meant the case she had been seeking to make necessarily had to fail. (I will refer to this as the judge's first ground of decision.) The other ground for Ireland J's decision was that even if Dr Wilson had referred the plaintiff to a specialist when it was claimed he should have done, he was not satisfied that the necessary consequence would have been the immediate removal of the appellant's appendix. This was because the judge thought that Professor Tracy "was of the view that at the relevant time the condition was one of appendiceal abscess," a view which "on the balance of probabilities" the judge accepted, (see paragraph commencing "On an analysis" set out at p8 above) and that condition would have made it unsafe to remove the appendix at that time. (I will call this the judge's second ground of decision.) The appeal When the appeal came on for hearing an application was made on behalf of the plaintiff to file amended grounds of appeal. There were eighteen of these. For the defendants, objection was taken to leave to amend in regard to grounds 15 to 18. The defendants' counsel who had not been at the trial and who had been preparing his argument from the voluminous appeal materials directed to the existing grounds said the new grounds had been raised so late that he had not had enough time to consider them. The court said that it would permit the appellant to argue all the grounds in the amended notice of appeal but would not decide the question whether the respondent would be called upon to reply to them until it better understood the relation of those grounds to the pre-existing grounds of appeal. On the second day of oral argument counsel for the defendants withdrew his objection, and the appeal proceeded on the footing that all grounds in the amended notice of appeal were open to the appellant. Grounds of appeal. The grounds in the amended notice of appeal were as follows: "1. His Honour erred in finding that the Respondents had not breached their duty of care in the treatment and management of the Appellant. 2. His Honour erred in not finding that the First Respondent should have arranged for the Appellant to be referred to a specialist surgeon following admission to hospital on 28 April 1986. 3. His Honour erred in failing to give any reasons or sufficient reasons for preferring the evidence of Professor Tracy to that of Drs Keiller and Giltrap in relation to the First Respondent's failure to refer the Appellant to a specialist surgeon. 4. His Honour erred in accepting the opinion of Professor Tracy as to whether it was appropriate for the First Respondent to refer the Appellant to a specialist because the material forming the basis of such opinion was limited only to the 8 UNREPORTED JUDGMENTS nursing notes medical reports and other documents provided to Professor Tracy by the First Respondent and did not include any reference to the oral testimony at the trial. 5. His Honour erred in finding that in light of the symptomatology and clinical signs that the Appellant was exhibiting following admission to hospital and the First Respondent's background knowledge of the Appellant that he was not negligent in failing to refer her to a specialist. 6. His Honour, in finding that the First Respondent was not negligent in failing to refer the Appellant to a specialist, failed to have regard to the undisputed evidence that: (a) the Appellant had experienced no prior abdominal pain during pregnancy; (b) certain of the classical symptoms of appendicitis are masked during the later stages of pregnancy as was known to the First Respondent; (c) the previous episodes of abdominal pain never necessitated repeated dosages of pethidine or any other form of intramuscular pain relief; (d) the repeated dosages of pethidine given to the Appellant following her admission were not successful in providing her with any relief from the severe symptoms and her condition rapidly deteriorated prior to induction. 7. His Honour erred in finding that the First Respondent had a management plan with respect to the Appellant and that it was appropriate. 8. His Honour ought to have found that the treatment of the Appellant by the First Respondent constituted a failure to exercise reasonable care and skill. 9. His Honour erred in finding that had the First Respondent called in specialist assistance at any time from the Appellant's admission on 28 April to the induction on | May 1986 the probabilities were that a conservative regime would have been followed and the consequences which befell the Appellant would have occurred in any event. 10. His Honour ought to have accepted the uncontradicted evidence of Drs Keiller and Giltrap that had a specialist been called in following admission and prior to induction a diagnosis of acute appendicitis would have been made. 11. His Honour in holding that the probabilities were that a conservative regime would have been followed by a specialist acted contrary to the expert evidence that upon the presence of a reasonable suspicion as to the Appellant suffering acute appendicitis a laparotomy would have been mandatory so as to reduce the risks of mortality and other severe complication occurring to both mother and infant. 12. His Honour erred in holding that Professor Tracy was of the view that between admission to the hospital and induction the condition of the appellant was one of appendiceal abscess. 13. His Honour ought to have accepted the overwhelming evidence of all the experts called that at the relevant time prior to induction the Appellant's condition was one of acute appendicitis preceding abscess formation. 14. His Honour erred in finding that had specialist assistance been called in prior to induction the appropriate procedure that would have been followed by a specialist was the conservative regime which the First Respondent had in fact put in place. 15. His Honour erred in failing to refer to and analyse the body of evidence (consisting of that of the Appellant, Sister Talbot and Dr Wilson and the opinions of Drs Keiller and Giltrap relating thereto) with respect to the clinical condition of the Appellant prior to the induction of her child on 1 May 1986 which evidence URJ WALTON-TAYLOR v WILSON (Priestley JA) 9 was critical to the principal issue in the case namely whether the Appellant ought to have been referred for specialist examination and treatment. 16. His Honour erred in failing to refer to and analyse the body of evidence (consisting of the Appellant, Sister Talbot and Dr Wilson and the opinions of Drs Keiller and Giltrap thereon) with respect to the clinical condition of the Appellant on 2 May 1986 AND thus His Honour did not properly conclude that any abscess formation commenced at sometime not earlier than 2 May 1986. 17. His Honour erred in failing to provide any or any sufficient reasons for rejecting the submission made by the Appellant that the evidence of Dr Wilson was unsatisfactory in certain relevant respects thereby adversely affecting his credit. 18. His Honour erred in failing to consider properly or at all to what extent there were any conflicts of a material kind between the evidence of the Appellant and Sister Talbot on the one hand and Dr Wilson on the other hand as to the true nature of the Appellant's observable clinical state AND in failing to resolve any such conflict by regard to the unsatisfactory aspects of Dr Wilson's evidence." Grounds 1, 7 and 8, in their different ways, raise the general question whether the judge should be held to have been wrong in not finding Dr Wilson negligent. Their consideration should therefore be postponed until the other grounds have been dealt with. Grounds 2, 5 and 6 go to the question whether the judge's finding that Dr Wilson was not negligent in not consulting a specialist on 29 April 1986 was one that he should not have reached on the materials before him. Grounds 9, 10, 11, 13 and 14 raise questions about the judge's second ground for decision, based on his view that abscess formation had already occurred at the time when it was said Dr Wilson should have been obtaining specialist advice. Ground 12 can be dealt with at the same time as these grounds, the gist of it being that Professor Tracy's evidence did not support the judge's view that there had been abscess formation at the time when the plaintiff claimed Dr Wilson should have consulted a specialist. Ground 4 raised the question whether the trial judge should not have relied on Professor Tracy's opinions, because, it was said, in forming his opinions he had not taken into account all the evidence in the case. Grounds 3, 15, 16, 17 and 18 all asserted that the trial judge had shown appellable error because he had not given sufficient reasons for various of his conclusions essential to his final decision of the case. The matters on which it was said he had not given sufficient reasons were: his preference for Professor Tracy over other experts; his conclusions as to the clinical state of the plaintiff at relevant times; his conclusion concerning abscess formation having taken place at 29 April; and his decision to accept Dr Wilson as a reliable witness despite what were said to be defects in his evidence and conflicts with other witnesses. Because the trial judge's decision depended on his acceptance of Professor Tracy, I have dealt with ground 4 first This has led to my covering under this ground a number of matters also relevant to other grounds. Ground 4 To understand what is involved in this ground it is necessary to trace in outline the course of the proceedings and the way in which Professor Tracy came to express the opinion the acceptance of which by Ireland J is challenged. 10 UNREPORTED JUDGMENTS The plaintiff's statement of claim was filed on 14 December 1987. The particulars of negligence alleged against the first defendant and the Hospital were that they: "(a) Failed to make any or any proper investigation of the Plaintiff's complaints and symptoms on/or following her admission to hospital (b) failed to suspect and/or conduct any or any proper or adequate investigation to determine whether the Plaintiff was suffering from appendicitis. (c) Failed to attach any significance to the onset of paralytic ilius or to act thereon. (d) Failed to arrange for a specialist surgeon and gynaecologist to review the Plaintiff when the Plaintiff's right sided abdominal pain persisted. (e) Mistook right sided abdominal pain for contractions. (f) Failed to apprehend the significance of right sided abdominal pain for several days prior to induction when they knew or ought to have known that the Plaintiff was not in labour. (g) Prescribed medication over a period of several days to suppress the Plaintiff's pain when they knew or ought to have known that the cause of the Plaintiffs pain had not been properly diagnosed or that any diagnosis may have been incorrect." These particulars appear to have been based on medical reports made by Mr FES Keiller, dated 19 May 1987, 2 June 1987, 25 June 1987 and 3 July 1987. Mr Keiller was a surgeon in the Australian Capital Territory who formed his opinions following an interview with the plaintiff on 15 May 1987 and a reading of the clinical notes of the plaintiffs three admissions to the Hospital from which he quoted extensively in the most detailed of his reports. The defendants obtained an opinion from Professor Tracy dated 19 September 1990. This later became an exhibit at the first instance hearing. In it Professor Tracy noted that the case against the first defendant seemed "to operate on the presumption that a competent doctor should have been able to diagnose her condition of appendicitis earlier, and that such diagnosis would have led to earlier treatment which would have been different from that given to her, thereby avoiding the need for subsequent operation of drainage of a pelvic abscess, followed by a later operation for removal of the inflamed appendix." (7/1461) Professor Tracy then went on to give reasons why he thought those presumptions "entirely unjustified". He considered the course followed by the first defendant and said that in his opinion it was appropriate. He concluded by saying he did "not think it would have been reasonable to have expected Dr Wilson to make a correct diagnosis of appendiceal abscess late in pregnancy'. He did not deal explicitly with particular of negligence (d), although I think it would be clear to any lawyer reading his report that from his stated opinions and reasons it inevitably followed that he did not think there had been the negligence alleged in particular (d). On 10 April 1991 an amended statement of claim was filed on the plaintiff's behalf. To the particulars of negligence given in the first statement of claim two more were added, namely that the defendants "(h) Failed to arrange for the appropriate specialist surgeon, namely an abdominal surgeon, to examine the Plaintiff after discovering that the Plaintiff had a severe abnormal puerperium. (i) Failed to refer the Plaintiff to an abdominal surgeon after diagnosing the Plaintiff was suffering from acute appendicitis." URJ WALTON-TAYLOR v WILSON (Priestley JA) 11 No further written opinion was obtained from Professor Tracy at any time before the hearing which began at Albury on 16 June 1992, or during the course of the hearing. On the day the hearing began, at Albury, a further amended statement of claim was handed to the court. This statement of claim made one change to the particulars of negligence. Particular (d) was changed from alleging failure to arrange for a specialist surgeon and gynaecologist to review the plaintiff to an allegation of failure to arrange for a specialist surgeon and/or gynaecologist to review the plaintiff. The hearing at Albury proceeded from Tuesday, 16 June 1992 through to the end of Friday, 19 June 1992. The plaintiff gave her evidence. Her husband and Dr Giltrap began theirs during the Albury hearing and completed it during the later hearing in Sydney. Dr Giltrap expressed the opinion that when, on the morning of 29 April 1986, there was a persistence of undiagnosed abdominal pain in the plaintiff and there were a number of possible diagnostic explanations, "the most appropriate action at that stage of pregnancy would be to ring up a consultant general surgeon or obstetrician for advice". This evidence went to particular of negligence (d). Although other particulars of negligence were never formally abandoned, particular (d) became the alleged negligent omission upon which the plaintiff substantially relied and was the only one argued in the appeal. Also called in Albury was Mrs Talbot, a nurse who had attended the plaintiff while in the Hospital. She gave evidence of her observations of the plaintiff, the treatment the plaintiff received, and explained and amplified some of the Hospital notes. When the adjourned hearing was resumed in Sydney it occupied eleven days between 7 December 1992 and 22 December 1992 and then a further three days from 23 August to 25 August 1993. There were no oral addresses. Extremely thorough written submissions were delivered to the judge by both sides. The cross-examination of Dr Giltrap focussed principally on the difficulty in diagnosing what was causing the plaintiff's abdominal pains from the time of her admission to the Hospital on 28 April 1986. Perhaps the best answers obtained by counsel for the defendants were the following: "Q. Over the period 29 April 1986 to 11 May 1986 I want you to assume the information contained in the hospital notes, I want you to assume that a reasonably competent medical specialist has been called in on 29 April 1986 or thereabouts and I put to you that given those assumptions it was open that that practitioner to [sic] make a diagnosis that would have meant that conservative treatment rather than surgical treatment was reasonably open to him in the management of this patient? A. The management would depend on the diagnosis that was made and I accept that diagnosis of abdominal pain in pregnancy is a very difficult diagnosis to make. If the diagnosis was thought that it could be appendicitis then surgical treatment would have been more appropriate." Q. I accept that, but where [sic] there other diagnoses open to a reasonably competent medical practitioner in that situation that would have left open to him conservative treatment? A. Yes, there may have been. It's very difficult to give an opinion without having had the benefit of seeing the patient at that stage. A diagnosis is made on collating all the facts, blood tests, temperature, pulse, clinical examination." 12 UNREPORTED JUDGMENTS The next witness was Mr Keiller. In cross-examination it was put to him that in his opinion the plaintiff would not, even with the benefit of hindsight, have had a suppurative appendix prior to the induction of the birth of the baby. He answered that he did not think so and that he would have thought it was still probably in the catarrhal phase at that stage. It was also put to him that it was within the bounds of management available to a reasonably competent medical practitioner to treat the lady conservatively, which, in the language in which the trial was conducted, meant in the manner in which the first defendant treated the plaintiff. Mr Keiller would not agree with that. Further, he was firm in his view that whether or not the plaintiff should have been treated conservatively was a specialist decision. Then the cross-examiner asked the following questions and obtained the following answers, subsequently much relied upon by the defendants: "Q. At this point in time on 29 April 1986 it would have been open to a reasonably competent medical specialist to diagnose a condition in this lady other than appendicitis, would it not, given the material that has been available to you? A. Yes, that is so, there are other possibilities. Q. And it would be undesirable, I would suggest, to operate on this lady prior to the birth of her baby, if at all possible, because of the risks of an operation being performed on her at that time? A. The risks at 29 April of leaving an inflamed appendix would have been much more dangerous, I think, to both mother and child than an operation at that time. Q. But that would depend upon a doctor being at that time of the opinion that she had the condition of appendicitis? A. Yes, that is so. Q. And it was certainly open to a reasonably competent medical specialist at that time for him to come to a view that she did not have appendicitis? A. That would be a possibility." Questions were also put to Mr Keiller seeking answers to the effect that the onset of appendicitis had not occurred until after the birth had been induced on 1 May, but he gave no answers supporting such a view. However, the cross-examiner succeeded in eliciting the following, subsequently relied on by the defendants: "Q. If a diagnosis over this period of time [that is prior to 1 May 1986] of appendicitis had not been made then the appropriate course of treatment would be to treat her conservatively? A. Initially yes, but with a very close watch to make sure there wasn't an emerging indication for surgery. Q. And I would suggest to you that over this period of time that all that can be said at the very highest is that a reasonably competent medical specialist had been called in, there was the possibility as opposed to the probability of a diagnosis of appendicitis being made? A. Are we referring to before delivery. Q. Yes? A. I think there would have been a strong possibility that diagnosis would have been made." The last answer is of importance in that Mr Keiller's attention had been drawn to the distinction between "the possibility as opposed to the probability of a diagnosis of appendicitis being made" before delivery. His answer that there would have been "a strong possibility", could be taken by the court to have been URJ WALTON-TAYLOR v WILSON (Priestley JA) 13 indicating he was not prepared to move from possibility, although strong, to probability, the latter being what, in lawyer's language at least, was needed to complete the plaintiff's case on this point. The trend of the questioning of Mr Keiller in cross-examination had been to suggest that the plaintiffs appendicitis had either not reached or passed the acute stage before 1 May, and had certainly not passed the acute stage until after that date. He resisted these various suggestions. In this part of the cross-examination the following occurred: "Q. And I would suggest to you [this was by reference to a pathology report] that not only does the absence of any reference to a perforation being present in this appendix would indicate that there was no perforation, but also the term sub-acute would support this assertion that there was no perforation in this appendix? A. Yes, in some ways to the contrary it supports the fact that there was no perforation, but the suggestion that the appendicular wall was perforated would suggest a slower process which might have been there for very much longer, indeed back to the 29." In re-examination, counsel for the plaintiff obtained further evidence from Mr Keiller about this: "Q. And as at, say, 2 May, given the clinical picture as we know it, both from the transcript of evidence and your reading of the notes? A. That at that stage she had stasis with a swollen abdomen, no wind pass, no bowel pass, that is something which is associated with abdominal sepsis quite frequently and I believe it was due to the appendix being inflamed at that stage and probably, earlier on, abscess formation." (2/312) After the completion of Mr Keiller's evidence, the plaintiff's case was closed. There had been, of course, the tender of much documentary material. The first witness for the defendants was the first defendant. His examination in chief, interrupted by lengthy legal argument, occupied 9, 10, 11 and part of 14 December. His cross-examination began on 14 December and continued on 16, 17, 18, 21 and 22 December and was completed on 23 August 1993, when he was re-examined. In his evidence in chief the first defendant gave the facts of his experience. He was then taken step by step through every detail of his attendances on and treatment of the plaintiff until after the operation of 13 May 1986, in which he took part. His evidence was given from his own recollection to the extent that he had independent recollection and then after being referred to all the contemporary records. From his evidence it appeared that, although he had recognised appendicitis as one of a number of theoretical possibilities for the plaintiff's condition from 28 April onwards, he had thought it sufficiently unlikely as not to be considered further. This was principally because of the combination of her previous history, the absence of a number of the usual symptoms of appendicitis and the view he had formed first that she was suffering from "gut infection" and, later, that it was bowel inflammation. He first provisionally diagnosed appendicitis when the plaintiff returned to the hospital on 12 May with abdominal pain. The picture presented in the examination in chief was of the first defendant's having acted on his provisional or working diagnosis of gut infection in deciding to induce the birth on | May, then of his having regularly attended the plaintiff following the birth and of gradual improvement by the plaintiff until she was discharged on 11 May; what the first defendant saw as her improvement fitted in 14 UNREPORTED JUDGMENTS with his later provisional diagnosis of bowel inflammation responding to treatment; then, with the onset of pain during the night before the plaintiff's return to hospital and the occurring of some of the previously absent symptoms of appendicitis, the first defendant provisionally diagnosed appendicitis on 12 May; following this, appropriate operative procedures were carried out on 13 May. The examination in chief of the first defendant had been long and thorough. The cross-examination was longer still and lavish in its examination of every detail conceivably relevant to the case. Also, on some aspects of the case, the first defendant's credibility was questioned. The first defendant's view concerning the fact of the plaintiff's appendicitis and his treatment of the plaintiff was taken up at the beginning of his cross-examination in the following questions and answers: "Q. Do you concede today that you made a mistake in relation to your treatment of Mrs Walton-Taylor during her first admission to the hospital in 1986? A. No. Q. Do you concede today that you missed the diagnosis of appendix before 12 May 1986? A. No, I don't think so. Q. Do you tell his Honour with the benefit of hindsight today that you did not miss a diagnosis of appendix prior to 12 May 1986? Q. What do you say, doctor? A. She may have had appendix earlier. Q. Today with the benefit of hindsight, do you have any misgivings about the treatment that you rendered to Mrs Walton-Taylor in 1986? A. No. Q. None at all? A. No. Q. Would you do the same thing again, would you? A. Given the circumstances, yes. Q. All over again? A. Yes, Id say so." The question of the first defendant's view of the plaintiff's condition at relevant times came up often in the cross-examination. A typical example is: "Q. May we take it that on Thursday 1 May 1986 throughout the time that Dr Pill [a visiting specialist] was in fact at the Corowa Hospital you were entirely confident in your own ability to manage Mrs Walton-Taylor's condition. A. I felt that once she was delivered that the condition would settle, yes. Q. Do you have any reservations now as to whether that confidence may have been justified or misplaced? A. No, I felt that the condition did settle, albeit a further exacerbation of the situation after she delivered. Q. May we take it that you are totally confident as at Thursday 8 May, during the period that Dr Kingsall was at the Corowa Hospital, you were entirely confident of your ability to manage her condition then? A. On 8 May? Q. Yes. A. Yes. URJ WALTON-TAYLOR v WILSON (Priestley JA) 15 Q. You don 't have any reservations about that today? A. No, she was settling down." One aspect of the first defendant's evidence upon which his credibility was challenged concerned his view that the plaintiffs condition had settled, although there had been a further exacerbation immediately after delivery, sufficiently to warrant her discharge on 10 May. He was closely questioned upon a proof of evidence he had prepared dated 15 January 1990 (Exhibit T, 6/1284). The questioning adopted the method of pointing out what the cross-examiner suggested were differences between the hospital records for the period from the birth until the discharge of the plaintiff and the account given by the first defendant in the proof of evidence. The first defendant dealt with these alleged inconsistencies in various ways. In my opinion, after considering this part of the cross-examination in light of the materials in the appeal papers, it was well open to the trial judge to accept the first defendant's answers. The trial judge did so. In a passage from his reasons earlier set out (p7 above) he said that both plaintiff and first defendant "were impressive and credible witnesses who did their utmost to give their evidence in a straightforward, frank and truthful manner'. My understanding of the issues as they stood when the first defendant's evidence came to an end is that the plaintiff was asserting: (1) that on 29 April she had been suffering from acute appendicitis; (2) that on 29 April the proper treatment for her condition was an immediate appendectomy; (3) that although it was not negligent of the first defendant not to have diagnosed acute appendicitis, he should have recognised that the possibility of acute appendicitis was sufficient, bearing in mind the dangers to women in late pregnancy of untreated appendicitis, to make it necessary for the first defendant to call in a specialist surgeon and/or gynaecologist; (4) that he was negligent in not doing so; (5) that had a specialist surgeon and for gynaecologist been called in, that specialist would have diagnosed acute appendix; (6) the appendix would have been removed; (7) birth would have followed later without induction; (8) abscess formation and all its consequences to the plaintiff would not have taken place. The defendants' position appears to have been: As to (1) (a) it had not been shown that the plaintiff was suffering from acute appendicitis before the induced birth; (b) alternatively, if she had, it had not been negligent for the first defendant to exclude appendicitis as a practical possibility and proceed on his own provisional diagnosis of "gut infection". (He did not alter this to bowel inflammation until after the birth, and since the only alleged negligence eventually relied on related to events up to the birth, it is not necessary to deal with the post birth period.) As to (2), that on the facts and symptoms as reasonably perceived by the first defendant prior to the induction of the birth, his treatment was proper for the plaintiff and did not call for immediate appendectomy. As to (3), that because of the response to (2) there was no need to call in the specialist surgeon and/or gynaecologist. As to (4), following from (3), there was no negligence. As to (5) and (6), it was known from Professor Tracy's report, long since in the hands of the plaintiff's legal advisers, that these consequences were disputed. 16 UNREPORTED JUDGMENTS As to (7) and (8), although I am not sure that this ever became completely explicit, it seems that the defendants' position was that if the plaintiff established her claim on issues (1) to (6), then (7) and (8) would not be disputed. This was the position concerning the issues when Professor Tracy was called to give oral evidence. I have earlier (p17 above), set out part of his written opinion of 1990 and indicated the line it took I now set out in full the reasons he gave why he thought the "presumptions" on which the plaintiff's case was apparently based were "completely unjustified": "1. The diagnosis of chronic appendicitis is notoriously difficult, and even in the biggest hospitals, perforated appendicitis is misdiagnosed on 20% of occasions. (cite reference). (Citation missing in original.) 2. This problem is compounded extraordinarily in late pregnancy as lower abdominal pain is exceedingly common, especially as the uterus enlarges to its maximum size. There are innumerable causes of lower abdominal pain including conditions affecting the tube and ovary, conditions affecting the urinary tract, conditions affecting the small bowel, large bowel and appendix, and conditions of neurospinal origin or affecting the parietal musculature, pelvic joints etc, etc 3. The difficulty increases even further in a patient such as the plaintiff who had been investigated for three years previously with recurrent right sided lower abdominal pain without any conclusive diagnosis despite ultrasounds, barium enema, oral cholecystogram, x-rays, colonoscopy and laparoscopy, which involves actual inspection of the pelvic organs. From all this two positive potential causes of right sided abdominal pain were discovered including a right ovarian cyst and endometriosis. As well as this she was also diagnosed as having a 'function bowel syndrome' which can cause pain and intermittent diarrhoea and constipation without any organic pathology detectable. All of these things were obviously weighing on Dr Wilson's mind when she was brought into hospital earlier than her expected date of confinement with a further episode of abdominal pain. Usually in any case of appendicitis one would expect some fever, and during the whole course of her hospital admission there was never a hint of a febrile reaction At this stage there was certainly no pressing indication for laparotomy, with all of its hazards to the foetus about to be born, and laparoscopy similarly could not be done at this stage with a full gravid uterus. Dr Wilson took the appropriate course to induce labour and achieve an expeditious delivery of the baby. The treatment then instituted of alimentary rest with intragastric suction and intravenous feeding would have been appropriate even if the diagnosis of appendicitis had been firmly made. Especially is this the case in the presence of appendiceal abscess - one of the complications of perforated appendicitis which may mask the clinical picture because of the surrounding adhesions which localise the abscess. She had no signs of general peritonitis, with her normal temperature and normal x-ray and the reason for conservative management of a suspected appendiceal abscess, even if it were suspected, is that an operation to attempt to remove the appendix in the presence of an appendiceal abscess is liable to cause spread of the infection and a general peritonitis. It is for this reason that the standard treatment of appendiceal abscess is simply to perform drainage of the abscess as was performed at her next admission, to be followed by appendectomy at a later date when the risk of general peritoneal contamination from an abscess has been removed. URJ WALTON-TAYLOR v WILSON (Priestley JA) 17 Further points about the conservative management with alimentary rest by continuous nasal suction and intravenous feeding is that it is appropriate treatment for a variety of potential causes of abdominal complications such as paralytic ileus or other undiagnosed causes of intraperitoneal inflammation, or possible adhesive small bowel obstruction. This treatment plan is beneficial to all of these conditions, and when normal bowel function becomes apparent by the return of bowel sounds and the passing of flatus, it is then usually safe to recommence oral feeding In summary therefore I do not think it would have been reasonable to have expected Dr Wilson to make a correct diagnosis of appendiceal abscess late in pregnancy. The diagnosis was made soon after delivery at an appropriate time, and the treatment given was appropriate even if there had been a positive diagnosis of a localised appendiceal abscess before the onset of labour. I do not believe there are any grounds for criticism of Dr Wilson's attention to this patient." When counsel for the defendants embarked on examining Professor Tracy in chief, counsel for the plaintiff objected, saying that he should not be allowed to add to his 1990 report; this had long ago been given to the plaintiffs legal advisers, it had never been added to and counsel had come to the hearing to deal with what was contained in that report and nothing else. Ireland J overruled the objection and permitted some examination in chief. Counsel for the defendants elicited from Professor Tracy what the materials were that he had based his 1990 opinion on. These included the proof of evidence made by the first defendant already referred to (Exhibit T) to which the first defendant had made some factual corrections in the course of his own evidence. Other matters of evidence not known to Professor Tracy at the time of his 1990 opinion were also put to him. He was then asked to reconsider his opinion in the light of these further matters. He answered that none of them would cause him to vary his report as he had given it (4/795). The following passage in Professor Tracy's evidence was significant in the decision in the case: "A. Your Honour, in my report on p3, the second and third paragraphs deal with a lot of the possible diagnoses which I have spelt out to try and emphasise what I saw as the difficulty facing the doctor. I mentioned conditions affecting the small bowel, which I presume is meant by the term 'gut infection', it is a vernacular term and is used when people have cramping abdominal pain and vomiting and that would be one of the possibilities. I refer to a large list of diagnostic possibilities in the paragraphs at the top of p3 of the report. HIGGS: Q. In relation to a lady presenting with the symptoms referred to in the hospital notes between 28 April until induction, are you able to express an opinion as to the range of diagnoses available to a reasonably competent medical specialist? A. Yes- OBJECTION. QUESTION WITHDRAWN. Q. When there are innumerable causes of the type you refer to in your report what, in your opinion, is the appropriate working diagnosis? OBJECTION. ALLOWED. A. Undiagnosed abdominal pain. Q. How common do you find that in the course of your practice? A. It's a very frequent diagnosis. OBJECTION. 18 UNREPORTED JUDGMENTS The diagnosis of the acute abdomen of people with acute and sudden abdominal pain is not a real diagnosis, it describes the clinical problem that someone may have a number of clinical causes. A sub-acute abdomen or undiagnosed abdominal pain is also used as a working diagnosis to plan a management strategy as the diagnosis reveals itself or is elucidated by subsequent progress or tests. Q. In relation to this lady, take into account the accounts of pain outlined in the nursing notes between the day of admission to the day of induction, also take into account the pathology results, the white blood cell count taken on 29 April 1986 as recorded in the notes, assuming they are a white blood cell count of 14,600 with no left shift, assume also the temperature and the pulse as recorded in the notes, given those assumptions what is the appropriate course of treatment to afford a lady presenting with those symptoms? OBJECTION. ALLOWED. A. My worry concerning this lady with pain would be to try and achieve a quick delivery of the baby because if she happened to have a serious condition that might make an operation necessary and the baby in uterus would be in hazard and, therefore, I would like to achieve the delivery of the baby as rapidly as possible. Q. Do you conceive any situation that would warrant, in a lady who is this far advanced in her pregnancy, surgery occurring immediately? OBJECTION. 'NOT ADDRESSED'. ALLOWED. QUESTION READ. A. Yes. Q. What would those situations be that would warrant that? A. If she had obvious signs of acute appendicitis, if she had a strangulated bowel obstruction, if she had general signs of peritonitis; all of these would require surgical intervention immediately, you would have to have a surgery notwithstanding the baby in her uterus. Q. What would be the hazards to a baby in uterus if an operation is carried out at that stage? OBJECTION. ALLOWED. A. The baby suffers the risk of death in utero because of the effect of the anaesthetic or any complications that might develop. Q. And the complications to the mother, if any - A. Yes. Q. - if surgery be needed, what are they? A. The usual complications of surgery and an anaesthetic induction in someone of a very large mass in the abdominal cavity which makes more difficult any type of surgical access to any other organ which might be pathological as well as in a pregnant abdomen. Q. Is there anything in these notes that indicates to you between this period surgical intervention was warranted? OBJECTION. ALLOWED. A. No. Q. In the event of this lady having an appendiceal abscess present after the delivery of her baby what, in your opinion, is the preferred course of treatment that should have been instituted? OBJECTION. Q. What is the preferred course of treatment different, if any, to the treatment you saw as having been administered, as described in the hospital notes? URJ WALTON-TAYLOR v WILSON (Priestley JA) 19 A. I thought her treatment was appropriate for the condition of appendiceal abscess had it been recognised." In cross-examination further details were obtained from Professor Tracy of an item in his curriculum vitae which was before the court of his function in relation to the Medical Defence Union. Professor Tracy said he was chairman of a committee called the Clinical Cases Committee which considered all the cases where action was being taken against doctors; the committee had senior specialists from the various States and examined the cases and gave opinions about whether the doctor had been culpable or not The cross-examiner sought to obtain material from Professor Tracy supporting the conclusion that the plaintiff had been suffering acute appendicitis prior to the induction of the birth of her baby. He referred to the observations made by Dr Giltrap when he operated on the plaintiff on 13 May 1986. He had found overwhelming intra-peritoneal infection, pus mixed with peritoneal fluid from ruptured abscess, a mass of matted small bowel surrounding the secum in the area of the right iliac fossa, an abscess in the midst of the mass of matted small bowel pockets of pus and the tip of the appendix which was very inflamed and infected. When the cross-examiner suggested to Professor Tracy that what Dr Giltrap had found was consistent with appendiceal abscess having formed quite some time before 13 May 1986, Professor Tracy agreed. He also agreed that the clinical picture as observed on 13 May 1986 was consistent with an abscess of some long standing. His reply was "I think of some long standing but I wouldn't like to say how long, I would believe longer than 48 hours and perhaps as long as two weeks" (4/807). The cross-examiner then took Professor Tracy through many details of what had happened in the course of the plaintiffs admissions to the Hospital, the general theme being that because appendicitis in late pregnancy was so potentially dangerous (which Professor Tracy acknowledged) and because it had been a possible cause of the plaintiff's abdominal pain (which Professor Tracy also acknowledged) and because there were more signs of it than the first defendant had recognised or admitted, the first defendant should have taken it into account as a real possibility in deciding what to do in regard to his patient. Professor Tracy maintained his view that, for the reasons he had previously given, because usual principal symptoms of appendicitis were not present in the plaintiff before the induction of the birth of her child and because the symptoms that could be ascertained had such a number of possible causes, the first defendant had acted properly in taking the course he did. This cross-examination was still proceeding when the court adjourned at the end of the sixteenth day of hearing on 23 August 1993. When the hearing continued on the following day, counsel for the defendants sought leave to ask further questions in chief of Professor Tracy in respect of two broad areas. The first was whether or not in Professor Tracy's opinion in the circumstances of the case it had been necessary for a general practitioner acting in a reasonable and competent manner to call in a specialist obstetrician and surgeon. Counsel said he wanted to make sure he covered that field about which Mr Keiller and Dr Giltrap had given specific evidence. As to the other area he said: "The second general area is this, there are eight matters that I have summarised from the plaintiff's evidence that might be said to paint a more severe clinical picture post-partum than that revealed in the clinical notes during the course of this first admission. 20 UNREPORTED JUDGMENTS I want to have leave to put those matters to the Professor and elicit from him as to whether or not based on those assumptions his opinion has changed at all such as instead of being on full diet, on a light diet - I put that to him yesterday - I want to put to him precisely her description of the pain which she complained of and described when she was discharged on the 11" and matters of that type. I understand my friend objects." (4/815) The objection by plaintiff's counsel was that he did not know what Professor Tracy was going to say about those matters and he was entitled to know in advance in writing so he could properly cross-examine about it. Ireland J took the view that the defendants were at fault in not having provided a further report from Professor Tracy upon the matters for which leave was being sought. However, he said he would grant the application. He recognised some delay and additional expense might follow; if it did, which he hoped would not be the case, it would be to the account of the defendants. The leave he granted was to put to Professor Tracy those aspects of the plaintiff's evidence concerning the symptoms experienced by her and which were ventilated in her evidence for the purpose of establishing whether or not that evidence qualified the report Professor Tracy had previously given. Further examination in chief of Professor Tracy then took place. Although in terms Ireland J had only granted leave in respect of the second general area referred to by the defendants' counsel it is apparent that the leave was intended to cover both areas, because both were covered in the further examination in chief. In answering questions dealing with the first general area, Professor Tracy was explicit in indicating that in his opinion it had not been necessary for a general practitioner, acting in a reasonable and competent manner to call in a specialist in the period from 28 April to the date of the induction of birth (see 4/822, 823). As to the second general area after taking into account all the additional material drawn to his attention by counsel for the defendants, he remained of the opinion he had expressed in his written opinion. In the further cross-examination of Professor Tracy, counsel for the plaintiff kept returning to one point strong in his client's favour: the fact that what Dr Giltrap had seen in the plaintiff's abdomen on 13 May 1986 provided powerful reason for thinking the stage of acute appendicitis must have been reached some significant time before that day. Professor Tracy recognised the significance of this fact. In one answer he said: "A. I was making the point that all of these systemic effects which were absent are surprising because I acknowledge that she did have an appendix abscess. I was making the point that that is a very unusual situation to have an appendix abscess and to have that coincidence of normal physical signs that I spoke of." (At4/833) A later passage in the cross-examination highlighted the point of division between the opposing parties and their expert opinions on one matter critical to the plaintiffs case: "Q. In the scenario that we are addressing now, namely the clinician has a reasonable suspicion that there is acute appendicitis consisting of inflamed appendix, in the way that you have described in more detail this morning, then it is imperative that there be no delay in dealing with that clinical situation? A. Yes. Q. For the reasons that you have just advanced? A. Yes. URJ WALTON-TAYLOR v WILSON (Priestley JA) 21 Q. The increase in the maternal and foetal mortality, the risk of it rather? A. Yes. Q. And just in that context I would like to suggest to you it would be entirely appropriate for any clinician to seek the view of a specialist consultant on the matter? A. Yes. Q. In order to determine what course is appropriate, for instance, a conservative approach or a more aggressive one by way of surgical intervention? A. Yes, the time when I would think it would be mandatory [my emphasis] that a specialist be called, if the attending doctor was not himself a surgeon, would be when he suspected that acute appendicitis might go on to a general peritonitis. Q. We are having a somewhat artificial debate with the benefit of hindsight, but allowing for that what we are looking at in theory is a situation where there are grounds for the clinician reasonably suspecting a diagnosis of acute appendicitis and because of the majority of these masons, because there are two lives at stake, it becomes mandatory that active consideration be given to how to deal with this problem, and I am suggesting to you that it is an entirely appropriate course for a specialist consultant to be brought in with a view to determining what course of action is appropriate there and then? A. I would agree with that only if the doctor had reasonable grounds for thinking the patient might have acute appendicitis. Q. It is premised with that? A. Yes. Q. We have no issue about that as a theoretical proposition? A. No." (At 4/839) There also occurred in the course of this further cross-examination a passage of particular relevance to the precise form in which ground 4 was formulated in the plaintiff's notice of appeal. Counsel for the plaintiff had been asking Professor Tracy whether he agreed from his knowledge of the facts of the case that Dr Wilson had placed "enormous" reliance upon the plaintiff's previous history in his exclusion from his diagnosis of her condition of acute appendicitis. The questions had caused an argument about their admissibility, and then the following occurred: "Q. Doctor, is there anything about the question that I asked you that has been rejected, that makes it difficult to answer? A. No. Q. You have studied these hospital notes? A. Yes. Q. I think you have been given at least a summary of Dr Wilson's evidence? A. Yes. Q. A chronology was sent to you last December by the solicitor? A. Yes. Q. And you have acquainted yourself so far as possible with the facts of this case? A. Yes. Q. You have had a copy of Dr Wilson's - I call them clinical cards, is that a satisfactory description? A. Yes. I beg your pardon, I do not know I have seen those but in any case I am satisfied I have seen Dr Wilson's account from that proof of evidence." (At 4/846) 22 UNREPORTED JUDGMENTS In the oral argument of the appeal, ground 4 in the notice of appeal was not taken any further than it had been in the plaintiff's written submissions. However, counsel for the plaintiff made it plain that the written submissions were relied on. It has therefore been necessary to deal with it. Further, if it had any substance it could have provided serious reason for questioning the reliability of a witness essential to the defendants' case. In order to understand the ground it has been necessary to go through the transcript of what happened at the trial. The written submissions of the plaintiff directed to the support of ground 4 were collected under the heading "Evaluation of Professor Tracy's evidence". They were as follows: "1. Prof Tracy stated that he is the Chairman of the Clinical Cases Committee which examines claims made against medical practitioners which are to be defended by the Medical Defence Union of the United Kingdom and that he is paid a fee for performing this service (AB 804R-805C). It is submitted that is a matter which impugns Prof Tracy's objectivity. 2. At AB 804P Prof Tracy conceded that he relied to a large extent on Dr Wilson's proof of evidence when providing his summary of material events set forth on pl and p2 of his report of 19 September 1990 (Exhibit 5) (AB 1460). 3. Neither in his written report nor in his oral evidence has Prof Tracy addressed with any precision or detail the testimony and documentary evidence pertaining to Dr Wilson's treatment of the appellant. Counsel for the respondents (after being given leave to amplify the written report) merely referred Professor Tracy to matters recorded in the nursing notes which were not made by Dr Wilson and as to which he had no specific recollection. 4. As already noted above there are a number of disparities between Dr Wilson's proof of evidence and a great deal of his oral evidence particularly, that given in cross-examination. To the extent that Prof Tracy relied merely upon the proof of evidence and what is written in the nursing notes (of which Dr Wilson was not the author) as a basis for expressing a number of opinions it is submitted that his views should be given very little weight indeed by reason of the paucity of their foundation. 5. There are a number of opinions offered by Prof Tracy which are not credible or which are inconsistent with other portions of his evidence. An example of this is his view that a general practitioner is in as good a position as a specialist to come to a diagnosis of appendicitis and a diagnosis as to the cause of severe abdominal pain. That view flies in the face of his detailed evidence about the nature and extent of the training that a specialist has to undergo (a minimum of 16 years between commencement of undergraduate training and final accreditation) and the proficiency which specialists develop in diagnosing and treating abnormal and complicated cases which are referred to them. 6. It must be borne in mind that Prof Tracy did not review any of the oral testimony at the trial in particular the evidence of the appellant and Sister Talbot as to the appellant's clinical condition AND the concessions made in cross-examination by Dr Wilson as to his ignorance as to the true nature of the cause of the appellant's condition and how his treatment of the appellant was haphazard and ill-directed. 7. Prof Tracy did not deal with the central issue in the case namely whether a specialist would have diagnosed the appellant's condition of acute appendicitis had Dr Wilson referred her. URJ WALTON-TAYLOR v WILSON (Priestley JA) 23 8. Furthermore, it is submitted that material portions of Prof Tracy's evidence lacked objectivity and were more analogous to the submissions of an advocate rather than that of an independent expert providing assistance to the Court." These were a slightly reorganised version of what had been put in written submissions to Ireland J on the same topic. I will deal with them by reference to the paragraph numbers in the written submissions. Paral. The first sentence of this paragraph is correct; but it mentions only a minute part of Professor Tracy's activities. In evidence were his experience, his qualifications and his positions during a period of forty years. They indicate a man experienced both in practice and in theory and with a cast of mind likely to be objective. These matters of course do not obviate the possibility of his having been partial in his evidence in this case. However, having read his report and the transcript of his oral evidence, I do not see any sign of partiality. In answering his cross-examiner on disputed matters of opinion, he gave what seemed to me to be reasonable answers, that is, answers based on reason rather than assertion. One opinion expressed by him, when stated baldly seems a little odd to me as a non expert. That is his opinion that a general practitioner and a specialist are on the same footing in ability to diagnose appendicitis. When questioned about this however his reasons for his opinion were coherent and somewhat persuasive. Primarily he was saying that appendicitis is frequency encountered by general practitioners, that there is no mystery about usual symptoms and it is widely known that there are circumstances in which its diagnosis may be very difficult. He did not assert that general practitioners were in as good a position in treating as distinct from diagnosing appendicitis. On the materials before Ireland J I think it was more than open to him to accept Professor Tracy as an eminent and honest expert witness. Para2 and para3. These criticisms are in my opinion of no weight. If there had been anything in them, they could have been important to the plaintiffs appeal and it would have been necessary to consider cases such as Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 in order to decide whether the facts upon which Professor Tracy based his opinion were sufficiently like those proved to make his opinion of value. It is because of this that I have looked fully at Professor Tracy's evidence and the events at the trial which preceded his oral evidence. In my opinion the material I have set out above shows that in adhering to the primary opinions expressed in his report, Professor Tracy took fully into account the primary evidentiary materials in their complete form at the end of the trial, and that this was accepted by the plaintiffs counsel at the trial. Para4. The second sentence of this paragraph says "To the extent that Professor Tracy relied merely upon..." certain things, then his opinion "should be given very little weight". However, the fact is that Professor Tracy did not merely rely upon the things referred to, for the reasons mentioned in dealing with para2 and para3. ParaS.1 do not agree with what is asserted in this paragraph. I have dealt in my reasons for disagreeing with paral with the particular example relied on in this paragraph. My reading of Professor Tracy's evidence leads me to the opposite opinion about the consistency of his evidence. Para6. Once again, the assertions in this ground are contradicted by what appears in the transcript as to what actually happened. In particular, the evidence obtained from Professor Tracy in chief after leave had been granted to counsel for 24 UNREPORTED JUDGMENTS the defendant to reopen his examination in chief shows that all matters that could have been relevant to the formation of Professor Tracy's opinion were taken into account by him. Para7. | think it is right that Professor Tracy did not deal in terms with the issue identified in this paragraph. However, it did not become a central issue in the case unless the plaintiff succeeded on some of the prior issues in respect of which Professor Tracy's opinions were against her. In any event, Professor Tracy's view that so far as diagnosis was concerned a specialist was in no better position than an experienced general practitioner necessarily carried with it the view that it was doubtful whether a specialist would have diagnosed acute appendicitis if consulted before the induction of the birth of the plaintiff's baby. Para8. 1 do not agree with what is said in this paragraph for the reasons indicated in dealing with earlier paragraphs. Grounds 2, 5 and 6. Much of what I have said in regard to ground 4 relates to these grounds also and I will not repeat it. Ground 6 restates in more particular form what is contained in grounds 2 and 5. The plaintiff's written submissions at the trial made the same point as is set out in ground 6. The defendant's written submissions in reply made the counterpoint that the plaintiff's submissions tended to refer to those signs which were consistent with appendicitis but to ignore the signs which tended to exclude appendicitis. Reference was made to evidence given by Professor Tracy in cross-examination about a statement in his report that the condition had been silent to which he had replied: "A. Particularly because pain and nausea and vomiting is so non-specific. I was particularly alluding to the fact that there was no fever nor leucocytosis nor tachycardia which would be expected with significant inflammation. That was really what I was embracing by the term clinically silent." (At 4/833) Professor Tracy's next answer was the one I have already set out at p38 above where he referred to the situation in the instant case as having been "very unusual". In their written submissions the defendants said that symptoms which were missing to make the situation "very unusual" were: no fever of the type that would be expected; no tachycardia; no leucocylesis; no rebound; no guarding; doubt as to whether or not the pain was localised; no left shift or toxicity; and abdominal x-rays which excluded ileus. This submission was well founded in the evidence. It summarised the basis of one aspect of Professor Tracy's opinion. There were arguments counter to it, but, Professor Tracy's approach made sense to the judge. Although to me also his approach seems reasonable, my opinion is not of particular relevance in a case of this kind where the real question is whether the trial judge had a sufficient basis for arriving at his conclusion. In my opinion he clearly did. It was open to him to accept Professor Tracy's opinions. Also, although more care needs to be used by appellate courts in complying with the rules laid down by Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v National Railways Commission (1993) 177 CLR 472 when considering acceptance by a trial judge of the evidence of an expert than a lay witness, those rules are nevertheless usually applicable: Ahmedi v Ahmedi (1991) 23 NSWLR 288 and GIO of NSW v Luong (CA, 2 April 1992, unreported). The result is that when at a trial experts have expressed opposed but tenable opinions on the same facts, the acceptance URJ WALTON-TAYLOR v WILSON (Priestley JA) 25 of one of them by the trial judge to the exclusion of the other will usually be set aside only if it is clear that the judge has palpably misused the advantage of being able to take first hand impressions of the witnesses and their reliability into account in considering the acceptability of the opinions expressed. I do not think that it has been shown for the plaintiff in the appeal that Ireland J was led into error by palpable misuse of his advantage of the kind spoken of in Abalos and Devries. Subject to the grounds asserting the trial judge did not give sufficient reasons for essential conclusions, the opinion I have come to in regard to grounds 2, 5 and 6 is probably sufficient to dispose of the appeal. Once the plaintiff fails on these grounds Ireland J's first ground of decision stands untouched and there is probably, in logic, no reason to consider grounds 9, 10, 11, 13 and 14 which go to his second ground of decision. However, I think it appropriate for me to say something about those grounds. Grounds 9, 10, 11, 13 and 14. The plaintiff's submission that the judge was in error in holding that Professor Tracy was of the view that the condition of appendiceal abscess had been reached before the induction of the birth of the plaintiff's baby has some merit. What Ireland J actually said (in the paragraph commencing "On an analysis of the medical evidence..." set out on p8 above) is either a misstatement or overstatement of the position. The fact is that there were statements in the evidence of Mr Keiller, Dr Giltrap and Professor Tracy, some of which I have included earlier in these reasons, which suggested that the abscess stage might well have been reached prior to the induction, but nothing so clearly or directly said by Professor Tracy as to justify his Honour's observation. When made, none of the relevant statements was directed to the precise question which his Honour later came to consider, namely, whether the appendix had reached such a stage at 29 April 1986 that it would have been dangerous to remove it. Rather, the witnesses were dealing with the question whether the stage of acute appendicitis had then been reached. (This was the first issue of those listed at p27 above.) Notwithstanding this, there seemed to be unanimity among the experts that once the stage of abscess formation had been reached in late pregnancy surgical intervention should not be attempted. In the written submission for the defendants the parts of the evidence suggesting the abscess stage might have been reached prior to induction were collected, and used against the plaintiff's claims concerning issues (5) and (6) listed above (on p27). On one view, if the judge found that the appendix had passed from the stage of being acute to a further stage where infection was present in the peritoneum, he would have had to apply that finding to the undisputed view of the danger of surgical intervention at that stage and the plaintiff would lose on issues (5) and (6). On another view if the judge did not find positively that the stage of infection in the peritoneum had been reached, he could have used the relevant evidence to conclude that if a specialist had been brought in, that specialist would have been doubtful of the position to the extent that the conservative rather than the operative choice would have been made. On the submissions put to the trial judge he could have considered whether the evidence relied on by the defendants justified either of the two possible views just mentioned. However, he did not approach the matter that way, but on the footing that Professor Tracy's evidence on the point was stronger than (as far as I can see) it was. This means that the reasoning supporting Ireland J's second basis of 26 UNREPORTED JUDGMENTS decision cannot be supported. It does not follow that the conclusion itself is wrong. It raises two questions. The first is whether the evidence relied on should be accepted as supporting the factual finding. The second is, if the answer to the first is no, whether the judge's first basis of decision is thrown into doubt. The first of these two questions is in my opinion difficult. I am inclined to think that it would be right to reach the conclusion that the whole of the evidence made it doubtful rather than probable that a specialist would have been sufficiently confident that the infective stage had not been reached to proceed to the operation. However, as the second question seems to me to be more readily answerable, and in a way in favour of the defendants, I refrain from expressing a final view on this first one. As to the second question, my assessment is that the judge's first basis of decision was not affected by the error he made in regard to the other. The prior conclusion was one he was entitled to reach based on Professor Tracy's opinions on the facts of the case and had no logical connection with the second conclusion, which resolved quite a different issue. The error affecting the second conclusion (which did not necessarily mean the conclusion itself was wrong) does not in my view supply any ground for attacking the first one. This leaves grounds 3, 15, 16, 17 and 18 to be dealt with. Grounds 3, 15, 16, 17 and 18. I set out on p15 above the particular matters on which it is said the trial judge has not given sufficient reasons. Bearing in mind what was said by the court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and the succession of cases which have expounded it, I do not think I can do more in the present case than say that having considered what his Honour said in regard to each of the specified matters, it seems quite clear to me that he sufficiently discussed those matters and sufficiently explained his reasons to enable any interested party, and perhaps more particularly an appellate court, to understand with reasonable certainty why he came to the conclusions that he did. I do not think there is any substance in any of these grounds. General A feature of the oral submissions for the plaintiff in this court was the emphasis laid upon what counsel submitted was the unexpected turn in the case caused by the defendants' change of position concerning the condition of the plaintiff on 29 April 1986. To restate the complaint a little more fully, it was said that throughout the trial before Ireland J no concession was made that the plaintiff was suffering from acute appendicitis prior to the induction. Then, after the conclusion of the evidence, and later, in the defendant's written submissions, it was said that there never had been any issue but that the plaintiff was suffering from acute appendicitis at that stage, and enlarging upon this, the defendants proceeded to submit that not only had the acute stage been reached prior to induction but the abscess formation stage as well, which provided them with the argument against the causal connection which Ireland J accepted. It was submitted in venous ways that this was a manoeuvre on the part of the defendants which put the plaintiff at a disadvantage. A somewhat similar point was indeed made by the plaintiff in written submissions to Ireland J. However, the point although similar was significantly different. In the written submissions for the plaintiff headed "Response to defendants' further submissions", para4 was as follows: URJ WALTON-TAYLOR v WILSON (Stein JA) 27 "4. Concessions by the defendants. 4.1 The defendants submit that the plaintiff's submissions deal with a number of matters which are not in issue. The plaintiff acknowledges that the defendant made certain concessions at the conclusion of the evidence (August, 1993). However, the expert material served on the plaintiff's solicitors (which was relied upon until the resumption of the hearing in August) together with the cross-examination of the plaintiff; Drs Giltrap and Keiller showed that those matters referred to remained in issue until the conclusion of evidence. 4.2 The defendants' case has swung the full pendulum from the situation where it was strenuously contested that the plaintiff was suffering appendicitis during her first admission until the current position where it is asserted that her appendicitis was so far advanced by 29 April, 1986 that it was too late for an appendectomy to be performed." Handley JA I agree with Priestley J. Stein JA I have had the benefit of reading, in draft, the judgment of Priestley JA. I agree with his Honour's reasons and the orders he proposes. I would not like it thought that my short agreement means that I have not thoroughly considered the case. To the contrary. The appellant suffered an extremely painful and distressing experience. That is, however, not material to an appeal such as this. Central to the case of the appellant on the appeal was the trial judge's preference for and reliance upon the opinion of Professor Tracy over those of the experts called in the appellant's case. Like Priestley JA, and conformably with Abalos v Australian Postal Commission,! Devries v Australian National Railways Commission? and, in particular, Anmedi v Ahmedi,? the acceptance of Professor Tracy by Ireland J should not be set aside. It cannot be concluded that Ireland J palpably misused his advantage. Appeal dismissed with costs. Counsel for the appellant: C C Branson QC/D R Conti Solicitors for the appellant: Tietyens, Albury Counsel for the respondent: P R Garling QC/M S J Lonergan Solicitors for the respondent: Tress Cocks & Maddox 1. (1990) 171 CLR 167 2. (1993) 177 CLR 472 3. (1991) 23 NSWLR 288