New South Wales Court of Appeal CITATION: PANAGIOTOPOULOS v RAJENDRAM [2007] NSWCA 265 HEARING DATE(S): 26 June 2007 JUDGMENT DATE: 28 September 2007 JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Basten JA at 3 DECISION: Appeal dismissed with costs. EVIDENCE – expert evidence – differences of opinion accentuated by litigation process – resolution a matter of evaluative judgment EVIDENCE – whether expert evidence relevant to foreseeability of risk of psychiatric injury – where defendant a medical practitioner CATCHWORDS: TORTS – medical negligence – duty of care of medical practitioner to husband of patient – loss of chance due to delay in diagnosis – psychiatric injury to husband due to pain and suffering of wife arising from late diagnosis TORTS – medical negligence – reasonable foreseeability of psychiatric injury – admissibility of expert evidence to establish reasonable foreseeability of psychiatric injury – expert evidence of loss of chance – expert evidence of psychiatric injury – where expert psychiatric evidence based on false or misleading information provided by patient – whether error in trial judge's rejection of expert evidence Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 CASES CITED: Naxakis v Western General Hospital (1999) 197 CLR 269 O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 Rufo v Hosking (2004) 61 NSWLR 678 Skulander v Willoughby City Council [2007] NSWCA 116 State of New South Wales v Burton</i>] [2006] NSWCA 12; (2006) Aust Torts Rep 81-826; 3 DDCR 398 Tame v New South Wales (2002) 211 CLR 317 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 PARTIES: Periklis Panagiotopoulos – Appellant Dr N. Rajendram – Respondent FILE NUMBER(S): CA 40683/06 COUNSEL: N. Connolly, Solicitor on the Record - Appellant M. Kearney - Respondent SOLICITORS: Niall Connolly Lawyers – Appellant Blake Dawson Waldron Lawyers - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3158/03 LOWER COURT JUDICIAL OFFICER: Rein DCJ LOWER COURT DATE OF DECISION: 28 September 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40683/06 DC 3158/03 TOBIAS JA McCOLL JA BASTEN JA 28 September 2007 Periklis PANAGIOTOPOULOS v Dr N. RAJENDRAM Headnote In April 1996, the wife of the Appellant, Mrs Panagiotopoulos, had a consultation with the Respondent, Dr Rajendram. The Respondent was made aware of blood tests that another practitioner had recently ordered for Mrs Panagiotopoulos, which indicated abnormalities. The Respondent advised Mrs Panagiotopoulos that she could continue with a planned trip to Greece but should have further blood tests upon her return in two months. In June 1996, Mrs Panagiotopoulos had a further consultation with the Respondent. She complained of vaginal discomfort and pain on sitting. The Respondent referred her to a general surgeon, Dr Carmalt, but did not order further blood tests and failed to advise the surgeon of the earlier blood test results. Mrs Panagiotopoulos was ultimately diagnosed with colorectal cancer in October 1996, for which she received surgery and thereafter extensive treatment until her death in March 1999. The Appellant commenced proceedings in the District Court, claiming a psychiatric injury arising from the alleged negligent treatment of his wife by the Respondent. His claim was dismissed on 28 September 2006. It is from that judgment that the present appeal is brought. The Court held, dismissing the appeal: (per Basten JA, Tobias and McColl JJA agreeing) 1. The nature of the duty of care owed by a general practitioner to his or her patient's spouse should not be articulated at too high a level of abstraction, but must be understood with reference to the particular breach identified and the consequences which are said to have flowed from the breach: [12]-[13]. Tame v New South Wales (2002) 211 CLR 317; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; Skulander v Willoughby City Council [2007] NSWCA 116 considered. 2. Absent knowledge of particular susceptibility, reasonable foreseeability of psychiatric injury should be assessed by reference to the foresight of a reasonable person in the position of the defendant of the injury, rejecting fanciful or far-fetched possibilities: [15]. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Tame v New South Wales (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 applied. O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 referred to. 3. The difference in the opinions of experts may become artificially accentuated by the process of litigation. There was no error on the part of the trial judge in preferring the expert evidence adduced for the Respondent to that adduced for the Appellant: [48]-[49]. 4. Expert evidence is generally not admissible to establish foreseeability of risk of psychiatric injury, but could be relevant in the case of a medical practitioner defendant: [56]. No causal link was established between possible negligence in treatment of the Appellant's wife and harm to the Appellant: [58]-[59]. Tame v New South Wales (2002) 211 CLR 317 at [115] and [198] considered. 5. The trial judge was entitled to reject the expert evidence called by the Appellant and to find that the Appellant did not suffer from a psychiatric injury, based on rejection of factual premises: [69]. Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 applied. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40683/06 DC 3158/03 TOBIAS JA McCOLL JA BASTEN JA 28 September 2007 Periklis PANAGIOTOPOULOS v Dr N. RAJENDRAM Judgment 1 TOBIAS JA: I agree with Basten JA. 2 McCOLL JA: I agree with Basten JA. 3 BASTEN JA: In April and May 1996, Mrs Angela Panagiotopoulos and her husband (the present Appellant) went to Greece for approximately six weeks. Shortly prior to her departure, she had consulted a general practitioner, Dr Lewis, in relation to a pain in the left side of her chest and because she had had two menstrual cycles that month. Dr Lewis ordered blood tests, two of which were abnormal. He recommended further investigation. On the same day, 11 April 1996, both she and her husband went to see Dr Rajendram (the Respondent). Mrs Panagiotopoulos told Dr Rajendram about the blood tests, although she claimed she did not have the results. He obtained the results and noted the two abnormalities. He advised her that she could travel to Greece, but should have further blood tests on her return in about two months. 4 On 11 June 1996, after her return from Greece, Mrs Panagiotopoulos had a further consultation with Dr Rajendram. She complained of vaginal discomfort and pain on sitting. The pain prevented rectal examination, as a result of which Dr Rajendram referred Mrs Panagiotopoulos to a general surgeon, Dr Carmalt, at Canterbury Hospital. The Respondent did not order further blood tests and failed to advise the surgeon of the earlier test results. 5 Mrs Panagiotopoulos was ultimately diagnosed as suffering from cancer, with a primary colorectal tumour. The diagnosis was made in early October 1996 and surgery was undertaken on 23 October 1996. Thereafter, she had extensive treatment, until her death on 22 March 1999. 6 The proceedings were commenced in the District Court by the Appellant, asserting a psychiatric injury on his part, flowing from alleged negligent treatment of his wife by Dr Rajendram. His claim was dismissed, the present appeal being brought from that judgment, delivered by Rein DCJ on 28 September 2006. Issues 7 It is convenient to quote the summary which his Honour gave of his conclusions at [102]: "(1) Dr Rajendram did not breach any duty of care owed to Mrs Panagiotopoulos (or the plaintiff) on 11 April 1996. (2) Dr Rajendram did breach his duty of care to Mrs Panagiotopoulos on 11 June 1996 by failing to forward the LFT [liver function test] results to Dr Carmalt and by failing to arrange another LFT for Mrs Panagiotopoulos. (3) The cancer as found in October 1996 was of the worst grade (D2) with widespread metastases in other organs and tissue, had spread through the blood and lymph glands with a possibility of transcoelomic [through the body cavity] spread as well. The size and extent of the cancer at various sites and the fact that it involved multiple sites beyond the primary site (ie the colon), coupled with the mildly elevated SAP levels in April 1996 and the likely rate of growth of the cancerous cells to produce cancer as widespread and of the size found (particularly in the uterus) leads me to conclude … that had the carcinoma of the colon and the metastases of liver been detected in April or early May, Mrs Panagiotopoulos would then have had no realistic prospect of cure. A fortiori the same is true had the carcinoma of the colon and metastases of the liver been diagnosed in June or early July 1996. (4) The causative connection between Dr Rajendram's failure in June to forward the April LFT results (and further results had they been obtained) to Dr Carmalt on the one hand, and the failure to detect cancer of the sigmoid rectum on the other, is not established on the balance of probabilities. (5) I am not satisfied that the plaintiff suffers from any recognisable psychiatric injury or illness at all or as a result of his wife's death and/or the circumstances surrounding her death, including the medical treatment afforded to her." 8 Although these were the primary findings made by the trial judge, in the course of his detailed, careful and comprehensive reasons, his Honour made numerous factual findings which were challenged on the appeal, and which will be addressed below. However, it is convenient to note two further matters of primary significance at this stage. The first is that, on the basis that there were breaches of duty on the part of the Respondent in respect of the treatment of Mrs Panagiotopoulos on 11 June 1996, their most serious effect would have been to delay diagnosis of the carcinoma for three months. The operation undertaken in October 1996 appears to have had palliative effects in that it resolved the rectal bleeding and perianal pain. Those effects might have been achieved in July if the carcinoma had been detected in June. 9 The second matter is that the Appellant accepted at trial that the evidence did not permit a finding that, absent the putative breaches of duty, Mrs Panagiotopoulos would have lived longer than she did. At best, she lost a chance of an extended period of life, although there was no evidence as to the period she might possibly (not probably) have survived, nor her condition during that period. 10 It may be appreciated that establishing negligence on the part of the Respondent in his treatment of Mrs Panagiotopoulos was but one element in the case which the Appellant needed to build in order to succeed. He also needed to establish the consequences of any breach for his wife's condition, his own response to those consequences, that he had suffered from a psychiatric condition, and that a cause of that condition was the treatment of his wife resulting from the negligence. In substance, apart from two respects in which his Honour found lack of reasonable care on the part of the Respondent, the Appellant failed at each of the critical steps in his case. For the reasons given below, no error has been identified in his Honour's reasoning and the appeal must be dismissed. Legal principles 11 Submissions in the course of the appeal focused squarely on the factual issues raised by the evidence. It is necessary, nevertheless, to identify the essential legal elements of the claim as presented by the Appellant. 12 The first step was to identify the nature of the duty owed by the Respondent, as a general practitioner, to his patient's husband. In a broad sense, the existence of a duty of care in such circumstances may readily be assumed. However, to reach such a conclusion at a high level of generality is unhelpful. As noted by Gummow and Hayne JJ in Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at [56] "the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined": see discussion in Skulander v Willoughby City Council [2007] NSWCA 116 at [87]-[90]. Hayne J further explained in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [105], in a passage which his Honour repeated in Tame v New South Wales (2002) 211 CLR 317 at [276], asking, as to the facts in a particular case, "whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend". That is not to say that questions of breach and of causation may not require separate consideration, or indeed be determinative in a particular case, but rather that each must be addressed in its specific factual context and the interrelationship recognised: see Tame v New South Wales (2002) 211 CLR 317 at [90] (McHugh J) referring to John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241-2 (Brennan J). 13 This is a matter of importance in the present case. A failure to diagnose a temporary ailment of no great severity may cause distress, but could not reasonably have been foreseen as likely to cause psychiatric injury in a close relative of the patient. On the other hand, a different conclusion might well be reached in relation to a failure to diagnose a curable, but life-threatening disease, which, as a result of the failure, proved fatal. However, even the phrase 'failure to diagnose' may involve inadequate precision. In many instances, particular symptoms may indicate a range of possible ailments of varying severity. The purpose of differential diagnosis is to isolate and address the various possibilities. The failure to take a particular investigative step, which might confirm or exclude a particular possibility, must necessarily be addressed in the context of the particular symptoms and the likelihood of a particular diagnosis being correct. Not only should attention be paid to the particular breach identified by the plaintiff, but also to the consequences which are said to have flowed from the breach. 14 This is a matter of particular importance where the consequence is said to be a psychiatric illness. Although, as noted by Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394, it is widely known that "severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness", whether such illness is foreseeable in particular circumstances may depend upon the true level of severity of the distress which can be anticipated. For many, perhaps most people, death of a close and loved relative or partner may cause severe emotional distress: however, it is not common experience that such distress will progress to a psychiatric illness. Were it otherwise, one would either expect much of the population to suffer psychiatric illness or one would doubt the definition of such an illness. There are other difficulties which arise in relation to foresight of psychiatric illness: see, eg, Tame v New South Wales, 211 CLR 317 at [198]-[203] (Gummow and Kirby JJ). 15 As noted by Spigelman CJ in O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 at [17], the characteristics of the hypothetical victim have been variously described, but there is a broadly accepted test that, absent knowledge of a particular susceptibility, foreseeability may be judged according to the person of normal, reasonable or ordinary fortitude. Nevertheless, the test is that of reasonable foreseeability, rejecting fanciful or far-fetched possibilities: see Tame v New South Wales, 211 CLR 317 at [16] (Gleeson CJ); [59] (Gaudron J); [199]-[201] (Gummow and Kirby JJ); see also Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [10-[12] (Gleeson CJ), [52] (McHugh J), [89]-[93] (Gummow and Kirby JJ); [100]-[103] (Hayne J) and [118]-[120] (Callinan J). There is also the need to identify the nature of the foresight of psychiatric injury expected of a person, who in the case of this defendant, was a medical practitioner. The question of reasonable foreseeability "involves an assessment respecting the foresight of a reasonable person in the defendant's position": Tame v New South Wales, 211 CLR 317 at [234] (Gummow and Kirby JJ). Although, as their Honours further noted, expert evidence as to what might reasonably be foreseen in such circumstances is not decisive, it may nevertheless be of assistance in a case such as this. Assessment of treatment of Appellant's wife 16 Doctor Rajendram gave evidence that, in April 1996, and subject to the abnormal blood test results obtained on 11 April, he considered Mrs Panagiotopoulos a healthy woman. That was consistent with the evidence of the Appellant. At that time, Mrs Panagiotopoulos appears to have used the services of two doctors, namely Dr Rajendram and Dr Lewis. Doctor Lewis spoke Greek, being Mrs Panagiotopoulos' native language. 17 In October 1995, Mrs Panagiotopoulos apparently had a liver function test (sometimes abbreviated as "LFT") which showed a normal serum alkaline phosphatase ("SAP"). Why she had that test is not known. Nor did Dr Rajendram know of the test or the result. 18 On 2 April 1996 she consulted Dr Lewis complaining of chest pain in her left side and having had two menstrual cycles during the previous month. Dr Lewis ordered blood tests because of the history of irregular bleeding. The results of those tests were available on 11 April 1996, when Mrs Panagiotopoulos had a further consultation with Dr Lewis. The results showed an SAP which was above the normal range and an iron reading and saturation which were well below the normal range. Dr Lewis directed her to have a liver/spleen ultrasound because of the abnormally high alkaline phosphatase reading. In a statement admitted in evidence, Dr Lewis stated: "I am very confident that I told her that the ultrasound should be done before she went to Greece and I would have explained to her why I was ordering that test. I did not consider the ultrasound to be urgent, but I did want her to have this before she went to Greece." 19 On the same day, 11 April 1996, Mrs Panagiotopoulos went with her husband to see Dr Rajendram. Doctor Lewis said that her husband did not accompany Mrs Panagiotopoulos to see him and the Appellant's evidence was that he did not know of his wife's visit to Dr Lewis or of the blood tests, prior to the consultation with Dr Rajendram. Further, although the Appellant's wife told Dr Rajendram about the blood tests, she said that she did not have the results and therefore did not reveal Dr Lewis' advice in respect of the ultrasound. 20 Dr Rajendram was pressed in cross-examination with the proposition that, to his knowledge, the Appellant's wife was seeking a second opinion, yet he did not attempt to contact Dr Lewis to discuss the results or find out why he had ordered them. However, like Dr Lewis, he noted the abnormal result and determined that there should be further investigation. Like Dr Lewis, he did not think that the matter was particularly urgent. Unlike Dr Lewis, he recommended a further blood test and unlike Dr Lewis, he was content to have the further testing done on return from Greece. He did not know of the earlier October result, although Dr Lewis did. 21 Three particulars of negligence were identified by the trial judge as relied upon by the plaintiff in relation to the consultation on 11 April, at [26]: "(1) Dr Rajendram did not recognise that the abnormal blood tests of 2 April 1996 that he reviewed on 11 April 'could indicate a serious condition'; (2) he did not ensure that further investigation be done before Mrs Panagiotopoulos (and the plaintiff) travelled to Greece at the end of April; (3) he failed to contact Dr Lewis on 11 April to discuss the LFT results". 22 The trial judge rejected the factual assertion underlying the first particular and rejected the matters raised in (2) and (3) as not having been required in the exercise of the Respondent's duty of care to the Appellant's wife. These findings are not challenged on appeal. Accordingly there was no breach of duty on 11 April 1996. 23 The second event relied upon by the Appellant was his wife's consultation with Dr Rajendram upon return from Greece, on 11 June 1996. The complaint had two particulars identified at [26] in the following terms: "(4) he did not repeat the blood tests on 11 June as he had planned to do; (5) he failed to advise Dr Carmalt [to whom he referred her] of the abnormal tests results at the time of referral." 24 The trial judge found these two particulars were made out, in part because Dr Rajendram fairly accepted in cross-examination the proposition that he ought to have taken each of these steps. 25 Accepting that Dr Rajendram should have taken the two steps identified, the Appellant yet had a number of obstacles to overcome in order to establish that these failures gave rise to a cause of action for psychiatric illness, suffered by him. First, there was the conduct of his wife. When Dr Lewis recommended she have an ultrasound before going to Greece, to check the state of her spleen and liver, her response was to ignore the referral, not tell her husband of the recommendation and not return to Dr Lewis. It may be inferred that she also knew that Dr Rajendram had wanted her on 11 April to have further blood tests in two months' time, but did not raise the matter with him. Secondly, there was the Appellant's conduct. On 10 August 2006, more than a decade after the consultation on 11 April, the Appellant was able to recount the following advice given by Dr Rajendram at the consultation (Tcpt, p 54): "He say, 'Something wrong with your wife's blood.' And I remember I ask him is any serious or anything to have to go to do another test or whatever, because we're flying to Greece, and the answer was no. He said, 'Don't worry about it. You're going to Greece. Have a good time, and see me when you come back and we'll do another test'." 26 He also attended the consultation with his wife on 11 June 1996, when she was in significant pain. According to Dr Rajendram, she presented on that occasion "in a very dramatic fashion", complaining of vaginal pain and "pain on sitting": Tcpt, 16/08/06, p 377. 27 Doctor Rajendram failed to undertake further blood tests because he said that he had started a new patient card for Mrs Panagiotopoulos and failed to note the reference on the previous card and because concern about her blood reading had been overwhelmed by the vaginal and perianal pain of which she complained. The Appellant gave the following evidence in chief (Tcpt, 10/08/06, p 55): "Q. Did he do any more blood tests? A. Nobody told me anything. Nobody asked me – I was not a doctor, not even my wife was not a doctor, and we both healthy people and wait for the doctor to give us the good advice." 28 This answer appeared to anticipate what might have been a criticism that he, knowing that Dr Rajendram had proposed on 11 April to order further blood tests yet did not do so when they returned to see him on 11 June, said nothing. No such criticism was expressly put. 29 Thirdly, the complaint of negligence in treatment on 11 June must take into account the fact that Dr Rajendram was unable to conduct a physical examination of Mrs Panagiotopoulos on that occasion because of the sensitivity of the anal area and referred her to Dr Carmalt for colonoscopy under anaesthetic. After obtaining a description of her presentation on 11 June, counsel for the plaintiff cross-examined Dr Rajendram in the following terms (Tcpt, 16/08/06, p 378): "Q. You did not know what the problem was, did you? A. No, I knew that there was something – after my examination I determined that she had a problem in the anus or rectum, and that's when I decided that she ought to be seen by a specialist. Q. And you realised that it could have been colon cancer? A. At that point I wasn't thinking of colon cancer, I was thinking of the more common everyday presentations of patients with anal pain. … Q. In order to find the source of the problem do you agree with me that [Dr Carmalt] ought to have been provided with a full and accurate history from you? A. Provision of the blood test results was an oversight on my part, because at that point I didn't have the idea of – I didn't entertain the idea of Mrs Panagiotopoulos having a colorectal cancer." 30 Relevant to this question was whether Mrs Panagiotopoulos presented with a history of rectal bleeding on 11 June. Dr Rajendram's evidence in chief was that she did not (Tcpt, 16/08/06, p 346) and he was not pressed on that in cross-examination. Despite the evidence of the plaintiff that the contrary suggestion was "completely false" (Tcpt, 11/08/06, pp 195-196) the trial judge accepted that there was no complaint of rectal bleeding to Dr Rajendram on that occasion. That finding is not challenged. 31 The next difficulty facing the Appellant was the absence of any clear consequence, adverse to him or his wife, flowing from the failure to order further blood tests and provide the known blood test results of April 1996 to Dr Carmalt. Doctor Carmalt was given a history of rectal bleeding by the plaintiff, apparently for a period of "six months", although the outer limit of the period would have been six weeks: Judgment at [20]. 32 On 19 June, Dr Carmalt reported to Dr Rajendram by letter in the following terms: "Many thanks for asking me to see Angela who gives a six month history of anal pain which has become much worse recently. This is associated with occasional blood. According to her husband she had problems following her last pregnancy with what appears to have been either a thrombosed external pile or perhaps prolapsing internal haemorrhoids. Her bowels are regular although she does have problems going to the toilet because of this pain. … On inspection today I could not find any abnormality which was quite surprising as I thought that almost certainly she would have an anal fissure. … She was tender with quite gross anal spasm but I could not explain her symptoms and I did not attempt any instrumentation because of the severe discomfort that she was feeling. I have absolutely no idea why she has the pain as the four common causes of severe anal pain I think I have adequately excluded on examination today. I have accordingly made arrangements to perform an examination under anaesthetic together with a sigmoidoscopy and I will do whatever is necessary depending on what I find." 33 The further procedure was given a high priority by Dr Carmalt, to be performed on 8 July 1996. 34 Many of the medical records for Mrs Panagiotopoulos were not placed before this Court on appeal. Nevertheless, the trial judge reported that a rigid sigmoidoscopy was performed on 8 July but, "due to the failure to properly prepare Mrs Panagiotopoulos for the examination, Dr Carmalt's view of the colon was obscured by a large amount of faeces". He was able to observe, however, that she suffered from "moderately large haemorrhoids" and that he had performed a "lateral subcutaneous sphincterotomy" to deal with the muscle spasm. He noted complaint of pain in the vagina, but could find no abnormality on examination. 35 Following the first consultation with Dr Carmalt on 19 June, Mrs Panagiotopoulos returned to Dr Rajendram on 29 June and was referred by him to Dr Davies, a gynaecologist. Doctor Davies arranged an ultrasound of the pelvic region which appears to have been inconclusive: Judgment at [24]. 36 Doctor Carmalt saw Mrs Panagiotopoulos again on 15 August 1996 but was unable to determine the cause of the pain. Why no further attempt was made to carry out a colonoscopy after proper preparation was not addressed in the evidence, no doubt because whatever care was provided by Dr Carmalt was not the responsibility of Dr Rajendram. Indeed, the trial judge noted that a claim "that management after 11 June by Dr Rajendram was inadequate was abandoned, the focus of the case being, as it developed, the period between 11 April 1996 and 11 June 1996, and particularly 11 April 1996, since it seemed to be accepted in submissions that if Mrs Panagiotopoulos had a chance of recovery as at June 1996 it was an extremely limited chance": Judgment at [28]. 37 There remains the question as to what significance the provision to Dr Carmalt of the April liver function test results would have been and what effect the obtaining of additional results, in mid-June, and their provision to Dr Carmalt at or about that time, would have had. Professor Martin Tattersall, who was called for the plaintiff at trial, provided four written reports. In the fourth report, dated 9 August 2006, he agreed that proper management by Dr Rajendram in June involved referral, as occurred, to a general surgeon. However, he said that the surgeon should have been supplied with the abnormal test results and that, with those and the history of anal pain and intermittent rectal bleeding, the surgeon "would have imaged the colon and the cancer would have been diagnosed". The trial judge accepted that a further liver function test on 11 June would have revealed a higher reading for the SAP than that in April, given the progression between April and October 1996. His Honour also accepted that the revelation of this result would have led to imaging of the colon and thus diagnosis of the cancer: at [56]. However, there was as his Honour noted, some uncertainty about this conclusion. A possible cause of rectal bleeding might have been colorectal cancer. On the other hand, he stated that there was no expert evidence before him suggesting that "carcinoma of the colon affects the SAP": at [57]. The referral to Dr Carmalt for colonoscopy was not criticised, although the colonoscopy attempted by Dr Carmalt was ineffective. Critically, what was missing from the Appellant's case was evidence that knowledge of the results of liver function tests "showing a mildly elevated or progressively elevated SAP … would have prompted a different course": at [57]. His Honour was left "unpersuaded that the causal connection is in fact made out". 38 To establish the first step in his cause of action, the Appellant must overcome this finding. He seeks to do so by arguing that, had the Respondent undertaken a further liver function test in June and received a further and higher abnormal reading, he would probably have done that which he did in October 1996, after further testing, namely refer Mrs Panagiotopoulos for a CT scan of her liver. That, in turn, would have led to diagnosis of the carcinoma and appropriate treatment. 39 This contention has a number of difficulties. The first is that the inference was not put to Dr Rajendram. Nor did it necessarily follow that he would immediately have taken that step. The subsequent history, following referral to Dr Carmalt and the minor surgery undertaken by him in an attempt to correct the anal spasm and thus the anal pain was unsuccessful, as he learned in a consultation with the Appellant's wife on 29 July 1996. His response, having also received a report from Dr Carmalt, was to refer the patient to Dr Anne Davies, as noted above. He received a report from Dr Davies on or shortly before 23 August 1996, being the next consultation he had with Mrs Panagiotopoulos: Tcpt, 16/08/06, pp 348-349. The reason for the consultation was apparently a sore throat and fever and a dry cough, but the failure to resolve her abdominal pain was discussed. 40 Doctor Rajendram next saw her on 23 September 1996 and undertook a physical examination to identify the tender areas of the abdomen. He considered she might have diverticulitis, for which he prescribed antibiotics. However, she could not tolerate the medication and, on further presentation on 25 September 1996, although the pain in her left lower quadrant had diminished, he decided that the next course of action was to take a blood count, a liver function test and a barium enema. It was the result of those tests, discussed at a further consultation on 2 October, which led to her referral to Campsie Imaging Centre for a CT of the abdomen, "described as a liver protocol": Tcpt, p 350. The results indicated masses in the abdomen which were very suggestive of a metastatic cancer and on 4 October Dr Rajendram referred Mrs Panagiotopoulos to Dr Carter, a specialist in gynaecological oncology and obtained a very early consultation with him. 41 No complaint was made of the different steps taken by Dr Rajendram prior to repeating the liver function test. As a practical matter, that may have been because on any view of the evidence a delay of a few weeks in August or September would have had no conceivable effect on the outcome of the diagnosis. 42 The reason for this appears from the evidence of Professor Tattersall, acceptance of which was critical for the Appellant's case at trial. In his report of 9 August 2006, he confirmed his opinion stated in his report of 26 September 2005 "on the likelihood that the cancer was curable by treatment in April, June and July 1996". 43 The Appellant did not put before this Court his solicitor's letter of 26 September 2005 which identified questions to which Professor Tattersall gave answers on the same day. However, part of his answer to question 12 was in the following terms: " If the cancer had been diagnosed and treated:- * in April at the instigation of Dr Rajendram In April – I believe spread outside the rectum would have mandated adjunctive radiation and chemotherapy with some chance of cure. * in June at the instigation of Dr Rajendram and/or Dr Carmalt, In June, I believe disease spread in the pelvis was almost certain, greatly reducing the probability of cure. * in July following a colonoscopy by Dr Carmalt or a colorectal surgeon? In July, I believe spread to the liver was much more likely than not, rendering the prospect of cure remote." 44 As against the evidence of Professor Tattersall, there were far more pessimistic reports obtained by the Respondent from Dr Steven Clarke, a medical oncologist at Concord Hospital, and Associate Professor John Boyages, an oncologist from Westmead Hospital. Although their reports were not included in the material on the appeal, their oral evidence was. However, the key aspects relied upon below are set out in the judgment and can be briefly identified. In a passage set out in the Judgment at [63], Professor Boyages said: "It is almost inconceivable that a moderately differentiated adenocarcinoma would grow from no liver metastases to liver metastases measuring 18 cm in the period between 11 April 1996 and 4 October 1996. … It is unlikely that the treatment would have been any different if diagnosed in April rather than October 1996." 45 Professor Clarke noted (Tcpt, 16/08/06, p 416) when asked about whether he gained any assistance in saying how advanced the tumour was in April, based on the mildly elevated SAP, responded: "… You can have 10 percent of your liver and have relatively normal liver function. It's more the fact that there were significant hepatic pathologies seen in October [2006] on imaging and at theatre and the alkaline phosphatase was markedly elevated, and in April there was significant elevation of the alkaline phosphatase. That makes me think that that liver pathology was there at that time." Consistently, he was unmoved from his opinion that diagnosis at the earlier time would not have had any impact on the patient's survival. He disagreed with the possibility of cure with treatment in June, suggested by Professor Tattersall, commenting that he (Dr Tattersall) did not have "the same background of experience in colorectal cancer that I have": p 417. He also expressed the view that in April and June "the concept of cure, with that degree of cancer, is unrealistic": p 418. 46 No purpose is served in setting out further the respective views of the medical experts. Their evidence was analysed with care by the trial judge at [59]-[69]. The critical element relied on by his Honour was the conclusion of Professor Boyages, working back from knowledge of the size and extent of the liver metastases in October 1996 that the disease had commenced between 12 and 24 months prior to that date. He rejected the proposition that the patient had more than a very slight chance of curative surgery in April 1996. Because the Appellant's case focused on the possibility of treatment in April, there was little discussion of the chances of successful treatment in June, but it is clear that the position could not have improved between April and June. 47 The evidence of Professor Clarke was to similar effect. At the end of his cross-examination (Tcpt, 16/08/06, p 421), he gave the following evidence: "A. … The people we really look to cure – because that's one of the critical issues here is who we look to cure – and that's our aim wherever possible is to cure people. But we realistically only can cure people in the liver if they have small metastases of small number without the presence of disease outside the liver. Q. In April 1996, when we don't know what the situation was, is it possible that we had a situation that you would have tried to cure? Is that possible? A. I don't think it is possible because of the size of that pelvic mass. Q. Reading backwards, that's your opinion? A. Yes, absolutely." Assessment of findings – treatment of wife 48 The supplementary notice of appeal in this matter contained 19 grounds. The first 15, taken together, involved a challenge to his Honour's conclusions in relation to the negligence of Dr Rajendram and the possible consequences. In substance they amounted to a complaint that Professors Clarke and Boyages were preferred to Professor Tattersall in their assessment of the consequences for Mrs Panagiotopoulos of the failure to take particular steps in April and June 1996. However, the claims fall well short of demonstrating error on the part of the trial judge. To the extent that there was conflicting evidence, the trial judge had to prefer that led for the plaintiff, if the plaintiff were to succeed. He did not, but gave clear reasons for reaching a positive conclusion that the defendant's witnesses were persuasive. 49 In some cases there may be factors which allow an appellate court to conclude that such a preference demonstrates error. For example, one expert may have more relevant expertise than another, a factor which is disregarded by the trial judge, or one expert may have based an opinion upon a factual premise which was not made out. In the present case, no such error in his Honour's reasoning was demonstrated. Indeed, the differences of opinion between the various oncologists may well have been somewhat artificially accentuated by the process of litigation. As may be seen from the quotation from Professor Tattersall set out above, whatever chance he attributed to a better outcome for Mrs Panagiotopoulos, had the diagnosis been made in June rather than October, it was slight and not expressed with any precision. The experts were making evaluative judgments, with the benefit of hindsight, and there was undoubtedly a legitimate range for professional opinion on the topic. That is reflected in the plaintiff's concession at trial that he could not establish on the balance of probabilities that earlier diagnosis would have resulted in his wife living for a longer period; at best she lost a chance of a better outcome. 50 If the Appellant's wife had sought to bring proceedings, an issue might have arisen as to whether the Court should have proceeded, as it did, upon the basis that "a claim based on loss of chance is available to a patient": at [74]. The trial judge was bound to approach the matter on that basis, following Rufo v Hosking (2004) 61 NSWLR 678, although that approach was the subject of divided opinion in the High Court in Naxakis v Western General Hospital (1999) 197 CLR 269 at [28]-[36] (Gaudron J) and [128] (Callinan J) and was subsequently rejected by a divided House of Lords in Gregg v Scott [2005] 2 AC 176: see also State of New South Wales v Burton [2006] NSWCA 12; (2006) Aust Torts Rep ¶81-826; 3 DDCR 398, at [66]. Duty of care to Appellant 51 The duty of care to Mrs Panagiotopoulos was treated as a key element in the case: indeed, arguably the degree of attention focused upon the treatment of the wife distracted attention from the real question which commenced with identifying the duty of care owed to her husband. The duty to the husband was, in a sense, derivative in that he fell within a class of persons who might suffer injury, in his case psychiatric illness, from a failure to take reasonable care to treat his wife. However, in another sense, the duty was a primary and not a derivative duty. In other words, so long as a breach of duty were established in the treatment of the Appellant's wife, it might not matter that she would have had no cause of action because she did not suffer loss. Nevertheless, in this case the injury to the Appellant was said to flow from his observation of the pain and suffering of his wife or her loss of a chance of a better outcome, which in turn was caused by the negligence of the Respondent. 52 In seeking to make out this case, the Appellant needed to establish that he suffered a psychiatric illness which was contributed to in a material sense by his wife's suffering between June and October 1996 or her lost chance. 53 The trial judge did not accept the Appellant as a reliable witness, in a number of respects. He did, however, accept evidence that he was very close to his wife and suffered greatly during her illness and from her death. In such a relationship, one may readily accept that the diagnosis of cancer and the death of his wife were the worst events in a trying period extending over almost three years. However, to establish that the pain and suffering of his wife over the three month period from June to October contributed to a psychiatric illness would obviously have been more difficult. That difficulty was not alleviated by the fact that, although he had sought advice from Dr Rajendram in relation to a possible major depressive episode in February 1994, before his wife's illness, he received no further psychological or psychiatric assessment until after his wife's death, when he saw a Dr Takas, psychiatrist, who prepared reports dated 28 June 1999 and 29 May 2000. Doctor Takas had apparently treated him with Deptran and Luvox, but had returned to Greece and was not called at the trial. In November 2002, he was seen by Dr Lisa Brown, a psychiatrist who prepared a report for the defendant. The primary psychiatric evidence presented in his case was a report of Dr Selwyn Smith who saw the Appellant once on 2 November 2005, for the purpose of preparing an assessment for his case. 54 The trial judge was not satisfied that the Appellant suffered from a psychiatric illness. Although Dr Smith had expressed the opinion that he "demonstrates diagnostic criteria for a Complicated Bereavement Reaction associated with a Major Depressive Episode", his Honour found that his opinion was based upon a history which was false in material respects: Judgment at [91] and [97]. That conclusion obviated the need to address consequential issues, including the question of causation. It also obviated the need to consider an antecedent question, namely whether a breach of duty of the kind established should have entailed, for a defendant in the position of Dr Rajendram, a foreseeable risk that the Appellant would suffer psychiatric injury as a result of the breach. 55 As the trial judge noted at [101]: "The plaintiff's argument entails the proposition that even if a patient personally would have no remedy against the doctor (because any established negligence was not causative of death or loss of a chance), a relative who suffers a recognised psychiatric injury as a result of the belief that the negligence was causative of the illness or the loss of a chance of cure, can recover. Such an outcome seems to me to be sufficiently surprising as to point to it being wrong in law. Whether the argument is erroneous and whether if it is, the error arises because loss of chance cannot extend to third parties (no case was cited that establishes that it can) or because a claim for nervous shock cannot extend to perceptions that are wrong (see the dicta of Gummow and [Kirby] JJ in Tame at [198]), or because the reaction of a relative based on wrong perceptions is not something for which a medical practitioner should be held to account, do not need to be explored further given my conclusion on the failure of the plaintiff to establish any recognised psychiatric disorder." 56 As noted in Tame v New South Wales (2002) 211 CLR 317, difficult issues can arise as to whether a reasonable person in the position of the defendant would foresee the risk of psychiatric injury in particular circumstances. If the foreseeability test is to maintain a factual link with the conduct of people in every day life, its application will usually not depend upon expert psychiatric evidence, or statistical evidence as to what should be expected in particular circumstances: see Tame, 211 CLR 317 at [115] (McHugh J). Nevertheless, in the case of a defendant with medical knowledge, such evidence may be relevant and admissible. It could have been significant in the present case that no such evidence was called for the plaintiff, and no question was asked of Dr Rajendram, directed to his own understanding of the risk of psychiatric injury in the case of the Appellant, who was known to him, both as the husband of his patient and as a patient in his own right. 57 There might also have been a real question as to the casual connection between negligence which resulted in a period of unnecessary pain for the patient and psychiatric injury to her husband. An assessment in this regard would have depended upon findings of fact in relation to the pain and discomfort of Mrs Panagiotopoulos during the three month period prior to her diagnosis. The Appellant, in his evidence, conveyed a picture of her suffering during this period which is hard to reconcile with the evidence, largely unchallenged, of Dr Rajendram who saw her on a number of occasions between July and October. Even if, possibly with knowledge of the Appellant's character, his reaction to the pain and discomfort experienced by his wife was foreseeable, there may have been a separate question as to whether it was properly understood to have been caused by the breach of duty, in circumstances where it was based on unreasonable and untrue beliefs as to the real state of affairs: cf Tame, 211 CLR 317 at [198] (Gummow and Kirby JJ). 58 To the extent that the Appellant's condition might have been attributed to his belief as to his late wife's "loss of chance" of a better outcome, that belief might also have needed to be explored, both with him and with Dr Smith. In fact, there was no real attempt to link his psychological state with the specific breaches of duty established and their consequences. 59 One comment which might be made of his Honour's reasoning in relation to the response of the Appellant to his wife's condition was that he appeared on occasion to treat the real issue as restricted to her loss of a chance of a better outcome. There was evidence, which ultimately did not need to be assessed, which might have justified the conclusion that Mrs Panagiotopoulos suffered pain and discomfort during the three month period which would have been alleviated by an earlier diagnosis and surgery, which surgery might reasonably have been undertaken (as it was in October) for palliative as much as curative reasons. On the other hand, there was no real exploration of such a claim in the evidence or argument, nor of any specific effect on the Appellant. In any event, these questions may be put to one side unless the finding with respect to psychiatric illness can be shown to be in error. No psychiatric illness 60 The Appellant's challenge to his Honour's finding as to absence of psychiatric illness had two limbs. The first involved a challenge to the concessions obtained from Dr Smith in cross-examination, on the basis that matters of fact had been put to him inaccurately. The second was a challenge to his Honour's finding in respect of the Appellant's credit and findings of fact in relation to the Appellant's circumstances which led him to reject the psychiatric evidence of Dr Smith as based on a false premise. 61 Before turning to that material, it is convenient to note the history of the Appellant's psychiatric assessment. First, it appears that the Appellant had a consultation with Dr Rajendram on 7 February 1994, following an injury to and surgery on his hand, at which time numerous diagnostic criteria for a major depressive episode were noted. He agreed in cross-examination that he had been advised by doctors that he was suffering depression in the course of workers compensation proceedings in 1994 and said it was "because I was in pain": Tcpt, 11/08/06, p 145. He further agreed that for the period 1994-1996, he had said in his workers compensation claim that he suffered from stress and depression. He also agreed that he had not told Dr Takas, Dr Smith or Dr Brown that he had had any mental health problems before March 1999: p 142. These psychiatrists all believed that his mental health difficulties, which included depression, originated after the death of his wife. Doctor Smith expressly stated (report, p 8): "Mr Panagiotopoulos has no history of a pre-existing disease or condition. As stated he has not previously experienced psychiatric disorders." Despite being asked, prior to that passage of cross-examination, to re-read Dr Smith's report and identify any errors, he did not identify that as an error: p 146. 62 Three months after his wife's death, in 1999, the Appellant saw Dr Takas. According to Dr Smith, Dr Takas diagnosed the Appellant as suffering from "… an acute grief – bereavement process as a result of his wife's death in March 1999. He also suffered from a superimposed depressive reaction. He noted anger, resentment and depression that were prominent feelings." 63 On 21 November 2002, Dr Brown diagnosed him as suffering from "a mild pathological grief reaction and associated depressive symptoms as a result of his wife's death". 64 It is also clear from Dr Smith's report that his psychological symptoms derived from the death of his wife in March 1999. Doctor Smith stated: "The impact of Mrs Panagiotopoulos' death on Mr Panagiotopoulos was significant. … Her death was a significant psychological blow to him. He became deeply depressed. He experienced difficulties in sleeping. His appetite diminished and he lost weight. He was obsessively ruminating about his wife's death and the treatment that she had received. He was particularly angry towards Dr Rajendram and Dr Carmalt for failing to appropriately diagnose and treat his wife's illness." 65 Under the heading "The Aetiology of the Condition" Dr Smith noted: "In my opinion, Mr Panagiotopoulos' current psychiatric presentation has been substantially contributed by the circumstances surrounding his wife's death." Later he stated: "It is more likely than not that his current psychiatric condition has been caused by the circumstances preceding and subsequent death of his wife. … His restrictions in regard to his ability to work have been, in my opinion, caused by the circumstances surrounding his wife's death. … His response to treatment is also significantly compromised by his ongoing anger and the nature of the unresolved psychological issues surrounding his wife's death." 66 There were numerous discrepancies between that which the Appellant told the Court and that which he told Drs Smith and Brown. For example, Dr Smith recorded: "In 1973 he commenced driving a taxi and ceased driving in 1995 when his wife became ill. He relinquished work to care for her. He has not re-engaged in work since the death of his wife." There were, as he accepted on the basis of known facts and his tax returns, a number of errors in this statement. First, he was not working as a taxi driver when his wife became ill and had not been so working for approximately 18 months before they went to Greece in April 1996. He had then been on workers compensation, that being the sole source of income recorded in his tax returns for those years. Secondly, he did work as a taxi driver, though somewhat intermittently, during his wife's illness and after her death: Tcpt, 10/08/06, pp 71 and 76-85. Although perhaps little emphasis should be placed on it, on 6 March 1997, he made application to the Ministry of Transport for a licence to drive a taxi, in the course of which he answered "No" to the question "Do you suffer, or have ever at any time, suffered from - … (f) nervous or mental disorder?". 67 Doctor Smith also recorded that the Appellant consumed significant quantities of alcohol, which caused him to state that his "clinical picture is also compounded by excessive nicotine and alcohol dependence". He stated to Dr Smith that he "was feeling tired and was resorting to increasing smoking of cigarettes and abuse of alcohol". He also stated that he was "unable to re-engage at work". The effect of his wife's death, as reported to Dr Smith, was to increase his alcohol consumption so that he "consumed several Scotch whiskeys a day with an increasing consumption at weekends". The inference was, as Dr Smith agreed, that that state of affairs had been continuous from the date of his wife's death to the date of the psychiatric consultation in November 2005. However, in February 2005 the Appellant had renewed his taxi driver's licence on the basis of a medical questionnaire and a certificate from his general practitioner, Dr Papadakis. On the patient questionnaire, the box for "no" was ticked alongside the question: "Have you ever had, or been told by a doctor that you had a psychiatric illness, or nervous disorder?" On the same document, which he signed on 7 February 2005, he ticked the box for "monthly" to the question "How often do you have a drink containing alcohol?" He answered further questions which denied any problem with drinking and even went to the extent of answering the question "How many drinks containing alcohol do you have on a typical day when you are drinking?" by adding a new box against which he wrote "none" and ticked the box. 68 In these, and other respects, the information provided to Dr Smith was false or misleading. These were matters which Dr Smith conceded were material to his assessment of the plaintiff's psychiatric state. Although the Appellant sought, on the appeal, to challenge the findings made by the trial judge in relation to his credibility, that exercise was doomed to fail for a number of reasons. First, a reading of the transcript of the Appellant's evidence is sufficient to demonstrate that this was a paradigm case in which the trial judge enjoyed real advantages over this Court in his assessment of the evidence. Secondly, there was no objective evidence which was inconsistent with the assessments which his Honour made of the Appellant. Thirdly, as his Honour noted at [84](8), the plaintiff happily admitted that he had lied to the taxi authority in circumstances where it was unclear whether he did or not on the evidence. Fourthly, to the extent that the trial judge explained his reasons for adverse findings of credibility, he did so by providing detail in each instance with meticulous references to the transcript. 69 Once it is clear that the challenges with respect to the assessment of the Appellant's evidence cannot be sustained, the conclusion that Dr Smith's report is unpersuasive is almost inevitable. The report was based on one psychiatric consultation, though with the assistance of earlier reports from Drs Takas and Brown. As already noted, there were respects in which the same false or misleading statements appear to have been conveyed to all three psychiatrists. In any event, there can be no doubt that the trial judge was entitled to reject the expert evidence as unpersuasive and that the reasons he gave for doing so have not been demonstrated as in error. As noted in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [60] where medical opinions "themselves seem premised on an acceptance of [the patient's] account of her history and complaints", the trial judge "was entitled to take the view – which we would take ourselves – that their opinions were contingent on [the patient] suffering from the problems of which she complained". Thus, a finding that she did not suffer from those problems removed the basis on which the opinions were expressed. That analysis applies with equal, if not greater, force in the present case. 70 There is a further aspect of the matter which might, had that previous conclusion not been reached, have deserved close attention. It was that Dr Smith's report is replete with references to the impact of the Appellant's wife death, and its affect on him. True it is that Dr Smith recorded that the Appellant felt angry towards Drs Rajendram and Carmalt, but there is only the vague inference that his anger was due to their conduct and in respects not identified, rather than a reaction to his wife's death. Linkage to their conduct as a cause contributing to an illness needed to be established for the Appellant to succeed. 71 There was a suggestion in the Appellant's evidence that his anger towards Drs Rajendram and Carmalt was partly fuelled by critical comments made by doctors at Royal Prince Alfred Hospital where Mrs Panagiotopoulos was taken for surgery in October 1996. However, the comments would appear to have been a response to the conduct as described by the Appellant and may well have conveyed scepticism as to the correctness of the account, as much as criticism of the treatment: Tcpt, 10/09/06, pp 64-65. 72 Once it was accepted (or, as at trial, conceded) that his wife's death was not hastened by any breach of duty by Dr Rajendram, the reaction caused by her death must be disregarded. The fact that the Appellant may have believed that Dr Rajendram was in some way responsible for her death, or hastened it, must be put to one side. As noted above, the harm for which Dr Rajendram might be responsible must flow primarily from the pain and suffering caused between June and October 1996, through a failure to diagnose the true cause of the pain at an earlier point in time or the mere chance of a better outcome. However, Dr Smith's report, taken at face value, provides little or no basis for any such causal connection. Doctor Smith accepted and recorded the Appellant's beliefs in relation to the failures of Drs Rajendram and Carmalt, without comment or exploration as to their foundation. On one view Dr Smith provided no opinion as to the causal link between Dr Rajendram's conduct and the psychological condition he identified. The trial judge never needed to reassess the relevance of Dr Smith's evidence by reference to his findings with respect to breach of duty, but it seems most unlikely that, had he been required to do so, he would have found the necessary element of causation, on the assumption that psychiatric illness had been established. His Honour's findings with respect to failure to demonstrate psychiatric illness, which should not be disturbed, preclude the need to consider such matters further. 73 The appeal must be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.