Supreme Court New South Wales Medium Neutral Citation: Perry v Dr Lennox [2012] NSWSC 1391 Hearing dates: 31 October 2012 Decision date: 16 November 2012 Jurisdiction: Common Law Before: Harrison J Decision: Grant leave to the plaintiff and the fourth defendant respectively to serve and to rely upon the further reports referred to in their notices of motion filed 23 October 2012 and 25 October 2012. Catchwords: PROCEDURE - expert evidence - UCPR 31.28 - applications by plaintiff and fourth defendant seeking leave to serve and rely on further medical reports - whether prejudicial to interests of other parties - whether exceptional circumstances - leave granted Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Robyn Perry (Plaintiff) Dr Haig Lennox (First Defendant) Dr Philip Stephens (Second Defendant) Tamara Private Hospital (Fourth Defendant) Representation: P R Hennessy SC with E G Romaniuk (Plaintiff) G M Gregg (First Defendant) A J Black SC (Second Defendant) J Downing (Fourth Defendant) Edwards Michael Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) TressCox Lawyers (Second Defendant) HWL Ebsworth Lawyers (Fourth Defendant) File Number(s): 2008/289431 Judgment 1HIS HONOUR: Mrs Perry claims damages for personal injuries sustained by her, including lower limb paralysis, which were allegedly caused by a post-operative epidural infusion of analgesia for pain relief following knee surgery on 26 June 2006. Dr Lennox was the orthopaedic surgeon who performed the operation. Dr Stephens was the attending anaesthetist. The operation took place at the Tamara Private Hospital. 2This matter came before me for hearing in March this year. The matter had not concluded after seven days of evidence. A resumption of the hearing is now scheduled to commence in February next year. In the meantime Mrs Perry and the hospital have sought orders by notices of motion that they should be permitted to rely upon further medical reports in support of their respective cases. The defendants oppose Mrs Perry's application. The hospital's application is opposed by Dr Stephens. 3Mrs Perry's amended notice of motion filed 23 October 2012 seeks orders in the following relevant terms: "1. Leave...pursuant to UCPR 31.28(1)(a) for the plaintiff to serve and rely on the reports of: (a) Ms Robyn Quinn dated 23 April 2012. (b) Ms Robyn Quinn dated 8 May 2012. (c) Dr Ian Woodforth dated 6 June 2012. (d) Dr John Raftos dated 4 May 2012. (e) Dr Herkes dated 17 August 2012. 2. Leave...pursuant to UCPR 31.28(1)(a) for the plaintiff to serve and rely upon a further report of Dr Kidd." 4Tamara Private Hospital's notice of motion filed 25 October 2012 is in the following relevant terms: "1. Leave... pursuant to UCPR 31.28(1)(a)... for the fourth defendant to serve and rely upon the following reports: (a) Dr Michael Levitt dated 9 October 2012. (b) Professor Paul Myles dated 14 October 2012, and (c) Professor John Watson dated 24 October 2012." 5These applications have fomented significant disagreement among the parties to these proceedings about the scope and width of Mrs Perry's currently pleaded case. The defendants are concerned that Mrs Perry is illegitimately seeking to expand her case by raising matters of an expert medical nature that bear no relationship to the issues raised on the pleadings so far. Mrs Perry disputes that, although senior counsel appearing for her has constantly hinted that some kind of amendment may be coming. This continues to create unease down the bar table. Quite apart from whether or not Mrs Perry at some time in the future formally attempts to broaden the thrust of her case, the defendants complain now that they will be prejudiced by the admission into evidence of material that was not current when the Mrs Perry and the other parties and their witnesses gave evidence. They assert that they will suffer more than merely presumptive prejudice if Mrs Perry is permitted to rely on these further reports. 6The service of reports in a case such as this is governed by UCPR 31.28 which provides relevantly as follows: "31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other party (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2)... (3) Except by leave of the court, or the consent of the parties: (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule... (4) Lave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)." 7In order to put these matters into context, some examination of the pleadings and the history of this litigation is required. Background 8Mrs Perry's case as presently formulated derives from her further amended statement of claim filed on 14 December 2011. By way of introduction, she says that in February 2006 she consulted Dr Lennox regarding knee replacement surgery. Mrs Perry says that Dr Lennox took a history from her including details of an adverse reaction that she had had to an epidural administered in conjunction with a varicose veins procedure in July 1999. Mrs Perry asserts that she told Dr Lennox that she suffered from abnormal partial lower body paralysis for an extended period following removal of that epidural and that as a consequence she had a "post-operative aversion to the use of the epidural". 9Notwithstanding this revelation to Dr Lennox, he told Mrs Perry that he proposed to use an epidural to administer surgical and post-operative analgesia because the operation would be painful and an epidural was the most effective form of pain relief. In due course that is what occurred. Mrs Perry underwent the operation with epidural pain relief post-operatively. Within a day of the operation Mrs Perry experienced symptoms including fever, headaches, loss of sensation and numbness in her legs, partial paralysis, weakness and an inability to move her legs or walk. Dr Lennox attended Mrs Perry after her discharge from hospital but her condition did not improve. 10In these circumstances Mrs Perry alleges that Dr Lennox breached his duty of care to her in a number of respects. For reasons that will become apparent, it is important to record the precise terms of these allegations, which are as follows: "(a) [Failing to] have proper regard to [Mrs Perry's] medical history as disclosed by her in pre-operative consultations and utilise the appropriate method of analgesia. (b) [Failing to] gain [Mrs Perry's] consent to administer analgesia by epidural through the course of the surgery and post-operatively. (ba) [Failing to] consult with and examine [Mrs Perry] during the period of the post-operative administering of analgesia by epidural by nursing staff following the protocol devised by [Dr Stephens]. (bb) [Failing to] identify the protocol devised by [Dr Stephens] for the administering of analgesia by epidural by nursing staff was deficient in that it did not inform nursing staff of the need to consult with [Dr Stephens] and/or another doctor in the event of the presence of an atypical feature such as back pain and/or pain away from the operative site. (bc) [Failing to] consult with [Dr Stephens] during the post-operative administering of analgesia by epidural by nursing staff, including on the presence of an atypical feature such as back pain and/or pain away from the operative site. (bd) [Failing] to cause the cessation of the administering of analgesia by epidural, including cessation by about 21.25 on 26 June 2006. (c) [Failing to] diagnose correctly [Mrs Perry's] post-operative condition. (d) [Failing to] carry out adequate examination and investigations to ascertain and diagnose [Mrs Perry's] post-operative condition. (e) [Failing to] refer [Mrs Perry] for a further opinion. (f) [Failing to] provide appropriate treatment of [Mrs Perry's] then symptoms and condition." 11With respect to Mrs Perry's claim against Dr Stephens, she alleges that she consulted with him following her admission to hospital for the knee surgery. On the evening of her admission, Dr Stephens consulted Mrs Perry "with respect to the procedure she was to undergo the following day". The consultation lasted about five minutes. Mrs Perry alleges that Dr Stephens did not take a history from her concerning her experiences, reactions and/or responses to the use of an epidural or her preference for the administration of analgesia and post-operative pain relief. Mrs Perry says that following the operation Dr Stephens consulted her on 29 June 2006 regarding reduced flexion and sensation in her legs. He referred her for an MRI investigation in order to establish the presence of any pathology pertaining to the epidural. However, Mrs Perry alleges that Dr Stephens breached his duty of care to her in the following respects: "(a) [Failing to] have proper regard to [Mrs Perry's] medical history as disclosed by her in pre-operative consultations and utilise the appropriate method of analgesia. (b) [Failing to] gain [Mrs Perry's] consent to administer analgesia by epidural through the course of the surgery and post-operatively. (ba) [Failing to] devise an appropriate protocol for the post-operative administering of analgesia by epidural by nursing staff, including a protocol that: (i) informed the nursing staff of steps to be taken in the presence of an atypical feature such as back pain and/or pain away from the operative site; (ii) informed the nursing staff of the need to consult [him] and/or another doctor in the event of the presence of an atypical feature such as back pain or pain away from the operative site; (iii) informed the nursing staff not to keep administering analgesia by epidural at the same and/or increasing levels in the event of the presence of an atypical feature such as back pain and/or pain away from the operative site. (bb) [Failed to] consult with and examine [Mrs Perry] during the period of the post-operative administering of analgesia by epidural by nursing staff. (bc) [Failed to] consult with and examine [Mrs Perry] during the period of the post-operative administering of analgesia by epidural by nursing staff in the event of the presence of an atypical feature such as back pain and/or pain away from the operative site. (c) [Failed to] diagnose correctly [Mrs Perry's] post-operative condition. (d) [Failed to] carry out adequate examination and investigations to ascertain and diagnose [Mrs Perry's] post-operative condition. (da) [Failed to] cease the administering of analgesia by epidural, including cessation by about 21.25 on 26 June 2006. (e) [Failed to] refer [Mrs Perry] for a further opinion. (f) [Failed to] provide appropriate treatment of [Mrs Perry's] then symptoms and condition." 12Mrs Perry alleges that the Tamara Private Hospital also breached its duty of care to her. She particularised her claims against the hospital as follows: "(a) [Failed to] diagnose correctly [Mrs Perry's] actual condition. (aa) [Failed] during the protocols care [to] recognise that [Mrs Perry] was not responding properly or at all to the rehabilitative therapy and achieving the goals set out in the "clinical pathways" documents and bring this to the attention of [Dr Lennox] and/or [Dr Stephens] and/or the "Accredited Registered Nurses", "Acute Pain Service", "Duty Anaesthetist", "Anaesthetist" and "Pain Service" (as specified in the epidural documents and the "clinical pathways" documents). (b) The "Accredited Registered Nurses", "Acute Pain Service", "Duty Anaesthetist", "Anaesthetist" and "Pain Service" (as specified in the epidural documents and the "clinical pathways" documents) or any other medical practitioner failed to: (i) ensure that nursing staff understood the protocol for the post operative administering of analgesia by epidural by nursing staff, including: (1) informing the nursing staff of steps to be taken in the presence of an atypical feature such as back pain and/or pain away from the operative site; (2) informing the nursing staff of the need to consult [Dr Stephens] and/or another doctor in the event of the presence of an atypical feature such as back pain or pain away from the operative site; and (3) informing the nursing staff not to keep administering analgesia by epidural at the same and/or increasing levels in the event of the presence of an atypical feature such as back pain and/or pain away from the operative site. (ii) consult with and examine [Mrs Perry] during the period of the post-operative administering of analgesia by epidural by nursing staff. (iii) consult with and examine [Mrs Perry] during the period of the post-operative administering of analgesia by epidural by nursing staff in the event of the presence of an atypical feature such as back pain and/or pain away from the operative site. (iv) cease the administering of analgesia by epidural, including cessation by about 21.25 on 26 June 2006. (c) [Failed to] refer [Mrs Perry] for further examination and investigations by an appropriate specialist to ascertain and diagnose [her] post-operative condition; and (d) [Failed to] provide the appropriate treatment of [Mrs Perry's] then symptoms and condition." 13It goes without saying that the evidence in chief of all parties and the cross-examination of all witnesses before me in March this year took place in the light of Mrs Perry's allegations formulated in these terms. In particular, the defendants have all emphasised that, according to their understanding at least, Mrs Perry has specifically confined herself to 2125 hours on 26 June 2006 as the time at or by which her condition had apparently crystallised, meaning that it had reached a stage where no intervention of any sort could have produced an outcome for Mrs Perry that differed from the outcome that eventuated in fact. On this analysis, Mrs Perry's condition got no worse after 2125 hours on 26 June 2006 and correspondingly could not thereafter have been improved by the defendants' intervention. 14The defendants all maintain in such circumstances that they have operated, and conducted their respective cases to date, upon the basis that only their actions up to and including 2125 hours on that evening are relevant or called into question, because Mrs Perry has effectively confined herself to a case that suggests that her condition was thereafter fixed and incapable of either deteriorating further or of being cured or improved. According to the defendants, there can be no causal connection between anything that the defendants did or failed to do thereafter because Mrs Perry's case, supported by expert evidence, propounds the proposition that 2125 hours on 26 June 2006 was the effective cut-off time beyond which Mrs Perry had lost any remaining chance for the prevention of her condition or for any improvement in it. Mrs Perry's epidural catheter was finally removed at about 0910 hours on 28 June 2006. 15The issue was aired on the first day of the hearing in March this year. During the course of the opening of the case by Mr Hennessy SC for Mrs Perry on 5 March 2012, the following discussion took place: "HIS HONOUR: Just so I understand it as well, your case is that given her surgical history, an epidural shouldn't have been administered at all. Secondly, do you say that once administered, a cessation of the epidural would have [had] a corresponding effect upon the severity of the symptoms? HENNESSY: Yes. HIS HONOUR: It's not a once and for all damage that cannot be cured? HENNESSY: That's correct. That's our case. Can I say, there's an issue about that? The defendants' neurologist or expert says, look, essentially once she is exposed to this infusion, the result is inevitable. Essentially. As I understand it. We have an expert to say this is dose related." 16That opening, although I suspect not exclusively, led Mr Black of senior counsel for Dr Stephens immediately to respond before any evidence had been taken. The following is an extract of what was said: " BLACK: ...The evidence which the second defendant has proposed to put forward to this Court is put forward to address the allegations that are made against the second defendant on the basis of that which is pleaded in the statement of claim as explained by the expert evidence upon which the plaintiff relies. It is plain from the plaintiff's counsel's opening that he intends to raise matters that go well beyond the evening of the day of the operation. In my submission, it is perfectly plain from his pleaded case and from his expert reports that the plaintiff's case on causation can only be one that the epidural infusion should have been ceased on the evening of the operation at or about 9.30pm and, in my submission, anything that occurred after about that time is of absolutely no relevance in these proceedings to the case on causation. That is, those matters that the plaintiff wishes to allege about what occurred on the 27th, the 28th and/or the 29th must, in my submission, be of no relevance to the determination of the plaintiff's case as it is presented." 17The defendants are emboldened in taking this stance by reference to the medical opinions upon which Mrs Perry has so far relied. In order to give content to their view, it becomes necessary to examine precisely what that medical evidence suggests. Mrs Perry's medical evidence to date 18Dr Desmond Kidd has so far provided two reports dated respectively 19 January 2010 and 15 October 2010. In the earlier report Dr Kidd offered the following opinions: "The damage caused during the exposure to the anaesthetic agent is usually painful; this pain would be felt in the back and would radiate into the legs. The solution of anaesthetic agent is introduced at high concentration to the area. There I a relationship between the severity of the complication and the duration of exposure to the anaesthetic agent. ... In this case the temporal relationship of the cauda equina syndrome to the epidural anaesthetic, the absence of structural reasons on imaging and in particular the previous history of prolonged neurological impairment following epidural anaesthesia points in my opinion without doubt to a causal relationship between the epidural anaesthetic and the cauda equina syndrome. The presence of symptoms as described in the nurses notes on the first post-operative day suggests very strongly the consequences of the development of a severe form of inflammation by neurotoxicity within the nerve roots. That this was misinterpreted as post-operative pain by the nursing staff is understandable but did of course result in an escalation of the concentration of the anaesthetic agent for a further 36 hours, thereby exacerbating the problem. A criticism of the epidural protocol has been noted above; had the nursing staff been asked to report any atypical features, for example back pain or pain away from the operative site, it is very likely that the complication would have been discovered. This should have occurred at 21.25 on 26 June, and would have led to the anaesthetic agent being stopped at that point. The presence of pain should have alerted clinical staff to the possibility of a complication having developed. This is also the case if Mrs Perry's account is the correct one. If the anaesthetic agent had been stopped when Mrs Perry's anaesthetic complication should have been discovered, then in all likelihood the stopping of the exposure at that earlier time would have resulted in a less severe impairment, or in recovery. Whilst many cases improve spontaneously after the anaesthetic agent is removed from the spinal canal in this case after this time there is absolutely no chance that the function of the lumbar and sacral nerve roots will return. Mrs Perry's earlier complication in 1999 was related to a shorter exposure; at that time she recovered and this suggests that Mrs Perry would have in all likelihood also recovered in this case if the anaesthetic agent had been stopped at the earlier time of 21.25 on 26 June 2006." [Emphasis added] 19Dr Kidd's second report can be overlooked for present purposes. 20Dr Ian Woodforth is an anaesthetist. He provided Mrs Perry with three reports dated respectively 7 March 2008, 12 August 2008 and 18 April 2010. Only the latter report need be referred to in the present context. The following opinion should be noted: "Therefore, from 21.30 on the night of the operation, abnormally profound weakness was recorded, but no contact was made with Dr Stephens or anyone else to allow proper assessment and exclusion of a potentially disastrous but reversible complication of the epidural. If he had been made aware, it would have been prudent to cease the epidural to allow motor function to return, while using an alternative form of analgesia such as patient controlled intravenous narcotic. Even if the nurses caring for Mrs Perry on the night of 26 June were unaware of the significance of the profound motor weakness, on the following day, when the targets on the clinical pathway were not reached, Dr Lennox and/or Dr Stephens should have been informed. ... Although there is limited information available about the polyradiculopathy which Mrs Perry suffered, case reports and animal experiments indicate that if the epidural had been ceased as soon as the weakness became apparent it is probable that she would have recovered the strength in her legs...This is supported by the fact that when Mrs Perry had a similar combined spinal/epidural anaesthetic in 1999, with 3.2 ml of 0.5% bupivacaine for the spinal and 3 ml 0.25% bupivacaine into the epidural, and the epidural catheter was removed in the recovery ward, she did not suffer permanent weakness." 21Dr John Raftos provided Mrs Perry with two reports dated 24 October 2008 and 2 July 2010. Although Dr Raftos expresses opinions of importance to Mrs Perry's case generally, it is unnecessary to refer to them here. The Quinn, Woodforth and Raftos reports 22I have considered the reports of Ms Quinn dated 23 April 2012 and 8 May 2012, Dr Woodforth dated 6 June 2012 and Dr Raftos dated 4 May 2012, which Mrs Perry seeks to rely upon. Without recording portions of those reports in these reasons, I note that none appears to me to cast any doubt upon the case pleaded by Mrs Perry against either Dr Lennox or Dr Stephens. That is not intended to suggest that Mrs Perry's case as pleaded against those defendants might not be open to the criticism that it is afflicted with certain ambiguities, but those are matters that have always been recognised by those defendants and notice of objection to any attempt by Mrs Perry to expand her case in contradiction of the pleadings or the medical evidence that supports it was earmarked long ago as a point of contention. 23Doing the best I can it seems to me that the four reports to which I have just referred are not directed at establishing Mrs Perry's case against Dr Lennox or Dr Stephens but against the hospital. The hospital's attitude to the reports is a matter to which it will be convenient to return later in these reasons. In those circumstances, however, I am not prepared to reject Mrs Perry's application to rely on the subject reports as the result of any of the arguments raised by either Dr Lennox or Dr Stephens. Dr Herkes' further report 24The report of Dr Herkes dated 17 August 2012 is arguably in a different category. Dr Herkes was asked by Mrs Perry's solicitors whether he considered that her condition was dose related. That is to say, he was asked whether the weakness in Mrs Perry's legs and her associated symptoms was in any way related to the amount of analgesic that was administered and/or the length of time over which that occurred. Dr Herkes said this: "If a patient is prone or susceptible to an inflammatory reaction due to an introduced agent, it is logical to assume that the longer the offending agent is left in direct contact with the nerve roots, the greater the likelihood of damage. The more promptly the offending agent is ceased it would stand on first principles of logical reasoning the greater the chance of recovery." 25Dr Herkes went on thereafter to express the opinion that "the condition suffered by [Mrs Perry] was dose related". No part of that opinion advances any new case or any case that is not covered by the current pleading upon which Mrs Perry relies. 26However, Dr Herkes was then asked at what time in Mrs Perry's management the administration of post-operative epidural anaesthesia should have ceased. Part of Dr Herkes' response to that question was as follows: "In the opinions of other expert witnesses furnished to me (Dr Woodforth, Dr Kidd and Ms Quinn) they have all indicated that the epidural should have been ceased when it had been noted there was a significant deviation from the accepted protocol. I agree with the opinion of...Dr Woodforth, that from 2130 on the night of the operation, when abnormally profound weakness was recorded, that that should have been an alert for the nursing staff to at least make contact with the anaesthetist or other response persons. As he opines it would have been prudent at that stage to have ceased the epidural whilst using alternate [sic, alternative] forms of analgesia. At the very least the following day (27) June the routine standard review of the treating doctor should have noted this deviation and certainly the nursing staff should have noticed that her profound weakness interfered with her ability to post-operatively mobilise and certainly that should have been an indication to cease the epidural. ... The reason I point out the above is that there is a quite extraordinary capacity of the nervous system to repair itself if the offending agent is removed. In my opinion, had the epidural been ceased even at any time of the day of 27 June, there would have been a greater chance of Mrs Perry receiving some further reinnervation and recovery to her nerve roots than she has achieved. Dr Darveniza himself hints at this in that he points out the unpredictable nature of recovery in different patients but in my opinion from first principles the longer the toxin is in contact with the nerve roots, the less the subsequent chance of recovery." 27Dr Herkes was also asked what impact the cessation of the post-operative epidural anaesthesia would have had "on the development of [Mrs Perry's] condition". Dr Herkes responded as follows: "In my opinion, as I believe that the damage to the nerves would depend upon the duration of the exposure of the nerves to the irritant effects of the agent, had the epidural been ceased by midnight on the first postoperative day, that is 26 June 2006, it is more likely than not that Mrs Perry would have avoided permanent neurological injury. In addition, had the epidural been ceased by midday the following day, that is 12.00 noon on 27 June 2006, she would have had a moderate chance of sustaining less of an injury and had it been ceased by midnight on that day she may have had still some chance of recovery from the permanent irretrievable injury that she has sustained. Had therefore the infusion been ceased prior to midnight on 27 June 2006 Mrs Perry may have had less injury and may have been able, for example, to transfer with less difficulty or have had greater strength in her hips than she does now. With the continued infusion of the agent, however, Mrs Perry unfortunately has sustained irreparable damage to her nerve roots." 28Dr Lennox objects strongly to these opinions in Dr Herkes' latest report upon the basis that they presage a new case that has not yet been pleaded and which causes prejudice for him because it was not current at the time of the hearing in March this year. Dr Lennox was neither informed of nor involved with Mrs Perry's condition or progress prior to 2125 hours on 26 June 2006 but was only involved with her on the following day. Whatever may be the position in relation to breach of duty, if Mrs Perry is restricted to the cut off time of 2125 hours on 26 June 2006, there can arguably be no causal connection with Mrs Perry's injuries and anything that Dr Lennox may thereafter have done or failed to do. Dr Stephens embraces the same complaint and critical reasoning about Dr Herkes' report insofar as it applies to him. 29Finally, Dr Herkes was asked whether the failure to cease the administration of the post-operative epidural anaesthesia "earlier" constituted a lack of reasonable care "by the hospital and its staff". (In this context I take the expression "earlier" to connote some time before it was ceased in fact, at 0910 hours on 28 June 2006 or thereabout). Neither Dr Lennox nor Dr Stephens objects to this material as it is self evidently not directed to impugn their conduct in any way. Dr Kidd's further report 30The further report of Dr Kidd upon which Mrs Perry wishes to rely is dated 26 October 2012. Her solicitor's letter of instruction referred Dr Kidd to his previously expressed opinion concerning dose levels and duration of exposure and posed a series of questions. The first question was in these terms: "Do you take the view that exposure to the infusion after that time [i.e. 2125 hours on 26 June 2006] is irrelevant, in that if the epidural had not ceased at 21.25, the toxic effects of the epidural then became complete and irreversible; or did you mean this (21.25) was the first time at which, on the documents provided to you, the nursing staff should have noticed that a complication was developing and acted?" 31Dr Kidd's response was as follows: "I do not take this view and I would again state that, had the infusion been stopped at an earlier time, the duration of exposure to the toxic effects of bupivacaine and also its concentration around the nerve roots would have been greatly diminished. The nerve roots themselves would therefore not have been exposed to these two damaging effects and would in all likelihood have recovered, at least partially, over time." 32The second question was in these terms: "What times in the management of [Mrs Perry] should the administration of post operative epidural infusion have ceased?" 33Dr Kidd responded to that question, to some extent unhelpfully, in the following relevant terms: "I have read the reports of Professor Herkes, Dr Raftos and Dr Woodforth. I note that they are in agreement that the standard of nursing care did not follow the stipulations of the protocol, that the anaesthetist should have been called and that the neurological disorder was related to the anaesthetic given. They are also in agreement that the anaesthetic should have been stopped at a much earlier point in the post-operative care. I agree with all aspects of their well thought out and clearly expressed reports." 34Finally, Dr Kidd was asked this: "What was the latest time the infusion could have been ceased and, on the balance of probabilities the permanent neurological condition from which [Mrs Perry] suffers have been avoided or substantially avoided?" 35Dr Kidd responded relevantly as follows: "The point at which a nerve root becomes injured cannot be ascertained by scientific study since this would be unethical. It is very clear in addition that this effect can occur more in some people than in others and so there is no way of understanding exactly when a neurological impairment due to toxicity of a nerve root related to exposure to this anaesthetic agent would become permanent. ... In summary therefore, had the protocol been followed and the anaesthetic staff alerted some time between 21.25 and 12.30, and had this resulted in the epidural infusion being stopped, it is extremely likely that her neurological impairment would have been less severe and much more likely to have improved, either substantially or completely, over the course of the ensuing eight to twelve weeks." Consideration of Dr Herkes' and Dr Kidd's further reports 36It is convenient to deal with these two reports together. 37Mrs Perry pleads that the defendants' breach consisted among other things in their having failed to cease the administering of analgesia by epidural, including cessation by about 2125 hours on 26 June 2006. Mrs Perry has always relied upon Dr Woodforth's opinion that if the epidural had been ceased as soon as the weakness in her legs became apparent it is probable that she would have recovered the strength in her legs. Upon one view, the weakness became apparent at about 2125 hours on 26 June 2006. 38There is an obvious and understandable tension between a case that alleges that 2125 hours on 26 June 2006 was the time beyond which Mrs Perry's condition had been determined, with no risk of further deterioration and no chance of recovery or improvement, and a case that alleges that even into the next day and possibly the day after her condition had not stabilised. It seems to me that Mrs Perry's case as pleaded does settle upon 2125 hours as a critical time. The pleading qualifies that time as being "about" 2125 hours on 26 June 2006, but it is difficult to read that to mean any time very much later than 2125 hours and certainly not well into the following day or even later. 39It seems always to have been Mrs Perry's case that the toxic effects of the epidural infusion upon her were dose related. The expert medical evidence upon this point does not yet rise to a high level of scientific sophistication or certainty. Dr Kidd's statement that the "point at which a nerve root becomes injured cannot be ascertained by scientific study" makes this plain. I do not in any event understand the proposition to be in doubt in general terms. Presumably as well, the theory of dose related toxicity accommodates both the concept of increased adverse consequences associated with increased dosage and also the corresponding remission of symptoms with reduced levels of dose. There appears to be a point, however, at which the dose levels are sufficiently high and are sustained for a sufficiently long period that they become toxic so that permanent and irreparable damage occurs. The point of contention in this case for present purposes is when that point was reached for Mrs Perry. If it was 2125 hours on 26 June 2006 then Dr Lennox and Dr Stephens may not face the same case on causation as they are faced with if their later intervention could have prevented or limited the damage. The case against the hospital is on one view little or even no different in either event. 40Mrs Perry's hospital records reveal the administration of the first of two bolus doses of analgesic agent at 2125 hours on 26 June 2006. Her case is that these doses were administered in error because the signs she displayed and the symptoms of which she complained were referable to the onset of her then still reversible limb weakness and not operative pain. However, it now appears that it is not possible with scientific confidence to say that Mrs Perry's current condition became entrenched at some specific time before 0910 hours on 28 June 2006 when the epidural infusion was finally ceased and the catheter was removed. For example, Dr Kidd now wishes to say "there is no way of understanding exactly when a neurological impairment due to toxicity of a nerve root related to exposure to this anaesthetic agent would become permanent". If this is correct, it was never open to the author of the statement of claim to nominate or specify any particular time when or by which Mrs Perry's current injuries and disabilities were actually caused or became permanent. By the same token, it seems to me to be somewhat artificial for Mrs Perry to be shackled by the defendants to a case limited or restricted to a particular time when the science does not, or may not, support it. The current dilemma is that the defendants wish to take what is in truth a pleading point based upon a particular of negligence in the statement of claim, which Mrs Perry's statement of claim arguably should never have included: the pleadings should follow the facts and not vice versa. 41I attempted to elicit from counsel for Dr Lennox and Dr Stephens some particular indication of the prejudice that they contend they will suffer if Mrs Perry is not restricted to a case dependent upon what occurred at or by 2125 on 26 June 2006. Those defendants understandably responded that their cross-examination of witnesses last March had been carefully formulated and crafted in the knowledge that the pleadings were as they were. They may have approached that task differently if the material upon which Mrs Perry now seeks to rely had been in play. That response is a not unusual and perfectly reasonable response in the circumstances. However, it was wholly unadorned with any helpful content and really did not amount to more than an anticipation of purely presumptive prejudice. 42Mrs Perry's case, even with the benefit of the extra material, will inevitably still confront the prospect of establishing, if it can be established, a causal connection between the alleged acts and omissions of one or other of the defendants and the damage that she suffered. That will require, sooner or later, proof on the balance of probabilities of when Mrs Perry sustained the injuries and disabilities from which she now suffers. The new medical opinions upon which Mrs Perry seeks to rely do not appear to suggest anything more than that it was before 0910 hours on 28 June 2006, but not necessarily at 2125 hours on 26 June 2006 as the statement of claim on one view appeared to contend. Mrs Perry remains confronted with proving whether or not Dr Lennox or Dr Stephens were materially active or inactive in that period. The proposed new material less significantly affects Mrs Perry's case against the hospital. 43In short, Mrs Perry's application highlights the need for a pleaded case to be supported by provable facts. The defendants are keen to limit Mrs Perry to what they perceive to be her pleaded case because they are confident that it is not supported by the facts and that the potential exposure of Dr Lennox and Dr Stephens at least may be materially and favourably different if she is. Conversely, Mrs Perry is concerned that she should not be restricted to 2125 hours on 26 June 2006 if the true position is that her condition had not become fixed at that time with corresponding advantages to her. For my part I am particularly concerned that the decision in this case should not be based upon an artificially confined set of facts that bear no more than a passing or partial resemblance to the truth. If Mrs Perry's condition is dose related, and if there is a temporal or causal association between administration and withdrawal of epidural analgesic on the one hand and the advance and retreat of an associated nerve root pathology on the other hand, then that is the case that should be permitted to emerge. Anything less would not in my opinion conform to the dictates of justice. Tamara Private Hospital's position 44The approach taken by the hospital to Mrs Perry's application was not exactly on all fours with the other defendants. That may in part have been influenced by a recognition that the hospital also sought leave to tender further medical reports in its own case. The hospital's case was very helpfully set out in written submissions prepared on its behalf by Mr Downing of counsel. Despite the risk of some duplication of matters with which I have already dealt, some reference to those submissions is both necessary and desirable. 45The reports of Dr Woodforth and Dr Raftos in question are in addition to reports from them that have already been served. No earlier reports from Ms Quinn have been served. 46The hospital objects to so much of the reports of Dr Woodforth and Dr Raftos and Ms Quinn as suggest that Mrs Perry should have been woken up after each of her bolus doses of epidural analgesia in order to take a pain score. The suggestion that Mrs Perry should have been woken at these times was put to nurses called by the hospital in March. The issue was whether sleep was itself a sufficient or reliable indication of the absence, or at least the adequate control, of pain as a result of the bolus doses. The hospital contends that it suffers prejudice because the issue of whether or not Mrs Perry should have been woken was not raised until after Dr Stephens had completed his evidence. 47The hospital alleged in these circumstances that if the issue had been alive at the time Dr Stephens was in the witness box, it was "open" to the hospital to pose "certain questions" to him in relation to his expectation about whether nursing staff should have woken Mrs Perry between 2130 hours on 26 June 2006 and approximately 0800 hours the following day. It is submitted that "depending on Dr Stephens' answers to those questions, there may have been further defences available to Tamara Private Hospital in terms of breach and [causation]". In this regard the hospital emphasised that the only evidence touching this question that was given by Dr Stephens was that he would not have expected Mrs Perry to sleep for long periods if she had been in significant pain. His interpretation of the pain scores recorded by nursing staff suggested that Mrs Perry's pain was either non-existent or insignificant whilst she was asleep. 48The hospital also objected to Mrs Perry now being permitted to rely on Ms Quinn's reports that suggest that the aim of post-operative analgesia is the maintenance of a Bromage score in the range of 0 - 1 and that any score greater than that at any time beyond four hours after the block has been commenced must be reported to an anaesthetist for assessment. Mrs Perry's case at all times prior to the service of Ms Quinn's reports, supported by Dr Woodforth and Dr Raftos, was that there was evidence of profound weakness by approximately 2130 hours on 26 June 2006, which should have prompted a report to Dr Lennox and/or Dr Stephens. Ms Quinn goes further and suggests that those attending upon Mrs Perry post-operatively should have had in mind the aim of her achieving a Bromage score of 0 - 1 within that four hour period. The hospital contended that as a matter of fairness, these things should have been put to Dr Stephens and the nurses from the hospital that gave evidence in March. 49In relation to the first matter it does not appear to me that Dr Stephens opinion on what the nursing staff should or should not have done is particularly significant, if it is significant at all. I do not intend to speculate about what the hospital's further questions might have been or what further defences the answers to the questions might have revealed. 50In relation to the second matter, no question of unfairness appears to me to arise. The ultimate issue of what the nursing staff should or should not have done in the circumstances at the time is a matter for objective expert opinion. The nursing staff have said what they did and to some extent why they did it. The later provision of an expert's report commenting upon the propriety of that conduct does not produce unfairness simply because that expert view was not put to the hospital's witnesses of fact. The acceptability or otherwise of an expert opinion concerning the propriety of the conduct of the nursing staff is not objectively informed by the hospital's subjective view on that issue expressed through its nursing staff who have not been put forward as experts. Dr Stephens and the nursing staff have expressed the opinion that they did not believe a Bromage score of 2 through the night of 26 June 2006 was unusual. That may or may not be correct. Ms Quinn suggests that their approach was wrong. That also may or may not be correct. However, just because there is a difference of opinion about it does not mean that it becomes necessary for Ms Quinn's expert views to be put to these witnesses for comment as a matter of fairness or for any other reason. It would be otherwise if the nursing staff were not challenged with factual matters about which they might be expected to have something to say. Moreover, if the hospital continues to consider that its witnesses have unfairly been denied the opportunity to provide an explanation for some conduct that is only criticised in these latest reports and after their evidence has been completed, and which they could not have been expected to anticipate, any perceived unfairness arising in such circumstances can be met by giving them the opportunity to serve supplementary statements dealing with the issues when they are identified. 51The hospital also made submissions on the intersection between the new reports upon which Mrs Perry wished to rely and her currently pleaded case on causation. The hospital perceives, alike with Dr Lennox and Dr Stephens, that Mrs Perry "seeks to leave open an argument that her lower limb paralysis would have been avoided or would have been less severe if the epidural had been removed at any time up until the time when it was in fact removed (0800 hours on 28 June 2006)". That is said to be consistent with senior counsel's opening and later expert opinion that Mrs Perry's "lumbar polyradiculopathy is dose related". 52In accordance with Mr Downing's submissions, all of the evidence served by Mrs Perry on the issue of causation prior to the latest material suggests that in order to have avoided the lumbar polyradiculopathy and its consequences, Mrs Perry's epidural needed to have been ceased at or shortly after about 2130 hours on 26 June 2006 when, according to Mrs Perry, the abnormally profound weakness and atypical pain first became evident. There is no suggestion to be found in the reports of Mrs Perry's experts, apart from those she now seeks to utilise, that she would have avoided her lumbar pathology or made a substantial recovery from it if the epidural had bee discontinued at, say, some time on the morning of 27 June 2006 or at some other time prior to its ultimate removal on 28 June 2006. 53The hospital then made the following written submission: "33. In the circumstances, Tamara Private Hospital has a significant concern that when this matter proceeds to further hearing and [Mrs Perry's] causation experts are cross-examined, attempts will be made to lead further evidence from them to improve [her] case on causation. As noted earlier, such evidence is prohibited pursuant to UCPR 31.28(3). [Mrs Perry's] refusal to confirm that her case on causation reflects and is limited to the expert opinions she has served to date and her determination during the [March] hearing to cross-examine the defendants' witnesses as to her management on 27 and 28 June 2006 leaves [the hospital] concerned that [she] will try [to] use the unusual splitting of the liability hearing in this matter to permit her to seek further expert evidence and change her case as she goes. That should not be permitted and the Court should require that [Mrs Perry's] primary case on causation be properly defined before the resumption of the liability hearing. 34 With respect, to leave [Mrs Perry's] case on causation as open ended as was suggested during [senior counsel's] opening is unhelpful to the court (noting the effect of ss 56 - 58 of the Civil Procedure Act) and ignores the fact that while [Mrs Perry's] experts do say that according to the literature, the condition she suffered is dose related, they also say that in order to avoid or lessen the severity of her injury, [her] epidural needed to be stopped (or the dose needed to be reduced to zero) at or about 2130 hours on 26 June 2006. In those circumstances, [Mrs Perry] should not be permitted to lead further expert evidence on the causation issue." 54It will be apparent from what I have said earlier that I consider that it would be an artificial application of the relevant rules to confine Mrs Perry to a case which is effectively contradicted by medical opinion from experts now in her possession. Whether what Mrs Perry now wishes to do amounts to an attempt to improve her case on causation remains to be seen. It seems to me to be more accurate to describe what Mrs Perry proposes to do as an attempt to present her case accurately rather than one partially based on a misconception. What is apparent is that a significant relationship appears to exist between the administration, continuation and ultimate cessation of particular doses of epidural analgesic and Mrs Perry's lumbar nerve root pathology. Mrs Perry's original pleading appears not to have accommodated that fact. Why that should have been so is presently unexplained and irrelevant. Its relevance is likely to arise in due course. 55It is plain to the point of demonstration that no court should knowingly be complicit in the hearing or conduct of a case upon a false or inaccurate factual basis. While parties must ultimately be confined to their pleaded cases, it is to my mind a step too far to do so if the foundation of the pleaded case is discovered to be wrong, and appropriate accommodation, whilst minimising prejudice to the opponent, is possible. I am not presently convinced that any of the defendants will have suffered a forensic prejudice that renders them any less likely or able to defend Mrs Perry's case assisted by the four medical reports upon which she now seeks to rely than they would have been if the reports had been served originally and her statement of claim had reflected what the reports now suggest. I am not satisfied that any of the defendants has been relevantly disadvantaged because of the way the hearing in March was conducted by them before these latest reports came to light. Any presumption that they have been prejudiced must yield to the absence of proof of any prejudice in fact. The question of costs is quite another matter. Conclusion 56Having regard to the contentions of all defendants I consider that this is a case in which Mrs Perry should be granted leave to rely upon the six expert reports upon which she now wishes to rely. I consider that the circumstances as I have outlined them are exceptional within the meaning of and for the purposes of UCPR 31.28(4)(a). Tamara Private Hospital's application 57The hospital seeks leave to rely upon three medical reports. UCPR 31.28 also governs this application. The reports and a summary of their conclusions are referred to in what follows. Dr Levitt 58Dr Michael Levitt is an anaesthetist. His report is dated 9 October 2012. He offered the following opinion: "Accepted standard practice among Specialist Anaesthetists in Australia is that where an epidural infusion is provided for post-operative pain relief, the infusion can be safely continued for up to 72 hours. Mrs Perry had her epidural infusion for analgesia from 1825 hours on 26 June (commenced in PACU) until its removal at 1030 hours on 28 June 2006 - a total of 40 hours and 5 minutes. This was well within accepted anaesthetic practice. Considering that, according to the contemporaneous nursing records, the patient was comfortable, pain appeared well controlled, and there was no other cause for concern, in my opinion leaving the epidural infusion continuing for this period was appropriate. There was absolutely no indication to remove the epidural infusion any earlier than 1030 hours on 28 June." 59Dr Levitt also expressed the view that an earlier cessation of the epidural would have made no difference to the outcome for Mrs Perry, either in terms of the establishment of her cauda equina syndrome or its severity. He described her condition as "unforeseeable and unexpected", as well as being "extremely rare". He said "there is no other treatment or intervention that could have been used after the completion of [Mrs Perry's] surgery on 26 June 2006 that would have resulted in her fully or substantially recovering". 60Dr Levitt's report is directly concerned with the case that Mrs Perry now wishes to articulate. Professor Myles 61Dr Paul Myles provided a report dated 14 October 2012. Dr Myles is a specialist anaesthetist. He was asked whether the nursing staff at the hospital displayed competent professional practice in the monitoring of Mrs Perry's Bromage scores. He said this in response: "I believe the nursing staff acted within the bounds of competent professional practice in the frequency of the reported observations and in particular the documentation of the Bromage scores. There is some room for criticism however, but the deficiencies are minor and I do not believe there is any reason to conclude that such deficiencies played any part whatsoever in the eventual adverse outcome in this case. The most likely cause was local anaesthetic-induced neurotoxicity associated with the spinal bupivacaine, not the epidural infusion of low concentration ropivacaine (with documented lower risk than other local anaesthetics administered spinally...In other words, there is no reason to believe that an earlier diagnosis could have changed the eventual outcome in any case." 62Dr Myles has thus raised an issue not previously the subject of any medical opinions in the case. Professor Watson 63Dr J D G Watson is a neurologist. He has provided the hospital with a report concerning Mrs Perry dated 24 October 2012. He was asked to set out his view as to the likely mechanism of Mrs Perry's injury. Part of what he said is as follows: "If it be accepted that Mrs Perry did suffer a toxic injury to the lower spinal nerve roots as a result of the Bupivacaine in my opinion the crucial point of analysis that has generally escaped attention is that it is far more likely that she had this injury with the spinal injection of Bupivacaine (rather than the epidural administration) - it was at a higher concentration and in a bolus rather than an infusion, and it was directly into the cerebrospinal fluid (CSF). In my opinion this reasoning can be supported on two bases. The first is by reasoning from first principles - a much faster administration of a higher concentration of a potential neurotoxin into the anatomical compartment that gives direct access to nerve roots (the CSF) should be more likely to cause a nerve injury than an epidural administration of the same anaesthetic agent at lower concentration rates and much more slowly. ... If this reasoning be accepted then it follows that the die was cast at the very beginning of Mrs Perry's operation with the spinal anaesthetic administration of the Bupivacaine. In my opinion this is the correct mechanism of injury and more likely than the epidural mechanism; the fact that pain reached Mrs Perry's awareness at 9 pm does not mean that it was at this time the injury was caused. So in summary I am of the opinion that the injury to nerve roots occurred at the very beginning of the operation, and that this was an idiosyncratic reaction. There was no evidence from the file that Dr Stephens could have been explicitly on the alert for this or could have done anything differently, having decided to use this combined approach to the anaesthetic." 64Dr Watson was also later asked whether, if the epidural infusion had been ceased at approximately 2125 hours on 26 June 2006 she would have recovered either completely or substantially. His response was relevantly in these terms: "I am of the opinion that the injury was caused at the very beginning of the procedure and that the epidural aspect (apart from perhaps serving to mask the symptoms and signs of the injury) had nothing to do with the injury. The same local anaesthetic agent was used, but with a different route of administration, different philosophy of administration and significantly higher dose at the beginning of the anaesthetic using the spinal technique. ... In other words, on balance of probabilities I am of the opinion that it was the spinal anaesthetic that caused Mrs Perry's injury and that earlier cessation of the epidural anaesthetic would not have made a substantial difference to the outcome." 65Dr Watson continued later in his report in these terms: "There is no reason to implicate the epidural infusion as a cause of Mrs Perry's injury. As stated above, it was much more likely to be due to the initial spinal anaesthetic or some rare underlying or pre-existing spinal inflammatory process unrelated to anaesthesia and surgery. The published articles...highlight the rare possibility of cauda equine syndrome...It is believed to result from direct neurotoxic effect of high concentration of local anaesthetic. Although most commonly reported following use of 5% lignocaine, it has been reported with bupivacaine... But I must emphasize - this complication of spinal anaesthesia is extremely rare, and there could be other (non-anaesthetic) causes of Mrs Perry's neurological injury. In conclusion, Mrs Perry most likely developed a lumbosacral polyradiculopathy (a variant of cauda equina syndrome) secondary to spinal (not epidural) injection of 0.5% heavy bupivacaine. This was not a predictable or preventable event. In the present case...it is possible that her obesity was an exacerbating factor because this may reduce spread or redistribution of the local anaesthetic of the spinal anaesthetic..." 66It will be apparent that, alike with Dr Myles, Dr Watson propounds an entirely new case in response to Mrs Perry's allegations. 67Mrs Perry only faintly opposes the hospital's application. The hospital's medical evidence to date 68The hospital had served two expert medical reports prior to the reports that are the subject of the present application. One is from Dr John Cummine dated 5 May 2009. The other is from a physiotherapist Mr Greg Schneider dated 22 April 2009. No party made any reference to these reports during the hearing of the present applications. Further conclusions 69I consider that the hospital should be given leave to serve and to rely upon these reports. In the same way that I was concerned about deciding this case with the benefit of all available and relevant medical material in Mrs Perry's case, so am I concerned that the same approach should be taken to the defendants' cases. All of these medical opinions focus upon a range of issues that have to some extent to date remained only in the background. This case should be determined having regard to a full consideration of these competing views. 70I consider that this is a case in which the hospital should be granted leave to rely upon the three expert reports upon which it now wishes to rely. I consider that the circumstances as I have outlined them are exceptional within the meaning of and for the purposes of UCPR 31.28(4)(a). Further conduct of the proceedings - pleadings and costs 71The remaining unresolved issue is what is to happen to the pleadings. I raised this at the very start of the hearing of these applications. The following portion of the transcript includes the relevant discussion: "HENNESSY...We can go into all those arguments if need be but I would like to leave them if I may because my case would be or I would have thought if the fourth defendant is successful as he ought be in his application. I have some written summary submissions. (Handed up). Part of the response to Professor Watson's report may involve an amendment of pleadings in relation to consent, in particular, but yes, so I should mention that. HIS HONOUR: You probably should. HENNESSY: Not only that, whilst we are on the pleadings I have a matter to confess, and it seems to me be my concession or comment seems to be in black and white here, having come from your Honour, but in any event I remember saying in the heat of the moment last time that essentially we were happy with the pleadings as they are. That is not quite right, in relation to Mr Downing in particular. What we had alleged, I think, is a failure on the part of the fourth defendant to essentially explain to its staff how to operate the protocol. What we should make clear, if we have not already done that, is that we are alleging that the fourth defendant failed to apply the protocols. So, I did mention that but only just before we came in here to Mr Downing. He was going to get instructions as to whether that presented a problem. HIS HONOUR: Having circulated a draft of the amendment you say is now needed. HENNESSY: I have not. I will do that shortly. HIS HONOUR: In one sense, it does not directly touch the present application but it may have an effect on other evidence. HENNESSY: Yes. Thank you, your Honour. HIS HONOUR: How soon can that be done? HENNESSY: Within an hour." 72Mr Hennessy's prediction was not fulfilled and remains that way. I have not had an indication of whether an application will be made for leave to amend the statement of claim. However, in that respect it is perhaps timely to recall what I said in my reasons published on 16 August 2012 on this topic: "One of the reasons that prompted me to require the plaintiff to provide an outline of its case was a concern that I had that there were some different views about the extent to which the pleaded case was either supported by the medical evidence or was complete in the light of some differences of opinion about what the medical evidence revealed. To a large extent those concerns have been allayed during the course of the discussion that has taken place today. For example, Mr Hennessy has indicated on behalf of the plaintiff that for his part no further amendment to the pleadings is anticipated, so that all parties are entitled now to be in no doubt that the further conduct of the proceedings will be had in the light of the plaintiff's case as revealed in the further amended statement of claim and the respective three defences to that pleading filed by the first, second and fourth defendants. I have indicated that if there is to be any change to that, which I don't anticipate and don't encourage, or if there is to be any proposal by any party to seek to rely upon medical reports other than those already served in accordance with directions or rules applying to the service of those reports, that party or those parties should as soon as possible seek whatever leave they need to rely upon those reports supported by evidence in the normal way and I will deal with it in advance of the hearing whenever it is allocated. If that approach is taken it seems to me that the matter is more likely to be concluded efficiently and promptly and the costs of either a conclave or concurrent evidence may well be avoided, and certainly the length of the trial may well be shortened if not all of the current medical experts are required physically to attend court to be examined." 73The applications with which I have just dealt came in response to that exhortation. No corresponding application to amend has yet surfaced. I anticipate that there will be a very significant debate about this issue. It will necessarily be informed and influenced by these reasons. I will await the parties' response to this issue when they have had an opportunity to consider them. I will also invite submissions on the not inconsiderable question of the costs of these applications. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2012