What stage of the tumour would have been in mid-October, 1999?

None of the experts could express an opinion about what stage the tumour was, or would probably have been clinically determined to be, in mid-October, 1999. However, the trial judge was free to apply the robust and pragmatic approach, approved of in Snell v. Farrell, to the evidence in this case considering that: 1. The experts were unable to say on a scientific basis the stage of the tumour in October 1999, but there was evidence relevant to that issue; 2. The appellant was in the better position to determine the stage of the tumour by palpation or referral in September 1999 (he did neither); and 3. While the action or lack of action of the appellant did not make it impossible for anyone else to determine the stage of the tumour in October 1999, it did mean that the respondent, relying on the appellant’s professional opinion, had no reason to request such an examination until 5 months later, when the disease, all agree, had progressed.