Bellifemini & Anor v Depuy Australia Pty Ltd & Ors No. DCCIV-00-1195

[2004] SADC 32

Bellifemini & Anor v Depuy Australia Pty Ltd & Ors
[2004] SADC 32

Judge Lee

Civil         

1. This is an appeal from an order in a personal injury claim that the third defendant give further and better discovery of documents to the second defendant.

2. The plaintiff’s claim concerns a hip replacement operation which he undertook on 26 September 1997.  The first defendant supplied the prosthesis, and the operation was performed by the second defendant at the third defendant’s hospital.  On 30 September 1997, the second defendant operated again to remove and replace the prosthesis.  On 2 October 1997, the plaintiff was diagnosed as suffering from a staphylococcus infection, which is described by the acronym MRSA.  The infection was treated by antibiotics.

3. The plaintiff alleges, amongst other things, that the wrong antibiotic regime was used to treat the infection.  As against the second defendant, the plaintiff alleges that he failed to ensure that proper or adequate infection control procedures were implemented both before and after the surgery.  As against the third defendant, the plaintiff alleges that the infection was acquired at the hospital, and that the third defendant failed to monitor the plaintiff for infection.  As against both defendants, the plaintiff alleges that each failed to maintain quality control data or a surveillance program for infections so as to be able to determine that MRSA was a threat to the plaintiff requiring the administration of medication specific to the infection.

4. In essence, the issue at trial for the plaintiff against each of the second and third defendants will be the source of the plaintiff’s infection and whether the defendant failed to implement and maintain adequate infection control procedures with respect to the plaintiff.

5. The second and third defendants have exchanged contribution notices.  In essence, the issue between them at trial will be whether, and to what extent, any responsibility to the plaintiff should be shared.

6. The categories of documents which are the subject of the order appealed against are described as follows:

   “11.2All documents created by the system implemented by the Hospital for the identification and management of patients colonised or infected with MRSA for the 12 months prior to 26 September 1997, including all data identifying the incidence and cause of infection/cross-infection.

   11.3All documents created by the Hospital in the 12 months prior to 26 September 1997 regarding the incidence of MRSA within the Hospital, including records identifying those cases which were transferred into the Hospital and those cases which were acquired within the Hospital.

   11.5Details surrounding the admission of the last patient known to have had MRSA, either within the Hospital or discovered upon being discharged/transferred from the Hospital, prior to 26 September 1997.

   11.6    All documents indicating the number and details of the Nosocomial MRSA infections experienced by patients in the Hospital in the 12 months preceding 26 September 1997.”

7. The relevant Rules provide:

   “58A.03The parties must discover in their lists of documents, but discover only, the documents which are or have been in their possession, custody or power which are directly relevant to any issue arising on the pleadings.

   58A.04(1)  Parties are not to include in their lists of documents any documents which are only indirectly relevant to any issue arising on the pleadings unless it is ordered by the Court where it is in the interests of justice to do so.

   (2)Where an order under (1) is made after a list of documents has been filed a supplementary list of documents is to be filed within 14 days of the order.”

8. In Rehn v Australian Football League & Ors (2003) 227 LSJS 378, the plaintiff obtained from a master an order for discovery of all player and marketing contracts in the AFL above a certain level of salary, for the purpose of establishing the plaintiff’s economic loss. On appeal, Doyle CJ examined the difference between “directly relevant” under Rule 58A.03 and “indirectly relevant” under Rule 58A.04(1). His Honour acknowledged that the line was difficult to draw but, in the end, found that the contracts were indirectly relevant to the plaintiff’s economic loss, and that it was in the interests of justice that they should be discovered.

9. His Honour contrasted the purposes of the two Rules.  Rule 58A.03 is the rule which imposes an obligation upon parties without the need for an order of the Court, and the purpose of that Rule is to limit the scope of the obligation so that unnecessary discovery will not be made as a matter of course.  The purpose of Rule 58A.04 is to empower the Court to extend discovery to documents which are indirectly relevant, but only if the justice of the case requires.

10. At paragraphs 22 to 25 of his reasons, his Honour said:

    “The purpose is, clearly enough, to limit the scope of discovery so that unnecessary discovery will not be made.  It was widely accepted that the cost of the discovery process, because of the breadth of the former obligation to make discovery, was disproportionate to the contribution the discovery process made to the just and efficient disposition of civil litigation.

    The obligation to make discovery is now limited to documents directly relevant to an issue arising on the pleadings.  The meaning to be given to r58A.03 is to be found to some extent in the contrast with the former obligation to discover documents relating to any matter in question in an action, an obligation which had been interpreted broadly: see Mulley v Manifold  (1959) 103 CLR 341 at 345 Menzies J, and Quenchy Crusta at [8]-[13].  Thus the meaning of r58A.03 emerges, in part, from an understanding of the change that it was intended to effect.

    However, as I commented in Quenchy Crusta, it is not possible to state precisely the effect of the adverb “directly” in r58A.03.  Indirect relevance to an issue is not enough for the purposes of r58A.03, but distinguishing between direct and indirect relevance is not easy.

    It is consistent with the intent of r58A.03 to apply the requirement of direct relevance firmly, and to give it a relatively narrow meaning.  To hold that a document is not directly relevant to an issue arising on the pleadings is not to deprive a party of access to the document.  The effect of such a holding is merely that the requirement to discover the document is not imposed by r58A.03, and that the court will decide, on application to it, whether the document must be discovered.  In other words, r58A.03 draws the line between an obligation to make discovery as a matter of course, and an obligation to make discovery upon application to the court and after the court has considered whether the interests of justice requires that discovery should be made.”

11. In Quenchy Crusta Sales Pty Ltd v Logi-tech Pty Ltd & Anor (2002) 223 LSJS 266, Doyle CJ said (at para 10):

    “I agree with the observations made by Bleby J in Southern Equities Corporation Ltd (In Liquidation) v Arthur Andersen & Co (No.5) [2001] SASC 335. The test of relevance is to be applied by reference to the issues arising on the pleadings. The obligation to make discovery is not limited to documents that are admissible in evidence. Although I do not have to decide it in this case, I am inclined to agree with Bleby J that a document is discoverable if it constitutes circumstantial evidence, tending, along with other evidence, to prove or disprove a matter in issue on the pleadings: see also Robson v R E B Engineering Pty Ltd [1997] 2 QR 102 at 105.”

12. It may well be that the process of discovery in the case before me has travelled beyond the question whether the documents sought by the second defendant have a direct relevance to an issue arising on the pleadings.  Now that the matter is before the Court, and now that particular classes of documents have been identified, a master or judge can legitimately go straight to the question whether a document is relevant and, if so, whether it should be discovered “in the interests of justice”.  This approach would bypass the often difficult question whether the relevance of the documents is direct or indirect.

13. However that may be, my conclusion is that the classes of documents sought by the second defendant are directly relevant to an issue which arises on the pleadings and ought therefore to be discovered under Rule 58A.03.  The documents will show whether the third defendant had any and what experience of MRSA at the hospital during the preceding twelve months, and whether the third defendant had in place any and what procedures to prevent the infection and to manage the infection in the event that it occurred.  The third defendant’s state of knowledge and practice with respect to these questions will bear directly upon its duty of care to the plaintiff.

14. If, contrary to my opinion, the documents are indirectly relevant only, I consider that discovery of them is required by the interests of justice.  I am drawn to that view by some of the considerations which the Chief Justice discussed in Rehn.  The documents will be admissible at the trial.  Given the statistical nature of the contents, proof would be difficult if not impossible by any other means.  The third defendant has not attempted to show that production of the documents would be an onerous task or will involve significant expense.  And, if necessary, a masking exercise will protect the confidentiality of persons unconnected with the litigation.

15. The appeal is dismissed.