Case v Commonwealth of Australia

[2018] VSC 504

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURY LIST

S CI 2016 01046

LESLEY MARGARET MARY CASE AND OTHERS (according to the schedule attached)	Plaintiffs
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDICIAL REGISTRAR:	Clayton
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2018
DATE OF RULING:	4 September 2018
CASE MAY BE CITED AS:	Case & ors v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2018] VSC 504

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PRACTICE AND PROCEDURE – Discovery – Whether document relevant to the issues in dispute – Supreme Court (General Civil Procedure) Rules 2015 (Vic), O 29 – Discovery granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Tobin SC	Holding Redlich
For the Defendant	Mr D C Oldfield	Australian Government Solicitor

JUDICIAL REGISTRAR:

1. The background to this matter is the death of Lieutenant Marcus Case, who was deployed to Afghanistan and killed in the line of duty when the helicopter he was in crash landed on 30 May 2011.  Following this incident, there was a Commission of Inquiry (‘the Commission’), some or all of which was open to members of the public to attend. 

1. The plaintiff is the deceased’s brother.  He claims that his brother’s death was caused by the negligence of the defendant and that, as a result of the negligence, he has suffered psychiatric injury, loss, and damage.  He makes a claim for past loss of earnings and future loss of earning capacity.[1]

   [1]Amended Statement of Claim dated 13 April 2017 [9].

1. The plaintiff attended the Commission.  By summons dated 24 August 2018, the plaintiff seeks discovery of ‘the transcript of the evidence given in the public domain in the Commission of Inquiry into the crash of the Chinook Helicopter in Afghanistan on 30 May 2011 involving the death of Lieutenant Marcus Case (deceased)’.[2]

   [2]Summons filed 24 August 2018 [1].

1. The plaintiff submits that the transcript is relevant to this proceeding because events that occurred at the Commission caused an exacerbation of the psychiatric condition he sustained as a result of the death of his brother.  Specifically, it is his view that counsel assisting the Commission sought to lay blame for the accident on his brother. 

1. The plaintiff has been assessed for medico-legal purposes by psychiatrists, Professor Lorraine Dennerstein and Dr Nicholas Ingram.  Dr Ingram notes:

One of the things that had particularly upset Mr Case about the whole affair had been the Commission of Inquiry into Marcus’ death.  Mr Case was both an engineer and a lawyer and had good experience of holding inquiries and he said this particular inquiry had been done very badly and to his mind the counsel assisting the inquiry had been incompetent.  What had been especially galling had been that in the very first day of the inquiry this counsellor had implied that the accident had occurred because of Marcus’ irresponsibility in sitting at the back of the helicopter, even though this was standard practice, and Mr Case had seen this as an attempt at “character assassination”, an attempt to blame Marcus for his own death, rather than accept that the army had been at fault.  He had also felt that the solicitor had specifically lied to Mr Case and the family about how the Commission of Inquiry would be held and he still felt extremely angry and upset about this.[3]

[3]Report of Dr Nicholas Ingram dated 2 March 2018, page 2.

1. The plaintiff submits that it is relevant to how the trier of fact will assess his injury, and particularly his claim for economic loss, if the plaintiff’s view of how the Commission was conducted was objectively reasonable, or whether he displayed a ‘hypersensitivity’ and whether any such ‘hypersensitivity’ derives from the injury caused by the defendant, or some other cause.

1. The defendant argues that the transcript of the Commission could not be relevant to any issue in dispute in the proceeding. 

1. The defendant has admitted, in its Amended Defence dated 26 June 2018, that it breached its duty of care to the plaintiff and that the plaintiff has suffered a compensable injury as a result of that breach.[4]  It otherwise denies the allegations the plaintiff makes in paragraph 9 of his Amended Statement of Claim.

   [4]Amended Defence dated 26 June 2018 [9].

1. The defendant says that the only issue between the parties is the nature and extent of the injury, loss, and damage suffered by the plaintiff, as a result of the breach of duty and negligence of the defendant.  The defendant points out that it is not part of the plaintiff’s pleaded case that he suffered injury or exacerbation of injury by reason of the Commission or the conduct of the defendant during the Commission.

1. Further, the defendant says that the fact that the plaintiff attended the Commission and the fact of his reaction to the Commission are not in dispute and, even if they were, the content of the transcript cannot rationally affect the probability of the existence of those facts.

1. Finally, the defendant says that the transcript is in excess of 3,500 pages; it is subject to a direction prohibiting disclosure; and likely contains reference to a substantial volume of confidential, sensitive, and privileged information.  The time and cost associated with reviewing and redacting the transcript would be disproportionate to any impact it could have on any issue in dispute.

1. Having considered the submissions of the parties, I have formed the view that the transcript is relevant to the proceeding and ought to be discovered.

1. The Supreme Court (General Civil Procedure) Rules 2015 (Vic) require a party to make discovery of documents on which the party relies, documents that adversely affect the party’s own case, documents that adversely affect another party’s case, and documents that support another party’s case.[5]

   [5]Supreme Court (General Civil Procedure) Rules 2015, o 29.

1. The plaintiff makes a claim for psychiatric injury arising from the circumstances of the death of his brother.  In assessing his psychiatric injury it is relevant to the trier of fact to have before him or her information about all the circumstances that gave rise to the injury.  This would include the circumstances of his brother’s death, and the inevitable consequences of the death, such as the Commission.  It is artificial to compartmentalise the simple occurrence of the death from all the circumstances which gave rise to, and followed from, the death. 

1. It is clear from the reports of Dr Ingram and Professor Dennerstein that the Commission was a significant factor for the plaintiff in his reaction to the death of his brother, as were other matters including his professional background and his personal relationship with his brother. 

1. The defendant admits liability but other than admitting that the plaintiff has a compensable injury, it does not accept the plaintiff’s assessment of his injury, loss, and damage.  The extent of the plaintiff’s injury, loss, and damage is a fact in issue.  It may be important for the trier of fact to have the transcript available to fully understand the nature and extent of the plaintiff’s injury.

1. I accept the defendant’s submission that the transcript is long.  The defendant submitted that the transcript is ‘likely’ to contain reference to a substantial volume of confidential, sensitive, and privileged information; however, I have no evidence before me about what would be involved in providing the transcript.  It appears that the transcript has been reviewed, as Exhibit LKR-6 of the Affidavit of Louise Rafferty dated 30 August 2018 refers to a General David Hurley AC DSC having made an ‘assessment’ of the transcripts, but such a review may not have been for legal purposes and an identification of the potential confidential, sensitive, and privileged information may not have yet been made.  The plaintiff has made it clear that he only seeks the transcript of the public hearing that relates to his brother.  I imagine that large parts of the transcript will deal with the technical specifications of the helicopter, information provided by the manufacturer about the helicopter, and the training provided in relation to the helicopter.  The plaintiff does not seek the transcript of this evidence and I expect that this will significantly reduce the quantity of the transcript that needs to be reviewed and provided.

1. I therefore order that the defendant make discovery of those parts of the transcript of the Commission that were both public and relate directly to Lieutenant Marcus Case.

SCHEDULE OF PARTIES

S CI 2016 01046
BETWEEN:
LESLEY MARGARET MARY CASE	First Plaintiff
ROBERT LESLIE CASE	Second Plaintiff
MICHAEL JAMES CASE	Third Plaintiff
JACQUELINE LOUISE CASE	Fourth Plaintiff
ELIZABETH ANNE BELL	Fifth Plaintiff
CHRISTOPHER CASE	Sixth Plaintiff
BERNARD JOHN CASE	Seventh Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant