Lambropoulous v Adelaide Community Healthcare Alliance Incorporated v Van Renen (No 2)
[2021] SADC 2
•15 January 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
LAMBROPOULOUS v ADELAIDE COMMUNITY HEALTHCARE ALLIANCE INCORPORATED v VAN RENEN (No 2)
[2021] SADC 2
Judgment of her Honour Judge Deuter
15 January 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
Application by Third Party seeking that the Respondent give further and better responses to a Notice to Admit Facts and Documents - 31 responses to assertions of fact and 12 responses to assertions of admissibility of documents under challenge.
Consideration of purpose of notice to admit - Consideration of Uniform Civil Rule 117.2 and adequacy of responses - Consideration of objects of Uniform Civil Rules (2020) SA and obligations of legal practitioners.
Held:
1. Application granted in relation to assertions of fact numbered 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 17, 18, 19, 20, 21, 24, 36, 37, 39, 41, 42, 43, 44, 46, 48, 49.
2. Application granted in relation to admission of documents at numbers 52(c), 53, 54(c), 55(c), 56(c), 58(c), 59(c), 60(c), 61(c), and 62(c).
3. The court will hear the parties as to any consequential orders and costs.
Uniform Civil Rules 2020 (SA) r 1.5, r 3.1, r 117.1, r 117.2 ; District Court Civil Rules 2006 (SA) r 156(6)(b)(i); Civil Liability Act 1936 s 6 (repealed); Evidence Act 1929 (SA) s 34C, s 52, s 53 and s 45a, s 45b, s 45c (repealed); , referred to.
Lambropoulous v Adelaide Community Healthcare Alliance Incorporated v Van Renen [2020] SADC 163; Southern Equities Corporation Ltd (in Liq) v Bond (No2) (2000) 34 ACSR 660; R G & R T Trott Pty Ltd & Anor v A & G Engineering Pty Ltd & Anor [2014] SASC 80; S, D R v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Commission (No 2) [2007] SASC 30; Rak v Coles Myer Ltd (1996) 68 SASR 272, applied.
LAMBROPOULOUS v ADELAIDE COMMUNITY HEALTHCARE ALLIANCE INCORPORATED v VAN RENEN (No 2)
[2021] SADC 2
Application
The second third party, Dr Graham Van Renen (‘the third party’) made an oral application in court on the 15 December 2020 (‘the application’), seeking that the respondent give further and better responses in respect of a Notice to Admit Facts and Documents (‘notice to admit’) filed on 26 November 2020.[1] As the matter is listed for trial on 1 March 2021, and with the intervening Christmas break, I had granted leave to the third party to make any application at a directions hearing listed for the 15 December 2020 due to the pressures of time. Correspondence to the respondent’s solicitors, emailed on the morning of 14 December 2020, confirmed that the third party was not satisfied with the responses to the notice to admit on various grounds, and that at the hearing on 15 December 2020 he would be pressing for a better response to all assertions not unequivocally admitted.
[1] FDN 36.
The third party had made an earlier application seeking leave to file a notice to admit facts and documents addressed to the respondent, out of time.[2] That application led to an argument and I delivered judgment on 25 November 2020 granting leave to the third party to file the notice.[3] At the time of granting leave there was strong indication from the respondent that it had significant concern with the facts and documents sort to be admitted. For that reason, the matter was set down for argument on 15 December 2020.
[2] FDN 28.
[3] Lambropoulos v Adelaide Community Healthcare Alliance and Van Renen [2020] SADC 163.
The claim
The background of the dispute between the respondent and the third party was set out in detail in the previous judgment. The issue in dispute is the cause of the death of the applicant’s husband Mr Lambropoulos after he had undergone surgery at Ashford Hospital, a hospital owned and operated by the respondent. Following his surgery on 25 November 2013 Mr Lambropoulos was transferred to the High Dependency Unit (HDU). The respondent alleges that the third party, being the treating anaesthetist should have directed that Mr Lambropoulos be transferred to the Intensive Care Unit (ICU) where he would have received a higher level of care. The third party denies that any actions or decisions made by him were causative of Mr Lambropoulos’ death, and that it was reasonable and appropriate for him to be transferred to the HDU. He pleads that it was the acts or omissions of the staff employed by the respondent that caused Mr Lambropoulos’ death. He positively pleads that the respondent’s negligence in relation to the treatment of Mr Lambropoulos after surgery “was so gross as to be both inexcusable and a serious unforeseeable dereliction of the duty of the defendant [respondent] owed to Mr Lambropoulos and the plaintiff [applicant]”.[4]
[4] Second Defence of Second Third Party (FDN 23) at para 16(k).
He also pleads that the effect of the respondent’s gross negligence and inexcusable, serious and unforeseeable dereliction of duty “…operates as a novus actus interveniens, so that even if there was negligence by him (which is denied), the death of Mr Lambropoulos and the plaintiff’s [applicant’s] loss and damage are solely attributable to the defendant [respondent]”.[5]
[5] Second Defence of Second Third Party (FDN 23) at para 16(n).
In my previous judgment I set out the detail of the draft notice to admit and considered the law in relation to the purpose and utility of notices to admit. I addressed in detail the arguments of both parties in relation to the draft notice to admit, which is the exact same document which was filed and became FDN 36.
The third party argued upon the leave application that the facts sought to be admitted had all been ventilated at a Coronial Inquest held into the death of Mr Lambropoulos. The respondent would not be surprised by the issues raised, and that the facts and documents sought to be admitted were all established by the evidence led at the inquest from employees or agents of the respondent. The third party argued that the facts sought to be admitted in relation to the nature and extent of the monitoring of Mr Lambropoulos while in the HDU over 25 November 2013 came from the respondent’s employees or their agent, as per evidence at the inquest. It was submitted that the evidence had been thoroughly tested by several counsel at the inquest. I will not repeat the arguments and matters outlined in the previous judgment nor the respondent’s response thereto, as they are matters that I will address in considering the further application now before me.
However, I note that in granting leave to the third party to file the notice to admit I adopted the words of Debelle J in Southern Equities Corporation Ltd (in Liq) v Bond (No. 2) where he said:
… that the parties must address what is truly in dispute cannot be overstated. Too often parties, or their legal representatives, fail to do, thereby causing litigation to be unnecessarily protracted with the obvious consequences that the litigation is unnecessarily costly.[6]
[6] (2000) 34 ACSR 660 at para [80].
I also applied the comments of Lander J in relation to proof of documents, where he noted that Parliament had recognised that the formal proof of documents at trial when they are not in dispute, can be expensive and time consuming by introducing (the then) ss 45a, 45b and 45c of the Evidence Act 1929 (SA) in relation to proof of business records. He concluded:
When one has regard to the reforms that have been made to the Rules of Court in the recent past, the sections of the Evidence Act and the modern approach to the Law of Procedure, it can be seen that the intention of both the Parliament and the courts is to ensure that any matter that is not subject to any genuine dispute, or any document about which there is no real dispute, ought to be proved quickly and without the previous requirement of formality. The whole object is to require the parties to focus their attention on the matters genuinely in dispute so as to avoid the parties incurring the needless cost involved in lengthy litigation and to avoid the State bearing the cost of the administration of justice.[7]
[7] Rak v Coles Myer Ltd (1996) 68 SASR 272 at 278.
In the previous judgment I confirmed that the purpose of a notice to admit, is to have the parties face up to the issues that are truly in dispute between them, and to ensure that it is only those issues genuinely in dispute that will take up time at trial.
Responses to Notices to Admit
Notices to admit are now governed by Rule 117.1 of the Uniform Civil Rules 2020 (‘UCR’). The responses to assertions in a notice to admit are governed by UCR r 117.2:
117.2—Response
(1) A party to whom a notice to admit is addressed must, within 14 days after receipt of the notice to admit or such other time as may be fixed by the Court, file and serve a response responding to each assertion by either—
(a) admitting the assertion;
(b) denying the assertion and explaining why;
(c)stating that the party is not in a position to admit or deny the assertion and explaining why; or
(d) claiming privilege or some other proper ground for refusing to respond.
(2) A response to a notice to admit must be in the prescribed form.
Prescribed form—
Form 102 Response to Notice to Admit
(3) If the party to whom a notice to admit is addressed—
(a)does not respond to a particular assertion, the party is taken to have admitted that assertion; or
(b)does not file a response within the time referred to in subrule (1), the party is taken to have admitted each assertion in the notice to admit.
(4)The Court may, on application made within 14 days after a response is served, order the giving of a better response.
(5)A party may not withdraw an admission having effect under this rule without leave of the Court.
The UCR, which apply from 18 May 2020, differ only slightly from the previous District Court Civil Rules 2006 (SA) in relation to what is a proper response to a notice to admit. Both rules, give the party serving the notice a time frame in which to apply to the court to have the responding party provide a better response.
The one difference between UCR r 117.2 and the previous District Court Rules r 156(6) in relation to responses to a notice to admit relates to a denial of any assertion. As set out above, UCR r 117.2(1)(b) provides that in answering a notice to admit the responding party can deny the assertion and explain why. The corresponding District Court Rule provided that the responding party could respond to the notice by “…denying the assertion and stating the grounds of the denial”.[8]
[8] District Court Civil Rules 2006 (SA), r 156(6)(b)(i).
It was not argued that there is any practical difference in the wording of the two rules, or that the previous case law in relation to answers to notices to admit does not continue to be relevant and applicable. In my view the only difference in the two rules is one of language, with the language in the UCR being more concise. The meaning of UCR 117.2(1)(b) is clear. A mere denial of an assertion is not a proper response, as it was not under the previous District Court Rule 156(6). In denying an assertion it is necessary to fully explain why the assertion is denied.
However, in the new UCR also contain an object that must be taken into account in determining any application:
1.5 Object
The object of these Rules is to facilitate the just, efficient, timely cost – effective and proportionate resolution or determination of the issues in the proceedings governed by these rules.
UCR 12.2 provides that the Court in making orders may have regard to the object of the rules including the efficient use of judicial and administrative resources and efficient conduct of the business of the court.
I take these rules into account and the principles behind them in considering the third party’s application.
Response to the Notice to Admit
The third party’s notice to admit sets out 49 assertions which he seeks to be admitted; and seeks the admission of 13 documents. All of the facts and documents relate to the monitoring of Mr Lambropoulos whilst in the HDU of Ashford Hospital over 25 November 2013. The assertions go to the equipment used to monitor Mr Lambropoulos, data taken from that equipment, and alarms that emanated from that equipment. Several of the facts and several of the documents relate to a Mr Brett Randell (‘Randell’) a biomedical engineer who worked for a company that in 2013 provided contract services to Ashford Hospital. He was involved in providing advice to the respondent in relation to the equipment used to monitor Mr Lambropoulos following his surgery. In addition, documents and information from two nurses who were employees of the respondent are sought to be admitted. They both provided care to Mr Lambropoulos on 25 November 2013.
18 of the 49 factual assertions are admitted by the respondent, and 1 of the 13 documents. Of the remaining responses, that are under challenge, these can be grouped together as they often involve common issues. I will consider them in those groups.
(1) Responses regarding the phrase ‘Pulse Oximetry Monitoring Equipment’
In paragraph 1 of the notice to admit it is asserted that “during the time Mr Lambropoulos was a patient in the HDU on the 25th November 2013 he was connected to pulse oximetry monitoring equipment”.
In response to that assertion the respondent answered as follow:
The Respondent is unable to admit or deny this assertion as it is vague. The phrase “pulse oximetry monitoring equipment” is not defined. If it is intended to be the equipment described in assertion 4 then this is denied as what Mr Lambropoulos was connected to from time to time whilst in HDU was a “finger probe”. This in turn was connected by leads to a bedside monitor. Further the assertion can either be interpreted as a asserting that Mr Lambropoulos was “continuously” connected to the pulse oximetry monitoring equipment while in HDU or that he was “from time to time” connected. The respondent does not know which alternative is being asserted.
The monitoring of Mr Lambropoulos by the use of pulse oximetry monitoring equipment is referred to in assertion nos. 2, 3, 4, 5, 11, 13, 15, 17,18, 19, 21, 24 and 36. By its response to assertion nos. 11, 13, 17, 18, 19, 21, 24 and 36, the respondent admits the assertion, subject to the qualifications set out in its response to assertion no. 1.
The two issues raised by the respondent in its response to assertion no. 1 are the lack of definition of the term ‘pulse oximetry monitoring equipment’; and what length of time is it asserted that Mr Lambropoulos was connected to any such equipment while in HDU. These two issues are a thread that run through all 14 responses.
The third party, relying upon comments of Debelle J in Southern Equities Corporation Ltd (in Liq) & Others v Bond (No2)[9] argued that the response to assertion no.1 was a pedantic construction of the assertion, and an attempt to evade dealing with the true issues in dispute. In dealing with an earlier Supreme Court Rule, r 54.02(3) in relation to notices to admit Debelle J stated:
When taking objections, parties should be alert to the terms of r 54.02(3). It is implicit in that rule that objections grounded on a pedantic construction of a question or which seek to evade the issue are not likely to be sympathetically considered. This amounts to no more than emphasising the effect of the remarks of Lander J concerning the purpose of the notice to admit procedure and the need for parties to face up to the real issues and to identify what is truly in dispute.[10]
[9] (2000) 34 ACSR 660.
[10] Ibid at [24].
The third party argues that distinguishing between the finger probe attached to Mr Lambropoulos’ finger, and the bedside monitoring equipment is a pedantic construction of assertion no. 1. In relation to the monitoring of Mr Lambropoulos while in the HDU the third party’s counsel took me to paragraph 6.3 of the respondents’ defence where it is pleaded that Mr Lambropoulos “was connected to a respiratory alarm for the purpose of oximetry monitoring”, and paragraph 6.4 where the respondent admitted that it failed to take appropriate action in response to alarms sounded by the respiratory alarm for oximetry monitoring to which Mr Lambropoulos was connected. The third party submits that nowhere in the pleadings is it stated that Mr Lambropoulos was connected to a finger probe. The respondent sets out in its response to assertion no.1 that the finger probe connected to Mr Lambropoulos was in turn connected to equipment which monitored his oxygen levels. Counsel for the third party argued that to distinguish between connection to the finger probe and connection to the monitoring equipment was simply being pedantic.
The third party also took me to a letter that had been forwarded by the respondent's solicitors to their expert witness, Ms Michelle Catlin. During the argument in relation to leave to file the notice to admit the respondent indicated that Ms Catlin had been retained to give evidence regarding the nature of what had been recorded on monitoring equipment connected to Mr Lambropoulos. A letter of instruction to Ms Catlin dated 24 July 2019 had been discovered by the respondent as part of the discovery process, and as part of the process in obtaining expert evidence. This letter of instruction included the following paragraphs:
In particular, of interest in relation to our area of concern, Mr Randell gave evidence at the inquest as to the testing he conducted on the monitoring equipment in Bay 3 of HDU (where Mr Lambropoulos was located following surgery). That equipment in Bay 3 of HDU included:
002903ACH: Philips IntelliView monitor M8002A
Module asset: 02623ACH which is a x2 (x2MMS).
The coroner found, on the basis of Mr Randell’s analysis, that over a period of 40-45 minutes there were 33 recorded alarms from the patient’s pulse oximetry monitoring equipment, including three crisis alarms.[11]
[11] Exhibit RMS 2 to the Affidavit of Richard Mark Smith dated 14 December 2020 (FDN 41).
The third party argues that the solicitor acting for the respondent was clear in her mind when writing to the expert witness that Mr Lambropoulos, whilst in the HDU, was connected to pulse oximetry monitoring equipment. There was no assertion made in the letter that he was connected to a finger probe. In any event, assertion no. 4 of the notice to admit sets out clearly what the third party asserts the pulse oximetry monitoring equipment consisted of:
The pulse oximetry monitoring equipment to which Mr Lambropoulos was connected comprised a monitor fixed to the wall to the bay in which Mr Lambropoulos’ bed was situated, a module which could be detached from the monitor to enable it to be moved with the patient (the portable module) and a central monitor comprising two computer screens at the central nurses station in HDU which mirrors the information from the individual patient monitor screens.
The third party says this is a clear definition as to what was intended by the use of the term ‘pulse oximetry monitoring equipment’ in the notice to admit.
The respondent maintained that there is a lack of definition of what is meant by the term ‘pulse oximetry monitoring equipment’. The term is not referred to or defined in the third party’s second defence, nor is it defined in the opening paragraph of the notice to admit where five definitions of other matters are set out. It was submitted that the respondent was left to guess what the third party was referring to when using that phrase as contained in assertion no. 1. The respondent acknowledges that in the Particulars of Claim oximetry monitoring is referred to, however, submitted that this is completely different to the phrase ‘pulse oximetry monitoring equipment’.
In responding to the third party’s criticisms of its responses to the notice to admit, the respondent relies upon comments made by Judge Dart in R G & R T Trott Pty Ltd & Anor v A & G Engineering Pty Ltd & Anor, where he states:
The obligation on a party who is required answer a notice to admit is to respond to each of the assertions in a way that complies with subrule 165 (6). If a party provides a response that complies with subrule (6), it would be rare for the Court to go behind that. It is not the role of the Court, at an interlocutory stage, to determine whether the response provided is correct….
…
It would follow that if a party declines to admit the admissibility of a document on an appropriate ground, the Court would not go behind a response to determine whether or not the ground will ultimately be made out. At an interlocutory stage a judge or master is not necessarily well-placed to determine issues of admissibility, other than in a general way. The admissibility of a document at trial is primarily an issue for the trial judge.[12]
[12] [2014] SASC 80 at para [10]-[11].
I was also taken by the respondent to a brief passage of Lander J in Rak v Coles Myer Ltd, where he stated:
I do not agree that a fact is “too general” is an appropriate reason for failing to admit the fact. True it is of course a party cannot ask another party to admit conclusions of fact. Each fact sought to be admitted must readily be identifiable as a fact.[13]
[13] (1996) 68 SASR 272 at para 282.
The respondent argues that many of the assertions in the notice to admit and particularly the assertions in relation to the pulse oximetry monitoring equipment, are not identifiable as facts when read as stand-alone statements, and that it is not for the third party to point to extraneous material to explain what the assertion or fact means. This is not a case as referred to by Debelle J in Southern Equities Corporation Ltd (in Liq) v Bond (No2) in relation to a complaint that expressions in a notice to admit had not been defined:
These expressions are in large part defined in the statement of claim. It is reasonable to infer the same definitions have been utilised in the notice to admit. I direct that where the notice uses expressions as defined in the Statement of Claim, those expressions will have the same meaning as in the Statement of Claim.[14]
[14] (2000) 34 ACSR 660 at [19].
Decision
I have reviewed the position of each party and the authorities. It is my view that assertion no.1 is clear and unambiguous. The pleadings clearly outline that Mr Lambropoulos was being monitored in the HDU following his surgery and that this was oximetry monitoring. Although the drafting is clumsy, and not as precise as it could be, the assertion is that Mr Lambropoulos while a patient in HDU on 25 November 2013 was connected to pulse oximetry monitoring equipment. That equipment does not have to be defined for the required response to assertion no. 1 to be more precise. It is a pedantry response to state that Mr Lambropoulos was connected to a finger probe that was connected to a bedside monitor, without stating whether the respondent is admitting or denying that this bedside monitor was pulse oximetry monitoring equipment. Any monitoring equipment in an ICU or HDU of a hospital must be connected to the patient by some probe, sensor or tube attached to their body, be that a finger probe, catheter, breathing tubes or otherwise. These attachments connect to the monitoring equipment and can only be regarded as part of the equipment. It is not a proper answer to respond to assertion no. 1 by distinguishing between the physical connection to Mr Lambropoulos’ body, (‘the finger probe’) and the connection to the hardware monitoring his respiratory function.
The assertion also does not state that Mr Lambropoulos was connected to the equipment continuously nor connected from time-to-time. It asserts that during the time Mr Lambropoulos was a patient in HDU on 25 November 2013 he was connected to the equipment. That can be confirmed or denied. The correspondence from the respondent with its own expert, sets out this connection as a fact. If Mr Lambropoulos was not continuously connected to pulse oximetry monitoring equipment, then that should be stated by the respondent in its response. I can see no reason why the respondent is not in a position to provide an unequivocal response to assertion no. 1 and set out the periods (if any) when Mr Lambropoulos was connected to the equipment, and when he was not. This is an important aspect of narrowing the issues in dispute between the parties.
I order, that pursuant to UCR r 117.2(4), the respondent give a further and better response to assertion no. 1.
As a result of this order, I also order that the respondent give a further and better response to assertion nos. 11, 13, 17, 18, 19, 21, 24 and 36 of the notice to admit. The response to these assertions was that they were admitted “subject to the qualifications in response to assertion 1”. The respondent’s better response to assertion no. 1 will meet the third party’s complaint regarding the response to these eight further assertions.
(2) Responses to assertion nos. 2, 3, 4, 5, 15 and 16
In relation to other paragraphs of the notice to admit which involve the interpretation of assertion no. 1, there are additional matters which were raised by the respondent in their response to those paragraphs.
(i) Assertion no. 2:
Assertion no. 2 in referring to assertion no. 1 seeks that the following be admitted:
This pulse oximetry monitoring equipment was in proper working order during the time Mr Lambropoulos was a patient in HDU.
In addition to stating that the phrase ‘pulse oximetry monitoring equipment’ is not defined, the response is that:
…the assertion does not state whether the ‘time’ referred to therein was the entire time Mr Lambropoulos was in HDU or when Mr Lambropoulos was connected to it.
The third party argues that the second part of assertion no. 2 is clear and “quite plain” and submitted that the response was an attempt to evade dealing with an important issue between the parties. I agree. The assertion states, and quite clearly, that the pulse oximetry monitoring equipment was in proper working order when Mr Lambropoulos was a patient in the HDU. It is not asserted that he was connected to it the whole time he was in HDU. This will likely be an important issue to be determined at trial but is not the assertion that is put. The assertion is that the equipment was in proper working order during the time Mr Lambropoulos was a patient in HDU. It is a straightforward and clear statement.
I find that the respondent has not properly responded to the assertion, and I order that the respondent give a further and better response to all of assertion no. 2.
(ii) Assertion no. 3:
Assertion no. 3 of the notice to admit seeks an admission that the pulse oximetry monitoring equipment to which Mr Lambropoulos was connected stored electronically data from the equipment. In addition to their complaint regarding the lack of definition of pulse oximetry monitoring equipment, the respondent’s response is that the phrase ‘stored electronically data from the equipment’ is nonsensical, tautologous and vague.
The third party submitted that the assertion was perfectly plain and obvious and took me to the findings of the Coroner from the inquest in relation to Mr Lambropoulos’ death.[15] Eight of those findings deal with pulse oximetry monitoring. At subparagraph 8.1 the Coroner notes that there was a considerable amount of evidence devoted to the nature of the pulse oximetry devices in use at Ashford Hospital in the HDU in November 2013 and set out the evidence of Mr Randell that he had been involved after Mr Lambropoulos’ death in assisting with printing information which had been electronically stored on the monitoring equipment. He had given evidence as to the nature of the information that was stored.
[15] Exhibit RMS1 to the affidavit of Richard Mark Smith dated 14 December 2020 (FDN 41).
The third party submitted that the respondent has not challenged the Coroner’s findings in its response and there is no suggestion that what was asserted by him (and Mr Randell), is wrong. The third party submits that the answer to assertion no. 3 is again an attempt to avoid the issues in dispute and avoid narrowing the issues between the parties.
I was also taken to exhibit RMS 3 to the affidavit of Mr Smith[16] which is the first page of a letter from the respondent’s expert Ms Catlin of 20 November 2019 responding to questions in a letter from the respondent’s solicitors. In this correspondence Ms Catlin outlines how a central station is used to collate, display, store and archive data from multiple patients. The third party submitted that the respondent’s own expert was confirming exactly what was asserted to be a fact in assertion no. 3 and which the respondent was not now prepared to admit or deny.
[16] FDN 41.
The respondent submitted that I should not consider any extraneous material in determining the application, relying upon the comments of Judge Dart in R G & R T Trott Pty Ltd & Anor v A & G Engineering Pty Ltd & Anor.[17] I should not go behind the respondent’s responses to determine whether or not that response would ultimately be made out at trial. However, I note that the response to assertion no. 3 does not admit or deny the fact but refuses to answer it at all. I am therefore not asked to go behind an answer to determine whether it will ultimately be made out at trial, as was the case when Judge Dart was asked to determine the admissibility of documents.
[17] [2014] SASC 80.
In deciding this issue, I have also considered the decision of Judge Lunn in S, D R v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Commission (No 2),[18] where he was reviewing a notice admit in a matter where the plaintiff had sued the ABC for damages for defamation. The ABC in its defence had pleaded privilege and fair and accurate report of judicial proceedings under the then s 6 of the Civil Liability Act 1936. In the particulars of this plea, the ABC had relied upon hearings in the Adelaide District Court. In an amended reply the plaintiff pleaded in answer to this claim for privilege that the reports were not fair and accurate, and that the ABC was actuated by malice. The plaintiff filed a notice to admit upon the ABC and the ABC filed objections in relation to some of the assertions of fact on the basis of the extent to which it was required to make enquiries of others, and to act upon what it was told in answering the assertions.
[18] [2007] SASC 30.
Judge Lunn was of the view that in answering whether a party knew if a fact was true the then Rule 54.02 did not go so far as requiring the party to say it had no means of knowing the truth of the fact asserted. He stated:
Parties should not be required to disclose what enquiries they have made and what general belief they have on the topic. It is for the parties seeking the admissions to show that the objection is not taken bona fide, and it is not for the party taking the objection to establish its own bona fides, except to the extent of refuting any contrary evidence on the point from the other party.[19]
[19] Ibid at para [17].
In this matter, there has already been a lengthy coronial inquest conducted into the facts and circumstances of Mr Lambropoulos’ death. The respondent was represented at that inquest, and the counsel who appeared before me appeared as counsel at the inquest for the respondent. The respondent well knows the evidence which was given at the inquest regarding the monitoring equipment and the information that could be taken from it. Although the burden of proof is different, the respondent is aware of the findings of the Coroner. In my view, this is not a case where the respondent is required to make enquiries of others outside of its own organisation in answering the request to admit facts. It is a case where the third party has been able to come to court and point to material that is well within the knowledge of the respondent and argue that the respondent is not bona fides in its response to the notice. While the drafting of assertion no. 3 would be assisted by a comma between the words ‘electronically’ and ‘data’ I find that its meaning is quite clear. The second part of the answer provided by the respondent to assertion no. 3 is pedantic and evasive, and I order that the respondent give a further and better response to it.
(iii) Assertion no. 4:
I also make an order that the respondent give a further and better response to assertion no. 4. I find the answer which has been given is evasive particularly in relation to an argument that Mr Lambropoulos by being connected to a finger probe, was not connected to pulse oximetry monitoring equipment. In my view, the respondent can answer whether Mr Lambropoulos was connected to the equipment outlined in assertion no. 4 or, not. The current answer is vague and makes no attempt to narrow the issues between the parties in relation to the nature of the equipment used to monitor Mr Lambropoulos following his surgery.
(iv) Assertion no. 5:
Assertion no. 5 also refers to the pulse oximetry equipment when it asserts that:
Electronic information stored in the pulse oximetry monitoring equipment during the time Mr Lambropoulos was connected to the equipment was downloaded and appears in the documents comprising Appendix E to the statement of Mr Brett Randell dated 18 February 2016 being exhibit C20D in the coroner’s inquest (Appendix E).
In responding to this assertion, in addition to raising issues as to the definition of pulse oximetry equipment, the respondent states that:
… it is not clear whether it is asserted what is in Appendix E is asserted to be the entirety of the ‘stored information’.
I agree with the third party that that the response is irrelevant and does not answer the assertion that has been put. The assertion is whether particular information stored in the monitoring equipment was downloaded and appeared in a certain document, being Appendix E to the statement of Mr Randell. If it is not the entire stored information, then the respondent can say so in its answer. I agree with the third party that the assertion is capable of an unequivocal admission and that if there is further information that is not in Appendix E, then that evidence can be adduced at trial. I order that the respondent give a further and better response to assertion no. 5 of the notice to admit.
(v) Assertion nos. 15 and 16:
Assertion nos. 15 and 16 deal with alarms contained within the pulse oximetry monitoring equipment. Assertion no. 15 makes an assertion that the pulse oximetry monitoring equipment to which Mr Lambropoulos was connected had alarms for low and high SP02 levels.
The response is:
Subject to the qualifications in response to assertion 1 and subject to the qualification that these were not the only two alarms, this is admitted.
Assertion no. 16 is:
These alarms, if activated, can be silenced either at the bedside of the patient or at the monitor situated at the central nursing station in HDU.
The response to that assertion is:
Subject to the qualifications that some alarms self-silence and/or the assumption that the assertion refers to the manual turning off of an alarm, this is admitted.
While I find that the answer to assertion no. 15 borders on pedantic, I believe that subject to the issue in relation to the assertion no. 1, that the answers to assertions no. 15 and 16 are sufficient. The meaning of each response is quite clear. The response to assertion no. 15 admits the assertion in that paragraph, although adds some more information. Similarly, the response to assertion no. 16 responds appropriately to the fact stated.
(3) Responses to assertions nos. 7 and 8
These assertions refer to data from different sources. Assertion no. 7 refers back to data extracted from the monitoring equipment when stating:
Copies of this data extracted from the pulse oximetry monitoring equipment to which Mr Lambropoulos was connected were provided to the respondent.
The response is:
The respondent is unable to admit or deny this assertion as it is vague. There is no definition of what the phrase ‘this data’ is referring to nor is there any reference as to when the provision is asserted to have been made, on how many occasions and to whom:
I agree with the third party’s submissions that the respondent’s response to assertion no. 7 is evasive, and an attempt to avoid narrowing the real issues in dispute between the parties. While the drafting of the assertion is clumsy, when reviewing the notice as a whole, it is quite clear that assertion no. 7 refers back to assertion nos. 3 and 5 that set out facts in relation to the storage of data in the pulse oximetry monitoring equipment connected to Mr Lambropoulos.
The second part of the response is also an inadequate response. The assertion is clear, namely that the data was provided to the respondent. It does not need to set out when or how the data was provided for a proper response to be provided. This may be an important issue to be determined at trial. It is my view that the respondent can provide an unequivocal response to assertion no. 7, and I order that a further and better response be given.
The respondent refers to its response to assertion no. 7, in responding to assertion no. 8 that:
The data contained in the documents in Appendix E to the statement of Mr Brett Randell dated 18 February 2016 being exhibit C20D in the Coroner’s Inquest is accurate.
On the face of the assertion I find that assertion no. 8 has no link to assertion no. 7. It is a very clear statement that certain data, being data contained in specific documents, is accurate. There is nothing vague about the statement of fact. There is no reason why an unequivocal response cannot be provided. I order that the respondent give a further and better response to assertion no. 8.
(4) Responses regarding non-provision of a colour photograph
Assertions numbered 9, 20, 23, 53(b) and 53(c) all seek admissions regarding whether documents in Appendix F to a statement of Mr Brett Randell dated 18 February 2016, being exhibit C20D in the Coroner’s inquest depicts certain data relative to the operation of the pulse oximetry monitoring equipment to which Mr Lambropoulos was connected while in the HDU. The respondent admits that Appendix F is a photograph of an event review monitor screen, however, denies that this a true and correct copy of the photograph which was exhibited to the statement of Mr Brett Randell as it is not in colour, and therefore does not depict:
·the yellow alarm bar referred to in his (Mr Randell’s) statement (assertion no. 9);
·that the yellow display bars depicted in appendix F record the number of occasions the low SP02 alarm was activated (assertion 20); or
·the red bars depicted in Appendix F that record the number of occasions that the crisis alarm of the pulse oximetry monitoring equipment activated within a certain period (assertion 23);
·a photograph of an event review monitor screen at the central nursing station at the HDU which depicts data downloaded from the pulse oximetry monitoring equipment comprising Appendix F to the statement of Mr Brett Randell dated 18 February 2016 (assertion 53(b) and 53(c));
The respondent maintains its response on the basis that no colour photographs or documents were ever provided with the notice to admit. A search of the court file via the Courts SA portal, also found no colour copy had been filed with the court. However, the respondent had received a colour copy of the photograph in issue at an earlier time, by way of a letter that was served with the first iteration of the draft notice to admit. Thereafter, as a result of clerical error, only a black and white photo was served, and only a black and white copy of the photograph was filed with the court. When questioned, counsel for the respondent accepted that his client had participated in the inquest and so had a colour copy of exhibit C20D being Appendix F. When asked whether the respondent’s legal team had considered telephoning the third party’s lawyers to seek a colour photograph, the answer was that the respondent was not obliged to respond to the notice to admit in that way.
I accept the submissions that the filing of the notice to admit with only black and white documents as Appendix F to the statement of Mr Randell was a clerical error. I also accept that in an earlier draft copy of the notice to admit forwarded to the respondent, a colour copy of the photograph was also forwarded. None of this really was disputed by the respondent. In dealing with this issue, I adopt the concerns of Debelle J in Southern Equities Corporation Ltd (in Liq) v Bond (No2), when dealing with definitions in a notice to admit where he noted:
… if the defendant had any concern as to that issue, a simple request of the solicitor for the plaintiffs would have resolved the issue …[20]
[20] (2000) 34 ACSR 680 at [19].
As I have set out, the purpose of the notice to admit is to assist the parties in facing up to the real issues in dispute between them, so that time at trial is not wasted unnecessarily and costs incurred. I am concerned if legal practice has reached a point where an obvious, and uncontroversial clerical error cannot be resolved by a telephone call between solicitors. I am also of the view that not to contact the third party’s lawyer to seek a coloured copy of the photograph breaches the obligations of the respondent as set out in UCR 3.1, and particularly UCR 3.1(g).
I give leave to the third party to file and serve a further notice to admit containing assertion nos. 9, 20, 23, 53(b) and 53(c) and annexing a coloured copy of the documents in Appendix F to the statement of Mr Brett Randell dated 18 February 2016, being exhibit C20D in the Coroner’s Inquest. I order that this be filed and served within 7 days.
(5) Responses to assertion nos. 12, 13 and 14
Assertion nos. 12, 13 and 14 refer to the electronic trace of the wave form recorded on the monitors of the pulse oximetry monitoring equipment connected to Mr Lambropoulos. Assertion no. 12 is as follows:
The electronic trace of the wave form from Mr Lambropoulos was displayed on the equipment monitors of the pulse oximetry monitoring equipment to which Mr Lambropoulos was connected and could be seen simultaneously with the oxygen concentration readings displayed on the monitors.
The response of the respondent is:
The respondent is unable to admit or deny this assertion as it is vague in that the word “recorded” either denotes the physical capture, which is not capable of being printed, or the visual display, in which case it is not clear whether the phrase “equipment monitors” is referring to the equipment set out in assertion 4. Further the phrase “oxygen concentrations” is not defined, however, given its literal interpretation the respondent denies this on the grounds that one of the readings capable of being elicited from a finger probe is the level of a patient’s oxygen saturation or SPO2 levels as opposed to “oxygen concentrations”.
Assertion no. 13 is that:
Pages 1 to 4 of Appendix E contain the graphical representations of the plethysmography wave form recorded from Mr Lambropoulos whilst he was connected to the pulse oximetry monitoring equipment between approximately 19: 54: 35 to 20: 26: 35 on the 25th November 2013.
The response to that assertion is:
Subject to the qualifications in response to assertion no. 1 this is admitted.
Assertion no. 14 is that:
The plethysmography wave form readings from Mr Lambropoulos in the period 19: 54: 35 to 20: 26: 35, showed a reliable wave form.
The response to that assertion is:
The respondent is unable to admit or deny this assertion on the phrase “reliable wave form” is in itself vague and capable of varied interpretations.
In seeking a further response to assertion no. 12, the third party argues that a clear and non-evasive answer can be given by the respondent by them assuming that ‘oxygen concentration’ means the same as ‘oxygen saturation’. The third party argues that the terms are inter-changeable and referred me to the Coroner’s findings at different paragraphs where the Coroner uses at time the words “the patient’s oxygen saturation level” and later the term “oxygen concentrations”.
This is another assertion where the respondent argues that I should not go behind its response and consider extraneous material to determine what is meant by oxygen concentration readings. Further, the respondent argues that it may well be that the Coroner was in error when using the phrase ‘oxygen concentration’ when in fact he was referring to ‘oxygen saturation’; and queries whether the Coroner was using the different terms in a different context. Whatever the reason for the different terminology I agree that it is not my role in considering the responses at this stage to determine what the Coroner intended by the use of different terminology. That is a matter for the trial judge, if this is an issue in dispute at trial.
The respondent also submitted that there is no definition provided of the term ‘oxygen concentration’ in the notice to admit. As an introduction to the notice, there are five definitions set out. At paragraph (c) it is stated that a reference in the notice to SPO2, means a reference to ‘blood arterial oxygen saturation’. This suggests they may have different meanings.
In relation to assertion no. 12 the respondent also argues that the failure to define the phrase ‘equipment monitors’ makes it impossible for them to respond to the assertion, as it is not clear what monitors are being referred to. It is not stated whether the third party is relying upon the definition of pulse oximetry monitoring equipment set out in assertion no. 4. If so, there are two different monitors referred to in that definition, being the monitor fixed to the wall in the bay in which Mr Lambropoulos’ bed was situated, and a central monitor at the central nurses station in HDU.
I agree with the respondent that the drafting of assertion no. 12 makes it unclear exactly what the assertion is referring to in relation to the monitors and the readings displayed. In any event I find that the respondent has provided an adequate response in relation to the assertion regarding the display of oxygen concentration readings on the monitors, (whatever monitors are being referred to). I find that a further response to assertion no. 12 is not required.
In relation to assertion no. 13, I have already made an order that a further and better response be given by the respondent.
In relation to assertion no. 14 the respondent argues that the assertion contains another definitional issue in relation to the phrase ‘reliable wave form’. I do not agree with the respondent. It is my view that the word ‘reliable’ is one that is well used and understood. The understanding of what wave form readings are, was not raised by the respondent in its response to assertion nos. 12 and 13.
It is my view that the response is evasive and that it is possible to provide an unequivocable response to assertion no. 14. I order that the respondent give a further and better response to assertion no. 14.
(6) Admission of documents
The remaining assertions in dispute all relate to the admissibility of documents.
(i) Documents prepared by employees of the respondent
The following assertions relate to witness statements or documents prepared by the two nurses who attended to Mr Lambropoulos on 25 November 2013 while he was in the HDU:
(1)Assertion nos. 37, 39, 54 and 55: statement of Nurse G dated 29 January 2015, including annexures, and statement of 23 October 2013, both tendered at the Coroner’s Inquest;
(2)Assertion no. 41: statement of the observation chart of Mr Lambropoulos from the records of Ashford Hospital dated 25 November 2013 completed by Nurse G;
(3)Assertion no. 42: copy of the progress notes completed by Nurse G relating to Mr Lambropoulos dated 25 November 2013 at 20:00 hours;
(4)Assertion nos. 43 and 58: email statement of Nurse G dated 2 December 2013 forwarded by her to the clinical manager at Ashford Hospital;
(5)Assertion nos. 44, 46, 59 and 60: statements of Nurse P dated 2 February 2015 and 28 October 2015 tendered at the Coroner’s Inquest;
(6)Assertion nos. 48 and 61: copy of email statement of Nurse P dated 25 November 2015;
(7)Assertion nos. 49 and 62: copy of typed statement of Nurse P dated 3 December 2013.
By their response to assertion nos. 37, 39, 43, 44, 46, 48 and 49 the respondent admits that the document attached to the notice is the stated document ‘save as to admissibility’. Admissibility is dealt with in the corresponding assertion nos. 54, 55, 58, 59, 60, 61 and 62 where it is asserted that the specified document is authentic, relevant and admissible.[21] In relation to all the documents the respondent admits that the document is authentic, and also ‘relevant to the subject matter of the action as the document relates to the issue of liability’. However, in relation to each document the respondent says that it can neither admit or deny that the document is admissible and set out the reasons why. Further, in relation to each document or statement it requires Nurse G and Nurse P to attend the trial to be cross-examined.[22]
[21] As required by UCR 117.1 (1)(b).
[22] It was accepted during the argument that the responses contained a ‘typographical’ error, and that reference to the ‘third party’ requiring the statement maker to attend for cross-examination, should have read ‘respondent’.
Before dealing with this admissibility issue further I will deal with the responses to assertion nos. 41 and 42. The respondent objected to responding to these assertions as they were duplicitous as the documents referred to formed part of Nurse G’s statement of 29 January 2015 (assertion no. 37).
The third party argues that the assertions are clear. Both assertions state that a certain attached document is the document that it is stated to be. It is further argued that if the statement in assertion no. 37 is not admissible, the documents set out in assertions nos. 41 and 42 may be admitted separately as business records of the respondent. In this regard, by its response to assertion no. 57 the respondent admits that the document set out in assertion no. 42 (the progress notes completed by Nurse G) are admissible in evidence as a business record pursuant to s 53 of the Evidence Act 1929.
The respondent by its response to assertion no. 56 denies that the document set out in assertion no. 41 (the observation chart of Mr Lambropoulos) is a business record. I will consider the sufficiency of this response when considering the admissibility of documents generally, and the responses in relation thereto.
It is my view that the facts stated in assertions nos. 41 and 42 are clear, namely that the documents outlined and attached to the notice are what they are stated to be. It does not matter whether they form part of another document, an unequivocal answer can be provided. I order that the respondent give a further and better response to both of assertion nos. 41 and 42.
(7) Admissibility of documents
The responses to assertion nos. 54, 55, 56, 58, 59, 60, 61 and 62 all challenge the admissibility of the statements and other documents of Nurse G and Nurse P.
The third party asserts that all these documents are admissible in evidence at the trial of the action for the reason that:
(i)The document is evidence of or related to a fact in issue, namely whether the respondent appropriately monitored Mr Lambropoulos whilst in HDU; and/or
(ii)That it is admissible under s 34C of the Evidence Act 1929; and/or
(iii)That it is a business record and admissible under s 53 of the Evidence Act 1929; and/or
(iv)It contains a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred and admissible under s 52 of the Evidence Act 1929.
The respondent’s inability to admit or deny the admissibility of each document is stated to be on several grounds. Firstly:
… that the word ‘monitored’ is capable of more than one meaning and has not been defined and further says that even if it was admissible under s 34 the respondent requires [Nurse G and Nurse P] for cross-examination.
Apart from the document in assertion no. 54, the respondent also disputes that all the other documents are business records for the purpose of s 53(4) of the Evidence Act 1929 (SA). It says that each document:
… cannot, given that it was taken on behalf of the Coroner for a inquest, fall within the definition of ‘business record’ in s 53(4) …
As to the application of s 52 of the Evidence Act 1929 (SA) to the documents the response is that:
… the [third party] has advanced no reason as to why Nurse G [or Nurse P] should not be called to give evidence and therefore s 52(3) precludes its admission.
The issue for me to determine on this application is whether the respondent has complied with its obligations under UCR 117.1 by its responses to the notice to admit regarding the authenticity, relevance or admissibility of a specified document.[23] In Rak v Coles Myer Ltd, Lander J set out the purpose of the rules in relation to documents:
The purpose of the rules relating to notices to admit is to aid a party in the proof of that party’s case in two ways. First, it allows the party to establish well before trial the authenticity of the document so that the party can be confident at trial that the party will not need to call formal proof to establish the provenance, execution, integrity or the authenticity, of that document. Secondly, it allows the party to be confident, subject to a ruling by the trial judge that the document will be admitted in evidence at the trial without the need for further proof or, except in unusual circumstances, further argument …
…
Clearly enough the purpose of the rule in relation to documents is for the easier proof of that party’s case and for the saving of costs and time in the proof of that case.[24]
[23] UCR 117.1 (1)(b).
[24] (1996) 68 SASR 272 at 276.
Having considered the purpose and utility of notices to admit, Lander J went on to note that such notices were part of a new concept of civil procedure ‘designed to facilitate the proving of a party’s case with the minimum of cost and as expeditiously as possible.[25] The new court rules had followed enactments in the Evidence Act 1929(SA) which Lander J described as Parliament recognising “… that the formal proof of documents which are not really in dispute can often be both unnecessarily expensive and time consuming”.[26] In this regard he was referring to amendments in 1972 and 1984 that introduced the then:
s 45a – the proof of business records
s 45b – the proof of genuine documents containing a statement of fact; and
s 45c – the proof of original documents by certified copies.
[25] Ibid at p 277.
[26] Ibid at p 277.
Lander J stated that the combination of these sections:
… show that Parliament has gone a long way to obviate the necessity for the formal proof of original documents and the calling of witnesses to prove the authenticity of those documents.[27]
[27] Ibid at p 277.
He went on to state that this meant considerable savings in costs and time in calling witnesses to formally prove documents at trial. When taking these sections of the Evidence Act 1929 (SA) in account, the notice to admit further facilitates to the proof of documents at trial. It requires the party answering the notice to admit before trial those documents that are authentic and admissible (and now also relevant). Lander J concluded by saying that the intention of:
… the Parliament and the courts is to ensure that any matter that is not the subject of any genuine dispute, or any document about which there is not real dispute, ought to be proved quickly and without the previous requirement of formality.[28]
[28] Ibid at p 278.
As I have set out above, this is also stated in UCR 1.5 to be the objective of the UCR.
In this matter there are several challenges to the admissibility of documents. I will consider these by applying the principles outlined by Lander J. Firstly, the respondent says that the word ‘monitored’, used by the third party in the description of the fact in issue of which the document is evidence, has not been defined and is capable of more than one meaning.
My view is that this is a pedantic interpretation of the wording of paragraph (c)(i) of the assertion in relation to all of the documents. The word monitored should not be considered in isolation. The third party’s assertion is that the documents sought to be admitted are ‘evidence of, or related to a fact in issue, namely whether the respondent appropriately monitored Mr Lambropoulos whilst in HDU’. A review of the pleadings between the respondent and third party clearly indicate that the issue to be determined in this third party action is the care provided to Mr Lambropoulos in the HDU following his surgery.
The respondent submitted that the word monitored could mean monitored by machine or by persons. The definition is vague. I disagree. All of the actions and processes that are the subject of this action took place in a medical unit where high-level nursing care was to be provided after surgery. That nursing care involves the monitoring of patients. The Oxford English Dictionary defines ‘monitor’ as to:
…observe, supervise or keep under review; to measure or test at intervals, especially for the purpose of regulation and control.
This is what occurs in a post-surgical hospital setting. This is obviously what the word ‘monitored’ is meant to encompass in the assertions under consideration. The assertions do not have to state if this monitoring was by machine or person.
I find that the response to para (c)(i) in assertion nos. 54, 55, 56, 58, 59, 60, 61 and 62 is not a proper response, and I order that a further and better response be provided.
This only deals with the first part of s 34C of the Evidence Act 1929(SA) in relation to admissibility of documents tending to establish a fact. The respondent says that in relation to each assertion it requires the maker of the statement to attend for cross-examination. S 34C provides:
34C – Admissibility of documentary evidence as to facts in issue
(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say –
(a) if the maker of the statement either –
(i)had personal knowledge of the matters dealt with by the statement; or
(ii)where the document in question is or forms part of a record purporting to be a continuous record, made in the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings.
…
(2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (i) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence –
(a) notwithstanding that the maker of the statement is available but is not called as a witness.
…
I have not been asked to order that any statement in the documents in issue be admitted. My role is to determine whether the respondent has met its obligations by its responses as to the assertions as per the requirements of UCR 117.2(1).
The respondent simply says that it requires the maker of the statement to be cross-examined. There is no reason set out as to why this is the case and why the provisions of s 34C(2)(a) of the Evidence Act 1929 does not apply. The response to each document is the same, and the responses don’t deal with the actual information and/or statements contained in each document. No reason for contesting the admissibility of each of the statements is provided. The need to cross-examine the witness is not a proper response pursuant to UCR 117.2.
I order that the respondent give a further and better response to paragraphs (c)(i) and (c)(ii) of assertion nos. 54, 55, 56, 58, 59, 60, 61 and 62.
The second limb of the admissibility asserted at (c)(iv) relates to s 53 of the Evidence Act 1929 (SA), which provides for the admission of business records into evidence without further proof, and as evidence of a fact stated in or inferred from the record. A ‘business record’ is defined in s 53(4) as:
(a)any book of account or other document prepare or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.
The third party no longer presses a further response to paragraph (c)(iv) in relation the documents in assertion nos. 54. In relation to the other documents the respondent’s response is that the document/statement cannot be a business record:
… given that it was taken on behalf of the Coroner for an inquest, fall within the definition of ‘business record’ in s 53(4).
The respondent submitted that even if the documents were commissioned by their senior employees, they ultimately found their way in the Coroner’s Court, and were created solely for the purpose of investigating Mr Lambropoulos’ death. That being the case they do not fall within the definition of a business record as they were not prepared in the ordinary course of the business of providing medical treatment within a hospital. It is not enough to be a business record that a person in the business requests that another person create a statement or other document.
The respondent’s submissions do not support its response to paragraph (c)(iv) of the assertions in dispute, in that there is a concession that the documents were not taken by the Coroner for an inquest but had been prepared at the request of the respondent’s senior staff. If the response is that the documents are not business records, then in denying the assertion full detail of why each separate document is not a business document should be provided. Each document is a different type of document and there should be an explanation why it is not a business record.[29] The same rote answer cannot be provided for each document.
[29] UCR 117.2 (1)(b).
I am of the view that the responses to paragraph (c)(iv) of assertion nos. 55, 56, 58, 59 60, 61 and 62 are not proper responses. I order that the respondent give a further and better response to paragraph (c)(iv) of assertion nos. 55, 56, 58, 59, 60, 61 and 62.
The third limb of the admissibility asserted by the third party is set out in paragraph (c)(v) whereby it is stated that each document:
… contains a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred, and admissible under s 52 of the Evidence Act 1929.
Section 52 of the Evidence Act 1929 (SA) provides as follows:
52—Admission of certain documents in evidence
(1) An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred is, subject to this section, admissible in evidence.
(2) A document must not be admitted in evidence under subsection (1) if the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his or her own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3) A document must not be admitted in evidence under subsection (1) if the court is of the opinion—
(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.
In relation to each document the respondent’s response is that the third party has advanced no reason why the author of the document/statement, being either Nurse G or Nurse P, should not be called to give evidence. In setting out this response I have overlooked the obvious typographical errors; it being stated that the respondent rather than the third party has not set out a reason to call the witness and where Nurse G is referred to as the witness in assertion nos. 59, 60 and 61 it should be Nurse P.
The third party submits that there is no requirement upon him to advance a reason as to why the author of the documents in question need be called to give evidence. Section 52(1) of the Evidence Act 1929(SA) does not require that. I agree.
It is my view that it is for the respondent, in responding to paragraph (c)(v) of the assertions related to the documents in issue to explain why it denies that the document/statement should be admitted. If this includes that the author of the document/statement should give evidence it is for the respondent to set out why, that is the case within the provisions of s 52, in relation to each separate document. Again, these are all different documents, and a rote answer is not sufficient.
I order that the respondent is to give a further and better response to paragraph (c)(v) of assertion nos. 54, 55, 56, 58, 59, 60, 61 and 62.
As a result of the orders, I have made in relation to the admissibility of documents, I make consequential orders that the respondent give a further and better response to assertion nos. 37, 39, 43, 44, 46, 48 and 49.
(ii) Documents prepared by Mr Randell
The following assertions relate to a witness statement and documents prepared by a contractor, Mr Brett Randell who provided services related to the patient monitoring equipment used at Ashford Hospital, and to his transcript of evidence at the Coronial Inquest as follows:
(1)Assertion nos. 6 and 50: statement of Mr Randell dated 18 February 2016 with appendices being exhibit C20D in the Coroner’s Inquest (‘Randell’s statement’);
(2)Assertion nos. 10 and 53: a copy of Appendix F to Randell’s statement;
(3)Assertion no. 51: transcript of Mr Randell’s evidence given at the Coroner’s Inquest as contained in pages 354 to 464 of the transcript taken at the Inquest;
(4)Assertion no. 52: downloaded electronic information stored in the pulse oximetry monitoring equipment during the time Mr Lambropoulos was connected to the equipment as it appears in the documents comprising Appendix E to Randell’s statement.
As with the documents of Nurse G and Nurse P, the respondent admits that the documents in assertion nos. 6 and 10 are the documents stated to be attached to the notice to admit, but deny their admissibility referring to their responses to assertion nos. 50 and 53 respectively.
In relation to each of the assertions in paragraphs 50, 51, 52 and 53 the third party sets out that the document is admissible upon the same basis as the documents/statements of Nurse G and Nurse P. That is that the document is evidence of a fact in issue, and is admissible under sections 34C, 53 and 52 of the Evidence Act 1929 (SA).
I will deal with assertion no. 52 first as the inability to admit or deny the assertion relies upon the respondent’s response to assertion no.1 and their concern with the meaning of the work ‘monitored’ in sub-paragraph (c)(i). I have already set out my view on these two issues. As a result, I find that the response to assertion no. 52(c) is not sufficient and order that the respondent give a further and better response to all parts of assertion no. 52(c).
I have also previously considered assertion no. 53 and made orders in relation thereto. As a result, I make a consequential order in relation to assertion no. 10, that a further and better response be given.
This leaves the issues as to the admissibility of the documents in assertions no. 50 (the Randell statement) and no. 51 (transcript of Randell’s evidence at the Coroner’s Inquest). In their response to both assertions the admissibility of the document is denied upon the basis that Mr Randell is not an appropriate expert and the document is not a business record.
Denial due to lack of expertise
The admissibility of both documents in assertion nos. 50 and 51 is denied on the grounds that:
i.Brett Randell is not an expert on the topic of whether Mr Lambropoulos was appropriately monitored and any opinion he may express is objectionable. To the extent that it is sought to admit the document for the purposes of non-expert evidence, the respondent does not accept the accuracy of some of Mr Randell’s interpretations of the print outs and relies on the expert evidence of Ms Catlin and therefore requires Mr Randell for cross-examination. Finally, parts of the statement rely on unsubstantiated testing done by a third party and infringe the hearsay rule.
ii.The application of s 34C of the Evidence Act:
(a) any evidence purporting to be on the topic of whether Mr Lambropoulos was appropriately monitored amounts to unqualified opinion evidence and would not be admissible and as such the statement does not satisfy the very first limb of s 34C. To the extent that parts of the statement infringe the hearsay rule that would negate the operation of s 34C. Further the third party requires Mr Randell for cross examination.
The respondent by this response has denied the admissibility of the documents in assertion nos. 50 and 51 and has explained why in some detail. In particular that Mr Randell is not an expert as to whether Mr Lambropoulos was appropriately monitored in the HDU, and that it does not accept his interpretations of print outs from the monitoring equipment and requires him to attend trial for cross-examination. It is also stated that some parts of the statement infringe the hearsay rule. For these reasons the evidence is not admissible under s 34C of the Evidence Act 1929 (SA).
The third party argues that Mr Randell’s statement and evidence do not contain opinion, but observations of what was recorded on the monitoring equipment and says the two documents make this clear. It was also submitted that the accuracy or otherwise of Mr Randell’s interpretation of the printouts is not a legitimate basis upon which the non-admission of the documents can be made. He relies upon the comments of Lander J in Rak v Coles Myer Ltd[30] in relation to the utility of notices to admit.
[30] (1996) 68 SASR 272.
However, Lander J’s statement is that the object of notices to admit ‘is to require the parties to focus their attention on the matters genuinely in dispute’ so as avoid the additional costs of extended litigation.
While the third party may not agree with the position taken by the respondent in relation to Mr Randell’s expertise it is my view that by the respondent’s answers there is clearly a genuine dispute regarding the admissibility of the documents in assertion nos. 50 and 51. I agree with the statements of Judge Dart in R G & R T Trott Pty Ltd & Anor v A & G Engineering Pty Ltd & Anor that it is not the role of the Court, at an interlocutory stage, to determine whether the response provided is correct.[31]
[31] [2014] SASC 80 at para [10].
In my opinion the responses to assertion nos. 50 and 51 detail why the respondent denies the assertion as required by UCR 117(1)(b). They are adequate responses and there is no need for the respondent to provide any further responses.
Orders
The court orders are:
1.That the respondent is to give further and better responses within 14 days in respect of assertions numbered 1, 2, 3, 4, 5, 7, 8, 10, 11, 13, 14, 17, 18, 19, 21, 24, 36, 37, 39, 41, 42, 43, 44, 46, 48, 49, 52(c), 53(a), 54(c), 55(c), 56(c), 58(c), 59(c), 60(c), 61(c) and 62(c).
2.That the third party is granted leave to file a further notice to admit facts and documents in relation to assertions number 9, 20, 23, 53(b) and 53(c) and annexing a coloured copy of the documents in Appendix F to the statement of Brett Randell dated 18 February 2016 being exhibit C20D in the Coroner’s Inquest within 7 days.
3.I certify fit for counsel.
I will hear the parties as to consequential orders including as to costs.
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